PLJ 2022 Judgments

PLJ 2022 Karachi 1 (DB)

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

SAEED HABIB--Petitioner

versus

NATIONAL BANK OF PAKISTAN through President--Respondent

Const. P. No. D-2666 of 2020, decided on 16.12.2020.

Banks (Nationalization) Act, 1974 (XIX of 1974)--

----S. 11(4)(10)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Contract employment--Extension in contract--Bank policy for recruitment--Principle of master and servant--Rights of bank--Maintainability--Under Banks (Nationalization) Act, all selections, promotions, and transfers of employees of banks (except that of President) and decisions as to their remuneration and benefits have to be made by President of respondent-bank under evaluation criteria and personnel policies determined by Board--Respondent-bank was well within its rights to dispense with service of its employees under law--It is also a settled law that Courts ordinarily refrain from interfering in policy-making domain of Executives unless it is proven that it has infringed fundamental tights of citizens of Pakistan, which is not case at hand--Every person has a right to approach a Court of law for redressal of his grievance, whether such grievance is against a private party or a public functionary--Article 199 of Constitution restricts such right only to an aggrieved person, as contemplated in said Article, who is aggrieved by any action or order of a public functionary or department or Provincial or Federal Government--Petitioner filed this petition seeking a relief to which he was not entitled under law--Petitioner wanted this Court to grant a declaration contrary to law settled by Hon'ble Supreme Court--Not only this, he obtained an ad-interim injunction order in these proceedings against respondent bank--Such conduct on his part is not acceptable as he has consumed and wasted valuable time of this Court which could have been utilized to decide genuine and urgent matters--Petition dismissed. [Pp. 7, 8 & 9 ] A, B, D, E & F

2005 SCMR 642, PLD 2010 SC 841, 2019 SCMR 984 & 2020 SCMR 1625 ref.

Contractual Employee--

----A contractual employee cannot claim vested right, even for regularization of his service. [P. 7] C

Syed Muhammad Yahya and Ms. Rukhsana Yahya, Advocates for Petitioner.

Mr. Faisal Mehmood Ghani, Advocate for Respondent.

Dates of hearing: 6, 30-11-2020.

Judgment

Adnan-ul-Karim Memon, J.--Through the instant petition, the petitioner has sought the following relief(s):

i. A declaration deeming the decision of the Respondent's Board of Directors arrived at in their 227th Meeting; to the extent of qualifying pension; as unconstitutional, illegal and unlawful;

ii. (Consequently) A declaration that the Petitioner is entitled to regularization in service from the date of his initial appointment;

ii-a. A declaration that Letter dated 26.06.2020 is illegal and unlawful;

iii. (Resultantly) A declaration that the Petitioner is entitled to all benefits of service, including retirement/ post-retirement benefits (including accumulated or monthly pensionary payments)

iv. A Writ of Mandamus directing the Respondent (an/or persons acting under it, through it and /or on its behalf) to cause formal regularization in favor of the Petitioner from the date of his initial appointment in service and

v. A Writ of Mandamus directing the Respondent (an/or persons acting under it, through it and/or on its behalf) to induct the Petitioner as a member of its provident and pension funds upon attaining superannuation and to disburse benefits accordingly.

1. Precisely, the facts of the case are that the petitioner was appointed as Senior Vice President in National Bank of Pakistan ('NBP') on contract basis for three (03) years vide office order dated 31.03 2011, and the respondent bank extended his contractual service which stood expired on 30.06.2020. The petitioner has alleged that although the respondent-bank had renewed his contract for another period of three (03) years, he was/is nevertheless entitled to be regularized as per the policy of the respondent-bank, and consequently he is likewise entitled to all the post-retirement benefits as a regular employee under the said policy.

2. Upon query by this Court as to how the instant petition is maintainable as admittedly the petitioner was appointed on contract, Syed Muhammad Yahya, learned counsel for the petitioner, has argued that the petitioner was appointed in the year 2011 on duly sanctioned and permanent post of Senior Vice President (SVP) through a competitive process; he was promoted to the next rank i.e. Executive Vice-President (EVP) with effect from 01.12.2017 against the regularly sanctioned position; he had been carrying out duties, functions, and assignments of a permanent nature for more than nine (09) years; and, as such he had legitimate expectations of being absorbed as a permanent employee in the bank. In support of his contention, he relied upon the Human Resource Policy (HRP) of the respondent-bank and argued that the case of the petitioner for renewal was duly recommended by the Group Chief/Senior Executive Vice President vide proposal for renewal of contract initiated on 10.03.2020 He pointed out that the petitioner had obtained exceptional grades 'A' since 2012 and that the last grade in the year 2019 was recommended 'Very Good' by his superior. However, no decision was communicated to the petitioner until May 2012 concerning the renewal of his contractual period and, as a result, he was forced to seek the indulgence of this Court through the instant petition. He also submitted that pending his request, his services were dispensed with vide letter dated 26.06.2020, which was/is contrary to the principles of natural justice and in total disregard of the order dated 29.05.2020 assed by this Court. He referred to Section 24-A of the General Clauses Act, 1897 and submitted that the respondent-bank was required to exercise its discretionary powers in a fair, reasonable, and transparent manner, but they dispensed with his services with one stroke of the pen. He further relied upon the Resolution of the Board of Directors passed in the 277th and 283rd meetings held on 31.11.2017 and 28.04.2018, respectively, and argued that the petitioner was/is entitled to regularization of his service under the Staff Service Rules, 1973, (Rules) and HR Policy Manual and the Board's Approved Policy for Regularization of service of employees of Bank. To support his claim, he relied on the case of Muhammad Tariq Badar vs. NBP, 2013 SCMR 314, and argued that the 1973 Rules are statutory, so the instant petition is maintainable under Article, 199 of the Constitution of the Islamic Republic of Pakistan, 1973, on the premise that the respondent-bank is a state-owned bank. He further relied upon the case of Iqram Bari vs. National Bank of Pakistan and others, 2005 PLC (C.S) 915, and submitted that the respondent-bank had agreed to give the same treatment to the petitioner as was given to other employees who were permanently taken on regular service. He also referred to the case of M/S State Oil Company Limited vs. Bakht Siddique and others, 2018 SCMR 1181, and argued that though the regularization of service is not a part of the terms and conditions of service, the petitioner has sufficient length of service to claim regularization of his service on the premise that he has given his prime time to the respondent-bank. Learned counsel pointed out that on the very subject the Honorable Supreme Court has already dealt with the matter in the case of Abdul Ghafoor vs. The Chairman of the National Bank of Pakistan, 2018 SCMR 157, and argued that the case of the petitioner is similar to the one decided above.

3. He further argued it is his fundamental right to ask for regularization of his service which right is guaranteed by Article 9 of the Constitution, which includes the right to livelihood as the same rule has been laid down by the Honorable Supreme Court in the case of Abdul Wahab and others vs. HBL and other, 2013 SCMR 1383, by holding that the right to sustenance cannot cling to the fantasies of persons in authority. Learned counsel emphasized that termination of the contract of the petitioner issued by the respondent-bank during the pendency of this petition without hearing him is devoid of sound reasoning and is also a violation of Section 24-A of the General Clauses Act, 1897, and Articles 4, 5, 8, 9, 10-A, 14, and 25 of the Constitution of the Islamic Republic of Pakistan, 1973; and, the service of the petitioner could not have been dispensed with, which was/is of permanent nature. He submits that the petitioner provided services for a considerable period and therefore acquired the right to be reinstated/continued/regularized in service. He asserted that the career of the petitioner has become paralyzed at the hands of the respondent-bank, for the reason that he is now unable to get private/Government service, therefore, the impugned letter dated 26.06.2020 issued by the respondent-bank is liable to be set-aside. Learned counsel referred to various documents attached to the memo of the petition and argued that he is entitled to pension under the Civil Service Regulation (CSR) as he has served with the respondent-bank for more than five (05) years. He also referred to Section 62 of the Contract Act and argued that the original contract of service stood novated as the petitioner was extended the facility of house building loan which impliedly shows that he was on regular service. He heavily relied upon the case of Pakistan Railways through Chairman Islamabad and another vs. Sajid Hussain and others, 2020 SCMR 1664, and argued that the regularization policy of the respondent-bank was introduced and the same applies to the case of petitioner thus he is entitled to the benefit of said policy. He concluded his submissions by saying that this petition may be allowed as prayed and in the alternative, if the regularization is not possible the petitioner may be allowed to continue to serve the respondent-bank as a contract employee.

4. On the other hand, Mr. Faisal Mehmood Ghani, learned counsel for the respondent bank has refuted the averments and allegations made by the petitioner and supported the impugned letter dated 26.06.2020. He argued that the instant petition is not maintainable against the respondent-bank under the law as the dispute between the parties relates to contract employment; the Honorable Supreme Court in its various pronouncements settled the law that a contract employee is debarred from approaching this Court in its constitutional jurisdiction; and, the only remedy available to a contract employee is to file a Suit for damages in case of breach of contract or failure thereof. He further argued that the impugned action of the respondent-bank is well-reasoned and based on settled principles of law. It was urged by him that the petition is liable to be dismissed in view of the above legal position. In support of his above contentions, he relied upon the cases of Dr. Mubashar Ahmed vs. P.T.C.L through Chairman, Islamabad and another, 2007 PLC (C.S.) 737, Dr. Inshague Muhammad Shah vs. President, National Bank of Pakistan and 2 others, 2010 PLC (C.S.) 748, Muhammad Mateen Khan vs. Federation of Pakistan through Secretary, Ministry of Interior Islamabad and 3 others, 2020 PLC (C.S) 1, and unreported judgment dated 30.10.2019 passed by learned Islamabad High Court.

5. We have heard learned counsel for the parties on the point of maintainability of this petition, and have also perused the material available on record and the case-law cited at the bar.

6. Firstly, we would address the question of maintainability of the instant Petition under Article 199 of the Constitution.

7. To begin with the question of regularization of service of an employee vis-a-vis service jurisprudence, it has to be kept in mind as to what is the concept of regularization of service. In other words, what are the necessary elements that must exist to allow a person to seek regularization of a job under the law ? The law on the regularization of service is clear in its concept according to which regularization and permanent absorption must be granted strictly under the rules of recruitment in force.

8. Principally, this Court, in exercising power under Article 199 of the Constitution, cannot issue directions for regularization, absorption, or permanent continuance of service of an employee, unless the employee claiming regularization had been appointed in an open competitive process in pursuance of regular recruitment in accordance with the relevant rules against a sanctioned vacant post. It is a well-settled principle of law that for public employment unless the appointment is in terms of the relevant rules and after a proper competition amongst qualified persons, the same would not confer any vested right on the appointee. If it is a contractual appointment, the appointment comes to an end upon expiration of the contract, and if it was an engagement or appointment on daily wages or casual basis, the same would come to an end upon completion of the agreed assignment or tenure. It is well-settled that a temporary employee cannot claim permanent status at the end of his term as a matter of right. It is clarified that if the original appointment was not made by following the due/prescribed process of selection as envisaged by the relevant rules, a temporary/contract employee or a casual wage worker cannot be absorbed in regular service or made permanent merely for the reason that he was allowed to continue the service beyond the term of his appointment. It is not open for this Court to allow a regular recruitment in the case of a temporary / contract, employee whose period of work has come to an end, or of an ad-hoc employee who by the very nature of his designation, does not acquire any right. Merely because an employee had obtained an interim order of the Court, would not entitle him to any right to be absorbed or made permanent in the service without the mandatory lawful process.

10. Under Section 11(4)(10) of Banks (Nationalization) Act, 1974, all selections, promotions, and transfers of employees of banks (except that of the President) and decisions as to their remuneration and benefits have to be made by the President of the respondent-bank under the evaluation criteria and personnel policies determined by the Board. The respondent-bank has framed the policy for recruitment of employees of the Bank from clerical to OG III and above up to EVP with certain criteria, therefore, for better understanding to determine this question, we have to shed light upon Section 11(4)(10) of the Act of 1974.

"(4) the general direction and superintendence of the affairs and business of a bank, and overall policy-making in respect of its operations, shall vest in its Board.

(5) The Board shall determine--

(i) the credit of the banks;

(ii) evaluation criteria for the performance of the employees of the bank other than the President;

(iii) personnel policies of the bank, including, appointment, and removal of officers and employees;

(iv) guidelines for entering into any compromise with borrowers and other customers of the bank; and

(v) any other policy matter.

(10) All selections, promotions and transfer of employee of banks except the President and decisions as to their remuneration and benefits shall be made by the President in accordance with the evaluation criteria and personnel determined by the Board."

11. In view of the above, the respondent-bank was well within its rights to dispense with the service of its employees under the law. Having discussed the legal aspect of the case, we have perused the appointment order dated 31.03 2011 of the petitioner, which was admittedly a contractual appointment for three years. The record indicates that the petitioner's service was on contract for a certain period or an extended period on the choice of appointing authority. The case of the petitioner was/is subject to the principle of Master and Servant. It is well-established law that a contractual employee cannot claim vested right, even for the regularization of his service.

1. In the present case, the petitioner has not established that he has a fundamental/acquired vested right to remain in the contractual post of Executive Vice-President of the bank or to seek extension and/or regularization of tile contractual service that admittedly expired on 30.06.2020. The General Clauses Act, 1897, also empowers the competent authority to appoint or remove anyone appointed in exercise of that power as discussed in the preceding paragraph. It is also a settled law that Courts ordinarily refrain from interfering in the policy-making domain of the Executives unless it is proven that it has infringed the fundamental tights of the citizens of Pakistan, which is not the case at hand.

13. In the present case, no material whatsoever has been placed before us by which we can conclude that the impugned letter dated 30.06.2020 has been wrongly issued by the respondent bank. Thus, the statement of the petitioner that he was not heard before issuance of impugned letter 30.06.2020 is not tenable in the eyes of the law for the reason that the respondent-bank allowed the petitioner to continue his contractual service, which period expired on 30.06.2020 by efflux of time. The cases cited and relied upon by learned counsel for the petitioner are not relevant or applicable to the instant case as the facts and circumstances therein were clearly distinguishable.

1. The views expressed by us in the preceding paragraphs are fortified by the following authoritative pronouncements of the Hon'ble Supreme Court;

i. Government of Baluchistan vs. Dr. Zahida Kakar and 43 others (2005 SCMR 642)

ii. Dr. Mubashir Ahmed vs. PTCL through Chairman, Islamabad and another (2007 PLC CS 737).

iii. Abid Iqbal Hafiz and others vs. Secretary, Public Prosecution Department, Government of the Punjab, Lahore, and others, PLD 2010 Supreme Court 841

iv. Federation of Pakistan vs. Muhammad Azam Chattha (2013 SCMR 120)

v. Muzafar Khan & others vs. Government of Pakistan & others (2013 SCMR 304)

vi. Abdul Wahab and others vs. HBL and others (2013 SCMR 1383)

vii. Chairman NADRA, Islamabad through Chairman, Islamabad and another vs. Muhammad Ali Shah and others, 2017 SCMR 1979

viii. Qazi Munir Ahmed Versus Rawalpindi Medical College and Allied Hospital through Principal and others (2019 SCMR 648)

ix. Raja Iviz Mehmood and another vs. Federation of Pakistan through Secretary M/o Information Technology and Telecommunication and others, 2018 SCMR 162

x. Maj. (R) Syed Muhammad Tanveer Abbas and other connected Appeals, 2019 SCMR 984.

xi. Unreported order dated 13.03.2019 passed by the Hon'ble Supreme Court in C.P. No. 2792/2018 and other connected petitions

xii. Province of Punjab through Secretary Agriculture Department, Lahore, and others vs. Muhammad Arif and others (2020 SCMR 507).

xiii. Miss Naureen Naz Butt vs Pakistan International Airlines and others (2020 SCMR 1625).

14. In view of the above discussion, the petition is not maintainable either on facts or in law. However, before parting with this case, it may be observed that every person has a right to approach a Court of law for redressal of his grievance, whether such grievance is against a private party or a public functionary. Article 199 of the Constitution restricts such right only to an aggrieved person, as contemplated in the said Article, who is aggrieved by any action or order of a public functionary or department or the Provincial or Federal Government. A person coming to Court must be fully aware of his right i.e. whether he is entitled to such right or not. We are constrained to observe that despite the legal position established in view of plethora of pronouncements by the Hon'ble Supreme Court as discussed above, the present petitioner filed this petition seeking a relief to which he was not entitled under the law. In other words, the petitioner wanted this Court to grant a declaration contrary to the law settled by the Hon'ble Supreme Court. Not only this, he obtained an ad-interim injunction order in these proceedings against the respondent bank. 'Such conduct on his part is not acceptable as he has consumed and wasted valuable time of this Court which could have been utilized to decide genuine and urgent matters. Therefore, the petition is liable to be dismissed with costs.

1. In the light of the above facts and circumstances of the case, the instant petition is dismissed along with listed application(s) with costs of Rs. 25,000.00 (Rupees twenty five thousand only) to be

deposited by the petitioner with the Nazir of this Court within thirty (30) day from today which amount shall be paid forthwith by the Nazir to Edhi Foundation.

(Y.A.) Petition dismissed

PLJ 2022 Karachi 10 (DB)

Present:Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ.

ChaudharyKHAQAN SAADULLAH KHAN--Petitioner

versus

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

C.P. Nos. D-7614 D-7613, D-8361, D-7638, D-8302 of 2018, decided on 3.6.2021.

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

----S. 9--Corruption and corrupt practices--Pre-arrest bail, Grant of--Allegation of--Purchasing of corporate assets including working shares at higher than market price--Approving of proposal for bid by Board of Directors--Opinion of I.O. regarding guilt of petitioner--Controversial transaction--Persons responsibility sitting on an authoritative position--Common intention--Further inquiry--Direction to--IO mostly by just looking at minutes of meetings particularly of one dated 17.05.2021 and record of certain e-mails has formed an opinion about guilt of petitioners--His opinion about innocence of Board Members, who actually approved proposal of bid paving way for such a controversial transaction, is extremely subjective with nothing to bank on--Person whose reports were merely a proposal subject to all exceptions has been arraigned in reference and ones with authority to reject it but did not have been let off by IO on plea that they were not expert--Albeit no material regarding their being expert or not is available--But in our tentative view on such an excuse a person's responsibility, sitting on an authoritative position to make an attentive decision in a given situation, would not stand extenuated and he would be held fully responsible of any adverse after-effects happening as a result of his decision--IO completely failed to warrant his recommendation to Chairman NAB for warrants only against two petitioners Asim Murtza and Sadullah and not others when he has alleged all petitioners with their common intention, active collusion and convince have committed this offence--Why he did not seek their custody in investigation and how thus he could oppose their plea of pre-arrest bail now--When we take a holistic view of all these facts and circumstances, on balance, we find case to be of further inquiry--We confirm ad interim bail of all petitioners on same terms and conditions they were granted bail on--Petition disposed of.

[Pp. 13 & 14] A, B & C

M/s. Muhammad Ashraf Kazi & Irshad Ali Jatoi, Advocates for Petitioners (in C.P. No. D-7638 of 2018).

Mr. Faisal Siddiqui along with Ms. Amna Usman, Advocate for Petitioner (in C.P. No. D-7614 of 2018).

Mr. Obaid-ur-Rehman, Advocate for Petitioner (in C.P. No. D-7613 of 2018).

Mr. Mansoor Ali Ghanghro, Advocate for Petitioner (in C.P. No. D-8302 of 2018).

Mr. Jameel Ahmed, Advocate for Petitioner (in C.P. No. D-8361 of 2018).

Mr. Shahbaz Sahotra, Special Prosecutor NAB a/w Abdul Fateh I.O. NAB.

Dates of hearing: 20.4.2021, 6.5.2021 and 3.6.2021.

Order

Muhammad Iqbal Kalhoro, J.--Petitioners standing a trial in Reference No. 15/2020 regarding allegations of corruption and corrupt practices in a transaction whereby Pakistan Petroleum Limited (PPL) purchased corporate assets including working shares in block of M/s. Moravske Naftove Doly, Exploration, and Production (MND E&P), a UK based oil and gas exploration company, causing a loss to thenational exchequer, have applied for pre arrest bail.

1. The Investigating Officer has concluded in the investigation that petitioners and co-accused with their active connivance and collusion and by misuse of authority acquired the assets of aforesaid company at an exorbitant rate causing a primary loss of USD 67.2 million on account of difference in valuation, and USD 53.0.9 million on account of post-acquisition operational losses totaling USD 121.6 million to the national exchequer. Petitioners Moin Raza Khan, Syed Rahat Hussain Naqvi, Abdul Wahid Choudhry, and Asim Murtaza Khan, stated to be senior PPL officials, are alleged to be instrumental in purchasing such assets at higher than its market value. Their alleged collusion and connivance with Khaqan Saadullah, a financial adviser M/s. KASB, is the main theme of the reference rooted mainly in discovery of minutes of various meetings including a meeting dated 17.05.2012 participated by petitioners and PPL Board of Directors approving proposal for a bid at USD 180 million for purchasing those assets; and preceding emails mostly between the petitioners sharing technical details, assets evaluation, etc.

2. Learned defense counsel have highlighted that the Chairman PPL, who filed the complaint with NAB, is not even the witnesses; the case is based on hypothesis drawn by the IO regarding collaboration, connivance and collusion of the petitioners with each other and there is no evidence available on record in this regard; the loss calculated by the IO is based on a figment of his imagination and there is no expert report to justify the same; the detail of alleged role of each petitioner specified in the reference is without incriminatory overtones and it does not come within the ambit of misuse of authority; no evidence of petitioners gaining a personal benefit has either been alleged or implied in investigation; the Board Members taking part in the meeting dated 17.05.2012 and approving bid-proposal have been let off by the IO on the basis of inference derived hypothetically by him, is reflective of his ill motive to implicate petitioners at any cost; the loss calculated by him is based on a report of M/s. Deloitte dated 25.04.2017 which already in its report dated 10.04.2017 had categorically stated that there was no evidence of fraud, etc.; that IO has not conducted proper investigation and with mala fide caused issuance of warrant against petitioners Asim Murtaza and Chaudhary Khaqan Sadullah Khan and not the others. Finally they submitted the reference has been filed in haste and petitioners are entitled to concession of pre arrest bail.

3. Learned Special Prosecutor NAB and the IO have opposed the case of petitioners for bail. The IO has referred to a number of documents available in investigation report and 161, Cr.P.C. statements of the witnesses to show that how without an input from finance department of the company, the proposal for bid having serious financial implications was processed, discussed and approved by the petitioners to purchase assets at higher than market price.

4. Considered and perused the record. Entire accentuation in the reference is on the fact that PPL purchased the assets at a higher than market price. But surprisingly neither the actual market price of those assets has been declared nor, it seems, was any attempt even made by the IO to ferret out the same. At best his case on this aspect is founded on some computer generated reports plus reports of M/s. Deloitte and PRS Energy prepared before the investigation. The evidentiary value thereof, the background and the circumstances triggering preparation of such reports are the questions which need to be inquired into and determined by the trial Court. At this stage the same would not be deemed reasonably connecting the petitioners with the alleged offence.

5. Much as a loss of USD 67.2 million in terms of difference in valuation and USD 121.6 million on post-acquisition operational losses has been alleged in the reference. But the expert analysis of the relevant material which helped the I.O. make such technical estimation is ostensibly not available in the record. We therefore find it hard to subscribe to such figure and endorse it as a prima facie proof against the petitioners.

7. In the reference, except the suggestions of collusion, connivance, etc. between the petitioners to clinch the deal with ulterior motive, nothing concrete lending credence to such insinuations has been brought on record and it is ubiquitously clear to us that the IO mostly by just looking at the minutes of meetings particularly of the one dated 17.05.2021 and record of certain e-mails has formed an opinion about guilt of the petitioners. His opinion about innocence of Board Members, who actually approved the proposal of the bid paving the way for such a controversial transaction, is extremely subjective with nothing to bank on. He has stated rather opaquely in the reference that no evidence about their mens rea and actus reus was there because they were not expert and involved in manipulations. It is not only contradictory to their presence in the fateful meeting and granting approval to the bid but is indicative of cherry-picking. There is otherwise nothing on the record which induced him to make such a salutary inference about them in presence of their palpable role.

8. Against petitioner, Chaudhary Khaqan Saadullah Khan it is specifically alleged that he amended his report four times mala fide and enhanced the value of assets each time. But a perusal of the reference itself would show that each time some additional components were included and which seemingly caused spike in estimation qua value of the assets. Be that as it may, the point to be noted is that all such reports were presented before the Board Members and they took no exception to it and granted a go-ahead for a bid. The person whose reports were merely a proposal subject to all exceptions has been arraigned in the reference and the ones with authority to reject it but did not have been let off by the IO on the plea that they were not expert. Albeit no material regarding their being expert or not is available. But in our tentative view on such an excuse

a person's responsibility, sitting on an authoritative position to make an attentive decision in a given situation, would not stand extenuated and he would be held fully responsible of any adverse after-effects happening as a result of his decision.

9. To a query, during the hearing of the case, the IO completely failed to warrant his recommendation to the Chairman NAB for warrants only against two petitioners Asim Murtza and Chaudhary Khaqan Sadullah Khan and not the others when he has alleged all the petitioners with their common intention, active collusion and convince have committed this offence. And why he did not seek their custody in the investigation and how thus he could oppose their plea of pre-arrest bail now. When we take a holistic view of all these facts and circumstances, on balance, we find the case to be of further inquiry. Resultantly, we confirm the ad interim bail of all the petitioners on the same terms and conditions they were granted bail on.

1. The petitions are disposed of in above terms. Needless to state that aforesaid observations are tentative in nature which shall not have any bearing over merits of the case before the trial Court. The petitioners are directed to join the trial and shall not cause any hindrance or delay in the proceedings thereof and if the trial Court finds them doing so shall make a reference to this Court for cancellation of concession granted to the petitioners by this order.

(Y.A.) Petition disposed of

PLJ 2022 Karachi 14

Preent:Salahuddin Panhwar, J.

Professor NISAR AHMED KHAN RAO--Appellant

versus

INSTITUTE OF BUSINESS ADMINISTRATION through Authorised & Special Attorney Karachi--Respondent

IInd Appeal No. 21 and C.M. NO. 875 of 2019, decided on 2.3.2021.

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

----Ss. 9 & 42--Civil Procedure Code, (V of 1908), O.VIII, R. 10--Failure to file written statement--Suit for declaration possession and mense profit was decreed--Penal consequences--Challenge to--Court(s) should always be-cautious while recording judgment against him on failure of defendant because failure in filing written statement alone shall never allow a 'judgment' which, normally, has binding effects upon all concerned--When provision itself allows only one penal consequence then trial Court was not legally justified to decree suit when it first had passed an order of 'striking off defence'--Defendant was earlier warned in categorical terms that failure in filing written statement on next-date shall bring penal consequences--Judgments recorded by both Courts below are against law hence set aside being void--Appeal allowed.

[Pp. 17 & 18] A, B, C & D

Choudhri Abdur Resheed, Advocate for Appellant.

Mr. Muhammad Tariq, Advocate for Respondent.

Date of hearing: 2.3.2021.

Order

Heard learned counsel for respective pasties.

1. Precisely relevant facts are that defendant filed suit for declaration, possession and mesne profit; summons were issued; defendant appeared but he failed to file written statement within time. Accordingly leaned trial judge while exercising powers under order VIII Rule 10, CPC, decreed the suit.

2. Learned counsel for respondent has relied upon 1981 SCMR 590 which says that order VIII Rule 10, CPC is not a decree and second appeal is not competent, only revision is to be filed.

3. As regard plea of revision petition and not of second appeal, it would suffice to refer the case of Muhammad Yusuf v. Kharian Bibi 1995 SCMR 784 wherein it is held as:

“The learned counsel half-heartedly raised objection to the conversion of the second appeal to revision petition. Suffice it to observe that the High Court is competent to convert the appeal into revision petition even on a verbal prayer made by the party concerned.”

1. I would further add that the learned counsel for the respondent has not claimed any point of limitation involved as for second appeal and 'revision' the period of limitation is prescribed differently. On this count, too, such plea is of no help for the respondent. The reference is made to the case of Abdul Khaliq v. Rehmat Ali 2012 SCMR 508 wherein it is held as:

“13. .... But, in the instant case perusal of case record reveals that against the impugned judgment dated 12.7.2000, civil petition for leave to appeal was filed on 24.7.2000 i.e within 12 days, therefore, due to grant of permission for its conversion into civil appeal in terms of order dated 30.8.2004, it was deemed to have been so instituted from the same date, thus, no prejudice was caused to the Respondent No. 1 nor any question of limitation could legitimately be raised as regards filing of such civil appeal.”

1. Since, in the instant matter the provision of Order VIII Rule 10 of the Code is involved therefore it would be conducive to first refer the same which reads as:

“Where any party from whom a written statement is so required fails to present the same within the time fixed by Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.”

Prima facie, the first part of referred provision has 'penal' consequences therefore, at all material times, the Court(s) must keep in mind that a 'penal' action, normally, should not be taken unless the party (against whom action is to be taken) is first warned in clear words of penal consequences if he fails to perform arequired act else the purpose of second coercive action, available to Court(s), in shape of “make such order in relation to the suit as it thinks fit” shall stood fail. In absence thereof, a penal action which, too, in shape of a binding decree without burdening the plaintiff to prove his case, shall always qualify the term 'harsh'. Reference can be made to the case of Muhammad Anwar Khan v. Riaz Ahmed PLD 2002 SC 491 wherein it is held as:

“...... We are sorry to hold that this sort of approach to determine the lis is not appreciated. The duty of the Court is to do substantial justice and in this case the petitioners have been made to suffer simply on a technical ground. The learned trial Court could have passed an order asking them to sign the written statement when they were represented by a lawyer. Even otherwise, we have noticed that there was only a routine order for filing of written statement and for such a routine order consequences as envisaged under Order VIII, Rule 10, C.P.C, are not attracted. It has repeatedly held that penal consequences of this provision should only be applied in respect of cases where the written statement was required by the Court through a speaking order. ...

7. It is settled principles of law under the rule of prudence that the Court(s) should always be-cautious while recording judgment against him on failure of the defendant because the failure in filing the written statement alone shall never allow a 'judgment' which, normally, has the binding effects upon all concerned. If the 'judgment', requires determination of disputed questions, having wider effects and consequences then the Court(s) must demand proof before recording such like 'judgment'. Needless to add that penal consequence, too allows a judgment only against failing party alone which the Court while proceeding must keep in view. Guidance is taken from the case of C.N. Ramappa Godwa v. C.C. Chanderqowda & Others (2013 SCMR 137) wherein it is held as:

'As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the Court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed the Court should be a little cautious in proceeding under Order VIII, Rule 10, CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the Court's satisfaction and therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression “the Court may, in its discretion, require any such fact to be proved” used in sub-rule (2) of Rule 5 of Order VIII, or the expression “may make such order in relation to the suit as it thinks fit' used in Rule 10 of Order VII”.

While keeping the above settled principles, it is the time to have direct referral to the impugned order which reads as:

“In view of above reasons, since there is no rebuttal to the case of the plaintiff and defendant, despite being time given by the Court, has failed to file the written statement, the adjournment application is hereby rejected, as result whereof the defence of the defendant Professor Rao Nisar struck off under order VIII Rule 10 of the Code of Civil Procedure, 1908; and the instant suit is decreed as prayed for against the defendant. Parties are left to bear their own costs. Let a decree be prepared accordingly for knowledge of parties and execution.”

8. The perusal of the above clearly shows that because of non-filing the written statement, the learned trial Court not only struck off the defence of the defendant but also decreed the suit against the defendant. I am little surprised that when the provision itself allows only one penal consequence i.e judgment against him or 'such order in relation to the suit as it thinks fit’ then the learned trial Court was not legally justified to decree the suit when it (learned trial Court) first had passed an order of 'striking off defence'. Be that as it may, the impugned order, nowhere, shows that the defendant was earlier warned in categorical terms (speaking order) that failure in filing the written statement on next-date shall bring the penal consequences, as provided by Order VIII R 10, CPC, hence in absence thereof the impugned order, legally, can't sustain. Accordingly impugned judgments recorded by both Courts below are against the law hence set aside being void. Case is remanded back with the liberty to appellant to file written statement within fifteen days and trial Court shall decide the lis on merits.

(Y.A.) Appeal allowed

PLJ 2022 Karachi 18

Present:Salahuddin Panhwar, J.

M/s. KARACHI IRON & STEEL MERCHANTS ASSOCIATION through Authorised Representative and others--Appellants

versus

ANTI-DUMPING APPELLATE TRIBUNAL and others--Respondents

M.A. Nos. 21, 22 & 26 and C.M.A. No. 2179 of 2020, decided on 17.2.2021.

Anti-Dumping Duties Act, 2015 (XIV of 2015)--

----S. 70(1)(13)--Final determination--Levy of anti-dumping duties--Determination of penalties--Administrative control of Court--Plea of convenience--Jurisdiction--Appellants in M.A. No. 22 of 2020 have also filed appeal before Islamabad High Court against same judgment and on same cause of action--Appellants did contest matter before Tribunal, constituted at Islamabad over which this Court has got no administrative control mere plea of 'convenience' is never sufficient for choosing Court (s) rather it is always commandment of law and law alone which describes 'jurisdiction'--Failure of Federation in establishing Tribunal (s) at other provinces is also no ground to press right of convenience--Matter appears to be between parties alone hence same, legally, can't be taken as having applicability thereof on people at large--In case an action of Federation, if affecting community or public at large then same may be challenged before High Court of other province, too but if same is personam relating to any party then jurisdiction would lie with High Court of area where order is passed--Appeals dismissed.

[Pp. 19 & 21] A, B & C

PLD 2014 Karachi 135 ref.

Mr. Abdul Moiz Jafri, Advocate for Appellant.

Mr. Ahmed Sheeraz,Advocate for Respondent No. 2.

Mr. Saifullah Khan, Advocate for Respondent No. 3.

Mr. Waseem Akhtar, Assistant Attorney General.

Date of hearing: 17.2.2021.

Order

The captioned appeals are against the judgment dated 28.02.2020 passed by the Anti-Dumping Appellate Tribunal Pakistan in Appeal Nos. 291, 296, 299, 300 of 2018.

2. Precisely, brief facts are that the Respondent No. 2 preferred appeals before the Anti-Dumping Appellate Tribunal and as referred the all appeals were allowed (they were dismissed). Being aggrieved the present appellants have filed captioned miscellaneous appeals before this Court. It has come on record that appellants in M.A. No. 22 of 2020 have also filed appeal before Islamabad High Court against the same judgment and on same cause of action. Learned counsel for the appellants has referred judgments reported in 1985 SCMR 758 (Messrs Al-Iblagh Limited, Lahore vs. The Copyright Board, Karachi and others), PLD 1997 SC 334 (Sandalbar Enterprises (Pvt) Ltd vs. Central Board of Revenue and others), 2009 CLD 1498 (LPG Association of Pakistan through Chairman vs. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others), 2017 P. Cr.L.J. 1920 (Miss Ayyan Ali vs. Federation of Pakistan and others) and 2017 SCMR 1179 (The Federal Government through Secretary Interior, Government of Pakistan vs. Ms. Ayyan Ali and others). While referring these judgments learned counsel for the appellants contends that Anti-Dumping Duties Act, 2015 provides “High Court” the appellants have right to choose any forum as per their convenience. Further it is contended that the Federation notified the Tribunal though Federation was under obligation to establish Tribunal in every province but at present in Islamabad such Tribunal exists. The appellants participated and contested the case before the Tribunal and they have every right as per Sandalbar’s case, LPG’s case and Ayyan Ali’s case to choose any Court as per their convenience. It is also contended that the judgment passed by the Anti-Dumping Appellate Tribunal is in rem and it has affected the appellants and other importers/companies having the same business. It is also contended that any Act of Federation can be challenged before any High Court of any Province.

1. In contra, learned counsel for the Respondents No. 2 and 3 has relied upon case reported in 2012 CLC 507 (Haji Riaz Ahmed through Attorney vs. Messrs Habib Bank Limited through President and 2 others), 2018 PLC (C.S.) 555 (Karamat Ullah Khan Chaudhry vs. Federation of Pakistan and 2 others), PLD 1997 SC 334 (SandalbarEnterprises (Pvt) Ltd vs. Central Board of Revenue and others) and contends that the appellants contested the appeals filed by the respondents under Section 70(1) of the Anti-Dumping Duties Act, 2015 and same were dismissed and now they are here in Miscellaneous Appeals; learned counsel has referred FAO No. 46 of 2020 with Paragraph 4 and which contains that “in view of statement by learned counsel for the parties, this and connected appeals i.e. FAO Nos. 47, 50, 54 and 55 of 2020 are returned on the ground of jurisdiction”. According to learned counsel for Respondent No. 2 this Court has no jurisdiction as these appeals are against judgment of the Tribunal which is constituted at Islamabad and the jurisdiction lies at Islamabad.

2. Whereas learned counsel for Respondent No. 3 contends that the impugned order is not in rem and in fact it is binding upon the parties, hence qualifies the terms in personam. While learned Assistant Attorney General adopts the arguments of learned counsel for Respondents No. 2 and 3.

3. Heard learned counsel for the parties and perused the impugned order as well as case law referred by the respective parties.

6. It is an undeniable position that the appellant (s) did contest the matter before the Tribunal, constituted at Islamabad over which this Court has got no administrative control therefore, mere plea of 'convenience' is never sufficient for choosing the Court (s) rather it is always the commandment of the law and law alone which describes the 'jurisdiction'. Failure of the Federation in establishing Tribunal (s) at other provinces is also no ground to press right of convenience. Further, the matter appears to be between the parties alone hence the same, legally, can't be taken as having applicability thereof on people at large. It is conducive to refer the case of Rashid Latif v. Federation of Pakistan through Secretary Ministry of Inter Proincial Coordination (2014 PLD Karachi 135 (authored by me in a DB matter) wherein the issue of jurisdiction is discussed in detail while discussing all the citations. The conclusion was that in case an action of Federation, if affecting community or public at large then same may be challenged before High Court of other province, too but if the same is personamrelating to any party then the jurisdiction would lie with the High Court of the area where order is passed.

1. Here the situation is different as the Tribunal is constituted at Islamabad. Admittedly the appeals preferred by the appellants at Islamabad Tribunal and all parties contested their case at Rawalpindi Bench in FAO, against the said order four appeals are filed at Islamabad High Court, hence I agree with the same referred observation and hold the present appeal (s) to be incompetent. Accordingly, captioned appeals are dismissed on the point of jurisdiction.

Office shall place copy of this order in connected M.As.

(Y.A.) Appeals dismissed

PLJ 2022 Karachi 21

Present: Salahuddin Panhwar, J.

ROSHAN ALI KANASRO--Appellant

versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA) through Regional General Manager and 2 others--Respondents

Misc. A. No. 29 of 2020, decided on 25.9.2020.

Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (XIII of 2002)--

----PEMRA (Amendment Act), 2007, RW. 8(4)(5)--PEMRA (Council of Complaints) Rules, 2010--Telecasting of defamatory breaking news--Pendency of issue--Filing of complaints--Disposed of--Domain of authority--Liberty of informative and purpose full program--Determination of guilt--Filing of instant appeal by present appellant for seeking punishment to channel on grievance of personal hurt is, prima facie, not maintainable because such adjudication is not permissible by the Council of complaints or the Authority even but a competent Court alone which has been authorized to entertain such claims and award cost or punishments--Appellant also fails to pin point any, prima facie, violation of rules and law as well that of parameters, so sketched by honourable Apex Court which, too, makes instant appeal as not sustainable--A balance has been demanded which must be maintained even while making an informative programme on matters where dignity of a man may be harmed/ prejudiced because any overstepping shall give right to such person to resort to all available legal remedies because a man, facing inquiry/ investigation or trial even, does not stand parted with presumption of innocence--While enjoying liberty of informative and purposeful programme, licensee must not only ensure complete adherence to their responsibilities but must also be conscious in choosing 'terms' for an addressee who may be facing an inquiry, investigation or trial even because determination of guilt is absolute function of competent Court and not of media--Appeal dismissed.

[Pp. 30 & 31] B, C & D

Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (XIII of 2002)--

----S. 34--Cognizance of offence--No Court shall take cognizance of any offence under sub-section (1) or (2) of Section 33 of this Ordinance except on a complaint in writing by Authority or any officer authorized by it. [P. 28] A

Mr. Shakeel Ahmed, Advocate for Appellant.

Council of Complaints for Respondent No. 2.

Abb Takk News TV Channel for Respondent No. 3.

Date of hearing: 2.9.2020.

Judgment

Instant appeal is against the decision dated 19.06.2020, whereby, the Respondent No. 2 Council of Complaints in Sindh in its 67th meeting held on 18.05.2020, after hearing both the parties, disposed of the complaints filed by the appellant and advised the Respondent No. 3 M/S. APNA TV Channel (Pvt.) Limited (ABB TAKK) to follow the journalistic ethics in reporting and ensure compliance of such direction.

1. Relevant facts are that appellant who is working as Director, Planning, Development, Monitoring and Implementation Cell, Department of Culture, Tourism and Antiquities, Government of Sindh, Karachi, has made as many as 15 complaints against the Respondent No. 3 M/S. APNA TV Channel (Pvt.) Limited (ABB TAKK) for allegedly defaming and humiliating him in 21 episodes of the talk show/program “Benaqab”, which was based on a letter purportedly written by one Waliullah Bhutto, a Government Contractor of Department of Culture, Tourism and Antiquities, Government of Sindh and the appellant was not contacted by the Respondent No. 3 to clarify his position; that by telecasting such defamatory, malicious, false and incriminating breaking news, the Respondent No. 3, not only maligned the appellant but also tried to extend favour to one Ghulam Murtaza Daudpota, who is also co-accused in the NAB Reference No. 19/2019 filed against the appellant and others and is pending adjudication before the learned Accountability Court-III Sindh at Karachi by showing him as complainant and in this regard the Respondent No. 3 also interviewed co-accused Ghulam Murtaza Daudpota in their talk show, which issue is already pending before this Court in C.P. No. D-7707/2019; that Respondent No. 3 on their TV Channel have telecasted the false and fabricated information that several inquiries are pending against the appellant without any proof and thus the Respondent No. 3 tried to interfere in the investigations and the proceedings of the Courts of law; that the appellant made complaints to the Respondent No. 1 but no response was given by them to the appellant, therefore, appellant filed C.P. No. D-1035/2020, whereby this Court directed the Respondents No. 1 and 2 to decide the complaints of the appellant within one month vide order dated 17.03.2020; that the Respondents No. 1 and 2 neither complied the directions of this Court nor restrained Respondent No. 1 from telecasting such false and fabricated news/talk show on the channel and finally disposed of the complaints of the appellant.

2. Heard learned counsel for the appellant at length.

3. Learned counsel for appellant has argued that appellant has made as many as 15 complaints against M/s. APNA TV Channel (Pvt.) Limited (ABB TAKK) (Respondent No. 3) for defaming and humiliating by defamatory, malicious, false breaking news in 21 episodes of talk shows; that appellant was not contacted by Respondent No. 3 to clarify his position which is in violation of the PEMRA Ordinance, 2002; that false and fabricated information that several inquiries are pending against appellant were also telecast without any proof; that appellant made complaints to Respondent No. 1 but no response was given hence C.P. No. D-1035/2020 was filed whereby this Court vide order dated 17.03.2020 directed Respondents No. 1 and 2 to decide the complaints of appellant within one month; that the Respondents No. 1 and 2 neither complied the directions of this Court nor restrained Respondent No. 3 from telecasting false and fabricated news/talk show and finally disposed of the complaints of the appellant by impugned decision which is not in accordance with law. Learned counsel has further argued that Respondent No. 1 has failed to appreciate irrefutable evidence submitted in form of CDs of 21 episodes including breaking news and program Benaqab and to take action against Respondent No. 3 regarding abuse, violation and defeat of the provisions of PEMRA Ordinance, 2002 and the Rules made thereunder, the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 as well judgment of apex Court in suo moto case No. 28/2018 reported as 2019 PLD SC 1 and norms and ethics of journalism and complaints were disposed of without imposing any penalty/punishment though appellant proved his case beyond any reasonable doubt as also reflecting from findings and observations contained in impugned order.

4. At the outset it would be conducive to reproduce here the decision passed by Respondent No. 2, which was conveyed by Respondent No. 1 to the appellant, which reads as under:-

“Subject: DECISION OF AUTHORITY IN PURSUANCE TO RECOMMENDATIONS OF 67™ COC MEETING IN THE MATTER OF COMPLAINTS LODGED BY MR. ROSHAN ALI KANASRO AGAINST ABB TAKK CHANNEL.

Whereas, M/s. APNA TV Channel (Pvt) Ltd. (Abb Takk) hereinafter referred to as Channel” was awarded license to establish and operate international scale satellite TV broadcast channel station containing certain terms and conditions including but not limited to compliance with the code of conduct.

1. And Whereas, several complaints received from Mr. Roshan Ali Kanasro, Director Planning, Development, Monitoring and implementation Cell, Department of Culture, Tourism and Antiquities, Government against Abb Takk channel allegedly for airing defamatory, humiliating and false incriminatory accusation during talk show/program “Benaqaab” and through breaking news”. The details of complaints are as under:

| | | | | | --- | --- | --- | --- | | S. No. | Complaint Date | Complaint Mode of Broadcast | Date and Time of Broadcast | | 1. | 27.01.2020 | Breaking News Program “Benaqaab” | 23.01.2020 at 3:24 PM 25.01.2020 at 7:10 PM | | 2. | 11.02.2020 | Program “Benaqaab” | 05.02.2020 at 7:00 PM | | 3. | 13.02.2020 | Breaking News | 10.02.2020 at 3:15 PM | | 4 | 18.02.2020 | Breaking News | 15.02.2020 at 3:36 PM | | 5. | 22.02.2020 | Breaking News | 21.02.2020 at 2:11PM | | 6. | 02.03.2020 | Breaking News | 01.03.2020 at 2:11PM | | 7. | 07.03.2020 | Breaking News Program “Benaqaab” | 01.03.2020 at 6:21PM 04.03.2020 at 7:10 PM | | 8. | 01.04.2020 | Program “Benaqaab” | 31.03.2020 at 7:10 PM | | 9. | 16.04.2020 | Exclusive Abb Takk | 14.04.2020 at 8:18 PM | | 10. | 20.04.2020 | Breaking News | 16.04.2020 at 5:10 PM | | 11. | 20.04.2020 | Program “Benaqaab” | 16.04.2020 at 7:10 PM | | 12. | 21.04.2020 | Breaking News | 20.04.2020 at 5:13 PM | | 13. | 30.04.2020 | Breaking News | 28.04.2020 at 8:13 PM | | 14. | 08.05.2020 | Breaking News | 27.04.2020, 30.04.2020, 05.05.2020 & 06.05.2020 |

1. And Whereas, subsequently summon letters were issued to the complainant and channel to appear before the Council of Complaints, Sindh and present /defend its status in the matter. Complainant Mr. Roshan Ali Kanasro along with his legal counsel Mr. Kamran Khan Memon, Advocate and on behalf of M/s. Apna TV Channel (Pvt) Ltd (Abb Takk), Mr. Salim Raza, Group General Manager and Mr. Imtiaz Chandio, Bureau Chief were appeared before the Council.

2. And Whereas, the Council of Complaints, Sindh in its 67th meeting held on 18th May, 2020 heard the representatives of both complainant and channel at length and reviewed the relevant record thoroughly besides perusing the video footage of News Bulletins/Abb Takk Exclusive and programmes (Benaqaab) aired by the channel on various dates. The Council perused the matter, after detailed deliberation unanimously recommended in exercise of its powers conferred under PEMRA Ordinance, 2002 as amended by PEMRA (Amendment) Act, 2007 read with Rules, 8(4) & 8(5) of the PEMRA (Council of Complaints) Rules, 2010, which has also been approved by the Competent Authority:

· COC after detailed deliberation on the complaints and heard the arguments of both the representatives of the complainant and channel to a certain extent of reported content. COC is of the view that the referred channel did not ensure the genuine balance in their reporting. No TV Channel should be allowed to play as judge, jury and executor specifically without taking the view point of the other side and giving them ample opportunity to defend themselves so as to avoid unnecessary character assassination. It is an agreed journalistic principle that, parties of a controversy must be given an opportunity to give their version as well. This was not done by the channel and only one sided story was continued to be broadcast.

· M/s. APNA TV Channel (Pvt.) Ltd. (Abb Takk) is advised to avoid such practices and follow the journalistic ethics in reporting.

M/s. APNA TV Channel (Pvt.) Ltd. (Abb Takk) is therefore directed to ensure compliance with the above decision.”

1. Since the appellant has filed instant appeal with grievance that no punishment has been awarded by respondent though there is violation of rules as well judgment of honourable Apex Court, therefore, before attending the merits of instant appeal, I would say that there can be no denial to the fact that all relevant laws were appropriately discussed by the honourable Apex Court in the Suo Motu Case No. 28 of 2018: In the matter of (PLD 2019 SC 1) and before settling down the parameter (s) it was viewed as:

“13. A balance therefore must be struck between the right to freedom of speech and information on one hand and the right to fair trial, to be dealt with in accordance with law and of due process on the other. No person must be deprived of his fundamental right to be tried by an impartial judiciary and unbiased judge and an objective and fair trial unless a certain allegation is proved against strictly in accordance with law. We find that the Code of Conduct, particularly Clause 4(3) thereof (reproduced later in this opinion), encompasses these principles. In Clause 4(3) ibid a balance has been struck with regards to programmes on sub judice matters. While on one hand such programmes are allowed to be aired thereby protecting the freedom of speech and the right to information; the requirement that they ought to be aired in an informative and objective manner and that no content should be aired which tends to prejudice the determination by a Court, tribunal or any other judicial or quasi-judicial forum, ensures that the right to fair trial, to be dealt with in accordance with law and of due process are duly safeguarded ........

It further says as (last para of Rel. P/26):

“.... The law in Pakistan by virtue of the Code of Conduct in fact places greater trust in its media and journalist community by trusting that they will provide objective information about pending proceedings while taking precautions that they do not pass subjective or prejudicial comments in such regard”.

From above, it can safely be said that an informative and objective programme (content) is not prohibited. The responsibility to ensure this squarely lies with the licensee, as observed in the said case at Page-29 as:

“... A plain reading of Clauses 20 and 24 of the Code of Conduct makes it crystal clear that responsibility of ensuring compliance with the Code of Conduct is primarily that of the licensee, including its employees and officials. Licensee are also required to arrange regular training of its employees to ensure that they perform their duties better (Clause 20(2) of the Code of Conduct), Section 20(f) of the Ordinance read with Clause 17 of the Code of Conduct requires the licensee to appoint an in-house-monitoring committee (Monitoring Committee) under intimation to PEMRA to constantly ensure compliance of the Code of Conduct, while Clause 19 places on the licensee, the responsibility to ensure that any opinion expressed in a broadcasted programme is distinguished and presented in a manner that it is not mistaken as a fact by average viewer/ audience. Finally, Section 26(5) of the Ordinance provides that the Council of Complaints may recommend to PEMRA appropriate action of censure or fine against a broadcast station or licensee for violation of the Code of Conduct. The foregoing appears to be an adequate mechanism to prevent violations of the Code of Conduct by the media as long as such measures are practically and effectively adopted and enforced.

1. Before chalking out the parameters, the honourable Apex Court held that remedy, provided by Section 26 of the Ordinance, is adequate and proper, however, while chalking out the parameters, the honourable Apex Court. (Sic)

x) …………..

1. The above guidelines allow me aiding that legal course, provided by the Sections 26(5) and 33 of the Ordinance have been found as appropriate and adequate in matters of violations. Here, a referral to Section 33, being relevant, is made hereunder:

“33. Offences and penalties.--(1) Any broadcast media or distribution service operator or person who violates or abets the violation of any of the provisions of the Ordinance shall be punishable with a fine which may extend to ten million rupees;

2) Where such broadcast media or distribution service operator or person repeats the violation or abetment, ...

3) Where the violation, or abetment of the violation of any provision ...

Prima facie, the matter appears to be between licensee and its grantee. It is the council of complaints which has to determine whether there had been any violation or otherwise?. I would further add that such course is subject to a complaint (in writing) by the Authority or its authorized officer as is evident from Section 34 of the Ordinance which reads as:

“34. Cases to be initiated on complaint.--No Court shall take cognizance of any offence under sub-section (1) or (2) of the Section 33 of this Ordinance except on a complaint in writing by the Authority or any officer authorized by it.”

1. Thus, it can safely be said that the domain is with Authority to find an act as violation, liable for an action within meaning of Section 33 of Ordinance or otherwise else the legislature would have allowed an exception to above provision.

2. Now, I would revert to Section 26 of the Ordinance and shall insist that personal hurt or its determination, per Ordinance, is not with the Council of complaints or Authority even. Here, referral to relevant sub-sections of Section 26, being helpful to make point, are made hereunder:

(2) Each Council shall receive and review complaints made by persons or organizations from the general public against any aspects of programmes broadcast or distributed by a station established through a license issued by the Authority and render on such complaints;

(3) ......

(4) ......

(5) The Councils may recommend to the Authority appropriate action of censure, fine against a broadcast or CTV station or license for violation of the code of programme content and advertisements as approved by the Authority as may be prescribed;

1. The above further affirms that the council of complaint (s) are not authorized to examine 'question of personal hurt' but an action would only be available when 'any of the aspects of the broadcast violation of the code of programme content and advertisements, as prescribed/approved by the Authority itself. The prescribing/approving such four corners, being a different issue, needs not be touched in the matter.

2. Now, I can safely conclude that a complaint with grievance of personal hurt or damages is not available to be entertained by the council of complaints but only such complaints to be entertained where any of the aspects of program, broadcasted/aired, is either against approved/prescribed four corners or is in violation of law and rules. I would further add that such decision, if any, can only harm or prejudice the rights of licensee or its grantee and none other, therefore, filing of instant appeal by the present appellant for seeking punishment to the channel on grievance of personal hurt i.e.

“for defaming and humiliating by defamatory, malicious, false breaking news in 21 episodes of talk shows'

is, prima facie, not maintainable because such adjudication is not permissible by the Council of complaints or the Authority even but a competent Court alone which has been authorized to entertain such claims and award cost or punishments. The appellant also fails to pin point any, prima facie, violation of rules and law as well that of parameters, so sketched by honourable Apex Court which, too, makes the instant appeal as not sustainable.

14. While parting, I would add that even in referred case a balance has been demanded which must be maintained even while making an informative programme on matters where the dignity of a man may be harmed /prejudiced because any overstepping shall give the right to such person (aggrieved) to resort to all available legal remedies because a man, facing inquiry/investigation or trial even, does not stand parted with presumption of innocence. In the case of Liberty Papers Ltd. and others v. Human Rights Commission of Pakistan PLD 2015 SC 42 it was observed as:

1. Under the provisions of the Constitution of the Islamic Republic of Pakistan, 1973, reputation of a person has received the highest protection in Article 4(2)(a). Further under Article 14 the dignity of man and, subject to law, the privacy of home, shall be inviolable right of each and every citizen. The defamation of any person or citizen through spoken or written words or any other means of communication lowers the dignity of a man fully guaranteed by the Constitution, thus, not only is it the constitutional obligation of the State but all the citizens and persons living within the State of Pakistan to respect and show regard to dignity of every person and citizen of Pakistan otherwise if anyone commits an act of malice by defaming any person, would be guilty under the Constitution and would cross the red line of prohibition imposed by the Constitution, attracting serious penal consequences under the law and the person violating the same has to be dealt with under the law.

2. No lenient treatment shall be shown to anyone in this regard nor anyone can plead the unbridled right of expression and right to have access to the information when the subject matter is disgraced, his/her dignity brought to almost naught because the rights with regard to expression and access to information are regulated by law, rules and regulations under

which the license is granted under the press and Publication laws.

1. It is true that media as a whole is playing a vital role in reshaping our political and social life, creating awareness amongst the masses about their rights and responsibilities as well as against corruption. While performing such noble duties, the medial is equally required like any other citizen to abide by the provisions of the Constitution, the code of ethics, the rules and regulations and not to resort to mud-slinging by violating standards of true professional ethics as irresponsible and derogatory reporting of news would diminish its own credibility in the eves of the readers and viewers.

Thus, while enjoying liberty of informative and purposeful programme, the licensee (it shall include its employees too) must not only ensure complete adherence to their responsibilities but must also be conscious in choosing the 'terms' for an addressee who may be facing an inquiry, investigation or trial even because the determination of the guilt is the absolute function of the competent Court and not of media. Accordingly, instant Misc. Appeal is dismissed in limine alongwith listed applications.

Office shall communicate this order to the respondents.

(Y.A.) Appeal dismissed

PLJ 2022 Karachi 31

Present: Salahuddin Panhwar, J.

SOBIA AAMIR through Attorney--Appellant

versus

REGISTRAR TRADE MARKS and another--Respondents

M.A. Nos. 28 & 29 of 2013, decided on 1.3.2021.

Trade Marks Ordinance, 2001 (XIX of 2001)--

----S. 114--Trade Mark Rules, 2004, R. 131(2)--Registration of trade mark--Territorial jurisdiction--Challenge to--If hearing has taken place at Branch Registry, decision in respect thereof shall be pronounced at Branch Registry--Things have not been left at discretion or wish of parties aggrieved--An appeal against decision of Registrar, no doubt, shall lie to High Court but by use of phrase 'High Court having jurisdiction' this has, prima facie, been of much significance as well to clarify that it shall only be that 'High Court' in whose jurisdiction Registrar, recording impugned order, is functioning--Party, aggrieved of an order of Registrar Trade Mark, would be left with no discretion in choosing 'High Court' with reference to his place of residence or business but shall have to challenge such decision before that High Court only under whose jurisdiction such Registrar is functioning--Office which passed order and' conducted proceedings is not within territorial jurisdiction of this Court--Appellant's are not legally justified in preferring and pressing M.A(s) before this Court particularly when they do not claim that their case is covered by 'providing clause' i.e any matter relating to trade mark in question is pending before this Court or before District Court, falling under jurisdiction of this Court--Appeals dismissed. [Pp. 32, 33 & 36] A, B, C & D

PLD 1993 SC 123, PLD 1989 Pesh. 197, 1985 SCMR 758 and PLD 1993 SC 129 ref.

Mirza Mehmood Baig, Advocate for Appellant.

Mr. Saleem Ghulam Hussain, Advocate for Respondents.

Date of hearing: 15.2.2021.

Order

By the dint of this order, I am going to decide the challenge, made by the respondent, against competence of the captioned appeals, with reference to competence and jurisdiction.

2. The challenge to competence of above appeals before this Court has been made with claim that this Court has no jurisdiction to entertain the captioned above M.A(s) which, per respondent, were to be filed before the Lahore High Court. For this reference has been made to the Section 114 of the Trade Marks Ordinance, 2001. As per Rule 131(2) of “The Trade Marks Rules, 2004”, if the hearing has taken place at the Branch Registry, the decision in respect thereof shall be pronounced at the Branch Registry. Here, a direct referral to Section 114 of the Ordinance, being conducive, is made which reads as:

“114. Appeal against the decision of the registrar:-

“(1) Save as otherwise expressly provided in this Ordinance, an appeal shall lie, within the prescribed period, against any decision of the Registrar under this Ordinance or rules made thereunder to the High Court having jurisdiction;

Provided that if any suit or other proceedings concerning the trade mark in question is pending before the High Court or a District Court, the appeal shall lie to that High Court or, as the case may be, to the High Court within whose jurisdiction that District Court is situated.”

1. The sub-section (1), prima facie, contains the phrase ‘having jurisdiction’ which was/is sufficient to safely conclude that things have not been left at the discretion or wish of the parties aggrieved. An appeal against decision of the Registrar, no doubt, shall lie to the High Court but by use of phrase 'High Court having jurisdiction' this has, prima facie, been of much significance as well to clarify that it shall only be that 'High Court' in whose jurisdiction the Registrar, recording impugned order, is functioning. The providing clause of said section though provides an exception to sub-section (1) but, in fact, is in affirmation to said sub-section else there would have been no purpose for giving providing clause. Per providing clause, if any suit or other proceedings concerning the trade mark in question (disputed in order of Registrar) is pending then the jurisdiction to challenge such order of the Registrar shall lie with High Court, where matter is subjudice, or under whose jurisdiction the District Court is located, if matter is pending before District Court. The view is guided by the case, reported as PLD 1993 SC 123 (relied by learned counsel for respondent) wherein it is held as:

“5. We are more impressed about the second contention raised on behalf of the appellants to the effect that Lahore High Court has no jurisdiction on the ground that Registrar's office is at Karachi and proceedings were taken before him at Karachi, hence High Court of Sindh at Karachi had jurisdiction. In this context Section 76 of Trade Marks Act of 1940 contemplates that appeal from the decision of the Registrar shall lie to the High Court having jurisdiction. Our attention has been drawn to the case of Abdul Ghani Ahmed v. Registrar, Trade Marks, Government of India reported in AIR 1947 Lahore 171, in which person residing in Lahore made an application for registration of trade mark to Registrar of Trade Marks at Bombay which was refused and he filed appeal before the Lahore High Court. It was held that Bombay High Court had jurisdiction and not Lahore High Court for the reason that mere residence of a petitioner would not in the absence of statutory provision, invest a Court with jurisdiction as there is no provision of this kind either in the Trade Marks Act or in any other Act in respect of appeals from the decision of the Registrar of Trade Marks. As against this learned counsel for the respondents argued before us that Registrar Trade Marks has jurisdiction all over Pakistan and also he has an office set up in Lahore, therefore, High Court at Lahore also had jurisdiction. When asked categorically whether proceedings in respect of trade mark were held at Karachi or at Lahore, the reply was that proceedings took place at Karachi and order passed by the Registrar and impugned in the appeal was also passed at Karachi. In support of his contention learned counsel for the respondents cited before us the case of Al-Iblagh Limited v. Copyright Board, Karachi and others 1985 SCMR 758. It is held in the reported case that any order passed by the Board or proceedings taken by it in relation to any person in any of the four Provinces in Pakistan gives jurisdiction to the High Court of the Provinces in whose territory such person resides. Reported case is distinguishable for the reason that language used in Section 77 of the Copyright Ordinance, 1962 pertaining to appeals against the order of the Board is worded differently from Section 76 of the Trade Marks Act of 1940 inasmuch as in Section 77 of the Copyright Ordinance it is specifically mentioned that appeal would lie to the High Court within whose jurisdiction appellant actually and voluntarily resides or carries on business or personally works for gain. We, therefore, approve the view expressed in the case of Abdul Ghani Ahmed (supra) and hold that in the instant case appeal was competent before High Court of Sindh at Karachi, as order of the Registrar, Trade Marks impugned in the appeal was passed at Karachi and proceedings also took place at Karachi.”

as well he has relied upon PLD 1989 Peshawar 197, paragraph No. 4 being relevant is that:

“4. Subsection (1) of Section 76 of the Act clearly lays down that an appeal shall lie from the decision of the Registrar under the Act or the rules made thereunder to the High, Court having jurisdiction It shall thus be seen that only that High Court would be competent to hear the appeal which has jurisdiction in the matter. It was common knowledge between the parties that there is no office of the Respondent No. 1 in Peshawar and during the days of these proceedings there was only one office of the Respondent No. 1 and that was situate a Karachi. No order was made by the Respondent No. 1 within the territorial jurisdiction of this High Court. Although the principle place of business of the appellant is situate in District Mardan with the territorial jurisdiction of this Court yet no proceedings were carried out within the jurisdiction of this High Court. The use of the words “having jurisdiction” after the words “High Court” in sub-section (1) of Section 76 of the Act is a very significant matter The only connotation of the words “having jurisdiction” would be that only that High Court would have jurisdiction to hear the appeal within whose territorial limits the order impugned in appeal was made.

1. In the case of M/s. Al-Iblagh Limited, Lahore vs. The Copyright Board, Karachi and others [1985 SCMR 758], it is contended that:

“The rules laid down in the said case would, we think, be applicable also in the circumstances of this case, The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such a person, jurisdiction to hear the case.”

1. In the above case, hearing before the Board was held at Lahore, however, final order was passed at Karachi, hence, M/s. Al-Iblagh filed appeal at Lahore but that was dismissed on the ground of jurisdiction. Accordingly, apex Court held that High Court of Sindh as well as Lahore High Court Lahore had concurrent jurisdiction.

2. In the case of Reckitt and Colman (U.K.) PLC vs. Sheikh Soap Factory and another [PLD 1993 Supreme Court 129], wherein it is observed that:

............ proceedings took place at Karachi and order passed by the Registrar and impugned in the appeal was also passed at Karachi. In support of his contention learned counsel for the respondents cited before us the case of Al-lblagh Limited v. Copyright Board, Karachi and others 1985 SCMR 758. It is held in the reported case that any order passed by the Board or proceedings taken by it in relation to any person in any of the four Provinces in Pakistan gives jurisdiction to the High Court of the Provinces in whose territory such person resides. Reported case is distinguishable for the reason that language used in Section 77 of the Copyright Ordinance, 1962 pertaining to appeals against the order of the Board is worded differently from Section 76 of the Trade Marks Act of 1940 inasmuch as in Section 77 of the Copyright Ordinance it is specifically mentioned that appeal would lie to the High Court within whose jurisdiction appellant actually and voluntarily resides or carries on business or personally works for gain. We, therefore, approve the view expressed in the case of Abdul Ghani Ahmed (supra) and hold that in the instant case appeal was competent before High Court of Sindh at Karachi, as order of the Registrar, Trade Marks impugned in the appeal was passed at Karachi and proceedings also took place at Karachi.”

The above legal position leave no exception that the party, aggrieved of an order of Registrar Trade Mark, would be left with no discretion in choosing the 'High Court' (appellate forum) with reference to his place of residence or business but shall have to challenge such decision before that High Court only under whose jurisdiction such Registrar is functioning.

7. Undeniably, in M.A. 28 of 2013, hearing of Opposition No. 38/2012 against the registration of trade mark “SOBIA” under Application No. 242895 in class-44 was held at the Branch Office of Trade Marks Registry, in Lahore, hence, impugned order was passed at Lahore. Similarly in M.A. No. 29 of 2013 Registrar of Trade Marks heard Opposition No. 39/2012 in class-16 at Branch Office Lahore as well as decision thereon. In view of above case laws admittedly proceedings were held at Lahore and decision thereon was passed by the Authority at Lahore, hence, Lahore High Court, Lahore, is having territorial jurisdiction. Admittedly that office which passed order and conducted proceedings is not within the territorial jurisdiction of this Court. Thus, the appellant's are not legally justified in preferring and pressing the M.A(s) before this Court particularly when they (appellant's ) do not claim that their case is covered by 'providing clause' i.e any matter relating to trade mark in question is pending before this Court or before District Court, falling under jurisdiction of this Court.

Keeping in view the above given circumstances, captioned appeals are dismissed for want jurisdiction.

(Y.A.) Appeal dismissed

PLJ 2022 Karachi 36 (DB)

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

KAINAT SOOMRO and others--Petitioners

versus

PROVINCE OF SINDH and others--Respondents

C.P. No. D-5920 of 2015, decided on 4.6.2021.

Contempt of Court Ordinance, 2003 (IV of 2003)--

----Ss. 3, 6 & 12--Constitution of Pakistan, 1973, Arts. 199 & 204--Petitioners were rape victims--Acquittal of accused person from charges--Petitions were filed for non-complementation of directions by Supreme Court Police stations were failed to engage civil society organizations on receipt of rape cases--Testing of DNA evidence ws sporadic, unstandardized and delayed--Preparation of SOP document--IG Sindh was agreed to implemented SOP in province of Sindh--Direction to--In order to enforce substantial compliance of judgment of honourable Supreme Court and judgment passed by High Court, counsel for petitioners, A.A.G as well as representative of I.G Sindh all agreed that some SOP should be made out with due deliberation of all stake holders to ensure compliance of aforesaid judgments--F inal document of SOP was prepared and signed by I.G Sindh after incorporating feedback and suggestions of all aforesaid persons with assurance that agreed SOP shall be implemented in province of Sindh across board in letter and spirit--After due consultation and bearing in mind pros and cons, final document of approved SOP was submitted in Court--Contempt application is disposed of on assurance that aforesaid SOP shall be religiously followed for proper and effective implementation of judgments--Slight changes are made in draft of SOP to make compliance more effectively and practically--The I.G Sindh, within 20 days shall ensure that aforesaid SOP document is translated in Urdu and Sindhi languages also and he will distribute SOP in English language as well as accurate translated SOP in Urdu and Sindhi languages to all Police Stations in Sindh--Petitions disposed of.

[Pp. 42, 43, 47 & 48] A, B & C

Mr. Mohamed Vawda, Advocate & Ms. Palvasha Shahab, Advocates for Petitioners.

Mr. Abdul Razzaq, Registrar, Sindh High Court.

Ms. Leela Kalpana Devi, Addl. A.G. Sindh.

Syed Meeral Shah Bukhari, Addl. P.G. Sindh.

DSP Raza Mian (Legal), Representative of IGP Sindh.

Date of hearing: 4.6.2021.

Order

Muhammad Ali Mazhar, J.--As a matter of fact, this petition was brought to seek directions against the respondents for the implementation of the directions contained in the judgment rendered by the Hon'ble Supreme Court in the case of Salman Akram Raja vs. Government of Punjab (PLJ 2013 SC 107). The Hon'ble Supreme Court in this judgment directed to ensure the directions contained in clauses (a) to (e) in rape matters. This petition (Kainat Soomro and others vs. Province of Sindh and others. PLD 2020 Sindh 611) (order authored by Muhammad Ali Mazhar-J) was disposed of with the directions to all Anti-Terrorism Courts in Sindh to comply with the order immediately and so far as the issue of funds if any involved for implementation of judgment is concerned, the Home Secretary, Government of Sindh was directed to immediately take up the matter with the Presiding Officers of Anti-Terrorism Courts. He will write letters to all the Presiding Officers of Anti-Terrorism Courts in Sindh for collecting the information and requirements of funds if any and all the learned Presiding Officers of Anti-Terrorism Courts shall promptly reply the letter and communicate the required arrangements including the release of funds if any for the purpose of complying with the judgment of the apex Court. Similarly, for all District Courts the learned MIT-II was directed to ensure that all District Courts in Sindh shall comply with the judgment of, the apex Court in letter and spirit and he will communicate letters to all the learned District Judges of the Province of Sindh for knowing the requirements and basic arrangements which will be replied by the learned District Judges promptly so that the issue of funds if any may be taken up thereafter a consolidated statement of the requirements will be placed before the Hon'ble Chief Justice of this Court for consideration and directions as his lordship may deem fit and proper. The I.G. Sindh Police and Prosecutor General Sindh both were also directed to ensure the compliance of DNA test facility/arrangement as directed by the apex Court.

1. Since the petitioners were of the view that directions given by this Court while disposing of the petition have not been complied with, henceforth, they filed an application under Sections 3, 6 & 12 of the Contempt of Court Ordinance, 2003, read with, Article 204 of the Constitution to initiate contempt proceedings against Home Secretary and I.G Sindh. In the supporting affidavit, the petitioner avowed that this Court was pleased to grant the prayer in the aforementioned petition and gave directions for the implementation of the instructions and guidelines set forth in Paragraph 16 of the judgment, passed in the case of Salman Akram Raja vs. Government of Punjab (supra) and also referred to Paragraph 7 of the judgment, passed in the aforesaid petition by this Court. The petitioners have lodged the grievance that a letter, dated 07.02.2019, detailing the obligations of the Contemnors No. 1 and 2, was sent along with a copy of the judgment, dated 31.01.2019 passed by this Court but no response was received from Contemnors No. 1 or 2. The abovementioned letter was followed by another letter dated: 30.07.2019, which requested Contemnors No. 1 and 2 to share information regarding the compliance of the abovementioned judgment but the Contemnors No.1 and 2 miserably failed to furnish any response or ensure comprehensive compliance and have therefore violated the orders in aforementioned judgment, dated 31.01.2019, passed by this Court.

2. The petitioner also pleaded that the police stations have failed to engage civil society organizations on the receipt of a rape complaint on various occasions. The preservation of and testing of DNA evidence is sporadic, un-standardized and delayed, the facilities available for DNA testing continues to be severely limited and dysfunctional. The alleged contemnors took the defence that there was no intention to flout the order or non-compliance but they were making some SOP document. On 13.2.2020, we passed following order:

The petitioner has approached this Court in fact for the implementation of the judgment of the Hon'ble Supreme Court reported in PLJ 2013 S.C. 107 as well as judgment passed by this Court on 31.01.2019, whereby, the petition was disposed of with certain directions. Learned counsel for the petitioner argued that despite clear directions, the orders have not been implemented as still various cases of DNA Test are pending and reports are awaited which has bad impact on the trial of rape cases.

Syed Kaleem Imam, I.G. Sindh is present with DIG Legal. He submits that they have a SoP for immediate DNA Test with certain directions to the SHOs and I.Os. We have gone through the SoP but no exact timeframe is mentioned in which SHOs or the I.Os. are required to forward the sample for DNA test and receiving report without any delay. Learned counsel for the petitioners further argued that so many DNA Test reports are awaited due to non-payment of bills of the concerned Laboratories. DIG Legal submits that Sindh Government has recently entered into an agreement with Karachi University and Jamshoro University for the facility of DNA Test and they have made some payment also to them but still no mechanism is placed before us to deal the situation as to when I.O will forward the sample and whether the same is directly received by the University or they ask for the payment first or they directly send the bill to the Sindh Government. The Home Secretary submits that some amount has been paid and some amount will be transferred in escrow account but he is not confident about the procedure in which samples are received and bills are sent to the Sindh Government. According to our understanding, in order to enforce the mandatory test of DNA in rape cases smooth mechanism is required to be made out in which I.Os or the SHOs should not be burdened for the cost or demand of bill at site but there must be a mechanism that after collection of the samples a bill should be sent of all such DNA test to the Sindh Government for payment. The Home Secretary and the I.G. Sindh as well as DIG Legal all are directed to convene a meeting within three days and jot down a complete mechanism for the implementation that will be circulated after approval of the Court not only to the concerned Laboratories but also to all SHOs and I.Os of the cases for the effective implementation of the judgment. Mr. Abdul Razak, MIT-II is directed to focus on the next implementation in which the trial Courts should fix screen in the rape cases in compliance of the directions of the Hon'ble Supreme Court as well as this Court. He is directed to contact Sessions Judges individually and submit the report as to whether trial and proceedings in the rape cases are being conducted in compliance of the directions with proper screening or not. We want to see the list of all individual cases pending in individual Courts and the reasons for non-compliance by the Sessions Judges or ATC Judges in letter and spirit. In case any deficiency is found in compliance of the directions of the Hon'ble Supreme Court or this Court, the Presiding Officer of the concerned Court would be responsible to face the consequences and they will be bound to appear in person and explain their position. At this juncture, I.G. Sindh submits that they have some already sanctioned funds for the investigation and if they are allowed they may pay the DNA Test fee so he requests that some directions may be issued to grant this amount as impress money for consumption in DNA Test on immediate basis. This aspect will also be considered by the Home Secretary in the meeting that is being convened under the directions of this Court. The Secretary Finance shall also attend the meeting on the directions of this Court. Adjourned to 27.02.2020 at 11:00 a.m. on which date I.G. Sindh, DIG Legal, Home Secretary and MIT-II shall also be in attendance.

1. On 27.02.2020, besides, learned counsel for the petitioners and learned A.A.G, Dr. Usman Chachar, Home Secretary, Government of Sindh, Ms. Rahat Ehsas, Additional P.G., Mr. Abdul Razak, Member Inspection Team-II, High Court of Sindh, Syed Kaleem Imam, Inspector General of Police, Sindh, Amanullah Zardari, Focal Person, Home Department, Government of Sindh, AIGP (Legal) Zulfiqar Mehar, DSP (Legal) Mushtaq Ahmed Abbasi, AIGP (Legal) Muhammad Habib Khan, AIGP Farhat Ali Junejo, Crime/ Investigation, DSP (Legal) Raza Mian and DSP (Legal) Akbar Qureshi also appeared in person. The Court after hearing respective contention, passed the following orders:

"In compliance of the last order, Mr. Abdul Razzak, MIT-II of this Court has submitted the progress report of each district separately. He submits that in some districts the compliance has already been made but there are some issues of funds also for which the District Judges have sent their requisitions to this Court which were placed before the Hon'ble Chief Justice and have been forwarded to the Director Finance for arrangement and allocation of appropriate funds. He will also submit the progress report on the next date as to whether some efforts have been made by the Director Finance with the Finance Department, Government of Sindh for the allocation and release of required funds or not. So far as the cases pending in the ATC Court, learned MIT-II submits that according to ATC Courts compliance is being made but he requests that Registrar of the ATC Court may be summoned for the next date to ensure the compliance. Office is directed to issue notice to the Registrar, ATC Courts, Karachi to appear in person on the next date along with all requisite details as to whether ATC Courts are following the judgment or not. At this juncture, learned counsel for the petitioners pointed out that three rape cases are fixed in the Court of Vth Additional Sessions Judge, Malir, Karachi, XIIth Additional Sessions Judge West, Karachi and VIth Additional Sessions Judge Central, Karachi but the Presiding Officers are not following the protocol mentioned in the Hon'ble Supreme Court judgment. Learned counsel will also supply the case numbers to the learned MIT-II who will examine whether all protocols provided in the judgment of Hon'ble Supreme Court and this Court are being followed or not by the said Presiding Officers. Zulfiqar Ali Mahar, AIGP (Legal) and Additional Chief Secretary, Home Department, Government of Sindh have filed their progress report and they also addressed this Court that in compliance of the last directions they have conducted a meeting in which various aspects have been discussed. It has been decided that some amount in aid will be sanctioned for utilization for the payment of DNA tests in all rape cases and payment will be made to International Center for Chemical and Biological Sciences (ICCBS) and LUMHS. It is further stated by the AIGP Legal that the payment of 166 cases of DNA have been made to Karachi University and payment for 367 cases of DNA has been made to the Jamshoro Institute (JUMHS). He further submits that 46 report are pending in Karachi Lab and 235 reports are pending in LUMHS.,I.G. Sindh present in Court assured us that within few days the entire payment will be made and reports will be collected from the Labs for onward submission to the prosecution and Court. They are also directed to submit progress report on the next date. I.G. Sindh has also filed revised SoP. Copy has been supplied to the petitioners' counsel who has also submitted a working paper for showing timeline for the collection of forensic evidence in cases of rape and sexual assault. According to learned counsel he has collected some data from different websites of International Organization to show the life of the samples and its transmission to the labs to safe its effect. Copy has been supplied to the I.G. Sindh and AIGP Legal who may go through the same and if required some changes in their proposed SoP the same may be made in the advancement of justice as well as make procedure appropriate for decision of rape cases in future. AIGP legal further submits that for the assistance of this Court it would be appropriate to call focal person from International Center for Chemical & Biological Sciences (ICCBS) and University of Management & Health Sciences (LUMHS). Office is directed to issue notice to Prof. Beka Ram Devraja from LUMHS and Mr. Javed Iqbal from ICCBS to appear in person on the next date for the assistance of this Court. It appears from the compliance reports that some progress have been made and we hope that some more compliance will be submitted to this Court so that proper implementation of the Hon'ble Supreme Court's judgment as well as this Court may be made effectively and practically. So far as sanctioning of amount is concerned, the Home Secretary submits that summary has been moved to the Chief Minister Sindh through Finance Department and decision is awaited. The Chief Secretary as well as Home Secretary both are directed to expedite the matter and ensures that within three weeks' the amount is sanctioned by the Chief Minister Sindh. Let them submit the progress report also".

5. In order to enforce substantial compliance of the judgment of Honourable Supreme Court and the judgment passed by this Court, the learned counsel for the petitioners, learned A.A.G as well as the representative of I.G Sindh all agreed that some SOP should be made out with due deliberation of all stake holders to ensure the compliance of aforesaid judgments. The SOP document was prepared and vet by the learned counsel for the petitioners, Registrar of this Court, learned A.A.G, Sindh, Persecutor General Sindh as well as the representative of I.G Sindh. The final document of SOP was prepared and signed by I.G Sindh after incorporating feedback and suggestions of all aforesaid persons with the assurance that agreed SOP shall be implemented in the province of Sindh across the board in letter and spirit. Eventually after due consultation and bearing in mind the pros and cons, final document of approved SOP was submitted in Court on 04.06.2021 by AIGP Legal-II duly signed by IGP Sindh which is reproduced as under:

Standard Operating Procedures (SOP) for Sampling and Preservation of DNA Samples in Rape, Sodomy and Sexual Violence Cases

SOPs for the Duty Officers and SHO

1. The SHO/Duty Officer shall ensure that FIR is lodged at once after intimation of a complaint of rape, sodomy or sexually assault. While registering the FIR, the Police will strictly follow the directions contained under Section 154 Cr.P.C.

2. The complainant/victim should be informed that the victim should not bathe or change and/or wash his/her clothes until the Medico Legal Examination has taken place. Furthermore, the complainant should be informed that a separate set of clothing should be taken to the relevant hospital for the medico legal examination.

3. The SHO/Duty Officer must ensure that the Medico Legal Officer is informed immediately so that the Medico Legal Examination of the victim and/or accused person can take place at once. In case of a female victim, the presence of a female Medico Legal Officer must be ensured for collection of DNA samples.

4. Upon the lodging of FIR, the Duty Officer/SHO shall ensure that a forensic team is immediately notified so that they can visit the scene of crime for collection of DNA samples/evidence.

5. The scene of crime should be sealed immediately after the occurrence of the incident. It must also be ensured that until a forensic team/crime scene unit takes DNA and other samples, no person is allowed to enter and contaminate the scene of the crime. Such instructions be issued to Police Posts that as soon as they receive information regarding offence, the Duty Officer should proceed to place of incident and should not wait for registration of FIR.

6. The IO should ensure that till the visit of Forensic Team/Crime Scene Unit, the place of incident is secured in a manner so that the evidence may be collected.

7. The Investigation Officer will ensure that the DNA samples which are taken by the Medico Legal Officer are collected and delivered to the relevant DNA laboratories within 24 hours. The Investigation Officer must follow-up with the labs so that the reports are collected and placed in the police file and incorporated in the Challan as soon as possible. The Investigation Officer shall ensure that the reports are collected within 24 hours after intimation that the reports are ready.

8. The IO should also ensure that these reports are then immediately placed before the Court along with challan with originals duly sealed and secured at some appropriate place for production by the Prosecution during trial.

SOPs for the Medico Legal Officer

1. The Medico Legal Officer shall ensure that the DNA samples are taken from the victim without delay. Upon intimation from the SHO that a sexual assault crime has been committed, the Medico Legal Officer shall ensure their presence at the relevant Hospital on time so that the victim does not have to wait.

2. The Medico Legal Officer as guidelines shall make sure that the DNA samples are taken from the following potential sources:

| | | | | --- | --- | --- | | Evidence | Possible location of DNA on the evidence | Source of DNA | | Bite marks | Person's skin or clothing | Saliva | | Facial tissue, cotton swab | Surface area | Mucus, blood, sweat, semen, ear wax | | Fingernail | Scrapings | Blood, sweat, tissue | | Hat, head band, mask | Inside | Dandruff, hair, sweat Saliva | | Tooth pick | Tips | Saliva | | Used condom | Inside/outside surface | Semen, vaginal or rectal cells |

1. The clothes worn by the victim or the accused at the time of offence must be taken, preserved and sealed for testing.

2. The Medico Legal Officer shall ensure that the Medico Legal Certificate is prepared as soon as the examination is taken place and completion of all formalities. The Investigation Officer must be notified as to when the report will be ready so that the report is collected without delay.

3. Efforts should be made to ensure and strictly follow anti-contamination guidelines as mentioned in Annexure A.

4. In case, Radiology test is required but facility is not available at the place of examination then MLO shall specify that within 24 hours the victim should reach at the relevant Radiology lab and the MLO should get in touch for obtaining the reports quickly so that final MLC is issued without delay.

SOPs for the Forensic Team

1. The forensic team shall take DNA and other samples from the scene of the crime without any delay.

2. Effort should be made to ensure anti-contamination guidelines as mentioned in Annexure A.

3. Potential Sources of DNA Samples:

| | | | | --- | --- | --- | | Evidence | Possible location of DNA on the evidence | Source of DNA | | Blanket, pillow, bed sheet, bed cover | Surface area | Blood, semen, saliva, hair, vaginal fluid, sweat | | Bottle, can, glass | Sides, mouthpiece | Fingerprint, saliva, sweat | | Dirty laundry | Surface area | Blood, dandruff, hair, Semen, sweat | | Door knobs | On the handle | Fingerprints, skin, sweat | | Eye glasses | Nose or ear pieces | Sweat, skin | | Hat, head band, mask | Inside | Dandruff, hair, sweat Saliva | | Stamp on envelope | Licked area | | Tape or ligature | Inside/outside surface | Skin, sweat | | Through and through bullet | Outside surface | Blood, tissue | | Tooth pick | Tips | Saliva | | Used cigarette | Cigarette butt | Saliva | | Used condom | Inside/outside surface | Semen, vaginal or rectal cells | | Weapons | Handle, end | Blood, fingerprints, flesh sweat |

SOPs FOR THE AIGP INVESTIGATION AND AIGP FORENSICS AND CONCERNED SSP:

1. The investigation of rape, sodomy and sexual assault cases shall be supervised directly by the SSP concerned who shall be immediately intimated by the duty officer/SHO when an FIR for such offences is lodged.

2. Forensic teams tasked to collect the samples and evidence should be notified for each district and SSP should ensure that this team is fully equipped with all required material so as to scientifically collect the evidence.

3. The SSP in coordination with Police Surgeon will monitor on weekly basis the DNA testing and all above mentioned time frames and shall ensure immediate compliance and strict action should be taken against the officers responsible for the delay.

4. That the AIGP Investigation and AIGP Forensics shall ensure that the notified laboratories do not refuse to accept DNA sample or refuse to give report on the pretext of non-payment of fee. However the Home Secretary and I.G shall ensure that requisite funds are allocated and disbursed by the Sindh Government for timely payment of DNA test fee to the concerned labs.

5. It must be ensured by SSP concerned in coordination with DHO that female Medico Legal Officer is available round the clock or on call at least at each Taluka or Town level Hospital. Such Hospitals should be notified in each Districts so that victim is taken to the nearest Hospital.

6. In the event that any DNA test and/or its report is pending due to non-payment, the laboratory bills/liabilities should be cleared immediately from the cost of investigation head or from the Cost of Investigation Inspector General of Police Reserve Account.

Annexure A

ANTI-CONTAMINATION GUIDELINES

· Always wear disposable gloves and mask before touching any evidence.

· Use disposable instruments for handling each sample.

· Avoid touching the area where you believe DNA may exist.

· Avoid talking, sneezing and coughing over evidence.

· Avoid touching your face, nose, and mouth when collecting and packaging evidence.

· Do not allow one evidence stain to come into contact with other biological samples or residue from other biological samples.

· Contact between victim and suspect samples should be avoided at all times.

· Do not subject evidence to heat or sunlight to dry it.

· Each evidence should be packaged separately into paper bags. Where possible, take the container to the evidence. Use clean containers for transport. Seal all packaging securely with a seal.

· Each item should be packaged, sealed, and labelled as soon as it is taken.

· Ensure that any person attending a crime scene has no contact with a suspect or his/her clothing.

6. The contempt application is disposed of on the assurance that aforesaid SOP shall be religiously followed for proper and effective implementation of the judgments. Slight changes are made in the draft

of SOP to make the compliance more effectively and practically. The I.G Sindh, within 20 days shall ensure that aforesaid SOP document is translated in Urdu and Sindhi languages also and he will distribute the SOP in English language as well as accurate translated SOP in Urdu and Sindhi languages to all Police Stations in Sindh, Prosecutor General Sindh, all Prosecution Departments, Advocate General Sindh, all DIGs, all SSPs, Registrar of this Court, all District Judges and ATC Judges of the province of Sindh. Copy shall also be transmitted to the Administrative Judge of Anti-Terrorism Courts and Monitoring Judge of Anti-Terrorism Courts for Sindh. Office is directed to transmit the copy of this order to Home Secretary Sindh, I.G. Sindh Police, Advocate General Sindh, Prosecutor General Sindh, Registrar and MIT-II, Sindh High Court as well as all District & Sessions Judges and ATC Judges in Sindh.

(Y.A.) Petition disposed of

PLJ 2022 Karachi 48 (DB)

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

M. NADEEM A. SHAIKH and another--Petitioners

versus

GOVERNMENT OF SINDH through Home Secretary & others--Respondents

C.P. No. D-8713 of 2017, decided on 4.6.2021.

Constitution of Pakistan, 1973--

----Art. 199--Incident occurred at Keenjhar Lake--Many persons were drowned--Lack of proper safety measures--No SOPs, were formulated--Issuance of directions by High Court to impromised safety and security measures--Submission of report by District and Sessions Judge after visiting Keenghar Lake--Arrangement of same better facilities for tourists at Keenjhar Lake--Direction to--The District & Sessions Judge, Thatta submitted his report on which shows that some positive efforts in compliance of order of this were made for public safety with arrangement of some better facilities for tourists at Keenjhar Lake--Directions given by High Court from time to time in order to make necessary provisions and availability of facilities in public interest for safety of tourists at Keenjhar Lake have been seemingly complied with to avoid any future incident this petition is disposed of with directions to Managing Director, STDC, DC, Thatta and SSP to ensure strict compliance with regard to all safety measures religiously--Petition disposed of.

[Pp. 51 & 54] A & B

M/s. M. Nadeem A. Shaikh Advocate/Petitioner & Saleem Michel, Advocate.

Ms. Leela Kalpana Devi, Addl. A.G. Sindh.

Mr. Makhdoom Gulzar, Manager, Keenjhar lake Resort.

Date of Hearing: 4.6.2021.

Order

Muhammad Ali Mazhar, J.--The petitioners in person have brought this petition in the larger public interest. During pendency of this petition an untoward incident occurred at Keenjhar Lake where many persons drowned during boat ride due to lack of proper safety measures while allowing boats to operate commercially for tourists. It was averred by the petitioners that according to Boat Rules, 1953 no licensed boat shall carry a greater number of passengers than the number allowed by its license or under these Rules. He complained that two serious incidents occurred including the incident of 17.08.2020 but no SOP has been formulated so far while many innocent persons have lost their lives. Keeping in mind the sensitivity and importance of the matter, we issued notices to Deputy Commissioner Thatta and SSP Thatta to appear in person. The SSP submitted comments along with some documents. The learned AAG submitted that on 24.05.2019, SOP was made for the safety and security arrangements by STDC at Keenjhar Lake but what we noted that despite formulation of SOP, a drowning incident happened on 17.08.2020 at Keenjhar Lake in which ten persons drowned in the lake while boating and lost their precious lives. The Deputy Commissioner, Thatta stated that there are two types of permissions/licenses one is for the fishing boat and another for tourism but the incident occurred in the fishing boat which was not authorized to use that boat for tourism. On this, we in clear terms observed that if this is a case then it is the responsibility of the local administration to make out proper standard operating procedure so that the fishing boat may not be engaged for the tourism.

1. This Court in public interest issued various directions from time to time in this petition to improvise the safety and security measures at Keenjhar Lake to facilitate the tourists and to avoid any untoward and ugly incident. On 10.11.2020, Mr. Aijaz Ahmed Shaikh, Managing Director, STDC, Mr. Gulzar Makhdoom, Manager. In charge Keenjhar Lake Resort and Mr. Adil Ahmed, Assistant Director STDC appeared in person when the Court passed following order:

"None present for the petitioner. On the last date of hearing, in compliance of the directions given by this Court on 27.08.2020, the SOP was furnished by the Deputy Commissioner, Thatta as well as SSP Thatta. For the purpose of implementation of such SOP, on the last date of hearing we directed the learned A.A.G. to call Mr. Aijaz Ahmed Shaikh, Managing Director, STDC and Mr. Gulzar Makhdoom, Manager/In charge Keenjhar Lake Resort. Both are present today. Mr. Aijaz Ahmed Shaikh has submitted progress report in respect of the different tasks assigned to STDC for SOPs/Mechanism for Keenjhar Lake Thatta under the Chairmanship of the Commissioner, Hyderabad Division. In the progress report it is clearly stated that one Jetty has been built and three others will be built once the water level will go down. The Court asked the possibility as to when the water level will go down, the Managing Director STDC has informed us that there is possibility that water level will go down within two months. It is further stated that a ticket counter has been built with all essential equipment/accessories but it will get functional when the committee, after registration of boats, will allow them to take visitors. Again Court has asked that when the boats will be registered, he has responded that within a month all the boats will be registered. It is further stated that fitness of boat will be approved and for this purpose a committee has been formulated to ensure safe boat riding and regulate boating activity. It is further stated that as soon as the boats will be registered the policy will be implemented in its letter and spirit. Lifesaving jackets will be kept at tickets center and boat owner will also keep the lifesaving jackets on boat. It is further highlighted in the progress report that a route is fixed within the two kilometers area of Keenjhar from the resort. Safety sign boards have been installed for awareness and three Watchtowers will be built as soon as the water level will go down. In the report it is explicated that 09 divers and rescue boats with staff are also stationed at strategic points. Sirens within two kilometers coverage radius have been installed and it rings at the boating closing time at 5.00 p.m. It is further stated in the report that the committee has been constituted and the area police is on board to stop fishing boats to enter in picnic area. Police has also established a visitor facilitation center. Progress report further reflects that the rescue center with all essential equipment/accessories are established by STDC and staff is provided by Health Department and the CCTV Cameras are installed. It is further stated that Mazaar of Noori is not safe to disembark, therefore, no one should be allowed to disembark at Mazaar. The progress report submitted today showing substantial compliance of the order passed by this Court is taken on record. Accordingly, the matter is adjourned with directions to all concerned including Managing Director, STDC to ensure strict vigilance and further compliance of the directions given by this Court within two months. Remaining two Watchtowers and Jetties will be built within two months and exercise of the registration of boats shall be completed within one month. No boating shall be allowed before registration and completing all the safety measures. Before disposing of this petition, we would like to request learned District & Sessions Judge, Thatta to visit Keenjhar Lake, conduct physical inspection and submit his report whether compliance as shown in the progress report submitted by the Managing Director, STDC today in the Court has been made or not. Copy of this order along with progress report submitted by the Managing Director, STDC today in Court may be transmitted to the learned District & Sessions Judge, Thatta. Adjourned to 15.12.2020 when the further progress report will be submitted by the Managing Director, STDC".

3. The Managing Director, STDC was directed to ensure strict vigilance and compliance of the directions given by this Court that no boating shall be allowed before registration and completing all the safety measures. We also directed District & Sessions Judge, Thatta to visit Keenjhar Lake, conduct physical inspection and submit the report whether compliance as shown in the progress report submitted by the Managing Director, STDC has been made or not. The District & Sessions Judge, Thatta submitted his report on 12.12.2020 which shows that some positive efforts in compliance of the order of this were made for the public safety with the arrangement of some better facilities for tourists at Keenjhar Lake. Makhdoom Gulzar Incharge/ Manager Keenjhar Lake Resort submitted that process of registration of the boats started and at least 32 boats have been registered and remaining registration is pending for the purpose of presentation of fitness certificate. He further submitted that all the tourists boats are equipped with lifejackets and no person is allowed to sail in the boats without wearing of the same including crew members of the boats. On next date, Makhdoom Gulzar, Incharge, Keenjhar Lake Resort submitted that two watch towers have been built up while two are under construction, whereas, sixty (60) boats have been registered and only registered boats are allowed to operate. Two jetties have been built up and so far as third jetty is concerned, he informed us that there are some issues of encroachment for which meeting will be convened with the Deputy Commissioner, Thatta for an early action. Necessary provisions have been made for the life jackets before ride in any boat. The ticket counters have been established. The emergency rescue center is already in operation with the provision of ambulance. Two Sub-Inspectors and sixteen police constables have been deployed at the rescue center. The siren has been installed which is working. CCTV cameras have been installed. Finally, a progress report was submitted on 04.06.2021 which is for the ease of convenience reproduced as under:-

REPORT OF TASK ASSIGNED TO STDC FOR SOPs/MECHANISM FOR KEENJHAR, LAKE THATTA UNDER CHAIRMANSHIP OF COMMISSIONER, HYDERABAD DIVISION

| | | | | --- | --- | --- | | SR. NO. | TASK | PROGRESS | | 1. | 03 Floating jetties for arrival and departure of boats | Task is completed. Floating Jetties are built (Pictures attached at Pages 3 and 5) | | 2. | Boats must not be rented by visitors randomly rather a boating counter should be established and visitors should buy ticket from counter | Task is completed. Ticket counters are built with all essential equipment and accessories are already mentioned (Picture are attached at page 5) | | 3. | Fitness of boat must be approved from relevant authority and boat driver must be certified | Task is completed. Pakistan Navy Head Quarter 32nd Creeks Battalion, Sujawal visited Keenjhar Lake resort Thatta from 16.01.2021 to 17.01.2021 for taking test of Boat Drivers and Divers and to inspect boat body and engine as pre-requisite for boat registration (Pictures are attached at page 7) | | 4. | Life Jackets with tested quality must be compulsory for each boat rider. | Task is completed. As per policy, Boats are registered, lifesaving jackets are kept at tickets centre and boat owners have also kept the lifesaving jackets on boats. | | 5. | Visitor boat should not navigate randomly in the lake there must be a fixed route rescue boats must remain stationed on the route. | Task is completed. Routes are fixed within 02 Kilometer area of Kenjhar from the resort. Safety sign boards are installed for awareness. | | 6. | Watch towers may be established at desired locations to monitor whole area | Task is under completion. One watch tower is completed, other watch tower material is prepared but need to be installed (Pictures are attached at page 9) | | 7. | Well equipped divers recruited in sufficient numbers and should be stationed at strategic points. | Task is completed. Pakistan Navy has given training to all the boat drivers and divers including rescue boat staff who are stationed at strategic points. | | 8 | Boating activity must stop at 5 pm | Task is completed. Siren within 02 kilometer coverage radius is installed and rings at the boating closing time at 5 pm. | | 9 | Fishing boats must not be allowed to enter picnic area | Task is completed. Committee is constituted and police is on board to stop fishing boats to enter in the picnic area. Police has also established a visitor facilitation centre. | | 10 | Rescue and response centre must have established with First Aid equipments and expert human resource to save life in case of drowning incident. | Task is completed. Rescue centre (Building) with all essential equipment & accessories is established by STDC and staff is provided by health department. An Ambulance of STDC is also present at Keenjhar lake resort. | | 11 | Provision of CCTV Camera with control room. | Task is completed. CCTV Cameras are installed (Picture are attached at page 11) | | 12 | Disembarking on islands within Keenjhar lake must be banned | Task is completed. No one is allowed. Boating is banned. | | 13 | Mazaar of noori is not safe to disembark therefore, no one should be allowed to disembark at Mazaar | Task is completed. No one is allowed. Boating is banned. |

4. Since the directions given by this Court from time to time in order to make necessary provisions and availability of facilities in the public interest for the safety of tourists at Keenjhar Lake have been seemingly complied with to avoid any future incident or accident therefore this petition is disposed of with the directions to the Managing Director, STDC, Deputy Commissioner, Thatta and SSP to ensure strict compliance with regard to all safety measures religiously. Office is directed to transmit copy of this order to the worthy Chief Minister Secretariat, Sindh, Managing Director, STDC, Deputy Commissioner, Thatta, DIG Hyderabad and SSP Thatta as well as the learned Advocate General, Sindh.

(J.K.) Petition disposed of

PLJ 2022 Karachi 54 (DB)

Present: Muhammad Ali Mazhar and Agha Faisal, JJ.

Dr. SEEMA IRFAN and others--Petitioners

versus

FEDERATION OF PAKISTAN through Secretary Revenue Ex-Officio Chairman FBR and others--Respondents

C.Ps. Nos. D-5956 to D-5964 of 2018, decided on 31.5.2019.

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

----Ss. 120(1) & 122(5A), (9)--Deduction of tax by university from salary--Filing of returns--Assessment orders--Claim of rebate--Issuance of show-cause notices to petitioners--Initiation of assessment proceedings--Petitioners were not full time teachers and researcher--No cause of action--Jurisdiction--Domain of authority--Opportunity to defend--Direction to--Petitioners do not enjoy status of full time teacher or researcher which is one of basic conditions for claiming rebate under aforesaid clause--Petitioners have only been issued show-cause notices to submit their reply which do not mean nor it can be pre-empted that issuance of show-cause always entail or lead to an adverse order against petitioners--Factual controversies raised in show-cause notice cannot be decided in writ jurisdiction but it is dominion of competent authority to decide fate of show-cause notice after providing ample opportunity of hearing with right to fair trial and then pass orders in accordance with law--Show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects rights of any party unless same has been issued by a person having no jurisdiction to do so--It is well settled that a writ lies when some right of any party is infringed--Whys and wherefores lead us to a finale that neither show-cause notice has been issued without jurisdiction nor it can be considered an abuse of process of law nor it is totally non est--Respondent No. 3 shall provide fair opportunity to petitioners to defend show-cause notice and with proper application of mind consider grounds raised in response to rebut show-cause for which a clear provision is already envisaged and integrated under sub-section (9) of Section 122 of Income Ordinance, 2001--Petition dismissed.

[Pp. 58, 61, 62, 68, & 69] A, B, C, E, F, G & H

Constitution of Pakistan, 1973--

----Art. 199--Exercising of constitutional jurisdiction--High Court in exercise of its extraordinary constitutional jurisdiction may take up writs to challenge show-cause notice if it is found to be lack of jurisdiction, barred by law or abuse of process of Court or coram non judice and obviously in such situation, may quash it but not in every case filed with expectation and anticipation of ad-interim order by assessee. [P. 62] D

M/s. Ovais Ali Shah and Aamir Khosa,Advocate for Petitioners.

Mr. Kafeel Ahmed Abbasi, Advocate for Respondents (FBR).

Date of hearing: 6.3.2019.

Order

Muhammad Ali Mazhar, J.--These Constitution Petitions have been brought to challenge show-cause notices issued to the petitioners individually by the Additional Commissioner, Range-I, Zone-I, RTO III, Inland Revenue for the Tax Year 2012.

1. The short-lived facts of the case are that the petitioners are teachers/researchers at the Agha Khan University and paying tax liabilities in accordance with law. The terms and conditions of employment in the role of teachers and researchers are assimilated and encompassed in the appointment letters. Being salaried person, tax is deducted by Agha Khan University at the time of payment of salary. The petitioners filed Tax returns for the Year 2012 by virtue of Section 120(1) of the Income Tax Ordinance, 2001 that were deemed as assessment orders. On the word of petitioners as full time teachers and researchers, they were entitled to reduction of tax under clause 1(2) of Part III of the Second Schedule to the Ordinance. Keeping in mind this provision, the withholding tax deducted by Agha Khan University was also adjusted so that the total amount of withholding tax against salary was reduced by the percentage allowed by clause 1(2) of Part III of the Second Schedule. In the show-cause notices issued under Section 122(5A) of the Ordinance, the Additional Commissioner has questioned the claim of rebate under clause 1(2) of Part III of the Second Schedule to the Ordinance. He has also called upon to produce employment contract, salary slips and bank statements.

2. The Commissioner Inland Revenue filed the comments with the standpoint that the petitioners are unlawfully claiming the rebate on tax at the rate of 75% of their income under sub-clause (2) of clause (1) of Part-III of Second Schedule of the Income Tax Ordinance, 2001. It was further contended that the impugned notices have been issued as per law. The petitioners may join the proceedings and contest the same but the petitions against the show-cause notices are not maintainable.

3. The learned counsel for the petitioners argued that the impugned Notices are without jurisdiction and liable to be struck down. The issue of rebate has already decided in the case of Agha Khan University. The order of the Commissioner (Appeals) has not been appealed. The Show-Cause Notices have been issued as if the Respondent No. 3 wants to conduct an enquiry and audit which is nothing but a roving exercise. The thrust and impetus of argument was that the powers to conduct enquiry was conferred under Section 122(5A) through Finance Act, 2012 which was off course applicable for Tax Year 2013. The Finance Act, 2012 did not have retrospective application. It was further averred that the tax department can only proceed after conducting an audit under Section 177 of the Ordinance. In support of this contention, the learned counsel referred to case of Allied Engineering v. Commissioner of Income Tax [2015 PTD 2562] and Messrs Kurdistan v. Commissioner Income Tax [2014 PTD 339].

4. The learned counsel further argued that the Respondent No. 3 has previously taken up the same issue with respect to Tax Years 2010 and 2011. The petitioners contested the same before the departmental hierarchy. The assessing officer passed assessment orders against the petitioners and held that the rebate had been incorrectly claimed. The petitioners preferred appeals to the Commissioner whereby partial relief was granted, however it was further held that the rebate had been incorrectly claimed with respect to lump sum clinical incentives. The petitioners then preferred appeals to the Appellate Tribunal, Inland Revenue against the findings with respect to lump sum clinical incentives. It was further contended that during pendency of these petitions, the Appeals have been decided against the petitioners and the petitioners have filed ITRA which are pending in this Court.

5. The learned counsel for the FBR argued that the Appellate order passed in respect of employer Messrs Agha Khan University for the tax year 2012 has no relevance with the assessment proceedings initiated under section 122(5A) against the alleged employees of the Respondent No. 3. He further argued that Messrs Agha Khan University had appealed against the order passed under section 161 which pertains to monitoring of withholding taxes, however, the proceedings initiated under Section 122(5A) are assessment proceedings against the employees which are entirely different in nature. It was further contended that in case of petitioners there is no need to make any enquiry as the deemed assessment orders were found erroneous and prejudicial to the interest of revenue. The apprehension of undue hardship is baseless. The proceedings were initiated under Section 122(5A) pertaining to tax year 2012 due to limitation of time. The clinical supplement and lump sum clinical incentive cannot be termed as part of salary as the lump sum clinical incentives was never part of employment contract; the amount of above two components vary from time to time meaning thereby the same are variable components hence the same cannot be the part of salary in terms of the definition of employment as defined under Section 2 of Clause (22) of Income Tax Ordinance, 2001 which grants reduction in tax liability only to fulltime teacher or researcher; employment in a non-profit education or research institution and income should be derived under the head of salary. In support of this contention, he referred to case Commissioner of Income Tax v. Messrs Riverside Chemicals (Pvt.) Ltd. (PLD 2008 SC 446)

6. Heard the arguments. The show-cause notices were issued individually to the petitioners under Section 122(9) to amend assessment under Section 122(5A) of the Income Tax Ordinance, 2001 for the tax year 2012. In the show-cause notices the Additional Commissioner-IR referred to e-filing of income tax return for the tax year 2012 as deemed to be assessment order under Section 120(1) of the Income Tax Ordinance, 2001. The petitioners were informed that the perusal of return and withholding statement reveals that the assessment order was erroneous as well as prejudicial to the interest of revenue on some discrepancy such as the tax liability was reduced by 75% as rebate under sub-clause (2) of clause (1) of Part-III of Second Schedule which the petitioners were not entitled to claim. The petitioners were also communicated that as part of major duties and responsibilities the petitioners do not enjoy the status of full time teacher or researcher which is one of the basic conditions for claiming the rebate under the aforesaid clause. Moreover, the petitioners also declared other incomes in addition to their salaries, therefore, the Additional Commissioner-IR cogitated and ruminated in the show-cause notices that the "other income" is basically earned by the petitioners from "clinical work and surgical procedures" which may be treated as professional/business income. After describing some more details in the show-cause notices, the petitioners were called upon to explain as to why the assessment order may not be amended under Section 122(5A) of the Ordinance. The reply was sought through supporting documents such as employment contract and salary slips with complete bank statement(s) for the relevant tax year.

8. As far as this argument developed by the learned counsel for the petitioners that the similar issue has been conclusively decided by the Commissioner (Appeals), therefore, the issuance of show-cause notices is unwarranted under the law. The copy of attached order unequivocally and unambiguously expresses that the order was passed on 28.02.2013 in the appeal filed by Aga Khan University. The order point towards the arguments of Appellant Representative that rebate was allowed only to the faculty members who conducted clinics at the AKU which involved the students and principals at all stages where the employees handled the patients. Such employees of AKU were bound not to engage in private practice. On this line of reasoning, the Commissioner Inland Revenue (Appeals-IV), Karachi held that the case has to be considered in the perspective of the activity of imparting knowledge at various levels in a medical profession which beyond doubt cannot be completed without meeting the essential teaching at clinics/hospitals and any consequential income generated during this exercise in the form of patient charges, surgeries etc., and remuneration of an employee determined on such basis does not change the character of the income so the full time teachers/ researchers are entitled to claim rebate under clause (2) of Part III of Second Schedule to the Ordinance. So far as the same heated discussion for the tax year 2013 onward, the learned counsel for the petitioners self-confessed that the Appellate Tribunal Inland Revenue have dismissed the appeals of the petitioners and now the ITRA filed by the same petitioners are pending in this Court.

1. In the show-cause notices, the department has raised very crucial and substantial query whether the petitioners are performing the duties as full time teachers or researchers which is an essential and indispensable condition for the claim of rebate with another bone of contention whether they are also earning from clinical work and surgical procedures which cannot be treated as a part of salary but it is income from profession/business income.

2. A momentary look to Section 122 of the Income Tax Ordinance deciphers that it germane to amend the assessments. Subsection (5) was substituted by the Finance Act, 2003, whereas sub-sections (5A) and (5B) were also inserted by the Finance Act, 2003, however, the words "after making, or causing to be made, such enquiries as he deems necessary" were inserted under sub-section (5A) by the Finance Act, 2012 assented on 26.06.2012, so what is the difference and divergence between the original text of sub-section (5A) and after insertion of the aforesaid words, the simple distinction can be drawn that earlier under sub-section (5A), it was provided that "Subject to sub-section (9), the Commissioner may amend, or further amend, an assessment order, if he considers that the assessment order is erroneous in so far it is prejudicial to the interest of revenue. After insertion of the aforesaid words, now sub-section (5A) is read as under:

"Subject to sub-section (9), the Commissioner may, after making, or causing to be made, such enquiries as he deems necessary, amend, or further amend, an assessment order, if he considers that the assessment order is erroneous in so far it is prejudicial to the interest of revenue." [emphasis applied]

1. According to learned counsel for the petitioners, the amendments made in sub-section (5A) will be applicable to tax year 2013, hence the Additional Commissioner-IR could not have any power or justification to issue show-cause notices under sub-section (5A) for holding any inquiry which powers were conferred and vested in sub-section (5A) by virtue of insertion through Finance Act, 2012, whereas the counsel for the tax department argued that the Additional Commissioner-IR has not initiated any inquiry but the petitioners were confronted on the basis of already available record to explain their position as the powers to amend could be exercised after confronting the matter to the petitioners and providing an opportunity of hearing to them.

2. The learned counsel for the petitioners referred to the case of Kurdistan Trading Company v. Commissioner Inland Revenue reported in 2014 PTD 339 in which the learned Division Bench of this Court held that normally amendments introduced in fiscal statutes through Finance Act apply prospectively in the year in which it has been inserted unless some retrospective effect is given by the legislature. In the cases where the amendment introduced is remedial and beneficial in nature, it has to be given retrospective effect and also to apply to all pending cases on the date of amendment/enactment as well unless some prospective effect is given by the legislature or it is made prospective by its implication. [Reference: Commissioner of Income Tax v. Shahnawaz Ltd. (1993 SCMR 73) and Commissioner of Income Tax, Karachi v. Messrs’ B.R.R. Investment (Pvt.) Ltd., Karachi (2011 PTD 2148). The learned counsel further referred to the case of Messrs’ Allied Engineering Services Ltd. v. Commissioner of Income Tax (2015 PTD 2562) in which the learned Division Bench being fortified with dictum laid down in the case of Commissioner Income Tax v. Messrs’ Eli Lily Pakistan (Pvt.) Ltd. (2009 SCMR 1279) held that the Appellate Tribunal Inland Revenue was not justified to hold that enactment of Section 122 (5A) of Income Tax Ordinance, 2001 vide Finance Act, 2003 was applicable to tax year, 2003 more particularly when the Appellate Tribunal Inland Revenue held that amendment introduced through Finance Act, 2003 by inserting Section 122(5A) of Income Tax Ordinance, 2001 was prospective in nature. The apex Court held that the provision of Section 122(5A) will not apply retrospectively in respect of tax year ending on 30th June 2003 and will be applicable prospectively to the tax year beginning with effect from July 2003 and ending on 30-6-2004. Whereas the learned counsel for tax department relied on PLD 2008 SC 446 (Commissioner of Income Tax/Wealth Tax Companies Zones, Peshawar v. Messrs’ River Side Chemicals (Pvt.) Ltd. Gadoon) in which apex Court held that the grant of concession in the nature of exemption from payment of duties must be given strict interpretation and the person getting such benefit must satisfy all conditions for such exemption but once the required conditions are complied with, the exemption available to a person under the law cannot be taken away by the concerned authorities in their discretion.

3. In the case in hand the crux of the counsel for the petitioners' arguments is that issuance of show-cause notices under Section 122 (5A) amounts to holding and initiating an inquiry which power to enquire was inserted on 26.06.2012, therefore, these powers cannot be exercised by the Additional Commissioner-IR for the tax year 2012 but these can be exercised for tax year 2013. The original text of sub-section (5A) of Section 122 cannot be read in isolation or seclusion. In our comprehension in line with commonsensical interpretation, if the power for making enquiry is reckoned not to be applicable for the tax year 2012 as rightly argued by the counsel for the petitioners, even then in the original text which was applicable to tax year 2012, more stringent and rigorous powers were already in field to amend the assessment by the Commissioner if the assessment order found to be erroneous and prejudicial to the interest of revenue but subject to the niceties of sub-section (9). The department has not asked to conduct an enquiry and based their assumption on the available record but one more facet cannot be lost sight that due to aforesaid amendment in fact a provision has been created in favour of the tax payers that before amending assessment order on the plea that the assessment is erroneous and prejudicial to the interest of revenue, the competent authority has to enquire before an action of amending the assessment order which was deemed to be assessed by fiction of law. So for all intents and purposes, if the power of making or causing enquiry conferred under sub-section (5A) is obliterated due to its non-application with retrospectivity for the year 2012, even then the power to amend was available to the concerned authority in the original text if the assessment order was found to be erroneous or prejudicial to the interest of revenue subject to fulfilment of the requirements envisaged under sub-section (9).

14. At the moment, the petitioners have only been issued show-cause notices to submit their reply which do not mean nor it can be pre-empted that the issuance of show-cause always entail or lead to an adverse order against the petitioners. It is most commonly noticed that whenever a show-cause notice is issued by the hierarchy provided under the tax laws calling upon the tax payer/assessee to submit the reply, the assessee immediately jumps in with both feet to challenge the show-cause notice in writ jurisdiction with the presumption or presupposition that the show-cause notice means an adverse order. The factual controversies or the factual disputes raised in the show-cause notice cannot be decided in the writ jurisdiction but it is the dominion of the competent authority to decide the fate of show-cause notice after providing ample opportunity of hearing with right to fair trial and then pass the orders in accordance with the law.

1. A show-cause notice is delivered to a person by an authority in order to get the reply back with a reasonable cause as to why a particular action should not be taken against him with regard to the defaulting act. By and large, it is a well-defined and well-structured process to provide the alleged defaulter with a fair chance to respond the allegation and explain his position with reasonable timeframe that he has not committed any unlawful act or misdemeanor. Even in case of an adverse order, the remedies are provided under the tax laws with different hierarchy or chain of command. In the matters of show cause, this Court cannot assume a supervisory role in every situation to pass an interim order with the directions to the authority concerned to proceed but no final order should be passed till decision of the constitution petition or to suspend the operation of show-cause notice for an unlimited period of time or keep the matters pending for an indefinite period. By saying so, we do not mean that the show-cause notice cannot be challenged in any situation but its challenge must be sparing and cautious. This Court in exercise of its extraordinary constitutional jurisdiction may take up writs to challenge the show-cause notice if it is found to be lack of jurisdiction, barred by law or abuse of process of the Court or coram non judice and obviously in such situation, may quash it but not in every case filed with the expectation and anticipation of ad-interim order by the assesse.

16. 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 wilful 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. Here in this case, the department has issued show-cause notices with the allegation that the petitioners have shown the other income also which is not possible as a full time teacher or a researcher employed in a non-profit education or research institution hence the petitioners have been confronted that their other income seems to be earned through clinical work and surgical procedures and for this reason they have been called upon to submit their response along with few documents which are much essential to resolve the petitioners entitlement to rebate or reduction in tax and this is being done on the basis of available documents came into knowledge of the Tax department through Aga Khan University case when they claimed rebate on account of their full time employees as teachers/researchers.

1. Here we would like to cite some judicial precedents from local and foreign jurisdiction with regard to challenge to the show-cause notice and maintainability of writ petitions:

2. 2012 PTD 1374 (Messrs.' Ocean Pakistan Ltd. v. Federal Board of Revenue, Islamabad). 10. In above view of the matter, irrespective of what has been argued before us by the learned counsel for the petitioner, we are of the considered opinion that since all the legal arguments referred to in the preceding paras, raised on behalf of the petitioner-company, are similarly raised before the competent forum, which has issued show-cause notice to the petitioner-company, any finding on any of the legal objections by this Court is likely to cause prejudice to the case of the petitioner-company before the Income Tax hierarchy. Even the learned Single Judge in Chambers of the High Court has left it open for the Additional Commissioner Inland Revenue to decide the issues whether the sale of 'working interest' falls outside the purview of agreement and consequent to the sale, the petitioner is to be governed by the Ordinance, 2001. In view of the facts noted herein above i.e. filing of reply to show-cause notice by the petitioner-company wherein all objections raised before us, noted hereinabove, have been duly raised before the competent forum, and that there is no final determination by the competent authority on the issues involved in the matter, coupled with the fact that the petitioner can raise all possible factual and legal objections before the authority, which has sought its explanation by issuing show-cause notice, we intend to agree with the findings recorded by the learned Single Judge in Chambers of the High Court by means of the impugned judgment; as such this petition is dismissed being devoid of merits. Leave declined.

3. 2002 SCMR 805 (Khalid Mahmood Ch. v. Government of the Punjab). Disputed show-cause notice was still at preliminary stage. Competent Authority after considering petitioners' replies, if came to the conclusion that it was a case of taking further proceedings under the Ordinance then it would be required to constitute an Enquiry Committee or appoint an Enquiry Officer. Constitutional petition had rightly been held to be premature and dismissed as such.

4. 2011 PTD 2103 (Karachi Bulk Storage and Terminals (Pvt.) Ltd. v. Collector of Central Excise and Land Customs). Constitutional petition challenging issuance of show-cause notice by authority. Petition involving questions as to whether such notice was issued with lawful authority or not; and whether interpretation of Section 2(6) of Sales Tax Act, 1951 made by authority was in accordance with law or not. Petitioner had questioned jurisdiction of authority and its action in issuing such notice was alleged to be prejudicial, unjust and mala fide. Constitutional petition was maintainable in circumstances.

5. Union of India (UOI) and others v. Vicco Laboratories (Equivalent Citation: 2008 (3) ALLMR (SC) 453, 2008 (2) CTC 511, 2007 (123) ECC 278, 2007 (149) ECR 278 (SC), 2007 (218) ELT 647 (SC), (2008 4 MLJ 1272 (SC), (2007) 13 SCC 270, [2007] 1 SCR 534).

Normally, the writ Court should not interfere at the stage of issuance of show-cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the concerned authorities and to satisfy the concerned authorities about the absence of case for proceeding against the person against whom the show-cause notices have been issued. Abstinence from interference at the stage of issuance of show-cause notice in order to relegate the parties to the proceedings before the concerned authorities is the normal rule. However, the said rule is not without exceptions. Where a Show Cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ Court would not hesitate to interfere even at the stage of issuance of show-cause notice. The interference at the show-cause notice stage should be rare and not in a routine manner.

1. SBQ Steels Limited v. The Commissioner of Customs, Central Excise and Service Tax, Guntur Commissionerate. (Equivalent Citation: 2013 (2) ALD 158, 2014 (300) ELT 185 (A.P.)

It is off course true that the show-cause notice cannot be read hyper-technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show-cause notice.

1. State of Uttar Pradesh v. Brahma Datt Sharma (Equivalent Citation: AIR 1987 SC 943, 1987 AWC 760 SC, [1987 (54) FLR 524], JT 1987 (1) SC 571, 1987 Lab IC 689, 1987 (1) SC ALE 457, (1987) 2 SCC 179, [ 1987] 2 SCR 444, 1987 (2) UJ 55).

The High Court was not justified in quashing the show-cause notice. When a show-cause notice is issued to a Govt. servant under a statutory provision calling upon him to show cause, ordinarily the Govt. servant must place his case before the authority concerned by showing cause and the Courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show-cause notice is to afford opportunity of hearing to the Govt. servant and once cause is shown it is open to the Govt. to consider the matter in the light of the facts and submissions placed by the Govt. servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature.

1. The Special Director and others v. Muhammad Ghulam Ghouse and others (Equivalent Citation: 2004 (2) ACR 1844 (SC), AIR 2004 SC 1467, 2004 (55) ALR 95, 2004 (106 (2) BOMLR 569, (2004) 3 CALLT 8 (SC), [2004] 120 Comp.Cas 467 (SC), 2004 (91) ECC 299, 2004 (112) ECR 501 (SC), 2004 (164) ELT 141 (SC), JT 2004 (1) SC 206, 2004 (2) PLJR 237, 2004 (1) SCALE 330, (2004) 3 SCC 440, [2004] 50 SCL 93 (SC), [2004] 2 SCR 399, 2004 (1) SCT 671 (SC), 2004 (1) UJ 744).

This Court in a large number of cases has deprecated the practice of the High Court's entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show-cause notice was totally non est. in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, not granted.

1. Union of India and others v. Kunisetty Satyanarayana (Equivalent Citation: AIR 2007 SC 906, [2007 (112) FLR 325], 2007 (1) PLJR 121, 2006 (12) SCALE 262, (2006) 12 SCC 28, (2007) 2 SCC (LS) 304, [2006] Supp. (10) SCR 257, 2007 (1) SCT 452 (SC), 2007 (3) SLJ 338 (SC).

The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.

1. M/s. Kirloskar Computer Service Limited, Bangalore v. Union of India and others (Equivalent Citation: 1997 (73) ECR 651 (Karnataka), 1998 (98) ELT. 355 (Kar.)

Court interference is justifiable only if the excise authorities have acted beyond the scope of the power available to them under the statute, i.e. if they have acted without jurisdiction. When the authorities are fully empowered to decide whether computer software development on a commercial scale amounts to manufacture or not, there decision, whether correct, partially correct, or even incorrect, is fully within their jurisdiction. Their finding cannot be said to be without jurisdiction merely because it adversely affects the assessee. As there is no inherent lack of jurisdiction in the CCE's order, the Court declines to intervene in the matter…………... The test for determining whether the order is competent, is not whether the same is as accurate as ought to be, but whether the power which the authority has involved to pass the order is truly available to it under the statute. If the answer be in the affirmative it would matter little whether the conclusion drawn by the authority was wholly correct, partially correct and partially incorrect or wholly incorrect, if the Collector eventually comes to a conclusion adverse to the petitioner, the same can be assailed in appeal before the prescribed appellate authority, but just because the Collector may pass an order which may not be to the liking of the petitioner, or may not eventually stand the test of scrutiny by a higher authority or Court would not affect the jurisdiction of the Authority to pass an order. In other words the jurisdiction to pass an order is different from a duty to pass a correct order. If there is no inherent lack of jurisdiction then just because the order that the Authority has passed or may propose to pass is not or may not be a correct order is no reason why the authority should be prevented from exercising its jurisdiction. Similarly if the Authority lacks inherent jurisdiction to pass an order, then even if the conclusion arrived at by it on merits may be legally unexceptionable, the order shall have to be set aside. Law not only requires that correct orders should be passed by it also requires that the same must be passed by the Authorities competent to do so. The remedy against an incorrect order passed by an Authority competent to do so is not a short cut to the High Court but recourse to the statutory remedies prescribed by the Act. In that view therefore I see no reason to short circuit the proceedings initiated by the Collector ……"

18. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice, the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. This Court ought to be careful when it passes an interim order to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition. Abstinence from interference at the stage of issuance of show-cause notice in order to relegate the parties to the proceedings before the concerned authorities is the normal rule.

19. The whys and wherefores lead us to a finale that neither the show-cause notice has been issued without jurisdiction nor it can be considered an abuse of process of law nor it is totally non est. in the eye of law for absolute want of jurisdiction or coram non judice. Whether the show-cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved person could approach the High Court. A reasonable reading of show-cause notice does not unearth or establish that it is an empty ceremony nor an impenetrable wall of prejudged opinion in which a fair procedure with reasonable opportunity of defence may not commence or afforded so in our good judgment, the interference at the show-cause notice stage should be rare and in an exceptional circumstances but not in a routine manner. However a significant attribute cannot be disregarded that when a show-cause notice is issued then obviously a fair chance to contest must also be provided. In our Constitution, right to fair trial is a fundamental right. This constitutional reassurance envisaged and envisioned both procedural standards that Courts must uphold in order to protect peoples' personal liberty and a range of liberty interests that statutes and regulations must not infringe. On insertion of this fundamental right in our Constitution, we ought to analyze and survey the laws and the rules/regulations framed thereunder to comprehend whether this indispensable right is accessible or deprived of? In case of stringency and rigidity in affording this right, it is the function rather a responsibility of Court to protect this right so that no injustice and unfairness should be done to anybody, therefore, we direct that the Respondent No. 3 shall provide fair opportunity to the petitioners to defend the show-cause notice and with proper application of mind consider the grounds raised in the response to rebut the show-cause for which a clear provision is already envisaged and integrated under sub-section (9) of Section 122 of the Income Ordinance, 2001.

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

(Y.A.) Petitions dismissed

PLJ 2022 Karachi 70 (DB)

Present: Salahuddin Panhwar and Shamsuddin Abbasi, JJ.

AHMED SAEED--Petitioner

versus

INSPECTOR GENERAL OF POLICE (SINDH), POLICE SERVICES OF PAKISTAN CH-RD, KARACHI and 3 others--Respondents

Const. P. No. D-5759 of 2019, decided on 20.9.2019.

Constitution of Pakistan, 1973--

---Art. 199--Confessional statement--Conviction and sentence--Appeal--Dismissed--Pendency of appeal before Apex Court--No objection certificate was issued by senior sector commander of rangers--Applicability of writ of certiorari--Right of investigation officer--Petition against conviction is pending before Apex Court where petitioner may raise questions with regard to legality or otherwise of confessional statement, if law so permits. Needless to mention that writ of certiorari is applicable against decisions of sub-ordinate Courts, where remedy of appeal is not available--Petitioner is not legally justified in seeking a restraint over such right of investigating officers--No investigation can be stopped in writ of certiorari and in writ of mandamus. On contrary writ of mandamus states that official respondents shall act strictly in accordance with law. What law provides to hear these FIRs, which according to counsel were disposed of in ‘A’ Class, hence, official respondents are bound to investigate all FIR(s) and ensure that all culprits are arrested and arraigned--Petition was dismissed.

[Pp. 73 & 77] A, B & E

Ref. PLD 2018 SC 595.

Purpose of Investigation--

----For purpose of investigating a suspect ‘No Objection Certificate’ is not requirement of. law rather such right shall always be available to investigate a suspect. [P. 76] C

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

---S. 154--Commission of cognizable offence--Obligation of police--If during course of an investigation there comes facts of commission of another cognizable offence then police shall be under an obligation to resort to such course, (Section 154, Cr.P.C.) even without permission/no objection of anybody unless lodgment of such FIR demands so. Such legal position is sufficient to make prayer, made in petition, with reference to NO OBJECTION CERTIFICATE, as redundant. [P. 75] D

Raj Ali Wahid Kunwar, Advocate for Petitioner.

Date of hearing: 20.09.2019.

Order

Through instant constitutional petition, the petitioner has prayed that:--

“1. Restrain the respondents from falsely implicating the Petitioner in any further FIR’s based on his retracted judicial confession;

1. Declare the “No Objection Certificate” that allows/grants authority to institutions to further falsely implicate the Petitioner as illegal and void abinitio;

2. Direct the Respondents to place before this Court a list of criminal cases against the accused in the province of Sindh.

3. Declare the alleged confession as false, fabricated and unbelievable.

4. Any other and further additional relief; which this Hon’ble Court may deems fit and proper suitable in the interest of justice.”

5. Precisely the relevant facts, as set out in the present petition, is that:--

“That the petitioner was detained by Rangers (Sindh) for over ninety days under Section 11-EEEE ATA, 1997, prior to 25.06.2006. During this period, the petitioner was tortured, beaten, abused and coerced and it is alleged that the petitioner confessed to committing crime being subject matter of FIR 330 of 2009 P.S Nabi Bux for which he later got charged. Afterwards, the petitioner allegedly took the police party to the place of incident on 25.06.2016 which was already in the knowledge of the Police via FIR 330 of 2009 through the repot of the then Investigation Officer. After that, the petitioner allegedly went on to give a voluntary confession in front of a Judicial magistrate on 27.6.2016 under S. 164, Cr.P.C., the Judicial Magistrate sent the petitioner back to the Police custody and recorded his confession after calling him again on 28.6.2016.

That the confession in its original form dated 28.6.2016 is placed as Annexure-A along with its English translation which is placed as Annexure A-1.

That it is categorically mentioned that the Petitioner, rescinded from his confession as soon as the trial began which is evident from the charge framed in Spl. Case No. 1444 of 2016 on 23.12.2016. Copy of the Charge is placed as Annexure-B.

That on basis of the aforementioned retraced alleged confession of the petitioner, several BLIND FIR’s which were originally registered against unknown people, were declared to be inculpating the petitioner in them and a “No Objection Certificate” dated 21.06.2016 (placed as Annexure F) xvas given by the investigative agency HQ Sector Abdullah Shah Ghazi Rangers Karachi-29 to allow for the arrest and physical remand of the petitioner in Police Custody for the 22 FIR’s that can now be registered against the petitioner based on his retracted judicial confession either as Fresh or continued FIRs.

That the petitioner fears that he will been falsely involved in as many as the 22 FIR’s based on his retracted confessional statement in which he can be apprehended. From the above mentioned list of FIRs produced in Annexure F, the petitioner has already been charged for FIR No. 170/2003 under Section 302/34 (Annexure F-1), another FIR not mentioned in the list being FIR No. 78/2008 under Section 147/148/149/324/302 R/w 7 ATA (Annexure F-2), FIR No. 47/2006 supplementary challan under Section 302/324/34 (Annexure F-3) and FIR No. 301/1995 (Annexure F-4).

1. At the outset, learned counsel for the petitioner contends that petitioner was arrested on his 164, Cr.P.C., statement (confessional statement was recorded) and he was tried in that FIR; at the culmination of trial, trial Court convicted and sentenced him to death sentence. He preferred the appeal that is also dismissed, hence at present, the appeal is pending before the Apex Court for adjudication. According to counsel, on the basis of confessional statement wherein he is allegedly admitted, at least twenty five offenses relating to more than hundred cases, “Non objection Certificate” was issued by the Senior, Sector Commander Officer of the Rangers and thus the petitioner is apprehending that he will be implicated in those cases as well, on his confessional statement; that this is a case certiorari as well mandamus, to direct officials that they shall not act on the basis of ‘No Objection Certificate’ and confessional statement and they shall be refrained from implicating the petitioner in other cases as mentioned in the alleged confessional statement. Further he has emphasized over pages-511 & 515, which pertains to travel history of the petitioner (accused) by taking plea of alibi with regard two murders as allegedly confessed in that period he was aboard.

4. What is not dispute is the fact that confessional statement, so sought to be adjudged through this writ petition, was in connection with a case crime wherein the petitioner was convicted and even appeal was declined. We are unable to understand how the status of a piece of evidence (confessional statement) can be sought to be adjudicated in writ petition?) Let us add that a piece of evidence of alike nature can never adjudicated by any other Court except that of Trial Court. All questions with regard to legality or otherwise of such like document (piece of evidence) can only be raised before the trial Court. Like documents would mean those documents only which are collected/recorded as, piece of evidence in proof or disproof of a criminal liability and creates no other liability or consequence in civil nature actions. Thus, such prayer, being entirely misconceived, cannot be entertained. It may well be added that since petition against conviction is pending before honourable Apex Court where the petitioner may raise questions with regard to legality or otherwise of confessional statement, if the law so permits. Needless to mention that writ of certiorari is applicable against the decisions of the sub-ordinate Courts, where remedy of appeal is not available. Here situation is not same. In present case, issue is pending before the Apex Court with regard to conviction of petitioner in those cases.

5. Petitioner, who further seeks restraining order from this Court under the writ of mandamus, on use of confessional statement and NO OBJECTION CERTIFICATE, in matter of investigations, it would suffice to say that investigation is right of the investigating agency hence it (investigation) normally should not be hampered/ interfered even by Court(s). The purpose of investigation is never meant to book one but to bring the real culprits under light and to send him up to face the trial. This has been the reason that Investigating Officer is obliged to investigate every suspect as well to examine every suspicion while conducting an investigation. Every citizen, therefore, must cooperate with Investigation Officer unless he feels the authority is being abused by the Investigating Officer for some other purpose than that of ‘brining the truth on surface’. The suspect does have a right to bring on surface all his pleas which, the Investigating Officer is obliged to appreciate, therefore, petitioner is not legally justified in seeking a restraint over such right of investigating officers, if they find the petitioner linked in crimes even as suspect. The view is based on guidelines, so chalked out in the case of Sughran Bibi (PLD 2018 SC 595). At Rel. P-628 it is observed as:

“(3) It is the duty of an Investigating Officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person.”

This Rule should suffice to dispel any impression that investigation of a case is to be restricted to the version of the incident narrated in the FIR or the allegations levelled therein. It is quite evident from this Rule that once an FIR is registered then the Investigating Officer embarking upon investigation many not restrict himself to the story narrated or the allegations levelled in the FIR and he may entertain any fresh information becoming available from any other source regarding how the offence was committed and by whom it was committed and he may arrive at his own conclusions in that regard. The final report to be submitted under Section 173, Cr.P.C. is to be based upon his final opinion and such opinion is not to be guided by what the first information had stated or alleged in the FIR. It is not unheard of that sometimes the final report submitted under Section 173, Cr.P.C. the first information is put up before the Court as the actual culprit.

(Under lining is mine)

15 …… All subsequent or divergent versions of the same occurrence or the persons involved therein are to be received, recorded and investigated by the Investigating Officer in the same “case” which is based upon the one and only FIR registered in respect of the relevant “offence” in the prescribed book kept at the local police station.

With regard to NO OBJECTION CERTIFICATE, it would be appropriate to reproduce the same, which is that:

“NO OBJECTION CERTIFICATE

1. Reference order No. 1430/Prosec/600/2016 dated 22 March 2016 Saeed Ahmed @ Bharam @ Nagori son of Muhammad Ismail was ordered to be detained for the period of 3 months under Section 11-EEEE of ATA, 1997.

1. Now in the light of Reports, Recommendations of inquiry/ investigation Team, the above said suspect has been found involved in following FlRs as per his admission.

a. FIR No. 125/1994 under Section 302/34 PS Nabi Bukhsh.

b. FIR No. 55/1995 under Section 302/324/147/148 PS Pak Colony.

c. FIR No. 61/1994 under Section 302/34 PS Nabi Bukhsh.

d. FIR No. 68/1995 under Section 302/34 PS Nabi Bukhsh

e. FIR No. 170/03/324/34 under Section 302/34 PS Aziz Abad.

f. FIR No. 166/03 under Section 302/34 PS Liaquatabad.

g. FIR No. 467/2004 under Section 302/34 PS Korangi

h. FIR No. 559/2004 under Section 302/34 PS Korangi.

i. FIR No. 41/2006 under Section 302/34 PS Zaman Town.

j. FIR No. 43/2005 under Section 302/34 PS KIA.

k. FIR No. 120/2008 under Section 302/34 PS Ibrahim Hyderi.

l. FIR No. 186/2008 under Section 302/34 PS Landhi.

m. FIR No. 169/2007 under Section 302/34 PS Ibrahim Hyderi.

n. FIR No. 120/2008 under Section 302/34 PS Sharafi Goth.

o. FIR No. 326/2008 under Section 302/34 PS KIA.

p. FIR No. 179/2009 under Section 302/34 PS Landhi.

q. FIR No. 552/2010 under Section 302/34 PS Orangi Town.

r. FIR No. 21/2010 under Section 302/34 PS Awami Colony

s. FIR No. 23/2010 under Section 302/34 PS Korangi

t. FIR No. 76/2011 under Section 302/34 PS Eidgah.

u. FIR No. 69/2012 under Section 302/34 PS Landhi.

v. FIR No. 330/2009 under Section 302/34 PS Nabi Bukhsh.

1. Therefore, this Sector has “No Objection” if the said persons is arrested and remanded into Police custody, for investigation in concerned FIRs or launch fresh FIR as per his admission during JIT session before Team.

Sd/- Colonel Sector Commander (Amjad Jamil lqbal)

SECTOR HQ ABDULLAH SHAH GHAZI RANGERS KARACH1-29 No. l430/Prosec/1279 /201.6 dated 21 June 2016

a. Administrative Judge ATC Karachi for information/record.

b. Secretary Home Department, Government of Sindh.

c. HQ Pakistan Rangers (Sindh).

d. CCPO Karachi.

e. SSP Investigation Karachi o/o DIG (East/West/South).

f. Superintendent Central Prison Karachi.

g. Filed Security Sector.

h. SHO PS Nabi Bukhsh.

i. Sub Jail Mitha Ram Hotel Karachi o/o Wing ASGR.

Here, it would be advantageous to clarify that for purpose of investigating a suspect ‘NO OBJECTION CERTIFICATE’ is not the requirement of law rather such right shall always be available to investigate a suspect. No person would be a suspect unless there are some circumstances which make him a suspect. Further, it is clarified that where the circumstances justify arrest of a suspect/accused in some other case crime the same shall also not require ‘NO OBJECTION FROM OTHER LAW ENFORCING AGENCY’ rather the Investigation Officer of other case crime may proceed further with request of formal arrest of suspect and even may proceed for obtaining the body (remand) of such suspect. It is also needless to clarify that if during course of an investigation there comes facts of commission of another cognizable offence then police shall be under an obligation to resort to such course (Section 154, Cr.PC) even without permission/no objection of anybody unless lodgment of such FIR demands so. Such legal position is sufficient to make the prayer, made in petition, with reference to NO OBJECTION CERTIFICATE, as redundant.

6. In short, the petitioner is seeking restraining order from this Court that no investigation be carried out in all murder cases which, as observed above, legally can’t be granted. No investigation can be stopped in the writ of certiorari and in writ of mandamus. On the contrary writ of mandamus states that official respondents shall act strictly in accordance with the law. What law provides to hear these FIRs, which according to learned counsel were disposed of in ‘A’ Class, hence, official respondents are bound to investigate all FIR(s) and ensure that all culprits are arrested and arraigned.

Accordingly, instant petition is dismissed along with listed applications.

(Y.A.) Petition dismissed

PLJ 2022 Karachi 77 (DB)

Present: Muhammad Ali Mazhar and Agha Faisal, JJ.

Ms. SABA--Petitioner

versus

PROVINCE OF SINDH through Secretary Law and 2 others--Respondents

C.P. No. D-2650 of 2019, decided on 17.5.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Recruitment for post of Additional District and Sessions Judge--Conducting of first preliminary test--Doubtful Credibility of preliminary test--Leakage of Question Paper--Conflict of interest--Cancellation of test and its result--Non-officially announcement of result--Respondent highlighted cause of scrapping first preliminary test which seems to be quite reasonable and logical--Petitioner had appeared for selection to post of ADSJ--Due to leakage of paper, entire sacrosanctity and credibility of first preliminary test has become doubtful, dubious and contaminated--This impropriety and illegality cannot be ignored so best way was to cancel results of preliminary test in larger interest of entire judicial system of which this Court is custodian and guardian being apex Court of province--Allowing petitioner at this stage to sit in second written test without qualifying retest will amount sheer discrimination to those candidates who also sit in preliminary test and after cancellation they again sit in retake without any demur, doubts or objections--Except petitioner no other candidate has come up to challenge cancellation of earlier test and holding of retest/retake--Decision taken for retest was proportionate, well balanced and harmonious and it does not stand to reason to interfere--No vested right created in favour of petitioner--No privilege or benefit can be claimed by petitioner on basis of alleged marks secured in tainted process which has lost its neutrality--We do not find any illegality and impropriety in decision taken for retest--Petition dismissed.

[Pp. 84, 85 & 90] A, B, C, D & F

Ref. 2005 SCMR 445.

Requirement of Proportionality--

----Whereas proportionality requires Court to judge whether action taken was really needed as well as whether it was within range of courses of action which could reasonably be followed. [P. 90] E

(1948) 1 KB 223 ref.

M/s. Ghulam Asghar Pathan and Irshad Ali Shar, Advocates for Petitioner.

Petitioner is also present.

Mr. Salman Talibuddin, Advocate General Sindh.

Mr. Mukesh Kumar G. Karara, Advocate for Respondent No. 3.

Mr. Hatim Aziz Solangi, Additional MIT-I, Sindh High Court, Karachi present.

Date of hearing: 14.5.2019.

Order

Muhammad Ali Mazhar, J.--This petition has been brought to implore a declaration that cancellation/annulment of first preliminary test conducted on 07.04.2019 by the Respondents Nos. 2 and 3 for the recruitment of Additional District and Sessions Judge was illegal. The petitioner has rummaged what’s more the directions against the Respondents Nos. 2 and 3 to issue her admit card for forthright appearance in the forthcoming written test without sitting in the retest/retake.

1. The evanescent indicators of this Constitution petition are that riposte to an advertisement published in the newspapers on 30.01.2019 inviting applications for the recruitment to the post of Additional District and Sessions Judge (BS-20), the petitioner had also applied. The admit card was issued her to take a seat in the MCQs (preliminary test) conducted on 07.04.2019 in the Sindh High Court, Karachi. The petitioner claims to have secured 62% marks in the preliminary test on self-calculation and this estimation is based on answer key uploaded by the Respondent No. 3 at their website. However in actuality, the result of the preliminary test conducted on 7.4.2019 was discarded and cast-off before announcement of official results by the Testing Service Agency (Respondent No. 3). The petitioner has questioned the non-announcement of official results, annulment of preliminary test and calling upon the candidates including the petitioner to appear in the re-test. She wishes to appear in the written test scheduled on 18th and 19th of May, 2019 without going through the exercise of retest/retake.

2. The Respondent No. 2 took the plea that the petition is hit by non-joinder and mis-joinder of necessary parties. The Registrar of Sindh High Court has not been impleaded but what we noted that after filing this petition, the petitioner moved an application under Order I, Rule 10, C.P.C. to join the Registrar of this Court and we had also issued notice to him. The Respondent No. 3 in the comments also articulated that no fundamental right of the petitioner has been violated if the preliminary test was shelved without declaration and announcement of the results. The Respondent No. 3 (Testing Service Agency) in their reply comprehensibly avowed that the questions were collected from different subject experts to create a question bank. After successful conduct of test on 07.04.2019, only an answer key was uploaded on the website. Though the result was compiled but before announcement of official results, it came into the knowledge that some next of kin/blood relatives of subject experts had also appeared in the same preliminary test but this fact was never disclosed by them to the Respondent No. 3 at the time of handing over the questions for securing in the question bank, therefore, the Respondent No. 3 was left with no other option but to cancel the entire process in order to avoid any conflict of interest and with an even-handed aim of providing equal opportunity to all candidates de novo.

3. The learned counsel for the petitioner argued that due to sudden cancellation and scrapping of the earlier test and its result, the petitioner has suffered severe mental agony. No lawful justification has been brought on the record to cancel results of first test and calling upon the candidates to sit in retest. The learned counsel further argued that the cancellation of earlier test amounts to infringement of the petitioner’s fundamental rights enshrined under Article 18 of the Constitution. No name of any blood relation is mentioned in their reply nor the names of subject experts. Nothing communicated whether any inquiry was conducted by the Respondent No. 3. The learned counsel denied the possibility of any conflict of interest and in support of his contention; he referred to the case of Arpad Toth v. David Michael Jarman reported in [2006] EWCA Civ 1028.

4. To meet the objection with regard to maintainability of this petition, the learned counsel for the petitioner referred to the case of Darakhshan Jahan v. Province of Sindh (PLD 2011 Karachi 212). This case pertained to the appointment of Civil Judges/Judicial Magistrates. The grievance of the petitioner was that the duration of test written on question paper was 120 minutes but at the time of test only 60 minutes were given. The officer of NTS could not satisfy as to why pattern of paper with proportionate time duration was not adhered to. This Court had directed the MIT to provide an opportunity to the petitioners to appear and attend next preliminary test.

5. The learned Advocate General Sindh argued that there is no violation of any rules or law. The constitution petition is not maintainable keeping in view the bar contained under Article 199(5) of the Constitution of Islamic Republic of Pakistan. After scrapping of the first preliminary test without announcement of its official result, an opportunity was given to the petitioner to appear in the re-test like other candidates but she failed to appear. The test was scrapped obviously for the clear reason mentioned in the reply of Respondent No. 3 so there is no question of any violation or infringement of any fundamental rights of the petitioner nor has she been discriminated. An equal treatment was given to all such candidates who appeared in the first preliminary test but due to cancellation of the test and its result before its official announcement all such students without any reservation or objection participated in the retest and the result has already been announced. The learned Advocate General Sindh referred to an unreported judgment of the Hon’ble Supreme Court in the Civil Petition for Leave to Appeals Nos. 394-K and 395-K of 2010 (The Administrative Committee v. Mohammad Wasim Abid and others) and argued that keeping in view the dictum laid down in this case the petition is liable to be dismissed.

6. Mr. Mukesh Kumar G. Karara, learned counsel for Respondent No. 3 argued that no result was officially announced by the Respondent No. 3. It came into the knowledge through reliable sources that some blood relation candidates of the subject experts who contributed the questions for the question bank also appeared in the same preliminary test hence in order to maintain the transparency and fair play the test was scrapped with the permission of the competent authority which is in no way can be considered the violation of any fundamental rights of the petitioner who could appear in the retest but she decided not to opt this opportunity. He further contended that the petitioner has only attached the answer key and by her own proclaimed that she has obtained 62% marks but in reality there is no official result in field. The claim of certain percentage has otherwise no significance when the Respondent No. 3 with the permission of the competent authority already scrapped the entire preliminary test conducted on 07.04.2019. However, on 28.04.2019 the re-test was conducted and the official result of the candidates who appeared in the retest has already been announced and uploaded on the Respondent No. 3’s website. He further contended that since the paper was leaked before examination, therefore, it was the responsibility of Respondent No. 3 to conduct retest to maintain transparency in the test. In support of his contention, the learned counsel for Respondent No. 3 referred to 2005 SCMR 445 (Asdullah Mangi v. PIAC) and 2013 SCMR 264 (Sh. Muhammad Sadiq v. FPSC).

7. With our permission, the Respondent No. 2 had also addressed. He disclosed that for the first test, total 1283 candidates had applied out of which 1175 candidates were found eligible but in the examination only 1010 candidates appeared and 165 candidates were called absent. In the retest conducted on 28.04.2019, the competent authority only allowed those candidates to appear in the retest who had originally appeared in the first preliminary test. On 28.04.2019, out of 1010 candidates, 926 candidates appeared and only 132 candidates cleared the test whereas 794 candidates were failed and 84 candidates were absent. He presented this statistical data to dispel and dissipate the argument that to favour some persons the earlier result was scrapped. He further shown us an admit card issued to the petitioner for her appearance in the retest on 28.04.2019 but she did not appear in the retest. He also submitted some news clippings and orders of the Court to show that in case of leakage of paper the retest is conducted. He had also shown us some news clippings and argued that the petitioner is disseminating wrong news of Court proceedings and exploiting the situation with the claim that she is the only candidate who cleared the examination out of 1175 which is misconceived.

8. Heard the arguments. To begin with, we would like to concentrate and attend the question of maintainability of this petition first. The learned counsel for the petitioner referred to a case of Darakhshan Jahan v. Province of Sindh (PLD 2011 Karachi 212) in which one of us (Muhammad Ali Mazhar; J) held as under:

“28. The interpretation of Sub-Article (5) of Article 199 of the Constitution and scope of powers of this Court have already been dealt with and discussed in detail in the judgments pronounced by the Hon’ble Supreme Court mentioned supra, therefore, we are fortified by the aforesaid dictum and cannot issue any writ against the Provincial Selection Board, but at the same time, we are also fully cognizant to the fact that there is no question of issuing any writ is involved against the Respondent No. 2, who had neither compiled the question book nor decided the time period of 120 minutes but it is the responsibility of Respondent No. 4, who committed the mistake, therefore, in order to do substantial justice, we are convinced to at least allow all the petitioners and other candidates to appear in the preliminary test, except those, who have already been declared qualified for the second test.”

1. In the case of Sohail Ahmed v. Province of Sindh (2017 PLC (C.S.) 510), again one of us (Muhammad Ali Mazhar; J), referred to the apex Court’s judgment rendered in C.P. No. 03/2014 (Muhammad Akram v. Registrar, Islamabad High Court), in which the apex Court settled the law with regard to complexities of Article 199(5) of the Constitution of Pakistan and held that the provisions of Article 199(5) would bar a writ against a High Court if the issue is relatable to judicial order or judgment whereas a writ may lie against an administrative, consultative/executive order passed by the Chief Justice or the Administration Committee involving any violation of the Rules framed under Article 208 causing infringement of the fundamental rights of a citizen. The main emphasis in the judgment of the Hon’ble Supreme Court supra was based on the niceties and nitty-gritties of Article 208 of the Constitution in which the Supreme Court and the Federal Shariat Court with the approval of the President and the High Court with the approval of the Governor concerned may make rules providing for the appointments by the Court of officers and servants of the Court for their terms and conditions of employment. Obviously neither any questions of employment and implementation of the rules framed by the Sindh High Court Establishment under Article 208 of the Constitution are involved nor any officer of the Court or servant has filed this petition with regard to the terms and conditions of the employment but the premise of the constitution petition primarily relates to the non-announcement of official result and calling upon the candidates to appear in the retest. In the unreported judgment of apex Court in Civil Petition for Leave to Appeals Nos. 394-K and 395-K of 2010 (The Administrative Committee v. Mohammad Wasim Abid and others), the Honourable Supreme Court laid down as under:-

“To cut short we may observe that the Administrative Committee of the Sindh High Court had absolute discretion and vast powers to follow any equitable procedure or to lay down different criteria of passing marks in different tests, unless specifically provided under the relevant rules, which indeed shall have to be made applicable across the board to all the candidates and for such exercise of discretion no interference is called for before any fora. This being the position neither on legal plane nor on merits private Respondents could succeed before the High Court.

For the foregoing reasons, these Petitions for leave to appeal are converted into Appeals and allowed. Consequently, the impugned judgment of the High Court is set aside and two Petitions filed by the private Respondents are dismissed.”

1. Here we would like to elucidate and put in plain words that the challenge vide this petition is not against the decision of Administration Committee of Sindh High Court but the Respondent No. 3 simpliciter affirmed and self-confessed that on leakage of paper for the reasons mentioned in the comments, they scrapped the first preliminary test and its result with the permission of the competent authority means the honourable Chief Justice of this Court. The petitioner has not raised any issue nor challenged any decision of the Administrative Committee of the Sindh High Court but main challenge is against the Respondent No. 3. In the present set of circumstances, we are not persuaded to nonsuit the petitioner on the ground of maintainability without adverting to the merits and propriety of the decision of retest/retake.

2. The learned counsel for the petitioner relied on the case of Arpad Toth v. David Michael Jarman reported in [2006] EWCA Civ 1028. In this case, the Supreme Court of Judicature, Court of Appeal (Civil Division) (UK) was appealed against the judgment of Queen’s Bench Division, Oxford District Registry. The Supreme Court as a point of principle framed a question; “Does the presence of a conflict of interest automatically disqualify an expert?” The Court held that the key question is whether expert’s opinion is independent. It was further observed that expert’s expression of opinion must be independent of the parties and pressures of the litigation. It is the duty of an expert to help the Court on the matters and this duty overrides any obligation to the person from whom he has received instructions or by whom he is paid. The Supreme Court further held that while the expression of an independent opinion is necessary quality of expert evidence, it does not always follow that it is sufficient condition in itself. Where an expert has a material or significant conflict of interest, the Court is likely to decline to act on his evidence or indeed to give permission for his evidence to be adduced. This means it is important that a party who wishes to call an expert with a potential conflict of interest should disclose details of that conflict at as early a stage in the proceedings as possible. In our considerate view, the aforesaid judgment has no application or nexus with the present controversy. At this time the Court is not going to scrutinize the expert’s evidence of any witness where the question of any conflict of interest has arisen but the matter predominantly correlates to the leakage of paper before examination. The word ‘conflict of interest’ used in the comments of Respondent No. 3 does not insinuate or implicate any issue of conflict of interest in any expert’s evidence but in fact they have used the words frankly for the reason that some blood relatives of experts appeared in the examination without disclosure. The judgment cited by the learned counsel is neither advantageous nor attracted in this case.

13. Though the petitioner levelled various allegations that in order to accommodate some failed candidates the retest has been devised but in nutshell no such allegation has been substantiated nor anything was produced in support of allegations. The petitioner has also failed to demonstrate the violation of any fundamental rights. Article 18 envisages and envisions a right to enter upon any lawful profession or occupation and to conduct any lawful trade or business subject to the qualification as may be prescribed by law. Mere appearance in the preliminary test the result of which was not finally announced does not create any vested right in favour of the petitioner. After scrapping the first test, fair opportunity was afforded to all candidates to resit in the retest and the petitioner was also issued admit card but she failed to appear. The Respondent No. 3 highlighted the cause of scrapping the first preliminary test which seems to be quite reasonable and logical. There was no element of discrimination but a fair opportunity in a transparent manner was provided to all those candidates who appeared in the first preliminary test, therefore, the question of extending any undue favour to any candidate does not arise as the retest was unambiguously conducted only for the candidates who appeared in the first preliminary test only.

14. The petitioner had appeared for selection to the post of Additional District and Sessions Judge. Due to leakage of paper, the entire sacrosanctity and credibility of first preliminary test has become doubtful, dubious and contaminated. This impropriety and illegality cannot be ignored so the best way was to cancel the results of preliminary test in the larger interest of the entire judicial system of which this Court is custodian and guardian being apex Court of the province. Even a minute leakage of question paper would be sufficient to besmirch and taint the preliminary test and to go for a retest so as to achieve the ultimate object of fair and preeminent selection. Another facet also needs our attention that the petitioner has calculated her marks on the basis of answer key uploaded by the Respondent No. 3. The fact remains that no official result was announced and mere self-calculation by the petitioner of her own numbers does not justify to allow her to sit in the second written test likely to be held on 18th and 19th of May, 2019 without her participation in the retest. There was no bar or impediment for her not to opt the retest/retake examination but the petitioner herself failed to avail this fair equal opportunity. Allowing petitioner at this stage to sit in second written test without qualifying retest will amount sheer discrimination to those candidates who also sit in the preliminary test and after cancellation they again sit in retake without any demur, doubts or objections. Except the petitioner no other candidate has come up to challenge the cancellation of earlier test and holding of retest/retake.

15. The phenomenon of leakage of paper before examination and in such set of circumstances, decision to retest/retake by the authorities is not unique or novel. Following are some working examples in which the paper was leaked thereafter the concerned authorities decided to take retest/retake examinations and everybody sat without any reservation or objection:

1. Gulf News, April 1, 2018. UAE schools averted retake of CBSE exams. India’s CBSE (Central Board of Secondary Education) said all students would have to reappear for the Class 10 math’s and Class 12 economics exam after it emerged that exam papers had been leaked on WhatsApp.

2. Khaleej times.Com, March 29, 2018. More than 10,000 Indian students have to reappear in Class 10 mathematics and Class 12 economics examinations following a confirmation of question paper leaks by the Central Board of Secondary Education (CBSE), on Wednesday. (same as above)

3. Dunya News, 06th October, 2017. Lahore High Court directed to conduct a re-examination of medical entry test after finding evidence that its question paper was leaked. The Court conducted hearing over the petitions filed against the leakage of question paper.

4. BBC News, 13 October 2016. Some children had already seen 11-plus paper before sitting the exam. The mistake was spotted by girls retaking the English exam in Plymouth.

5. The Indian Express, March 29, 2018. CBSE Class, X, XII Papers leaked: Over 20 lakh Students have to retake exam, dates to be announced soon. Central Board of Secondary Education (CBSE) announced that re-examination will be conducted across the country for Class 10 Mathematics and Class 12 Economics papers.

6. The Supreme Court India dismissed a string of writ petitions filed in the wake of the recent event of the leakage of the Economics and Mathematics question papers for the class 12 and 10 CBSE examinations respectively. 16 lakh students appeared in the exam in 11 regions all over the country and abroad. A plea was taken by the petitioners that the decision of re-examination contradicts the test of proportionality and reasonableness. The bench remarked, “it is not a part of the jurisdiction of this Court to see if the paper was leaked...in writ jurisdiction, we cannot examine the impact of the leakage...this falls within the power of the authorities...” https://www.livelaw.in/sc-dismisses-petitions-relating-cbse-examination-paper-leak-retest/

7. Aljazeera, 20 Jun 2016. A total of 555,177 pupils will be re-sitting partial baccalaureate exams this week. More than half a million secondary school pupils are retaking their baccalaureate exams in Algeria after a major leak of the papers online earlier this month. Algerian authorities have decided to temporarily block several social media websites including Facebook and Twitter, starting on Sunday, to prevent further cheating.

8. Tribune, Karachi, October 30, 2012. Retakes scheduled after IoBM papers leaked. At least 160 students at the Institute of Business Management (IoBM) have been asked to retake an exam after the administration learnt that a question paper was leaked.

9. The Express Tribune Blogs. June 5, 2013. The British Council has announced “a breach of security”. Because of a few low cheats, all students will have to retake their Pakistan Studies and Islamiyat Papers in ten days time. The problem of leaks is not purely a Pakistani one. In places like Zimbabwe the main local examination board Zimansec has very little credibility due to rampant cheating. The only credible qualifications in Zimbabwe are those from the Cambridge International Examination Board. However, reputable examination boards can also face issues. For example, in April this year an A-level paper was leaked online in the UK. The CIE Board also faced some minor issues in Namibia recently.

10. The Daily Star, Bangladesh, August 16, 2018. The High Court cancelled the written examination held on April 21 last year for the recruitment of executive officer of Janata Bank for question paper leak. The writ petitioner prayed to cancel the examination and hold a retake. They said in the petition that the question papers of the examination were leaked before the exam.

11. Independent News for International Students. 29.3.2017. UK: Medical students to resit exams after online leak discovered. More than 250 final-year medical students from the University of Glasgow will have to retake their exams following a discovery exam details were leaked through social media, The Telegraph reports. https: //www.studyinternational.com/news/uk-medical-students

12. bdnews24.com. Bangladesh, 18 Feb., 2018. Government panel says SSC questions leaked, recommends test retaking. A government panel says it has found that the questions of the school-leaving SSC and equivalent exam have leaked and plans to file recommendations for retakes in some cases.

13. Supreme Court of India. Civil Appeals 5675-77/2007. (Chairman, All India Railway Rec. Board v. K. Shyam Kumar and others). Railway Board directed the Railway Recruitment Board to conduct retest for recruitment to Group-D posts for those candidates who had obtained minimum qualifying marks in the first written examination against which large scale irregularities were noticed including leakage of question papers. The Court maintained the decision of the Board for retest.

14. The aforesaid incidences of leakage of papers and decision of retest make evident that a large number of students had to sit in retake/retest. In India two million students had to sit in retest of two papers. The Supreme Court of India dismissed the petitions which were filed to challenge the decision of retake/retest. In our country the Cambridge students had to sit in retest of two subjects like other examples of Lahore High Court orders for retest in the medical entry test and retest/retake announced by Institute of Business Management. The right which is foundation of an application under Article 199 of the Constitution is a personal. The legal right may be a statutory right or a right recognized by law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence to give jurisdiction to this Court in the matter. The object of the proceeding initiated under Article 199 of the Constitution of Islamic Republic of Pakistan is the enforcement of a right and not the establishment of legal right and therefore, the right of petitioner must not only be clear and complete but simplicitor and there must be an actual infringement of the right. Ref: Asdullah Mangi v. PIAC (2005 SCMR 445), 17. A vested right is free from contingencies but not in the sense that it is exercisable anywhere and at any moment. There must always be occasions at which and circumstances under which the right may be exercised. Such rights have peculiar characteristics of their own. Here the petitioner has failed to rationalize any vested right and its violation. So far as plea of discrimination, it always involves an element of unfairness and bias. The factum of bias could not be substantiated without any convincing evidence which the petitioner has failed to bring in this case. A Court of Law cannot exercise unfettered or unrestricted powers to administer equity not based on justiciable foundation but it must be satisfied before exercising its power that some illegal wrong has been inflicted or is about to be inflicted.

15. A standard of unreasonableness used in assessing an application for judicial review in Wednesbury Corporation case which means a reasoning or decision unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223). The test is a different (and stricter) test than merely showing that the decision was unreasonable. https://uk.practicallaw.thomsonreuters.com. In the test of proportionality, the Courts may quash exercise of discretionary powers in which there is no reasonable relation between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior Courts are wholly out of proportion to the relevant misconduct. So the administrative action which arbitrarily discriminates will be quashed by the Court. The implication of the principle of proportionality is that the Court will weigh for itself the advantages and disadvantages of an administrative action and such an action will be upheld as valid if and only if the balance is advantageous. If this action is disproportionate to the mischief then it will be quashed. https://www.lawteacher.net/free-law-essays. The Supreme Court of India in Civil Appeals Nos. 5675-5677/2007, Chairman, All India Railway Rec. Board v. K. Shyam Kumar and others have discussed the principle of Wednesbury and Proportionality in the following terms:

“36. Wednesbury and Proportionality - Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the Courts to ‘assess the balance or equation’ struck by the decision-maker. Proportionality test in some jurisdictions is also described as the “least injurious means” or “minimal impairment” test so as to safeguard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straight jacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognize the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a state burial, with full honours is surely not to happen in the near future.

1. Proportionality requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. The Court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, i.e. well balanced and harmonious, to this extent Court may indulge in a merit review and if the Court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the Court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere”.

2. The menace of leakage of paper is cancerous to our education system and all selection process. If it is allowed to be rampant, the merit and excellence in all fields and traits would be seriously smashed up and destructed. In such situation, most deserving candidates legitimately expecting their selections on merits in the competitive process will be deprived. At least in the selection process of this High Court Establishment, all best possible efforts should be made to avoid this disorder and upheaval in future. The Respondent No. 3 (Sukkur I.B.A Testing Service) is directed to maintain strict secrecy and confidentiality of test papers in future if engaged for similar task and they will also structure a foolproof

mechanism and system to ensure that the examiners/paper setters should make disclosure of any conflict of interest beforehand (which is in fact had become cause of leakage of paper in the ADJ selection process of this Court) and if any next of kin/blood relative of any examiner/paper setter will apply to join the selection process and sit in the preliminary test and written test then the question paper contributed by any such examiner/paper setter shall be outrightly excluded from consideration.

20. Keeping in mind the principle of judicial review, we have examined and reached to the finale that the decision taken for the retest was proportionate, well balanced and harmonious and it does not stand to reason to interfere. No vested right created in favour of the petitioner. No privilege or benefit can be claimed by the petitioner on the basis of alleged marks secured in the tainted process which has lost its neutrality. The principle of Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Whereas proportionality requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. In all attending circumstances, we do not find any illegality and impropriety in the decision taken for retest.

1. In the wake of above discussion, the petition is dismissed in limine along with pending application.

(Y.A.) Petition dismissed

PLJ 2022 Karachi 90 (DB)

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

SIBTE ZAHID NAQVI--Petitioner

versus

DIRECTOR COORDINATION FOR ADMINISTRATOR KMC--Respondent

C.P. No. D-252 of 2012 and C.M.A. No. 2232 of 2020 decided on 4.6.2021.

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

----Art. 87--Issuance of certified copies without name and designation of issuing authority--Violation of elementary legal--Obligation of authorized officer--Direction to--A certified copy is a copy that evinces ratification or countersignature as certificate that it is a true copy of a document and or record of judicial proceedings which denotes and connotes that document that has been verified after original document has been sighted by an officer authorized under law to certify it--Officers authorized under law to certify document do not adhere to elementary legal obligation and they consistently or as a routine matter omit to mention their names and designations while certifying true copies of documents which tendency should be discontinued immediately--We appreciate efforts of petitioner who in person brought an important issue for resolution and also reported defilement of relevant rules applicable for issuing certified true copies by Courts in province of Sindh--In wake of above discussion, we direct Registrar of this Court to ensure, that no certified copy shall be issued in violation of Article 87 of Qanun-e-Shahadat Order, 1984 and enabling Rules in this Court and simultaneously, all District! and Sessions Judges and Presiding officers of all Special Courts/Tribunals in province of Sindh shall also ensure strict compliance of this order--Registrar of Sindh High Court is directed to transmit copy of this order to all District and Sessions Judges and Presiding Officers of Special Courts/Tribunals in province of Sindh for compliance--Petition was disposed of. [Pp. 96 & 97] B, C, D & E

PLD 2015 SC 380 ref.

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

----Art. 87--Certification of true copy--Every public officer while certifying any public documents shall give that person on demand a copy of it on payment of legal fees together with a certificate written at foot of such copy that it is a true copy of such document and such certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed. [P. 95] A

Petitioner present in person.

Mr. Khursheed Jawed, Advocate for KDA.

Mr. Abdul Razzaq, Registrar of Sindh High Court.

Ms. Leela Kalpana Devi, Addl. A.G. Sindh.

Date of hearing: 4.6.2021.

Order

Muhammad Ali Mazhar, J.--During pendency of some interlocutory applications including a Review Application, the petitioner has filed this application in larger public interest with the narrative that it has become a usual practice in Courts for last many years that the person signing the certified copy do not mention his name and designation to establish his authority for issuance of certified copy which is violation of Article 87 of Qanun-e-Shahadat Order, 1984. In order to establish this irregularity rather violation of law, he also produced a certified copy of the order dated 17.12.2019 to show that it was signed by a person without disclosing his name and designation as certifying officer. He relied on PLD 1975 Karachi 352 (Mohammad Usman vs. Lal Mohammad and others) in which the Court held that Exh. 49 is not a certified copy within the meaning of Section 76. This section requires that only the public officer having the custody of a public document may give a certified copy and it must then be dated and subscribed by such officer with his name and official title. The Court further held that Exh.49 although it does bear a signature does not purport to indicate the designation of the person who has put the signature, much less that he was such a public officer as is contemplated by Section 76. He further relied on PLD 2015 S.C. 380 (Government of Sindh vs. Muhammad Shafi & others wherein the Apex Court reiterated the settled principle of law that where law requires an act to be done in a particular manner, it has to be done accordingly and not otherwise. The petitioner further articulated that the requirements as envisaged under the Law to issue certified copy are necessary to be fulfilled and implemented in its letter and spirit hence the matter requires immediate action in the public interest.

1. In order to thrash out the matter in its right perspective, we asked the learned Registrar of this Court to provide assistance and we also surveyed relevant provisions of law applicable for issuing or granting certified true copies. For the ease of reference, following provisions are reproduced as under:

Relevant Articles of Qanun-e-Shahadat Order, 1984

1. Public documents.--The following documents are public documents:--

(1) documents forming the acts or records of the acts:

(i) of the sovereign authority;

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, Judicial and executive of any part of Pakistan or of a foreign country.

(2) public records kept in Pakistan of private documents.

(3) documents forming part of the records of judicial proceedings;

(4) documents required to be maintained by a public servant under any law; and

(5) registered documents the execution whereof is not disputed.

1. Private documents.--All other documents are private.

2. Certified copies of public documents.--Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies. [Emphasis applied]

Explanation: Any officer, who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Article.

1. Presumption as to genuineness of certified copies.--(1) The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Federal Government or a Provincial Government to be genuine:

Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

(2) The Court shall also presume that any officer by whom any such document purports to be signed or certified, held when he signed it, the official character which he claims in such document.

1. Presumption as to documents produced as record of evidence.--Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, the Court shall presume:

that the document is genuine that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it are true and that such evidence, statement or confession was duly taken.

Sindh Chief Court Rules (A.S)

1. Copies how certified.--Certified copies shall be endorsed with the following particulars:-

(1) the date of application for the copy;

(2) the date of estimate of fees;

(3) the date of deposit of estimated fees and the date of supply of stamp;

(4) the date of certification by the Sheristedar;

(5) the date of delivery of the copy .

They shall be certified at the foot to be a “true copy”, shall bear the seal of the Court on each page, and shall be dated and subscribed in full with his name and official title by the Sheristedar. The certifying officer shall initial every alteration and interlineations in the copy.

Sindh Civil Courts Rules

1. Preparation of copies not commenced until prescribed fees deposited. (1) No copy or translation shall be commenced until the estimated amount of the copying and comparing fees and, as the case may be, translation fee, when leviable, have been deposited with the Record Keeper: Provided that the Judge may sanction the preparation of copies or translations costs of which are to be recovered by value payable post.

(2) If the estimated amount of fees and, in the case of a certified copy, also the requisite stamp is not deposited within seven days from the date of the communication under sub-rule (I) of Rule 323 to the applicant, the application shall be rejected and note to that effect made in Column No. 24 of the Register of Applications for Copies and Translations.

1. Copies how certified.--Certified copies shall be endorsed with the following particulars:-

(1) The date of application for the copy;

(2) the date of estimate of fees;

(3) the date of deposit of estimated fees and the date, of supply of stamp;

(4) the date of certification by the chief ministerial officer; and

(5) the date of delivery of the copy.

They shall be certified at the foot to be a “true copy” shall bear the seal of the Court on each page, and shall be dated and subscribed in full with his name and official title by the chief ministerial officer of the Court. The certifying officer shall initial every alteration and interlineation in the copy. [Emphasis applied]

3. On 26th October 1984, Qanun-e-Shahadat Order, 1984 was promulgated to revise, amend and consolidate the law of evidence as to bring it in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah. Article 166 of this Order repealed the Evidence Act, 1872. Section 76 of the repealed Evidence Act and Article 87 of the Qanun-e-Shahadat Order, 1984 are pari materia with almost invariable niceties converging much prominence that every public officer while certifying any public] documents shall give that person on demand a copy of it on payment of the legal fees together with a certificate written at the foot of such copy that it is a true copy of such document and such certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed.

1. The public documents and private documents have been defined under Articles 85 and 86 of Qanun-e-Shahadat Order, 1984. The definition of public document includes the record of official bodies and tribunals and documents forming part of the records of judicial proceedings and documents required to be maintained by a public servant under any law. Under Article 90 much sanctity attached to the presumption as to genuineness of certified copies provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified, held when he signed it, the official character which he claims in such document. Even under Rule 133 of Sindh Chief Court Rules (A.S), the particulars to be endorsed on certified true copies are provided with clear condition that it shall be certified at the foot to be a “true copy”, shall bear the seal of the Court on each page, and shall be dated and subscribed in full with his name and official title by the Sheristedar. The certifying officer shall initial every alteration and interlineations in the copy. In tandem, Rule 329 of Sindh Civil Courts Rules, also explicates the manner in which copies are to be certified with certain particulars with the same condition that it should be certified at the foot to be a “true copy,” shall bear the seal of the Court on each page, and shall be dated and subscribed in full with his name and official title by the chief ministerial officer of the Court and the certifying officer shall initial every alteration and interlineation in the copy.

5. A certified copy is a copy that evinces ratification or countersignature as certificate that it is a true copy of a document and or record of judicial proceedings which denotes and connotes that document that has been verified after the original document has been sighted by an officer authorized under the law to certify it. Bearing in mind the cited rules, it is de rigueur rather an inescapable responsibility of every authorized officer to make sure that the copy should be certified at the foot to be a “true copy,” and it shall also bear the seal of the Court on each page with the date and subscribed by such officer with his name and official title with official seal. The precautionary measures provided for issuing certified true copy are in the larger public interest to avoid or rule out any interpolation, forgery or manipulation in the record. Every such officer is bound to comply with all requisite formalities as envisioned under the aforesaid law and rules without any violation or lethargic or reckless attitude and he must owe and take the responsibility of the certified document to be true copy with disclosure of his own identity as required under the law which is lacking prima facie. We very often observed in many certified true copies that the officers authorized under the law to certify the document do not adhere to the elementary legal obligation and they consistently or as a routine matter omit to mention their names and designations while certifying the true copies of documents which tendency should be discontinued immediately.

6. In the end, we appreciate the efforts of Mr. Sibte Zahid Naqvi (petitioner) who in person brought an important issue for resolution and also reported the defilement of relevant rules applicable for issuing certified true copies by the Courts in the province of Sindh. In unison, the effort made by Mr. Abdul Razzaq, learned Registrar of this Court for providing assistance to us is also commendable.

7. In the wake of above discussion, we direct the learned Registrar of this Court to ensure, that no certified copy shall be issued in violation of Article 87 of Qanun-e-Shahadat Order, 1984 and enabling Rules in this Court and simultaneously, all District and Sessions Judges and Presiding officers of all Special Courts/Tribunals in the province of Sindh shall also ensure strict compliance of this order. The Registrar of Sindh High Court is directed to transmit the copy of this order to all District and Sessions Judges and Presiding Officers of Special Courts/Tribunals in the province of Sindh for compliance.

(Y.A.) Petition disposed of

PLJ 2022 Karachi 97 (DB)

Present: Salahuddin Panhwar and Shamsuddin Abbasi, JJ.

DUA FATIMA and another--Petitioners

versus

HOME DEPARTMENT through Secretary Sindh and others--Respondents

C.P. No. D-5270 of 2019, decided on 20.9.2019.

Constitution of Pakistan--

----Art. 199--Quashment of FIR--Petitioner was contracted marriage on her free will--Lodging of FIR--Parents of petitioner were attacked on house of petitioner's husband--Recording of statement of petitioner--Negation of allegation of FIR--Legal protection--Direction to--Owing to statement of star Petitioner No. 1 abductee in FIR, version of FIR stands negated further proceedings would be nothing except abuse of process of law, same are quashed with further directions to official respondents that they shall ensure legal protection to petitioners and shall submit report before Lady Magistrate--In case Magistrate apprehends or suspects that Petitioner No--1 is not comfortable, then Judicial Magistrate would be competent to appoint any lady advocate or herself visit house of petitioner--If circumstances so demands, Magistrate shall act accordingly thereby taking all available legal measures with regard to safety and proper maintenance of Petitioner No. 1--Needless to mention that Police SHO shall ensure that law order situation is maintained by both parties--Petition disposed of.

[Pp. 98 & 99] A, B & C

Mr. Imdad Ali Channa, Advocate for Petitioners along with Petitioners.

Mr. Mukesh Kumar G. Karara, Advocate for Respondent No. 7.

Mr. Hakim Ali Shaikh, Additional Advocate-General Sindh.

Mr. Hussain Bux Baloch, Deputy Prosecutor General along with SIP.

Date of hearing: 20.9.2019.

Order

Salahuddin Panhwar, J.--The Investigating Officer has recorded the statement of Petitioner No. 1 [Dua Fatima], who is present in Court, contends that she has contracted marriage with Petitioner No. 2 [Afaq Ali Bhatti] on her freewill and choice without any pressure or coercive and they are passing their matrimonial affairs happily together.

1. Admittedly, Petitioner No. 1 was 'Hindu' and she has impressed Islam as well. On account of this, her parents were antagonized and they have lodged false and fabricated FIR; also attacked the house of her husband and family members were beaten, whereas, learned counsel for respondent [parents] apprehends that in case, if any dispute or divorce, arises between the petitioners in future, she will not be in a position to live independently without the support of any male member; that parents are always in accepting her decision of changing religion and that of contracting marriage on her own free will and choice though they, being sui juris, are competent to do contract/marriage. According to him that on any account, if Petitioner No. 2 does not support to Petitioner No. 1 then who will be the responsible to look after her?

2. Petitioner No. 2 (husband), who is present in the Court, undertakes that he will not object with regard to her visitation with her parents as well; that he will ensure her regular study and job if she intends to do so.

3. Since, owing to the statement of star Petitioner No. 1 [Dua Fatima, alleged abductee in FIR], the version (allegation) of FIR stands negated hence further proceedings would be nothing except abuse of the process of law, hence same are quashed with further directions to official respondents that they shall ensure legal protection to the petitioners and shall submit report before the Lady Magistrate/Judicial Judge Sukkur City, who shall ensure that--

(i) That Petitioner No. 1 is safe and as well shall examine that there is not a single circumstance or disturbance.

(ii) That Petitioner No. 1 is regularly studying, if she otherwise stops studying herself.

(iii) That ensure Petitioner No. 2 is looking after Petitioner No. 1 who, being husband, is now completely responsible to take care of all her needs, including education.

(iv) That Petitioner No. 2 at this juncture, contends that besides his studies, he is running his business of Cars, therefore, he is able to bear all expenses of Petitioner No. 1.

In case learned Magistrate apprehends or suspects that Petitioner No. 1 is not comfortable, then Judicial Magistrate would be competent to appoint any lady advocate or herself visit the house of the petitioner so as to verify that she (Petitioner No. 1) is not a victim of any act or omission which is, otherwise, cognizable within the meaning of domestic violence Act. If circumstances so demands, the Magistrate shall act accordingly thereby taking all available legal measures with regard to safety and proper maintenance of the Petitioner No. 1. Needless to mention that Police SHO shall ensure that law order situation is maintained by both the parties.

Accordingly, instant petition is disposed of in the above terms.

(Y.A.) Petition disposed of

PLJ 2022 Karachi 99 (DB)

Present: Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ.

Mst. ASMA NADEEM--Petitioner

versus

FEDERATION OF PAKISTAN and 5 others--Respondents

Const. P. No. 2296 of 2015, decided on 13.4.2021.

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

----S. 491--Constitution of Pakistan, 1973, Art. 199--Security of person--Missing persons--Pakistan might be a party to UN conventions concerning enforced disappearance--Duty of State--No legislation has been passed to deal with enforced disappearance--Right to life is most precious of all fundamental rights of the citizens protected by the constitution and it is the duty of the State to ensure that such rights are protected--Pakistan is a democratic country which is governed by the constitution, 1973 which is also blended with Islamic provisions which absolutely prohibits such illegal action--Onus rests on the Federal Government to put an end to such illegal practices which cause nothing but heartburn and misery to the citizens whose loved ones have gone missing in some cases for years on end--Such practices greatly undermine the rule of law and the people confidence in the state to ensure their constitutional guarantees. [Pp. 102] A, B, C & D

Ch. Waseem Akhtar, Assistant Attorney General.

Mr. Talib Ali Memon, A.P.G.

Mr. Shamsher A. Khan Azeemi for Rangers.

Mr. Muhammad Khan Soomro, Addl. Secretary, Home Department.

Mr. Sajjad Ahmed, Law Officer, Rangers.

S.P. Shehla Qureshi.

D.S.P. Naeem.

Date of heriang: 13.4.2021.

Order

Mohammad Karim Khan Agha, J.--Order dated 10.03.2021 is reproduced as under:--

"Petitioner appears to be disturbed. Reports are submitted by the I.O. as well as by the Home Department. Once again, it is observed that such reports are stereotype and without any substance. It is very unfortunate that since 2015, yet I.O. has failed to collect reports from Internment Centres. Assistant Attorney General also appears to be helpless in collecting reports from the Internment Centres. It is ordered that Secretary, Ministry of Interior, Government of Pakistan, shall collect such reports from the concerned quarters and submit the same on the next date, else appropriate orders shall be passed. Adjourned to 13.04.2021. In the meanwhile, JIT and PTF sessions are ordered to be repeated. Let copy of the order be sent to Secretary, Ministry of Interior, Government of Pakistan by fax for compliance.

Pursuant to the aforesaid order a further enquiry report has been submitted which is once again stereotype in nature and is thus rejected. The PTF held its meeting on 05.03.2021 and has made recommendations for the recovery of the missing person which recommendations shall be carried out by the I.O. who shall file a detailed progress report on the next date of hearing.

The order reproduced above reveals that it was ordered that the Secretary, Ministry of Interior, Government of Pakistan shall collect such reports from the concerned quarters and submit the same on the next date of hearing, else appropriate orders shall be passed. When confronted by this Court as to where these reports were available, the learned D.A.G. candidly conceded that he had not received the reports from the Secretary, Ministry of Interior.

Under these circumstances we are left with no other option than to issue Show Cause Notice to the Secretary, Ministry of Interior, Government of Pakistan as to why he should not be proceeded with for Contempt of Court for violation of this Court's order dated 10.03.2021 and also violation of many other orders of this Court where he had been directed to produce list of Internment Centres in KPK as well as names of detainees so that this Court could identify if any person is held in the Internment Centers who was a missing person before this Court.

On the next date of hearing, Secretary Ministry of Interior, Government of Pakistan shall be present in person and produce his reply of Show Cause Notice as well as list of all the Internment Centres in KPK along with names of the persons held in Internment Centres so that Government of Sindh can identify whether any of those persons are missing persons whose cases are before this Court.

A copy of this order shall be sent by fax to Secretary, Ministry of Interior, Government of Pakistan for compliance. If Secretary, Ministry of Interior, Government of Pakistan fails to appear in person and without reply to Show Cause Notice, this Court might pass necessary orders against him for non-compliance of the orders of this Court.

We understand that Pakistan might be a party to some UN Conventions concerning enforced disappearance. Under these circumstances, Secretary Human Rights Ministry, Government of Pakistan shall appear in person on the next date of hearing and inform this Court; (a) if Pakistan is a party to any UN Convention concerning enforced disappearances or any other such Convention, (b) what reports, if any, it has filed in this regard to the UN Human Rights Committee concerning enforced disappearance or any other body, (c) apart from Human Rights Commission of Pakistan whether there are any other bodies/institutions under the Government's control dealing with Human rights. A copy of this order shall also be sent by facsimile to Secretary Human Rights, Government of Pakistan for compliance.

Once again we express our disappointment that no legislation has been passed to deal with enforced disappearance which we believe most of the political parties would be agreeable to as one day either they or their relatives might be involved in this type of incident especially as such legislation would be for the welfare of their constituents. Even if appropriate legislation cannot be passed, the Government has in recent times been legislating liberally through Presidential Ordinance on lesser matters of importance and hence an appropriate Ordinance could be passed.

The right to life is the most precious of all fundamental rights of the citizens protected by the Constitution and it is the duty of the State to ensure that such rights are protected (namely the practice of missing persons/enforced disappearance is put an end to) as Pakistan is a democratic country which is governed by the 1973 Constitution which is also blended with Islamic provisions which absolutely prohibits such illegal actions. It is the duty of the State to protect its citizens and we firmly believe that the State has the power and ability to prevent such practices as missing persons/enforced disappearances and to pass appropriate legislation to this effect. We make it clear that under no circumstances should the Islamic Republic of Pakistan descend to position of some countries in Latin America in the 1970's and 1980's where people were regularly forcibly disappeared by the State apparatus. Such practice is prohibited by our Constitution which protects its citizens against such illegal actions and we make it clear that the onus rests on the Federal Government to put an end to such illegal practices which cause nothing but heartburn and misery to the citizens whose loved ones have gone missing in some cases for years on

end Such practices greatly undermine the rule of law and the peoples confidence in the state to ensure their constitutional guarantees.

A copy of this order shall also be sent to the Attorney General of Pakistan for information.

(K.Q.B.) Order accordingly

PLJ 2022 Karachi 103 (DB)

Present: Muhammad Junaid Ghaffar and Agha Faisal, JJ.

UNITED BANK LIMITED--Petitioner

versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION, KARACHI and others--Respondents

C.P. Nos. D-5128, 4091, 4620, 4621, 4829, 4924, 4925, 4926 & 5364 and C.M.A No. 21856 of 2022, decided on 3.10.2022.

Constitution of Pakistan, 1973--

----Art. 199--Industrial Relations Act, 2012, S. 58--Pendency of appeals in NIRC--Bench of NIRC was non-functional--No denial of right of appeal--Jurisdiction--Petitioner's Appeals were pending before Full Bench of NIRC, which presently is non-functional, whereas, some coercive measures have been adopted against Petitioners for implementation of order(s) in question--At least right of one appeal cannot be denied to an aggrieved person, whereas, refusal to grant an injunctive order would amount to upholding decision of recovery as well reinstatement as case may be--Any order which has not passed test or examination by at least one Appellate forum, ought not to be implemented in haste, when law by itself has provided an appeal against such an order--Apparently petitioners are not at fault-- Propriety demands that Single Member, NIRC, should have shown restraint till such time Appeals or for that matter, injunction applications of Petitioners are decided finally--Full Bench of NIRC at Karachi is non-functional; secondly, very act of Single Bench, NIRC, for implementation of its orders is without jurisdiction, and a petition would be competent--Petitions allowed.

[P. 104 & 105] A, B, C, D & E

Mr. Faisal Mehmood Ghani, Advocate, Mr. Asim Iqbal, Advocate, Mr. Faiz Durrani, Advocate, Mr. Ghulam Muhammad, Advocate, Mr. Sohail Thahrani, Advocate, Barrister Ghazi Khan Khalil, Advocate, Mr. Amer Nosherwan, Senior Legal Council and Mr. Bilal Farooq Alvi, Advocate for Petitioners.

Mr. Abdul Rauf, Advocate, Mr. M. Arshad Khan, Advocate, Mr. Ali Akbar Leghari, Advocate, Mr. Abdul Rauf, Advocate, Mr. Waqar Ahmed, Advocate, Ms. Shahnaz Anila in person, Mr. Yasir Ahmed Shah, Assistant Attorney General for Respondents.

Date of hearing: 3.10.2022.

Order

Mr. Wasim Ahmed Memon Advocate files Vakalatnama on behalf of Respondent No. 1 in CP No. D-4620 of 2022 and Mr. Ali Akbar Leghari Advocate files Vakalatnama on behalf of Respondent No. 1 in CP No. D-5128 of 2022 which are taken on record.

In all these petitions the only controversy involved is that whether the Single Member Bench of National Industrial Relations Commission ("NIRC"), can proceed to execute its orders on the complaint of private respondents, notwithstanding the fact that the Full Bench of NIRC, at Karachi, before whom the Appeal(s) of the petitioners against such order(s) are pending is presently non-functional.

We have heard all learned Counsel for the petitioners as well as respondents. Admittedly, under Section 58 of the Industrial Relations Act, 2012, a statutory appeal is provided against the orders of Single Member Bench of NIRC, whereas, admittedly the petitioner's Appeals are pending before a Full Bench of NIRC, at Karachi, which presently is non-functional, whereas, some coercive measures have been adopted against the Petitioners for implementation of the order(s) in question. In that case, to our understanding, the Single Member Bench of NIRC ought to have restrained itself from proceeding further on the complaints of private Respondents for executing its own orders when admittedly, Full Bench of NIRC, at Karachi, was not functional.

Per settled law, at least right of one appeal cannot be denied to an aggrieved person, whereas, refusal to grant an injunctive order would amount to upholding the decision of recovery as well reinstatement as the case may be.[1] Per settled law, access to justice is a fundamental right and the essential feature of this right is the determination of grievance or dispute by an independent forum.[2] It is further settled that an assessee is entitled to adjudication in respect of his dispute regarding tax liability by at least one independent forum outside the hierarchy of the department.[3] Reliance may also be placed on the case of Flying Kraft Paper.[4]

To sum up, it is the consistent view of the Courts that any order which has not passed the test or examination by at least one higher/Appellate forum, ought not to be implemented in haste, when law by itself has provided an appeal against such an order. In the present case apparently the petitioners are not at fault. They have filed their Appeals impugning the order of Single Bench which are to be heard and decided by a full Bench of NIRC, at Karachi, which as informed is presently non-functional. The default, if any, is on the part of the State/Federation who has to act swiftly in making requisite appointments and during the interregnum, it can't be justified that orders passed by Single Member, NIRC are implemented; and that too by the same Member, by way of coercive measures including threats and issuing warrants against the officers of the Petitioners. Propriety demands that Single Member, NIRC, should have shown restraint till such time the Appeals or for that matter, injunction applications of the Petitioners are decided finally. Any expediency or haste in implementation of such orders would be against the norms of justice as in case they are overturned by the full Bench subsequently, then the harm caused would be irreparable and for that at least the present petitioners are not at fault.

Lastly, as to entertaining these petitions during pendency of Appeals before full Bench of NIRC, it would suffice to observe that firstly the full Bench of NIRC at Karachi is non-functional; secondly, the very act of Single Bench, NIRC, for implementation of its orders is without jurisdiction, and therefore a petition would be competent as held in Malik Nazar Hussain.[5]

In view of hereinabove facts and circumstances, all these petitions are allowed/disposed of with directions to the Full Bench of NIRC, at Karachi, (as and when it becomes functional), to decide the pending Appeals or stay applications filed by the petitioners, as the case may be, within a period of sixty (60) days from the date of constitution of such full Bench. Till such time this exercise is carried out by the full Bench at Karachi, no coercive measures shall be adopted against the petitioners for implementation of order(s) passed by the Single Bench, NIRC.

Let copy of this order be issued to the Registrar, NIRC, Karachi, for information, compliance and circulation amongst all members of NIRC. Office shall also place copy of this order in connected matters.

(Y.A.) Petition allowed

[1]. Pak Gulf Construction Limited v. Commissioner Inland Revenue (2016 PTD 1061).

[2]. Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445).

[3]. Z.N.Exports (Pvt) Limited v. Collector of Sales Tax (2003 PTD 1746).

[4]. 1998 SCMR 1041.

[5]. 2003 PLC 405.

PLJ 2022 Karachi 106

Present: Adnan Iqbal Chaudhry, J.

ENGRO FOODS LTD. through General Manager--Petitioner

versus

REGISTRAR OF TRADE UNION HYDERABAD REGION and 5 others--Respondents

C.P. No. S-646 of 2014, decided on 18.8.2022.

Sindh Industrial Relation Act, 2013 (XXIX of 2013)--

----Ss. 12 & 24--Industrial Relations Act, 2012, Ss. 2(x)(xxxiii), 9 & 10--Constitution of Pakistan, 1973, Art. 199--Formation of trade union--Representation for cancellation of registration of union--Trans Provincial Establishment--Trans Provincial Certificate--Certificates manifest that Petitioner was recognized as a trans-provincial establishment by Registrar trade unions under IRA--Registration certificate issued to Respondent No. 2 as trade union under SIRA stands overridden or superseded by subsequent certificate issued under sections 9 and 10 of IRA, and former certificate has no further legal effect--Proceedings pending before Registrar under Section 24 of SIRA to determine a CBA in relation to Petitioner's establishment, also abate. The Registrar of trade unions under SIRA shall amend his register accordingly--Petition allowed.

[P. 112] D, E & F

Sindh Industrial Relation Act, 2013 (XXIX of 2013)--

----S. 2(ix)--Industrial Relations Act, 2012, S. 2(x)--Establishment--Mean any office, firm, factory, society, undertaking, company, shop, or enterprise A which employees workmen "directly or through a contractor" for purpose of carrying on business or industry.

[P. 110] A

Sindh Industrial Relation Act, 2013 (XXIX of 2013)--

----S. 2(xxxii)--Industrial Relations Act, 2012, S. 2(xxxiii)--Worker--'Worker' and 'workman' as a person who is employed in an establishment or B industry "either directly or through a contractor. [P. 110] B

Sindh Industrial Relation Act, 2013 (XXIX of 2013)--

----S. 2(xxxii)--Trans Provincial--"Any establishment, group of establishments, industry, having its branches in more than one province". [P. 111] C

Mr. Faisal Mahmood Ghani, Advocate for Petitioner.

Nemo for Respondents Nos. 1 & 4.

Mr. Jamshed Ahmed Faiz, Advocate Respondent No. 2.

Ch. Azhar Elahi, Advocate for Respondents Nos. 3 & 5.

Mr. Ayaz Ali Rajpar, Assistant Advocate General Sindh for Respondent No. 6.

Dates of hearing: 25.10.2021 & 4.11.2021.

Judgment

Adnan Iqbal Chaudhry J.--The Petitioner, Engro Foods Limited, claims to have factories at Sukkur and Sahiwal and its head office at Karachi. As part of its dairy business, the Petitioner also has a dairy farm at Deh Gandaho, Tehsil Salehpat, Sukkur. The workers at the dairy farm formed a trade union under the name and style 'Engro Dairy Farm Mazdoor Union Nara' (Respondent No. 2), which was then registered by the Registrar trade unions, Hyderabad Region (Respondent No. 1) under the Sindh Industrial Relations Act, 2013 [SIRA] vide registration certificate dated 11.03.2014.

1. The Petitioner made a representation dated 26.03.2014 to the Registrar trade unions for making a complaint to the Labour Court under Section 12 of the SIRA for cancelling the registration of the Respondent No. 2 on the ground that it was obtained by misrepresentation and was contrary to the provisions of the SIRA.

That request was denied by the Registrar by letter dated 07-08-2014. In the meanwhile, the Respondent No. 2 applied to the Registrar under Section 24 of the SIRA for certificate of a Collective Bargaining Agent [CBA]; hence the petition.

1. The memo. of petition contended that workers at the dairy farm were not the Petitioner's employees, rather they were employees of third-party contractors (Respondents 3 to 5) to whom the Petitioner had outsourced workforce for the farm; that in any case, majority of the members of the Respondent No. 2 were not even workers at the farm; and that some of them were already members of a trade union of the labour contractor's establishment. It was pleaded that since the Respondent No. 2 had now applied under Section 24 of the SIRA for certificate of a CBA for the Petitioner's establishment, a right had accrued to the Petitioner to question the registration of the Respondent No. 2. The prayer in the petition was as follows:

"(a) Registration Certificate by the Respondent No. 1 is in violation of law, hence liable to be set-aside;

(b) Order for the cancellation of registration of Respondent No. 2 having been registered in contravention to law;

(c) In the alternative, the Respondent No. 1 apply to the Labour Court of competent jurisdiction for orders of cancellation of the said Union on the ground that the same stood registered in violation to law;

(d) That further in the alternative, the Respondent No. 2 be directed to amend its constitution and deleting the name of "Engro" and "Engro Dairy Farm" as employer and instead adding the name of Respondents No. 3 to 5 as employer; and further Respondent No. 1 be directed to make necessary amendments in the records along with amendment in the Registration Certificate (Annexure C);

(e) It is further prayed that proceedings for determination of Collective Bargaining Agent may kindly be stayed as per law laid down by the Hon'ble High Court in the case reported as 2010 PLC 148 cited here-above.

(f) To grant such further and or appropriate relief as the Hon'ble Court may deem fit under the circumstances."

1. By an interim order dated 20-08-2014, this Court restrained the Registrar from issuing a CBA certificate to the Respondent No. 2.

2. The reply of the Respondent No. 2 was, that in law the workers employed at the Petitioner's farm through a labour contractor were nonetheless employees of the Petitioner; that as an employer, the Petitioner had no locus standi to challenge a trade union's registration; that in any case, an alternate remedy was available to the Petitioner in Section 43 of the SIRA; that the allegation that some members of the Respondent No. 2 were not workers at the farm, was a disputed question of fact which could not be examined in writ jurisdiction; and that under Section 12 of the SIRA it was the prerogative of the Registrar to apply for cancellation of a trade union's registration, not that of the employer.

3. In filing comments, the Registrar trade unions (Respondent No. 1) and the Secretary Labour, Government of Sindh (Respondent No. 6) supported the case of the Respondent No. 2. It was further contended by the Registrar that the petition was premature as proceedings under Section 24 of the SIRA for determining the Respondent No. 2 as a CBA were pending. The labour contractors (Respondents 3 and 5) supported the case of the Petitioner.

4. On 19-04-2018, the Petitioner moved CMA No. 1864/2018 for permission to urge an additional ground, viz. that the Petitioner is a 'trans-provincial establishment' as defined under Federal law, the Industrial Relations Act, 2012 [IRA], and therefore the Registrar trade unions under Provincial law, the SIRA, did not have jurisdiction to register the Respondent No. 2 as trade union or to certify it as a CBA. The reason given for not pleading such ground at the outset was that at the time the petition was filed the vires of the IRA were under challenge before the superior courts, and it had yet to be determined whether the IRA was competent legislation, which point was subsequently decided by the Supreme Court vide judgment dated 28-03-2018 in Sui Southern Gas Company Ltd. v. Federation of Pakistan (2018 SCMR 802).

5. At the hearing, CMA No. 1864/2018 was not opposed by any of the Respondents, and the ground that the Petitioner was a trans provincial establishment beyond the purview of the SIRA was the principal argument advanced by the Petitioner's counsel against the registration of the Respondent No. 2 as trade union. Nevertheless, since that argument goes to the very jurisdiction of the Registrar trade unions, it will have to be examined in deciding this petition. Therefore, CMA No. 1864/2018 is allowed.

6. In support of the contention that it is a trans-provincial establishment, the Petitioner produced a certificate dated 31-03-2008 issued by the Directorate of Labour Welfare, Government of Punjab, which affirmed that the Petitioner has a factory at Sahiwal, Punjab. Further, under cover of a statement dated 26-10-2021, the Petitioner also placed on record a registration certificate dated 24-06-2019 issued to the Workers Union Engro Foods Ltd.' by the Registrar trade unions under the IRA in relation to the Petitioner's establishment, and a certificate of CBA issued to that trade union under the IRA w.e.f. 21.01.2020. Mr. Faisal Mehmood Ghani, learned counsel for the Petitioner submitted that these documents conclusively established that the Petitioner was a trans-provincial establishment; that after the case of Sui Southern Gas Company (2018 SCMR 802) it is settled that no trade union or CBA can be registered under the SIRA in relation to a trans-provincial establishment; and that in any case, there cannot be two CBAS in relation to the same establishment at the same time. Without prejudice to that, learned counsel also made submissions on the grounds narrated in para 3 above, and in support thereof he relied on Hakimsons Chemical Industries (Pvt.) Ltd. v. Registrar of Trade Unions (West), Government of Sindh (1999 SCMR 234).

7. On the other hand, Mr. Jamshed Ahmed Faiz, learned counsel for the Respondent No. 2 submitted that the case of Sui Southern Gas Company had no relevance because the question whether an establishment is trans-provincial is always a question of fact, and one which cannot be decided in writ jurisdiction. He submitted that by virtue of Article 17 of the Constitution and Section 3 of the SIRA, the right of workers to form and register a trade union was a fundamental right, and the employer has no locus standi to object to the same as held by the Supreme Court in Essa Cement Industries Workers Union v. Registrar of Trade Unions, Hyderabad Region (1998 SCMR 1964). He submitted that the role of the employer is envisaged only at the time of determining a CBA under Section 24 of the SIRA; that the employer as an alternate remedy in Section 43 of the SIRA, and not by way of Section 12, which authorized only the Registrar to apply to the Labour Court for cancellation of a trade union's registration.

8. Heard the learned counsel and perused the record with their assistance.

9. At the outset I note that both Section 2(ix) of the SIRA and Section 2(x) of the IRA define an 'establishment' to mean any office, firm, factory, society, undertaking, company, shop, or enterprise which employees workmen "directly or through a contractor" for the purpose of carrying on business or industry. Again, Section 2(xxxii) of the SIRA and Section 2(xxxiii) of the IRA define 'worker' and 'workman' as a person who is employed in an establishment or B industry "either directly or through a contractor...". Therefore, the Petitioner's argument that workers at its dairy farm are to be taken as employees of the labour contractors and not employees of the Petitioner, does not have any force. The same argument has been declined by the Supreme Court in Sui Southern Gas Company Ltd. v. Registrar of Trade Unions (2020 SCMR 638).

10. The thrust of the submissions of Mr. Jamshed Faiz, learned counsel for the Respondent No. 2, was premised on the case of Essa Cement Industries Workers Union v. Registrar of Trade Unions, Hyderabad Region (1998 SCMR 1964) where the Supreme Court had held that an employer cannot claim locus standi to challenge the decision of the Registrar merely on the ground that the employer was not provided opportunity of hearing or objections before registration of the trade union. However, that finding, of course, did not rule out scrutiny in constitutional jurisdiction of the Registrar's decision for jurisdictional defects, which aspect was clarified in Essa Cement itself as follows:

"7. So far as the first contention of the learned counsel is concerned, there can be no cavil with the proposition that jurisdictional facts are not immune from scrutiny by the High Court in the exercise of its Constitutional jurisdiction and even if it was not possible for the Court to itself embark upon an enquiry in this regard, the matter could be referred to the Registrar for further enquiry ..........

1. It is pertinent to notice that although, registration of a trade union may be cancelled in case it has contravened or has been registered in contravention of any of the provisions of the I.R.O. it would be beyond the Registrar's competence to pass such order unless the Labour Court so directs. No doubt, the High Court in the exercise of its Constitutional jurisdiction may order the Registrar to seek such directions from the Labour Court, as required by Section 10, but the same would depend upon the circumstances of each case. The circumstances of the present case did not warrant such interference by the High Court as the petitioners have failed to establish that the discretion vesting in the Registrar was not properly exercised."

2. It is a fact that the Petitioner did not take the ground of trans provincial establishment before the Registrar in making its representation dated 26-03-2014 against the Respondent No. 2. However, it was only after the Respondent No. 2 had been registered as a trade union under the SIRA, and after the Petitioner had already made its representation that it came to be held, first by the Full Bench of this Court on 04-08-2014 in KESC v. NIRC (PLD 2014 Sindh 553 2015 PLC 1), and then on 28-03-2018 by the Supreme Court in Sui Southern Gas Company Ltd. v. Federation of Pakistan (2018 SCMR 802), that in view of Article 141 of the Constitution, even after the Eighteenth Amendment it was the Federal legislature and not the Provincial legislature that had legislative competence to regulate trade unions in relation to trans-provincial establishments; and thus trans-provincial establishments were to be regulated exclusively under Federal law i.e. the IRA, not under Provincial law such as the SIRA.

3. Section 2(xxxii) IRA defines 'trans-provincial' to mean "any establishment, group of establishments, industry, having its branches in more than one province". However, the question whether an establishment is trans-provincial, is a question of fact. It may well be that a provincial establishment subsequently becomes a trans provincial establishment, or vice versa. In Pakistan Telecommunication Company Ltd. v. Member NIRC (2014 SCMR 535), the Supreme Court held that once it was established through any means that the employer was a trans-provincial establishment, then the IRA, being Federal law, would become applicable to such establishment, and by virtue of Article 143 of the Constitution the provincial industrial relations law would be overridden. Consequently, it follows that even if registration of the Respondent No. 2 under the SIRA was lawful at the relevant time, if it is subsequently established that the Petitioner is a trans-provincial establishment, the registration of the Respondent No. 2 under the SIRA would be overridden, and then, all other grounds raised for challenging such registration recede to the background, and the question whether Section 43 SIRA provides an alternate remedy to the Petitioner, would also not arise.

4. Accepted that the question whether the Petitioner is a trans provincial establishment is a question of fact, but here that fact is already established by way of the registration certificate dated 24.06.2019 issued to the 'Workers Union Engro Foods Ltd.' under Sections 9 and 10 of the IRA in relation to the Petitioner's establishment, and the certificate of CBA issued to the same trade union under Section 19 of the IRA w.e.f. 21-01-2020. These certificates were not disputed by the Respondents. These certificates manifest that the Petitioner is recognized as a trans-provincial establishment by the Registrar trade unions under the IRA. As already discussed, the consequence is that the registration certificate issued to the Respondent No. 2 as trade union under the SIRA stands overridden or superseded by the subsequent certificate issued under Sections 9 and 10 of the IRA, and the former certificate has no further legal effect. Resultantly, the proceedings pending before the Registrar under Section 24 of the SIRA to determine a CBA in relation to the Petitioner's establishment, also abate. The Registrar of trade unions under the SIRA shall amend his register accordingly. Petition is allowed in said terms.

(Y.A.) Petition allowed

PLJ 2022 Lahore 1[Multan Bench, Multan]

Present: Sardar Muhammad Sarfraz Dogar, J.

SHAHID RASOOL--Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary Home Department and 6 others--Respondents

W.P. No. 12655 of 2021, decided on 25.8.2021.

West Pakistan Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)--

----S. 3(1)--Order of detention of 30 days passed by Deputy Commissioner on the ground of activities prejudicial to public safety and tranquility--Challenge to--There is no concrete and tangible evidence in support of impugned order--S. 3 of Ordinance cannot be based on conjectures and surmised--Grounds of detention must have support of sufficient cogent material and it would satisfy issuance of preventive order--Order issuing u/S. 3 of MPO, must satisfy itself that evidence before authority is sufficient to justify detention order, without it, it would be violative of Art. 9 of Constitution--Preventive detention order is declared illegal, unlawful and issued without application of independent mind.

[Pp. 2, 3 & 5] A, B, C, & F

PLD 2003 SSC 442; PLD 2016 Pesh 89; 2004 MLD 1541; 2004 PCr.LJ 1604.

Constitution of Pakistan, 1973--

----Art. 9 & 10--A person cannot be deprived of his liberty on basis of flimsy/shaky and insufficient material/evidence--Article 9 of Constitution provides for security of person "No person shall be deprived of life and liberty save in accordance with law". Now under provision of Section 3 of Ordinance authority which is issuing preventive detention order under Section 3 of MPO, must satisfy itself that material produced before him is sufficient to justify detention order, without it, it would be violative of Article 9 of Constitution. [Pp. 3 & 4] D & E

PLD 2003 SC 442 ref.

2004 MLD 1541; 2004 PCrLJ 1604 ref.

Kh. Qaiser Butt, Advocate for Petitioner.

Mr. Azhar Saleem Kamlana Addl. Advocate General with Ahmad Shehzad Deputy Commissioner, Multan.

Haji Muhammad Aslam Malik, Advocate/Legal Advisor.

Date of hearing: 25.8.2021.

Order

The petitioner, invoked the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, for declaration to the effect that impugned order Bearing No. POB-1-111/2021/D.C dated 15.8.2021 issued by the Deputy Commissioner, Multan (Respondent No. 3) whereby the petitioner's brother, namely, Qari Tahir Rasool was ordered to be detained for a period of 30-days under Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 on the so called ground of prejudicial to public order safety and tranquility donstant threat to the law and order of the area and indulging in activities to defuse the writ of the government is arbitrary, fanciful, discriminatory, unconstitutional and without lawful authority, hence, liable to be struck down.

1. Learned counsel for the petitioner argued that the petitioner's brother is law abiding citizen and never remained involved in any kind of illegal and unwarranted activities. Official respondents, due to their personal malice and malafide have allegedly shown involvement of the petitioner's brother in unlawful activities, which has no basis and footing. He prayed for setting aside the impugned order of Respondent No. 3 issued under Section 3 MPO.

3 & 4. Learned Additional Advocate General fully supported the impugned detention order issued by Respondent No. 3 and prayed for dismissal of instant writ petition

1. I have heard the arguments advanced by learned counsel for the parties and perused the record with their able assistance.

2. It has been noticed that Respondent No. 3 passed the impugned order dated 15.8.2021 for the detention of the petitioner's bother Qari Tahir Rasool, the alleged detenue, on the report submitted by Respondent No. 4/C.P.O Multan, on the grounds that he is involved in a number of criminal cases, detail of which is mentioned in the impugned order.

3. Mr. Ahmad Shehzad, Deputy Commissioner, Multan appeared in pursuance of pre-admission notice and produced report against the detenue and stated that due to registration of certain FIRs the impugned letter was issued. Upon query of this Court that whenever report was received by the DC from Police Hierarchy or District Intelligence Committee qua issuing of detention order of any person, whether he applied his independent judicious mind or not, the reply of DC is not satisfactory. This Court noticed that the DC has issued the impugned order blindfoldly without having any sufficient and incriminating material against the detenue.

8. Apart from the criminal cases, the Respondent No. 3 is not in possession of any other concrete and tangible material/evidence in support of order dated 15.8.2021.

9. Order under Section 3 of the Ordinance ibid cannot be based on conjectures and surmises, rather it should be based on concrete and tangible evidence. Moreover, the grounds on the basis of which detention order of a person is issued/passed, that must have the support of sufficient cogent material and only thereafter, it would satisfy the issuance of preventive order. Furthermore, the material/evidence must be of such a nature and character to persuade and satisfy an ordinary prudent person to justify the order of preventive detention. It is the consistent view of the superior Courts of the country that a person cannot be deprived of his liberty on the basis of flimsy/shaky and insufficient material/evidence. Wisdom in this respect drawn from PLD 2003 Supreme Court 442, wherein, it is held:

"It can be concluded safely that satisfaction can only be based on some evidence or record justifying the detention order which is badly lacking in this case".

In the above cited judgment the apex Court has thrashed out the entire law available on the subject. Reliance can also be placed on PLD 2016 Peshawar 89, wherein it is held:

"Needless to say that it has consistently been held umpteen times by the Courts that powers under Section 3 MPO could not be invoked for detention of persons on the grounds other than provided for by the law. As such, preventive detention of a person who is either accused of an offence or\ convicted for a crime would not only amount to double jeopardy but would also militate against the spirit of the relevant law, prescribing procedure and penalties for commission of offences, as resort to preventive measures is useful only before commission of the offence and not after the offence has been committed, where-after case is registered and legal prdcess for prosecution of the perpetrator is initiated":

10. Article 9 of the Constitution provides for the security of the person "No person shall be deprived of life and liberty save in accordance with law". Now under the provision of Section 3 of the Ordinance ibid, the authority which is issuing preventive detention order under Section 3 of MPO, must satisfy itself that material/evidence produced before him is sufficient to justify the detention order, without it, it would be violative of Article 9 of the Constitution. Wisdom is derived from 2004 MLD 1541, wherein it is held that:

"To my mind, life and liberty of citizens is too much important, no person can be deprived of this precious liberty, unless allegation against him are prima facie proved from the record. In the instant, case prima facie this Court is of the view that these allegations against the petitioners are not proved from the record in hand after making tentative assessment of the evidence ".

Wisdom is further derived from 2004 P.Cr.L.J. 1604, wherein it is held that:

"It is well settled now that even the Constitution of Islamic Republic of Pakistan provides that no person shall be deprived of life, liberty save in accordance with law. Indeed the State has\to act within the limits of law wherever, the life or liberty of individual is affected"

11. Keeping in view the above stated facts and circumstances of the case, this Court has reached to the conclusion that the preventive detention order dated 15.8.2021 of Respondent No. 3 is illegal, unlawful and issued without application of independent mind, hence, the same is set-aside and struck down. This petition is allowed accordingly. The detenue be released forthwith, if not required in any other case.

(K.Q.B.) Petition allowed

PLJ 2022 Lahore 5[Multan Bench, Multan]

Present: Ch. Muhammad Iqbal, J.

NAZIR AHMAD and another--Petitioners

versus

DISTRICT OFFICER (REVENUE), VEHARI and others--Respondents

W.P. No. 9265 of 2011, heard on 23.6.2021.

West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

----S. 164--Cognizance of--Member Board of Revenue on its own motion can take cognizance of any matter. [P. 7] A

West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

----S. 164--Reservation of state land for graveyard--Mutation was corporate in revenue record--Change of status of graveyard land by district collector--Alternate price of land--Occupation of land without allotment--Illegal occupation--Petitioner is occupying state land without holding allotment order, his possession over state land is that of an illegal occupant, petitioner has come to this Court with soiled hands and is disentitled for any discretionary relief as law extends nil support to illegal occupant, encroachers and land grabbers--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 dismissed. [Pp. 7 & 8] B & C

2014 SCMR 1351 and 2014 SCMR 334 ref.

Mr. Khalid Masood Ghani, Advocate for Petitioners

Malik Altaf Hussain Rawn, Assistant Advocate General and Ch. Muhammad Rafique Arain, Advocate for Respondents.

Date of hearing: 23.6.2021.

Judgment

Through this writ petition, the petitioner has challenged the order dated 22.11.2010, passed by the Senior Member, Board of Revenue, Punjab on the application of Abdul Rehman etc., Respondents No. 3 to 15, and the order dated 11.07.2011, passed by the Senior Member, Board of Revenue who dismissed the review petition of the Respondent No. 3.

1. Brief facts of the case are that the on the application of the inhabitants of Chak No. 473/E.B, Burewala, District Collector, Veharivide order dated 19.01.1993 reserved state land measuring 31 Kanal 6 Marla comprising Khasra Nos. 41/11/2, 12/2, 13/2, 18/2, 19/1, 20/1, 22/2, 23/1 for graveyard and Mutation Nos. 504 & 505 dated 29.06.1993 were also incorporated in the revenue record. Thereafter, on the application of Respondent No. 16, Bashir Ahmad, the District Collector, Vehari vide order dated 09.10.1995 changed the status of the aforesaid land from graveyard to school whereas another piece of state land measuring 35 Kanal 05 Marla comprising Khasra Nos. 54/14/2, 15/1, 16, 17/1, 32/2, 24, 25 was reserved for graveyard. Against order dated 09.10.1995, petitioner No. 1 filed an appeal which was accepted by the Additional Commissioner (Revenue), Multan Division, Multan vide order dated 23.09.1997 and order dated 09.10.1995 was set aside. Against the said order, Respondent No. 16 filed a revision petition before the Board of Revenue which was dismissed for non-prosecution on 03.10.1998.

Respondents No. 3 to 15 filed an application before the Senior Member, Board of Revenue for changing the status of reserved land for graveyard and school which was dismissed vide order dated 22.11.2020. Respondent No. 3 filed a review application which was also dismissed by the Senior Member, Board of Revenue on 11.07.2011. Hence, this writ petition.

1. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

2. Admittedly, on the application of the inhabitants of Chak No. 473/E.B, Burewala, District Collector, Vehari vide order dated 19.01.1993 reserved state land measuring 31 Kanal 6 Marla comprising Khasra Nos. 41/11/2, 12/2, 13/2, 18/2, 19/1, 20/1, 22/2, 23/1 for graveyard and Mutation Nos. 504 & 505 dated 29.06.1993 were incorporated in the revenue record. Thereafter the District Collector, Vehari vide order dated 09.10.1995 changed the status of the aforesaid land from graveyard to school whereas an alternative piece of state land measuring 35 Kanal 05 Marla comprising Khasra Nos. 54/14/2, 15/1, 16, 17/1, 32/2, 24, 25 in the same village was reserved for graveyard. The aforesaid order dated 09.10.1995 for change of status of the reserved land was set aside by the Additional Commissioner (Revenue), Multan Division, Multan by accepting the appeal of the Petitioner No. 1 vide order dated 23.09.1997 and earlier order dated 19.01.1993 was restored/upheld. Against the said order, Respondent No. 16 filed revision petition but the same was dismissed due to non-prosecution on 03.10.1998.

3. Thereafter, Respondent No. 3 filed an application before the Senior Member, Board of Revenue for change of the status of the aforesaid pieces of land of graveyard and school. He also filed a Writ Petition No. 11634/2010 wherein this Court passed direction on 29.10.2010 to the Senior Member, Board of Revenue to decide the application within seven days. In compliance of the said direction, the Senior Member, Board of Revenue, Punjab summoned reports from the concerned revenue officers, heard the parties, set aside the previous orders of the lower fora and finally reserved the state land for public purposes as follows:

| | | | | --- | --- | --- | | 1 | Land reserved for graveyard | Square No. 54, Killa Nos. 4/2,5, 6, 7/1, 14/2 and 15, 16 and 17/1 | | 2 | Land reserved for expansion of Girls School | Square No. 41, 11/2, 12/2, 13/2, 18/2, 19/1,20/1,225/2, and 23/1 |

Even otherwise, under Section 164 of the West Pakistan Land Revenue Act, 1967, the Member Board of Revenue on its own motion can take cognizance of any matter.

6. The Senior Member, Board of Revenue has observed in the impugned order dated 22.11.2010 that the present petitioner and others have illegally occupied the state land (graveyard) and initiated frivolous miscellaneous litigation in order to prolong their possession. Admittedly the petitioner is occupying the state land without holding allotment order, his possession over the state land is that of an illegal occupant, as such, the petitioner has come to this Court with soiled hands and is disentitled for any discretionary relief as law extends nill support to the illegal occupant, encroachers and land grabbers. 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."

(emphasis supplied)

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."

(emphasis supplied)

Reliance is placed on the cases reported as Fazalur Rehman and others vs. Province of Punjab through District Officer (Revenue), Bhakkar and another (2014 SCMR 1351) and Muhammad Sharif through L.Rs vs. Province of Punjab through District Officer Revenue, Pakpattan (2014 SCMR 334).

7. 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. Resultantly, this writ petition being devoid of any force is hereby dismissed.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 8

Present:Shahid Karim, J.

MI HOSIERY and another--Petitioners

versus

FEDERATION OF PAKISTAN and others--Respondents

W.P. No. 38218 of 2021, decided on 27.10.2021.

Constitution of Pakistan, 1973--

----Art. 199--New zero rate industrial consumers--Classification by ministry of energy--Issuance of FBR letter--Concessionary tariff--Petitioners herein as well as in connected petitions shall be allowed concessionary tariff from date mentioned in FBR's letter issued in respect of each petitioner--Distribution companies are bound to implement letter of 4.10.2021 issued by Ministry of Energy--Petitions disposed of. [P. 10] A

Mr. Khalil-ur-Rehman,Advocate for Petitioners.

M/s. Malik Bashir Ahmad Khalid, M.A. Rizwan Kamboh, Ch. Bilal Rasool Sandhu, Ch. Imtiaz Ullah Khan, Abdul Sattar, Mustafa Kamal, Mudassar Shujauddin, Kh. M. Ihsan and Ch. Fareed Anwar, Advocates for Petitioners in connected petition.

M/s. Liaquat Ali Chaudhry, Shahzad Ahmad Cheema, Aurangzeb Mirza, Faizan Ahmad Balaggan, Syed Murtaza Ali Zaidi, Syed Zain-ul-Abideen and Malik Asad, Advocates for Respondents in this petition as well as connected petitions.

RaiAshfaq Ahmad Kharal, Advocate for Respondent No. 5 in connected petition.

Mr. Ahmad Pervaiz,Advocate for Respondent-Federal Board of Revenue.

Mr. Asad Ali Bajwa, Assistant Attorney General.

Date of hearing: 27.10.2021.

Order

C.M. No. 03/2021

This is an application for placing on the record additional documents which, according to the learned counsel, are essential for the decision of this petition. This application is allowed subject to all just and legal exceptions and the document shall be placed on the record.

MAIN CASE

1. This order shall also decide connected W.P. Nos. 5752/2021, 61136/2021, 47156/2021, 38227/2021, 52903/2021, 41104/2021, 47172/2021, 62364/2021, 64347/2021, 51057/2021, 55384/2021, 56243/2021, 57151/202, 57323/2021, 60785/2021, 61367/2021, 64783/2021, 65321/2021, 57698/2021, 48959/2021, 49727/2021, 65417/2021 and 54599/2021.

2. Learned counsel for the petitioners has filed an application by which a document dated 4.10.2021 issued by the Ministry of Energy

(Power Division), Government of Pakistan has been attached which is to the following effect:

"I am directed to refer to the subject noted above and to state that certain DISCOs has raised queries on effective date of concessionary triff being allowed for new Zero-Rate Industrial Consumers. In this regard, it is to clarify that FBR's letter date (videeligible Zero-Rated Industrial Consumer name and reference was communicated) shall be taken as effective date from which the concessionary tariff shall be allowed to the Zero-Rated Industrial Consumers."

4. According to the clarification issued above by the Ministry of Energy it has been clearly stated that concessionary tariff shall be allowed to the new zero rated industrial consumers from the date of FBR's letter in this regard which shall be taken as the correct date from which concessionary tariff shall be allowed. This effectively takes care of the grievance of the petitioners and the learned Deputy Attorney General does not take exception to the contention that concessionary tariff shall be allowed as per clarification from the date of the FBR's letter. Therefore, petitioners herein as well as in connected petitions shall be allowed concessionary tariff from the date mentioned in the FBR's letter issued in respect of each petitioner. It goes without saying that the distribution companies are bound to implement the letter of 4.10.2021 issued by the Ministry of Energy. With these observations these petitions are disposed of.

(Y.A.) Petition disposed of

PLJ 2022 Lahore 10

Present: Ali Baqar Najafi, J.

Miss SHAKEELA RANA, ADVOCATE--Petitioner

versus

GOVERNMENT OF PAKISTAN etc.--Respondents

W.P. No. 59314 of 2017, decided on 29.6.2021.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Printing of National flag on distorted shaped portraits, is ugly cartions disgraceful printing on cloths--Undermining of national dignity--National Policy--National flag protocol--Our flag of a crescent and star (Parcham-E-Sitar-O-Hilal), like other national flags of any nation, has a unique importance for it symbolizes our history, present as well as national policy--It must not fly or be displayed upside down or with a crescent and star facing left--It must not be displayed where it is likely to get dirty--It must not be set on fire or trampled upon--It must not be buried or lowered into a grave--Printing of flags in different colours, on distorted shaped portraits, in ugly cartoons, its disgraceful imprint on cloths undermining national dignity may be considered defilement--Petition disposed of.

[Pp. 12 & 14] A, B & D

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

----S. 123-B--Defilement of national flag--Pakistan Penal Code, 1860, Section 123-B defines defilement of national flag an offence punishable with 3 years’ imprisonment. [P. 14] C

Ms. Sidra Sehar, Advocate vice counsel for Petitioner.

Malik Asif Ahmed Nissoana, DAG. and Mr. Muhammad Ejaz, AAG for Respondent.

Date of hearing: 29.6.2021.

Order

Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner has made the following prayer:

“In view of the submissions made above, it is therefore, most respectfully prayed that the instant writ petition may kindly be accepted and the respondents may graciously be directed to prohibit the printing of the different colour National Flag except original colour, printing of different shapes portraits, cartoons on the National Flag and any disgraceful printing on the legs of trousers etc. and any other disgraceful printing or acts towards that dignity of the National Flag may also kindly be directed to be prohibited, in the interest of justice, equity, and fair play.

1. Arguments heard. File perused.

2. After hearing the learned counsel for the petitioner, learned Deputy Attorney General as well as Learned Assistant Advocate-General and perusing the file, it is straightway observed that earlier petition (Writ Petition No. 15672 of 2009) filed by the petitioner was dismissed being infructuous vide order dated 17.03.2010. It is now after about 7 years that the petitioner has filed the instant petition almost on the same grounds taken in the earlier petition. The instant writ petition came up for hearing for the first time on 10.08.2017 and a direction was issued to respondents whereafter it was adjourned to 21.09.2017.

4. Importantly, our flag of a crescent and star (Parcham-E-Sitar-O-Hilal), like other national flags of any nation, has a unique importance for it symbolizes our history, present as well as the national policy. It traces its roots from the battles in the initial days of Islam when Parcham-e-Islam was bestowed by the Holy Prophet (P.B.U.H) to Hazrat Ali (A.S) on the occasion of Badar, Khandaq and Ohad, is still being held high in the memory of Parcham-e-Abbas (A.S) as a sign of Bravery. Our Parcham stands for freedom, liberty and equality for those who owe allegiance to it. It protects the legitimate rights of every citizen and up hold the integrity of the State of Pakistan. It is a mark that helps in maintaining peace throughout the world. It represents a State which has no special privileges or special rights for any particular community or interest but a State where citizens will have equal rights and equal opportunities and their share in privileges will be proportionate to their corresponding responsibilities. Our Pacham is not merely a piece of cloth. The white and dark green field represents peace and prosperity, the crescent on the flag progress and the five- rayed star signifies light and knowledge which symbolizes the Five Most Holy Personalities (Panjtan-e-Pak A.S.) of course, the religious minorities of Pakistan have significant place in the flag duly acknowledged in the white colour.

1. As to the specification, the Pakistani Flag is a dark green, rectangular flag in the proportion of 3 x 2 with a white vertical bar, showing white crescent in the center and a five-pointed heraldic star. The size of the white portion is 1/4th size of the flag. Since the mast, the remainder is 3/4th being dark green. The dimensions of the five-pointed white heraldic star are determined by drawing a circle with radius equal to 1/10th of the width of the flag. Our flag is designed by Syed Amir-U-Din Kadwai and was stitched by Master Afzal Hussain. Today it is always held by the most pious and brave person who can protect it.

2. The flag should be flown in a way with the star on the flag never to appear below the crescent. The specification of the flag is given as under:

1. The flag should be like:

1. Our highest esteem for the Parcham is visible from two important occasions; i.e. when in the month of August, 2004 a 173,400 sq.ft. Parcham was unfurled at the National Stadium Karachi and then on 22nd October, 2012, 24,200 people gathered in a stadium at

Lahore to form the Parcham and set a new world record of world’s largest national flag comprised of humans, certified by the Guinness World Records. And then on 15th February, 2014, total 29040 people gathered again in Lahore Stadium and got improved their own record of largest flag comprised of human beings.

9. According to the National Flag Protocols prescribed officially, it must not touch the ground, shoes or feet or anything unclean and must not be flown in the darkness and must not be marked with anything (including words, numerals or images) and when raised or lowered it must be saluted by all in uniform and the others must stand in attention. It must not fly or be displayed upside down or with a crescent and star facing left. It must not be displayed where it is likely to get dirty. It must not be set on fire or trampled upon. It must not be buried or lowered into a grave. In the Pakistan Penal Code, 1860 Section 123-B defines the defilement of the national flag an offence punishable with 3 years’ imprisonment. Obviously, the printing of flags in different colours, on distorted shaped portraits, in ugly cartoons, its disgraceful imprint on cloths undermining the national dignity may be considered defilement.

1. In this view of the matter, this writ petition is disposed of in the above terms.

(Y.A.) Petition disposed of

PLJ 2022 Lahore 14

Present: Faisal Zaman Khan, J.

GULZAR AHMAD, etc.--Petitioners

versus

AYESHA NAZ SARWAR, etc.--Respondents

C.R. No. 1514 of 2012, heard on 11.10.2021.

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

----S. 42--Suit for declaration etc.--Concurrent findings--Deceased was related to parties as petitioner Nos.1 and 2 are his brother and sister, Respondent Nos.1 and 2 are his wife and daughter--Deceased was of Sunni faith, whereas, in impugned mutation he has been shown to be of Shia--It was for Respondent Nos. 1 and 2 to prove that deceased was of Shia faith as it is presumed that every Muslim is of Sunni faith until and unless it is proved otherwise--Initial onus to prove was on petitioners, they have failed to discharge as no cogent and unequivocal evidence has been produced by then--A party, who alleges a fact has to prove his case himself and cannot thrive on lacunas left by opposite party--Exh.P.1, which is a certificate issued by Jafria Trust (Registered) highlighting that deceased was their member and was practicing Shia faith, upon which impugned mutation was sanctioned, to be fraudulent--Certificate was not challenged by petitioners in main suit--While appearing as PW.1 Petitioner No. 1 has himself acknowledged membership of deceased and entries made in record of said organization that deceased was practicing Shia faith--Deceased was following Shia faith during his life time, impugned mutation has rightly been sanctioned.

[Pp. 16, 19 & 20] A, B, C, F, G, H & I

Muhammadan Law--

----Muhammadan Law by D.F.Mullah is a reference book and is not a statue having binding force--Muhammadan Law can only be consulted as a reference book and cannot be termed to be statutory law having binding effect, upon which any presumption can be drawn against a person. [P. 18] D

Presumption--

----A presumption can be bifurcated into two parts i.e. presumption of fact and presumption of law--In first case, presumption is rebuttable in view of fact that it is not based on law and is based on inference which mind naturally and logically draws from given facts, to prove said presumption it is person, who alleges to believe/ rely/seek benefit of such presumption and once he manages to prove same through unequivocal and clear evidence, onus shifts on other side whereas, in latter case where presumption is based on law, it would be mandatory for person, who negates said presumption to prove same. [P. 19] E

Mr. Moiz Tariq, Advocate for Petitioners.

Mr. Aamir Latif Bhutta, Advocate for Respondent Nos.1 and 2.

Respondent No. 3 ex parte.

Date of hearing: 11.10.2021.

Judgment

Through this civil revision judgments and decrees dated 31.05.2010 and 09.02.2012 passed by the learned Civil Judge, Faisalabad and learned Additional District Judge, Faisalabad, respectively, have been assailed. By virtue of the former judgment a suit for declaration etc. instituted by the petitioners has been dismissed and through the latter the same has been upheld.

2. Succinctly, the facts of the case are that Ghulam Sarwar (deceased) was related to the parties as Petitioner Nos.1 and 2 are his brother and sister, Respondent Nos.1 and 2 are his wife and daughter, whereas, Respondent No. 3 is his mother. In order to assail a mutation of Inheritance No. 30204 dated 07.05.2006 (Impugned Mutation) sanctioned in favour of Respondent Nos.1 and 2 as successors of the deceased a suit for declaration etc. was instituted by the petitioners against the respondents alleging therein that since the deceased was of Sunni faith, whereas, in the impugned mutation he has been shown to be of Shia faith, therefore, impugned mutation is fraudulent. Contesting written statement was filed by Respondent Nos.1 and 2, whereas, Respondent No. 3 filed a conceding written statement. Out of divergent pleadings of the parties as many as 09 issues were framed; evidence pro and contra was led, whereafter, through judgment and decree dated 31.05.2010 the suit was dismissed. Feeling aggrieved, petitioners preferred an appeal, which also met the same fate and was dismissed vide judgment and decree dated 09.02.2012, therefore, this petition.

3. Learned counsel for the petitioners submits that deceased was of Sunni faith, thus, the impugned mutation which has been sanctioned in favour of Respondent Nos. 1 and 2 on the ground that since the deceased was of Shia faith, therefore, under Shia Law of Inheritance only Respondent Nos.1 and 2 are entitled to his estate being his legal heirs hence the same is fraudulent. Further adds that it was for Respondent Nos.1 and 2 to prove that the deceased was of Shia faith as it is presumed that every Muslim is of Sunni faith until and unless it is proved otherwise. Places reliance on judgments reported as Mst. Sarwar Noor v. Ali Haider and another (2009 CLC 400), Pathana and others v. Allah Ditta (2008 YLR 589), Mst. Latifa Bibi and 8 others v. Muhammad Bashir and 10 others (2006 CLC 1076) and Israr Hussain and 2 others v. Mst. Ghulam Kalsoom and 5 others (2006 MLD 1748).

1. In order to augment his above argument, learned counsel has referred to the following incidents/documents substantiating that the deceased was of Sunni faith:

a. that Nikah between the deceased and Respondent No. 1 was solemnized by a Maulana, who was of Sunni faith, thus, this cannot be said that the deceased was of Shia faith;

b. that the account opening form (Exh.P3) and bank statement (Exh.P7) would reveal that the deceased has himself opted that Zakat may be deducted from his bank account, which has been done by the Bank, whereas, the person, who is following the Shia faith does not pay Zakat; and

c. Respondent No. 1 while appearing as DW.1 in her cross- examination has failed to answer a single question with regard to the fact that she has knowledge about the Shia faith.

In support of the above he places reliance on judgments reported as Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729), Fida Hussain through Legal Heirs Muhammad Taqi Khan and others v. Murid Sakina (2004 SCMR 1043), Rafiq Dawood and 4 others v. Messrs Haji Suleman Gowa Wala & Sons Ltd. Through Director and others (2009 CLC 1070), Shahnaz Bibi v. Muhammad Iqbal Khan (2006 YLR 886) and Muzaffar Ali and others v. Muhammad Aslam (PLD 1964 W.P. (Rev.) 44).

1. Replying to the above, learned counsel for Respondent Nos.1 and 2 supports the impugned judgments and decrees.

2. Despite service, none has entered appearance on behalf of Respondent No. 3 therefore, she was proceeded against ex parte on 25.07.2012.

3. Arguments heard. Record perused.

4. The moot point, which requires determination, by this Court, is that as to whether the impugned mutation is fraudulent for the reason that the stipulation made therein that deceased was of Shia faith, as it is the contention of the petitioners that the deceased in his life time has been practicing Sunni faith.

5. In the above back drop and keeping in view the judgments cited by the learned counsel for the petitioners in Paragraph No. 3 supra, it has to be determined by this Court at the outset that the onus to prove this fact is on whom?

6. There is no cavil to the proposition that the judgments referred to in Paragraph No. 3 supra mentions that every Muslim is presumed to be of Sunni faith unless proved otherwise however none of these judgments would mention any provision of law or the reason upon which this presumption is drawn.

7. Intrigued by the above presumption and in order to see wherefrom this presumption is drawn, this Court has gone through judgments reported as Pathana v. Mst. Wasai and another (PLD 1965 S.C. 134), Mst. Sardar Bibi v. Muhammad Bakhsh and others (PLD 1954 Lahore 480), Shirin Bai v. Muhammad Ali and others (PLD 1970 Karachi 450), Hussain v. Mansoor Ali and others (PLD 1977 Karachi 320), Muhammad Sulaiman Malik and another v. Royal Trust Corporation of Canada and others, (1979 CLC 48), Zainul Hassan Mian and others v. Mst. Khuwand Naka and others (1998 MLD 1857), Mst. Fatima (deceased) through L.Rs. and another v. Lal Khan and 19 others (PLJ 2001 Lahore 91), Akbarally A. Adamji Peerbhoy and others v. Mahomedally Adamji Peerbhoy and others (A.I.R. 1932 Bombay 356) Moosa Seethi v. Mariyakutty (A.I.R. 1954 T.C. 432) (Vol. 41, C.N. 148) and Mt. Iqbal Begum v. Mt. Syed Begum (1933) 140 I.C. 829

8. In all the above judgments reference has been made that in the subcontinent it is presumed that a Muslim is of Sunni faith unless proved otherwise however none of them refer to any provision of law or a research upon which this presumption has been drawn. It was only in the judgment titled Pathana v. Mst. Wasai and another mentioned supra a passing reference is made to Section 28 of the Muhammadan Law.

9. In order to appreciate that whether the said provision draws such a presumption, for benefit it is reproduced as under:-

28. Sunni sub-sect.--The Sunnis are divided into four sub- sects, namely, the Hanafis, the Malikis, the Shafeis and the Hanbalis.

The Sunni Muhammedans belong principally to the Hanafi School.

1. A bare perusal of the above provision would show that it does not refer to any presumption upon which this could be ascertained or held that in subcontinent it is presumed that every Muslim is of Sunni faith unless proved otherwise.

15. For a while if this is presumed that Section 28 ibid can be interpreted in such a manner, it has to be determined that what is the status and binding effect of the provisions of Muhammadan Law. It has been held in Messrs Najaat Welfare Foundation through General Secretary v. Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 4 others (PLD 2021 Federal Shariat Court 1) that Muhammadan Law by D.F.Mullah is a reference book and is not a statue having binding force. In these circumstances, Muhammadan Law can only be consulted as a reference book and cannot be termed to be statutory law having binding effect, upon which any presumption can be drawn against a person.

16. While discussing that what is a presumption and how it can be proved, it has been held in judgment reported as Hussain v. Mansoor Ali and 5 others (PLD 1977 Karachi 320) that a presumption can be bifurcated into two parts i.e. presumption of fact and presumption of law. In the first case, the presumption is rebuttable in view of the fact that it is not based on law and is based on the inference which the mind naturally and logically draws from the given facts, thus, to prove the said presumption it is the person, who alleges to believe/rely/seek benefit of such presumption and once he manages to prove the same through unequivocal and clear evidence, the onus shifts on the other side whereas, in the latter case where the presumption is based on law, it would be mandatory for the person, who negates the said presumption to prove the same.

17. In the above circumstances, this Court is of the view that since it was alleged by the petitioners that the deceased was of Sunni faith and the impugned mutation has fraudulently been sanctioned in favour of Respondent Nos.1 and 2 on the ground that deceased was of Shia faith, therefore under Article 119 of the Qanun-e-Shahadat Order, 1984 being a particular fact, the initial onus to prove was on the petitioners, which in the case in hand, they have failed to discharge as no cogent and unequivocal evidence has been produced by then.

1. During the course of arguments, learned counsel for the petitioners time and again has been asked to highlight the evidence wherefrom this could be ascertained that the impugned mutation was fraudulent and the deceased was not following the Shia faith, however, learned counsel has not been able to point out any evidence, wherefrom the above aspect can be proved, however, he kept on pointing out the lacunae left in evidence of Respondent Nos.1 and 2.

19. It is settled proposition of law that a party, who alleges a fact has to prove his case himself and cannot thrive on the lacunas left by the opposite party. For reference reliance can be placed on Abdul Majeed and others v. Amir Muhammad and others (2005 SCMR 577) Mst. Zainab v. Majeed Ali and another (1993 SCMR 356) and Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703).

1. As regards the argument advanced by the learned counsel for the petitioners that since the Maulana who got the Nikah solemnized between the deceased and Respondent No. 1 was of Sunni faith hence this stands proved that deceased was follower of Sunni faith, the said argument is not tenable for the reason that petitioners have not been able to produce any evidence wherefrom this could be proved/presumed that a Maulana who is following Sunni faith is debarred from solemnizing the Nikah of the spouses following Shia faith.

2. Similarly, the fact that the deceased has been paying Zakat from his Bank account does not prove that he was of Sunni faith. Moreover, there is no evidence on the record wherefrom this could be established that a person following Shia faith is not obligated to pay Zakat or there is an embargo on them to pay Zakat.

3. As regards the lack of knowledge of Respondent No. 1 about the Shia faith, this by no means would prove that deceased was not following the Shia faith. Furthermore, there is no evidence on the record, wherefrom this could be established that the questions, which have been put by the learned counsel for the petitioners in cross examination, are correct depiction of the rituals of Shia faith.

4. It shall not be out of place to mention here that when a person dies and his succession opens, his estate will be divided according to his faith and personal law and not according to the faith of the successors. In these circumstances, if this is presumed that Respondent Nos. 1 and 2 are of some other faith even then their share in the estate of the deceased will be according to the Shia law of inheritance as their right to inherit will be in accordance with the faith of their predecessor, who allegedly was following Shia faith and not otherwise.

24. Great emphasis has been laid by the learned counsel for the petitioners on Exh.P.1, which is a certificate issued by Jafria Trust (Registered) highlighting that the deceased was their member and was practicing Shia faith, upon which the impugned mutation was sanctioned, to be fraudulent, however, perusal of the available record would show that the said certificate was not challenged by the petitioners in the main suit. Moreover, while appearing as PW.1 Petitioner No. 1 has himself acknowledged the above membership of the deceased and the entries made in the record of the said organization that the deceased was practicing Shia faith.

25. The above resume clearly reveals that the deceased was following Shia faith during his life time, thus, the impugned mutation has rightly been sanctioned in favour of Respondent Nos.1 and 2.

1. As regards the judgments referred by the learned counsel for the petitioners, the same having different facts and circumstances, are not applicable to the case in hand.

2. Since the learned counsel for the petitioners has not been able to point out any jurisdictional defect or procedural impropriety in the concurrent impugned judgments and decrees passed by both the

learned Courts below, therefore, in view of judgments reported as Nizam-ud- Din and others v. Sheikh Zia ul Qamar 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. Muhammad Arif (PLD 2015 SC 137), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) and Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291) no interference can be made by this Court in the concurrent findings rendered by the Courts below.

1. As a sequel to the above, this revision petition being devoid of any merits is dismissed.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 21[Bahawalpur Bench, Bahawalpur]

Present: Abid Hussain Chattha, J.

Mst. KHALIDA PARVEEN and 19 others--Petitioners

versus

GOVERNMENT OF PUNJAB and 5 others--Respondents

W.P. No. 2962 of 2021/BWP, heard on 6.10.2021.

Punjab Regularization of Service Act, 2018 (XV of 2018)--

----S. 2(c)--Withdrawal of appointment letters--Relationship of master and servant--Maintainability--Advertised posts of ‘Ayas’ to be recruited in different Basic Health Units in various districts of Province--Petitioners applied for recruitment against advertised post of ‘Ayas’ and after due process they were appointed on contract basis--Program Director of Program vide order dated 13.03.2018 directed Respondent No. 2 to withdraw offer of appointment letters issued to Petitioners and in response to said direction, Respondent No. 2 withdrew said appointment letterswithout conducting any regular inquiry or hearing Petitioners--Petitioners moved their applications before Respondent No. 1 for regularization or extension of their contract services--Request of Petitioners was declined--Clause 12 provided that contract appointments would neither confer any right of regular appointment to same post nor service shall be counted towards seniority--Petitioners have been paid salaries till date of relieving or performance of duty--Program was time bound--Any project which is temporary in nature and character, not part of non-development budget, dependent on discretionary Government allocation and foreign funding, aimed to achieve specific objectives and liable to termination abruptly upon lack of funding or fulfillment of objectives is a time-bound project--In any time bound project, contract employee has no right of regularization in service--Relationship of master and servant is attracted and applicable with respect to contract employees and, therefore a constitutional Petition is not maintainable--Petitioners were appointed on contract basis under specific terms and conditions which were duly accepted by them--Their contract was not extended and they were accordingly relieved after expiry of term of contract.

[Pp. 22, 23, 25, 26, 27 & 28] A, B, C, D, E, G, I & J

Constitution of Pakistan, 1973--

----Art. 199--Maintainability--Availability of remedy--Constitutional Petition filed by a contract employee was not maintainable even when contract was terminated before term of contract--Only remedy available to a contractual employee is to seek damages for wrongful termination or for any alleged breach of contract or failure to extend contract. [P. 26] F

Punjab Regularization of Service Act, 2018 (XV of 2018)--

----S. 2(c)--Contract employee--Contract employees employed in a project, such as Program, were specifically excluded from benefit of regularization. [P. 26] H

Mr. Muhammad Hafeez Khan Mastoi, Advocate.

Mrs. Samina Qureshi, Advocate Mr. Shakeel Ahmad Malik, Advocate

Mr. Sohaib Abdullah Akhtar, Advocate.

Mr. Muhammad Imran Pasha, Advocate for Petitioner(s)

Mr. Haseeb Ahsan Javed, Legal Advisor for IRMNCH.

Ch. Shahid Mehmood, A.A.G. along with Dr. Aneela, DHO (HRM / MIS) and Amir Mahmood, Law Officer office of CEO (DHA), Bahawalpur for Respondent(s).

Date of hearing: 6.10.2021.

Judgment

This Judgment shall decide the titled as well as eight (08) connected constitutional Petitions listed in Annexure-A which shall constitute an integral part of this Judgment since identical questions of law and facts are involved.

2. The precise facts leading to the institution of the titled as well as connected Petitions are that Respondent No. 1, Program Director of the Integrated Reproductive Maternal Newborn and Child Health and Nutrition Program, Punjab, Lahore (the “Program”) advertised posts of ‘Ayas’ to be recruited in different Basic Health Units in various districts of the Province of Punjab. The Petitioners applied for recruitment against the said advertised post of ‘Ayas’ and after due process were appointed, as such, by the Chief Executive Officer, District Health Authority (Respondent No. 2 in this Petition) on contract basis on 24.01.2018. The Petitioners joined duties and started to perform their functions under their respective appointment letters. Respondent No. 1, the Program Director of the Program vide order dated 13.03.2018 directed Respondent No. 2 to withdraw the offer of appointment letters issued to the Petitioners and in response to the said direction, Respondent No. 2 withdrew the said appointment letters vide Order dated 20.03.2018 without conducting any regular inquiry or hearing the Petitioners. The said Order was challenged by the Petitioners and others by filing Writ Petition No. 2979/2018/BWP before this Court seeking to set aside the withdrawal of appointment letters and regularization of their service. The Order dated 20.03.2018 regarding withdrawal of appointment letters was suspended as an interim measure and the said Petition was disposed of on 02.02.2021 with a direction to the Petitioners to file applications for regularization of their services before Respondent No. 1 for decision in accordance with law within 30 days. The Respondents were also directed not to disturb the Petitioners, if they were in service and also release their payable salaries. Thereafter, the Petitioners moved their applications before Respondent No. 1 for regularization or extension of their contract services. Consequently, order dated 24.03.2021 was passed by Respondent No. 1 through which the request of the Petitioners was declined. Pursuant to the said Order, the Petitioners were relieved from their posts vide Order dated 30.03.2021 passed by Respondent No. 2.

3. Learned counsels representing the Petitioners submitted that Respondents Nos. 1 & 2 were not competent to issue the impugned letter dated 13.03.2018 and Order dated 20.03.2018, respectively, regarding withdrawal of initial offer of appointment letters issued in favour of the Petitioners as the Petitioners were selected after following the due process of law in response to an advertisement published in this behalf. The Petitioners have not relinquished their charge till today and are continuously working against the said posts. The impugned action of withdrawing the appointment letters offended the basic and fundamental rights of the Petitioners conferred under Articles 9, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”). No specific and plausible reason had been assigned with respect to withdrawal of the appointment letters of the Petitioners. The adverse action was taken by Respondent No. 1 in order to accommodate blue eyed persons by depriving the Petitioners from their respective appointments. The posts of ‘Ayas’ are of permanent nature and character. The Program in essence is funded by the Government of the Punjab and is not a time bound Program. The seats against which the Petitioners were appointed are still vacant. The Petitioners are also entitled for regularization of their services in terms of the provisions of the Punjab Regularization of Service Act, 2018 (Act XV of 2018) (the “Act”). To support the aforesaid contentions, reliance was placed upon cases titled, “Secretary to Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan” (1996 SCMR 413); “Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali” (2006 SCMR 678); “Executive District Officer (Edu.), Rawalpindi and others v. Mst. Rizwana Kausar and 4 others” (2011 PLC (C.S.) 1296); and “Sughran Begum v. Metropolitan Corporation of Lahore and others” (1996 CLC 472).

1. Learned counsel for the Respondents submitted that the Program is a part of the development component of the Annual Development Program of the Government of Punjab. The Petitioners were working on contract basis against the posts of ‘Ayas’ in the Program and were relieved in pursuance of Order No. 1941-49/IRMNCH-Lhr dated 24.03.2021 issued by Respondent No. 1 followed by Letter No. 189-239/CEO (DHA) dated 30.03.2021 issued by Respondent No. 2. As such, the Petitioners are no more in service since 30.03.2021. The Petitioners as contractual employees could not have invoked the remedy by way of filing of this constitutional Petition under Article 199 of the Constitution. It was further asserted that without prejudice to the fact that the Petitioners stood relieved from their posts the Program was time bound and was being funded from the development side of the budget and the employees were appointed on purely contractual basis, hence, the Petitioners were not entitled for regularization until the Program was moved from the development to non-development side of the budge. The appointment letters of the Petitioners specifically stated that they could not claim regularization as a matter of right. The Petitioners also did not fall within the scope of the Act since project employees are specifically excluded with respect to regularization under Section 2(c) of the Act. It was further contended that the initial appointments of the Petitioners were made by Respondent No. 2 in abuse of his lawful authority and in violation of the policy directive issued by the Program Director of the Program. The entire selection process was also in violation of the criteria laid down in the advertisement and the Program policy, therefore, the initial appointments of the Petitioners were illegal, unlawful and void. In this context, Respondent No. 1 directed Respondent No. 2 to withdraw the appointment letters of the Petitioners. The representations of the Petitioners regarding their regularization were declined vide order dated 24.03.2021 and they were relieved from the contractual services with effect from 30.03.2021. Although their initial appointments were void, yet they were allowed to join their services in compliance of the injunctive Order passed by this Court. The Petitioners have been paid till 30.03.2021 i.e. the date they remained on duty and no arrears with respect to their salaries are pending. The Petitioners who absconded from duty or left their jobs before 30.03.2021 were paid till the date they remained employed and performed their duties before the cut off date i.e. 30.03.2021. The assertion by learned counsel for the Petitioners that the Petitioners are still in service is a blatant concealment of fact from this Court. Accordingly, it was prayed that the titled and connected Petitions be dismissed.

2. Arguments heard. Record perused.

6. The perusal of record shows that the posts of ‘Ayas’ were advertised and the Petitioners were appointed on contract basis on 24.01.2018 for a period of one year in different districts by the concerned Chief Executive Officers, District Health Authority. The Process of recruitment was scraped by Respondent No. 1 who issued directions to the Chief Executive Officer, District Health Authority (Respondent No. 2) to withdraw the appointment letters of ‘Ayas’ vide letter dated 13.03.2018 referred above as Respondent No. 2 was not the competent authority to issue the said appointment letters. Accordingly, the appointment letters were withdrawn by Respondent No. 2 vide Order dated 20.03.2018. This Court suspended the said withdrawal order vide Order dated 28.03.2018 passed in W. P. No. 2979 / 2018. As such, the Petitioners remained employed at their respective places of postings against payment of salaries. Eventually, the said Petition was disposed of with a direction to the Petitioners to file applications before Respondent No. 1 for regularization of their contractual services which were declined on 24.03.2021 by Respondent No. 1. Consequently, the Petitioners were relieved from their respective postsvide orders dated 24.03.2021 and 30.03.2021 referred supra. The Appointment letters were issued on 24.01.2018 on contract basis for a period of one year. Clause-5 of the said appointment letters clearly stipulated that the appointments were purely temporary on contract basis extendable on satisfactory performance and in the best public interest. Clause 12 thereof, provided that the contract appointments would neither confer any right of regular appointment to the same post nor the service shall be counted towards seniority. It is, therefore, clear that the Petitioners remained employed much beyond their period of contract of one year on the basis of an interim relief granted by this Court and were eventually relieved from their contractual appointments which was not extended as per the specific terms and conditions of the contract which they accepted at the time of joining their posts. The Petitioners have been paid salaries till the date of relieving or performance of duty. The Program was time bound. The documents placed on record indicate that the Petitioners were appointed in the second phase of the Program which was being funded by the Government in collaboration with the Program partners from the development side of the budget under support from several international agencies.

7. Any project which is temporary in nature and character, not part of non-development budget, dependent on discretionary Government allocation and foreign funding, aimed to achieve specific objectives and liable to termination abruptly upon lack of funding or fulfillment of objectives is a time-bound project. Specific time period may not be prescribed before hand and time of its termination is placed on the discretion of the executive depending upon hosts of factors including the ones listed above. An essential test is lack of permanence being not part of regular non-development budget. As such, the posts so created are not required to be sanctioned against regular budgetary allocation by the Finance Department.

8. In case titled, “Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others” (2019 SCMR 648) it was unequivocally held by the Honourable Supreme Court of Pakistan that the constitutional Petition filed by a contract employee was not maintainable even when the contract was terminated before the term of contract. The only remedy available to a contractual employee is to seek damages for wrongful termination or for any alleged breach of the contract or failure to extend the contract. Further, in case titled, “Province of Punjab through Secretary Agriculture Department, Lahore and others v. Muhammad Arif and others” (2020 SCMR 507) it has been specifically held that in any time bound project, the contract employee has no right of regularization in service. Further, under Section 2 (c) of the Act, the contract employees employed in a project, such as the Program, were specifically excluded from the benefit of regularization. The issue was settled with respect to a project similar to that of the Program, launched by the Government under the public sector development program called “National Program for Improvement of Watercourses in Pakistan”. In the said project, employees were appointed on contract basis initially for a period of four years which was extended from time to time but stood terminated on the closure of the project. The said pronouncement of the Honourable Supreme Court of Pakistan is squarely applicable to the facts and circumstances of this case. Furthermore, in case titled, “Miss Naureen Naz Butt v. Pakistan International Airlines through Chairman, PIA and others” (2020 SCMR 1625) it was explicitly and clearly held that a contract employee has no vested right to remain in service after expiry of the contract period and that where the period of contract employment expires by efflux of time, there remains no vested right to remain in employment of the employer and the Courts could not force the employer to reinstate or extend the contract of such employee. The relationship of master and servant is attracted and applicable with respect to the contract employees and, therefore, a constitutional Petition is not maintainable. In this case, the employee had specifically asserted that on account of 10 years of service, his case for being a permanent employee had matured and the employment could not have been terminated. In this behalf, the Apex Court observed that the employee who was appointed on contract basis for one year which was extended till the expiry of last contract on a particular date had no vested right against termination upon expiry of the contract. It was further held that where the terms and conditions of service are not governed by any statutory rules of service, normally a constitutional Petition is not maintainable and the doctrine of master and servant is fully attracted.

9. Conversely, the case of Secretary to Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another (supra) relied upon by learned counsels for the Petitioners pertains to an irregular appointment of a civil servant. The case of Province of Punjab through Secretary, Agriculture, Government of Punjab and others (supra) is regarding irregular employment of a regular employee who was proceeded against under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 after 10 years of his initial appointment. The case of Executive District Officer (Edu.), Rawalpindi and others (supra) is also on similar lines under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. Further, the Sughran Begum case (supra) holds that an employee is entitled to salary for services rendered. The Petitioners in the instant and connected Petitions have been remunerated against services rendered. Hence, the case law relied upon by learned counsels for the Petitioners is distinguishable and is not attracted to the facts and circumstances of this case.

10. In view of the above discussion, it is manifestly evident that the Petitioners were appointed on contract basis under specific terms and conditions which were duly accepted by them. Their contract was not extended and they were accordingly relieved after expiry of the term of contract. Rather, under the protection of interim relief granted by this Court, the Petitioners served more than the initial term of their respective contracts and have also been paid salaries for the period they have rendered their services. The question as to whether their initial appointment was void on account of lack of competency or authorization of Respondent No. 2 has become redundant and academic since the Petitioners have completed their term of contract. Accordingly, the titled as well as connected Petitions are dismissed being not maintainable.

Annexure-A

| | | | | | | --- | --- | --- | --- | --- | | Sr. No. | Writ Petition # | Title | District | Date of impugned Order of Respondent No. 1 | | 1. | 5636/2021/BWP | Sidra Noor Versus Government of Punjab & three others | Lodhran | 03.05.2021 | | 2. | 3344/2021/BWP | Mst. Sumera Bilal & 12 others Versus Province of Punjab & four others | Lodhran | 24.03.2021 | | 3. | 3084/2021/BWP | Samra Parveen Versus Government of Punjab & five others | Bahawalpur | 24.03.2021 | | 4. | 3202/2021/BWP | Iqra Murtaza & eight others Versus Government of Punjab & four others | Bahawalpur | 24.03.2021 | | 5. | 3545/2021/BWP | Mst. Shakeela Hussain & three others Versus Government of the Punjab & six others | Bahawalpur | 24.03.2021 | | 6. | 3244/2021/BWP | Mst. Sana Zulfiqar & two others Versus Province of Punjab & five others | Bahawalpur | 24.03.2021 | | 7. | 2944/2021/BWP | Sumaira Tariq & another Versus Province of Punjab and four others | Bahawalpur | 24.03.2021 | | 8. | 5643/2021/BWP | Mst. Nadia & another Versus Province of Punjab & five others | Bahawalpur | 24.03.2021 |

(Y.A.) Petitions dismissed

PLJ 2022 Lahore 29

Present: Sultan Tanvir Ahmad, J.

ZULQERNAIN KHURRAM and another--Petitioners

versus

PUNJAB HEALTHCARE COMMISSION and 4 others--Respondents

W.P. No. 49447 of 2021, heard on 31.8.2021.

Punjab Healthcare Commission Act, 2010 (XVI of 2010)--

----Ss. 2(XXIX) & 31--Anti-Quackery Regulations 2016, Reg. 2(g)--Unqualified persons were practicing Allopathic--Providing of healthcare Service without license--Remedy of appeal--A surgical operation of a patient namely Mst. Aqsa Bibi is being conducted by some unauthorized persons--Petitioner were rendering healthcare services--Allegedly, both of said service providers were providing medical services without basic medical education or license to practice and registration from Pakistan Medical and Dental Council/Pakistan Medical Council (PMC), in contravention of various provisions of Punjab Healthcare Commission Act, 2010--Unqualified persons were practicing allopathic for which evidence was collected and placed on record--Proceedings were conducted by Punjab Healthcare Commission (the Hearing Committee) which reached to conclusion that healthcare establishment is responsible for illegal and unauthorized practice of allopathy system of medicine as well as quackery in terms of Section 2 (XXIX) of Punjab Healthcare Commission Act, 2010 and Regulation 2(g) of Anti-Quackery Regulator’s 2016; Fine was imposed--During aforesaid visit by authorized officer of Commission, doctor allowed to practice allopathy system was not found present--No proof of their presence is attached with this petition or provided to Commission or Appellate Court to their satisfaction--Contention of counsel for Petitioners regarding not providing proper opportunity for cross-examination is concerned, same appears to be afterthought--This contention was never raised in appeal--Remedy of appeal is provided in statute i.e--Section 31 of Act, and grievances relating to refusal of Commission to issue or renew a license or decision to suspend or revoke a license or order of Commission to improve or closing healthcare establishment as well as relating to imposition of fine by Commission can be assailed by way of appeal within thirty days from communication of said orders of Commission--Presumption that arises in favour of official act and until this presumption is rebutted, action cannot be challenged by simply raising allegation of bad-faith--The one, who raises this allegation must bring something rational on record showing deviation from due process of law or clearly visible from circumstances, as initial burden to construct a cause to further proceed--Punjab Healthcare Commission Act, 2010 and Regulations have provided a mechanism whereby commission has been equipped with specialists of particular field relating to healthcare establishment assisted by technical advisory committee consisting of experts from concerned--High Court should not interfere in findings of Appellate Court merely because a different conclusion is possible from reappraisal of facts--Counsel of petitioners has failed to show any jurisdictional defect, illegality or gross misreading or non-reading of evidence requiring any interference through this constitutional petition--Petition was dismissed.

[Pp. 30, 31, 33, 34, 36, 37, 39 & 40] A, B, C, D, E, F, G, I, J, K, L & M

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--When a person fails to avail remedy of review, revision or appeal if provided by Statute, constitutional jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 can only be invoked in limited and exceptional circumstances. [P. 34] H

Mr. Muhammad Azhar Kashif, Advocate for Petitioner.

Mr. Asif Mehmood Cheema, Addl. Advocate General with Imran Rasheed, Deputy Director (Legal) on behalf of Respondents No. 1, 2 and 3.

Date of hearing: 31.8.2021.

Judgment

Through present petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 judgment dated 31.07.2021 passed by learned District and Sessions Judge, Tobatek Singh, in Healthcare Appeal No. PB-T.T.S-Civil A. 286-2021/22-13 of 2021 under Section 31 of the Punjab Healthcare Commission Act, 2010 (the) of 2021 has been challenged.

2. The facts, necessary for the disposal of the present writ petition, are that Muhammad Arshad Latif, Assistant Director (Enforcement), Punjab Healthcare Commission, Lahore visited the Healthcare Establishment on 09.04.2021 on the complaint that a surgical operation of a patient namely Mst. Aqsa Bibi is being conducted by some unauthorized persons and the said officer visited the establishment and found Muhammad Amir Waseem and Zulqernain Khurram (Petitioner No. 1) were rendering healthcare services. Allegedly, both of the said service providers were providing medical services without basic medical education or license to practice and registration from Pakistan Medical and Dental Council/Pakistan Medical Council (PMC), in contravention of various provisions of the Punjab Healthcare Commission Act, 2010 (PHCA, 2010) and the Punjab Healthcare Commission Regulations for banning quackery in all its forms and manifestations (Anti-Quackery Regulations, 2016). The aforesaid officer reported that 6 to 7 patients were present at the time of his visit. Blood of one child was being transfused. Allegedly, a patient of C-Section was also admitted for which no record was available in hospital. It was also found that LHV was available in the dispensary which was open at the material time. It was reported that unqualified persons were practicing allopathic for which evidence was collected and placed on record. Resultantly, the operation theater (OP) was sealed. On 30.04.2021, the authorized officer again visited the healthcare establishment and found the same functional despite the fact that it was sealed on 09.04.2021, in violation of the law. Allegedly, it was found that Muhammad Amir Waseem resumed his allopathic practice at the same premises, who failed to give any explanation regarding the aforesaid position. The team of the Commission also found that certain patients were admitted in healthcare establishment, leaving no option but to again seal the operation theater and patients were shifted.

3. The proceedings were conducted by the Punjab Healthcare Commission (the Hearing Committee) which reached to the conclusion that the healthcare establishment is responsible for illegal and unauthorized practice of allopathy system of medicine as well as quackery in terms of Section 2 (XXIX) of the Punjab Healthcare Commission Act, 2010 and Regulation 2(g) of Anti-Quackery Regulator’s 2016; Fine of a Rs. 5,00,000/- (Rupees five hundred thousand only) was imposed upon Muhammad Amir Waseem, Abdullah and Petitioner No. 1, collectively. Hearing Committee also decided to de-seal the premises subject to the following conditions:

“24. The Hearing Committee has further decided to De-Seal the premises subject to:

(i). Payment of aforementioned amount of fine;

(ii). Submission of affidavit of Respondents to the effect that they shall not indulge in quackery or illegal activities again.

(iii). Undertaking that no healthcare services will be provided without registration from Punjab Healthcare Commission.

1. Besides the above, undertaking was obtained from the owner of the premises/incharge of healthcare establishment as well as warning was issued.

2. The aforesaid order was challenged by way of Healthcare Appeal No. PB-T.T.S-Civil.A.286-2021/22-13 of 2021 dated 12.07.2021 before the District and Sessions Judge, Tob Tek Singh. This appeal was also dismissed on 31.07.2021.

3. Mr. Muhammad Azhar Kashif, Advocate for the Petitioners has submitted that the allegations against the Petitioners are false and the healthcare establishment was conducting its operation through qualified persons who are registered with Pakistan Medical Council; that Petitioner No. 2 (Dr. Muhammad Maqsood) is qualified doctor and there is no embargo on his practice or services of healthcare commission establishment; that Petitioner No. 1 is a dispenser; that application for registration of healthcare establishment was filed with Pakistan Medical Council and the same is already pending with the said department; that the delay in registration by Pakistan Medical Council as well as proceeding are based on mala fide; that learned Appellate Authority has failed to give well-reasoned findings on issues raised by the Petitioners.

4. Conversely, Mr. Asif Mehmood Cheema, Additional Advocate General and Mr. Imran Rasheed, Deputy Director Legal (on behalf of Respondents No. 1 to 3) have opposed the petition and supported the impugned judgment.

5. I have heard arguments of learned counsel for the parties and with their able assistance perused the record.

6. Record reflects that statements of five persons namely, Muhammad Amir Waseem, Muhammad Zulqernain Khurram, Abdullah, Dr. Muhammad Maqsood/Petitioner No. 2 and Dr. Muhammad Suleman Ali were recorded by the Hearing Committee. The witnesses have not denied the visits of the authorized officer on 09.04.2021 and 30.04.2021 as well as the presence of the patients, as detailed above.

7. Muhammad Zulqernain Khurram, Abdullah, Naeem and Muhammad Amir Waseem do not possess the requisite qualification and they are not authorized to practice allopathy system of medicines, independently as the certificates/diplomas issued by The Punjab Medical Faculty itself exclude the Petitioners from independently practicing. The certificate attached with this petition and relied upon by the learned counsel, itself clearly indicates as under:

“This certificate does not authorize the holder to practice independently or to open a private clinic”

11. During the aforesaid visit by the authorized officer of the Commission, doctor allowed to practice the allopathy system was not found present. No proof of their presence is attached with this petition or provided to the Commission or the Appellate Court to their satisfaction. It is admitted by the parties that the healthcare establishment is not registered with the Punjab Healthcare Commission till to-date. Learned counsel for the Petitioners has relied upon letters dated 30.12.2020 and 30.04.2021, requiring information and documents from the Petitioners/service providers. Some of the required information is yet to be provided to Punjab Healthcare Commission.

12. As far as the contention of the learned counsel for the Petitioners regarding not providing the proper opportunity for cross-examination is concerned, the same appears to be afterthought as none of these contention is recorded in the judgment dated 31.07.2021 passed by the learned first Appellate Court. Perusal of the Healthcare Appeal No. PB-T.T.S-Civil.A.286-2021/22-13 of 2021 dated 12.07.2021 also reflects that this contention was never raised in the appeal. When a particular plea or objection is not raised before the learned fora below, it is not open for the party to raise the controversy at this stage. This plea was always available to the Petitioners, which is neither a part of the impugned judgment nor is given in the appeal, which shows that Petitioners were satisfied with adopted procedure. Now, the same cannot be allowed to be raised in the Constitutional jurisdiction of this Court. There are number of judgments of this Court which have already settled this law point including cases titled “Muslim Commercial Bank Ltd. versus The Punjab Labour Appellate Tribunal, Lahore and others ” (1989 PLC 209) “Daulat Bibi versus Galeen Khan and another”(1991 MLD 2335) “Mst. Shaheen Bibi (Nusrat Shaheen) versus Zulfiqar Ali Shah Kazmi and 2 others” (1995 CLC 306).

1. Relevant para of case titled “Daulat Bibi versus Galeen Khan and Another” (1991 MLD 2335) is as under:

“There is nothing in the judgment of the Additional District Judge to show that the findings on these issues were challenged before him during the course of arguments. In these circumstances, it is not open to Respondent No. 1 to raise these points now. It has been held by this Court in Mumtaz Begum v. Sh. Inayat Ullah PLD 1969 Lah. 16 and Saleh Muhammad v. Abdul Manan and another (1984 CLC 3321) that if an argument has not been noticed in the impugned judgment, the presumption is that point was never raised before that Court. It is also to be seen that no affidavit either of the counsel or the respondent specifically to the effect that these points were raised before the Additional District Judge, has been filed in this Court”.

(Emphasis supplied)

1. Even otherwise, Mr. Imran Rasheed, Advocate for the Respondents No. 1 to 3 has placed on record the documents showing written questions and answers put to the persons who appeared and gave affidavits. Therefore, this contention of the learned counsel is rejected being not tenable in law.

15. It has been observed that Petitioner No. 2 has not filed appeal against order of the Punjab Healthcare Commission before learned District Judge. The remedy of appeal is provided in the statute i.e. Section 31 of the Punjab Healthcare Commission Act, 2010 and grievances relating to refusal of the Commission to issue or renew a license or decision to suspend or revoke a license or order of the Commission to improve or closing the healthcare establishment as well as relating to imposition of fine by the Commission can be assailed by way of the appeal within thirty days from the communication of the said orders of the Commission.

16. I also agree with the contention of Mr. Asif Mehmood Cheema, Additional Advocate General that Petitioner No. 2 has opted to file this constitution petition without availing remedy provided under the Statute and after expiry of the period of limitation for filing the appeal, therefore, Petitioners cannot invoke the constitutional jurisdiction of this Court as an alternate. Grant of such concession, in the circumstances of the case, would amount to frustrate the law. When a person fails to avail the remedy of review, revision or appeal if provided by Statute, the constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can only be invoked in the limited and exceptional circumstances. In this regard, the Honourable Supreme Court of Pakistan in case titled “Farzand Raza Naqvi and 5 others versus Muhammad Din through Legal Heirs and others” (2004 SCMR 400) has observed as follows:

“4. There is no cavil to the proposition that if the remedy of appeal is available to a party under the statute, without availing such statutory remedy, the Constitutional jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be invoked and the remedy of writ petition cannot be allowed to be availed as substitution of appeal. Following the above rule, the High Court undoubtedly in the normal circumstances, should not entertain the Constitution petition if an alternate remedy under the relevant statute is available to a party but this rule does not create bar of jurisdiction rather it regulates the Constitutional jurisdiction, of High Court and thus in exceptional circumstances, the High Court may exercise its Constitutional jurisdiction in a matter in which the statutory remedy of appeal or revision as the case may be, was available but could not be availed. The order impugned in the writ petition if is a void order or it was passed without jurisdiction, the non- availing of alternate remedy of appeal, review or revision against such an order would not debar the High Court to proceed in Constitutional jurisdiction and declare such an order as without lawful authority. The rule that High Court should not entertain the Constitution petitions and adjudicate the matter in its Constitutional jurisdiction, in which remedy of appeal, review or revision is available under the statute, is not an absolute rule and to exceptional cases the strict observance of the rule that extraordinary remedy of writ petition cannot be availed in a matter in which the relief being sought under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 could be granted by way of appeal, review or revision, may cause injustice in substance, therefore, the application of this rule would depend on the facts and circumstances of each case”.

(Emphasis supplied)

1. These exceptional circumstances, which include an order passed without jurisdiction or a void orders are not available in present case. Even if there was some infirmity (to the extent of Petitioner No. 2) in the order passed by the Hearing Committee, the same could have been assailed before the learned District Judge/Appellate Authority. There is nothing on record reflecting that the Petitioner was restricted from approaching the Appellate Authority, which was adequate and expeditious remedy.

2. Mr. Muhammad Azhar Kashif, Advocate has zealously argued as to the mala fide on the part of Commission and the Authorities. Mala fide is pleaded for both (i) impugned proceeding as well as order passed by the Committee on 15-06-2021 and (ii) failure to provide registration in terms of Section 13(1) of the Act of 2010, which provides that a healthcare services provider shall not supply healthcare services without being registered under this Section, though filing of application is provisional registration in terms of Section 13(4) of the Act. However, it is observed that learned counsel for the petitioner could not spell out or give details of this allegation of mala fide. No reason could be explained as to why the health commission or its authorities have acted with mala fide.

3. Raising allegations of mala fide, without substantiating the same or reasonable and plausible explanation for the allegation, has become a practice without realizing such allegations may blemish the character of other person(s) or departmental credibility. This allegation of bad-faith, keeping in view the definition of ‘faith’ for the present scenario, essentially means that one is challenging loyalty of the official to his duty or allegiance to his department as well as to the society. Undeniably, some of these allegations are result of inaccuracy of Government controlled sectors, institutions or bodies to gain absolute public trust and curb the components of the departments/ bodies who causes ignominy to given department or results into this embracement but at same time this certainly does not mean to assume mala fides behind every official act or action of aforesaid entitites. Nevertheless, if the baseless and unfounded allegations of bad-faith behind every act are not discouraged, then those who are faithfully serving the Country will be disheartened causing further damage to the society. Not every lacuna or judgmental error or minor mistake can be taken as an indication or supposition of mala fide/bad-faith. Both parts have rights to be watched and guarded, one who can be victim of bad-faith and/or neglect of duty by official(s) and on the other hand officials as well as their respective departments/entities, who are also to be equally protected from wrong allegations/accusations as to their faith, in sense of loyalty, resulting into humiliation.

20. The way to examine is to initially presume the given act of department or its official as untainted. This presumption, however, is rebuttable presumption that arises in favour of the official act and until this presumption is rebutted, action cannot be challenged by simply raising allegation of bad-faith. Article 129 of Qanun-e-Shahadat Order, 1984 and the illustration (g) of the said Article in its true spirit has the same rational and wisdom which requires to presume that official acts have been regularly performed.

21. The one, who raises this allegation must bring something rational on record showing deviation from due process of law or clearly visible from circumstances, as initial burden to construct a cause to further proceed. Then for the final success, on the plea of mala fide, the party alleging has heavy burden to be discharged. Obviously, this burden is not that is required in the criminal cases or ‘beyond reasonable doubt’ but certainly evidence in this regard should be at least ‘clear and convincing’.

22. In this regard further guidance can be taken from the observations of the Honourable Supreme Court of Pakistan in cases titled “Dr. Akhtar Hassan Khan and others versus Federation of Pakistan and others” (2012 SCMR 455) “Khushal Khan Khattak University through Vice-Chancellor and others versus Jabran Ali Khan and others” (2021 SCMR 977), “Government of Khyber Pakhtunkhwa through Chief Secretary and others versus Muhammad Khurshid” (2021 SCMR 369) and “State Bank of Pakistan versus Franklin Credit and Investment Company Ltd. through Attorney” (2009 CLD 1542 SC), which are highly important in the present case.

1. The relevant part of “Khushal Khan Khattak University” (Supra) is as follows:

“17. The learned counsel for the Respondents has alleged mala fides on part of the Appellants in not appointing the Respondents. We note that other than a mere allegation of mala fides no material of any nature has been placed on record to substantiate the allegation. It needs no repetition that mala fides where alleged must be proved. We also note that the P&SC comprised of five independent members of good credentials and standing and nothing has been shown or even alleged indicating mala fide or bias against the Appellants. Notwithstanding the above, we note that even otherwise, the Vice Chancellor only has the power to fill temporary posts for a limited duration and is neither competent nor has the power to make permanent appointments as provided in Section11(5)(d) of the University of KP (Amendment) Act, 2016 which provides as under:

“(5) The Vice-Chancellor shall also have the powers to (d) create and fill temporary posts for a period not exceeding one year after which the posts shall stands abolished;”

COULD THE HIGH COURT GO INTO FACTUAL CONTROVERSIES INVOLVED IN THE CASE WHILE EXERCISING JURISDICTION UNDER ARTICLE 199 OF THE CONSTITUTION?

1. The learned counsel for the Respondents has alleged that the P&SC and the Syndicate disenfranchised the Respondents and this act was mala fide and discriminatory. Further, the learned High Court has made the following observations in the impugned judgment:

“The finding of the Promotion and Selection Committee is based on mala fide and to justify the non-appointment of petitioners declared them failed in the so-called interview. As the petitioners were not treated in accordance with the law, and Constitution of 1973 and as they were meted out with discrimination and were ousted and deprived of their legal, constitutional and vested right to be appointed on the posts, for which they had successfully, went through all the codal formalities and had passed not only the test conducted through ETEA but also the skill test.”

The above findings of the High Court are neither supported by the record nor by the law on the subject. Further, these findings are in contradiction to the order dated 12.11.2018 passed by the High Court for the reason that the High Court had itself directed the Syndicate to undertake an inquiry into the matter. Once having reposed confidence in the Syndicate, it could not have substituted the findings of the Syndicate without proof of mala fides, bias, illegality or lack of transparency which was non-existent in the instant case. Further, all the findings recorded by the learned High Court in the impugned judgment relate to questions of fact which could not have been gone into in exercise of constitutional jurisdiction specially so since these required recording of evidence which exercise could not have been and was not undertaken by the High Court.”

(Emphasis Supplied)

1. It will also be advantageous to reproduce paragraphs 20 of case titled “State Bank of Pakistan versus Franklin Credit and Investment Company Ltd, through Attorney” (Supra):

“20. It is also well settled that the acts performed by public authorities deserve due regard by the Courts and every possible explanation for their validity should be explored and the whole gamut of powers in pursuance to which they act or perform their functions and discharge their duties should be examined. A presumption of regularity is attached to the official acts. Reference may usefully be made to the cases of Saghir Ahmed (supra), Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs and others v. Aftab Ahmed Khan Sherpao and others PLD 1992 SC 723, Government of Sindh through Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782, Syed Muhammad Khurshid Abbas Gardezi and others v. Multan Development Authority and others PLD 1983 SC 151, Lahore Improvement Trust v. Custodian, Evacuee Property PLD 1971 SC 811, Chairman Pakistan Railway Board, Chittagong and others v. Abdul Majid Sardar PLD 1966 SC. 725 and Federation of Pakistan and others v. Ch., Muhammad Aslam and others 1986 SCMR 916”.

(Emphasis Supplied)

1. The learned counsel for the petitioner has not shown any elements of arbitrariness, favoritism and material disregard of mandate of law, discrimination or visible animosity of the authorized official, Hearing Committee or Commission against the petitioners, therefore, the contentions as to mala fide, cannot be accepted.

26. Punjab Healthcare Commission Act, 2010 and the Regulations have provided a mechanism whereby the commission has been equipped with the specialists of the particular field relating to the healthcare establishment assisted by technical advisory committee consisting of experts from the concerned. Besides other objectives the Commission has to fix the standard of healthcare services and maintain the same under the mandate of Chapter-14 of the Punjab Healthcare Commission Act, 2010. The Commission and its Hearing Committee are best suited to determine as to whether any of the healthcare establishment or service providers are maintaining the required or settled standard. Therefore, the questions raised by learned counsel for the Petitioners regarding the standards of this particular healthcare establishment are suitably answered by the appropriate forum, which in this case is the Committee constituted by the Healthcare Commission. Committee has already given findings of facts against the Petitioners. These findings have been maintained by the learned Appellate Court.

27. The learned Appellate Court through a detailed judgment and after considering all the facts has concurred the findings of the Committee, which are cogent and consistent with the available record. The same cannot be interfered only because any different conclusion can be possible by appraisal of facts. The Honourable Supreme Court of Pakistan in case titled “Mst. Mobin Fatima versus Muhammad Yamin and 2 others” (PLD 2006 Supreme Court 214) has already observed that High Court should not interfere in findings of the Appellate Court merely because a different conclusion is possible from the reappraisal of the facts. The Constitutional Jurisdiction should

only be exercised when the findings of learned Appellate Court are shown to be devoid of merits or contrary to the record. Paragraph No. 8 of the said judgment is as under:

“8. The High Court, no doubt, in the exercise of its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can interfere if any wrong or illegal conclusions are drawn by the Courts below which are not based on facts found because such an act would amount to an error of law which can always be corrected by the High Court. However, in the present case, the interference was made by the High Court merely because a different conclusion was possible from the facts found. This is our view would not amount to an error of law. The appellate Court had discussed the entire evidence. Its judgment did not suffer from any misreading or non-reading of evidence. The findings of the appellate Court were cogent and consistent with the evidence available on the record. Its conclusions were in accordance with the facts found. The finality was attached to its findings which could not be interfered with merely because a different conclusion was also possible. The High Court, in the present case, in our view, exceeded its jurisdiction and acted as a Court of appeal which is not permissible under the law. Therefore, the High Court ought not to have undertaken the exercise of the reappraisal of the evidence.”

(Emphasis supplied)

28. Learned counsel of the petitioners has failed to show any jurisdictional defect, illegality or gross misreading or non-reading of evidence requiring any interference through this Constitutional Petition. The petition is, therefore, dismissed, with no order as to costs.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 40

Present: Abid Hussain Chattha, J.

MUHAMMAD IMRAN--Petitioner

versus

FULL BENCH NIRC and others--Respondents

W.P. No. 31827 of 2021, decided on 24.5.2021.

Industrial Relations Commission Act, 2012 (X of 2012)--

----Ss. 2(xxxiii) & 33--Termination from service--Scope of duties--Moot point for determination before Single Bench and Full Bench of NIRC was whether Petitioner is a 'workman' or not under Section 2(xxxiii) of Act--In order of determine whether petitioner is a workman or not, nature and scope of duties have to be looked into--Petitioner was engaged as an Officer Grade-III and was officer Grade-l on date of his termination-- Officers Grade-I to III of National Bank of Pakistan were held to be not workmen--Petitioner is held not to be a workman and as such, was not entitled to invoke jurisdiction of NIRC. [Pp. 41, 42 & 43] A, B, C & D

Mr. Mustansar Hayat, Advocate for Petitioner.

Date of hearing: 24.5.2021.

Order

The brief facts leading to the institution of this Constitutional Petition are that the Petitioner was an employee of Faysal Bank Limited (Respondents No. 3 to 5, hereinafter referred to as the "Bank") and was appointed as Officer Grade­ III in the Bank on 30.08.2004. The Petitioner was terminated on 03.05.2013. Thereafter, he filed departmental appeal which was dismissed on 27.05.2013. Feeling aggrieved, the Petitioner instituted a Griovance Petition under Section 33 of the Industrial Relations Commission Act, 2012 (Act No. X of 2012) (the "Act'') praying therein that the termination order dated 03.05.2013 and 27.05.2013 be set aside and he be reinstated into service with all back benefits. The Grievance Petition was accepted by the Single Bench of National Industrial Relations Commission (the NIRC) on 05.03.2019. The Bank filed an appeal under Section 58 of the Act before the learned Full Bench of NIRC which was accepted vide impugned order dated 17.12.2020 (the "Impugned Order").

2. The moot point for determination before the Single Bench and the Full Bench of the NIRC was whether the Petitioner is a 'workman' or not under Section 2(xxxiii) of the Act.

3. The learned counsel for the Petitioner was confronted as to how the Petitioner is a workman in the light of well-reasoned judgment of the learned. Judgment of the learned full Bench of NIRC. He argued that in order of determine whether the petitioner is a workman or not, the nature and scope of duties have to be looked into. The learned counsel relied upon the Power of Attorney dated 10.10.2008 (Exhibit R3) executed by the Bank in favour of the Petitioner and submitted that the Petitioner is a workman. He supported the order of the learned Single Bench and argued that the Full Bench has erroneously concluded that the Petitioner is not a workman in terms clause 10 of the Power of Attorney.

1. Arguments heard. Record perused.

2. I have examined the order dated 05.03.2019 passed by learned Single Bench and the Impugned Order passed by learned Full Bench of NIRC. The controversy can be easily resolved by putting clause 12 on which the learned Single Bench has relied upon in juxta position with clause 10 of the Power of Attorney relied upon by the learned Full Bench of NIRC. For facility of reference both clause 10 as well as 12 are reproduced hereunder:

| | | | --- | --- | | Clause 10 | Clause 12 | | "To commence, prosecute, continue and defend all actions, suits or legal proceedings whether civil, criminal or revenue including proceedings to procure or establish the bankruptcy or insolvency of any person or firm or liquidation or winding up of any company; to compromise or refer to arbitration any claims or disputes either in such suits or proceedings or otherwise; to appoint Solicitors, Advocates, pleaders, Vakils and other legal agents; to make, sign verify, execute plaints, petitions, written statements, tabular statements, vakalatnamas, warrants of attorney or any other papers expedient or necessary in the opinion of the Attorey to be made, signed, executed, verified, presented, presented or filed.” | "PROVIDED ALWAYS THAT no declaratory act, no deeds, documents, bills, cheques of other writing shall be issued by and under the hand of the said Attorney-in-Fact UNLESS COUNTERSIGNED BY ANY OTHER officer of the Company under Group 'A' Powers of Attorney, and PROVIDED FURTHER THAT any declaratory act or any such writing as aforesaid not so issued shall not be valid or binding." |

6. Admittedly, the Petitioner was engaged as an Officer Grade-III on 30.08.2004 and was officer Grade-I on the date of his termination. There is no denial that the Petitioner did not hold Power of Attorney and he was not officer Grade-I. The clause 10 of the Power of Attorney unequivocally confirms that the Petitioner was performing duties and functions of administrative nature which fell in the managerial and supervisory domain. Reliance on clause 12 by the Single Bench is misconceived since powers under the Power of Attorney are usually confined to primary and spct.ific functions performed by an employee and therefore, at times prohibit certain functions which do not fall within the scope of their assignment. It is a cardinal and universally accepted principle of interpretation of documents that a document must be read as a whole to ascertain the true intent and purpose of the document. Therefore, the correct approach would be to read the said Power of Attorney as a whole and give more weight to tasks entrusted upon the employee, that is to say, what he can do, rather, than what he is prohibited to do. The said Power of Attorney read as a whole confirms that the assignments entrusted to the Petitioner were that of managerial in nature and character. The clauses 2 to 11 of the Power of Attorney relate to positive powers conferred upon the Petitioner. Functions such as to purchase, negotiate, renew or process bills of exchange, to accept deposits, to endorse bills of lading, to enforce payments, delivery and transfer of all dues and securities, to vote and take part in the election of assignees, trustees and quidators on behalf of the Bank, to operate accounts with the State Bank of Pakistan and its subsidiaries sign and execute all instruments of transfer in relation to share of joint stock companies, to commence and defend all legal actions, etc, are some of the examples that the petitioner was entrusted with. Such Important functions are entrusted only to a person holding managerial post and not to workman as defined in the Act. Clause 12 is the only prohibitory clause putting restrictions upon the Petitioner regarding assignments that the cannot do singly but can do in collaboration with another officer. Therefore, the learned Single Bench of NIRC has completely misread clause 12 in isolation to conclude that the Petitioner is a workman.

7. The learned Full Bench of the NIRC had correctly relied upon the judgment of August Supreme Court of Pakistan in this behalf in case titled, National Bank of Pakistan and another vs. Anwar Shah & others, 2015 SCMR 434, in which Officers Grade-I to III of the National Bank of Pakistan were held to be not workmen. In case titled, Habib Bank Limited vs. Gulzar Khan and others, 2019 SCMR 946, it was also held that description of work and assigned tasks of an employee are relevant to determine the status of a workman or otherwise.

8. In view of the above, the Petitioner is held not to be a workman and as such, was not entitled to invoke the jurisdiction of NIRC and the Impugned Order is in accordance with law and

pronouncements of the August Supreme Court of Pakistan. The Impugned Order, therefore, does not suffer from any illegality or unconstitutionality that requires indulgence of this Court to exercise discretionary and extraordinary constitutional jurisdiction in this case.

This Petition is dismissed in limine.

(Y.A.)

PLJ 2022 Lahore 44

Present: Ali Zia Bajwa, J.

UMER DARAZ--Petitioner

versus

LEARNED ADDITIONAL SESSIONS JUDGE, etc.--Respondents

T. A. No. 48296 of 2021, heard on 6.8.2021.

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

----S. 526/22-A(6)--Constitution of Pakistan, 1973, Art. 175--Availability of remedy--Transfer application of petition before Ex-Officio justice of peace--Question of whether application u/S. 22-A Cr.P.C. can be transferred in u/S. 526 Cr.P.C.--All courts are creatures of Constitution or law and drive their powers and jurisdiction from Constitution or any law--There are many tribunals or bodies with label “court” attached to them which have many of trappings of a court or which are required to act judicially, yet they are not courts of judicature or courts of law within meaning of Article 175 of the Constitution. [Pp. 45 & 46] A, B

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

----S. 526/22-A--Three terms i.e. “criminal court”, “inquiry” or “trial” have been used in this section. [P. 48] C

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

----S. 25--Section 25 Cr.P.C. provides that by virtue of their respective offices, the session judges and on nomination by them Additional session judges are justice of peace within and for the whole of the district. [P. 49] D

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

----S. 22-A--While performing functions as ex-officio justice of peace, session judges and additional sessions judges perform quasi judicial functions---Ex-Officio justice of peace while performing functions u/S. 22-A(6) of Cr.P.C. is not a criminal court. [Pp. 49 & 50] E

Interpretation of Statute

----Maxim--“Ubi jus ibi remedium” i.e. where there is a wrong, there is a remedy. [P. 50] F

Constitution of Pakistan, 1973--

----Art. 199--Writ jurisdiction in transfer of petition u/S. 22-A of Cr.P.C.--Remedy---A person who is aggrieved by some unwarranted act, always has a remedy available under article 199 of the constitution--Where there is no other remedy available to an aggrieved person, he can approach this court under constitution.

[P. 50] G & H

Mr. Abid Hussain Khichi, Advocate for Petitioner.

Hafiz Asghar Ali and Ms. Noshe Malik, Deputy Prosecutors General for State.

Mian Ali Haider, Advocate for Amicus Curiae.

Date of hearing: 6.8.2021.

Judgment

Petitioner has filed this transfer application under Section 526 of the Code of Criminal Procedure, 1898 (hereinafter “Cr.P.C”) seeking transfer of his application filed under Section 22-A(6) of, Cr.P.C. with the office of ex-officio Justice of Peace, Lahore (hereinafter ‘JOP’). Although, today petitioner has requested for withdrawal of this petition having become infructuous as criminal case has been registered as a result of direction issued by learned Ex-officio Justice of the Peace but as it is a case of first impression and for the clarity of law qua the transfer of application filed under Section 22-A(6), Cr.P.C., I would like to decide whether application under Section 22-A, Cr.P.C. can be transferred under Section 526, Cr.P.C.

1. Learned counsel Mian Ali Haider appointed as amicus curiae by this Court submits that for deciding the maintainability of this petition, the pivotal point is the understanding of the concept of ‘Court’ and for that it is imperative to see Article 175(1) & (2) of the Constitution of Islamic Republic of Pakistan, 1973 (‘the Constitution’) which reads as under;

2. (1) There shall be a Supreme Court of Pakistan, a High Court for each Province 1[and a High Court for the Islamabad Capital Territory] and such other Courts as may be established by law.

(2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. (Emphasis Supplied)

3. As it is evident from the Article supra that the term “Court” provided under this Article includes august Supreme Court of Pakistan, High Courts of the Provinces, a High Court for the Islamabad Capital Territory and such other Courts as may be established by law. Constitution makers in their wisdom considered it necessary to expressly authorize the legislature by Article 175 of the Constitution to set up the Courts as per the requirement. Similar provisions have been provided under Constitutions of other countries like India, Australia, United States of America and Canada. So it is clear that all the Courts are the creatures of the Constitution or the law and drive their powers and jurisdiction from the Constitution or any law, under which they are constituted. Section 6 of Cr.P.C. provides a list of criminal Courts and JOP falls nowhere in that list. Justice Fazal Karim in his remarkable book titled as “Access to Justice in Pakistan” had commented that there are many tribunals or bodies with the label ‘Court’ attached to them which have many of the trappings of a Court or which are required to act judicially, yet they are not Courts of judicature or Courts of law within the meaning of Article 175 of the Constitution. At the end, learned amicus curiae has contended that office of JOP cannot be termed as a Court, hence application under Section 526, Cr.P.C. is not maintainable.

1. Heard and record perused.

2. To decide the maintainability of such application under Section 526, Cr.P.C., it will be advantageous to have a glimpse of Section 526, Cr.P.C. which is provided infra:

3. High Court may transfer case or itself try it: (1) Whenever it is made to appear to the High Court--

that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

that Some question of law of unusual difficulty is likely to arise, or

that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into a trial of the same, or

that an order under this section will tend to the general convenience of the parties or witnesses, or

that such an order is expedient for the ends of justice, or is required by any provision of this Code; it may order that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (both inclusive) but in other respects competent to inquire into or try such offence;

that any particular case or appeal; or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

that any particular case or appeal be transferred to and tried before itself; or

that an accused person be sent for trial to itself or to a Court of Session.

When the High Court withdraws for trial before itself any case from any Court, it shall, observe in such trial the same procedure which that Court would have observed if the case had not been so withdrawn.

(3) The High Court may act either on the report of the Lower Court, or on the application of a party interested, or on its own initiative.

(4) Every application for the exercise of the power conferred by this section shall be made by motion, which shall except when the applicant is the Advocate-General, be supported by affidavit or affirmation.

(5) When an accused person makes an application, under this section, the High Court may direct him to execute a bond, with or without sureties, conditioned that he will, if so ordered, pay any amount which the High Court may under this Section award by way of compensation to the person Opposing the application.

(6) Notice to Public Prosecutor of application under this section. Every accused person making any such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of grounds on which it is made, and no order shall be made on the merits of the application unless at least twenty- four hours have elapsed between the giving of such notice and the hearing of the application.

(6-A) Where any application for the exercise of the power conferred by this section is dismissed, the High Court may if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding five hundred rupees as it may consider proper in the circumstances of the case.

(7) Nothing in this section shall be deemed to affect any order made under Section197.

(8) Adjournment on application under this section : If in any inquiry under Chapter VIII or any trial, the fact that any party intimates to the Court at any stage that he intends to make an application under this section shall not require the Court to adjourn the case, but the Court shall not pronounce its final judgment or order until the application has been finally disposed of by the High Court and, if the application is accepted by the High Court, the proceedings taken by the Court subsequent to the intimation made to it shall, at the option of the accused be held afresh.

(9) If, before the argument (if any), for the admission of an appeal begins, or, in the case of an appeal admitted, before the argument for the appellant begins, any party interested intimates to the Court that he intends to make an application under this section, the Court, shall, upon such party executing, if so required, a bond without sureties of an amount not exceeding five hundred rupees that he will make such application within a reasonable time to be fixed by the Court, postpone the appeal of such a period as will afford sufficient time for application to be made and an order to be obtained thereon.

6. Minute scrutiny of this provision envisages that three terms i.e. “criminal Court”, “inquiry” or “trial” have been used in this section and are important to decide the scope of this section. These are pre-conditions to exercise the jurisdiction under this section. First and most important pre-condition to decide the maintainability of petitions like one in hand is that transferred sought for should be from a criminal Court subordinate to the High Court. So, Court has to see whether office of JOP does fall within the definition of Court or not. Appointment of JOP is governed by Section 22, Cr.P.C., which provides that the Provincial Government may, by notification in the Official Gazette, appoint for such period as may be specified in the notification, and subject to such rules as may be made by it, any person who is a citizen of Pakistan and as to whose integrity and suitability it is satisfied to be a justice of the peace for a local area to be specified in the notification. Section 25, Cr.P.C. provides that by virtue of their respective offices, the Sessions Judges and on nomination by them Additional Sessions Judges are Justices of Peace within and for the whole of the district of the province in which they are serving. So, all the Sessions Judges and on their nomination, Additional Sessions Judges are ex-officio Justices of Peace and their powers are provided under sub-section (6) of Section 22-A, Cr.P.C. Classes of criminal Courts are provided under Section 6, Cr.P.C. It will be advantageous to have a bird eye view of this section which is provided infra:

6. Classes of Criminal Courts and Magistrates: (1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in Pakistan, namely:

(i) Courts of Session;

(ii) Courts of Magistrate.

(2) There shall be the following classes of Magistrate, namely:-

(i) Magistrate of the First Class;

(ii) Magistrate of the Second Class; and

(iii) Magistrate of the Third Class, 7. Section 6, Cr.P.C. clearly envisages that under this section, besides this Court, there are two classes of Criminal Courts i.e. Courts of Sessions and Courts of Magistrates and office of JOP nowhere falls within the ambit of definition of a criminal Court. It is also pertinent to mention that under Part-II, Chapter-II of, Cr.P.C., classes of criminal Courts are provided under Chapter-A while office of JOP is established under Chapter-E of said Chapter and this placement of JOP in another chapter itself suggests that legislature has not intended to include office of JOP in the classes of criminal Courts.

8. Furthermore, it is also established and fortified by august Supreme Court in Younas Abbas and others case[1] that while performing functions as ex-officio Justice of Peace, Sessions Judges and Additional Sessions Judges perform quasi-judicial functions. Hence, while working so, they cannot be termed as a ‘Court’. In light of this discussion, it is held that ex-officio Justice of Peace while performing its functions under Section 22-A(6), Cr.P.C. is not a criminal Court and this pre-condition to exercise the jurisdiction under Section 526, Cr.P.C. is not fulfilled. As Section 526, Cr.P.C. only deals with the transfer of a proceedings before a criminal Court, hence provisions of Section 526, Cr.P.C. cannot be adhered to for transferring a proceedings under Section 22-A(6), Cr.P.C. pending before a JOP and this petition in the form of transfer application under Section 526, Cr.P.C. is not maintainable.

9. Now next point for consideration of this Court is that if an application filed under Section 22-A(6), Cr.P.C. cannot be transferred under Section 526, Cr.P.C., then whether an aggrieved person shall be left remediless? Answer without slightest hesitation is in negative. It is cardinal principle of law that “Ubi Jus Ibi Remedium” i.e. where there is a wrong, there is a remedy. The principle provides that where one’s right is invaded or infringed, the law provides a remedy to protect it. Chief Justice Marshal in Marbury v. Madison reported at 5 U.S. 137 had opined that:

“it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded… [F]or it is a settled and invariable principle in the laws of England, that every right, when withheld must have a remedy, and every injury its proper redress”.

10. Under Articles 4 and 10-A of the Constitution every person has a right to be dealt in accordance with the law and have a fair trial. A person who is aggrieved by some unwarranted act, always has a remedy available under Article 199 of the Constitution, if there is no other remedy provided in any other law, by the virtue of above stated maxim i.e. Ubi Jus Ibi Remedium. This principle has always been considered as one of the fundamental principles of law and natural justice. In our country, the jurisprudence qua this maxim is well settled through plethora of judgments[2] rendered by Constitutional Courts and it needs no further authority that when there is no other remedy available to an aggrieved person, he can approach this Court under Article 199 of the Constitution.

1. With these observations, instant petition for transfer of application filed under Section 22-A(6), Cr.P.C. is dismissed as withdrawn.

(K.Q.B.) Application dismissed

[1]. Younas Abbas and others v. Additional Sessions Judge, Chakwal and others, (PLD 2016 SC 581).

[2]. Sarafraz Saleem’s Case – PLD 2012 SC 232, Mian Muhammad Nawaz Sharis’s Case – PLD 2009 SC 644, Imtiaz Ahmed Mahmood’s Case – PLD 2003 SC 40, Mst. Zahida Sattar’s Case –PLD 2002 SC 408.

PLJ 2022 Lahore 51 (DB)

Present: Sohail Nasir and Ahmad Nadeem Arshad, JJ.

INAMULLAH KHAN MAZARI--Appellant

versus

BANK AL-FALAH and 3 others--Respondents

R.F.A. No. 259 of 2013, heard on 6.9.2021.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 20021)--

----Ss. 9 & 22--Suit for recovery--Dismissed--Special law--Ordinance is a special law that regulates relationship between Financial Institution and Customer---It is a complete code providing the procedure of banking Courts, with regard to recovery of loan from customers making default and at the same time it gives a right to customers making default and at the same time it gives a right to customers also to knock the door of the court in certain eventualities. [P. 53] A

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 20021)--

----S. 22--Maintainability of suit--Jurisdiction of Court--Claim for damages caused on commission of tort or by breach of a contract has nothing to do with default in fulfillment of an obligation arising from a financial facility--Such plea cannot be agitated before Banking Court--A claim for damages, on account of an injury or loss, caused by Financial Institution in fulfillment of its obligation in relation to finance, certainly falls within domain of Banking Court--Maintainability of suit for recovery of damages is not within jurisdiction of said Court--If officials of Bank had taken into possession car from appellant, no question arises to hold that said action was wrong or unjustified--Appeal was dismissed.

[Pp. 54 & 56] B, C & E

2007 CLD 571, 2006 CLD 1147, 2013 CLD 2030, 2017 CLD 1639 ref.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 20021)--

----S. 13(a)(b)--Powers of financial constitution-- a financial institution has been empowered to exercise direct power of recovery of property with or without intervention of the Banking Court.

[P. 56] D

Mr. Muhammad Suleman Bhatti Advocate for Appellant.

Nemo for Respondents.

Date of hearing: 6.9.2021.

Judgment

Sohail Nasir, J.--This Regular First Appeal under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance) filed by Inam Ullah Khan Mazari (appellant) is directed against the judgment and decree dated 04.09.2013 passed by the learned Judge Banking Court Multan on the basis of which suit for recovery of Rs. 2,00,00,000/- (twenty millions) as damages instituted by appellant against respondents was dismissed.

1. By filing the suit on 28.02.2007, version of appellant was that he obtained financing facility from the Bank Al-Falah Limited (contesting respondent) for the purchase of car Toyota Corolla subsequently registered as MLJ-89; it was under a higher purchase agreement and monthly installment was Rs. 25789/-; he paid the instalments regularly for ten months and thereafter due to personal engagements he could not contact the contesting respondent for three months; on 5.9.2006 he approached Asad Khan Tareen, the Manager Car Finance/Respondent No. 3 and informed him that he will pay the outstanding dues on 14.09.2006 which was agreed by him; on the relevant day appellant along with his friends went to the bank for payment of outstanding instalments and when he arrived there, his vehicle was snatched; he was also humiliated and insulted by the bank officials; appellant immediately approached the Respondent No. 3 but of no consequence; appellant insisted for return of the car as he had visited the bank for payment of outstanding installments but his efforts remained in vain; thereafter appellant had been continuously visiting the contesting respondent as well as Respondent No. 3 who prolonged the matter on one pretext or the other; on 29.09.2006, the bank officials informed the appellant that his car has been auctioned. Ultimate version of appellant was that due to the act of respondents he faced loss to his reputation as he was disgraced and humiliated therefore, he was entitled for damages of rupees 20 millions.

2. An application for leave to defend in terms of Section 10 of the Ordinance was filed by contesting respondent which was allowed vide an order dated 14.04.2008. Their version was that as appellant had committed default in payment of installments, therefore, the Bank acted in accordance with law hence suit was liable to be dismissed.

3. From the pleadings of partiers, the learned trial Court had framed following issues:

ISSUES:

1. Whether the plaintiff has no cause of action against the defendants? OPD

2. Whether the plaintiff has no locus standi to institute the suit? OPD

3. Whether the plaintiff is estopped to bring the suit? OPD

4. Whether the plaintiff is defaulter of the defendant bank and the defendants have rightly repossessed the vehicle in dispute? OPP

5. Whether the plaintiff is entitled to the decree as prayed for? OPP

6. Relief.

7. In evidence Syed Mujahid Ali Assistant Manager TCS, Ejaz Hussain Record Keeper of ETO Office Multan, Idrees Incharge Recovery Bank Al-Falah, Inam Ullah Khan (appellant), Sher Zaman Khan and Zubair Ahmad came in witness box as PW-1 to PW-6 respectively. The documents Ex-P-1 to P-9 were also produced.

8. On the other hand, Mohammad Umar Sheikh, General Attorney of the contesting respondent attended the witness box as DW-1.

9. The learned trial Court after hearing both the sides and taking into consideration their contentions proceeded to dismiss the suit for the reason that a suit for recovery on account of damages was beyond the jurisdiction of the Banking Court constituted under the Ordinance.

10. Learned counsel for appellant contended that learned trial Court was not able to appreciate that the suit filed by the appellant was not in terms of Section 9 but Section 16(3) of the Ordinance, because appellant had demanded compensation on the wrong and unjustified exercise of the direct powers by respondents for recovery of car. He further maintained that to do the complete justice, the learned trial Court was having the powers to consider the matter as an application for compensation, if the plaint was not properly drafted.

11. HEARD

10. The Ordinance is a special law that regulates the relationship between Financial Institution and Customer. It is a complete code providing the procedure for banking Courts, with regard to recovery of loan from customers making default and at the same time it gives a right to customers also to knock the door of the Court in certain eventualities. Study of the Ordinance further shows that following are the possible instances when either of the parties can approach the Banking Court:

i. Suit for recovery of amount written off, released or adjusted under any agreement, contract, or consent, including a compromise or withdrawal of any suit or legal proceedings or adjustment of a decree between a financial institution and a customer. (S.8)

ii. Suit in case of where customer or Financial Institution commits a default in fulfillment of any obligation with regard to any finance. (S.9)

iii. Application of the Financial Institution or purchaser for putting in possession of the mortgaged property. (S.15(6)).

iv. Application by customer for compensation in case the Financial Institution wrongly or unjustifiably exercises the direct power of recovery (S.16(3)).

11. A claim for damages seeking pecuniary compensation is a relative term. It may arise on account of injury or loss caused by one to the other due to commission of tort or by breach of a contractual obligation. The claim for damages caused on commission of tort or by breach of a contract has nothing to do with the default in the fulfillment of an obligation arising from a financial facility and covered under the definition of finance as provided in Section 2(d) of the Ordinance. Obviously such plea cannot be agitated before the Banking Court. Whereas, a claim for damages, on account of an injury or loss, caused by the Financial Institution in the fulfillment of its obligation in relation to finance, certainly falls within the domain of Banking Court.

1. We have gone through the contents of plaint and have no doubt in our mind that case of appellant is based on a civil wrong because of actions of respondents causing him injuries, pain and suffering therefore he has asked for compensatory damages. So it was a suit for recovery of damages from all angles and not under any of the provisions of the Ordinance referred earlier.

13. The question of maintainability of the suit for recovery of damages on account of defamation before the Banking Court has already been answered on different occasions that such claim is not within the jurisdiction of said Court.[1]

1. Reverting to the contentions of learned counsel for appellant that it was an application under Section 9 of the Ordinance, we will like to reproduce the said provisions and that is as under:

“16. Attachment before judgment, injunction and appointment of Receivers.(1) Where the suit filed by a financial institution is for the recovery of any amount through the sale of any property which is mortgaged, pledged, hypothecated, assigned, or otherwise charged or which is the subject of any obligation in favour of the financial institution as security for finance or for or in relation to a finance lease, the Banking Court may, on application by the financial institution, with a view to preventing such property from being transferred, alienated, encumbered, wasted or otherwise dealt with in a manner which is likely to impair or prejudice the security in favour of the financial institution, or otherwise in the interest of justice--

(a) restrain the customer and any other concerned person from transferring, alienating, parting with possession or otherwise encumbering, charging, disposing or dealing with the property in any manner;

(b) attach such property;

(c) transfer possession of such property to the financial institution; or

(2) An order under sub-section (1) may also be passed by the Banking Court in respect of any property held benami in the name of an ostensible owner whether acquired before or after the grant of finance by the financial institution.

(3) In cases where a customer has obtained property or financing through a finance lease, or has executed an agreement in connection with a mortgage, charge or pledge in terms whereof the financial institution is authorized to recover or take over possession of the property without filing a suit, the financial institution may, at its option:

(a) directly recover the same if the property is movable; or

(b) file a suit hereunder and the Banking Court may pass an order at any time, either authorising the financial institution to recover the property directly or with the assistance of the Court:

Provided that in the event the financial institution wrongly or unjustifiably exercises the direct power of recovery hereunder it shall be liable to pay such compensation to the customer as may be adjudged by the Banking Court in summary proceedings to be initiated on the application of the customer and concluded in thirty days.

(4)….

(Emphasized)

15. Under Section 13(a) and (b) a financial institution has been empowered to exercise the direct power of recovery of property with or without the intervention of the Banking Court. The wisdom of law cannot be challenged that having been cognizant of the fact that as this power may not be taken as a license to kill by the financial institution, so in case of misuse of said power a check has been placed giving right to customers to ask for compensation if the power of direct recovery with or without intervention of the Court has been exercised wrongly or unjustifiably. Therefore we hold that case of appellant by no stretch of imaginations was under Section 16(3) of the Ordinance.

1. For the sake of arguments, we consider the plaint as an application for compensation even then appellant has no good case in his favour for the reason that under Section 3 of the Ordinance, it shall be the duty of a customer to fulfill his obligations to the financial institution otherwise he has to face the music. Appellant has admitted in plain that he made default in payment of installments. According to the agreement between appellant and contesting respondent for availing financial facility duly signed by him bank has the authority for repossession and the relevant condition therein is as under: -

“The Bank shall at all times in its sole and unfetters discretion have the right to repossess the vehicle for non-payments of installment or other breach of agreement or for the vehicle being rented out or other misuse of the vehicle for any other purpose contrary to law, public order and safety”

17. Appellant never took any exception to the agreement between two sides, so he cannot challenge the powers of contesting respondent for repossessing the vehicle. Therefore if the officials of the Bank had taken into possession the car from appellant, no question arises to hold that the said action was wrong or unjustified.

1. We therefore, conclude our discussion by holding that no case for interference in a well-reasoned judgment and decree is made out. Hence this appeal is dismissed.

(K.Q.B.) Appeal dismissed

[1]. ADIEU (PVT.) Limited vs. Platinum Commercial Bank Limited 2005 CLD 1781, Messers M.M.K. Rice Mills vs. Grays Leasing & another 2006 CLD 1147, M. Manzoor Ahmad Paracha and 5 others vs. Habib Bank Ltd. and 2 others 2007 CLD 571, Messers Shazim International (Pvt.) Ltd. and 6 others vs. Messers First Women Bank Ltd. 2009 CLD 432, Prof. (Retd.) Raja Muhammad Aslam Khan vs. Messers House Building Finance Corporation and others 2013 CLD 2030 and Ishfaq Ahmad vs. Habib Bank Limited and another 2017 CLD 1639.

PLJ 2022 Lahore 57 (DB)

Present: Abid Aziz Sheikh and Muhammad Sajid Mehmood Sethi, JJ.

LIAQAT ALI--Appellant

versus

DISTRICT COLLECTOR GUJRAT etc.--Respondents

I.C.A. No. 474 of 2015, heard on 7.9.2021.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Land Acquisition Act, (I of 1894), Ss. 4, 54--Maintainability of petition & appeal--Appellant being aggrieved, challenged notifications--Writ petition was dismissed--Remedy of appeal available against original order under Section 54 of Act, this ICA is not maintainable--Question of maintainability of this appeal--Original order passed in proceedings is subject to appeal, revision or review under relevant law--Section 3(2) of Ordinance, is used in generic sense in contradistinction to orders passed in appeal, revision or review--Right of appeal is provided u/S. 54 of Act against original order i.e. award, therefore, ICA is not maintainable under proviso to sub-section (2) of section 3 of Ordinance--Appeal was dismissed. [Pp. 58, 59, 60 & 61 ] A, B, C, D, E & F

PLD 1984 SC 344, 1998 SCMR 167, PLD 2005 SC 45; 2009 CLC 86, 2007 MLD 980 ref.

Mr. Waseem Abbas, Advocate for Appellants.

Barrister Malik Shahzad Shabbir, Advocate and Mr. Junaid Razzaq, Assistant Advocate General Punjab for Respondents.

Date of hearing: 7.9.2021.

Judgment

Abid Aziz Sheikh, J.--Through this Intra Court Appeal (ICA) under Section 3 of the Law Reforms Ordinance, 1972 (Ordinance), the appellant has assailed the order dated 25.03.2015 whereby his constitutional petition was dismissed by the learned Single Bench.

1. Relevant facts are that on 14.05.2014, notification under Section 4 of the Land Acquisition Act, 1894 (Act) was published in the official gazette for the acquisition of land measuring 232-Kanal and 09-Marla for public purpose i.e. for establishment of Nawaz Sharif Medical College. On 23.01.2015, a notification under Sections 17(4) and 6 of the Act was issued by the District Collector and the land was acquired for above public purpose. The appellant being aggrieved, challenged the above notifications dated 14.05.2014 and 23.01.2015, however, the writ petition was dismissed through impugned order on 25.03.2015, hence this appeal.

3. The learned Law Officer at the very outset raised preliminary objection to the maintainability of this appeal on the ground that being remedy of appeal available against the original order under Section 54 of the Act, this ICA is not maintainable. On merits, he submits that award has already been passed on 07.04.2015 after fulfilling all legal requirements, therefore, the appellant should challenge the award under the provision of the Act, instead of filing instant appeal.

1. The learned counsel for the appellant in response to preliminary objection submits that appellant has challenged the notifications dated 14.05.2014 and 23.01.2015 in the writ petition against which no appeal is provided under the Act, therefore, this ICA is maintainable. He further submits that the aforesaid notifications were issued malafidely after withdrawing earlier notification dated 18.02.2009 in respect of land in different Khata, therefore, the writ petition could not be dismissed.

5. Heard. Before touching merits of the case, we would like to decide threshold question of maintainability of this appeal. Admittedly the appellant challenged the notifications dated 14.05.2014 and 23.01.2015 issued under Sections 4, 6 and 17(4) of the Act. There is no dispute that said notifications have already been culminated into award dated 07.04.2015 and Sections 54 of the Act provides an appeal in the proceedings before the Court. In such scenario the moot question require determination is that whether ICA is maintainable under section 3 of the Ordinance.

1. In this context, for convenience, proviso to sub-section (2) of Section 3 of the Ordinance is reproduced hereunder:

“Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal [or one revision or one review] to any Court, tribunal or authority against the original order.”

The plain reading of above proviso shows that appeal shall not be available or competent under Section 3 of the Ordinance before Division Bench, of this Court if the petition brought before High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution), arises out of any proceedings in which the law applicable provided for at least one appeal, one revision or one review to any Court, Tribunal or authority against the original order. This means that the relevant order may not necessarily be the one which is impugned in the writ petition but the test is that whether the original order passed in the proceedings is subject to appeal, revision or review under the relevant law.

7. The same view was also expressed by the honourable Supreme Court in Mst. Karim Bibi and others vs. Hussain Bakhsh and another (PLD 1984 SC 344). The relevant observations are reproduced hereunder:

“8. After giving our anxious consideration to the arguments urged in support of this appeal, we are, however, not impressed by any of the contentions raised. The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from the Constitutional Petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge in the constitutional jurisdiction to a Bench of two or more Judges of the High Court. The crucial words are the “original order”. It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional Petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenged but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal, so provided was availed of or not. Apparently the meaning of the expression “original order” is the order with which the proceedings under the relevant statute commenced. The word “proceedings” has been used in different enactments and has been subject to judicial interpretation in a number of cases wherein it has received either restricted or wide meaning according to the text and subject-matter or the particular statute.”

1. The honourable Supreme Court in Muhammad Aslam Sukhera and others vs. Collector, Land Acquisition and others (1998 SCMR 167) upheld the learned Division Bench order of this Court of dismissing the ICA being not maintainable in land acquisition matter and while relying upon Mst. Karim Bibi case supra held that award of the Tribunal in land acquisition matter by virtue of Section 59(d) of the Act is deemed to be the award of the Court under the Act and therefore, same is amenable to appeal under Section 54 of the Act. The above Judgement was challenged in review and august Supreme Court in Muhammad Aslam Sukhera and others vs. Collector Land Acquisition, Lahore Improvement Trust, Lahore and another (PLD 2005 SC 45) while interpreting the word “original order” under proviso to sub-section (2) of Section 3 of the Ordinance held that the expression “original order” in Section 3(2) of the Ordinance, is used in generic sense in contradistinction to orders passed in appeal, revision or review. The apex Court further held that it cannot be said that the award by the Tribunal under the Act is not an “original order” for the purposes of bar contained in proviso to Section 3(2) of the Ordinance.

9. The same view was also expressed by the Division Bench of this Court in Lahore Development Authority through Director-General and another vs. Commissioner, Lahore Division, Lahore and another (2009 CLC 86) as under:

“6. In the present controversy undisputedly the impugned proceedings were commenced under the provisions of Land Acquisition Act and in case an order is passed in such proceedings, a right of appeal is available to the aggrieved party as per provisions of Section 54 of the Land Acquisition Act, 1894.

1. When the ground reality is undisputed as discussed above, then we cannot proceed with the present Intra Court Appeal and thus, following the law laid down by the Honourable Supreme Court of Pakistan in the case of Mst. Karim Bibi and Muhammad Aslam Sukhera (supra) and keeping in view the rule of consistency, following the law laid down in Ch. Nazir Ahmed (supra), we hold that this Intra Court Appeal is not competent. Accordingly, the same dismissed with no order as to costs.”

Similarly in Mst. Nasreen Tariq vs. Government of Punjab through Secretary Housing and Physical Planning Department and 3 others (2007 MLD 980) the learned Division Bench held as under:--

“5. Acquisition proceedings under the Land Acquisition Act, 1894 were challenged through a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. This Intra-Court Appeal has been filed under Section 3 of the Law Reforms Ordinance, 1972, Proviso to which, bars availability of this right in case the original enactment out of which proceedings challenged in the writ petition, emanated, envisaged any appeal/revision or review. Section 54 of the Act (ibid) provided an appeal against Award by the Land Acquisition Collector concerned, thus the impugned judgment, dated 11-9-2006 is not open to challenge through instant ICA.”

10. In present case, admittedly the notifications dated 14.05.2014 under Section 4 and dated 23.01.2015 under Sections 6 and 17(4) of the Act, impugned in the writ petition were issued in the proceedings, in which the right of appeal is provided under Section 54 of the Act against the original order i.e. award, therefore, the ICA is not maintainable under proviso to sub-section (2) of Section 3 of the Ordinance.

1. In view of above discussion, the preliminary objection is sustained and the instant appeal is dismissed being not maintainable.

(Y.A.) Appeal dismissed

PLJ 2022 Lahore 61 [Multan Bench, Multan]

Present: Sardar Ahmed Naeem, J.

SHAZIA AFZAL--Petitioner

versus

JUSTICE OF PEACE and 2 others--Respondents

W.P. No. 3022 of 2019, decided on 6.4.2021.

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

----S. 22-A--Scope of report submitted by police--Police report, supporting petitioner’s version, could not have been kept out of consideration--Report from local police suggested that application filed by Respondent No. 3 was frivolous and baseless--Scope of report submitted by police came under consideration before their lordships in case of “Khizer Hayat”--This petition is allowed and impugned order dated 09.02.2019 is set-aside. Resultantly, application filed by the Respondent No. 3 under Section 22-A, Cr.P.C. stands dismissed--Petition was allowed.

[Pp. 62 & 63] A, B, C & D

PLD 2005 Lahore 470 ref.

Mr. Abu Bakar Khalid, Advocate for Petitioner.

Mr. Muhammad Ayub Buzdar, Assistant Advocate General for Respondents.

Date of hearing: 6.4.2021.

Order

Through this petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner challenges the order dated 09.02.2019 passed by the learned Ex-Officio Justice of Peace, Kabirwala, whereby the application filed under Section 22-A, Cr.P.C. by Respondent No. 3 was disposed of with the direction to the Station House Officer concerned to register a case after recording his statement.

2. Learned counsel for the petitioner argued at some length. The crux of the arguments was that no cognizable offence was made out and that the police report, supporting his version, could not have been kept out of consideration. To augment his contention learned counsel for the petitioner relied upon “Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others” (PLD 2005 Lahore 470).

1. Learned law officer opposed this petition and supported the order rendered by the Respondent No. 1.

2. Heard. Available record perused.

5. A review of the record demonstrates that the Respondent No. 3 filed an application under Section 22-A, Cr.P.C. on 29.01.2019 and levelled the allegation against the proposed accused in Para No. 2 of the petition. The learned Ex-Officio Justice of Peace requisitioned a report from the local police which is available on record and suggested that the application filed by the Respondent No. 3 was frivolous and baseless. In para No. 5 of the impugned order, the learned Ex-Officio Justice of Peace dealt with the merits of the case and observed that the Station House Officer concerned has not denied the missing of the daughter of the Respondent No. 3. I have gone through the report submitted by the Zafar Iqbal A.S.I. of Police Station City Kabirwala and it was not a report of Station House Officer rather forwarded by the Station House Officer which indicates that the learned Ex-Officio Justice of Peace dealt with the matter in a cursory/slipshod manner. The scope of the comments/report submitted by the police came under consideration before their lordships in the case of “Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others” (PLD 2005 Lahore 470), wherein at page No. 534-535 in para No. 16, their lordships observed as under:

“.--It is prudent and advisable for an. Ex-Officio Justice of the Peace to call for comments of the officer Incharge of the relevant Police Station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police has not registered a criminal case in respect of the complainant’s allegations. It may well be that the complainant has been economizing with the truth and the comments of the local police may help in

completingthe picture and making the situation clearer for the Ex-Officio Justice of the Peace facilitating him in issuing a just and con eel direction, if any.

The officer in charge of the relevant Police Station may be under a statutory obligation to register an F.I.R. whenever information disclosing commission of a cognizable offence is provided to him but the provisions of Section 22-A(6), Cr.P.C. do not make it obligatory for an Ex-Officio Justice of the Peace to necessarily or blindfoldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard. An Ex-Officio Justice of Peace should exercise caution and restraint in this regard and he may call for comments of the officer at-charge the relevant Police Station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police have not registered, a, criminal case in respect of the complainant’s allegations. If the comments furnished by the office incharge of the relevant Police Station disclose no justifiable reason for not registering a criminal case on the basis of the information supplied by the complaining person then an Ex-Officio Justice of the Peace would be justified in issuing a direction that a criminal case be registered and investigated.

1. Seeking guidance from the observations, I am of the view that it is a fit case wherein interference is called for

7. In the circumstances, this petition is allowed and the impugned order dated 09.02.2019 is set-aside. Resultantly, application filed by the Respondent No. 3 under Section 22-A, Cr.P.C. stands dismissed.

(K.Q.B.) Petition allowed

PLJ 2022 Lahore 63

Present: Shahid Karim, J.

ALL PAKISTAN TEXTILE MILLS ASSOCIATION (APTMA) and others--Petitioners

versus

FEDERATION OF PAKISTAN and others--Respondents

W.P. No. 42176 of 2020, decided on 27.9.2021.

NEPRA Licensing (Application and Modification Procedure) Regulations, 1999--

----Regln. 2(k)--Gas Infrastructure Development Cess Act, 2015, S. 8(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Clarification of judgment--Licenses for captive power generation--Distinction between industrial and captive power generation and tariff--Self consumption to industrial process of consumers--Question of determination of fact of actual collection--Demand for payment of GIDC--Disposing of review petition cannot be distorted--Validity--The case set up by SNGPL would have unpalatable effect of upsetting original judgment of Supreme Court and to efface benefit which accrued to present consumers by that holding--Clearly SNGPL has unnecessarily embroiled petitioners in another vortex of litigation which has no basis and construction being sought to put on order passed in review petitions is a figment of imagination of SNGPL--Under similar circumstances Sindh High Court has decreed suit filed by consumer who brought that suit to challenge similar notices for payment of demand raised by SNGPL based on same premises--Sindh High Court held plaintiff to fall within category of industrial consumers rather than captive power plant and to be made subject to industrial tariff--Petition was allowed. [Pp. 68 & 69] A & B

M/s. Salman Akram Raja, Arslan Riaz, Barrister Shehryar Kasuri, Barrister Umer Riaz, Mufti Ahtsham uddin haidder, Mustafa Kamal, Hammad Khan Babar, Malik Bashir Ahmad Khalid, Mian Mehmood Rashid, Mrs. Suhi Saleha, M. Hamza, Raja Hamza Ameer, Sardar Munir Hassan Dogar, Shehzad Ahmad Cheema, Rizwan Kamboh, Khalid-ur-Rehman, Anis-ur-Rehman, M. Irfan Liaqat, Rana Muhammad Arshad Khan, Rai Ashfaque Ahmad Kharal, Ch. Imtiaz Ullah Khan, Faisal Anwar Minhas, Mian Muhammad Hussain, Qazi Imran Zahid, Ch. Liaqat Ali Anjum and Sardar M.S. Tahir,Advocates for Petitioners.

Barrister Adil Fayyaz and Mirza Abdul Malik Baig, Advocates for SNGPL.

Mirza Nasar Ahmad. Addl. Attorney General.

Mr. Asad Ali Bajwa, D.A.G. Mian Ehtisham Ahmad, Asst. Attorney General for Respondents.

Date of hearing: 27.9.2021.

Judgment

This judgment will also decide connected petitions mentioned at Anncxure ‘A’ to this judgment.

1. This litigation raises two issues of related nature. These issues have, in the past, come up before this Court and also before the Supreme Court of Pakistan and emanates from a judgment finally passed by the Supreme Court in C.P Nos. 159-L to 214-L of 2018 (“the Judgment”). A review petition was also filed against this judgment and which too was dismissed through an order dated 16.8.2019 passed in C.R Nos.49-L to 99-L of 2019. The order passed in review petitions is the most relevant order for our purposes and is set out below:

“2. We have heard the learned counsel for the parties at great length. No ground for review is made out. These review petitions are dismissed with a clarification that the judgment under review deals only with industrial consumers utilizing gas supplied to them with or without cogeneration of power. However, it does not apply to or over the case of those industrial consumers who had originally obtained licenses/connections for captive power generation.”

1. The first thing that comes out starkly from a reading of the order set out above is that the review petitions were dismissed and only a clarification regarding judgment under review was provides by the Supreme Court. It was clarified that the judgment under review dealt with only industrial consumers utilizing gas supply to them with or without co-generation of power. In the same vein, a further clarification was issued to the effect that the judgment did not apply to those industrial consumers who had originally obtained licenses/ connections for captive power generation. It is admitted on all hands and is common ground that the parties are all industrial consumers utilizing gas supplied to them with or without co-generation of power and none of them have ever obtained licenses for captive power generation.

2. In the judgment, the historical facts as well as the factual background of the litigation before the Supreme Court was brought forth in paragraph 3. It was noted that since 2013 the present petitioners had been paying tariff as industrial consumers under a notification dated 01.01.2013. Later another notification dated 23.08.2013 brought about a distinction between industrial and captive power generation and the tariff under the latter category was enhanced to Rs.571.28 per MMBTU. Relying upon the definition given in Regulation 2(K) of the National Electric Power Regulation Authority Licensing (Application and Modification Procedure) Regulations, 1999 in respect of the captive power plant, the Supreme Court went on to hold as under:

‘‘Third, the term “captive power” is common to both NEPRA and OGRA as both the Regulators tend to regulate this category in one form or the other. This inter elatedness of the two statutes in the context of “captive power” makes the cross contextual reference to Regulation 2(k) of the Regulations, permissible:

In other words, addition of a captive power for self-consumption to the industrial process of the respondent consumer does not alter the category or the tariff of the industrial consumer, unless and until the “captive power plant” assumes its own commercial identity and sells electricity to a third, party duly licensed by NEPRA.

1. On the basis of the record before us, we conclude that respondent consumers with a contract for supply of natural gas for industrial use and having in-house electricity generation facility for self consumption (with or without cogeneration) fall in the category of industrial consumers and are subject to the corresponding tariff unless the generation facility is a Captive Power Plant as per NEPRA Regulations. For the above reasons, we find no reason to interfere with the judgment of the High Court, which is, therefore, upheld and these appeals are dismissed.”

2. In a nub, the Supreme Court held that addition of captive power for self-consumption to the industrial process of the consumers before the Supreme Court (the present petitioners) does not alter the category or the tariff from being an industrial consumer to captive power plant unless the captive power plant assumes “its commercial identity and sells electricity to a third party duly licensed by NEPRA”. Thus, at the heart of the holding by the Supreme Court was the fact that in order to transform an industrial consumer to a captive power plant consumer, the sine qua non was a license issued by NEPRA to carry out that particular commercial activity and to sell electricity to a distribution company. In the opinion of the Supreme Court, if this was not the case then the rate applicable to an industrial consumer ought to apply and a consumer cannot be burdened with a higher tariff considering it as a captive power plant.

3. The controversy in these petitions has its provenance in the clarification issued by the Supreme Court while deciding the review petitions and which order has been reproduced above. As adumbrated, there are two parts of the challenge. The first relates to a determination of the arrears and the question of determination of the fact of actual collection was otherwise of GIDC by the petitioner-companies. The controversy has come to a rest in two sets of petitions. Firstly, it was decided by a learned Single Judge of this Court in a set of petitions inter alia W.P. No. 26838 which was decided by disposing of all the petitions with a direction to SNGPL to constitute a Committee taking into consideration that gas infrastructure development cess has not been charged and collected from the consumers. Pending such determination, the recovery of GIDC pursuant to Section 8(2) of GIDC Act, 2015 was ordered to be stayed. On an attempt by SNGPL to recover that amount without the determination ordered by this Court, a further order was made by this Court in W.P No. 42232 of 2020 in the order dated 17.06.2021 (Tariq Class Industry v. Federation of Pakistan and others) reiterating the earlier order passed by a learned Single Judge of this Court and it was once again directed that that order ought to be complied with and remitting the bills to the industrial consumers was a contravention of the earlier order passed by this Court. The gas bills were struck down and the impugned demand raised in the bills was held to be ultra vires.

4. As explicated, taking advantage of the clarification issued by the Supreme Court in the review petitions, SNGPL has once again generated gas bills which have been remitted to the present petitioners raising a demand for payment of GIDC at the rate applicable to captive power plant. SNGPL contends that while disposing of the review petitions the Supreme Court made it clear that the judgment under review did not cover the cases of those industrial consumers who had originally obtained licenses/connections for captive power generation. The learned counsel for SNGPL submits that the clarification ensnared within its ambit both industrial consumers who had obtained licenses or connections and since the present petitioners had obtained connections which were used for captive power generation, therefore, the effect of judgment of the Supreme Court and its ratio does not apply to the present consumers. This argument of SNGPL is a play on words and a fallacy. The judgment squarely dealt with the issue while stating that:

“Other than the definitional issue, we have noticed that the installation in house facility of electricity generation for self consumption (with or without cogeneration) in an industrial unit is at best a part of the mechanical and industrial process of the respondent consumer, which helps improve its efficiency and profitability. With the single category and single meter requirement of the tariff structure, multiple usage of natural gas within the industrial unit (for the industry and the captive self-consumption) is an internal arrangement of the consumer; therefore, only core business of the consumer is to be recognized for the purpose of categorization.”

8. To reiterate, the review petitions were dismissed and the purpose and sweep of the order passed by the Supreme Court while disposing of review petitions cannot be distorted. It was to bring forth the clarification regarding those cases where the industrial consumers had obtained licenses for captive power generation. The entirety of the reasoning on which the judgment as well as the order on review petitions is based has to be seen and simply because the mention of the word “connections” was made while disposing of the review petitions will not detract from the ratio decidendi which permeates the judgment of the Supreme Court. The key words are “industrial consumers who had originally obtained licenses/ connections for captive power generation”. Thus whether it is a license or connection, it must have been for the purposes of captive power generation. On the contrary, petitioners here and before the Supreme Court operated an in-house generation facility or co-generation (explained in paragraph 2 of the judgment) and so their connections were not solely for captive power generation. Thus the argument in this Court, mounted by SNGPL, must fall on barren ground. The case set up by SNGPL would have the unpalatable effect of upsetting the original judgment of the Supreme Court and to efface the benefit which accrued to the present consumers by that holding. Clearly SNGPL has unnecessarily embroiled the petitioners in another vortex of litigation which has no basis and the construction being sought to put on the order passed in review petitions is a figment of imagination of SNGPL. Under similar circumstances the Sindh High Court has decreed the suit filed by the consumer who brought that suit to challenge similar notices for payment of demand raised by SNGPL based on the same premises. It was held by the Sindh High Court that:

“From the aforementioned, clause, it is apparent that the very Supply Agreements are not in consonance with the concept of ‘Captive Power’ as envisaged, under the NEPRA Regulations, nor was it contended that the gas connections had been obtain in relation to licenses issued by NEPRA to the Plaintiffs for that category. As such, the connections of the Plaintiffs cannot be said to have originally been obtained for the purpose of ‘captive power generation’ and do not fall within the clarification made vide Civil Review Petition No. 44-L to 99-L of 2019, which is only to that extent and therefore appears to exclude the benefit of the underlying judgment only to those consumers who had. originally obtained, connections that properly fall within the scope of ‘captive power’, but then nonetheless subsequently claim, shelter under the lower ‘industrial’ tariff on the ground that they had since ceased, sale of their surplus power, hence ought, to benefited accordingly.

However, under the given framework of these Suits, no intention to sell surplus power can be discerned on the part of the Plaintiffs, either at the time of their contracting with SSGCL in terms of the Supply Agreements or thereafter, and it is apparent that their in-house power-generation in accordance with those Agreements does not meet the test of what constitutes a ‘Captive Power Plant’ for purpose of the NEPRA Regulations so as to attract the tariff for ‘Captive Power’. Furthermore, no allegation as to any breach of the aforementioned condition set out in the Supply Agreements has been advanced, and in fact it was conceded by learned, counsel for SSGCL that all of the Plaintiffs had remained and continued, to be complaint in that respect. A fortiori, the plaintiffs could not then have been migrated, by SSGCL from, the industrial tariff under which they were being charged in terms of the Notification dated 01.01.2013 to the higher tariff for ‘Captive Power’ subsequently introduced by OGRA in, terms of the Notification dated 23.08.2013.

9. In conclusion the Sindh High Court held the plaintiff to fall within the category of industrial consumers rather than captive power plant and to be made subject to industrial tariff.

1. In view of the above, these petitions are allowed and the impugned demands raised are hereby set aside. The petitioners shall remain liable for the tariff applicable to Industrial Consumers.

(R.A.) Petitions allowed

PLJ 2022 Lahore 70 [Multan Bench, Multan]

Present: Ch. Muhammad Masood Jahangir, J.

Mst. MANZOOR ELAHI--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MAILSI, etc.--Respondents

W.P. No. 10915 of 2021, decided on 14.7.2021.

Family Court Act, 1964 (XXXV of 1964)--

----S. 13--Execution petition--Surety of judgment debtor--Respondents approached learned Family Court for recovery of maintenance allowance which was ultimately decreed and attained status of finality--Formers approached learned Executing Court for execution of said decree, but in spite of adopting due course of proceedings, respondent failed to realize decree, who was arrested and put behind civil prison--Petitioner appeared on scene for rescue of her son (judgment debtor) and voluntarily submitted surety bond--Judgment-debtor failed to satisfy decree and learned Executing Court was compelled to attach immoveable property of petitioner/surety--Surety under law has no right to restrain an action against her, rather having stood guarantor, she had been substituted for her principal--Crux of contract of guarantee is that it binds surety--Executing Court was quite justified to adopt measures against petitioner/surety--Petition dismissed.

[Pp. 70, 71, 72 & 73] A, B, C & D

1989 CLC 2441; 2006 CLD 687; PLD 2014 Lahore 429; 2005 SCMR 72; PLD 1953 Lahore 22; 2000 CLC 85; 2000 CLC 451 ref.

Mr. Muhammad Qadir Asif Toor, Advocate for Petitioner.

Date of hearing: 14.7.2021.

Order

Shorn of unnecessary details apart, Fazal Hassan Respondent No. 5 (the real son of present petitioner) wedded Mst. Kausar Perveen, Respondent No. 3 and out of their wedlock, Shabana Zartaj, Respondent No. 4/minor girl was born. The Respondents No. 3 & 4 approached learned Family Court for recovery of maintenance allowance etc. against Respondent No. 5, which was ultimately decreed on 10.06.2012 and attained status of finality. The formers approached the learned Executing Court for the execution of said decree, but in spite of adopting due course of proceedings, Respondent No. 5/ judgment-debtor failed to realize the decree, who was arrested and put behind the civil prison. Thereafter, the petitioner appeared on the scene for the rescue of her son (judgment-debtor) and voluntarily submitted surety bond on 14.09.2017 while giving assurance to the following effect:

منکہ منظور الہی زوجہ احمد بخش ذات بھٹی سکنہ میلسی ضلع وہاڑی کی ہوں۔ بقائمی ہوش و حواس خمسہ بلا جبر اکراہ اقرار کرت ہے کہ ایک دعویٰ بعنوان کوثر پروین وغیرہ بنام فضل حسن جو کہ فضل حسن کے خلاف ڈگری ہوا ہے۔ اور مدعا علیہ زیر حراست ہے۔ جس میں مبلغ 20000/- روپے زر ڈگری میں سے ادا کر رہی ہوں اور بقیہ زر ڈگری ادا کرنے کی پابند رہے گی۔ ضمانت نامہ بعنوان کوثر پروین وغیرہ بنام فضل حسن بحق سرکار تحریر کر دیا ہے تاکہ سند رہے اور بوقت ضرورت کام آو۔۔

In consequence of the above situation, Respondent No. 5 was conditionally released, but subsequently the petitioner tabled two applications; one for withdrawal of her surety and the other for stoppage of warrant of attachment of her property avowing therein that she being advance aged and heart patient lady wanted to sell out the property for her treatment, which were dismissed on 10.05.2019. Thereafter she filed application for production of new surety, which was not only dismissed on 10.11.2020, but also directed by the learned Executing Court to produce judgment-debtor within three days for satisfaction of the decree, but despite specific directions, none appeared even on behalf of the surety, thus proceedings against her were initiated on 13.11.2020. Being dejected, the petitioner preferred appeal before the learned Appellate Court below, which dismissed on 09.06.2021, thus petition in hand.

1. Arguments heard and record scanned.

2. It is an admitted fact that Respondent No. 5/judgment-debtor being defaulter was arrested, but thereafter released on furnishing of surety bond by the petitioner with afore-noted undertaking and recording her statement to the following effect:

بیان کیا کہ ضمانت نامہ سن و سمجھ لیا ہے ضمنانت ضمانت نامہ درست و صحیح ہیں۔ ضمنات ضمانت نامہ کی مکمل پابندی کروں گا اگر کوئی کوتاہی کروں گا تو عدالت حضور کو اختیار حاصل ہو گا کہ وہ میری جائیداد قرق/نیلام کرکے ضمانت وصول کر سکتی ہے۔

thus indeed bound down herself thereby to satisfy the upcoming decree. Again the judgment-debtor failed to satisfy the decree and learned Executing Court was compelled to attach the immoveable property of the petitioner/surety. It was a matter of fact and record that neither she ever assailed her statement nor denied the same, which left no panorama for her to wriggle out of it. Thus prior to discharging her liability, the petitioner could not dictate terms to the creditors to pursue their remedy against the principal in the first instance. The surety under the law has no right to restrain an action against her, rather having stood guarantor, she had been substituted for her principal and afterwards it was the choice of the decree holder(s) to proceed any of them severally or both of them jointly. The crux of the contract of guarantee is that it binds the surety in a co-extensive manner, whereas on the fulfillment of condition, the principal was released from the jail without execution of the decree and now it was tried to be avoided for the afore-noted objection(s). The petitioner at her own accord had stepped into the shoes of the judgment debtor, as such she was equally responsible for the realization of his liability. Reliance is placed on the judgments reported as Mirza Anwar Ahmad vs. Habib Bank Ltd., Faisalabad end others (1989 CLC 2441), Messrs State Engineering Corporation Ltd. vs. National Development Finance Corporation and others (2006 CLD 687), Muhammad Bashir through Legal Heir vs. Zarina Bibi and others (PLD 2014 Lahore 429), Rafique Hazquel Masih vs. Bank Alfalah Ltd. and other (2005 SCMR 72). In the case of M/s. State Engineering (supra) it was held as under:

“Section 128 is applicable in the given circumstances. The liability of the guarantor/surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract as envisaged in Section 128 of the Contract Act, 1872. They are jointly and severally liable to pay the outstanding amount to the creditor. A guarantor cannot shirk from the liabilities incurred by him through the execution of documents.”

Almost similar view was adopted in Rafique’s case (supra) and for ready reference its relevant extract is reproduced hereunder:

The liability of the surety under Section 128 of the Contract Act is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract…….In absence of any specific stipulation in the contract, a guarantor cannot take up the plea that the Bank should enforce the liability against the principal debtor before proceedings against the guarantor. The reason being that the Bank grants loan only on the guarantee and in absence of letter/contract of guarantee the Bank may not have sanctioned the loan.

Besides, Section 145 of the Code, 1908 is more than clear on this point.

1. The next grouse of the petitioner that she was not party to the original lis, as such decree was not executable against her, has also been dealt with by this Court in cases reported as Khan Muhammad Ishaq Khan vs. The Azad Sharma Transport Co. Ltd. and others (PLD 1953 Lahore 22), Mrs. Muhammad Shafi through Agent vs. Sultan Ahmed (2000 CLC 85) and Habib Bank Limited vs. Malik Atta Muhammad and 4 others (2000 CLC 451). In latter case it was held as under:

“As far the objection that the petitioner Bank being surety was not a party to the original suit or appeal, therefore, the execution of the decree passed against Agent Domez Borie could not be taken out against them, suffice it to refer to Section 145, C.P.C. whereby it is provided that even though a surety is not arrayed as a party to the suit or appeal, the decree against the judgment debtor can also be executed against the surety and rightly so because it is well accepted that the liability of the surety is co-extensive with the judgment debtor and continues till such time that the decree is either satisfied by the judgment debtor or by the surety. The provision of Section 145, C.P.C. eminently makes it clear that such surety shall, for the purpose of appeal, be deemed to be a party within the meaning of Section 47, C.P.C. The expression “deemed to be” manifestly refers to the my whereby a thing is presumed to be in existence while in fact it is riot in existence. A surety need not be made a party to the proceedings until execution is sought against him. If any authority is needed, reference may be made to Khan Muhammad Ishaq Khan v. The Azad Sharma Transport Co. Ltd. and others PLD 1953 Lah. 22, Cholappa Gattina Sanna and another v. Rachandra Anna Pai AIR 1920 Bom. 331 and Parkash Chand Mahajan v. Madan Theatres, Ltd. AIR 1936 Lah. 463.”

Hence, learned Executing Court was quite justified to adopt measures against the petitioner/surety.

5. Mr. Muhammad Qadir Asif Toor, Advocate for the petitioner although argued the case to the test of his ability, but failed to persuade that either the impugned unanimous orders are coram non-judice or ultra vires, rather were passed by learned lower fora while exercising its lawful authority, hence are approved and instant Constitutional Petition having no merit is dismissed in limine.

(K.Q.B.) Petition dismissed

PLJ 2022 Lahore 74[Multan Bench, Multan]

Present: Tariq Saleem Sheikh, J.

ASHFAQ AHMAD--Petitioners

versus

STATION HOUSE OFFICER and 4 others--Respondents

W.P. No. 8799 of 2021, decided on 29.6.2021.

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

----S. 491--Constitution of Pakistan, 1973, Art. 199--Custody of minor--Petitioner was married to respondent and were blessed a baby detenue--Marriage was dissolved--respondent married and left house and abducted minor--Welfare of minor is paramount consideration--Respondent No. 3. contracted another marriage and Court consider second marriage for determining issue of welfare of minor--Guardian Court is proper forum for resolution of disputes relating to custody of minors--Minor is 7-years old, custody handed over to petitioner for time being Respondent is directed to approach guardian Court for her custody. [Pp. 74 & 75] A, B & C

2004 SCMR 990 ref.

Mr. Muhammad Qadeer Asif Toor, Advocate for Petitioner.

Mr. Waseem-ud-Din Mumtaz, Assistant Advocate General for Respondent.

Mr. Muhammad Najaf Ali Khan, Advocate for Respondent No. 3.

Date of hearing: 29.6.2021.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner seeks recovery of his seven-year-old daughter Arooj Fatima from the alleged improper custody of Respondents No. 3 to 5.

1. Talib Hussain/SI has produced Arooj Fatima in this Court today.

2. Heard.

4. On 24.10.2014 the Petitioner was married to Respondent No. 3 and they were blessed with a girl who was named Arooj Fatima. Subsequently differences arose between them and Respondent No. 3 filed a suit for dissolution of marriage in the Family Court at Multan which was decreed exparte in her favour on 1.6.2019. Respondent No. 3 then married Respondent No. 4. According to the Petitioner, Respondent No. 3 abandoned Arooj Fatima when she left his house but some time back abducted her. He has filed his affidavit in support of this petition.

5. Respondent No. 3 denies that she abandoned the girl. Hence, she states, the question of abducting her does not, arise. However, she has not filed any counter-affidavit.

6. It is by now well-settled that welfare of the minor is the paramount consideration in deciding the question of his custody. The fact that Respondent No. 3 has contracted second marriage is a factor - though not the only one that the Court would take into consideration for determining the issue of Arooj Fatima's welfare. In Mst. Shahista Naz v. Muhammad Naeem Ahmed and another (2004 SCMR 990) the Hon'ble Supreme Court of Pakistan held:

"The right of Hizanat having the force of an injunction of Islam is an accepted principle of Islamic Law and a female on re-marriage may be disqualified to exercise this right but a mother on account of re-marriage is not absolutely disqualified to be entrusted the custody of a minor child rather on contracting second marriage she may lose only the preferential right of the custody."

7. The Guardian Court is the proper forum for resolution of disputes relating to custody of minors. In a habeas corpus petition the High Court can only intervene and make an interim order if it finds that the minor is of tender age and has been recently snatched. In the instant case, it is admitted that Arooj Fatima is seven years old but Respondent No. 3 has not filed counter-affidavit to controvert the Petitioner's claim that she has recently snatched her from him.

8. In view of the foregoing, Arooj Fatima's custody is handed over to the Petitioner for the time being. Respondent No. 3 may, however, approach the Guardian Court for her temporary as well as permanent custody. It is directed that if she undertakes any such proceedings, the Guardian Court shall decide the same in accordance with law without being influenced with this order.

1. Disposed of.

(K.Q.B.) Petition disposed of

PLJ 2022 Lahore 76 [Multan Bench, Multan]

Present: Tariq Saleem Sheikh, J.

MUHAMMAD KHALID etc--Petitioners

versus

MARKET COMMITTEE MUZAFFARGARH etc.--Respondents

W.P. No. 7603 of 2020, decided on 6.9.2021.

Punjab Agricultural Produce Markets Ordinance, 1978 (XXIII of 1978)--

----S. 19--Tax, fee, charge or levy--Right to fair trial--Imposing of parking fee--Petitioners have challenged authority of Respondent No.1 to impose parking fee and its auction of collection rights--Tax, fee, charge or levy, can be imposed by government or a public body except under authority of a law enacted by a competent legislature--It is incumbent on every litigant to place all relevant facts before court and not to hide anything--This is a duty corresponding to right to fair trial--In year 2015 petitioners filed a civil suit seeking a declaration that parking fee was illegal and prayed for a permanent injunction against is recovery--It also empowered Respondent No.1 to auction its fee collection rights. Albeit Bye-laws were approved by Provincial Government--There are a catena of cases in which courts declared levy imposed by subordinate legislation unlawful because it was beyond scope of charging section in parent Act--Ordinance, 1961, did not contain any specific provision under which marking fee could be levied but Federal Government imposed it through Regulations made under section 22 of that Ordinance--The charging and collection of parking fee during first period was illegal. [Pp. 77, 78, 79, 80, 81 & 82] A, B, D, E, G, H, I & J

2012 SCMR 619; 2015 SCMR 595; 2015 SCMR 1385; PLD 1992 Karachi 427; 2012 CLC 1124; 2011 SCMR 374; 2005 SCMR 186; 2013 SCMR 642; PLD 2014 SC 389; (2011) 7 SCC 69; 2014 PTD 1939; 2017 PTD 686 ref.

Punjab Agricultural Produce Markets Ordinance, 1978 (XXIII of 1978)--

----S. 19--Powr to levy--A bare reading of section 19 shows that power to levy fees was limited to agricultural produce. [P. 80] F

Constitution of Pakistan, 1973--

----Art. 199--Jurisdiction of writ petition--For maintaining a proceedings in writ jurisdiction, it is not necessary that a writ petitioner should have a right in strict juristic sense--It is enough if he discloses that he has a personal interest in performance of legal duty, which if not performed or performed in a manner not permitted by law, would result in loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise.

[P. 79] C

1999 SCMR 2883 ref.

Punjab Agricultural Marketing Regulatory Authority Act, 2018 (XXIX of 2018)--

----S. 15C(i)(j), 29, 30 & 30A--Power of market committee--Act expressly empower a market committee to regulate entry of persons and vehicular traffic into market yard and sub-market area vesting in it and to levy, recover rates, charges, fees in respect thereof-- Petitioners have little to refute this legal position but contend that Respondent No. 1 cannot impose and collect the parking fee unless Rules, Regulations and by laws in terms of section 29, 30 and 30A of the act, 2018 are framed--this contention deserves a short shrift because the aforesaid provisions are self executory. [P. 83] K

Interpretation of Statutes--

----A statute is not rendered inoperable on account of the failure of the designated authority to frame rules or regulations unless legislature has expressed such intention. [P. 83] L

PLD 1974 SC 228; PLD 1990 SC 1013; 2017 PTD 686; PLD 1978 Karachi 233; 2017 CLC (Note) 140 ref.

Mr. Abdul Rashid Sheikh, Advocate for Petitioners.

Mr. Waseem-ud-Din Mumtaz, Assistant Advocate General, with Khawaja Qaisar Butt, Advocate for Respondents.

Date of hearing: 2.7.2021.

Judgment

The Petitioners are Commission Agents at the Fruit and Vegetable Market Muzaffargarh, which was established in 1985, and hold valid licences from the Market Committee (Respondent No. 1) to do business. According to them, initially there was no parking fee for the vehicles coming there but it was imposed a few years back. In the beginning Respondent No. 1 collected it through its own employees but then started contracting out the collection rights. Recently it held auction for the current fiscal year. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution”), the Petitioners have challenged the authority of Respondent No. 1 to impose the parking fee and its auction of collection rights.

1. The learned counsel for the Petitioner submitted that the Punjab Agricultural Produce Markets Ordinance, 1978 (the “1978 Ordinance”), was promulgated for the better regulation of purchase and sale of agricultural produce so that the growers might get maximum price for their commodities. Thereafter, in exercise of the powers delegated under Sections 35 & 36 thereof, the designated authorities framed the Punjab Agricultural Produce Markets (General) Rules, 1979 (the “PAPM Rules”), and the Bye-laws of the Market Committee Muzaffargarh (the “Bye-laws”).[1] According to the learned counsel, when Respondent No. 1 began charging the parking fee it relied upon Rule 23(3) of the PAPM Rules and Clause 14(2) of the Bye-laws to justify its action but that was inapt because both the provisions were ultra vires of the 1978 Ordinance. He argued that the Punjab Agricultural Marketing Regulatory Authority Act, 2018 (the “2018 Act”) had somewhat changed the situation and Respondent No. 1 was still not competent to auction its parking fee collection rights as no Rules, Regulations and Bye-laws in terms of sections 29, 30 and 30A of the 2018 Act had been framed to structure the process.

2. The learned Assistant Advocate General vehemently opposed this petition. He contended that, firstly, the Petitioners had no locus standi. Secondly, they had come to the court with unclean hands. They concealed the fact that in 2015 they filed a civil suit seeking the same relief which was dismissed for non-prosecution. Thirdly, Section 15C of the 2018 Act fully empowered Respondent No. 1 to charge the parking fee and no further legislation by way of rules, regulations and by-laws was required.

Opinion

4. It is trite that no tax, fee, charge or levy, by whatever name called, can be imposed by the government or a public body except under the authority of a law enacted by a competent legislature.[2] The Petitioners are Commission Agents at the Fruit and Vegetable Market Muzaffargarh and are doing business. They are directly concerned with the imposition of the parking fee. In Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883) the Hon’ble Supreme Court of Pakistan held that “for maintaining a proceeding in writ jurisdiction, it is not necessary that a writ petitioner should have a right in the strict juristic sense. It is enough if he discloses that he has a personal interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise.” Therefore, the objection of the Respondents regarding the Petitioners’ locus standi is overruled.

5. It is incumbent on every litigant to place all the relevant facts before the Court and not to hide anything. This is a duty corresponding to the right to fair trial. It is all the more important when he invokes the constitutional jurisdiction of the High Court under Article 199 of the Constitution. In Amar Singh v. Union of India and others [(2011) 7 SCC 69] the Supreme Court of India held:

“Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts. Courts held that such litigants have come with ‘unclean hands’ and are not entitled to be heard on the merits of their case.”

1. In Muhammad Arif v. Uzma Afzal and others (2011 SCMR 374) the Supreme Court of Pakistan held:

“There is no cavil to the proposition that the ‘conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean in favour of adjudication of causes on merits, appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour. High Court in exercise of writ jurisdiction is bound to proceed on maxim ‘he who seeks equity must do equity’. Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the Court with clean hands. He may claim relief only when he himself is not violating provisions of law, especially of the law under which he is claiming entitlement.”

7. Admittedly, in the year 2015 the Petitioners filed a civil suit seeking a declaration that the parking fee was illegal and prayed for a permanent injunction against is recovery. The said suit was dismissed for non-prosecution and they never made any effort to get it restored. This was indeed an important fact and the Petitioners were under a bounden duty to mention it in their writ petition but they did not. In the normal course I would have taken this omission an offence and non-suited them but have elected to condone it for two reasons: first, the issue involved in this case is of public importance; and secondly, the auction for the current fiscal year has given rise to a fresh cause of action.

1. Let’s now turn to the merits. This case should be examined with reference to two time-lines – the years 1978 to 2018 when the 1978 Ordinance applied and the current era (post-2018) which began with the enactment of the 2018 Act.

2. Section 19 of the 1978 Ordinance empowered a market committee as follows:

19. Levy of fees.--A market committee may, subject to such rules as may be made by Government in this behalf, levy fees, not exceeding the maximum rates prescribed, on the agricultural produce bought or sold by or through a dealer in the notified market area:

Provided that:

(a) …

(b) …

(c) …

10. A bare reading of Section 19 shows that the power to levy fees was limited to agricultural produce. To be more specific, it did not authorize the market committee to impose any fee for use of parking space. The PAPM Rules, which the Provincial Government framed under Section 35 of the 1978 Ordinance, also did not contain any provision for imposition of such fee.

11. The Fruit and Vegetable Market Muzaffargarh was established in 1985 and Respondent No. 1 framed its Bye-laws in terms of Section 36 of the Ordinance in 2009. Clause 14(2) of the Bye-laws provided that Respondent No. 1 shall charge vehicles, cycles and motorcycles etc. parking fee at the approved rates. It also empowered Respondent No. 1 to auction its fee collection rights. Albeit the Bye- laws were approved by the Provincial Government, the learned counsel for the Petitioners has rightly contended that Clause 14(2) was ultra vires of the Act. In Khawaja Ahmad Hassan v. Government of Punjab and others (2005 SCMR 186) the Hon’ble Supreme Court of Pakistan held:

“It is a well-recognized principle of interpretation of statutes that if the rules framed under the statute are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then those provisions must be regarded as ultra vires of the statute and cannot be given effect to.”

1. Similarly, in Zarai Taraqiati Bank Limited and others v. Said Rehman and others (2013 SCMR 642) the apex Court ruled:

“The ‘rules’ and ‘regulations’ framed under any Act are meant to regulate and limit the statutory authority. All statutory authorities or bodies derive their powers from statutes which create them and from the rules or regulations framed thereunder. Any order passed or action taken which is in derogation or in excess of their powers can be assailed as ultra vires. Rules and regulations being forms of subordinate legislation do not have substantial difference as power to frame them is rooted in the statute. Statutory bodies are invariably authorized under the Act to make or adopt rules and regulations not inconsistent with the Act, with respect to such matters which fall within their lawful domain to carry out the purposes of the Act.”

1. In Suo Moto Case No. 11 of 2011 reported as PLD 2014 SC 389, the august Supreme Court held:

“Rule-making body cannot frame rules in conflict with, or in derogation of, the substantive provisions of the law or statute, under which the rules are framed. Rules cannot go beyond the scope of the Act. Thus, we are inclined to hold that no rule can be made which is inconsistent with the parent statute, whereas, no regulation can be framed which is inconsistent with the parent statute or the rules made thereunder and the provisions of these rules or regulations, as the case may be, to the extent of such inconsistency with the parent statute or the rules shall be void and inoperative.”

14. There are a catena of cases in which the courts declared the levy imposed by subordinate legislation unlawful because it was beyond the scope of the charging section in the parent Act. Reference may be made to Treet Corporation Limited v. Government of Pakistan through its Secretary, Ministry of Industries, Islamabad and 2 others (PLD 1992 Karachi 427) for illustration. In that case the law, Pakistan Standard Institution (Certification Marks) Ordinance, 1961, did not contain any specific provision under which marking fee could be levied but the Federal Government imposed it through the Regulations made under Section 22 of that Ordinance. The Sindh High Court held that the Government could not confer such power on it through the Regulations as the parent statute did not give that mandate.

15. In view of the foregoing, the charging and collection of parking fee during the first period was illegal. The learned counsel for the Petitioners contends that Respondent No. 1 must return the money to the people as it has unjustly enriched itself at their expense. He has relied on the following excerpt from Sui Northern Gas Pipelines v. Deputy Commissioner Inland Revenue and others (2014 PTD 1939) in support of his submission:

“The American Restatement of the Law of Restitution: Quasi Contracts and Constructive Trusts, (1937), states the principle of unjust enrichment in the following simple terms: ‘A person who has been unjustly enriched at the expense of another is required to make restitution to the other.’ And, one of the leading Commonwealth texts on restitution elaborates on the notion as follows: ‘[The principle of unjust enrichment] presupposes three things. First, the defendant must have been enriched by the receipt of a benefit. Secondly, that benefit must have been gained at the plaintiff's expense. Thirdly, it would be unjust to allow the defendant to retain that benefit...’ ‘Unjust enrichment occurs when a person retains money or benefits which in justice, equity and good conscience, belong to someone else. The doctrine of unjust enrichment, therefore, is that no person can be allowed to enrich inequitably at the expense of another. A right of recovery under the doctrine of "unjust enrichment” arises where retention of a benefit is considered contrary to justice or against equity.13 Reliance with advantage is also placed on Messrs Pfizer Laboratories Limited v. Federation of Pakistan and others (PLD 1998 SC 64). Unjust enrichment is, inter alia, anchored in our fundamental constitutional value of economic justice. Our constitution abhors any form of economic exploitation.”[3]

1. The Petitioners have not prayed for restitution of the parking fee received by Respondent No. 1 in this petition so this Court cannot grant that relief. Nevertheless, any claim in this regard may be considered in appropriate proceedings.

17. The situation has changed with the 2018 Act. Clauses (i) and (j) of Section 15C thereof expressly empower a market committee to regulate the entry of persons and vehicular traffic into the market yard and sub-market area vesting in it and to levy, recover rates, charges, fees in respect thereof. The Petitioners have little to refute this legal position but contend that Respondent No. 1 cannot impose and collect the parking fee unless Rules, Regulations and Bye-laws in terms of Sections 29, 30 and 30A of the 2018 Act are framed. This contention deserves a short shrift because the aforesaid provisions are selfexecutory. In M. U. A. Khan v. Rana M. Sultan and another (PLD 1974 SC 228) the Hon’ble Supreme Court held that a statute is not rendered inoperable on account of the failure of the designated authority to frame rules or regulations unless the legislature has expressed such intention. Relevant excerpt is reproduced below:

“It is universally recognized that as regulatory statutes have to deal with a variety of situations and subjects, it is not possible for the Legislature itself to make detailed regulations concerning them, and, therefore, the Legislature delegates its power to specified or designated authorities to make such detailed regulations, consistent with the statute, for carrying out the purposes of the parent legislation. The power so conferred is generally in the nature of an enabling provision, intended to further the object of the statute, and not to obstruct and stultify the same. As a consequence, the failure or omission of the designated authority to frame the necessary rules and regulations, in exercise of the power conferred on it by the Legislature, cannot be construed as having the effect of rendering the statute nugatory and unworkable. Such an eventuality could arise only if the Legislature indicates an intention to this effect in clear and unmistakable terms.”[4]

1. In Nestle Pakistan Ltd. and others v. Federal Board of Revenue and others (2017 PTD 686) a Division Bench of this Court held:

“… a provision is self-executing if rights granted or duties imposed are enforceable in absence of any supplementary legislation; in other words if manifest intention is found in language of the provision that power conferred should go into immediate effect and no ancillary legislation is necessary, then the provision is self-executing. The provision is not self-executing if it indicates merely a line of policy or principles, without giving means by which such policy or principles are to be carried into effect, or it is directed in the provision for framing of Rules through delegated powers to enforce the rights, duties or powers given therein.”

Further reference in this regard may be made to Kohinoor Chemical Co. Ltd. Karachi and 2 others v. Karachi Muncipal Corporation (PLD 1978 Karachi 233) and Abdullah Advertiser through Sole Proprietor and 3 others v. District Coordination Officer, District Khushab and 3 others (2017 CLC Note 140)

1. Confronted with the above situation the learned counsel for the Petitioners submitted that Respondent No. 1 had encroached public road for the parking instead of providing space from the land vesting in it. On this premise he argued that the parking fee was illegal. I am afraid, no ruling can be given on this issue as there is no evidence to substantiate the allegation.

2. In view of what has been discussed above, this petition is dismissed.

(M.A.B.) Petition dismissed

[1]. Published in official Gazette vide Notification No. 6/4/Dir/E & M/09 dated 17.3.2009.

[2]. Government of KPK and others v. Khalid Mehmood (2012 SCMR 619); Al-Hamza Ship Breaking Co. and 14 others v. Government of Pakistan through Secretary Revenue Division, Ministry of Finance, Islamabad and others (2015 SCMR 595); Hyderabad Cantonment Board v. Raj Kumar and others (2015 SCMR 1385); Treet Corporation Limited v. Government of Pakistan through its Secretary, Ministry of Industries, Islamabad and 2 others (PLD 1992 Karachi 427); and Exide Pakistan Limited v. Cantonment Board Clifton and another (2012 CLC 1124).

[3]. Internal citations omitted.

[4]. The Hon’ble Supreme Court reiterated this view in Jahangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan, through Secretary, Establishment Division and others (PLD 1990 SC 1013).

PLJ 2022 Lahore 84 [Multan Bench, Multan]

Present: Sohail Nasir, J.

Mst. SHIMSHAD BIBI and another--Appellants

versus

ADDITIONAL DISTRICT JUDGE & SESSIONS JUDGE, JATOI District Muzaffargarh and 2 others--Respondents

W.P. No. 2961 of 2014, heard on 8.9.2021.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Suit for recovery of maintenance, dower and dowry articles--Respondent No. 3 also filed a suit for restitution of conjugal rights--Both sides contested suit of each other which were consolidated--Nikkah Nama between parties is an admitted document where gold 05-tola was specifically recorded as dower--Entries in Nikkah Nama had rightly declared appellant entitled for recovery of 05-tola of gold--Additional District Judge on basis of presumptions and without assigning any good reason wrongly modified these findings by reducing gold to 02-tola. [Pp. 84 & 85] A, B & C

Pirzada Niaz Mustafa Qureshi, Advocate for Appellants.

Ex-parte for Respondent No. 3.

Date of hearing: 8.9.2021.

Judgment

According to report Respondent No. 3 refused to accept service where-after the process server had affixed the copy of notice outside of his house. He has also not appeared therefore proceeded ex-parte.

2. Mst. Shimshad Bibi (Appellant No. 1) on her behalf as well as on behalf of minor son Jawad Asim (Appellant No. 2) filed a suit for recovery of maintenance, dower and dowry articles in the Family Court Tehsil Jatoi District Muzaffar Garh. Respondent No. 3 also filed a suit for restitution of conjugal rights. Both sides contested the suit of each other which were consolidated. Issues were framed, evidence was recorded and vide a judgment and decree dated 30.07.2012 passed by learned Judge Family Court Jatoi District Muzaffar Garh the suits were decided as under:

“The nub of the above discussion is that, suit of the plaintiffs is hereby decreed partially in favour of the plaintiffs against the defendant. Whereas suit of the defendant for restitution of conjugal rights is hereby dismissed. Plaintiff No. 1 would be entitled to get maintenance allowance from the defendant @ Rs. 1500/- subject to actual joining to the defendant. In case of failure to do so, she is not entitled for the same. Whereas minor plaintiff No. 2 would be entitled to get maintenance allowance

@ Rs. 1500/- per month from the date of institution of suit till his statutory period. Whereas claim of Plaintiff No. 1 for dower is decreed to the extent of five tola gold or its alternative value at the time of execution. Claim of plaintiff for dowry articles is decreed to the extent of Rs. 30000/- in lum sum. Claim of plaintiffs for previous maintenance allowance is turned down. No order as to costs. Decree sheet be prepared. Copy of this consolidated judgment be annexed with the connected file Muhammad Hanif vs. Shamsad Bibi etc.”

1. Respondent No. 3 filed an appeal which was decided vide a judgment and decree dated 03.10.2013 passed by the learned Additional District Judge, Jatoi. On the basis thereof the suit for restitution of conjugal rights filed by Respondent No. 3 was decreed in his favour however it was held that Appellant No. 1 was entitled of dower to the extent of only 02-tolas.

2. Petitioners being aggrieved form the judgment and decree of learned Additional District Judge has approached this Court through the instant writ petition.

3. Learned counsel for petitioners contends that petitioners are aggrieved only on the findings with regard to dower. He further maintains that the learned Additional District Judge without any reason disentitled the Petitioner No. 1 from recovery of 05-tola gold.

4. HEARD.

7. Nikkah Nama between the parties is an admitted document where gold 05-tola was specifically recorded as dower. The learned trial Court on the basis of its findings on Issue No. 2 after taking into consideration the evidence and particularly entries in Nikkah Nama had rightly declared appellant entitled for the recovery of 05-tola of gold. Learned Additional District Judge on the basis of presumptions and without assigning any good reason wrongly modified these findings by reducing the gold to 02-tola.

1. In view of above, this writ petition is allowed. Impugned judgment and decree dated 03.10.2013 passed by learned Additional District Judge Jatoi to the extent of modification of findings of learned trial Court with regard to Issue No. 2 are set-aside whereas findings of learned trial Court are maintained.

(K.Q.B.) Petition allowed

PLJ 2022 Lahore 85

Present: Abid Aziz Sheikh, J.

ARIF MEHMOOD--Petitioner

versus

ADDITIONAL DISTRICT JUDGE etc.--Respondents

W.P. No. 64646 of 2020, decided on 16.9.2021.

Punjab Rent Premises Act, 2009 (VII of 2009)--

----S. 13--Ejectment petition--Rent deed--Default in payment of rent--No further extension--Challenge to--Claim of petitioner is that he is not tenant through lease agreement but through oral lease agreement with respondents father since last fourty years ago--Plea of petitioner is not supported by any record--In absence of written agreement as to period, tenancy would be on month to month basis and terminable on 30 days notice--Claim of pagri, amount against renovation and payment of tax is also not substantiate through any independent evidence--Petitioner's own claim that rent was not received by respondents also prove fact that rent was due and petitioner defaulted in payment of rent as claimed in ejectment petition--Petition dismissed. [Pp. 86 & 87] A, B, C & D

2015 CLC 1187, 2016 MLD 1095, PLJ 2012 Lah. 3 ref. 2019 MLD 792.

Mrs. Naila Mushtaq Ahmed Dhoon, Advocate for Petitioner.

Date of hearing: 16.9.2021.

Order

This constitutional petition is directed against the judgments and decrees dated 01.2.2020 and 11.11.2020 passed by learned Special Judge (Rent) and learned Appellate Court, respectively.

1. Relevant facts are that Respondents No. 3 to 7 filed ejectment petition against the petitioner claiming that they are owner of shop No. 3 situated at Aftab Building at Railway Road near street Rex Cinema Sialkot (shop), which was taken on rent by the petitioner through rent deed dated 22.2.2017 for period of 11 months at the rate of Rs. 6500/- per month. However, not only the petitioner defaulted in payment of rent but lease period was also not further extended. The petitioner filed application for leave to defend which was however dismissed and ejectment order was passed on 01.2.2020, which order was upheld by learned Appellate Court on 11.11.2020, hence this constitutional petition.

2. Learned counsel for the petitioner submits that rent deed dated 22.2.2017 is a fictitious document and petitioner is tenant of the shop from father of the respondents (namely Allah Lok) for the last 40 years through oral agreement. Further submits that the petitioner never defaulted in the payment of monthly rent rather it was the respondents who refused to receive the rent, hence impugned judgments are not sustainable.

4. Arguments heard. It is not disputed by the petitioner that he is tenant of the shop in question. However, the claim of the petitioner is that he is not tenant through lease agreement dated 22.2.2017 but through oral lease agreement with the respondents father since last fourty years ago. The above plea of the petitioner is not supported by any record. On the other hand, the respondent placed on record tenancy agreement dated 22.2.2017 for period of 11 months commencing from 01.1.2017 to 31.8.2018 which was not further

extended. On the expiry of aforesaid lease period, tenancy was month to month basis and terminable on 30 days notice. Reliance in this regard is placed on Muhammad Taufeeq vs. Muhammad Nawaz etc (2015 CLC 1187), Muhammad Nayab vs. Additional District Judge etc. (2016 MLD 1095) and Waqar Zafar etc. vs. Haji Mazhar Hussain etc (PLD 2018 Supreme Court 81).

5. Regarding claim of the petitioner that he is tenant of respondent father through oral lease for last 40 years, suffice it to the observe that it is settled law that in absence of written agreement as to the period, the tenancy would be on month to month basis and terminable on 30 days notice. Reliance is placed on Muhammad Taufeeq vs. Muhammad Nawaz etc (2015 CLC 1187), Muhammad Nayab vs. Additional District Judge etc. (2016 MLD 1095) and Aftab Ahmad Raja vs. Malik Faizullah Khan etc (PLJ 2012 Lahore 3). Further lease which is beyond period of 11 months, if not registered shall have no legal value and after 11 months, the said tenancy shall also be treated on month to month basis. Reliance is placed on M.K. Muhammad etc vs. Muhammad Abu Bakar (1993 SCMR 200), Habib Bank Limited vs. Dr. Munawar Ali Siddiqui (1991 SCMR 1185) and Messrs Iris Communication Pvt. Ltd vs. Ahmad Khalid (2019 MLD 772).

6. The claim of pagri, amount against renovation and payment of tax is also not substantiate through any independent evidence rather same is negated by lease deed dated 22.2.2017. The petitioners own claim that rent was not received by the respondents also prove the fact that rent was due and petitioner defaulted in payment of rent as claimed in the ejectment petition.

1. In view of above discussion, no illegality is found in the impugned judgments, therefore, this petition is dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 87

Present: Tariq Saleem Sheikh, J.

ABID HUSSAIN--Petitioner

versus

ADDITIONAL SESSIONS JUDGE etc.--Respondents

Transfer Appln. No. 62606 of 2021, decided on 11.10.2021.

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

----S. 22-A--Respondent has moved an application under Section 22-A of the Code of Criminal Procedure, 1908 for registration of case.

[P. 89] A

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

----S. 526--Through this petition under Section 526, Cr.P.C. the Petitioner seeks its transfer to some other Ex-officio Justice of Peace in the District. [P. 89] B

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

----S. 526(1)--Power of High Court--A bare perusal of the provision evinces that it empowers the High Court to transfer cases pending before the criminal Courts only. [P. 90] C

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

----S. 6--Clases of Criminal Courts--Section 6, Cr.P.C. stipulates that in addition to the High Court and the Courts constituted under different laws for the time being in force, there shall be two classes of criminal Courts in Pakistan, namely, the Courts of Sessions and the Courts of Magistrates. [P. 94] D

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

----S. 22--Power of Provincial Government-- Empowers the Provincial Government to appoint one or more Justices of Peace for a local area and Sections 22-A and 22-B describe their powers and duties respectively. Section 25 stipulates that by virtue of their respective offices, the Sessions Judges and on nomination by them, the Additional Sessions Judges, are Justices of Peace for the entire district of the province in which they are serving. [P. 95] E

Role of Justice of Peace--

----In Pakistan the role of the Justices of Peace is historically restricted to conservation of peace primarily by rendering assistance to the police. [P. 95] F

Ref. PLD 2005 Lahore 470.

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

----S. 22-A(6)(i)(ii)(iii)--Functions of Ex-officio Justice of Peace--Hon’ble Supreme Court dissented with the latter part of the holding in Khizar Hayat and held that the functions of the Ex-officio Justice of Peace described in clauses (i), (ii) and (iii) of Section 22-A(6), Cr.P.C. are quasi-judicial. [P. 96] G

PLD 2016 SC 581.

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

----S. 207--Ex-officio Justice of Peace is not a Court within the meaning of Section 20, PPC read with Section 4(2), Cr.P.C. As Section 526, Cr.P.C. empowers the High Court to transfer cases pending before the criminal Courts only, this petition is not maintainable and dismissed in limine. [P. 96] H

Mr. Arsalan Yousaf, Advocate for Petitioner.

Mr. Muhammad Mustafa Chaudhry, Deputy Prosecutor General, on Court’s call.

Date of hearing: 11.10.2021.

Order

Respondent No. 5 has moved an application under Section 22-A of the Code of Criminal Procedure, 1908 (hereinafter referred to as the “Code” or alternatively as “Cr.P.C.”), before the Ex-officio Justice of Peace, Sillanwali, seeking direction to the Respondent SHO for registration of FIR against the Petitioner and others. Through this petition under Section 526, Cr.P.C. the Petitioner seeks its transfer to some other Ex-officio Justice of Peace in the District.

1. The learned Deputy Prosecutor General, who has appeared on the Court’s call, has raised an objection regarding maintainability of this petition. The law is well settled that the Court should decide that issue before taking any other steps in the proceedings.

2. Section 526(1), Cr.P.C. is relevant for our present purpose which is reproduced hereunder for ready reference:

3. High Court may transfer cases or itself try it.--(1) Whenever it is made to appear to the High Court–

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same, or

(d) that an order under this section will tend to the general convenience of the parties or witnesses, or

(e) that such an order is expedient for the ends of justice, or is required by any provision of this Code; it may order--

(i) that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case or appeal be transferred to and tried before itself; or

(iv) that an accused person be sent for trial to itself or to a Court of Session.

4. A bare perusal of the above provision evinces that it empowers the High Court to transfer cases pending before the criminal Courts only.

1. Halsbury’s Laws of England states that “originally the term ‘Court’ meant, among other things, the Sovereign’s palace … In the legal context it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either directly or indirectly from the Sovereign.”[1] Ballentine’s Law Dictionary explicates that Court is an “organ of the government consisting of one person or of several persons called upon and authorized to administer justice. Three elements are essential for the conception of Court which include: (1) time when judicial functions may be exercised; (2) a place for the exercise of judicial functions; and (3) a person or persons exercising judicial functions.”[2]

2. In Brajnandan Sinha v. Jyoti Narain (AIR 1956 SC 66) the Supreme Court of India held that unless a person or body of persons can pronounce an authoritative and binding judgment he or they cannot be reckoned as a Court. It also reiterated the principles laid down in Cooper v. Wilson[3] which were adopted in some earlier cases.[4] Cooper had said:

“A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal arguments by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.”

1. In Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others [PLD 1957 SC (Pak) 91] the Hon’ble Supreme Court of Pakistan laid down the following criteria for determining whether a particular forum is a Court:

(1) to be a Court, the person or persons constituting such Court, must be entrusted with judicial functions, i.e., of deciding litigated questions according to law;

(2) such person or persons must derive the power of so deciding questions, from the State, and therefore will be exercising the judicial powers of the State; and

(3) the appointment of the person or persons constituting a Court should be by the Government; these persons should receive payment for their services exclusively out of the Government funds and they should not be liable to removal by any authority other than the Government.

1. The case Bahadur and another v. The State and another (PLD 1985 SC 62) is also instructive. The august Supreme Court ruled that pendency of lis, duty to hear the parties and pronouncement of definitive judgment are essential attributes of Court. Relevant excerpt is reproduced below:

“Though a magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all State power, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same magistrate does not even after passing such an order render himself functus officio. On the contrary, he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under Section 173, Cr.P.C. he does not function as a criminal Court. For that reason his order is not amenable to revisional jurisdiction under Sections 435 to 439, Cr.P.C.”

1. In Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 SC 142) the apex Court approvingly cited the following passage from the decision of the Balochistan High Court delivered in Mir Rehman Khan and another v. Sardar Asadullah Khan and 14 others (PLD 1983 Quetta 52):

“The question for determination as to which forum is a Court and which is not a Court, is mainly dependent on the manner and method in which proceedings are regulated before it. This process naturally embraces the procedural laws, which bind it in its functions and determine its course of action. The evidence being the deciding factor in all kinds of disputes, it is also pertinent to see whether such form follows the Evidence Act or not. It may be mentioned here that the Evidence Act, by virtue of the definition describes such forums as ‘Court’ which follow its tenets. But it is only relevant for the purpose of the Evidence Act. Ordinarily the decision of a dispute by an arbitrator and a conciliatory body etc. may be termed as decision by a Court but that is not so because such forums are not bound by any law with regard to procedure and evidence, as such, they only settle the dispute but do not administer justice according to law, and are not, therefore, Courts. Hence, the Courts are such organs of the State which follow legally prescribed scientific methodology as to procedure and evidence in arriving at just and fair conclusions.”

1. In Allah Dino Khan Bhayo v. Election Commission of Pakistan and others (PLD 2020 SC 591) the august Supreme Court held that “the determination of a dispute relating to a right or liability, the recording of evidence, including the right of cross-examination, a hearing of the arguments of the parties and a reasoned judgment are essential attributes of a Court of law (ref: Tariq Transport Co., Lahore v. Sargodha Bhera Bus Service (PLD 1958 SC (Pak) 437) and Mollah Ejahar Ali v. Government of East Pakistan(PLD 1970 SC 173).”

2. The above discussion clearly shows that the fundamental characteristic of the Court is the exercise of judicial power. In The Shell Company of Australia v. Federal Commissioner of Taxation (Australia), (1930) All ER 670, Lord Sankey L.C. in the Privy Council said:

“… What is judicial power? Their Lordships are of opinion that one of the best definitions is that given by Griffith C.J. in Huddart, Parker & Co. v. Moorehead, where he says: ‘I am of opinion that the words ‘judicial power’ as used in Section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.’ ”

1. In The Queen v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd., (1970) 123 CLR 361, the High Court of Australia described the concept of judicial power as under:

“[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.”

1. Halsbury’s Laws of England states that “many bodies are not Courts, although they have to decide questions, and in so doing, have to act judicially in the sense that the proceedings must be conducted with fairness and impartiality.”[5] In The Shell Company of Australia v. Federal Commissioner of Taxation (Australia), (1930) All ER 670, it was held that there are tribunals with many of the “trappings of a Court” which are not Courts in the strict sense. Lord Sankey said:

“(1) A tribunal is not necessarily a Court in this strict sense because it gives a final decision; (2) Nor because it hears witnesses on oath; (3) Nor because two or more contending parties appear before it between whom it has to decide; (4) Nor because it gives decisions which affect the rights of subject; (5) Nor because there is an appeal to a Court; (6) Nor because it is a body to which a matter is referred by another body … An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so call. Mere externals do not make a direction to an administrative officer by an adhoc tribunal an exercise by a Court of judicial power.”

1. In view of the foregoing, in order to determine whether a particular forum is a Court, it is necessary to consider the powers, functions and duties performed by it.[6]

15. Having discussed the concept of “Court”, let us now take up the case on hand. Section 6, Cr.P.C. stipulates that in addition to the High Court and the Courts constituted under different laws for the time being in force, there shall be two classes of criminal Courts in Pakistan, namely, the Courts of Sessions and the Courts of Magistrates. The latter have three classes. It is, however, important to note that the Code defines the expression “judicial proceeding” only in Section 4(1)(m) and states that it includes any proceeding in the course of which evidence as or may legally be taken on oath. The definitions of “Judge” and “Court of Justice” in Sections 19 and 20 of the Pakistan Penal Code, 1860, are incorporated in it by reference through Section 4(2), Cr.P.C. They are reproduced below:

1. “Judge”. The word “Judge” does not only denote every person who is officially designated as a Judge, but also every person--

who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or

who is one of a body of persons, which body of persons is empowered by law to give such a judgment.

1. “Court of Justice”. The words “Court of Justice” denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.

2. The terms “Judge” and “Court” are often used interchangeably but the distinction between them is subtle. A Judge is an individual while the Court is the seat of justice as an institution.[7] “Generally speaking, a Judge is properly identified with the Court in relation to something done in exercise of the jurisdiction of the Court. His personality otherwise remains distinct from the Court. As an individual he remains subject to the laws of the land like the rest of the citizenry, except when expressly exempted.”[8] The Code’s definition of the term “Court” is in consonance with the principles discussed above. In particular, it emphasises that the pronouncement of a definitive judgment is the sine qua non of a Court – a judgment which is delivered by the presiding officer acting judicially.

17. Section 22, Cr.P.C. empowers the Provincial Government to appoint one or more Justices of Peace for a local area and Sections 22-A and 22-B describe their powers and duties respectively. Section 25 stipulates that by virtue of their respective offices, the Sessions Judges and on nomination by them, the Additional Sessions Judges, are Justices of Peace for the entire district of the province in which they are serving. The proceedings under Sections 22-A & 22-B before the Sessions Judge or the Additional Sessions Judge do not become judicial merely because they are judges and exercise judicial power in other matters. As adumbrated, one must look at the nature of the duty or work in which the officer concerned is engaged. In order that it may be judicial proceeding, he must act in a judicial capacity.

18. In Pakistan the role of the Justices of Peace is historically restricted to conservation of peace primarily by rendering assistance to the police. When the Ex-officio Justices of Peace were appointed some additional powers were conferred on them inter alia in respect of entertaining complaints and issuance of directions to the concerned police authorities regarding registration of criminal cases and transfer of investigation of criminal cases. In Khizar Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) this Court examined the scope of the powers and duties of the Justices of Peace and observed:

“The powers and duties of a Justice of the Peace or an Ex-officio Justice of the Peace in Pakistan as provided in Sections 22-A and 22-B, Cr.P.C. do not involve any jurisdiction which can be termed as judicial in nature or character. In this context the role of a Justice of the Peace or an Ex-officio Justice of the Peace in Pakistan is sharply different from that now enjoyed by their counterparts in the United Kingdom and the United States of America where some judicial role regarding summary trial of petty civil and criminal cases has been conferred upon the Justices of the Peace through legislative intervention. That surely is not the case in Pakistan where no statute confers any judicial power upon a Justice of the Peace or an Ex-officio Justice of the Peace. Functions to be performed by a Justice of the Peace or an Ex-officio Justice of the Peace in Pakistan are merely administrative and ministerial in nature and character.”[9]

19. In Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581) the Hon’ble Supreme Court dissented with the latter part of the holding in Khizar Hayat and held that the functions of the Ex-officio Justice of Peace described in clauses (i), (ii) and (iii) of Section 22-A(6), Cr.P.C. are quasi-judicial. Relevant excerpt is reproduced below:

“The duties, the Justice of Peace performs, are executive, administrative, preventive and ministerial as is evident from sub-Sections (1), (2), (3), (4) and (5) of Sections 22-A and 22-B of the Cr.P.C. Such duties have not been the subject-matter of controversy nor have they ever been caviled at by anybody. Controversy emerged with the insertion of sub-section (6) in Section 22-A and Section 25 of the, Cr.P.C. when the Sessions Judges and on nomination by them the Additional Sessions Judges became the Ex-officio Justices of Peace. The functions, the Ex-officio Justice of Peace performs, are not executive, administrative or ministerial inasmuch as he does not carry out, manage or deal with things mechanically. His functions as described in Clauses (i), (ii) and (iii) of sub-section (6) of Section 22-A, Cr.P.C., are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. Every lis before him demands discretion and judgment. Functions so performed cannot be termed as executive, administrative or ministerial on any account. We thus don't agree with the ratio of the judgments rendered in the cases of Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) and Muhammad Ali v. Additional I. G., Faisalabad and others (PLD 2014 SC 753) inasmuch as it holds that the functions performed by the Ex-officio Justice of Peace are executive, administrative or ministerial.”

20. In view of the foregoing, the Ex-officio Justice of Peace is not a Court within the meaning of Section 20, PPC read with Section 4(2), Cr.P.C. As Section 526, Cr.P.C. empowers the High Court to transfer cases pending before the criminal Courts only, this petition is not maintainable and dismissed in limine.

(K.Q.B.) Petition dismissed

[1]. 1 Halsbury’s Laws of England, Fifth Edition, Vol. 24, p. 326.

[2]. Ballentine’s Law Dictionary, Third Edition, p. 281.

[3]. Cooper v. Wilson, (1937) 2 KB 309.

[4]. The Bharat Bank Ltd., Delhi v. The Employees of the Bharat Bank Ltd., Delhi and another (AIR 1950 SC 188); and Maqbool Hussain v. State of Bombay (AIR 1953 SC 325).

[5]. Halsbury’s Laws of England, Fifth Edition, Vol. 24, p. 327.

[6]. The United Engineering Workers Union v. K.W. Devanayagam, (1967) 2 All ER 367.

[7]. Abrar Hassan v. Government of Pakistan and another (PLD 1976 SC 315).

[8]. ibid.

[9]. Also see: Muhammad Ali v. Additional I. G., Faisalabad and others (PLD 2014 SC 753) which endorsed the view that the Ex-officio Justice of Peace performs administrative functions.

PLJ 2022 Lahore 97 (DB)

Present: Shahid Waheed and Ch. Muhammad Iqbal, JJ.

PAKISTAN RAILWAYS through CEO/G.M--Appellant

versus

DILAWAR HUSSAIN and others--Respondents

I.C.A. No. 57486 of 2021, decided on 21.9.2021.

Railway Servants (Efficiency & Discipline) Rules, 1975--

----R. 10--Pakistan Railway Establishment Code, 1940, Rs. 1717, 1723, 1731, 1731--Law Reforms Ordinance, 1972, S. 3(2)--Compulsory retirement--Remedy of appeal--Question of whether Respondent No. 1 has any remedy of appeal against punishment of compulsory retirement--Responding to this question, he made reference to Railway Servants (Efficiency &v Discipline) Rules, 1975 which contemplates that a person on whom a penalty is imposed shall have such right of appeal as prescribed in rules 1717, 1731 and 1723, 1732 of Pakistan Railways, Establishment Code--This reply suggests that W.P. No. 250500 of 2018 had arisen out of proceedings in which a remedy of appeal was provided--Instant appeal by virtue of bar provided in proviso to sub-section (2) of Section 3 of Law Reforms Ordinance, 1972 is not competent--Petition dismissed. [P. 97] A

Mr. Jawad Mahmood Pasha, Advocate for Appellant.

Date of hearing: 21.9.2021.

Order

This Intra Court Appeal has arisen out of a petition brought by Respondent No. 1 under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 (i.e. W.P.No. 250500 of 2018) challenging the punishment of compulsory retirement.

2. At the outset of hearing, we asked the appellant’s counsel as to whether the Respondent No. 1 had any remedy of appeal against the punishment of compulsory retirement. Responding to this question, he made reference to rule of the Railway Servants (Efficiency & Discipline) Rules, 1975 which contemplates that a person on whom a penalty is imposed shall have such right of appeal as prescribed in Rules 1717, 1731 and 1723, 1732 of the Pakistan Railways, Establishment Code. This reply suggests that W.P. No. 250500 of 2018 had arisen out of the proceedings in which a remedy of appeal was provided. That being so, the instant appeal by virtue of bar provided in

proviso to sub-section (2) of Section 3 of the Law Reforms Ordinance, 1972 is not competent.

1. Dismissed.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 98

Present: Muhammad Sajid Mehmood Sethi, J.

NASRULLAH BHALLI--Petitioner

versus

MUHAMMAD NAWAZ--Respondent

C.R. No. 54824 of 2020, decided on 9.9.2021.

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

----S. 115--Return of barrowed amount--Imposing of condition for submission of bank guarantee--Surety bond was already submitted by petitioner--Petitioner has raised a plea regarding return of borrowed amount in presence of witnesses--Condition imposed by trial Court, is harsh and tantamounts to negate principle of law, same is untenable--Revision petition allowed. [P. 99] A & B

2007 CLD 267 ref.

Mrs. Naila Mushtaq Ahmad Dhoon, Advocate for Petitioner.

Mr. M. Mumtaz Faridi, Advocate for Respondent.

Date of hearing: 9.9.2021.

Order

Through instant revision petition, petitioner has assailed order dated 10.09.2020, passed by learned Additional District Judge, Sialkot, whereby petitioner was granted leave to appear and contest the suit subject to submission of bank guarantee of an amount of Rs. 55,00,000/-.

1. Learned counsel for petitioner submits that pursuant to the interim order dated 28.10.2020, passed by this Court, surety bond equivalent to the claimed amount has already been submitted. She adds that learned trial Court is proceeding with the case and evidence is being recorded, therefore, condition for submission of bank guarantee is harsh. When confronted, learned counsel for respondent could not controvert the above fact.

2. Heard.

4. Perusal of record shows that petitioner has raised a plea regarding return of borrowed amount in presence of witnesses and in the given circumstances, condition imposed through impugned order for submission of bank guarantee is unjustified, which fact could not be rebutted by learned counsel for respondent despite arguments at some length. The condition imposed by learned trial Court, is harsh and tantamounts to negate the principle of law, therefore, same is untenable. Reliance is placed upon Muhammad Ashraf v. Akhlaq Sheeda (2007 CLD 267).

1. In view of the above, instant petition is allowed in the manner that impugned order to the extent of imposition of condition for submission of bank guarantee is set aside, however, surety bond equivalent to the claimed amount already submitted by petitioner pursuant to stay order dated 28.10.2020, passed by this Court is substituted with bank guarantee.

(Y.A.) Petition allowed

PLJ 2022 Lahore 99

Present: Jawad Hassan, J.

NASREEN MAJEED CHOHAN--Petitioner

versus

ADVOCATE GENERAL PUNJAB etc.--Respondents

W.P. No. 17204 of 2021, decided on 17.11.2021.

Legal Practitioners & Bar Councils Act, 1973--

----S. 13(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Maintainability--Premature--License to practice as an advocate was suspended--Decision of Provincial Bar Council--Alternate remedy of filing appeal before Pakistan Bar Council--Remedy of filing an appeal before Pakistan Bar Council is available to Petitioner, writ is not competent being pre-mature--PBC is not amenable to the constitutional jurisdiction of this Court.

[Pp. 101 & 102] A & B

2021 SCMR 425 & 2017 CLC 1173 ref.

Mr. Safdar Shaheen Pirzada, ASC with Petitioner.

Mr. Waqar Saeed Khan, Assistant Advocate General Punjab on behalf of Respondent No. 1.

Mr. Javed Imran Ranjha, ASC for Respondents No. 4 to 5.

Date of hearing: 17.11.2021.

Order

The Petitioner, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”), has impugned letter dated 16.01.2021, issued by the Respondent/Punjab Bar Council, Lahore (the “PBC”). Subsequently, she has also assailed the validity of impugned order dated 08.01.2021, passed by the PBC, whereby her license to practice as an advocate has been suspended, by filing a miscellaneous application with amended writ petition.

1. Mr. Safdar Shaheen Pirzada, ASC submits that the impugned letter is the outcome of the impugned order dated 08.01.2021 on which date allegedly an incident took place at the premises of the PBC. He further submits that through the impugned order, the concerned authority of the PBC has held responsible some advocates, including the Petitioner, for happening of the aforesaid (alleged) incidence and not only suspended their licenses to practice as advocates but also put a ban on their entry in the PBC premises. He maintains that the Petitioner has no concern with the alleged incidence and her name has wrongly been mentioned in the impugned order. He claims that the impugned order is illegal and without lawful authority, therefore, the same is liable to be set-aside.

2. When confronted how writ is maintainable being pre-mature because against any decision of the Provincial Bar Council alternate remedy of filing an appeal before the Pakistan Bar Council is available under Section 13(2) of the Legal Practitioners and bar Councils Act, 1973 (the “Act”), Mr. Safdar Shaheen Pirzada, ASC submits that the PBC, while taking action against the Petitioner, has not followed the relevant provisions of the Act. He explains that under Section 41 of the Act, conduct of an advocate will be thoroughly looked into before awarding him or her any penalty on account of misconduct but this procedure has been ignored by the PBC, thus, offending the provisions of Article 10-A of the Constitution, which clearly provides right of fair trial and due process to every citizen of this country. He adds that under Article 4 of the Constitution it is an inalienable right of every citizen to be treated in accordance with law and no action detrimental to his/her life, liberty, reputation or property shall be taken except as per law. He pleads that the law/Act provides for constitution of an Inquiry Committee to hold an inquiry in such like matters while the impugned order mentions about an Inquiry Officer who cannot be considered equivalent to an Inquiry Committee, therefore, any finding given by the said inquiry officer has no legal sanctity.

3. Mr. Javed Imran Ranjha, ASC appearing on behalf of the PBC has also strongly objected to the maintainability of this petition by stating that jurisdiction of this Court under Article 199 of the Constitution is barred in presence of the alternate efficacious remedy to the Petitioner under Section 13(2) of the Act. He maintains that the Petitioner may agitate all her grounds before the appellate authority/forum in the appeal. He next contends that the matter regarding suspension of license of the Petitioner is also currently pending before the Punjab Bar Council Tribunal.

4. Arguments heard and record perused.

5. The matter has been assigned to this Bench pursuant to a direction issued by the Full Bench of the Hon’ble Supreme Court of Pakistan in C.M.A.228/2021 in C.M.A.6181/2020 in C.P.134 of 2012, vide order dated 14.09.2021, for its expeditious disposal. The relevant paragraph-5 of said order is read as under:-

“Ms. Nasreen Majeed Chohan submits that she has challenged the action of Bar Council through W.P. No. 17204/2021 which is pending. She prays that the same be heard and decided expeditiously. Let this request be placed before the Hon ‘ble Chief Justice of the Lahore High Court, Lahore.”

Now, Sub-Section (2) of Section 13 of the Act, which is most relevant here, is reproduced hereunder for ease of the matter and ready reference:

“Any person aggrieved by an order or decision of a Provincial Bar Council, [Islamabad bar Council], [the Supreme Court Bar Association or a Bar Association at the national level] may, within thirty days of such order or decision, prefer an appeal to the Pakistan Bar Council, whose decision in such appeal shall be final."

From bare perusal of the afore-quoted provision of law, it is absolutely clear that remedy of filing an appeal before the Pakistan Bar Council is available to the Petitioner, therefore, writ is not competent being pre-mature. Moreover, if the Petitioner has a strong arguable case, she may raise all the grounds/points agitated in this petition before the appellate forum in the appeal with the support of relevant provisions of the Act as well as the jurisprudence developed by the superior Courts of the country on the issue in hand. Recently, the Hon’ble Supreme Court of Pakistan in the case of Syed Iqbal Hussain Shah Gillani versus Pakistan Bar Council through Secretary, Supreme Court Bar Building, Islamabad and others (2021 SCMR 425) has declared that a Constitutional petition can only be entertained by the High Court if the association or body performed public functions in relation to the affairs to the Federation, Provinces or Local Authority as

envisaged under Article 199 of the Constitution whereas under the Act neither the affairs of a bar Council nor any of its committees come under the administrative command of the Provincial or Federal Government because it, being an autonomous body, has independent elections and generated its own funding without any Government control, therefore, the PBC is not amenable to the constitutional jurisdiction of this Court. In this regard, reference can also be made to the judgment passed by the Islamabad High Court, Islamabad in Mohammad Waqas Malik, Advocate versus Islamabad Bar Council through Secretary and 2 others (2017 CLC 1173).

1. In view of the above, this writ petition is dismissed being not maintainable. The Petitioner may, however, avail alternate remedy available to her under the law/Act, which if availed, the intervening period consumed in agitating the matter before this Court, may be Condoned by the concerned authority/forum.

(R.A.) Petition dismissed

PLJ 2022 Lahore 102 (DB) [Multan Bench, Multan]

Present: Mirza Viqas Rauf and Ahmad Nadeem Arshad, JJ.

MUHAMMAD ANWAR MUNCHI--Appellant

versus

MINISTRY OF ENERGY, POWER DIVISION, ISLAMABAD through Secretary, etc.--Respondents

I.C.A. No. 310 of 2019, heard on 31.5.2021.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Non statutory rules--Maintainability of constitutional petition and intra court appeal--Appellant is employee of MEPCO which is a limited company and admittedly having no statutory rules governing the terms and conditions of service of its employee--An employee whose services are regulated by non statutory rules, is precluded to invoke constitutional jurisdiction--It is a limited company and does not have any statutory rules governing terms and conditions of service of its employees--Constitutional petition is not maintainable--Appeal is dismissed. [Pp. 103 & 107] A & B

2020 SCMR 2119; 2017 SCMR 571; 2010 SCMR 1484; 2010 SCMR 1994 ref.

Mian Babur Saleem, Advocate for Appellant.

Ch. Shakeel Akhter Sindhu, Assistant Attorney General for Respondent No. 1.

Ch. Saleem Akhter Warraich, Advocate for Respondents No. 3 to 6.

Date of hearing: 31.5.2021.

Judgment

Mirza Viqas Rauf, J.--This appeal in terms of Section 3 of The Law Reforms Ordinance, 1972 (hereinafter referred as “The Ordinance, 1972”) is directed against the order dated 4th March, 2019, whereby the learned Single Judge in Chamber proceeded to dismiss W.P.No. 3502 of 2019 filed by the appellant.

1. The appellant being the employee of Multan Electric Power Company (hereinafter referred as “MEPCO”) canvassed his grievance through constitutional petition (W.P.No. 3502 of 2019) that he has been deferred from time scale promotion under vis-a-vis up-gradation from BS-15 to BS-17 without any rhyme and reason. The appellant, to this effect, impugned the letter dated 16th October, 2017 issued by the HR & Admin. Director, MEPCO, Multan. The constitutional petition was dismissed through order under appeal.

2. After having heard learned counsel for the appellant at some length, we when confronted him with the Court query as to how the constitutional petition was maintainable as the appellant is employee of a company having non-statutory rules of service, despite all earnest efforts, learned counsel has offered no plausible answer.

4. We have noticed that the appellant is an employee of “MEPCO”, which is a limited company and admittedly having no statutory rules governing the terms and conditions of service of its employee. We are cognizant of the fact that an employee, whose services are regulated by non-statutory rules, is precluded to invoke the constitutional jurisdiction of this Court as is held in “Executive Council Allama Iqbal Open University. Islamabad through Chairman and another v. M. Tufail Hashmi” (2010 SCMR 1484). In the recent judgment by a learned Full Bench of the Hon’ble Supreme Court of Pakistan, in the case of “Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others” (2017 SCMR 571), a criteria has been laid down by the Hon’ble Supreme Court of Pakistan in order to determine the status of the rules being statutory or otherwise, which to our mind resolves the whole issue. The relevant extract from the same is reproduced below:

“6. Like many other statutory bodies, SBP has also been given the power to frame regulations. In this regard Section 354 of the Act is relevant which reads as follow:

“54. Powers of the Central Board to make regulations.

(1) The Central Board may make regulations consistent with this Act to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of this Act:

Provided that the terms and conditions of service of Governor and Deputy Governor shall be determined by the Federal Government.

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

(j) recruitment of officers and servants of the Bank including the terms and conditions of their service, constitution of superannuation, beneficial and other funds, with or without bank’s contribution, for the officers and servants of the Bank; their welfare; providing amenities, medical facilities, grant of loans and advances, their betterment and uplift;

(3) ......................................................."

According to Section 54(1) of the Act, the Board is empowered to make regulations consistent with the Act to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of the Act. It is pertinent to mention that previously SBP could only make regulations with the approval of the Federal Government, however by virtue of Act II of 1994, the words subject to the approval of the Federal Government” were omitted. We are of the view that this omission is significant, conferring greater autonomy on the Board as the Federal Government was removed from the regulation-making process, and full authority came to vest in the Board to make such regulations. Indeed this was the view of two-member bench of this Court in the judgment reported as Chief Manager. State Bank of Pakistan, Lahore and another v. Muhammad Shafi (2010 SCMR 1994) wherein, while considering whether the State Bank of Pakistan Staff Regulations, 1999 were statutory or non-statutory, it was held as follows:

“7. The words “subject to the approval of the Federal Government” were omitted vide Act II of 1994. The regulations were framed under Section 56 in the year, 1999 as is evident from the source on the basis of which the said regulations were framed which is to the following effect:

“In exercise of the powers conferred by Section 54 of the State Bank of Pakistan Act, . 1956 (XXXIII of 1956) the Central Board of Directors, hereby makes the following regulations, to define the conditions of service . of the employees of the Bank.

1. The omission of the aforesaid words subject to the approval from Section 54 is meaningful Rules framed by the Central Board of Directors which does not require approval of the Government, therefore aforesaid regulations may be termed as internal instructions or domestic rules/regulatiom having no status of statutory rules/regulations as law laid down by this Court in various pronouncements ...”

We are of the opinion that the above view applies to and is correct vis-a-viz the Regulations in the instant matter as well. Furthermore, as matters stand (since the omission by Act II of 1994), and as mentioned above, the regulation-making power lies solely in the hands of the Board with no intervention or approval of the Federal Government, and this reflects the intention of the Legislature. In this context, as highlighted above, even the structure of the Board as provided for in the Act renders it autonomous, with the Members, save for the Secretary, Finance Division, Government of Pakistan, being private individuals, independent from the Federal Government. In fact, where the legislature wanted the intervention of the Federal Government, it has specifically provided for the same, and in this regard the proviso to Section 54(1) of the Act is relevant which states that “the terms and conditions of service of Governor and Deputy Governor shall be determined by the Federal Government”, clearly suggesting that the Legislature’s intention was to exclusively clothe SBP with the power to frame regulations to carry out the objects and purpose of the Act. Furthermore, Section 46B(2) of the Act [inserted by the State Bank of Pakistan (Amendment) Act, 1997 (Act No. XIIl of 1997)], provides that “the Bank, the members of the Board or the staff of the Bank, shall not take instructions from any other person or entity, including the government or quasi-government entities. The autonomy of the Bank shall be respected at all times and no person or entity shall seek to influence the members of the Board and Monetary Policy Committee or the staff of the Bank in the performances of their functions or interfere in the activities of the Bank “It may be added that to give maximum autonomy to SBP, Section 52(1) of the Act which empowered the Federal Government to supersede the Board and entrust the general superintendence and direction of the affairs of SBP to such agency as it (Federal Government) may determine was omitted by the State Bank of Pakistan (Amendment) Act, 2012 (Act No. IX of 2012 dated 13.3.2012). All the above aspects point towards the growing autonomy of SBP.

1. According to the judgment delivered in Civil Appeal No. 654/2010 etc. titled Shafiaue Ahmed Khan. etc. v. NESCOM through its Chairman. Islamabad, etc. the test of whether rules/regulations are statutory or otherwise is not solely whether their framing requires the approval of the Federal Government or not, rather it is the nature and efficacy of such rules/regulations. It has to be seen whether the rules/regulations in question deal with instructions for internal control, or management, or they are broader than and are complementary to the parent statute in matters of crucial importance. The former are non-statutory whereas the latter are statutory. In the case before us, the Regulations were made pursuant to Section 54(1) of the Act and Section 54 (2) thereof goes on to provide the particular matters for which the Board can frame regulations [while saving the generality of the power under Section 54(1) of the Act]. Out of all the matters listed in Section 54(2) of the Act, clause (j) is the most relevant which pertains to the “recruitment of officers and servants of the Bank including the terms and conditions of their service, constitution of superannuation, beneficial and other funds, with or without bank’s contribution, for the officers and servants of the Bank;

their welfare; providing amenities, medical facilities, grant of loans and advances, their betterment and uplift”. A perusal of the Regulations suggests that they relate to pension and gratuity matters of the employees of SBP and therefore it can be said that the ambit of such Regulations is not broader but narrower than the parent statute, i.e. the Act. Thus the conclusion of the above discussion is that the Regulations are basically instructions for the internal control or management of SBP and are therefore non-statutory. Hence the appellants could not invoke the constitutional jurisdiction of the learned High Court which was correct in dismissing their writ petition.”

5. In the recent past in the case of “Federation of Pakistan through Secretary, Ministry of Energy (Power Division), Islamabad and others” (2020 SCMR 2119), the Hon’ble Apex Court, while dealing with the case of FESCO, observed that it is a limited company and does not have any statutory rules governing the terms and conditions of service of its employees.

1. After having an overview of the above laid principles we are of the candid opinion that constitutional petition was not maintainable and it was rightly so adjudged by the learned Single Judge in Chamber. Even otherwise, we have found no illegality in the order under appeal. Resultantly this Intra Court Appeal fails and is dismissed with no order as to costs.

(K.Q.B.) Appeal dismissed

PLJ 2022 Lahore 107

Present: Miss Aalia Neelum, J.

ZAHID GHAZANFAR--Appellant

versus

SHO etc.--Respondents

W.P. No. 42546 of 2020, and C.M. No. 2 of 2020, decided on 23.11.2020.

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

----Ss. 22-A, 22-B & 154--Constitution of Pakistan, 1973, Art. 199--Cognizable offence--Registration of case--Specific allegation of life threats--Direction to--On receiving complaint of any information disclosing a cognizable offence an officer in charge of a police station has no other option except to enter substance thereof in prescribed form, that is to say, to register a case on basis of such information--There is specific allegation of life threats issued by proposed accused allegedly to petitioner and his servants and same cannot be considered civil dispute as stated by counsel for proposed accused and law officer--Even in application for registration of case petitioner has mentioned that, dispute pertaining to land existed between parties and civil suit filed by petitioner is pending for adjudication before competent Court of law--Impugned order dated 07.08.2020 is set aside and Respondent No. 1 is directed to record statement of petitioner without further delay and then proceed further strictly in accordance with law. [P. 109] A, B & C

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

----S. 182--FIR was found false untill and unless I.O--of case collects tangible evidence, no arrest of accused, shall be made; in case, if said FIR is found false then proceedings under Section 182, P.P.C may be initiated in accordance with law against complainant.

[Pp. 109 & 110] D

Miss Gulzar Butt, Advocate for Petitioner.

Mian Shakeel Ahmed, AAG, Salim Chughtai, SP (Legal) for Respondents.

Mr. Navid Ahmad Khawaja, Advocate.

Date of hearing: 23.11.2020.

Order

CM No. 02-2020 and Main Case

Through the instant petition, the petitioner has challenged vires of order dated 07.08.2020 passed by the learned Ex. Officio Justice of Peace/ASJ, Sarai Alamgir, whereby application of the petitioner filed under Section 22-A, 22-B, Cr.P.C. was dismissed.

1. Arguments heard and record perused.

2. On perusal of allegations leveled in the application for registration of case it is apparent that cognizable offence is made out. The material allegation which made out cognizable offence reads as follows:

"1۔ مطلوب حسین ملک ولد ملک مولاداد مسلح پسٹل، 2۔ ملک زین ولد مطلوب حسین ملک، اقوام ملک سکنائے کھوہار، تحصیل سرائے عالمگیر مسلح رائفل ہمراہ پانچ کس نامعلوم افراد جو آتشیں اسلحہ سے مسلحہ تھے جنہیں سامنے آنے پر شناخت کر سکتا ہوں، مٹی سے بھرے تین ڈمپر لے کر ملحقہ جائیداد الحور میرج ہال سرائے عالمگیر ملکیتی رضا ا حمد خان مذکور میں زبردستی داخل ہو گئے اور رضا احمد خان کی ملکیتی و مقبوضہ جائیداد پر بھرتی ڈال کر غیر قانونی طور پر قبضہ کرنے کی کوشش کی۔ سائل اور دیگر ملازمین نے افراد مذکورہ بالا کو جائیداد مذکورہ بالا پر غیر قانونی طور پر قبضہ کرنے سے منع کیا تو مطلوب حسین ملک اور ملک زین مذکور نے سائل و دیگر ملازمین کو جان سے مارنے کی دھمکیاں دینا شروع کر دیں اور کہا کہ اگر کوئی پاس آیا تو اسے قتل کر دیں گے۔ شور شرابہ سن کر ہمارے سیکورٹی گارڈز اور دیگر بہت سے لوگ موقع پر اکٹھے ہو گئے جس پر افراد مذکورہ بال سائل و دیگر ملازمین کو جان سے مارنے کی دھمکیاں دیتے ہوئے موقع سے فرار ہو گئے۔"

In Section 154 of the Criminal Procedure Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information”. It is clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence. It is, therefore, on receiving complaint of any information disclosing a cognizable offence an officer in charge of a police station has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. Therefore, looking to these materials on record, as there is specific allegation of life threats issued by the proposed accused allegedly to the petitioner and his servants and same cannot be considered civil dispute as stated by the learned counsel for the proposed accused and learned law officer. Even in the application for registration of case petitioner has mentioned that, dispute pertaining to land existed between the parties and civil suit filed by the petitioner is pending for adjudication before competent Court of law. As far as objection of the learned counsel for the proposed accused that complaint could not be filed by the special attorney is concerned same has no force as the petitioner has specifically mentioned in the application for registration of case that he being special attorney of Raza Ahmad khan is administering his properties whereas life threats were issued to him and others. Thus, in the interest of justice and for the above mentioned reasons the impugned order dated 07.08.2020 for the above reasons is set aside and Station Hose Officer/Respondent No. 1 is directed to record the statement of the petitioner without further delay and then proceed further strictly in accordance with law. However, it is made clear, that untill and unless the I.O. of the case collects tangible evidence, no arrest of the accused, shall be made; however, it

is made clear that in case, if the said FIR is found false then proceedings under Section 182, P.P.C may be initiated in accordance with law against the complainant.

1. The petition stands disposed of in above terms along with the pending application(s).

(R.A.) Petition disposed of

PLJ 2022 Lahore 110 [Multan Bench, Multan]

Present: Ch. Muhammad Iqbal, J.

MUHAMMAD ISMAEEL (deceased) through his Legal Heirs--Appellants

versus

MUHAMMAD HUSSAIN etc.--Respondents

R.S.A No. 95 of 2004, decided on 3.2.2021.

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

----Ss. 12 & 39--Suit for specific performance and cancellation of mutation--Sale agreement--Non-disclosing of date and non-mentioning of names of witnesses on sale agreement--Material contradictions--Misapplication of law--Challenge to--Respondent neither disclosed date of alleged agreement between parties nor mentioned names of witnesses in whose presence, alleged agreement was executed--Statements of P.Ws mutually suffers from material contradictions which impress to observe that respondent has failed to prove valid execution of alleged agreement to sell through any corroborative, believable concrete, solid and unimpeachable evidence--Agreement to sell shows that--It does not bear signatures of parties on its first page and only two thumb impressions of Bahadur are available on first page--Overleaf of alleged agreement to sell also does not speak out person who got issued same--It can conveniently be observed that respondent miserably failed to substantiate execution of alleged agreement to sell as well as payment of consideration through any convincing and trustworthy evidence which material facts have not been considered by two Courts below--Decisions of lower fora suffer from blatant misreading and non-reading of evidence as well as mis-application of law, as such, same are not sustainable in eyes of law--Appeal allowed. [Pp. 114, 115, 116 & 117] A, B, C, D, E & F

1996 SCMR 137, 2017 CLC 70 & 2016 SCMR 24 ref.

Mr. Faisal Bashir Chaudhary, Advocate for Appellants.

Messrs Syed Tajammul Hussain Bukhari and Mujtaba Aziz, Advocates for Respondents.

Date of hearing: 3.2.2021.

Judgment

Through this Regular Second Appeal, the appellants have challenged the validity of the judgment & decree dated 21.04.2004, passed by the learned Civil Judge, Mailsi who decreed the suit for specific performance of contract filed by the respondents and the judgment & decree dated 06.10.2004, passed by the learned Additional District Judge, Mailsi who dismissed the appeal of the appellants.

1. Brief facts of the case are that respondent/plaintiff, Mohabbat, filed a suit for specific performance of contract against appellants as well as other respondents/defendants contending therein that the Defendant No. 1, Bahadur, was owner of land measuring 98 Kanal 07 Marla bearing Khewat No. 36/94-min situated in Chak No. 198/W.B Tehsil Mailsi District Vehari, who agreed to sell the suit land to Respondent No. 1/plaintiff (Mohabbat) against consideration of Rs. 300,000/- through a written agreement. The respondent/defendant received Rs. 280,000/- as earnest money in the presence of the witnesses, executed agreement to sell and it was settled that the suit land will be transferred in favour of the plaintiff after grant of ownership rights in favour of the defendant Bahadur. After obtaining the ownership rights, Bahadur-defendant, transferred the suit land measuring 03 Kanal 13 Marla to the Defendants No. 4 to 7 through sale Mutation No. 174 and remaining land was transferred through Mutation No. 175 in favour of Defendants No. 2 & 3. The respondent/plaintiff prayed for cancellation of these mutations, The respondents/defendants filed contesting written statements. The Defendant No. 1 denied the execution of the alleged agreement to sell and contended that the respondent/plaintiff obtained his thumb impressions on blank papers through fraud. The learned trial Court from the divergent pleadings of the parties of the parties framed issues, recorded evidence of the parties and vide judgment & decree dated 21.04.2004 decreed the suit of the respondent/plaintiff. The appellants filed appeal which was dismissed by the learned first appellate Court vide judgment & decree dated 06.10.2004. Hence, this Regular Second Appeal.

2. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

3. As per respective divergent pleadings of parties the main controversy revolves around issues No. 2 & 5 which are reproduced as under:

4. Whether the defendant entered into agreement to sell with the plaintiff vide impugned agreement to sell dated 31.03.1987? OPP

5. Whether the impugned agreement to sell dated 31.03.197 is result of fraud and forgery, without consideration, illegal, against the facts inoperative, ineffective and against the rights of Bahadar (the plaintiff of suit No. 251/88)? OPBahadar

In order to dissipate the onus of Issue No. 1 as well as to prove the asserted stance in the plaint, Mohabbat (P.W.I) has stated that Bahadur is his real uncle; that the suit land was allotted to him under Cooperative Farming Society; that he executed agreement to sell about 02 year 10 months ago for consideration of Rs. 300,000/-; that at the time of agreement he received Rs. 200,000/- and it was settled that remaining ampunt of Rs. 100,000/- would be received at the time of mutation; that plaintiff paid the consideration in the presence of Allah Bukhsh and Shameer; that defendant imposed thumb impression on the agreement; that after obtaining the proprietary rights, the defendant refused to perform his part of the contract; that he is in possession of the same; that he is ready to perform his part of the contract; that Defendants No. 2, 4 to 7 were well aware of the agreement. In cross-examination, he deposed that:

۔۔۔ سودا کی تحریر سے قبل بات چیت 1-1/2 ماہ قبل ہوئی تھی۔ بوقت بات چیت میں، میرا چچا بہادر اور اُسکی بیوی بھاگن موجود تھی۔ رقم بھی وہاں طے ہوئی تھی۔۔۔ بہادر ان پڑھ ہے۔ رقم عرضی نویس کے پھٹے پر دی تھی۔ رقم تحریر شروع ہونے سے قبل دی تھی ۔۔۔ یہ درست ہے کہ مدعا علیہ نمبر 1 نے مدعا علیہم نمبر 4 تا 7 کو رقبہ 03 کنال 13 مرلے بالعوض 27000 روپے میں فروخت کیا۔

Allah Bukhsh (P.W.2) stated that 02 years 10 months ago agreement was executed between Mohabat and Bahadur; that he is marginal witness of the agreement; that about 04-1/4 years ago Mohabbat came to his house and he took him to Mailsi for the execution of agreement with Bahadur against consideration of Rs. 300,000/- for land measuring 98 Kanal and in his presence amount of Rs. 200,000/- was paid; that the he imposed thumb impression on agreement (Exh.P.1) as witness. In cross-examination, he deposed that:

۔۔۔سودا کے وقت میں موجود ہ نہ تھا۔ میں صرف تحریر معاہدہ کے وقت موجود تھا۔ ۔۔ مجھے علم نہ ہے کہ کیلہ نمبرات اس میں لکھوائے تھے یا نہیں۔ میں ان پڑھ ہوں ۔۔۔ بھاگن کے بطن سے کوئی اولاد نہ ہے۔ سرفراز کی ولدیت کا جھگڑا ہی ہے۔ مجھے اسکی ولدیت کا علم نہ ہے ۔۔۔ سنا ہے کہ اس نے سرفراز، بھاگن اور مدعا علیہم نمبر 4 تا 7 کو رقبہ دے دیا۔ صغراں کو کوئی رقبہ نہ دیا۔ نیاز عرضی نویس نے تحریر کی۔

Shameer (P.W.3) also narrated the same facts and mentioned by the other P.Ws.

1. To controvert the stance of the respondent/plaintiff, Bahadur (D.W. 1) deposed that:

مجھے جائیداد متدعویہ آدھا مربع کواپریٹو فارمز سوسائٹی کے تحت ملا تھا۔ میرے نام انتقال½- 4 سال قبل ہوا تھا۔ پھر میں نے ایک ماہ بعد آٹھ ایکڑ بیٹے مدعا علیہ نمبر 3 اور 4 ایکڑ ۔۔۔۔۔۔ کو منتقل کر دیئے۔ باقی رقبہ 3 کنال 13 مرلے مدعا علیہم نمبر 4 تا 7 کو منتقل کیا۔ مدعا علیہم نمبر 4 تا نمبر 7 کو کیا ۔۔۔۔ محمد حسین محبت کا بیٹا ہے۔ محمد حسین کی شادی میری بیٹی صغراں مائی سے ہوئی تھی ۔۔۔ مدعی کو صغراں کا حصہ نہ دینے سے رنج ہوا کہ میں نے سارا رقبہ بیٹے اور بیوی کو دے دیا۔ محبت نے یہ ناراضگی دل میں رکھی اور ½-1 انتقال بحق مدعا علیہم نمبر 2، نمبر 3 مجھے محبت میلسی لے آیا کہ انتقال میرے بیٹے کے نام ہونا ہے اور بیوی کے نام بھی ہونا ہے اسے درست کروایا جائے۔ محمد حسین بھی اس کے ہمراہ تھا۔ یہ لوگ مجھے عرضی نویس کے گھر لے گئے اور مجھ سے دو عدد سفید کاغذوں پر دو انگوٹھے لگوا لیے۔ یہ خالی کاغذ تھے۔ مجھ سے انگوٹھے لگوا کر کہا کہ میں گھر چلا جاوں۔ تین ماہ بعد مجھے نوٹس آیا اور معلوم ہوا کہ مدعی نے دعویٰ ہذا دائر کر دیا۔ ۔۔ میں نے متنازعہ معاہدہ نہ کیا تھا اور نہ ہی کوئی رقم وصول کی تھی۔ میں نے کسی سٹامپ فروش سے اسٹامپ نہ خریدا ہے۔ اقرار نامہ متنازعہ غلط اور بلا بدل ہے۔

Nazar Muhammad (D.W.2) stated that he know the parties of the lis; that Bahadur become owner of the suit land about 04 years and 02 months ago; that Mohabbat committed fraud with Bahadur; that it was decided that Mohabbat would withdrew his case and Bahadur would transfer some portion of land to his (Mohabbat’s) daughter-in-law; that he was the surety of this issue but Mohabbat did not withdrew his suit. Bahadur produced his wife Bhagan (D.W.4) who deposed that Bahadur her husband transferred land measuring 13 Kanal 03 Marla to Seth.Ismail for Rs. 27000/- which amount was deposited as government dues and thereafter Bahadur transferred land measuring 04 Acre to her and 08 Acre to his son Sarfraz; that Bahadur contracted four marriages; that Sarfraz was born out of her womb and Sughrah was born from Karam Mai; that there was no other issue of Bahadur; that they did not receive any amount from the plaintiff; that Sughran is daughter-in-law of Mohabbat; that the plaintiff has grudge for non-transferring the share in favour of Sughran Bibi and the whole land was transferred to her (Bhagan) and Sarfraz. Muhammad Ismail (D.W.5) deposed that the defendant (Bahadur) was very old person; that he came to him and requested for some amount; that he paid Rs. 10,000/- but he (Bahadur) requested that he needed Rs. 25,000/- to Rs. 30,000/- so he purchased land 03 Kanal 13 Marla; that he (Bahadur) transferred the land whereas the remaining land was transferred in favour of his wife and son; that neither any agreement was executed nor any consideration was paid to the defendant; that the alleged agreement is a forged document. Mian Manzoor Hussain (D.W.3) and Allah Ditta (D.W.6) also supported the version of Bahadur

6. Perusal of the plaint shows that the respondent/plaintiff, Mohabbat, neither disclosed the date of the alleged agreement between the parties nor mentioned the names of the witnesses in whose presence, the alleged agreement was executed. Further, during cross-examination, he stated that the bargain was struck off about 1-1/2 months ago in the house of Bahadur and at that time, Bhagan was also present but all these facts are not mentioned in the plaint and it is settled that the evidence out of pleading could not be considered or discussed and same should be ignored while deciding the lis. Reliance is placed on the cases titled as Zulfiqar & Others vs. Shahdat Khan (PLD 2007 SC 582), Muhammad Nawaz alias Nawaza & Others vs. Member Judicial Board of Revenue & Others (2014 SCMR 914) and Combined Investment (Pvt.) Limited vs. Wali Bhai & Others (PLD 2016 SC 730).

7. Allah Bukhsh (P.W.2) recorded his statement on 23.01.1990 and deposed that the agreement was executed about 02 years 10 months ago and when he again appeared before the learned trial Court for recording his statement on 16.07.1991 as P.W.2, he stated that about 4-1/2 years ago Mohabbat came to his house and agreement was executed. He also did not mention the specific date of the agreement. Further he stated that he is witness of the agreement but he did not disclose the name of other marginal witness. In cross-examination he has admitted that he is not witness of the bargain. Same was the position of Shameer (P.W.). The statements of the P.Ws mutually suffers from material contradictions which impress to observe that the respondent/plaintiff has failed to prove valid execution of alleged agreement to sell through any corroborative, believable concrete, solid and unimpeachable evidence.

8. The respondent/plaintiff stated that the agreement was written by Niaz Deed Writer but he did not produce him in support of his version which amounts to withholding of the best evidence and it would be legally presumed that had the said witness produced in the evidence, he would have deposed against the respondent/plaintiff, as such, presumption under Article 129 (g) of Qanun-e-Shahadat Order, 1984 clearly operates against him. Reliance is placed on the cases of Sughran Bibi vs. Mst. Aziz Beswn & 4 Others (1996 SCMR 137).

1. The case of the respondent/plaintiff solely relies upon the alleged agreement to sell (Exh.P.1). For ready reference, the scanned copy whereof is reproduced as under:

| | | --- | | | | | Description: WhatsApp Image 2022-01-05 at 11 |

| | | --- | | | | | Description: WhatsApp Image 2022-01-05 at 11 |

Perusal of the aforesaid alleged agreement to sell (Rxh.P.1) shows that it does not bear signatures of the parties on its first page and only two thumb impressions of Bahadur are available on first page; one on the margin and other in the center of the page and the contents of the agreement are written through it. Furthermore, the thumb impression of Bahadur is available in the middle of the agreement which proves the version of the appellant/defendant that the same was obtained on blank paper and the alleged agreement was later on written. The overleaf of the alleged agreement to sell also does not speak out the person who got issued the same. A such like controversy has been resolved by this Court in a judgment cited as Manzoor Hussain vs. Haji Khushi Muhammad (2017 CLC 70), relevant portion whereof is reproduced as under:

1. Notwithstanding above, it is settled principle of law, that where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. by signing or affixing their thumb impression. So that it should reflect and establish their “consensus ad idem”, which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of assent, and reflects and proves the intention of the parties thereto [See Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187)]. In the present case, the first page of the document (Ex.P-1 is signed by the deed-writer only whereas its second page which bears the signatures of the vendor, vendee and deed writer does not contain the terms and conditions of sale. Although the parties and the witnesses should execute the document at the end, but parties must also sign each page if the document is written out on more than one page. [See N.S. Bindras’ Conveyancing Draftsman and Interpretation of Deeds, 7th Edition, Delhi Law House, Delhi, 2008 at page 322]. This was not done and, therefore, appellant was required to bring on record the evidence to connect the two pages of the document; (Ex.P-1) with each other. The appellant had not produced any evidence to connect the two pages of the document (Ex.P-1) with each other and this deficiency does not establish “consensus ad idem”. Thus, on the basis of such type of document, which is non-compliant to the said principle of law a decree for specific performance could not be issued. This view finds support from the case of Zafar Iqbal and others vs. Mst. Nasim Akhtar and others (PLD 2012 Lah. 386) which has been approved by the Hon’ble; Supreme Court of Pakistan in Civil Petition No. 391-L of 20l2 vide order dated 22.3.2013.

(emphasis supplied)

10. In view of above, it can conveniently be observed that the respondent/plaintiff miserably failed to substantiate the execution of the alleged agreement to sell as well as payment of consideration through any convincing and trustworthy evidence which material facts have not been considered by the two Courts below who by committing misreading and non-reading of the evidence decided issues No. 2 & 5 in favour of the respondent/plaintiff and against the petitioners/ defendants, as such, these findings are not sustainable in the eyes of law which are hereby reversed and these issues are decided against the respondent/plaintiff.

11. As the decisions of the lower fora suffer from blatant misreading and non-reading of the evidence as well as mis-application of law, as such, the same are not sustainable in the eyes of law and are liable to be set-aside and this Court is well within jurisdiction to reverse the illegal and perverse concurrent findings of the lower fora.

Reliance is placed on the cases titled as Nazim-ud-Din & Others vs. Sheikh Zia-ul-Qamar & others (2016 SCMR 24).

1. Learned counsel for the appellant has also submitted that grudge of the respondents/plaintiffs against alienation of the suit land by Bahadur in favour of his son & wife, raised so high that they committed murder of Bahadur, his son Sarfraz and wife Mst. Bhagan for which crime, they were charged and finally convicted by the learned Sessions Judge under Section 302 PPC which sentence has been upheld by this Court in Murder Reference No. 235 of 1999 vide judgment dated 07.12.2004, the copy of which has been placed on record by the appellant through an application (CM. No. 1088-C/2005).

2. In view of above, this second appeal is allowed, the judgment & decree dated 21.04.2004, passed by the learned trial Court as well as judgment & decree dated 06.10.2004, passed by the learned first appellate Court are hereby set aside and the suit for specific performance filed by the respondent/plaintiff (Mohabbat) is hereby dismissed. No order as to costs.

(Y.A.) Appeal allowed

PLJ 2022 Lahore 118

Present: Ch. Muhammad Masood Jahangir, J.

Mst. NOOR ELAHI--Petitioner

versus

MUHAMMAD ABBAS etc.--Respondents

C.R. No. 203 of 2008, heard on 11.2.2021.

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

----Art. 49--Land Revenue Act, (XVII of 1967), S. 42--Title qua immovable property--Mutation--Scope of-- It is well established by now that mutation per se is not deed of title and party relying upon its entries is always bound to prove transaction reflected therein.

[P. 120] A

Ref. AIR 1930 PC 93; AIR (35) 1948 PC 210; PLD 1965 Lahore 472; 1992 SCMR 1832 PLD 1988 Lahore 45.

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

----Art. 49--Mutation containing sale transaction--Financial liability--Marginal witness--Examination of Tehsildar out of its signatories by beneficiary was not enough to meet with legal requirement--Impugned mutation was not liable to be taken as evidence, its attestation was established or sale transaction embodied therein proved, especially, when marginal witness while appearing on behalf of plaintiff created serious doubts in veracity of disputed mutation. [P. 122] B

Ref. 2016 SCMR 986.

Witness--

----Attestation of mutation--Allegation of lady--Not personally known--Thus allegation of lady that she was impersonated could not be rebutted. [P. 122] C

Thumb-Impression--

----Expert opinion--Doubtful report--Opinion of an Expert is always a weak, type of evidence and is not that of conclusive nature--It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence--Expert’s testimony recorded in case in hand cannot be treated as substitute of available direct evidence. It is settled practice of Courts not to base findings merely on expert’s opinion.

[P. 124] D

Ref. 2004 SCMR 1859, 2006 SCMR 193.

Land Revenue Act, 1967 (XVII of 1967)--

----S. 42--Limitation Act, (IX of 1908), Art. 120--Suit was filed after 11 years of sanction of mutation--Beneficiaries failed to prove--A document which was procured by playing fraud, can be challenged at any stage of time--Plaintiff prayed for declaring mutation in dispute as illegal, which was implemented in relevant record of right--Every new entry in revenue record gives fresh cause of action to plaintiff and adverse entries therein even if are allowed to remain unchallenged does not necessarily extinguish right of party against whom such entry are renewed [P. 126] E

1995 SCMR 284.

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

----S. 115--Civil revision--Jurisdictional defect--Appellate Court below misconstrued available evidence and law on subject, which being tainted with misreading/ non-reading of evidence as well as suffering from jurisdictional defect fully calls for interference by applying exceptions provided u/S. 115 of Code, 1908. [P. 127] G

Limitation Act, 1908 (IX of 1908)--

----S. 120--Limitation for filing of suit--Filing a suit for declaration, Article 120 of Limitation Act, 1908 provides limitation of six years from date of right to sue. [P. 126] F

Miss Gulzar Butt, Advocate for Petitioner.

Mr. Sajjid Ali, Advocate for Respondents.

Date of hearing: 11.2.2021.

Judgment

Undisputedly, the subject area was titled by the present petitioner, who claiming her to be a folk/illiterate lady, on 26.04.1992 brought declaratory suit against respondents, asserting that the said, land was only leased out, but while impersonating her, the respondents managed its transfer in their favour vide oral sale Mutation No. 192 dated 25.04.1981, whereas neither she offered its sale nor received any consideration, therefore, it being forged, fictitious as well as collusive was inoperative upon her rights and liable to be cancelled. The respondents/defendants (who inter se were brothers) obviously contested the suit through their written statement while pleading that suit area had been purchased by them, that the vendor/plaintiff in the company of her husband as well as attesting witnesses had appeared before Revenue Officer, who after recording the statement of the plaintiff and affixing her thumb-impressions over the Pert, sanctioned the subject mutation.

The parties to prove their respective stances produced evidence in pros & cons. As a result of appreciation thereof, the learned Trial Court decreed suit in hand and cancelled the mutation in dispute through judgment dated 17.06.2004, but the learned Appellate Court after analyzing the material with different angle dismissed the suit while reversing decree of the subordinate Court vide impugned judgment of 01.11.2007. Thus, the instant civil revision on behalf of the petitioner/plaintiff.

1. Arguments heard and record consulted.

3. Before adverting to the salient features of the case, it is to be added that mutation proceedings are initiated primarily for fiscal purposes to collect the land revenue and is only meant for maintaining the record. It is again not disputed that the revenue official/officer enters and attests the mutation during summary proceedings, which by no stretch of imagination can be considered judicial proceedings wherein right title qua immoveable property is determined. Although these proceedings made under Section 42 of the Land Revenue Act, 1967 are admissible under Article 49 of the Qanun-e-Shahadat Order, 1984 and some presumption is also attached thereto, but it is always rebuttable. It is well established by now that mutation per se is not deed of title and the party relying upon its entries is always bound to prove the transaction reflected therein. In holding so, I am fortified by the law laid down in Gangabai and others vs. Fakirgowda Somaypagowda Desaiand others (A.I.R.1930 PC 93), Durga Prasad and another vs. Ghanshiam Das and others (A.I.R. (35) 1948 PC 210), Muhammad and others vs. Sardul (PLD 1965 Lahore 472), and Hakim Khan vs. Nazeer Ahmad Lughmani and 10 others.(1992 SCMR 1832). Whereas this Court in the judgment titled M. Malik vs. Mst. Razia (PLD 1988 Lahore 45) defined the ‘sale’ as under:

“Sale means transfer of ownership in exchange for a price paid or promised or part paid and part promised where sale was made orally and reported Patwari by parties thereto who had admitted payment of the consideration and delivery of possession on the basis whereof mutation was entered. Sale would be effected and completed on that day and not when mutation in respect thereof was sanctioned.”

The august Supreme Court further elaborated the paramount ingredients of sale in Ali Muhammad and others vs. Chief Settlement and Rehabilitation Commissioner and others (1984 SCMR 94) to the following effect:

“Sale is defined as being a transfer of ownership for sale -price is an absolute transfer of rights in property sold and no rights are left in transferor. Essential elements of sale are (i) the parties; (ii) subject matter; (iii) transfer or conveyance and (iv) price or consideration.”

Whereas, according to Section 54 of the Transfer of Property Act, 1882, it is to be established on record that the sale price has been passed on to the vendor and in default thereof, sale is not completed.

1. While keeping in mind aforesaid features, when case of the parties consulted, the petitioner/plaintiff in paras 3 to 6 of the plaint narrated detail of the alleged malpractices, misrepresentation and fraud played upon her to usurp suit land. The respondents/defendants denied the said allegations while asserting that genuine transaction of sale was effected and after making payment of the consideration, the disputed mutation was properly attested. The said mutation was sanctioned on the attestation of Shafi Muhammad (PW2) & late Khan Bahadur Lumberdar, the father of PW3, whereas it was attested on the verification of Muhammad Ashiq (PW4), the husband of the plaintiff. As per available record, out of them two signatories (PW2 & 4) as well son (DW3) of third because the latter had already passed away was produced by the plaintiff. Out of those, PW1 explicitly worded that the plaintiff had never sold out suit area and consideration was also not paid to her, that she did not appear before the Tehsildar in his presence, and that she did not thumb-mark the sale mutation before him. He further stated that only for procuring some loan, his own thumb-impression was procured by the Patiuari. The next witness Riasat Ali (PW3) deposed on oath that his father Khan Bahadur though was Lumberdar, but he was illiterate person, who prior to his death told him that Patwari had managed his thumb-impression while cheating him, whereas plaintiff according to his knowledge never sold out subject land. On the same lines Muhammad Ashiq (PW4), who admittedly is husband of the plaintiff stated under oath that his wife had neither sold out the suit land nor she turned up before the Tehsildar and that he as well never appeared before the said officer or signed the subject mutation.

In response, the beneficiary though examined the Patzvari (DW5), but he was not the one, who either entered the mutation under dispute or attested in his presence. Although, the concerned Tehsildar (DW4) endorsed the genuine sanction of the disputed mutation, but admitted that consideration was not paid before him, whereas it was only acknowledged by the plaintiff/vendor that she had already received it. As a matter of law, subject mutation containing sale transaction was document pertaining to financial liability, thus required to be strictly proved. The examination of Tehsildar out of its signatories by the beneficiary was not enough to meet with the legal requirement. As such, the impugned mutation was not liable to be taken as evidence, what to talk that its attestation was established or the sale transaction embodied therein proved, especially, when the marginal witness while appearing on behalf of the plaintiff created serious doubts in the veracity of disputed mutation. See Islam-ud-Din through LRs and others vs. Mst. Noor Jahan through LRs. and others (2016 SCMR 986), wherein it was held that:

“The attesting witnesses of .all the three mutations are Muhammad Rashid son of Maula and Akbar Jan son of Mehr Jan, however, only one witness (Muhammad Rashid) was produced and no any reason was given for the non-production of Akbar Jan. Article 79 of the Qanun-e-Shahadat Order, 1984 stipulates that a document “shall not be used in evidence until two attesting witnesses at least had been called for the purpose of proving its execution”.

Apart therefrom, the Revenue Officer (DW4) during the cross-examination conceded that the plaintiff was not personally known to him, as such he could not say with certainty that she along with the witnesses actually appeared before him for attestation of mutation or not, thus the allegation of the lady that she was impersonated could not be rebutted. Even otherwise, father of respondents/ beneficiaries while appearing as DW2 during the cross-examination stated that the plaintiff/lady at that moment was about 15/16 years old and she (in 1981) was paid consideration of currency notes valuing rupees 500/1000, whereas learned counsel for the plaintiff on the strength of “Pakistani rupee - Wikipedia, the free encyclopedia” pointed out that notes of rupees 500 were introduced in 1986 followed by denomination of 1000 rupees in the next year. This position was strengthened when printed material to this extent was provided by the learned counsel for the petitioners, which is also retained on the file. The learned counsel for the beneficiaries after going through the same fell in great difficulty to respond the same satisfactorily and this situation provided much corroboration to the stance of the petitioner. In absence of proof that consideration was made good, the sale definitely could not be established.

1. Mr. Sajid Ali, Advocate for the respondents submitted that apart from mutation, the vendor herself reported the transaction to the Patwari, who recorded the same in the Register Roznamcha Waqiati, therefore, mutation duly supported by the report recorded in the Daily Diary could not be annulled. Suffice it to say that no doubt rapat Roznamcha Waqiati (Exh.D5) was brought on record, but without recording statement of its maker. There is no hesitation to hold that rapat Roznamcha Waqiati is not per se admissible, whereas exhibition of document as well as proof of its contents are two different aspects and the latter to me is more relevant and important, which to the extent of Exh.D5 was lacking here. Moreover in judgment reported as Zulfiqar and others vs. Shahdat Khan (PLD 2007 SC 582) the apex Court while dealing with a rapat Roznamcha Waqiati recorded on behalf of vendor has already held it to be against intention of relevant provision of law. The pertinent conclusion being relevant is reproduced as under:

“Although Roznamcha Waqiati is required to be maintained under the West Pakistan Land Revenue Rules, 1968 and entry made during the course of performance of official duty is admissible yet if the report contains the statement of a private individual, it is required to be proved to establish its correctness. It may also be noted here that under Section 42 of The West Pakistan Land Revenue Act, 1967 it is the person acquiring a right in the land who has to make such a report to the Patwari Halqa. However, in the case in hand the report way made by the vendor and, therefore, within the scope of Section 42, it is even doubtful whether such a report, at the instance of vendor (a person alienating his right) could be said to have been recorded by the Pahvari in the discharge of his official duty.”

In addition thereto, Roznamcha itself is not a document to confer title in view of bar contained in Section 49 of the Registration Act, 1908, ‘but the respondents being beneficiaries were required not only to lead solid evidence that the petitioner had sold out the suit land to him and also received its price as a whole or in part. This view finds support from the judgment of the august Supreme Court reported as Tooti Gul and 2 others vs. Irfanuddin (1996 SCMR 1386). Moreover, these entries were also not confronted to the plaintiff/alleged vendor (PW1), when she appeared in the witness box.

1. The next emphasis of Mr. Sajid Ali that the Revenue Officer (DW4) in his depositions explicitly deposed that vendor admitted before him that she had already received sale proceed, thus her statement duly supported by the entry recorded during sanction of mutation was enough to prove that consideration was received by the vendor/plaintiff, was again not well founded. The august Supreme Court even in a case wherein registered sale instrument was under question held that mere an admission as to receipt of sale price before Attesting Officer could not be taken as conclusive proof. See Muhammad Shafi and other vs. Allah Dad Khan (PLD1986 SC 519).

7. The other argument of learned counsel for respondents that the disputed mutation was referred to Finger Expert Bureau to compare alleged thumb-impression of the plaintiff, who (DW6) reported it to be identical with the admitted one, therefore, the stance of the plaintiff was falsified is not well founded. Although, Expert opined the similarity, but he also endorsed that by putting another thumb-impression over the already existed thumb mark available on the subject mutation, it was tried to be impaired, thus made the report doubtful. Even otherwise, the opinion of an Expert is always a work, type of evidence and is not that of conclusive nature. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence. In view of this infirmity, the Expert’s testimony recorded in the case in hand cannot be treated as substitute of available direct evidence. It is settled practice of Courts not to base findings merely on expert’s opinion. In this regard, reference can be made to a case reported as Syed Muhammad Umer Shah vs. Bashir Ahmed (2004 SCMR 1859) wherein it was held as under:

“After scanning the entire evidence on record and after going through the concurrent findings, we are of the firm view that the only opinion of a Handwriting Expert, otherwise a weak piece of evidence, should not be allowed to prevail against strong circumstances and strong evidence giving inference, altogether, to the contrary. When once the petitioner had failed to prove his case on the basis of the very evidence produced by him, he cannot be given the benefit of the only favouarble opinion by the Expert, being otherwise a weak piece of evidence.”

This view was again affirmed by the same Court in case Mst. Saadat Sultan and others vs. Muhammad Zahur Khan and others (2006 SCMR 193) in the following words:

We have carefully examined the contentions as adduced on behalf of petitioners in the light of relevant provisions of law and record of the case. We have scanned the entire evidence and perused the judgments of learned trial and Appellate Courts as well as the judgment impugned. Let we make it clear at the outset that the opinion of Handwriting Expert is a very weak type of evidence and is not that of a conclusive nature. It is well-established by now that expert’s evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available. In this regard we are fortified by the dictum as laid down in Yaqoob Shah v. The State PLD 1976 SC 53. There is no doubt that the opinion of Handwriting Expert is relevant but it does not amount to conclusive proof as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner and can be rebutted by overwhelming independent evidence. In this regard reference can be made to Abdul Majeed v. State PLD 1976 Kar. 762. It is always risky to base the findings of genuineness of writing on Expert’s opinion. In this behalf we are fortified by the dictum as laid down in case of Ali Nawaz Gardezi v. Muhammad Yousuf PLD 1963 SC51,”

1. As far as, submission of learned counsel for the respondents that suit for simple declaration without seeking relief of possession was not maintainable is concerned, suffice it to add that per para 4 of the plaint, the plaintiff explained that the suit land was under lease, which while exercising fraud was mutated, therefore, simple suit for declaration is maintainable. After its final culmination in her favour, she might have opportunity to initiate proceedings to recover the possession. The learned Appellate Court ignored the said part of the plaint while rendering its findings on the issue settled in this behalf. Above all, the superior Courts while dealing with relevant provision/ Order VII, Rule 7 of the Code, 1908 reproduced here:

2. Relief to be specifically stated--Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.

in series of cases cited as Manager, Jammu and Kashmir, State Property in Pakistan vs. Khuda Yar and another (PLD 1975 SC 678), Ch. Akbar Ali vs. Secretary, Ministry of Defence. Rawalpindi and another(1991 SCMR 2114), Mst. Arshan Bi through Mst. Fatima Bi and others vs. Maula Bakhsh through Mst. Ghulam Safoor and others(2003 SCMR 318), Altaf Hussain alias Mushtaq Ahmed vs. Muhammad Din and otters (2010 CLC 1646), Sardara and Allah Ditta through legal heirs and others vs. Mst. Bashir Begum and another (PLD 2016 Lahore 587) and Muhammad Riaz and others vs. Qaim Ali and others (PLD 2019 Lahore 97) have already observed that for mere technicalities a suit cannot be defeated due to its bad form. It was further observed that a Court in aid of justice vests with unfettered powers to provide, mould and grant adequate relief even if not claimed through the contents of the plaint. As such the suit was competent in all respect and plaintiff could not be non-suited for such drawback, if any.

9. The next contention of learned counsel for respondents that the suit was filed after 11 years of the sanction of subject mutation, therefore, the same was liable to be dismissed on the score of limitation is without any substance. As discussed above, beneficiaries failed to prove the transaction of sale as well as valid attestation of impugned mutation. A document which was procured by playing fraud, can be challenged at any stage of time. As regards filing a suit for declaration, Article 120 of the Limitation Act, 1908 provides limitation of six years from the date of right to sue. The plaintiff prayed for declaring the mutation in dispute as illegal, which was implemented in the relevant record of right. The every new entry in the revenue record gives fresh cause of action to the plaintiff and adverse entries therein even if are allowed to remain unchallenged does not necessarily extinguish the right of the party against whom such entry are renewed. This view has been affirmed by the apex Court in the judgment reported as Wali and 10 others vs. Akbar and 5 others (1995 SCMR 284), wherein it is held that any new entry in the revenue record on the basis of the forged document gave rise to a new cause of action. Moreover, any transaction/document, which is result of fraud neither can be perpetuated nor protected on the ground of period of limitation and whenever such transaction is assailed, the Court of law has to refuse to give effect to it. Reliance can be placed upon recent judgment reported as “Ghulam Farid and another vs. Sher Rehman

through L.Rs” (2016 SCMR 862). As such suit was very much within time and Issue No. 7 is answered against the respondents/defendants.

10. For the reasons discussed hereinabove, this Court has come to the conclusion that the learned Appellate Court below misconstrued available evidence and law on subject, which being tainted with misreading/ non-reading of evidence as well as suffering from jurisdictional defect fully calls for interference by applying the exceptions provided under Section 115 of the Code, 1908. Thus, this civil revision is allowed, judgment impugned herein is set aside and that of learned Trial Court by virtue of which suit of the petitioner decreed, is restored. No order as to costs.

(R.A.) Civil Revision allowed

PLJ 2022 Lahore 127 [Multan Bench, Multan]

Present: Sardar Ahmed Naeem, J.

MANZAR ABBAS--Petitioner

versus

INSPECTOR GENERAL OF POLICE, LAHORE and 7 others--Respondents

W.P. No. 7766 of 2021, decided on 15.6.2021.

Constitution of Pakistan, 1973--

----Art. 199--Order for re-investigation of case--Commencement of trial--Framing of charge--Commencement of trial was not denied by Respondent No. 8--Charge against accused was framed, investigation after commencement of trial could not have been ordered--Memo. dated 20.05.2021 circulated by office of Respondent No. 8 is hereby declared as illegal, without lawful authority having no legal affect--Petition allowed. [Pp. 128 & 129] A & B

2014 SCMR 1488 ref.

Mr. Muhammad Sharif Karkhi Khaira, Advocate for Petitioner.

Maher Imtiaz Hussain Mirali, Assistant Advocate General for Respondent.

Mr. Muhammad Younas Sheikh, Advocate for Respondent No. 8.

Date of hearing: 15.6.2021.

Order

Through this petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner challenges the memo/order served upon the petitioner by Respondent No. 6 suggesting/ indicating the re-investigation of case F.I.R. No. 115 dated 05.08.2020, registered at Police Station Havali Koranga, Khanewal.

1. Learned counsel for the petitioner argued at some length and concluded with the submission that after the commencement of trial, transfer of investigation was impermissible under the law.

2. Learned counsel for the Respondent No. 8 opposed this petition with vehemence and submitted that the privilege of the Investigating Agency cannot be curtailed as submission of report under Section 173, Cr.P.C. can be submitted at any stage of the trial, thus, the petition was liable to be dismissed.

3. Heard. Available record perused.

5. A review of the record demonstrates that the petitioner is nominated accused of case mentioned above and challenged the vires of the direction of Respondent No. 8. The memo. dated 20.05.2021 signed by Respondent No. 8 is available on record as Annexure-C. Commencement of trial was not denied by Respondent No. 8. The charge against the accused was framed on 07.05.2021, thus, the investigation after the commencement of trial could not have been ordered. Reliance, in this respect, can be placed on (2014 SCMR 1488). The relevant observations of their lordships can be reproduced advantageously, which read as under:

“It would be seen that as per settled law, there is no bar to the reinvestigation of a criminal case and the police authorities are at liberty to file a supplementary challan even after submission of the final report under Section 173, Cr.P.C. However this cannot be done after the case has been disposed of by the learned trial Court (see Bahadur Khan (Supra) Similarly there is no cavil to the proposition that a Court of law is not bound by the Ipsi Dixit of the police. authorities and rather should formulate its own independent views irrespective of the investigation whether or not to charge the accused with a particular crime. Seen in this view of the matter, perhaps no exception can be taken to the Judgment of the learned High Court which has held as such i.e. that a charge under Section 380, P.P.C. can also be framed against the accused if sufficient material is placed on the record which would convince the

learned trial Court to do so. However this aspect does not debar the police authorities from carrying out further investigation in the case. In this regard reference can be made to Article 18(6) of the Police Order, 2002 (Supra).

6. Seeking guidance from the observations of their lordships and respectfully following the same, the writ is issued and the memo. dated 20.05.2021 circulated by the office of Respondent No. 8 is hereby declared as illegal, without lawful authority having no legal affect.

(Y.A.) Petition allowed

PLJ 2022 Lahore 129 (DB) [Bahawalpur Bench, Bahawalpur]

Present: Anwaarul Haq Pannun and Abid Hussain Chattha, JJ.

AHMAD WAQAS etc.--Appellants

versus

ISHTIAQ ALI etc.--Respondents

R.F.A. No. 114 of 2017, heard on 20.9.2021.

Transfer of Property Act, 1882 (IV of 1882)--

----S. 53-A--Proforming of commitments by buyer--Protection of buyer--Section 53-A of Act, 1882 will come into play for protection of buyer only when buyer has performed his commitments substantially and is willing to perform remaining part of his promise, if any, and there is no other way in which buyer can be considered to have committed breach or there is indication of buyer breaching his promises when required to be met as per contract.

[Pp. 132 & 133] A

Benefit of doctrine of part performance--

----Availability--Benefit of doctrine of part performance is not available to a person who seeks to acquire a valid title to property dealt with under a transaction which remains inchoate. [P. 133] B

Ref. 2000 SCMR 204.

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

----S. 9--Transfer of Property Act, (IV of 1882), S. 53-A--Non-entitlement of claim--Dismissal of suit for recovery of possession--Pendency of appeal in Supreme Court of Pakistan--Agreement to sell on basis of which appellants seek transfer of title over suit property was not accepted by High Court being invalid and accordingly their suit was dismissed--Appellants certainly are not entitled to claim benefit under said document and no protection as envisaged by Section 53-A of Act, 1882 can be extended to their possession--No person shall be deprived of his property save in accordance with law--Appellants have no authority or claim to retain possession of property merely on ground that they have filed an appeal before Hon’ble Supreme Court of Pakistan wherein no injunctive order has been passed in their favour--Appeal was dismissed. [Pp. 133 & 134] C, D & H

2004 CLD 232 ref.

Constitution of Pakistan, 1973--

----Art. 24, Deprivation of property--Breach of constitution--Creating hindrances in way of owner of property debarring him from enjoying benefits with regard to possession of property amounts to clear breach of Article 24 of Constitution of Islamic Republic of Pakistan, 1973. [P. 133] E

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

----S. 144(1)(2)--Application for restriction--Where and in so far as a decree is varied or reversed Court of first instance shall, on application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place parties in position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, Court may make any orders, including orders for refund of costs and for payment of interest, damages, compensation and mense profits, which are properly consequential on such variation or reversal--No suit shall he instituted for purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).

[P. 134] I

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

----S. 441--Criminal trespass--Whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”. [P. 133] F

Words and Phrases--

----Annoyance--Word “annoyance” according to Black’s Law Dictionary, Ninth Edition, is meant for “nuisance” and has been defined as “A condition that interferes with use or enjoyment of property, especially a non-transitory condition or persistent activity that either injures physical condition of adjacent land or interferes with its use or with enjoyment of easements on land or of public highways”. [P. 134] G

Constitution of Pakistan, 1973--

----Art. 5(2)--Obligation of citizen--Obedience to Constitution and law is inviolable obligation of every citizen wherever he may be and of every other person for time being within Pakistan. [P. 135] J

2004 CLD 232; 1983 SCMR 906 ref.

Mr. Muhammad Naveed Farhan, Advocate for Appellants.

Mr. Muhammad Farooq Warind, Advocate and Dr. Malik M. Hafeez, Advocate for Respondents.

Mr. Muhammad Javed Khan, Civil Judge 1st Class/Research Officer, Lahore High Court for Legal Assistance.

Date of hearing: 20.9.2021.

Judgment

Anwaarul Haq Pannun, J.--Through this Regular First Appeal, the judgment and decree dated 28.07.2017 passed by the learned Civil Judge 1st Class, Khanpur decreeing the suit for recovery of possession along with mesne profits filed by the respondents/plaintiffs against the appellants/defendants has been assailed. It is pertinent to mention here that the appeal filed by the appellants before the learned appellate Court below was returned because of lack of pecuniary jurisdiction.

1. The facts of this case in brief are that the respondents filed a suit for recovery of possession along with mesne profits with the averments that they handed over possession of their property (suit property) to one Muhammad Afzal on lease, but one Farooq Ahmad, the predecessor-in-interest of the appellants, in collusion with the said lessee after taking over the possession of the suit property, not only managed to forge an agreement to sell dated 08.05.1986 but also instituted a suit for specific performance against the respondents, which was decreed by the learned trial Court on 15.12.1996; the respondents filed an appeal against the said judgment and decree, which was dismissed by the learned lower appellate Court on 19.02.2004; they filed second appeal before this Court, which was accepted on 04.06.2015 resulting in dismissal of the suit for specific performance of agreement to sell filed by the predecessor-in-interest of the appellants, whereupon the suit for recovery of possession was filed by the respondents that since possession of the appellants over the suit property is illegal after dismissal of their suit for specific performance on the basis of a forged/ fictitious agreement to sell, therefore, they be put into possession of the properly. The appellants contested the suit by filing their written statement mainly on the ground that they are in possession of the suit property since 1986 on the basis of agreement to sell and suit of the respondents is hit by the principle of law of acquiescence; further that their appeal with regard to the suit property is pending before the Hon’ble Supreme Court of Pakistan. On the basis of divergent pleadings of the parties, requisite issues were framed and evidence was recorded by the learned trial Court. Consequently, as stated earlier, the suit of the respondents was decreed by the learned trial Court. Hence, this appeal. It is worth mentioning here that allegedly a civil appeal has been filed by the appellants before the Hon’ble Supreme Court of Pakistan against the judgment dated 04.06.2015 passed by this Court, as mentioned above, in R.S.A No. 02 of 2004 relating to the suit for specific performance of agreement.

2. Arguments heard. Record perused.

4. The only ground on which the judgment and decree of the learned Court below is sought to be set aside is that possession of the appellants over the suit property is protected on the basis of equitable doctrine of part performance i.e. existence of agreement to sell the property and the transferees were put in possession of the property in part performance of the agreement, as embodied in Section 53-A of the Transfer of Property Act, 1882 (hereinafter referred to be “the Act, 1882). We are afraid, the essence of handing over the possession as contemplated in Section 53-A of the Act, 1882 lies not merely in handing over possession but lies in the intention of the transferor to transfer the ownership rights of the property for consideration in favour of the transferee. Section 53-A of the Act, 1882 is to protect interest of a buyer of the property who has satisfied his commitments and is also willing to honour his commitments, and in that eventuality the transferor cannot go against him and take back possession or cancel the sale. In case the buyer has made defaults or from his conduct it appears that he will not fulfill his promises which are required to complete the sale then the buyer may not get protection of Section 53-A of the Act, 1882 and the seller can cancel the sale and repossess the property. In other words, it can be said that Section 53-A of the Act, 1882 will come into play for protection of the buyer only when the buyer has performed his commitments substantially and is willing to perform the remaining part of his promise, if any, and there is no other way in which the buyer can be considered to have committed breach or there is indication of the buyer breaching his promises when required to be met as per contract. If there is no sale, then Section 53-A of the Act, 1882 will not be helpful. The benefit of the doctrine of part performance is not available to a person who seeks to acquire a valid title to the property dealt with under a transaction which remains inchoate. Reliance is placed on the dictum reported as Muhammad Yousaf vs. Munawar Hussain and 5 others (2000 SCMR 204). In the instant case, the agreement to sell on the basis of which the appellants seek transfer of title over the suit property was not accepted by this Court being invalid and accordingly their suit was dismissed vide judgment dated 04.06.2015, meaning thereby payment of sale consideration and delivery of possession under the agreement to sell has not been proved and even the disputed agreement to sell itself remained legally unproved, therefore, under the law, the appellants certainly are not entitled to claim the benefit under the said document and no protection as envisaged by Section 53-A of the Act, 1882 can be extended to their possession. In this context, reference is made to the judgments reported as Abdul Khaliq vs. Muhammad Asghar Khan and 02 others (PLD 1996 Lahore 367) and Noor Muhammad vs. Abdul Ghani (2002 CLC 88). Moreover, Article 24(1) of the Constitution of Islamic Republic of Pakistan, 1973, envisages that no person shall be deprived of his property save in accordance with law. Needless to observe that creating hindrances in the way of owner of the property debarring him from enjoying the benefits with regard to possession/use of the property amounts to clear breach of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973. Reliance is placed on the judgment reported as Watan Party and another vs. Federation of Pakistan and others (PLD 2011 SC 97).

5. It may be appropriate to observe that to safeguard the every precious rights conferred upon a citizen under the above referred Article, remedies are available to owner of the property on civil as well as criminal side and he has the right to recover possession of the property by having a resort not only to the Civil Court but can also seek the offender punished for committing this continuous offence by setting the machinery of law into motion on criminal side. It may not be out of context to refer the provisions of Section 441 of Pakistan Penal Code, 1860, which read as under:

“Criminal trespass. Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.

It may be observed that causing annoyance by retaining possession over a property owned by others without any lawful excuse, amounts to committing a continuous offence. The word “annoyance” according to the Black’s Law Dictionary, Ninth Edition, is meant for “nuisance” and has been defined as “A condition that interferes with the use or enjoyment of property, especially a non-transitory condition or persistent activity that either injures the physical condition of adjacent land or interferes with its use or with the enjoyment of easements on the land or of public highways”. It has further been defined that the general distinction between a nuisance and a trespass is that the trespass flows from a physical invasion and the nuisance does not.

6. Since in the instant case, the alleged agreement to sell on the basis of which the appellants claim that they had been handed over possession of the property as part performance has since been found to be not enforceable for the reasons recorded in the judgment of this Court, therefore, in sum and substance the appellants have no authority or claim to retain possession of the property merely on the ground that they have filed an appeal before the Hon’ble Supreme Court of Pakistan wherein no injunctive order has been passed in their favour. Moreover, the reservation expressed by the learned counsel for the appellants that in case by way of execution of the judgment under challenge, possession of the suit property is delivered to the respondents and the Hon’ble Supreme Court of Pakistan decides the matter in favour of the appellants, they shall suffer irreparable loss. Suffice it to say that there exists no occasion for any harm or loss to the appellants in case the decree under execution is reversed or the suit for specific performance filed by the appellants regarding which the appeal has been filed by the appellants is decreed, as in order to cater both the eventualities the law has provided a remedy in the shape of Section 144 of the Code of Civil Procedure, 1908, which is the complete answer to the above submission and apprehension made by the learned counsel, and reads as under:

“Application for restitution.--(1) Where and in so far as a decree is varied or reversed the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation

and mense profits, which are properly consequential on such variation or reversal.

(2) No suit shall he instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).”

Moreover, a successful vendee can be put into possession of the suit property after passing of the decree for possession through specific performance of a contract.

7. The appellants at the moment have no right whatsoever to retain their possession over the disputed property as required by Article 5(2) of the Constitution of Islamic Republic of Pakistan, 1973, which ordains 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. Moreover, admittedly no injunctive order has been issued by the Hon’ble Supreme Court of Pakistan in the appeal filed against the judgment of this Court dated 04.06.2015. In the dictum reported as H.M. Fazil Zaheer vs. Kh. Abdul Hameed and others (1983 SCMR 906), the Hon’ble Supreme Court of Pakistan has held that mere filing of appeal or revision does not operate as stay order and prohibition or restraint cannot be implied but must be clearly expressed and communicated. In the judgment reported as Messrs Agro Dairies (Pvt.) Limited throush Director and 02 others vs. Messrs Agricultural Development Bank of Pakistan through Branch Manager and 03 others (2004 CLD 232) it has been observed that mere filing or pendency of petition/appeal before the Hon’ble Supreme Court does not operate as a stay or restraint order.

1. In view of all above, no case for interference by this Court in this appeal is made out and the same is accordingly dismissed.

(Y.A.) Appeal dismissed

PLJ 2022 Lahore 135 (DB)

Present: Jawad Hassan and Muzamil Akhtar Shabir, JJ.

HOUSE BUILDING FINANCE COMPANY LIMITED--Appellant

versus

Khawaja JAVAID IQBAL--Respondent

R.F.A. No. 124683 of 2017, decided on 7.10.2021.

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

----Ss. 9 & 22--Finance facility--Recovery suit was decreed--Statement of accounts--Notice of demand--Payment of total instalments--Determination of dispute--Challenge to--Respondent has made payment of last instalment in month of January, 2012 and total installments have already been paid by respondent to Appellant, outstanding amount comes to Rs. 36,66,668/- as has rightly been observed by Banking Court--No discrepancy was pointed out by Appellant in statement of account; Banking Court was justified on relying upon same for determination of dispute between parties and has rightly decreed suit--Appeal dismissed. [P. 137] A & B

Khawaja Muhammad Ajmal, Advocate for Appellant.

Mr. Abdul Hameed, Advocate for Respondent.

Date of hearing: 7.10.2021.

Order

Through this single order, we intend to dispose of the instant appeal as well as the connected petition (Cross Objection No. 152237 of 2018) as both are intermingled with each other.

1. The Appellant has filed the titled appeal under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the FIO) challenging the judgment and decree dated 23.11,2017 passed by the Judge Banking Court-II, Lahore in a suit filed by the Appellant for recovery of amount Rs. 77,27,210/- along with future monthly instalments, rental/profit, costs and cost of funds, etc. till the realization of entire outstanding balance/dues, which was decreed to the tune of Rs. 36,66,668/- in favour of the plaintiff and against the defendant with costs.

2. The learned counsel for the Appellant states that the impugned judgment has been passed by not properly examining the record and the statement of account filed by the Bank as per Section 9(2) of FIO. On the other hand, the learned counsel for the Respondent supports the impugned judgment dated 23.11.2017.

3. Heard, record perused.

4. The perusal of record reveals that the respondent- defendant applied for financial facility to purchase a constructed house measuring 10-marlas situated in Punjab Co-operative Society Cantt, Lahore and the Appellant-plaintiff agreed to sanction Rs. 50,00,000/- as finance facility vide acceptance letter dated 13.08.2007 for a period of 20-years; as a consequence whereof, the respondent had to repay the rental income of said house along with investment made by the Appellant through monthly instalment of Rs. 54,583/- each. The record further reveals that the Appellant has demanded, in view of the demand notice dated 25.03.2014, an amount of Rs. 19,83,428/- only but the suit was filed claiming an amount of Rs. 77,27,210/- which includes 20-years interest whereas the Appellant in paragraph 8 of the plaint had admitted that an amount of Rs. 30,32,333 out of Rs. 50,00,000/- (the principal amount) had been received back from the respondent and only Rs. 19,67,667/- is due against him.

5. We have also examined the statement of account which reflects the credit and debit entries and payment of certain amount per month according to the terms and conditions agreed between the parties in response to the afore-referred finance facility availed by the respondent and the learned Banking Court has rightly observed in the impugned judgment as under:

"Now coming to the claim of the plaintiff for the recovery of Rs. 77,27,210/- when is seen and assessed with the documents annexed with the plaint particularly statement of accounts and repayment schedule, it transpires that the defendant made payment of last installment in the month of January, 2012, when the defendant paid 52nd installment, at that time the outstanding principal came up to the tune of Rs. 36,66,668/-. Remaining claim of the plaintiff rent debit Rs. 16,64,566/- appreciation debit Rs. 38,75,001/-and GIP/PIP debit Rs. 2,06,575/- is disallowed. Thus, the recoverable amount from the defendant comes to Rs. 36,66,668/-"

7. As an amount of Rs. 30,32,333/- out of principal amount of Rs. 50,00,000/- has been received by the Appellant-plaintiff and only an amount of Rs. 19,67,667/- is due against the respondent-defendant and notice of demand dated 24.03.2014 also required payment' of Rs. 19,83,428/- and also the respondent has made payment of last instalment in the month of January, 2012 and total 52 installments have already been paid by the respondent to the Appellant, therefore, the outstanding amount comes to Rs. 36,66,668/- as has rightly been observed by the learned Banking Court. In this view of the matter and in our opinion, no discrepancy was pointed out by the Appellant in the statement of account; hence, the Banking Court was justified on relying upon the same for determination of dispute between the parties and has rightly decreed the suit for an amount of Rs. 36,66,668/- with costs. No exception can be taken to the same in the given circumstances of the case.

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

(Y.A.) Appeal dismissed

PLJ 2022 Lahore 137 [Bahawalpur Bench, Bahawalpur]

Present: Anwaarul Haq Pannun, J.

MUHAMMAD FAYYAZ, etc.--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 5899 of 2020, heard on 21.9.2021.

Muslim Family Law Ordinance, 1961 (VIII of 1961)--

----S. 10--Deferred dower--Death of husband--Suit for recovery of dower was decreed--Dismissal of appeal--Father-in-law was wakeel in Nikahnama--Death of father-in-law during pendency of suit--Challenge to--(Father-in-law of Respondent No. 3) was party to Nikahnama and his name is clearly mentioned in Column No. 9 as “Wakeel of bridegroom”--There is no escape by father-in-law to wriggle out of his liability if being “Wakeel” of bridegroom, he had signed prescribed column of nikahnama at time of marriage--Suit filed by Respondent No. 3 for recovery of dower against her father-in-law, who had acted as a “Wakeel” of bridegroom and had signed it, is held to be competent--Counsel for petitioners has been unable to point out any illegality or irregularity in impugned Judgments, which are well founded and based on well reasoning--Petition was dismissed. [Pp. 142 & 144] C, D, E & F

PLD 2016 Pesh. 109, PLD 2010 Lah. 199, 1994 SCMR 686 and PLD 1978 Lah. 711 ref.

Words and Phrases--

----“WAKIL” A person invested with authority to act for another.

[P. 140] A

Wakil--Law of Lexicon with Legal Maxims and Words and Phrases reprint Edition 1996 at page 1329.

Words and Phrases--

----“VAKIL” A plenipotentiary; a representative with absolute authority. [P. 140] B

Wakil--Urdu English LAW DICTIONARY Edition 2000 published Irfan law Book house page 515.

Mr. Muhammad Naeem Bhatti, Advocate for Petitioners.

Rao Muhammad Ashraf Idrees and Dr. Malik M. Hafeez, Advocates for Respondents.

Mr. Muhammad Javed Khan and Miss Mehwish Mahmood, Research Officers for Assistance Rendered.

Date of hearing: 21.9.2021.

Judgment

Through the instant writ petition, the petitioners have called in question the vires of the judgment and decree dated 19.11,2019, passed by learned Judge Family Court, Hasilpur, decreeing the suit of Respondent No. 3 for recovery of dower and judgment and decree dated 27.08.2020, passed by learned Addl. District Judge, Hasilpur, whereby their appeal was dismissed.

1. The facts of the case in brief are that Respondent No. 3 claimed her deferred dower i.e. Rs. 1,00,500/- and possession of land measuring 04 Kanals or its alternate price Rs. 10,00,000/- by filing a suit against her father-in-law, the late Rahim Bux (died on 28.9.2017 during the pendency of the suit) with the averments that she was married to one Muhammad Shehzad Khan on 13.05.2005 in consideration with aforesaid dower, duly incrporated in the Nikahnama, while the late Rahim Bux acted as a Wakeel of her late husband, and thus is liable to pay the outstanding dower. Since, after the death of her husband, she is entitled to recover the dower from her father-in-law, who being signatory of the nikahnama and Wakeel of his son, is bound to pay the same. After the death of Rahim Bux, the petitioners substituted in the matter as his legal heirs. They have resisted the suit on legal as well as factual planks while denying the averments the plaint. After a thorough learned Judge Family Court decreed the suit of Respondent No. 3vide its judgment and decree dated 19.11.2019, in the following terms:

“The plaintiff towards dower is entitled to receive Rs. 500/- and 04-K from the property of original defendant (Rahim Bux deceased) in Mouza Awal Khan, Tehsil Khairpur Tamewali or in alternative its market value prevailing on the date of death of plaintiffs husband Muhammad Shahzad Khan (05.12.2015), mode and value to be determined by the learned executing Court during execution, from the defendants (legal heirs of original defendant) as per their proportionate share in the inheritance of original defendant. No order as to costs.”

Being dissatisfied with the aforesaid judgment and decree, the petitioners preferred an appeal, which was dismissed by learned Addl. District Judge, Hasilpur, vide its judgment and decree dated 27.08.2020. Hence, this writ petition.

1. Arguments heard and record perused.

2. The main thrust of argument of learned counsel for petitioners is that as husband of Respondent No. 3 died on 05.12.2012, she filed the suit on 02.05.2017 i.e. after lapse of more than 04 years and 05 months which ought to have been brought within a period of three years after the death of her husband, therefore, suit of Respondent No. 3 was badly time barred. They produced photocopy of Death Certificate of the deceased Muhammad Shehzad Khan (Mark-A) to substantiate their claim. On the other hand, learned counsel for Respondent No. 3 contended that since her husband died about 1½ years prior to the institution of the suit, hence the suit is well within time and to fortify her claim, she also produced Death Certificate (Exh.P-2). Exh.P-2 is certified copy while Mark-A is photocopy of Death Certificate of the deceased husband. Exh.P-2 being a public document enjoys presumption of truth qua its entries. Muhammad Imran, Secretary Union council Inayati Teshil Khairpur Tamewali (DW-1) brought the original death record register and according to him, Exh.D-1 is correct copy as per record, the particulars of Exh:P-2 and Exh.D-1 are the same and entry is available at Serial No. 18 of the register. As per Death Certificate (Exh.P- 2), Muhammad Shehzad Khan, husband of Respondent No. 3 and brother of the petitioners died on 05.12.2015. Neither the petitioners produced certified copy of Death Certificate Mark-A nor they got summoned the original record of said document, as such, Said document has no evidentiary value and is inadmissible, thus discarded. Hence, in view of the above, the suit of Respondent No. 3 is well within time.

3. The next argument of learned counsel for the petitioners is that the suit for recovery of dower against father of the husband (father-in-law) being incompetent, is not maintainable, However, suffice it is to say that the suit for recovery of dower can validly be filed against father-in-law. Under Islamic law, nikah is a civil contract which binds the parties. Such contract can be made/solemnized through agent/wakeel. According to legal and Arabic dictionary the word wakil/vakil mean and define as under:

The law of Lexicon with Legal Maxims and Words and phrases reprint Edition 1996 at page 1329:

WAKIL: A person invested with authority to act for another.

Urdu English LAW DICTIONARY Edition, 2000 published Irfan law Book house page 515:

VAKIL: A plenipotentiary; a representative with absolute authority

اَلمُنجِد:(عربی اُردو) کے مطابق لفظ الوکیل کی تعریف یوں بیان کی گئ ہے۔

الوَکیل: وہ شخص جس پر بھروسہ کیا جائے وہ جس کو عاجز آدمی اپنا کام سپرد کر دے۔

(Page 1104)

As per Shariah, Nikah of female/parties can be solemnized through their Wakeel and all the Islamic Schools of thought recognized Nikah performed through Wakeel as valid. Maulana Mujeebullah Nadvi at page 644, Volume II of his Book—“Islami Fiqha” defined the meaning of' Wakalat’ in the following words: --

وکالت کے لغوی معنی نگرانی۔ حفاظت۔ چارہ سازی۔ وکار سازی کے ہیں۔ ۔۔۔۔۔۔ جو کام آدمی خود کر لیتا ہے یا کرسکتا ہے اس کو دوسروں سے بھی کرا سکتا ہے۔ شریعت میں اس کی اجازت ہے۔ اور اسی کو وکالت کہتے ہیں۔

At page 646 of the said Book the author observed as under:

تفویض احد اُمرہ لاخرواقامتۃ مقامہ۔

ترجمہ اردو: کسی شخص کا کسی کام کو کسی دوسرے کے سپرد کر دینا اور اس کو اپنا قائم مقام بنا دینا۔

The term "Wakalat" has further been explained at page 648 of the said Book in the following words:

"دوسرے معاملات کی طرح وکالت میں بھی موکل و وکیل کے درمیان ایک معاہدہ ہوتا ہے۔ اس لیے ضروری ہے کہ زبانی یا تحریری طور پر دونوں ایجاب و قبول کریں۔ مثلاً آپ نے کسی سے کہا یا کسی کو لکھا کہ میرا فلاں کام آپ کر دیجئے اور اس نے کہہ دیا یا لکھ دیا کہ ہاں میں کروں گا تو یہ ایجاب وقبول ہو گیا۔"

In ‘Urdu Daaira Maarif Islamia' at page 21, Volume 23, published by Danish Gab Punjab the word ‘Wakalat’ has been defined as under:

"اردو یا فارسی میں وکالت مختیارنامہ۔ اختیار دے دینا یہ ایک قسم کا عقد (معاہدہ) ہے۔ جس کی رُو سے معاہدے کا ایک فریق (موکل) دوسرے کو اپنا وکیل بنا دیتا ہے تاکہ وہ اس کی کوئی خدمت سر انجام دے۔"

1. The word wakeel is synonymous to English word agent. The agency may be created expressly i.e. in writing or through implications. Even it can be inferred from the circumstances of the case, the thing spoken or written or on the basis of ordinarily course of dealings. By creating agency, the principal confers certain authorities to agent and agent owes certain liabilities in exchange towards Principal. Agency remains intact unless rescinded or some act. of agent renders him incapable of continuing his authority. Normally agent is not held responsible for enforcement of contract entered by him on behalf of the Principal. However, Islamic law clearly a departure to the general rule in case pertaining to the marriage has made, particularly, where father had acted as a wakeel of his son/bridegroom. In absence of tangibly expressed repudiation of such authority the agent/wakeel cannot get rid off the liabilities imposed upon him being wakeel/father of bridegroom. The term ‘Wakeel' has not been defined in the Muslim Family Laws Ordinance, 1961. However, Wakeel is an attorney legally competent to conduct marriage on behalf of bride. The Wakeel generally is representative of the party appointing/nominating him. Registration of Nikah is mandatory under the Muslim family laws.

7. In the present case, Respondent No. 3 and Muhammad Shehzad Khan, deceased in lieu of dower Rs. 1,00,500/- and four kanals land, situated at Mauza Awal Khan, 538/6, 23/6, Tehsil Khairpur Tamewali or its alternate price Rs. 10,00,000/-, were tied in their nuptial bond on 13.05.2005, as mentioned in the Nikahnama (Exh.P-1). The late Rahim Bux (father-in-law of Respondent No. 3) was party to the Nikahnama and his name is clearly mentioned in Column No. 9 as “Wakeel of the bridegroom”. The Nikahnama also bears his thumb impression. There is no denial that it is primarily duty and obligation of the husband to pay dower to his wife, yet there is no bar or prohibition on another person to bind himself as a surety by way of putting his signature on the Nikah Nama, ensuring its payment and such surety cannot wriggle out from such legal obligation when a suit for the recovery of dower is brought against him by the wife, hence, there is no escape by father-in-law to wriggle out of his liability if being “Wakeel” of bridegroom, he had signed the prescribed column of nikahnama at the time of marriage. Reliance is placed upon case reported as “Gul Akbar and another vs. Jameela Afridi and 4 others” (PLD 2016 Peshawar 109). Reliance may also be placed upon case reported as “Muhammad Anwar Khan vs. Sabia Khanam and another” (PLD 2010 Lahore 119) wherein, it has been held that:

“Husband as a rule, could not give as dower property that did not belong to him but belonged, to someone else including his father--Exception to this rule could be found if it was shown that the father of the husband agreed to do so----in spire of having knowledge that his house had been given as dower in nikahnama the father of the husband never took any step to take any legal action for exclusion of the house from nikaahnama. ----House mentioned in the nikahnama as dower even though, it did not belong to the husband was liable to be transferred to the plaintiff as the father of the husband had given his consent for the same.”

The august Supreme Court of Pakistan in case reported as “Mst. Faqraz Bibi vs. Elahi Bakhsh and 2 others" (1994 SCMR 686) has pleased to observe that:

“Petitioner’s claim of ownership to house in question was based on entry in “Nikahnama” on strength of which she claimed that the house was given to her in lieu of dower at the time of marriage—Petitioner claimed that she had been exercising proprietary rights over the house in question, without let or hindrance by respondents and that both respondents (her husband and his father) had signed “Nikahnama” of petitioner in token of confirmation of stipulation contained in “Nikahnama”— Contention raised by petitioner required examination---Leave to appeal was granted in circumstances."

Family Court under Section 5 of the West Pakistan Family Court Act, 1964 had exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in Part I of the Schedule to the said Act and there was no barring provision that while claiming dower from the husband only bridegroom/ husband could be impleaded in the suit for recovery of dower and none else- -If another person had stood surety or had guaranteed the payment of dower, he/she could lawfully be impleaded in the suit--Surety and guarantor to the dower were as much party and liable to pay dower as the bridegroom himself. It has been held in the case reported as “Khan Asadullah Khan and others vs. Sheikh Islamud Din” (PLD 1978 Lahore 711) that:

1. “As regards the second question, Mulla in Principles of Mohammadan Law reproduces the definition of dower as “a sum of money or other property which the wife is entitled to receive, from the husband in consideration of the marriage” It has further been observed “if the dower is not paid, the wife, and after her death, her heirs, may sue for it” In Baillie’s Digest of Mohammadan Law on the subject of disputes with regard to dower the following observations occur:

“Disputes regarding the dower may take place between the married parties themselves in their lifetime, or between their heirs when both are dead, or after the death of one of them, between his or her heirs and the survivors.”

1. In the Mohammadan Law of Inheritance by Almaric Russay on the subject of posthumous claims of dower it has been observed:

“It has been seen already that the right to dower is not extinguished by the death of husband or wife or both and it is in fact distinctly laid down that a claim of dower may be maintained by the wife against the husband’s inheritors, by the wife’s inheritors against the husband, or by the wife’s inheritors against the husband’s inheritors.”

1. It is clear, therefore, that the right to sue survives the death and the heirs can continue the proceedings and their claim in the proceedings continues to be for the dower.

8. For what has been discussed above, the suit filed by Respondent No. 3 for recovery of dower against her father-in-law, who had acted as a “Wakeel” of the bridegroom and had signed it, is held to be competent. The learned trial Court after appraisal of the material available on record has rightly passed the impugned judgment and decree. The findings and observations of learned trial Court have been maintained and upheld by the learned appellate Court after reappraisal of the evidence available on record. The learned counsel for the petitioners has been unable to point out any illegality or irregularity in the impugned Judgments, which are well founded and based on well reasoning. Resultantly, the instant writ petition having no substance, is dismissed.

1. I also duly appreciate the assistance rendered by the Research Officers of this Bench to deal with the issue discussed and dealt with hereinabove.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 144

Present:Jawad Hassan, J.

Sardar QURBAN ALI DOGAR--Petitioner

versus

PAKISTAN BAR COUNCIL and others--Respondents

W.P. No. 228 of 2022, decided on 5.1.2022.

Constitution of Pakistan, 1973--

----Arts. 189, 199 & 199(5)--Appeals regarding rejection of nomination papers--Pendency of appeals--Appeal of respondent was accepted--Order was challenged by petitioner--Dismissed--Respondents were not falling in meaning of person--Maintainability--Constitutional jurisdiction--Doctrine of “LimineControl”--Prayer made by petitioner is to set aside orders which have been passed by Pakistan Bar Council and Punjab Bar Council no interference can be made by this Court--Respondents do not fall within meaning of ‘persons’ as per Constitution--Neither bar councils nor any of its committee could be regarded as persons hence Pakistan Bar Council and Punjab Bar Council are not amenable to invoke constitutional jurisdiction of this Court--Petition dismissed. [P. 147] A

2021 SCMR 425, 2020 SCMR 631, PLD 2018 Lahore 435, PLJ 2019 Lahore 165 & PLD 2019 Lahroe 407 ref.

M/s. Ch. Ishtiaq Ahmad Khan and Muhammad Maqsood Buttar, ASC with Rana Muhammad Asif, Ch. Imtiaz, Ch. Imran Asghar, Muhammad Nadeem Mehar, Mudassar Sher Bodla and Mehr Liaqat Ali, Advocates.

Date of hearing: 5.1.2022.

Order

Through the instant Constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner has challenged orders dated 31.12.2021 and 24.12.2021 passed by the Respondents No. 1 & 3 respectively.

1. Short facts, as per petition, are that the Respondents No. 7 and 8 filed separate appeals against rejection of their nomination papers before the Respondent No. 3/Executive Committee, Punjab Bar Council however, the aforesaid Respondent accepted the appeal of the Respondent No. 7 vide impugned order dated 24.12.2021 while appeal of the Respondent No. 8 is still pending. The Petitioner filed appeal against the aforesaid order before the Respondent No. 1/Pakistan Bar Council (the “PCB”) which was dismissed vide impugned order dated 31.12.2021. Hence this petition.

2. Learned counsel for the Petitioner Ch. Ishtiaq Ahmad, ASC inter alia argues that the impugned orders passed by the Respondents are in violation of Articles 46, 47 and 64 of Memorandum of Association, 1981 (the “Memorandum”); that the impugned orders have been passed without adverting to Rule 175-G, 175-I and 175-K of Pakistan Legal Practitioner and Bar Council Rules, 1976 (the “Rules”). Ch. Ishtiaq Ahmad, ASC and Muhammad Maqsood Buttar, ASC stated that in order to strengthen the election process of the bar associations, Chapter XII-A was added under the Rules and thereafter, to further strengthen the election dates of bar associations of various provinces, Code of Conduct, nomination of the election board, preparation of list of eligible voters, right of vote were duly incorporated under the Rules through Notification of Pakistan Bar Council dated 16.11.2015 hence, the entire process made by the Respondents is in violation of Chapter XII-A as well as the Rules.

3. When confronted how this writ petition is maintainable and what is the locus-standi of the Petitioner, learned counsel states that this petition has been filed in order to strengthen the role of election board and that the impugned orders are in violation of statutory provisions of law. He referred to judgment cited as “Muhammad Shoaib Shaheen versus Pakistan Bar Council” (PLD 2017 SC 231).

4. Heard. Record perused.

5. At the outset, without touching the merits of the case the issue of maintainability is essential to be resolved by this Court. The bare examination of the prayer, made by the Petitioner, reveals that the Petitioner is aggrieved from the orders dated 31.12.2021 and 24.12.2021 which admittedly has been passed by the Respondent No. 1/Pakistan Bar Council and Respondent No. 3/Executive Committee, Punjab Bar Council. The Hon’ble Supreme Court of Pakistan in “Mirza Muhammad Nazakat Baig versus Federation of Pakistan through Secretary Ministry of Law and Justice, Islamabad and another” (2020 SCMR 631) has enunciated the principle by holding that:

“A bare reading of the provisions of the Legal Practitioners and Bar Councils Act shows that the Act provides for establishment of Bar Councils in the Provinces as well as the Islamabad Capital Territory. It deals with all matters relating to elections of office bearers, disciplinary and other professional matters, constitution of committees, their powers and other related and incidental matters. However, it is clear that other than the Attorney General for Pakistan being the ex-officio, Chairman Pakistan Bar Council and Advocates Generals of the Provinces and Islamabad Capital Territory being ex-officio, Chairman of the Provincial Bar Councils and Islamabad Capital Territory neither the Provincial nor the Federal Government exercise any administrative control over the affairs of the Pakistan Bar Council or the Provincial Bar Councils. Pakistan Bar Council is a statutory body which is autonomous and generates its own funds independently. The Government does not have any control over it. Likewise, the Islamabad Bar Council acts as a regulator for affairs of the Advocates in Islamabad Capital Territory, admits Advocates to practice before the said High Court and maintains rolls of such Advocates. The functions of the Council also inter - alia include initiating proceedings for misconduct against Advocates on its rolls and award punishment in such cases. That being so, neither the Respondent nor any of its constituents or committees can be regarded as persons performing functions in connection with the affairs of the Federation, Provinces or Local Authority within the contemplation of the Article 199 of the Constitution of Islamic Republic of Pakistan. As such we are in no manner of doubt that Respondent No. 2 is not amenable to the jurisdiction of the High Court in terms of Article 199 of the Constitution”.

1. Recently, the same principle was further enunciated by the Hon’ble Supreme Court of Pakistan in “Syed Iqbal Hussain Shah Gillani versus Pakistan Bar Council through Secretary, Supreme Court Bar Building, Islamabad and others” (2021 SCMR 425) by holding that “neither the Bar Council nor any of its committees could be regarded as persons performing functions in connection with the affairs of the Federation, Provinces or Local Authority within the contemplation of Article 199 of the Constitution of Pakistan. Accordingly, the Pakistan Bar Council and its Committees were not amenable to constitutional jurisdiction of the High Court”. Every judgment of the Supreme Court is binding on all Courts under Article 189 of the Constitution. The same words are used in Article 201 of the Constitution but subject to Article 189 to follow its principle for consistency therefore, the principles enunciated in aforesaid judgments are binding on this Court under Article 189 of the Constitution.

8. Since the prayer made by the Petitioner is to set aside the orders dated 31.12.2021 and 24.12.2021 which have been passed by the Pakistan Bar Council and Punjab Bar Council therefore, no interference can be made by this Court in view of principles enunciated in above referred judgments which are binding on this Court Article 189 of the Constitution. Moreover, the Respondents do not fall within the meaning of ‘persons’ as per Article 199(5) of the Constitution as held by the Hon’ble Supreme Court in above referred judgment that neither the bar councils nor any of its committee could be regarded as persons hence the Pakistan Bar Council and Punjab Bar Council are not amenable to invoke constitutional jurisdiction of this Court. Reliance is also placed on judgment of this Court passed in “Aown Abbas Bhatti versus Forman Christian College through its Rector etc” (PLD 2018 Lahore 435 = PLJ 2019 Lah 165).

1. In view of the law laid down in aforesaid judgments and while applying the doctrine of “Limine Control” as developed by this Court in “Asif Saleem versus Chairman Bog University of Lahore and

others” (2019 PLD Lahore 407), this petition is hereby dismissed in limine being not maintainable.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 148 (DB)

Present: Abid Aziz Sheikh and Muhammad Sajid Mehmood Sethi, JJ.

ABDUL RASHEED--Appellant

versus

LAHORE DEVELOPMENT AUTHORITY through D.G. and others--Respondents

I.C.A. No. 55377 of 2021, decided on 13.12.2021.

Limitation Act, 1908 (IX of 1908)--

----S. 5--Law Reforms Ordinance, (XII of 1972), S. 3--Rejection of bidding officer--Filing of writ petition--Dismissed--Principle of laches--Golden maxim--Law and Courts come to aid of a person who is vigilant and not to aid of a person who is negligent or indolent--In such cases, golden maxim that "law aids vigilant cannot be over-sighted--Helpful hand cannot be extended to a litigant having gone into deep slumber on having become forgetful of his rights--Single Judge, rightly refused to interfere in matter--No illegality has been pointed out in impugned findings--Petition dismissed. [P. 149] A & B

2012 SCMR 280 ref.

Ch. Kausar Ali, Advocate for Appellant.

Sahibzada Muzaffar Ali Khan, Advocate/Legal Advisor for Respondents-LDA.

Date of hearing: 13.12.2021.

Order

Through instant appeal, appellant has assailed vires of order dated 21.06.2021, passed by learned Single Bench of this Court, whereby appellant's constitutional petition, assailing order dated 17.05.2017, passed by Respondent No. 4 rejecting the bid offered by appellant, was dismissed on the principle of laches having been filed after lapse of 04-years.

1. Learned counsel for appellant, at the very outset, was confronted with the observations of learned Single Judge recorded in

the impugned order qua laches. In response, he could not controvert the same despite arguments at some length.

1. Arguments heard. Available record perused.

4. Admittedly, the order impugned through constitutional petition was passed on 17.05.2017 and appellant came to know about said order on 02.10.2017 when the first criminal original filed by him was disposed of, however, despite having knowledge of the aforesaid impugned order, the writ petition was filed in the year 2021 i.e. about 04-years after passing of impugned order. Needless to observe here that law and Courts come to the aid of a person who is vigilant and not to the aid of a person who is negligent or indolent. In such cases, golden maxim that "law aids the vigilant and not the indolent” cannot be over-sighted. Helpful hand cannot be extended to a litigant having gone into deep slumber on having become forgetful of his rights. Learned Single Judge, keeping in view the above circumstances, rightly refused to interfere in the matter.

5. No illegality has been pointed out in the impugned findings, which are based upon the law laid down by the Hon'ble Apex Court in State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others (2012 SCMR 280), thus, no exception can be taken to the same.

1. In view of the above, instant appeal, being devoid of any merit, is hereby dismissed. No order as to costs.

(J.K.) Petition dismissed

PLJ 2022 Lahore 149

Present: Ch. Muhammad Iqbal, J.

AMIR MANZOOR--Appellant

versus

NAEEM JAVED etc.--Respondents

E.F.A. No. 760 of 2013, heard on 15.11.2021.

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

----O.XXI R. 58 & XXXVII--Suit for recovery was ex-parte decreed--Execution petition--Objection petition for recalling of order for attachment of suit property--Dismissed--Suit for specific performance filed by appellant was already decreed before filing of objection petition--Possession of suit property was also handed over--Respondent was no more owner of suit property--Challenge to--Appellant filed suit for specific performance on basis of sell agreement on 13.07.2010 which was decreed on 06.04.2012--As per record of suit for specific performance filed by appellant, possession of suit property was handed over to appellant Thereafter, appellant filed execution petition for registration of sale deed etc.--Respondent No. 1, as per judgment & decree of a competent Court of jurisdiction, was no more owner of same, as such, attachment order could not be made--Executing Court, should have acted lawfully by recalling attachment order but executing Court erred in law to dismiss same--Agreement to sell in favour of appellant was prior in time i.e. 21.04.2009--Respondent No. 1 filed petition under Section 12(2), C.P.C. in suit for specific performance of agreement to sell of appellant against Respondent No. 2 which petition was dismissed by Civil Judge--Appeal of Respondent No. 1 was also dismissed by AD&J and similarly civil revision filed by Respondent No. 1 was also dismissed by this Court--Above said decisions were not challenged any further which has attained finality--Executing Court illegally and unlawfully dismissed objection petition of appellant which order is liable to be set aside--Appeal allowed.

[Pp. 151 & 152] A, B, C, D & E

Mr. Zafar Iqbal Mangan, Advocate for Appellant.

Mr. Qamar Pervaiz Zia, Advocate for Respondent No. 1

Respondent No. 2 ex-parte vide order dated 09.05.2016.

Date of hearing: 15.11.2021.

Judgment

Through this appeal, the appellant challenged the validity of an order dated 21.06.2013 passed by the learned executing Court/Additional District Judge, Lahore whereby the objection petition filed by the appellant was dismissed.

1. Brief facts of the case are that the Respondent No. 1, Naeem Javed, filed a suit for recovery of Rs. 10 Million (1 Crore) under Order XXXVII, C.P.C. against the Respondent No. 2, Nayyar Ahmad Malik. The said suit was ex-parte decreed on 29.11.2010. The Respondent No. 1 filed execution petition for satisfaction of the decree wherein the suit property was attached by the learned executing Court vide order dated 20.06.2012.

The appellant during the pendency of the aforesaid execution petition, filed an objection petition for recalling of the attachment order dated 20.06.2012 on the ground that the appellant entered into an agreement to sell with Respondent No. 2 regarding Plot No. 53 Block-U, Phase-II, DHA Lahore against consideration of Rs. 5,56,00,000/- out of which Rs. 2,25,60,000/-were paid as earnest money and remaining consideration was to be paid at the time of registration of sale deed. The Respondent No. 2 failed to perform his part of the agreement which resulted into filing of a suit for specific performance against Respondent No. 2 on 13.07.2010. On the conceding statement of the attorney of Respondent No. 2 the said suit was decreed on 06.04.2012. The appellant filed execution petition of the decree and during the pendency of the execution petition, the appellant came to know that the suit property had been attached in execution petition filed by Respondent No. 1 in a suit for recovery under Order XXXVII, C.P.C.

The appellant filed objection petition to the execution petition of respondent for de-attachment of the property. The said objections were dismissed by the learned executing Court vide impugned order dated 21.06.2013. Hence, this appeal.

1. I have heard the arguments of learned counsels for the parties and have gone through the- record with their able assistance.

4. In execution of the decree dated 13.07.2010 passed in a suit under Order XXXVII, CPC, the learned executing Court attached the suit property on 20.06.2012 and later on put the said property to auction. The appellant filed objection petition on 09.08.2012 under Order XXI Rule 58, C.P.C. on the ground that his suit for specific performance qua the suit land had also been decreedvide judgment & decree dated 06.04.2012 and judgment debtor of the respondent remained no more owner of the attached property which is liable to be de-attached.

5. Perusal of record shows that the agreement to sell in favour of the appellant was executed by Respondent No. 2 on 21.04.2009. The appellant filed suit for specific performance on the basis of the aforesaid agreement on 13.07.2010 which was decreed on 06.04.2012. As per the record of the suit for specific performance filed by the appellant, the possession of the suit property was handed over to the appellant Thereafter, the appellant filed execution petition for registration of sale deed etc.

6. On the other hand, the Respondent No. 1, during the pendency of the suit for recovery under Order XXXVII, C.P.C., did not file any application under Order XXXVIII Rule 5, C.P.C. for attachment of the suit property. The suit property was attached in June, 2012 whereas the suit for specific performance qua the suit property filed by the appellant had already decreed on 06.04.2012. Thus, the Respondent No. 1, as per the judgment & decree of a competent Court of jurisdiction, was no more owner of the same, as such, the attachment order could not be made. The learned executing Court, after coming to know the aforesaid facts through the objection petition of the appellant, should have acted lawfully by recalling the attachment order but the learned executing Court erred in law to dismiss the same.

7. It is interesting to note that the Respondent No. 1 entered into an agreement to sell with Respondent No. 2 in respect of the suit property on 17.06.2009. It is mentioned in the said agreement, that the Respondent No. 1 had paid Rs. 10 Million (1 Crore) as earnest money but astonishinglyqua the same agreement, a cheque was given by the Respondent No. 2 to the Respondent No. 1 of the same amount and on the basis of the said cheque Respondent No. 1 filed suit under Order XXXVII, C.P.C. The above mode of transaction suggest that the respondent was not interested to purchase the suit land.

8. Furthermore, the agreement to sell in favour of the appellant was prior in time i.e. 21.04.2009. The Respondent No. 1 filed petition under Section 12(2), C.P.C. in the suit for specific performance of agreement to sell of the appellant against Respondent No. 2 which petition was dismissed by the learned Civil Judge, Lahore on 13.06.2019. The appeal of the Respondent No. 1 was also dismissed by the learned Additional District Judge, Lahorevide judgment dated 22.06.2019 and similarly the civil revision filed by Respondent No. 1 was also dismissed by this Court on 14.11.2019. The above said decisions were not challenged any further which has attained finality.

9. For what has been discussed above, it can conveniently be held that the learned executing Court illegally and unlawfully dismissed the objection petition of the appellant which order is liable to be set aside.

10. Resultantly, this appeal is allowed, the order dated 21.06.2013 passed by the learned executing Court, dismissing the objection petition of the appellant is hereby set aside and the objection petition filed by the appellant is accepted. Learned executing Court shall proceed further in accordance with law.

(Y.A.) Appeal allowed

PLJ 2022 Lahore 153 [Multan Bench, Multan]

Present: Ch. Muhammad Iqbal, J.

MUHAMMAD SAFDAR--Appellant

versus

MUHAMMAD ISHTIAQ AHMED etc.--Respondents

C.R. No. 505-D of 2010, decided on 29.6.2021.

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

----Ss. 42 & 54--Civil Procedure Code, (V of 1908), O.XVII R. 3--Suit for declaration and permanent injunction--Non-producing of evidence by plaintiff--Dismissal of suit--Duty of Court--Concurrent findings--Challenge to--It is duty of Court to regulate proceedings of case with object to decide lis expeditiously and Court if reaches conclusion that a party to lis is deliberately avoiding to lead evidence and maliciously prolonging matter on different unreasonable pretext, then it is well within jurisdiction under C.P.C to strike down right of such defaulting party--Counsel for petitioner has not been able to point out any illegality or material irregularity in impugned judgments & decree 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. 154 & 155] A & B

2014 SCMR 637, 2015 SCMR 1401, 2020 SCMR 300 and 2014 SCMR 1469 ref.

Mr. Tariq Zulfqar Ahmed Choudhary, Advocate for Petitioner.

Mr. Muhammad Faisal Bashir Chaudhary, Advocate for Respondents.

Date of hearing: 29.6.2021.

Order

Through this civil revision, the petitioner has challenged the legality of judgment & decree dated 24.09.2009 passed by the learned Civil Judge, Sahiwal who dismissed the suit for declaration with permanent injunction filed by the petitioner under Order XVII Rule 3, CPC for want of evidence and judgment & decree dated 25.03.2010 passed by the learned Additional District Judge, Sahiwal who dismissed the appeal of the petitioner.

1. Brief facts of the case are that the petitioner/plaintiff filed suit for declaration with permanent injunction against the respondents/defendants contending therein that the respondents are owner of the suit shop. Petitioner constructed a shop from his own sources with the permission of the respondents. According to the terms and conditions of the settlement when the petitioner would vacate the demised premises/workshop, the, respondents would pay the cost of construction. Now the respondents intend to evict the petitioner as such they are liable to pay Rs. 1,50,000/- to the petitioner/plaintiff in accordance with oral agreement or till payment of the said amount, they should be restrained to dispossess the petitioner from the' suit property. Respondents appeared, contested the suit by filing written statement controverting the averments made in the plaint. Issues were framed on 29.01.2008 but the petitioner did not produce evidence and the learned trial Court by invoking its jurisdiction under Order XVII Rule 3, CPC dismissed the suit vide judgment & decree dated 24.09.2009. The appeal of the petitioner was also dismissed by the learned appellate Court vide judgment & decree dated 25.03.2010. Hence, this civil revision.

2. I have heard the learned counsels for the parties at some length and gone through the record with their able assistance.

4. Admittedly, issues were framed on 29.01.2008 and the case was adjourned for evidence of the petitioner for 31.03.2008. But despite availing numerous opportunities including the last and final opportunity with cost uptil 24.09.2009 petitioner failed to produce its evidence which contumacious non compliance of Court order invite invocation of penal provisions of order XVII Rule 3, CPC. It is duty of the Court to regulate the proceedings of the case with the object to decide the lis expeditiously and the Court if reaches the conclusion that a party to lis is deliberately avoiding to lead evidence and maliciously prolonging the matter on different unreasonable pretext, then it is well within the jurisdiction under Order XVII Rule 3 C.P.C to strike down the right of such defaulting party. It is worth mentioning here that the Hon'ble Supreme Court has considered four opportunities as sufficient for a party to produce its entire evidence in order to counter the unnecessary delay in conclusion of the trial. When the Court has passed an order, granting the last opportunity, it has not only passed a judicial order but also made a firm promise to the parties for non-granting any further adjournment. It is unflinching expectation of the litigant that the Court shall enforce its order in its true letter and spirit. Reliance is placed on the cases titled as Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others (2014 SCMR 637) & Rana Tanveer Khan v. Naseer-ud-Din and others (2015 SCMR 1401). In a latest judgment cited as Moon Enterprises CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another (2020 SCMR 300), the Hon'ble Supreme Court of Pakistan has held that:

"6.... 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 the consequences, the Court must enforce its order unfailingly and unscrupulously without exception. Such order would in our opinion nor 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 granted 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 honour 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) made a mockery of the provisions of law and those responsible to interpret and implement it. Such practices must be discontinued, forthwith."

5. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned judgments & decree 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 Bezum vs. Nazar Hussain & Another (2014 SCMR 1469).

1. In view of above, this civil revision is dismissed being devoid of any merit with no order as to cost.

(Y.A.) Civil revision dismissed

PLJ 2022 Lahore 156

Present: Ali Baqar Najafi, J.

USMAN SHAHID--Petitioner

versus

GOVERNMENT OF PUNJAB etc.--Respondents

W.P. No. 64049 of 2021, decided on 23.12.2021.

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

----S. 188--Punjab Prevention & Control of Dengue (Temporary) Regulations, 2021, Regln. 15--Quashment of FIR--Non positive report of specimen of water--No notice was issued to petitioner--Non-fulfilling of requirements of law--Non-observance of protocol regarding presence of larva--Respondents have not been able to show any positive report of specimen of water allegedly collected from premises of petitioner suggesting that it contain Larva causing Dengue--Police file does not reveal that requirements of law have been fulfilled--Perusal of police file further reveals basis of report under Section 173, Cr.P.C. is only certificate issued by Entomologist, Ravi Zone, Lahore after last zimni No. 5 dated 10.10.2021 was written which cannot be equated with report showing observance of protocol by recognized laboratory to draw a conclusive inference about presence of larva in specimen--Registration of FIR is nothing but abuse process of law-- FIR, cannot sustain in eyes of law--Submission of challan in Court of law of a case which has inherent efficiency cannot be carried out--Petition allowed. [Pp. 157 & 158] A, D & E

Punjab Infectious Diseases (Prevention and Control) Act, 2020 (XIII of 2020)--

----S. 28(A)--Responsibility of owners or occupiers of premises--Owners or occupiers of premises will be responsible to remove of dispose of open tins, bottles, boxes, tyres or any other container capable of holding water which maintain in good repair in a container of water to prevent breeding of mosquitoes, remove debris another type of vegetation other than grown for fruit purpose or ornamental value.

[P. 157] B

Punjab Prevention & Control of Dengue (Temporary) Regulations, 2021--

----Regln. 4--Medical Officer or an Officer notified by Deputy Commissioner will be required to spray any pond, cistern, fountain or any other place with a notice to owner. [P. 158] C

Mr. Sheraz Zaka, Advocate for Petitioner.

Mr. Muhammad Ejaz, Assistant Advocate General Punjab for Respondents.

Date of hearing: 13.12.2021.

Order

Through this constitutional petition, the petitioner seeks quashing of FIR No. 1357/2021, dated 01.10.2021, under Section 188 PPC read with Section 15 of the Punjab Prevention & Control of Dengue (Temporary) Regulations, 2021, .registered at police station Larri Adda, District Lahore on the allegation that the complainant of the said FIR along with Dengue Team inspected the premises of petitioner being run as "Bilal Oil Store" at Shop No. 3 Near Kashmir Tea Stall, Larri Adda, Lahore and found "Dengue Mosquitoes" in the room cooler lying there.

1. Learned counsel for the petitioner contends that the instant FIR his been lodged against the petitioner just to blackmail him and pressurize him for illegal gratification. Adds that no sample of water was taken from the premises and there is no positive report from recognized laboratory to verify the Larva of mosquitos. Adds that the complainant has no authority to enter into the premises and search the premises without notice as it was the duty of Health Inspector. Places reliance- upon case titled "Muhammad Asghar and 3 others vs. Station House Officer and 2 others" reported as PLD 2020 Lahore 87.

2. In the report and parawise comments submitted by the SHO/Respondent No. 2, it is stated that no illegal harassment is caused to the petitioner and they acted in accordance with law. It is further stated that the challan under Section 173, Cr.P.C. has been submitted in the Court against the petitioner/accused, hence prays for dismissal of the writ petition.

3. Arguments heard. Record perused.

5. After hearing the learned counsel for the petitioner, learned Assistant Advocate General Punjab and perusing the file, it is straightaway observed that the respondents have not been able to show any positive report of the specimen of the water allegedly collected from the premises of the petitioner suggesting that it contain Larva/mosquitos causing Dengue. Under Rule 3 of the Punjab Prevention and Control of Dengue (Temporary) Regulations, 2021 made under Section 28-A of the Punjab Infectious Diseases (Prevention & Control) Amendment) Act, 2021, the owners or occupiers of the premises will be responsible to remove/destroy of dispose of open tins, bottles, boxes, tyres or any other container capable of holding water which maintain in good repair in a container of water to prevent the breeding of mosquitoes, remove debris another type of vegetation other than grown for fruit purpose or ornamental value. Under Rule 4, the Medical Officer or an Officer notified by the Deputy Commissioner will be required to spray any pond, cistern, fountain or any other place with a notice to the owner/occupier. The investigation does not reveal that any such effort was made by the Government on the premises in question. Under Rule 5, a notice was required to be issued to a person to take the measures; i.e. including repair of gutters, down-pipes, drains, tank, room cooler, artificial pond etc. Admittedly no such notice was issued to the petitioner. The Primary & Secondary Healthcare Department, Government of the Punjab had already issued Standard Operating Procedures (SOPs) for Prevention and Control of Dengue, 2020, according to which, besides setting out the objective, details of the activities at the end of the Government functionaries had been described including Alert Generation/System Generated Alerts. In short, the Government/ District Government has rightly taken up the responsibility to take adequate measures to control and protect the citizens from this dangerous disease. However, they should be strictly followed under the law, to initiate a criminal proceeding, a specific procedure has been laid down which include issuance of notice, site inspection, taking out specimen and getting report thereon from the laboratory having the latest compatible equipment. The police file does not reveal that the said requirements of law have been fulfilled. Perusal of the police file further reveals the basis of report under Section 173, Cr.P.C. is the only certificate dated 29.10.2021 issued by the Entomologist, Ravi Zone, Lahore after the last zimni No. 5 dated 10.10.2021 was written which cannot be equated with the report showing the observance of protocol by the recognized laboratory to draw a conclusive inference about the presence of larva in the specimen.

6. In this view of the matter, the registration of FIR is nothing but abuse the process of law. Such FIR, therefore, cannot sustain in the eyes of law. The submission of challan in the Court of law of a case which has inherent efficiency cannot be carried out. Resultantly, this constitutional petition is allowed and the FIR No. 1357/2021 (supra) is quashed.

(Y.A.) Petition allowed

PLJ 2022 Lahore 159 [Multan Bench, Multan]

Present: Ch. Muhammad Masood Jahangir, J.

SUI NORTHERN GAS PIPELINE LIMITED, etc.--Petitioners

versus

MUHAMMAD SHAFI--Respondent

C.R. No. 772 of 2019, decided on 1.12.2021.

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

----S. 12(2)--Specific Relief Act, 1877 (I of 1877), S. 42--Constitution of Pakistan, 1973, Art. 10-A--Suit for declaration was ex-parte decreed--Non effectness of personal service of petitioner--Evidence of process server was not recorded--Publication of citation in newspaper--Application for setting aside of ex-parte decree was rejected--Right of fair trial--Application entailing factual controversy could only be decided after settlement of issues and requiring parties to lead their evidence, but petitioners were knocked out merely through mechanical order mainly on strength that wrong provision of law was quoted over application for setting aside of ex parte proceedings and decree--Counsel for respondent despite going through entire record found himself in difficulty to wriggle out queries raised by his counter part, Article 10-A of Constitution with guarantees right of fair trial as well as due process to every litigant--Petition allowed. [P. 160] A & B

Malik Zafar Mehboob Langrial, Advocate for Petitioners.

Ch. Pervaiz Akhtar Gujjar, Advocate for Respondent.

Date of hearing: 1.12.2021.

Order

In a declaratory suit instituted by respondent, although petitioners/defendants were put under notice, yet personal service could not be effected and after publication of citation in newspaper finally they were proceeded against ex pnrte on 19.03.2016 followed by decree of similar character dated 23.01.2017, who then preferred application for its setting aside on 20.01.2018, but summarily dismissed via impugned order dated 19.03.2019, thus this petition.

1. Today, Malik Zafar Mehboob Langrial, Advocate learned counsel for petitioners vehemently, argued that law favours adjudication of cases on merit; that no personal service was effected upon petitioners/defendants, but in haste even .without recording

statement of Process Server, process of service through substituted mode was followed, which was not warranted and that copy of said citation was even not dispatched to petitioners. In such situation, application entailing factual controversy could only be decided after settlement of issues and requiring parties to lead their evidence, but petitioners were knocked out merely through mechanical order mainly on the strength that wrong provision of law was quoted over application for setting aside of ex parte proceedings and decree.

3. In response, learned counsel for respondent/plaintiff despite going through entire record found himself in difficulty to wriggle out queries raised by his counter part, thus while keeping in mind Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which guarantees right of fair trial as well as due process to every litigant, hence this petition is allowed subject to cost of Rs. 10,000/- payable by the petitioners to respondent, order impugned herein is set aside and learned Trial Court will re-decide application made for setting aside of ex-parte proceedings and decree without being influenced that under what provision of law same was tabled or require them to amend the same. The parties are directed to appear there on 13.12.2021 for further proceedings.

(Y.A.) Petition allowed

PLJ 2022 Lahore 160

Present: Ali Baqar Najafi, J.

MUNAWAR HUSSAIN, Ex. Junior Clerk (Anti-Encroachment Inspector), Lahore--Petitioner

versus

DIRECTOR GENERAL, LAHORE DEVELOPMENT AUTHORITY, LAHORE and 7 others--Respondents

W.P. No. 8565 of 2020, decided on 21.10.2021.

Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (XII of 2006)--

----Ss. 4(vi) & 13--Constitution of Pakistan, 1973, Art. 199--Initiation of disciplinary proceedings--Inquiry report--Allegation of illegal construction--Forfeiture of service of three years--Enhancement in major penalty--Non-issuance of notice before imposing of major penalty--Challenge to--Dismissal from service--Rejection of departmental appeal--Non-speaking order--Impugned order reflects that--It is a non-speaking order whereby findings given by his junior officials were adopted--Grounds raised before him in appeal were not discussed--High Court has noted that before enhancement of major penalty from forfeiture of service of three years to dismissal from service a notice was required to be issued to petitioner asking him to explain as to why major penalty should not have been imposed--This notice was neither part of file nor it was so asserted by respondents--Petition allowed. [Pp. 163 & 165] A & B

2013 SCMR 572 ref.

Mr. Naveed Ahmed Khawaja, Advocate for Petitioner.

Sahabzada Muzaffar Ali, Advocate/Chief Legal Advisor, LDA.

Date of hearing: 21.10.2021.

Order

Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner has challenged office order dated 16.12.2019 passed by Respondent No. 1/D.G. LDA alongwith the order passed by the departmental authorities; i.e. dated 12.10.2017 passed by Respondent No. 3/ Director Administration, LDA whereby the petitioner was awarded major penalty of dismissal and order of the Appellate authority passed on 04.01.2018 rejecting his appeal with a further prayer to order for reinstatement of the petitioner from the date of dismissal with all back benefits.

1. Brief facts giving rise to the filing of this Constitutional petition are that petitioner was appointed as Junior Clerk but was later posted as Anti-Encroachment Inspector and during the said period Respondent No. 6/ Senior Estate Officer (EM-1) LDA prepared a report on 31.05.2017, disciplinary proceedings under PEEDA Act, 2006 were initiated against the petitioner and on 22.06.2017 Respondent No. 5 was appointed as the inquiry officer who observed that as per report prepared by Respondent No. 6/ Senior Estate Officer (EM-1) LDA, the petitioner was found responsible for illegal construction on a portion of Plot No. 10, J/3, M.A. Johar Town, Lahore. Said Respondent No. 3 was appointed as departmental representative in the disciplinary inquiry. In the inquiry report dated 31.08.2017 major penalty for forfeiture of service of three (3) years was recommended. Vide order dated 12.10.2017, Respondent No. 3/Director (Administration) LDA enhance the major penalty of dismissal from service without issuing any notice. The petitioner filed a department appeal before Respondent No. 1/Director General, LDA on 09.11.2017 against the order of dismissal, who rejected the same on 04.01.2018. Meanwhile, petitioner sent a reminder to Respondent No. 1/Director General, LDA to decide the representation but of no avail. The petitioner, therefore, was constrained to file W.P. No. 51057 of 2019 which was disposed of on 16.09.2019 directing D.G. LDA to decide the appeal of the petitioner within a month. However, after the said period, a contempt petition was filed before this Court whereafter on 16.12.2019 the impugned order was passed. Hence, petitioner challenged both the orders dated 12.10.2017 passed by Respondent No. 3/Director (Administration) LDA as well as dated 04.01.2018 passed by Addl. Director (General) LDA.

2. Learned counsel for the petitioner contends that no prosecution witness was presented in the inquiry to support the imposition of major penalty of dismissal from service and that the revisional authority had failed to exercise its jurisdiction as envisaged in Sections 14 and 17 of PEEDA Act, 2006. Adds that neither oral nor documentary evidence was recorded on oath as stipulated under Article 1 of Qanun-e-Shahadat Order, 1984 as well as Section 12 of the PEEDA Act, 2006. It was further contended that in fact on ground a single story constructed building was already present on Plot No. 10, J/3, M.A. Johar Town, Lahore and the civil litigation was already pending between the private party and the LDA, therefore, he got recorded the Rapt Roznamcha on 29.12.2016 in the Police Chowki Shaheed Tariq Kamboh and also submitted many applications to the higher LDA officials but due to strong land mafia actively working to protect the said property who politically influenced the administration of LDA and, therefore, the bonafide efforts of the petitioner were bulldozed. Adds that petitioner had applied for allotment of official accommodation and on the basis of seniority accommodation No. 746 Block-F Jubilee Town, Lahore allotted to him on 22.01.2015 but the Director (Administration) LDA tried his best to dispossess the petitioner which led him to file suit for permanent injunction in the year, 2017 and therefor, on the basis of mala fide the process was illegally initiated against the petitioner to take his revenge, hence prays for the relief.

3. In the report and parawise comments submitted by Respondents No. 1 to 6, the allegations were denied. It was specifically argued that the procedure was validly adopted before imposition of the major penalty under Section 13(4) of the PEEDA Act, 2006 since the petitioner being a responsible officer of Anti-Encroachment drive had failed in his duty by not stopping the illegal construction on the second floor of the house in question against the illegal gratification. Adds that under Section 4(b)(iii) of the PEEDA Act, 2006 the major penalty of forfeiture of service of three years was validly awarded. Further adds that petitioner was heard whereafter the impugned order was passed since he had nothing to say in his defence and prays for the dismissal.

4. Arguments heard. File perused.

5. After hearing the learned counsel for the parties and perusing the file, it is straightway observed that vide impugned order dated 16.12.2019 Director General, LDA in paragraph No. 5 observed as follows:

"5. Thorough examination of the record shows that petitioner has been dealt with strictly in accordance with law. He has been provided every opportunity to plead his case as detailed in PEEDA Act, 2006. The petitioner has failed to bring forth any new evidence/arguments in his defence that can be made part of the proceedings to change the outcome of this case."

This order reflects that it is a non-speaking order whereby the findings given by his junior officials were adopted. The grounds raised before him in the appeal/representation were not discussed and as such this order is directly hit by Section 24 of the General Clauses Act, 1897. The questions; whether petitioner had committed criminal lapse permitting to carry on the illegal construction single handedly or whether this concession/ permission was reciprocated by the delinquents in the form of bribe either in cash and kind; and whether the other officials of LDA had connived or were privy to this inaction during the Anti-Encroachment drive, was not deliberated upon.

1. Here it will be important to refer Paragraph No. 4 of the order dated 12.10.2017 passed by Respondent No. 3/Director (Administration) LDA in which the pertinent questions of fact were not addressed, which is reproduced as under:

"4. AND WHEREAS, the accused was given an opportunity for personal hearing on 09.10.2017 wherein he has heard in detail in presence of Departmental Representative. The inquiry report and whole relevant record has been delved into. It has transpired that possession of Plot No. 10, Block-J/111, M.A. Johar Town, Lahore was handed over-to Mr. Rasheed Ahmed S/o Karam Din through GPA Muhammad Rasheed vide letter No. JT/NB-II/1348-M/1028 dated 07.07.2003. However, the same was cancelledvide Order No. DLD-11/2579 dated 28.04.2004. As per record, there existed a single story shop at the said plot which is illegal as the same has been cancelled. In December, 2016, a fresh construction was made by the encroachers at some portion of the said plot. This new construction activity was not reported by the concerned Anti-Encroachment Inspector i.e. the accused which clearly shows his involvement in the said illegal construction. The construction was pointed out through an application received in the office of Director Estate Management-1, LDA and subsequent upon which an Anti-Encroachment Operation was conducted on 29.12.2016 and the fresh construction was demolished. In addition, the accused being the concerned Anti-Encroachment Inspector, LDA was sternly directed to remain vigilant and keep watch and ward of the said plot.

On 30.05.2017, another complaint was again received regarding fresh construction activity at the said plot. Subsequently, a visit was made to the site and the concerned officer observed that fresh construction had been done by the encroachers at some portion. Once again it was not reported by the accused. This time clearly proving that he is in cahools with the land encroachers and is completely responsible for the fresh construction. The accused has tried to absolve himself from the blame with the contention that he was on leave from 20.04.2017 to 22.04.2017 but the fact that he did not report the illegal construction even after returning from leave clearly show his involvement. In fact, the construction was pointed out even the second time through a complaint received on 30.05.2017 almost a month after his 03-days leave. The accused has also tried to produce an application in his defence that was submitted to in-charge Choki, Block-L. M.A. Johar Town, Lahore on 24.04.2017. However, the same is neither signed by the Estate Officer nor the Senior Estate Officer, LDA. In addition to the application not being signed the accused completely failed to report it to his superiors within the office. Even if a lenient view is taken with regard to the construction made earlier in 2016, the accused cannot be absolved from intentionally not reporting the construction second time, by which time the matter had been highlighted and he had been specifically directed to keep watch and ward of the plot in question."

These questions/observations if seen in juxta position of the finding given by the inquiry officer vide impugned report dated 31.08.2017, it is clear that the finding was to the extent of committing negligence, misconduct and willful omission in performing his official duties and deliberately facilitating the encroachers to carry out illegal construction and that stand taken by the petitioner that construction was carried out in his absence since he remained on leave from 20.04.2017 to 22.04.2017 as such construction up to the rooftop was not possible within 4 days, was to be supported with some material/ evidence to make out a case for awarding major penalty of dismissal from service.

8. Besides, this Court has noted that before enhancement of the major penalty from forfeiture of service of three (3) years to dismissal from service a notice was required to be issued to the petitioner asking him to explain as to why major penalty should not have been imposed. This notice was neither part of the file nor it was so asserted by the respondents/LDA. In Secretary, Government of Punjab (C&W) and others versus Ikramullah and 5 others (2013 SCMR 572), it was held in paragraph No. 6 that competent authority without assigning any reason to disagree with the finding of the inquiry committee with reference to the evidence collected, could not enhance the penalty and converted the same into major penalty that too without issuing a notice. Relevant extract is reproduced as under:

"The Competent Authority without assigning any reason to disagree with the findings of the Committee with reference to the evidence collected enhanced the penalty and converted the same into major penalties as indicated in column No. 4 of the chart referred in para 3 above. There is no cavil to the proposition that the competent authority on receipt of the report from the inquiry officer of the inquiry committee can proceed in any of the options available to him in terms of sub-section (2) to (8) to Section 12 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006. However, while doing so, it has to follow the procedure laid down therein and if it proposes to enhance the penalty it has to give reasons germane to the charges levelled and the evidence collected during inquiry and that too with reference to the liability of each of the officers who were inquired into. Unfortunately the competent authority did not give any reason whatsoever except that he had gone through the record and defence pleas of the respondents and had also personally inspected the road, defective construction of which was a moot point during inquiry. Mere deplorable condition of the road at site was not enough to hold each respondent guilty unless the Competent Authority specifically had referred to the role and liability of each one of the respondents in the light of material/evidence collected during inquiry. Learned law officer on Court query, could not dispute the fact that the competent authority neither gave any reason for enhancing the penalty nor apportioned the liability of each of the respondents specifically."

9. For the foregoing reasons, this writ petition is allowed to the extent that order passed by the competent authority as well as Director General is set aside and the case is remanded to the competent authority to re-decide the matter keeping in view the legal requirements as well as material/evidence against the petitioner.

(Y.A.) Petition allowed

PLJ 2022 Lahore 166

Present: Muhammad Ajmal Rafiq, J.

MUHAMMAD GHAZANFAR NAVEED--Petitioner

versus

STATE, etc.--Respondents

W.P. No. 43081-Q of 2021, heard on 23.12.2021.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471--Quashing of FIR--Second marriage--Lodging of FIR--Another FIR was lodged on same story--Application u/S. 249-A, Cr.P.C.--Dismissed--Second marriage was not challenge by second wife--Aggrieved party--Cognizance of case--Challenge to--First wife has not challenged second marriage of her husband (Petitioner) who is aggrieved party in terms of filing a complaint u/S. 6 (5) of The Muslim Family laws Ordinance, 1961--Respondent being brother of (first wife) cannot be termed as an aggrieved party nor could be authorized to file such a complaint--When first wife being sine qua non for initiating proceedings, an alternate illegal course that too through a person not aggrieved at all is nothing but farce--Magistrate was not justified in taking cognizance of case, which was exclusively triable by family Court--All proceedings right from very beginning conducted by Magistrate are declared corum non judice-- FIR being false owing to mistake of law stands quashed--Petition allowed. [P. 176] F, G & H

Constitution of Pakistan, 1973--

----Art. 199--Extraordinary jurisdiction--If no other remedy is available High Court can undo wrong in its extra ordinary jurisdiction--Since then, High Court is exercising jurisdiction for quashing of FIR.

[P. 173] A

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

----S. 561-A--Inherent power--Section 561-A, Cr.P.C was available to exercise jurisdiction by High Court in its inherent power to secure ends of justice and to prevent abuse of process of Court yet such power is sparingly used by High Court in appropriate case only.

[Pp. 173 & 174] B

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

----S. 249-A--Power of magistrate--Power of Magistrate to acquit accused at any stage: Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of case if after hearing prosecutor and accused and for reasons to be recorded, he considers that charge is groundless or that there is no probability of accused being convicted of any offence.

[Pp. 174 & 175] C

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

----S. 561-A--Constitution of Pakistan, 1973, Art. 199--Powers of High Court to quashing FIR--Subordinate criminal Courts are authorized to acquit accused at any stage of case and this power is synonymous to one High Court exercise u/S. 561-A Cr. P.C, but if they fail to exercise powers then High Court either under Article 199 of Constitution of Islamic Republic of Pakistan or under Section 561-A of Cr. P.C. can either quash proceedings pending in Court subordinate thereto or quash FIR. [P. 175] D

2000 SCMR 122 & 2012 SCMR 94 ref.

Family Court Act, 1964 (XXXV of 1964)----

----Ss. 5 & 20--Conditions of nikahnama--It is only family Court that could decide any matter relating to terms and conditions of Nikah Nama and fate of such permission letter touches that condition whether it is genuine or otherwise. [P. 175] E

Rana Qaisar Ali Khan, Advocate for Petitioner.

Ch. Manzoor Ahmad Warraich, AAG for State.

Ch. Attique Intisar Gujjar, Advocate for Respondent/ Complainant.

Date of hearing: 23.12.2021.

Order

Through the instant writ petition the petitioner (accused) has sought quashing of FIR No. 398/2013 dated 23.07.2013 under sections 420, 468, 471 PPC registered at police station Sharaqpur Sharif, District Sheikhupura.

1. Episode of 10 years' trauma upon petitioner carried a telltale, how was he pushed in a cage like situation where he could move to- and-fro yet justiceless against the protracted criminal process once started in year 2011, despite cancellation of FIR, he on similar pedestal with different story was booked in another chaotic circle and since 2013 he is looking up into skies while clutched in handy, tidy and squeezed whirls, though knocked the door of trial Court for like relief under Section 249-A Cr. P.C., but being unsuccessful in getting any decision, in the menatime begged before this Court for relief of final escape from frivolous net thrown against him in the form of malicious FIR which was got registered even not by an aggrieved person.

2. The contention of learned counsel for the petitioner is that respondent/complainant (Khalil Akbar) brother of petitioner's first wife (Mst. Naseem Ara) earlier on 15.12.2011 got lodged an FIR No. 750/2011 under Section 506 PPC at police station Sharaqpur Sharif, Sheikhupura alleging that the petitioner contracted second marriage on 20.6.2011 without the consent of his first wife (Mst. Nasim Ara) and when she agitated the matter the petitioner extended threats of throwing acid in order to take her life. According to the contents of the said FIR the petitioner had shown himself as a bachelor; such FIR was recommended for cancellation which report was agreed and finally the same was cancelled as being false by the learned Judicial Magistrate vide order dated 13.06.2012. Thereafter, same Khalil Akbar got lodged the present FIR taking the same story with a twist that petitioner contracted second marriage with Mst. Aqsa on 20.06.2011 by preparing a forged permission letter dated 19.05.2011 purportedly issued by Mst. Nasim Ara, the instant FIR was registered and investigation was carried out and since 2013 the matter is pending before the Court of Magistrate for trial. At one stage, due to non-appearance of witnesses the file was consigned to record, lateron, however, the respondent/complainant applied for retrieval of such trial which was accordingly ordered and thereupon the petitioner filed an application under Section 249-A, Cr.P.C., which though was dismissed yet before its dismissal the petitioner filed the instant writ petition for quashing of the FIR. The main grounds urged by learned counsel in support of this petition are that under the dicta laid down by the apex Court in the case "Mst. Sughran Bibi v. The State" (PLD 2018 SC 595), no second FIR is permissible on the same facts and there is no difference between two FIRs; the matter is between the spouses inter-se and touches the terms and conditions of marriage certificate/Nikah Nama, in such an eventuality the ordinary Court loses jurisdiction in view of special provisions contained in the Family Courts Act, 1964, he referred Section 5 and 20 of such Act in support of his contentions. The learned counsel for the petitioner also referred a judgment dated 13.09.2021 passed by this Court in Criminal Revision No. 168/2019 "Muzaffar Nawaz versus Ishrat Rasool, etc.", whereby such matters were declared as triable by family Court.

3. On the other hand, learned counsel for the respondent/ complainant opposed this petition on the ground that this is not the matter which is to be tried by family Court, because forgery committed by the petitioner does not fall within the purview of a family dispute, therefore, the learned Magistrate has rightly assumed the jurisdiction and that it is not a case of second FIR, rather a fact which was disclosed to the complainant later, for which he had obtained expert report and the forgery is to be tried separately as an ordinary case and this Court cannot quash the FIR in Constitutional jurisdiction.

4. Arguments of proponents were heard; material preferred was examined in the light of facts of the case; before proceeding further it would be appropriate to see the legislative history of powers vested in High Court under Constitutional provisions and Section 561-A Cr. P.C. to quash FIR or proceedings of trial Court.

5. The legislative history of jurisdiction, powers and authority vested in High Court is reflective of devolution of powers with passage of time to adhere to the demands either through Constitutional provision or by a Statute amendment. The Government of India Act 1915 was the first document for establishment of Indian High Courts. By virtue of Section 101 of said Act, high Courts were constituted as under;

(1) The High Courts referred to in this Act are the High Courts of judicature for the time being established in British India by letters patent.

(2) Each High Court shall consist of a Chief Justice and as many other judges as His Majesty may think fit to appoint.

Later parts of section carry provisos to this section relating to appointment of additional judges and Sub Section 3, 4 & 5 explain the qualification for appointment, quota for seats and name and style of Courts in different states.

Jurisdiction of high Courts was determined through Section 106 of Act ibid as under:

(1) The several high Courts are Court of records and have such jurisdiction, original and appellate, including admiralty jurisdiction, in respect of offences committed on the high seas , and all such powers and authority over or in relation to the administration of justice, including power to appoint clerks and other ministerial officers of the Court, and power to make rules for regulating the practice of the Court, as are vested in them by letters patent, and subject to the provisions of any such letters patent, all such jurisdiction, powers and authority as are vested in those Courts respectively at the commencement of this Act.

(1a) The letters patent establishing or vesting jurisdiction, powers or authority in a high Court may be amended from time to time by His Majesty for further letters patent.

(2) The high Courts have not and may not exercise any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force.

Section 113 of said Act further authorized to establish additional high Court which runs as under:

His Majesty may, if he sees fit, by letters patent, establish a high Court of judicature in any territory in British India, whether or not included within the limits of the local jurisdiction of another high Court, and confer on any high Court so established any such jurisdiction, powers or authority as are vested in or may be conferred on any high Court existing at the commencement of this Act; and, where a high Court is so established in any area included within the limits of the local jurisdiction of another high Court, His Majesty may by letters patent alter those limits, and make such incidental, consequential and supplemental provisions as may appear to be necessary by reason of the alteration.

The above provisions reflect that a high Court can be established and jurisdiction, powers and authority could vest in through letters patent by His Majesty as authorized under above cited Act; therefore, in pursuance thereof through letters patent, Lahore High Court was established on 31st March, 1919 with following preamble:

Whereas by an Act of Parliament passed in the Fifth and Sixth years of Our Reign and called the Government of India Act, 1915, it was amongst other things enacted that it should be lawful for Us by Letters Patent to establish a High Court of Judicature in any territory in British India (now Pakistan) whether or not included within the limits of the local jurisdiction of another High Court and to confer on any High Court so established any such jurisdiction, powers and authority as were vested in or might be conferred on any High Court existing at the commencement of that Act:

And whereas the provinces of the Punjab \ \ \ is now subject to the jurisdiction of the Lahore High Court Lahore which was established by an Act of the Governor-General of India in Council, being Act No. XXIII of 1915, and was continued by latter enactments and no part of the said province is included within the limits of the local jurisdiction of any High Court.

Cl.1. Establishment of High Court at Lahore. Now know yet that we, upon full consideration of the premises and of Our Special grace, certain knowledge and mere motion, have though fit to erect and establish, and by these presents. We do accordingly for Us, our heirs and successors, erect and establish, for the provinces of the Punjab \ \ \ aforesaid, with effect from the date of the publication of these, presents in the Gazette of India, a Lahore High Court Lahore, and we do hereby constitute the said Court to be a Court of records.

CI. 5. of letters patent deals with writs, etc. to issue in the name of State and under seal; whereas, criminal jurisdiction of High Court was scoped as under:

Cl. 15. Ordinary Criminal original jurisdiction of the Lahore High Court. And we do further ordain that the Lahore High Court Lahore shall have ordinary original criminal jurisdiction in respect of all such persons within the Province of Punjab (now Lahore High Court Lahore) had such criminal jurisdiction over immediately before the publication of these presents.

Cl. 16. Jurisdiction as to persons. And we do further ordain that the Lahore High Court Lahore, in the exercise of its ordinary original criminal jurisdiction, shall be empowered to try all persons brought before it in the course of law.

Cl. 17. Extra Ordinary jurisdiction. And we do further ordain that the Lahore High Court Lahore shall have extra ordinary original criminal jurisdiction over all persons residing in place within the authority to try at its discretion any such persons before it on charge preferred by any magistrate or other officer specially empowered by the Government in that behalf.

The above powers were directed to be regulated through Code of Criminal Procedure, 1898 for which following clause was introduced;

Cl 28. Regulation of proceedings. And we do further ordain that the procedure in all criminal cases brought before the Lahore High Court Lahore shall be regulated by the Code of Criminal Procedure being an Act No. V of 1898, passed by the Governor General in Council, or by such further or other laws in relation to criminal procedure as may have or may be made by competent legislative authority in India.

1. This ordinary and extra ordinary jurisdiction though was vested on High Court yet it was mainly related to trial of any person; miscellaneous proceedings though were being regulated yet no exact provisions was available to save the inherent power of high Court under code of criminal procedure. Polity was being extended and crime was reported at a comparably higher rate, ingenious methods were being invented to trap the individuals in unnecessary litigation, false and frivolous reporting of crime was rampant; therefore, in order to circumvent the process or to save the innocent breachers or scape goats, legislature felt the necessity and introduced drastic changes in code of criminal procedure through new legislation in the form of "Code of Criminal Procedure (Amendment) Act, 1923 (Act No. XVIII of 1923)"; whereby many sections of Code of criminal procedure were amended, similarly, under said Act at item No. 156, following new section was also introduced;

561-A. Saving of inherent power of High Court: Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Necessity of above section was well explained by Honourable Supreme Court in a case reported in "Bashir Ahmad v. Zafar-ul-Islam and others" (PLD 2004 SC 298) The saving of inherent power of high Court resulted in passing of appropriate orders of nature mentioned in the section on its own when there was no other remedy and on references sent by subordinate Courts.

1. The powers of existing High Courts were given protection even in a later legal instrument in the form of Government of India Act 1935; relevant Section 223 is as under: -

2. Subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in division Courts, shall be the same as immediately before the commencement of Part III of this Act.

[Emphasize supplied]

Part III of Act deals with Provincial legislature which means all the existing powers of High Court shall be subject to any further legislation. Later when Pakistan came into being, the Government of India Act, 1935 was adopted to run the government machinery through such legislated document.

1. A trend in our society of false implication of innocent people was rampant and the Courts were put on guard to see through the case on the principle of "Sifting the grain from the chaff” that was the reason principle of "Falsus in uno, falsus in omni bus" was not applicable in Pakistan since early 50's. There was no provision available in the code of criminal procedure 1898 to the subordinate Courts to extend early escape from the net thrown on the accused. Only remedy available was being regulated through constitutional provision because by then provision relating to sending reference u/S. 432, 433 Cr. P.C stood omitted by AO of 1949. Historically after advent of Pakistan, The High Court was established through first Constitution of Pakistan, 1956 and Article 170 of said Constitution gave such powers to The High Court in following terms;

Notwithstanding anything in Article 22, each High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the right conferred by Part II and for any other purpose.

As evident above, nature of writs was documented, though were not part of Letters Patent clearly, it continues with description of such types of writs without mentioning their title in a later Constitution of Republic of Pakistan, 1962, in which powers of High Court for extra ordinary jurisdiction were, with a detailed expression, incorporated in Article 98. Similarly, Constitution of Islamic Republic of Pakistan, 1973 also contains like provision under Article 199. The above constitutional provisions guaranteed that if no other remedy is available High Court can undo the wrong in its extra ordinary jurisdiction. Since then, High Court is exercising jurisdiction for quashing of FIR. Though Section 561-A Cr. P.C was available to exercise jurisdiction by the High Court in its inherent power to secure the ends of justice and to prevent abuse of process of the Court yet such power is sparingly used by the High Court in appropriate case only.

10. Subordinate criminal Courts do not have like jurisdiction to dilate upon quashing of FIR; however, under Police Rules, 1934, on the recommendation of police, FIR is usually cancelled. Such cancellation carries following classes:-

A-class cancellation; when the case is maliciously false or false owing to mistake of law or fact.

B-class cancellation; found commission of non-cognizable offence.

C-class cancellation: matter is for a civil suit.

The above has duly been explained in Rule 24.7 of Police Rules, 1934. In appropriate cases, Court can also pass like orders under Section 173 (3) of, Cr.P.C. Still the power derived by the Courts through such modes was implied. Though in appropriate cases, Court can have resort to Section 249 Cr. P.C. and postpone the case sine-die, yet it does not help to finally strangulate the criminal process against the accused because on the information or application by concerned party or report by police case can be reopened. Therefore, it was expedient for legislature to introduce a provision in Cr. P.C to give an inherent power like provision to the Subordinate Criminal Courts, the Law Reforms Ordinance, 1972 once again brought drastic changes in Cr.P.C. and apart from others, Chapter XXII-A was introduced for sessions trial which includes Section 265-K, it runs as under:

265-K. Power of Court to acquit accused at any stage: Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is not probability of the accused being convicted of any offence.

This section was applicable for session trial only and a sessions Judge could exercise powers under this section for an offence triable by Court of session alone. No provision of like nature was available to the Magistrates; therefore, Section 249-A Cr. P.C was inserted through the Code of Criminal Procedure (Amendment) Ordinance, 1977 (Ordinance of XXXVI of 1977) which reads as under;

249-A. Power of Magistrate to acquit accused at any stage: Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence.

Under above sections subordinate criminal Courts are authorized to acquit the accused at any stage of the case and this power is synonymous to one the High Court exercise u/S. 561-A Cr. P.C, but if they fail to exercise powers then High Court either under Article 199 of the Constitution of Islamic Republic of Pakistan or under Section 561-A of Cr. P.C. can either quash the proceedings pending in the Court subordinate thereto or quash the FIR. Reliance is placed on case reported as "Mraj Khan v. Gul Ahmad and 3 others (2000 SCMR 122) "Rizwana Bibi v. The State and another" (2012 SCMR 94).

11. It is trite that second FIR is not permissible under the law as per dictum laid down in the case "Mst. Sughran Bibi v. The State" (PLD 2018 SC 595) that every version in an FIR putforword by the same complainant or different parties to the proceedings, would be recorded in the same FIR and if the first had stood cancelled, the concerned party may file a private complaint or may file an application for review of cancellation order, which the respondent/complainant in the instant case has not done, therefore, there was no occasion for him to get lodged another FIR, despite the fact that at the relevant time the abovereferred judgment of the Hon'ble Supreme Court of Pakistan was not in the field and the second FIR was rightly registered, but the second FIR is also under attack by the petitioner per force of provisions of the Family Courts Act, 1964, as referred by the learned counsel. The permission letter, whether forged or genuine, is a fact in issue to be decided by the family Court. The petitioner is claiming that permission letter is genuine allowing him to contract second marriage, whereas, his first wife is alleging it to be forged one. Both the claims stand on the one point i.e. question of second marriage contracted with or without the permission of the first wife and there is no cavil to the proposition that entry in the Nikah Nama also contain a condition about second marriage and according to Section 5 read with Section 20 of the Family Court Act, 1964 it is only the family Court that could decide any matter relating to terms and conditions of Nikah Nama and fate of such permission letter touches that condition whether it is genuine or otherwise. In the above referred judgment dated 13.09.2021 in Criminal Revision No. 168/2019 "Muzaffar Nawaz versus Ishrat Rasool, etc.", cited by learned counsel for the petitioner, this Court after dilating upon the relevant provisions of law in unambiguous terms has held that such like matters are exclusively triable by family Court.

1. It was urged that application of petitioner u/S. 249-A Cr. P.C has now been dismissed during these pending proceedings, therefore, he may be directed to file revision against such order. Suffice it to say, such application was filed before the trial Court on 09.04.2016 and the order sheet annexed shows it was pending even on 26.06.2021 and when the present writ petition was filed on 30.06.2021, it was reported as pending too. It would be a mockery of process if the petitioner is once against sent back to take a round of lower Court and then to file this writ petition. As highlighted above, Honourable Supreme Court has held that it is not necessary that petitioner always go to the trial Court at first instance before approaching this Court for the like relief, if the circumstances warrant interference it must be decided by this Court and circumstances as highlighted above do exist in favour of petitioner to exercise powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

13. It is a fact, so far first wife has not challenged the second marriage of her husband (Petitioner) who is the aggrieved party in terms of filing a complaint u/S. 6 (5) of The Muslim Family laws Ordinance, 1961. Complainant/respondent being brother of Masim Ara (first wife) cannot be termed as an aggrieved party nor could be authorized to file such a complaint. When the first wife being sine qua non for initiating the proceedings, an alternate illegal course that too through a person not aggrieved at all is nothing but farce.

14. For what has been discussed above, this Court is convinced that the learned Magistrate was not justified in taking cognizance of the case, which was exclusively triable by family Court. Therefore, this petition is allowed, consequently all the proceedings right from the very beginning conducted by the learned Magistrate in case FIR No. 398/2013 under sections 420, 468, 471 PPC registered at police station Sharaqpur Sharif, District Sheikhupura, are declared corum non judice. Similarly, FIR being false owing to mistake of law stands quashed. The wife may however, agitate before family Court by filing a complaint under Section 6(5) of Muslim Family Laws Ordinance, 1961, the grievance on the touchstone of contracting second marriage by her husband (petitioner) without her permission, which does include any observation on the questioned document i.e. permission letter.

(Y.A.) Petition allowed

PLJ 2022 Lahore 177 [Multan Bench Multan]

Present: Sultan Tanvir Ahmad, J.

Mst. SHAHNAZ PARVEEN and others--Petitioners

versus

Mst. ASMA KALSOOM and others--Respondents

C.R. No. 113 of 2018 & 1674 of 2017, heard on 13.9.2021.

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

----O.I R. 10--Specific Relief Act, 1877 (I of 1877), S. 42--Suit for declaration--Concurrent findings--Application for impleadment as party as appeal stage--Accepted--Case was remanded to trial Court--Determination of documents--Powers of Court--Exercising of discretion--Challenge to--Producing of documents at appeal stage--Admissibility of documents cannot be determined without giving chance to parties to exhibit same and/or chance to produce makers and witnesses of these documents--Any ruling as to authenticity of these documents without proper examination can result into miscarriage of justice and at same time shall prejudice trial and appeals--Court is empowered, at all stages of proceedings, to add any party or parties whose presence before Court is necessary to adjudicate upon real matter in dispute or when presence of parties is necessary to enable Court to effectually and completely adjudicate upon matter--Order of remand by Appellate Court is simply a matter sent to trial Court for re-examination and this order is not final determination of rights of parties--Discretion exercise by Appellate Court is neither unwarranted nor unjust in circumstances--Counsel of petitioner has failed to make out any case of material irregularity or illegality, requiring interference in revisional jurisdiction--Revision petition dismissed.

[Pp. 179 & 181] A, B, C & D

PLD 1962 SC 291 ref.

Malik Muhammad Tariq Nonari, Advocate (in Revision for Petitioners Petition No. 113-2018).

Mr. Iqbal Hussain Jafri, Advocate for Respondents.

Mr. Iqbal Hussain Jafri, Advocate for Petitioners (in Revision Petition No. 1674 of 2017).

Malik Muhammad Tariq Nonari, Advocate for Respondents.

Date of hearing: 13.9.2021.

Judgment

Through this single judgment, the captioned revision petitions being outcome of same order, alongwith all the civil miscellaneous applications, shall be decided together.

1. The present revision petitions are arising out of the consolidated order dated 23.10.2017 passed by learned Additional District Judge, Khanewal in civil appeals.

2. The facts, necessary for the decision of these civil revisions, are that Mst. Shahnaz Parveen (the 'Petitioner') obtained a judgment and decree dated 22.02.2016 in civil suits No. 59 of 1997, whereby she was declared as lawful daughter of Hussain Ahmad Khan and Mst. Khursheed Jahan and Mutation No. 183 dated 19.01.1972 was cancelled. The Petitioner was held, entitled to inherit the estate of her parents alongwith sisters namely Mst. Munawar Jahan and Mst. Raees Jahan and brother Sarwar Ali Khan. Appeals were filed by unsatisfied defendants.

3. Mst. Asma Kalsoom (the 'Respondent No. 1') filed applications under Order 1 Rule 10 of the Code of Civil Procedure Act, 1908 in the referred appeals. Learned Additional District Judge, Khanewal on 23.10.2017 while accepting the applications, ordered to implead her as party in the suits as defendants. The entire matter was remanded to the learned trial Court with the direction to obtain the written statement of Respondent No. 1, frame proper issues and to decide the matter after recording evidence, if any produced. Said order has been challenged by way of present revision petitions.

4. Malik Muhammad Tariq Nonari, learned counsel for the Petitioner, while arguing the case submitted that the documents relied by the learned Appellate Court are fake and forged; that Madrasah/School certificate is inadmissible as the certificate produced contains a stamp which say "copy to copy is not admissible in Court" and further contended that the relevant school has refused to recognized the document; that similarly Marriage Certificate issued by Government of Punjab having entry dated 06.04.2016 is bogus; that Family Certificate has been ignored by the learned Appellate Court. Learned counsel for the Petitioner has argued that suit titled "Mst. Kalsoom v. Manager NADRA" was filed on 16.06.2016 for correction of the name of father which was dismissed, likewise, some other suits for correction of the names were also dismissed. It has been further argued that the order of remand by the learned Appellate Court is illegal and the learned Appellate Court should have obtained the evidence itself instead of making the order of remand.

5. Conversely, Mr. Iqbal Hussain Jafri, learned counsel for the Respondents, has opposed this revision petition and submitted that the documents produced with this revision were never produced before the learned Appellate Court and the same were obtained after the decision of remand by influencing the authorized person.

6. I have heard the arguments and with the able assistance of the learned counsel for the parties record is perused.

7. Respondent No. 1 at the appeal stage produced the certificate, which shows her name as Mst. Asma Kalsoom, daughter of Muhammad Sarwar Ali Khan. Her Marriage Certificate with one Malik Irshad Hussain, which was issued on 06.04.2016, is reflecting the same. Divorce Deed, dated 30.06.1998 is produced before learned Appellate Court, whereby Muhammad Sarwar Ali Khan has allegedly divorced the mother (Mst. Khalida Parveen) of Respondent No. 1. Though, the learned counsel for petitioner has countered these documents by placing on record certificate issued by the school and a marriage certificate dated 27.05.2016 which contains name of one Abdullah in column of the father's name and other documents have also been relied upon, which contradict the stance taken by the Respondent No. 1.

9. The admissibility of aforementioned documents cannot be determined without giving chance to the parties to exhibit the same and/or the chance to produce the makers and witnesses of these documents. Any ruling as to the authenticity of these documents without proper examination can result into miscarriage of justice and at the same time shall prejudice the trial and/or appeals.

10. It is settled law that the Court is empowered, at all stages of the proceedings, to add any party or parties whose presence before the Court is necessary to adjudicate upon the real matter in dispute or when presence of the parties is necessary to enable the Court to effectually and completely adjudicate upon the matter. The person, who is claiming to own share in the suit for administration or inheritance, certainly falls in the category of persons, who are likely to be adversely affected by the adjudication.

1. It will be beneficial to reproduce the relevant part of the judgment of the Honourable Supreme Court in case titled "Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others" (PLD 1962 Supreme Court 291):

".... According to Order I, rule 10, of the Civil Procedure Code any persons whose presence is "necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the suit" may be added as a party to the suit. There should be no objection to a plaintiff joining in an administration suit all those who claim to be entitled to a share in the property of the deceased and whose claim he wants to be adjudicated upon. To refuse the plaintiff to implead such persons will lead to an almost intolerable situation. Suppose there are ten claimants to an estate of the deceased and the plaintiff who sues for administration admits the claim of only one of them. If he is allowed to implead only the one whose claim he admits the decree passed in the administration suit distributing the estate may be nullified by one of the remaining claimants filing a suit and serving a declaration that he is entitled to a share in the estate of the deceased. The heir who has already got a decree in the administration suit will, if he still desires distribution of the estate, have to file a second suit for administration impleading also the heir who has secured a declaration, but the decree in this second suit too may be nullified by another claimant filing a suit and getting a declaration that he is entitled to a share in the estate of the deceased. It seems clear therefore that an acceptance of the contention of learned counsel for the appellant may lead to a hopeless multiplicity of suits. Great stress is laid by learned counsel on the fact that the plaintiff will by an administration suit be getting possession from persons who are in fact only trespassers and this is outside the scope of an administration suit. But the plaintiff will be getting possession only from persons who claim to be entitled to a share in the property of the deceased and who claim no independent right in themselves. While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own right and adversely to the deceased there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased arid their claim is negatived. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit and in fact learned counsel for the appellant does not contended to the contrary his plea being that a defendant in an administration suit can raise a question as to whether the plaintiff or another defendant is entitled to a share but that the plaintiff cannot raise such a plea as to a defendant. We see no good reason for this distinction."

(Emphasis supplied)

12. Furthermore, order of remand by the learned Appellate Court is simply a matter sent to the learned trial Court for re-examination and this order is not final determination of rights of the parties. I am of the considered view that discretion exercise by the learned Appellate Court is neither unwarranted nor unjust in the circumstances. It cannot be said that while passing order of remand to re-examine the matter in the light of fresh facts, documents and parties, learned appellate Court has acted arbitrarily or without jurisdiction.

13. Learned Counsel of the petitioner has failed to make out any case of material irregularity or illegality, requiring interference in the revisional jurisdiction. The instant revision petition is, therefore, dismissed, with no order as to costs.

1. For reasons recorded above, the Revision Petition No. 1674 of 2017 having no substance is also dismissed.

2. C. M. No. 2970-C of 2018 in Civil Revision No. 1674 of 2017 for impleading Applicants as necessary party is disposed of, as the same can be filed before the learned Court, where the trial is pending, if permissible by law.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 181 [Multan Bench, Multan]

Present: ali Zia Bajwa, J.

Mst. ASMA BIBI--Petitioner

versus

STATE, etc.--Respondents

W.P. No. 16142 of 2021, decided on 18.10.2021.

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

----S. 164--Rule 4(f) of Chapter 13 of Volume-III of Lahore High Court Rules and orders--Recording of statement by magistrate--Jurisdiction--Direction to--It is not necessary that Magistrate receiving or recording a confession or statement should be a Magistrate having jurisdiction in case--Magistrate has jurisdiction to record statement of petitioner under Section 164, Cr.P.C.--Any aggrieved person may ask for recording of his/her statement under section 164, Cr.P.C. to Magistrate--This petition is accepted and impugned order date 11.10.2021 is set aside and Respondent No. 2 is directed to record statement of petitioner under Section 164, Cr.P.C.--Petition accepted. [P. 182] A & B

PLJ 2021 Lahore 645 ref.

Ch. Muhammad Imran, Advocate for Petitioner.

Haji Dilbar Khan Mahar, Assistant Advocate General for State.

Date of hearing: 18.10.2021.

Order

Through this constitutional petition, order dated 11.10.2021 passed by learned Senior Civil Judge Criminal Division Multan has been called into question whereby the application of the petitioner for recording her statement under Section 164, Cr.P.C. in connection with FIR No. 766/2021, dated 19.09.2021 under Section 365-B PPC Police Station Saddar Lodhran, District Lodhran was turned down.

2. Arguments heard and record perused.

3. Perusal of the record reveals that as per Rule 4(f) of Chapter 13 of Volume-III of Lahore High Court Rules and Orders in which important features of Section 164, Cr.P.C. are mentioned which is reproduced as under:

4. Some important features of Section 164 as it stands, now are:

(f) It is not necessary that the Magistrate receiving or recording a confession or statement should be Magistrate having jurisdiction in the case.

As per aforesaid rule, it is not necessary that the Magistrate receiving or recording a confession or statement should be a .Magistrate having jurisdiction in the case. So, in view of above, it is clear that learned Magistrate/Senior Civil Judge (Criminal Division), Multan has jurisdiction to record statement of the petitioner under Section 164, Cr.P.C. and there is no bar to record her statement. Any aggrieved person may ask for recording of his/her statement under Section 164, Cr.P.C. to the Magistrate. Reliance in this regard is placed on case "Amia Shaheen vs. The State, etc," (PLJ 2021 Lahore 645). Thus, order of learned Magistrate is contrary to law.

4. In view of above this petition is accepted and impugned order date 11.10.2021 is set aside and SCJ, Criminal Division, Multan/Respondent No. 2 is directed to record statement of the petitioner under Section 164, Cr.P.C. in the aforesaid FIR in accordance with law.

(K.Q.B.) Petition accepted

PLJ 2022 Lahore 183

Present: Shahid Karim, J.

LAHORE DEVELOPMENT AUTHORITY (LDA) through D.G. and 2 others--Petitioners

versus

ABDUL RAZZAQ and 2 others--Respondents

W.P No. 46897 of 2021, decided on 27.9.2021.

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

----O.XXI R. 23-A--Constitution of Pakistan, 1973, Art. 199-- Objection petition--Dismissed--Limitation--Obligation of--Constitutional Courts--It is case of petitioners that execution-petition has been filed with an inordinate delay and is statute barred--Not only was objection regarding limitation taken up in objection petition but also part of grounds taken in revision petition and strangely issue was not dealt with by revisional Court as well--Two orders are plainly unlawful and an interference is called for in constitutional jurisdiction of this Court--Two Courts were under an obligation to have dealt with all legal issues raised by petitioner in objection petition and to have decided them by a judgment based on reasons--Petitions allowed. [Pp. 183 & 184] A & B

Sahibzada Muzaffar Ali, Advocate for Petitioners.

Ch. Sultan Mehmood, Advocate for Respondents.

Date of hearing: 27.9.2021.

Order

This order shall also decide a connected petition W.P No. 46902 of 2021 which challenges the same orders passed on 6.4.2021 whereby the objection petition of the present petitioners was dismissed as well as the order dated 24.6.2021 passed by the Revisional Court on a revision petition filed by the petitioners to challenge the earlier order dated 6.4.2021.

2. The learned counsel for the petitioners contends that a number of objections raising serious legal issues were taken in the objection petition filed by the present petitioners which have not been adverted to by the Courts below. One such objection was relating to the question of limitation and it is the case of the petitioners that the execution petition has been filed with an inordinate delay and is statute barred.

3. I have heard the parties and do find indeed that the Courts below have not even dealt with the question of limitation in respect of filing of execution petition. It has only been mentioned in the impugned orders that filing of objection petition is with an intent to delay the execution of the decree. It has been noted that not only was the objection regardings limitation taken up in the objection petition but also part of the grounds taken in the revision petition and strangely the issue was not dealt with by the revisional Court as well. The two orders are plainly unlawful and an interference is called for in the constitutional jurisdiction of this Court. The two Courts were under an obligation to have dealt with all legal issues raised by the petitioner in the objection petition and to have decided them by a judgment based on reasons.

1. In view of the above, these petitions are allowed. The impugned orders are set aside. The matter shall be deemed to be pending with the executing Court which shall decide all issues raised in the objection petition including the issue of limitation.

(Y.A.) Petition allowed

PLJ 2022 Lahore 184 [Multan Bench Multan]

Present:Muhammad Shan Gul, J.

MUHAMMAD IMRAN--Petitioner

versus

JUDGE FAMILY COURT, etc.--Respondents

W.P. No. 278 of 2022, heard on 20.1.2022.

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 9--Family Court Act, (XXXV of 1964), S. 17(A)(4)--Suit for maintenance--Breast feeding maintenance allowance suit was decreed--Welfare of child--Determination of financial position--Quantum of breast feeding maintenance allowance--Breast feeding maintenance allowance is recognized jurisprudentially--Such allowance is recognized as being in line with welfare of child and it has been held that if a mother is not awarded such an allowance sustenance of child may suffer--If breast feeding maintenance allowance had to be awarded trial Court could only have ordered such breast feeding maintenance allowance after gauging and determining financial position of petitioner and not otherwise--Approach of Judge Family Court is not correct and, therefore, needs to be corrected in constitutional jurisdiction of High Court--Judge Family Court shall, after employing provisions of Section 17-A(4) of Family Courts Act, 1964 and after determining financial status of petitioner, decide question and quantum of breast feeding maintenance allowance--Petition allowed.

[Pp. 189, 192 & 194] A, B, C & D

2004 CLC 473, 1996 CLC 1 and 2019 CLC 511 ref.

Malik Muhammad Siddique Kamboh, Advocate for Petitioner.

Mr. Rizwan Ahmad Khan, Advocate for Respondent No. 2.

Date of hearing: 20.1.2022.

Judgment

Through this judgment the titled constitutional petition is sought to be decided.

1. Facts in brief are that Respondent No. 2/Ambreen Aslam, tied the matrimonial knot with the petitioner, Muhammad Imran, on 08.9.2017 and the marriage resulted in the birth of minor Muhammad Umais who at present resides with Respondent No. 2/Ambreen Aslam. Things could not work out between the husband and wife and allegedly no matrimonial harmony existed between the couple and which resulted in the separation of the couple with Respondent No. 2 coming to the house of her parents along with her minor son to reside there. According to Respondent No. 2, the petitioner was asked, time and again, to provide the necessary sustenance allowance but he persisted in his denial and this is what compelled Respondent No. 2/Ambreen Aslam to file a suit seeking maintenance from the petitioner.

2. A suit was filed. Issues were framed. The Judge Family Court thereafter awarded the following relief to Respondent No. 2:-

“i) Minor plaintiff No. 2 is held entitled to recover maintenance allowance @ Rs. 4000/- (four thousand) per month from the date of institution of this suit till his future period/legal entitlement along with 10% annual increase. Interim maintenance (if any) paid during the pendency of the suit shall be adjusted. The increment on basic amount will start after every calendar year.

ii) Plaintiff No. 1 is held entitled to recover breast feedings maintenance allowance @ Rs. 5000/- (five thousand) per month from the birth of minor for a period of 2 years.

iii) Plaintiff No. 1 is held entitled to recover Rs. 30000/- (thirty thousand) as delivery expenses.

iv) Remaining claim of the petitioner (if any) is refused.”

1. Aggrieved and dissatisfied, the petitioner has approached this Court by means of the present petition. Learned counsel for the petitioner, at the outset, submits that the petition would be pressed only to the extent of award of breast feeding maintenance allowance and that the petitioner did not want to pursue the petition with respect to the award of general maintenance allowance amounting to Rs. 4000/- per month or for that matter with respect to imposition of Rs. 30,000/- as delivery expenses. It is, therefore, clear that the present petition is only being entertained with respect to the grant of breast feeding maintenance allowance amounting to Rs. 5000/- per month.

2. Learned counsel for the petitioner submits that the petitioner takes exception to the fact that the judgment under challenge is irreconcilable because while deciding Issue No. 1:

“Whether the plaintiffs are entitled to recover maintenance allowance from the defendant, if so, at what rate and for what period? OPP”

the Judge Family Court discarded the plea of desertion of Respondent No. 2 by the petitioner as having not been proved but the same Judge Family Court has been swayed by the same consideration while dealing with another issue (2-A):

“Whether the plaintiff is entitled to recover maintenance allowance of breast feeding @ Rs. 15000/- per month from the defendant? OPD”

and by considering the plea as nearly correct. Adds further that no reasons have been cited in the judgment for the grant of breast feeding maintenance allowance and that the trial Court ought to have employed the provisions of Section 17-A(4) of the Family Courts Act, 1964 for the purpose of gauging and determining the financial health and position of the petitioner before passing the judgment under challenge.

1. Heard. Record perused.

2. Section 17-A Family Courts Act, 1964 was amended and substituted by way of the Punjab Family Courts (Amendment) Act, 2015 (Act XI of 2015) w.e.f. 18.3.2015 and Section 17-A in its present form reads as under:

“17A. Suit for maintenance.--(1) In a suit for maintenance, the Family Court shall, on the date of the first appearance of the defendant, fix interim monthly maintenance for wife or a child and if the defendant fails to pay the maintenance by fourteen day of each month, the defence of the defendant shall stand struck off and the Family Court shall decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case.

(2) In a decree for maintenance, the Family Court may:

(a) fix an amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant circumstances; and

(b) prescribe the annual increase in the maintenance.

(3) If the Family Court does not prescribe the annual increase in the maintenance, the maintenance fixed by the Court shall automatically stand increased at the rate of ten percent each year.

(4) For purposes of fixing the maintenance, the Family Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant.”

1. What is evident from a perusal of this relatively recently added provision of law is clearly discernible from a perusal of sub-section (4) of this Section and which clearly allows the trial Court the facility of summoning relevant documentary evidence to determine the estate and resources of a husband who is to be saddled with the responsibility of providing maintenance allowance.

2. A perusal of the judgment under challenge indicates manifestly that no such enquiry as is envisaged in Section 17-A(4) was even remotely undertaken by the Judge Family Court and in fact no effort for initiating any such enquiry or fact finding was even initiated. The learned Judge Family Court ought to have probed and examined the financial status, worth of estate of and availability of resources with the petitioner before deciding the question of breast feeding maintenance. Learned Judge Family Court ought to have appreciated the fact that such precedent enquiry was facilitated by the amended provision itself. The learned Judge Family Court ought to have also appreciated the intent of the legislature in bringing about an amendment in Section 17-A.

3. This amendment was brought about to arrest the near unbridled discretion obtaining with a Judge Family Court in the matter of fixation of quantum of maintenance. This safety valve i.e. Section 17-A(4) was specifically added for the purpose of ensuring that there is no arbitrary, whimsical or to use legalese, subjective exercise of discretion ----- what with the Qanun-e-Shahadat Order, 1984 and the Code of Civil Procedure, being explicitly inapplicable to proceedings before a Judge Family Court. To structure such discretion by means of provision of statute based facilitation, a Judge Family Court was extended the space and potential of trying to gauge by means of various indicators (pay, salary, possessions, ownership, estate, tax statement, etc.) nee all relevant considerations (Aka Lord Greene in the case of Wednesbury Corporation) the amount of maintenance to be imposed upon a defendant.

4. In the matter before this Court, the learned Judge Family Court has rather attempted a complete nose-dive and done exactly the reverse. Without making any attempt at employing Section 17-A(4), the learned Judge Family Court has simply proceeded on a frolic of his own and without any enquiry or investigative exercise imposed the additional burden, so to speak, of breast feeding maintenance allowance on the petitioner. It is not as if the learned Judge Family Court has passed an interim maintenance allowance order which shall merge in final judgment, rather a final judgment has been delivered without undertaking any such enquiry as is envisaged in Section 17-A(4). This is fatal, crucial and of the essence when viewed in the context of what follows in the narrative ahead and quite erroneous and bad in law in view of the judgments of the Superior Judiciary.

5. While the learned Judge Family Court has discarded the plea of desertion taken up by respondent No. 2, Ambreen Aslam, while deciding the question of general maintenance (paragraph No. 9 of the impugned judgment refers), the learned Judge Family Court has conspicuously Courted and relied on the same plea by treating it as true and correct while awarding the relatively unique breast feeding maintenance allowance.

6. The above should not be understood to mean that such breast feeding maintenance allowance cannot be granted but the impugned judgment in so far as it adopts different strokes for the purpose of appreciating and evaluating the same piece of evidence while deciding two issues (Issue No. 1 and Issue No. 2-A), comes across as an oxymoron, irreconcilable and, therefore, erroneous.

14. Here we must stop to appreciate that breast feeding maintenance allowance is recognized jurisprudentially. Such allowance is recognized as being in line with the welfare of the child and it has been held that if a mother is not awarded such an allowance the sustenance of the child may suffer. Judgments reported as “Muhammad Aslam v. Muhammad Usman and others” (2004 CLC 473), “Captain sm. Aslam v. Mst. Rubi Akhtar” (1996 CLC 1) and “Naveed Ahmed v. Mst. Mehwish Riaz and others” (2019 CLC 511) clearly recognize, acknowledge and allow such breast feeding maintenance allowance to be awarded and which judgments clearly acknowledge such breast feeding maintenance allowance as legally, morally and religiously correct.

1. In “Naveed Ahmed v. Mst. Mehwish Riaz and others” (2019 CLC 511), a learned Single Bench of this Court at paragraph No. 5 has held as follows:

“5. Almighty Allah through various verses of the Holy Qur'an has laid down the basic rules on which the rights of the child are based, in the above-noted circumstances. The English translation as well as commentary of Ayat No. 233 of Surah Baqara by Mr. Abdullah Yusuf Ali in Volume-I (Two-Volume Edition - 1977) at page 93 is reproduced as follows:-

Translation:

"The mothers shall give suck to their offspring for two whole years, if the father desires, to complete the term. But he shall bear the cost of their food and clothing on equitable terms. No soul shall have a burden laid on it greater than it can bear. No mother shall be treated unfairly on account of her child, nor father on account of his child. An heir shall be chargeable in the same way if they both decide on weaning, by mutual consent, and after due consultation, there is no blame on them. If ye decide on a foster - mother for your offspring, there is no blame on you, provided ye pay (the mother) what ye offered, on equitable terms. But fear Allah and know that Allah sees well what ye do."

Commentary:

"As this comes in the midst of the regulations on divorce, it applies primarily to cases of divorce, where some definite rule is necessary, as the father and mother would not, on account of the divorce, probably be on good terms, and the interests of the children must be safeguarded. As, however, the wording is perfectly general, it has been held that the principle applies equally to the father and mother in wedlock : each must fulfill his or her part in the fostering of the child. On the other hand, it is provided that the child shall not be used as an excuse for driving a hard bargain on either side. By mutual consent they can agree to some course that is reasonable and equitable, both as regards the period before weaning (the maximum being two years) and the engagement of a wet-nurse or (by analogy) for artificial feeding. But the mother's privileges must not be curtailed simply because by mutual consent she does not nurse the baby. In a matter of this kind the ultimate appeal must be to godliness, for all legal remedies are imperfect and may be misused."

The English translation as well as commentary of Ayat No. 6 of Surah Talaq by Mr. Abdullah Yusuf Ali in Volume-III at pages 1564 and 1565 (Three- Volume Edition - 1969) is reproduced as follows:-

Translation:

"Let the women live (In 'iddat,) in the same style as ye live, according to your means : Annoy them not, so as to restrict them.5516 And if they carry (life in their wombs), then 5517 spend (your substance) on them until they deliver their burden : and if they suckle your (offspring), give them their recompense : and take mutual counsel together, according to what is just and reasonable. And if ye find yourselves5518 in difficulties, let another woman suckle (the child) on the (father's) behalf.5519"

Commentary:

"5517. If there is pregnancy, a sacred third life comes on the scene, for which there is added responsibility (perhaps added hope of reconciliation) for both parents. In any case no separation is possible until after the child is born. Even after birth, if no reconciliation between parents is possible, yet for the nursing of the child and for its welfare the care of the mother remains the duty of the father, and there must be mutual counsel between him and the mother in all truth and sincerity.

1. "If ye find yourselves in difficulties": e.g., if the mother's milk fails, or if her health fails, or if any circumstance arises which bars the natural course of the mother nursing her own child. There may be psychological difficulties also.

2. That is, the father must stand all expenses, without cutting down the reasonable allowance to which the mother is entitled in the circumstances."

The above clearly shows that even the foster mother is to be paid for her services. The right of such a child is so intertwined with the mother that it is imperative for the mother to be duly supported, provided for and properly looked after for the period she feeds the child.

1. In “Muhammad Aslam v. Muhammad Usman and others” (2004 CLC 473), it has been held at Paragraph No. 8 as follows:

| | | --- | | | | | Description: Lahore Arabic |

ترجمہ: اور بچے والی عورتیں دودھ پلاویں اپنے بچوں کو دو برس پورے جو کئی چاہے کہ پوری کرے دودھ کی مدت اور لڑکے والے یعنی باپ پر ہے کھانا اور کپڑا ان عورتوں کا موافق دستور کے تکلیف نہیں دی جاتی کسی کو مگر اس کی گنجائش کے موافق نہ نقصان دیا جائے ماں کو ان کے بچہ کی وجہ سے اور نہ اس کو جس کا وہ بچہ ہے یعنی باپ کو اس کے بچہ کی وجہ سے اور وارثوں پر بھی یہی لازم ہے۔

1. Learned counsel for the petitioner upon being confronted with the state of law in this respect submits that there are no reasons cited in the judgment about the capacity of the petitioner in paying such an allowance and that the trial Court ought to have employed Section 17-A(4) for the purpose of gauging the financial health of the petitioner before passing the judgment under challenge. Adds that even if breast feeding maintenance allowance had to be awarded the trial Court could only have ordered such breast feeding maintenance allowance after gauging and determining the financial position of the petitioner and not otherwise.

18. What the counsel for the petitioner submits is legally unarguable and draws strength from the following judgments:

1. In “Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others” (PLD 2009 SC 760), it has been held at Page-766 at paragraph No. 9 as follows:

“The minors are entitled to be maintained by the father in the manner befitting the status and financial condition of the father and for this reason the Family Court is under an obligation while granting the maintenance allowance, to keep in mind the financial condition and status of the father. It has to make an inquiry in this regard. It cannot act arbitrarily or whimsically. Furthermore, at the same time, the unjust enrichment of the minors cannot be perm itted at the cost of the father.”

1. In “Muhammad Asim and others v. Mst. Samro Begum and others” (PLD 2018 SC 819), it has been held at Paragraph No. 6 that, “where a husband is required to maintain his wife or child the Judge Family Court should try to ascertain the salary and earning of the husband who is required to pay maintenance.”

2. In “Khalid Mahmood v. Naseem Akhtar and others” (2019 MLD 820) it has lucidly been observed at Paragraph No. 6 as follows:

“A discreet study of both judgments passed by learned Courts below reveals that they have not discussed any document on the basis of which they determined the financial status of Petitioner for fixation of the quantum of maintenance for minor respondents. It was paramount duty of learned Family Court as enshrined above to keep in mind the financial status of the Petitioner/husband before fixing quantum of maintenance. The financial status and resources of father/Petitioner and his capacity to pay could only be ascertained through summoning of documentary evidence from the concerned organization, body or authority where he is employed. Both Courts below had miserably failed to do so.”

1. In “Nazia Bibi and others v. Additional District Judge, Ferozewala and others” (PLD 2018 Lahore 916), it has been held with respect to gauging of quantum of maintenance as follows, “at the same time the Court must determine the income of the father either through proper documentary evidence or on the basis of social status and earning capacity of the father.” It has been further held at paragraph No. 10 as follows:

“10. In this regard, it is noted that Section 17(A) of the West Pakistan Family Courts Act, 1964 specifically provides in subsection (4) that for the purposes of fixing maintenance, the Court may summon the relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant. The purpose of this provision is to facilitate the Court to determine the financial position of the father. The Court therefore is not dependent on documents or information provided by the father and can call for relevant documents or information be it from the relevant department or organization or as the case requires, in order to determine the income of the father. In "Khadeeja Bibi and others v. Abdul Raheem and others" (2012 SCMR 671) the august Supreme Court of Pakistan held that even on the question of determining the annual increase in maintenance in the absence of any evidence on the point of annual increase the Court should refrain from imposing such annual increase in the payment of maintenance to the minor, which is not in co-relation to the income of the father and the capacity of the father with respect to income. Therefore where the Court is required to look into the future need of the minor that too must be done on the basis of reasonable and likely increase that can be made based on age, needs and on the maintenance that is being fixed for the present day.”

1. In “Muhammad Shakir v. Additional District Judge, Islamabad-West and 5 others” (2021 CLC 809), it has been held by the Islamabad High Court at paragraph No. 22 as follows:

“22. The sequel of above discussion is that while fixing maintenance, both the learned Courts have overlooked the important aspects highlighted in para-14 (supra), which are essential to determine the financial capability of the father vis - -vis independent source of income of the Respondent No. 3/mother. It was incumbent upon the Courts to determine the income of the father for which recourse in terms of subsection (4) of Section 17(A) of the West Pakistan Family Courts Act, 1964 can be adopted which is meant to facilitate the Court to determine the financial position of the father.”

24. As is evident from a perusal of precedent cases on the subject, the approach of learned Judge Family Court is not correct and, therefore, needs to be corrected in constitutional jurisdiction of this Court.

25. As a sequel to what has been discussed and noted above, judgment dated 19.11.2021 passed by a Judge Family Court is set aside only to the extent of awarding breast feeding maintenance allowance while the grant of maintenance in general as also the grant of delivery expenses is kept intact since the petitioner has not laid a challenge to these two areas. The learned Judge Family Court shall, after employing the provisions of Section 17-A(4) of the Family Courts Act, 1964 and after determining the financial status of the petitioner, decide the question and quantum of breast feeding maintenance allowance. For the said purpose, the parties are directed to appear before learned Judge Family Court on 01.2.2022.

1. Allowed in the above terms.

(J.K.) Petition allowed

PLJ 2022 Lahore 194

Present: Shams Mehmood Mirza, J.

Mst. SHAISTA AKRAM through Attorney--Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY through Director General, Lahore and others--Respondents

W.P. No. 72520 of 2019, decided on 10.11.2021.

Constitution of Pakistan, 1973--

----Art. 199--Allotment of exempted plots--Allotment of alternate plot--Issuance of allotment letter--No right over Plot No. 865--Allotment of suit plot to different persons--Plot No. 865 has already been transferred thrice in name of different persons--It is not possible for High Court to direct respondents to allot Plot No. 865 to petitioner--By virtue of clause 6 of Allocation letter petitioner even otherwise had no right over said plot--Petition dismissed. [P. 195] A

Mr. Muhammad Qamar-uz-Zaman, Advocate for Petitioner.

Shahibzada Muzafar Ali, Advocate for Respondents/LDA.

Date of hearing: 10.11.2021.

Order

This writ petition is filed to challenge letters dated 30.07.2018 and 22.10.2019 issued by Lahore Development Authority.

1. It is the case of the petitioner that she was allotted two exempted plots by the respondents i.e. Plot No. 865 and Plot No. 866. It is stated that allotment letter in respect of Plot No. 866 was issued to the petitioner whereas the respondents instead of Plot No. 865 allotted Plot No. 404, Block K, M.A. Johar Town Scheme, Lahore vide letter dated 22.10.2019.

2. Learned counsel for LDA submits that Plot No. 865, Block-Q was inadvertently allotted to a third party which plot has since been transferred three times to different persons. He submits that an alternate plot (No. 404) was accordingly allotted to the petitioner. He has also referred to clause 6 of allocation letter dated 31.07.1998 according to which the allocation of Plot No. 865 was tentative allocation which would not confer any right of exemption till such time the exemption letter is issued and possession of the plot is delivered to the petitioner. It was accordingly contended that the petitioner had no right over Plot No. 865.

4. The petitioner has already been allotted Plot No. 404 in lieu of Plot No. 865 by the respondents. Plot No. 865 has already been transferred thrice in the name of different persons. It is, therefore, not possible for this Court to direct the respondents to allot Plot No. 865 to the petitioner. By virtue of clause 6 of Allocation letter dated 31.07.1998, the petitioner even otherwise had no right over the said plot.

1. This writ petition being devoid of any merit is accordingly dismissed.

(JK) Petition dismissed

PLJ 2022 Lahore 195 [Multan Bench, Multan]

Present: Ch. Muhammad Iqbal, J.

MUHAMMAD HANIF--Appellant

versus

MUHAMMAD YOUSAF--Respondents

R.F.A. No. 62 of 2009, decided on 2.3.2021.

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

----O.XXXVII Rr. 1 & 2--Suit for recovery--Dishonouring of cheque--Issuance of dishonour slip by bank--Admission of cheque and signatures by appellant--Non-producing of evidence regarding fraud--No FIR was registered regarding misplacing of cheque--Invalid tendering of invalid documentary evidence--Challenge to--Appellant admitted cheque in question pertaining to his cheque book bearing Account No. 1404-4 of National Bank of Pakistan and also admitted signatures on said cheque--Defensive assertion of appellant regarding fraud remained unproved as he has neither produced any evidence in respect of fraud nor lodged an application or got registered an FIR regarding his misplaced cheque before Police Station--Appellant has failed to prove his case through convincing, concrete and trustworthy evidence--Appellant got produced his entire documentary evidence in statement of his counsel which is an invalid tender of documentary evidence and cannot be taken into consideration as law requires that such documentary evidence should be produced by party itself--Counsel for appellant has not been able to point out any illegality or material irregularity, misreading and non-reading of evidence in impugned judgment & decree passed by trial Court and has also not identified any jurisdictional defect--Appeal dismissed.

[P. 199] A, B, D & E

Negotiable Instruments Act, 1881 (XXVI of 1881)--

----S. 118--Legal presumption--Obligation of--A strong legal presumption is attached to issuance of negotiable instrument against consideration and appellant was placed under heavier obligation to dislodge above presumption by producing extraordinary trustworthy corroborative evidence. [P. 199] C

2020 SCMR 1621 ref.

Mr. Muhammad Faisal Bashir Chaudhary, Advocate for Appellant.

Mr. Muhammad Asghar Shad, Advocate for Respondent.

Date of hearing: 2.3.2021.

Order

Through this Regular First Appeal, the appellant has challenged the legality of judgment and decree dated 28.03.2009 passed by the learned Addl. District Judge, Vehari who decreed the suit for recovery of Rs. 13,35,000/- under Order XXXVII Rules 1 & 2, CPC filed by the respondent.

1. Brief facts of the case are that the respondent/plaintiff filed suit for recovery of Rs. 13,35,000/-on the basis of dishonoured Cheque No. 133282 dated 25.07.2005 of Account No. 1404-4 against the appellant/defendant contending therein that the appellant borrowed an amount of Rs. 13,35,000/- on 11.05.2005 in the presence of witnesses and promised to pay the same very soon and in this respect he issued cheque dated 25.07.2005. Appellant appeared and filed petition for leave to appear and defend the suit which was accepted vide order dated 18.10.2005; subject to furnishing of surety bonds equivalent to the suit amount whereafter the appellant filed written statement and raised preliminary objections stating that disputed cheque is fake, fictitious, without consideration and based on fraud rather the same is stolen. Issues were framed and evidence was recorded. The learned trial Court vide judgment and decree dated 28.03.2009 decreed the suit for recovery of the respondent. Hence, this appeal.

2. I have heard the learned counsels for the parties at some length and gone through the record with their able assistance.

3. The main controversy centered in Issue Nos.1 & 6 which are reproduced as under:

"i. Whether the Cheque of Rs. 13,35,000/- is forged, fictitious and result of fraud, and without consideration? OPD

vi. Whether the plaintiff is entitled to recover a sum of Rs. 13,35,000/- on the basis of Cheque dated 25.07.2005 from the defendant? OPP"

Nazir Ahmad Officer Grade-III, National Bank of Pakistan appeared as PW-1 who stated that he brought with record of Account No. 1404-4 which belongs to Muhammad Hanif; that Cheque (Exh.P-1) belongs to Account of Muhammad Hanif which was issued from his cheque book. The said cheque (Exh.P-1) came to their branch from National Bank of Pakistan Chak No. 100/WB Garah Mor Branch for encashment which was referred to drawer due to insufficient fund, after issuing memo. slip (Exh.P-2). Muhammad Riaz (PW-2) states that on 11.05.2005 he went to Garah Mor for some work/purpose whereafter he went to the commission shop of Muhammad Yousaf where Haji Muhammad Yousaf, Muhammad Sadiq and one other person he did not know to him and their clerk (Munshi) were sitting there; Muhammad Hanif borrowed Rs. 13,50,000/- from Muhammad Yousaf on promise that he would return the said amount before starting his business; Muhammad Yousaf gave Rs. 13,35,000/- to Muhammad Hanif from his safe, and in lieu thereof Muhammad Hanif issued Cheque Exh.P-1 dated 25.07.2005. In cross-examination, he deposed as under:

میں نے مدعی سے مذاقا "پوچھا کہ آپ نے اس کو اتنی بڑی رقم دے دی ہے یہ تقریبا 11½بجے کا وقت تھا جب مدعی نے مدعا علیہ کو رقم دی۔

Further stated that Muhammad Sadiq was sitting there before his coming; that Muhammad Hanif put his signatures on the said cheque and handed over the same to the plaintiff. Muhammad Younas PW-3 also supported the version of the plaintiff by stating that Muhammad Hanif received the money in his presence and issued cheque. In cross- examination he deposed as under:

محمد حنیف نے مدعی سے صرف رقم کے لین دین کے بارے میں پوچھا۔ اس کے علاوہ اور کوئی بات نہ ہوئی تھی۔ البتہ محمد یوسف نے کہا تھا کہ رقم کب واپس کرو گے تو حنیف نے کہا کہ تمہارا سیزن شروع ہونے سے قبل تمہاری رقم لوٹا دوں گا۔

Muhammad Yousaf (plaintiff) himself has appeared as PW-4 who states that he is running a business of commission shop and Muhammad Hanif borrowed from him an amount of Rs. 13,35,000/- in the presence of witnesses and made promise to return the said amount before starting his business season and in respect of said borrowed amount, he issued cheque which was dishonoured on its presentation and the bank issued dishonor slip in this regard as well. Lengthy cross examination was conducted but the stance of the plaintiff could not be shattered.

Conversely, Muhammad Hanif has appeared as DW-1 who did not deny his signature on the cheque and only took a stance that fraud has been committed with him but in this regard, no evidence was produced. Abdul Jabbar appeared as DW-2 who stated that he was serving with the plaintiff as Munshi from 07.09.2005 to 26.02.2006 and during that period no meeting was convened between the parties and no transaction was also happened and on 11.05.2005 appellant/ defendant neither came at the commission shop of the plaintiff nor borrowed the money nor issued any cheque to the plaintiff. Muhammad Yasin has appeared as DW-3 who stated that defendant never borrowed money as stated by the plaintiff nor he issued any cheque, as such, dispute cheque is fake, fictitious and without consideration and this fact was admitted by the plaintiff before him at his commission shop. Haji Muhammad Ismail appeared as DW-4, who almost narrated the same story.

1. From the perusal of oral as well as documentary evidence, it reveals that the appellant admitted the cheque in question pertaining

to his cheque book bearing Account No. 1404-4 of National Bank of Pakistan and also admitted the signatures on the said cheque but has only pleaded that fraud has been committed without furnishing any comprehensive meticulous information of fraud, misrepresentation as per requirements of Order VI Rule 4, CPC whereas the defensive assertion of the appellant regarding fraud remained unproved as he has neither produced any evidence in respect of fraud nor lodged an application or got registered an FIR. regarding his misplaced cheque before the Police Station. The appellant has failed to prove his case through convincing, concrete and trustworthy evidence.

6. Even otherwise, under Section 118 of the Negotiable Instruments Act a strong legal presumption is attached to issuance of negotiable instrument (cheque) against consideration and the appellant was placed under heavier obligation to dislodge the above presumption by producing extraordinary trustworthy corroborative evidence. Reliance in this regard is placed on the case titled as Najaf Iqbal vs. Shahzad Rafique (2020 SCMR 1621). Moreover the appellate got produced his entire documentary evidence in the statement of his learned counsel which is an invalid tender of the documentary evidence and cannot be taken into consideration as the law requires that such documentary evidence should be produced by the party itself. The learned trial Court rightly passed the impugned judgment and decree which do not suffer from any illegality, irregularity and perversity.

7. Learned counsel for the appellant has not been able to point out any illegality or material irregularity, misreading and non-reading of evidence in the impugned judgment & decree passed by the learned trial Court and has also not identified any jurisdictional defect.

1. In view of above, this appeal is hereby dismissed being devoid of any merits. No order as to costs.

(Y.A.) Appeal dismissed

PLJ 2022 Lahore 199 (DB) [Rawalpindi Bench Rawalpindi]

Present:Ch. Muhammad Masood Jahangir and Jawad Hassan, JJ.

BAHRIA TOWN PRIVATE LIMITED--Petitioner

versus

DISTRICT CONSUMER COURT and others--Respondents

W.P. No. 3642 of 2019, decided on 12.1.2022.

Punjab Consumer Protection Act, 2005 (II of 2005)--

----Ss. 25 & 35--Civil Procedure Code, (V of 1908), O.VII R. 11--Filing of complaint before consumer Court--Application for rejection of complaint--Dismissed--Purchasing of plots--Non-delivery of possession--Rights and liabilities of parties--Non-fulfillment of contractual obligations--Jurisdiction of consumer Court--Challenge to--Case in hand purely relates to rights and liabilities of parties out of purchase of plots in lieu of consideration shaping up under a contract as well as non-fulfillment of contractual obligation and not of ‘services’--Petitioner by no means, could have approached Consumer Court for performance of contractual obligation stressing upon question of ‘services’ without establishing that he is a consumer having purchased a product which is defective or faulty or hired any service from service provider--Present case was a case of breach of terms and conditions of contract regarding sale/purchase of immoveable land and Consumer Court had no jurisdiction to entertain and decide such claims--Petition accepted.

[P. 205] A, B & C

Mr. Muhammad Ilyas Sheikh, ASC for Petitioner.

Raja Muhammad Tariq Khan, Advocate for Respondents.

Date of hearing: 12.01.2022.

Judgment

“If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. Legal process is an essential part of the democratic process”.

Justice Felix Frankfurter, Judge of US Supreme Court (United States v. United Mine Workers, 330 U.S. 258)

Jawad Hassan, J.--This petition was filed on 10.12.2019 by the Petitioner challenging order dated 06.07.2019 (the “impugned order”) passed by the Respondent No. 1/District Consumer Court, Rawalpindi (the “Consumer Court”) whereby application filed under Section 35 of the Punjab Consumer Protection Act, 2005 (the “Act”) read with Order VII Rule 11 and Section 151, CPC filed by the Petitioner was dismissed. During pendency of this petition, learned counsel for the Petitioner had relied on the judgments cited as “Yasir Chaudhry versus Faisalabad Development Authority through its Director General and another” (PLD 2021 Lahore 713) and “Muhammad Ameer Qazi versus Muhammad Asif Ali and others” (PLD 2015 Lahore 235) but due to contradictory views, the Court then referred the matter for constitution of Larger Bench, hence it is being heard by this Bench.

A. BRIEF FACTS

1. The Petitioner is a housing society and running its business under the name and style of Bahria Town (Pvt.) Limited (the “Society”). The Respondent No. 2 purchased plots from the Society and when possession of plots was not delivered, he filed a complaint under Section 25 of the Act before the Consumer Court. In response to aforesaid complaint, the Society filed an application under Section 35 of the Act read with Order VII Rule 11 and Section 151 of CPC on various grounds including maintainability of the complaint as well as jurisdiction of the Consumer Court but instead of returning the complaint to be filed before appropriate forum, the Consumer Court assumed its jurisdiction and passed the impugned order. Hence this petition.

B. PETITIONER’S ARGUMENTS

1. Mr. Muhammad Ilyas Sheikh, ASC inter-alia argues that the claim of the Respondent No. 2 relates to sale/purchase of immoveable property which does not come within the ambit of the Act and also it is not a ‘product’ as defined under Section 2(7) of the Sales of Goods Act, 1930; that the Society is neither a manufacturer nor a service provider in terms of Section 2(k) of the Act hence claim of the Respondent No. 2 was not proceedable before the Consumer Court; that the obligation between the parties are contractual in nature and thus the Consumer Court lacks jurisdiction to entertain the claim of the Respondent No. 2. He has relied on “YASIR CHAUDHRY versus FAISALABAD DEVELOPMENT AUTHORITY through its Director General and another” (PLD 2021 Lahore 713) and “Muhammad Ameer Qazi versus Muhammad Asif Ali and others” (PLD 2015 Lahore 235).

C. RESPONDENTS ARGUMENTS

1. Raja Muhammad Tariq Khan, Advocate argues that the Respondent No. 2 comes within the meaning of a consumer who purchased plots from the Society after making payment and in this respect, clearance certificates were also issued in his favour; that the matter purely relates to providing of service to the consumer of the Society hence the Consumer Court has rightly entertained the claim of the Respondent No. 2. In order to support his contentions, learned counsel has relied on “Defence Housing Authority Islamabad through its Secretary and another versus Malik Khalid Mehmood” (PLJ 2014 Lahore 24).

D. DETERMINATION BY THE COURT

1. From the arguments of learned counsel for the parties, the heart of controversy revolves around the jurisdiction assumed by the Consumer Court through the impugned order with following observation:

“It is concluded that the Defendant No. 1 being the society developer is a service provider and complainant who paid consideration amount to Defendant No. 1 of a developed plot is a consumer and in case of providing defective services to the consumer the consumer can file a complaint before this Court”.

1. Before proceeding further, it is imperative to reproduce the preamble of the Act which reads as:

“Whereas, it is expedient to provide for protection and promotion of the rights and interests of the consumers, speedy redress of consumer complaints and for matters connected therewith”.

1. From perusal of preamble of the Act it is quite obvious that the purpose and object of the Act provides for protection and promotion of the rights and interests of the consumers facing risks and failures in the yards of their desired necessities and demands. The Preamble of the Act aimed at safeguarding and promoting rights and interests of consumers by affording a medium and platform for redressal of their grievance in a speedy manner without loss of time. The preamble to a statute is though not an operational part of the enactment but it is a gateway to open before us the purpose and intent of the legislature necessitating the legislation on the subject and also sheds clear light on the goals which the legislator aimed to secure through the introduction of such law. The preamble of a statute, therefore holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law. The August Supreme Court of Pakistan in “Director General, FIA and others versus Kamran Iqbal and others” (2016 SCMR 447) laid down the similar principle by holding that:

“indeed, preamble to a Statute is not an operative part thereof, however, as is now well laid down that the same provides a useful guide for discovering the purpose and intention of the legislature. Reliance in this regard may be placed on, the case of Murree Brewery Company Limited v. Pakistan through the Secretary of Government of Pakistan and others (PLD 1972 SC 279). It is equally well-established principle that while interpreting a, Statute a purposive approach should be adopted in accord with the objective of the Statute and not in derogation to the same.”.

1. In order to bring the case within the ambit of the Consumer Court, the Respondent No. 2 must have to fulfil the requirement of a ‘consumer’ as defined under Section 2(c) of the Act which reads as:

(c) “consumer” means a person or entity who--

(i) buys or obtains on lease any product for a consideration and includes any user of such product but does not include a person who obtains any product for resale or for any commercial purpose; or

(ii) hires any services for a consideration and includes any beneficiary of such services;

Explanation:- For the purpose of sub-clause (i), “commercial purpose” does not include use by a consumer of products bought and used by him only for the purpose of his livelihood as a self-employed person”.

(Underline for emphasis)

1. Bare reading of above said provision of law reveals that clause (i) of sub-section 2(c) of the Act deals with the ‘product’ which is defined under Section 2(j) of the Act and has been given synonymous status of the term ‘goods’ under the Sale of Goods Act, 1930. While clause (ii) of Sub-section 2(c) of the Act states about ‘services’ which is defined under Section 2(k) of the Act. It is important to reproduce the said section which reads as under:

“services” includes the provision of any kind of facilities or advice or assistance such as provision of medical, legal or engineering services but does not include--

(i) the rendering of any service under a contract of personal service;

(ii) the rendering of non-professional services like astrology or palmistry; or

(iii) a service, the essence of which is to deliver judgment by a Court of law or arbitrator;

1. A glimpse of above said provision of law demonstrates that to bring a claim under Section 25 of the Act before the Consumer Court, a person must qualify to be a ‘consumer’ having been suffered damage due to defective or faulty product hired from a service provider and for this purpose, he has to qualify that he has purchased or obtained on lease any product for a consideration or hired any services for a consideration from service provider. The ‘services’ mentioned under Section 2(k) of the Act includes provision of facilities or advice or assistance of medical, legal or engineering related services but Section 2(k)(i) of the Act specifically put a restriction on a consumer to bring his claim before the Consumer Court if the services relate to a contract of personal nature. It is noted that under Section 2(j) of the Act, the word ‘immovable’ is mentioned but it is clearly restricted to ‘product’. Importantly, it would be advantageous to reproduce the prayer made by the Respondent No. 2 before the Respondent No. 1 which reads as under:

“In these circumstances, it is, therefore, respectfully prayed that instant complaint may kindly be accepted and respondents may be directed to deliver the possession of the two plots bearing No. 21-A, 21-B measuring 50x90 each Street No. 5, Zone VII, Category General, situated at Bahria Tow Garden City, Islamabad (Adjacent to each other) to the complainant and also pay damages Rs. 10 Crore to the complainant as the complainant suffered mental torture, agony, loss of money, wastage of precious time due to the acts on the part of the respondents, in the interest of justice”.

1. The above said prayer made by the Respondent No. 2 does not relate to damages suffered rather he is aggrieved by action of the Society for not delivering the possession of plots which he had purchased from it. It is pertinent to mention here that a claim by a consumer with regard to damages is to be filed under Section 25 of the Act while Section 28 of the Act which starts with words ‘who has suffered damages’. A combined reading of both abovesaid provisions makes it clear that a claim for damages can only be filed by a consumer when the products hired from a service provider for consideration are defective or faulty and the conduct of manufacture for rectifying such defects or faults caused mental torture, loss of money and wastage of time. It is not disputed that the Respondent No. 2 purchased plots from the Society on 06.04.2015 and paid certain payments as is evident from the complaint filed before the Consumer Court and controversy arose when the Society refused to deliver their possession due to non- payment of possession charges. Pertinently, the purchasing of plots by the Respondent No. 2 from the Petitioner can neither be termed as ‘product’ as defined under Section 2(j) of the Act nor can be termed as

‘services’ as per section 2(c)(ii) of the Act. A joint analysis of Section 2(j) of the Act and Section 2(7) of the Sales of Goods Act, 1930 makes it abundantly clear that ‘land’ cannot be termed as a ‘product’. Therefore, the case in hand purely relates to rights and liabilities of the parties out of sale/purchase of plots in lieu of consideration shaping up under a contract as well as non-fulfillment of contractual obligation and not of the ‘services’ as mentioned under Section 2(k) of the Act for which the Respondent No. 2 had to approach Civil Court of competent jurisdiction under the Specific Relief Act and he, by no means, could have approached the Consumer Court for performance of contractual obligation stressing upon the question of ‘services’ without establishing that he is a consumer having purchased a product which is defective or faulty or hired any service from service provider.

1. In view of above situation, it is crystal clear that the present is a case of breach of terms and conditions of contract regarding sale/purchase of immoveable land and the Consumer Court had no jurisdiction to entertain and decide such claims. Therefore, this writ petition is accepted and while allowing the application filed by the Petitioner under Section 35 of the Act read with Order VII Rule 11, CPC, the complaint filed by the Respondent No. 2 before the Consumer Court stands rejected. However, the Respondent No. 2, if so desires, can approach the Court of competent jurisdiction for redressal of his grievance.

(Y.A.) Petition accepted

PLJ 2022 Lahore 205 [Multan Bench Multan]

Present: Sohail Nasir, J.

ZAFAR IQBAL--Petitioner

versus

MUDASSIR SHAFI--Respondent

C.R. No. 223 of 2021, decided on 27.9.2021.

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

----O.XXXVII--Certified copies of documents available on file that on same, day when impugned order was passed, petitioner had submitted an application that he wanted to file surety bonds but it appears that same was not considered in his favour--Fact remains that law appreciates decision on merits instead of technical knockout--When leave to appear and defend suit was allowed, trial Court was not supposed to pass harsh order while forfeiting right of petitioner to file written statement due to non-submission of surety bonds and for that Court had ample powers to extend said period.

[P. 206] A

Mr. Abid Hussain Shah, Advocate for Petitioner.

Date of hearing: 27.9.2021.

Order

In a suit under Order XXXVII, C.P.C. filed by Mudassir Shafi/respondent, leave to appear and defend the suit filed by Zafar Iqbal (petitioner) was allowed subject to deposit of surety bonds. It was on 03.02.2021, the case was fixed for submission of written statement by petitioner, when that right was forfeited on the ground that petitioner had not submitted the surety bonds vide an order dated 03.02.2021 passed by learned Additional District Judge, Kabirwala District Khanewal which has been impugned through this Civil Revision.

1. No one has appeared on behalf of respondent despite service hence proceeded ex-parte.

2. HEARD.

4. It is evident from certified copies of documents available on file that on the same, day when impugned order was passed, petitioner had submitted an application that he wanted to file the surety bonds but it appears that same was not considered in his favour. The fact remains that law appreciates decision on merits instead of technical knockout. Particularly in the case in hand when leave to appear and defend the suit was allowed, the learned trial Court was not supposed to pass harsh order while forfeiting the right of petitioner to file written statement due to non-submission of surety bonds and for that Court had ample powers to extend the said period.

1. Resultantly this Civil Revision is allowed. Impugned order dated 03.02.2021 passed by the learned Additional District Judge, Kabirwala is set-aside. The learned trial Court is directed to provide one but final opportunity to petitioner to submit written statement as well as surety bonds.

(Y.A.) Revision petition allowed

PLJ 2022 Lahore 207 (DB)

Present: Mrs. Ayesha A. Malik and Shams Mehmood Mirza, JJ.

DAVID DIWAN MASIH etc.--Appellants

versus

NATIONAL BANK OF PAKISTAN and others--Respondents

EFA No. 1017 of 2014, decided on 7.10.2021.

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

----O.XXI Rr. 58 R.W S. 151--Financial Institutions Recovery Finances) Ordinance, 2001, Ss. 9, 22--Objection application--Dismissed--Finance facility--Default in payment--Suit for recovery was decreed--Execution application--Order for attachment of mortgaged property--Demarcation report of property--Report of tehsildar--Non-appearance of tehsildar in witness box--Opportunity of producing of evidence was not provided--Wrongly framing of issues--Challenge to--Order passed by banking Court is not sustainable for reason that it relied solely on report of Tehsildar whereas he never appeared in witness box--Application filed by appellants, only they were allowed to produce one witness by banking Court--This order was a material irregularity on part of banking Court as respondent bank ought to be given opportunity to produce evidence--Issues were also wrongly framed by banking Court--Banking Court also wrongly concluded that appellants were required to approach civil Court for determination of their objections--Appeal allowed. [Pp. 209 & 210] A, B, C & D

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

----S. 47--Power of executing Court--Executing Court under Section 47, CPC has necessary powers to adjudicate upon all questions for execution, discharge and satisfaction of decree without putting parties to trouble of filing a separate suit. [P. 210] E

M/s. Tariq Masood and Hassan Tariq, Advocate for Appellant.

Mr. Kamran Babar, Advocate for Respondent/bank.

Date of hearing: 7.10.2021.

Order

This appeal is filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) to lay a challenge to order dated 30.05.2014 passed by the banking Court in dismissing the application filed by the appellants objecting to the attachment of his property.

1. The relevant facts for determination of the controversy in this appeal may be stated as under. Respondent No. 2 being an employee of the respondent bank availed a finance facility and as security for repayment of the finance mortgaged his property measuring 1 Kanal 70 Sq. feet falling in Khasra Nos.3128 and 3129 purchased through sale deed 25.05.1989. In consequence of his default in repayment of the finance, the respondent bank filed recovery suit against him in which a decree was passed on 14.03.2001. The respondent bank filed the execution application and got the mortgaged property attached on 26.09.2001. The appellants filed an objection application before the banking Court on 07.11.2001 claiming to be owner of land measuring 5 Maria purchased through sale deed dated 29.09.1997 from Respondent No. 2. It was averred that land measuring 5 Marla was a different property having no nexus with land measuring 1 Kanal 70 Sq. feet mortgaged with the respondent bank. A reply was filed by the respondent bank to the objection application stating that the 5 Marla plot under the occupation of the appellants was part of the mortgaged property.

2. The banking Court on 12.07.2002 farmed the following issues:

1) Whether the objectors are bona fide purchasers to the extent of 5-Marlas of the mortgaged property of the judgment debtor. If so, since what date with what effect?

2) Whether the objectors have come to this Court with unclean hands and are in collusion with the judgment debtor?

3) Relief.

1. Appellant No. 1 entered the witness box as OW-1 on 24.09.2003 and tendered in evidence the sale deed in his favour as Exh.OW. 1 when he was cross-examined by the respondent bank. The banking Court on 24.09.2003 passed the order that the right of the respondent to lead evidence had already been closed on 10.09.2002 and accordingly fixed the case for arguments on the objection application of the appellants.

2. The record reflects that the respondent bank on 26.02.2005 stated before the banking Court that it has approached the revenue authorities for demarcation of the property in dispute whereupon the matter lingered on for quite some time. During the course of arguments on the objection application, the banking Court on 20.06.2009 at the request of both the parties directed the concerned Tehsildar to submit a report of demarcation in respect of the properties comprised in the two sale deeds. The report, was submitted on 14.07.2011 before the banking Court. The appellants thereafter filed their objections on the report of the Tehsildar and reply thereto was also submitted by the respondent bank.

3. The banking Court through order dated 30.05.2014 (impugned herein) rendered its findings on Issue No. 1 against the appellants by placing reliance on the report of the Tehsildar which, Reported that Respondent No. 1 sold portions from his property mortgaged with the respondent bank to various persons including the appellants. It was accordingly held by the banking Court that the ".... decree holder bank has every right to get the mortgaged property auctioned for realization of decretal amount." Having arrived at this conclusion, the banking Court paradoxically stated as under:

The objectors should seek proper remedy against the judgment debtor from competent forum Under the law, a summary procedure is adopted by Banking Court for determination of objections and claims of the parties. Whether the piece of 5-Marla land purchased by the objectors is different from the mortgaged property is a complicated question and Civil Court would be the ultimate and competent forum for its determination. Therefore, it cannot be held that objectors are bona fide purchasers as they failed to take the proper care and caution in purchasing the property from the judgment debtor at relevant time. Hence this issue is decided accordingly against the objectors.

7. The order passed by the banking Court is not sustainable for the reason that it relied solely on the report of Tehsildar whereas he never appeared in the witness box. The said report was thus not proved in accordance with law. The banking Court also failed to consider that the respondent bank did not tender any evidence, oral or documentary to rebut the evidence of the appellants. The order sheet shows that the banking Court on 10.09.2002 framed the issues without fixing the onus to proof thereon and adjourned the case for evidence of the parties to 10.09.2002. On the basis of the allegations leveled in the objection petition, the appellants being the objectors were required to initiate the evidence. Be that as it may, the banking Court on the adjourned date of hearing i.e. 10.09.2002 closed the right of the parties to produce evidence. On an application filed by the appellants, only they were allowed to produce one witness by the banking Court on 09.01.2003. This order was a material irregularity on the part of the banking Court as the respondent bank ought to be given opportunity to produce evidence. It may be pointed out that the respondent bank has now filed an application bearing CM. No. 1-C of 2020 before us under Order XLI Rule 27, CPC for producing additional evidence in shape of certified copies of sale deed registered on 31.05.1989 in respect of land measuring 1 Kanal 70 Sq. feet in favour of Respondent No. 2 and mortgage deed registered on 16.03.1995.

8. The issues were also wrongly framed by the banking Court. The precise allegation of the appellants was that their plot of 5 Marla was not part of the mortgaged property whereas the respondent bank asserted that it was so. On this disputed question of fact, the banking Court did not frame any issue. It was not the case of the appellants that they were bona fide purchasers for valuable consideration without notice of the mortgage charge of the respondent bank. Such an allegation would imply that the appellants do not deny that the land under their occupation is part of the mortgaged property. Had this been the case, the respondent bank would only be required to prove the registration of the mortgage deed in its favour to repel the stance of the appellants. The banking Court also wrongly concluded that the appellants were required to approach the civil Court for determination of their objections. The executing Court under Section 47, CPC has the necessary powers to adjudicate upon all questions for the execution, discharge and satisfaction of the decree without putting the parties to the trouble of filing a separate suit.

1. In view of what has been stated above, we allow this appeal and set aside order dated 30.05.2014 with the result that the objection application filed by the appellants shall be deemed to be pending adjudication before the banking Court. The banking Court shall provide an opportunity to the respondent bank to adduce evidence, oral as well as documentary. The banking Court shall also summon the concerned Tehsildar who submitted the report as Court witness. In case, he is not available, the banking Court shall order for a fresh demarcation report from the concerned Tehsildar to be prepared in accordance with the High Court Rules and Orders before proceeding in the matter. We also recast Issue No. 1 as follows:

2. Whether plot measuring 5 Maria purchased by the objectors through sale deed registered on 29.09.1997 forms part of land measuring I Kanal 70 Sq. feet mortgaged with the respondent bank? OP Parties

3. Since it is an old matter, it is expected that the banking Court shall decide the objection application expeditiously within a period of three months from the date of the appearance of the parties. The parties are directed to appear before the banking Court on 02.11.2021.

4. CM. No. 1-C of 2020 stands disposed of.

(Y.A.) Appeal allowed

PLJ 2022 Lahore 211 [Multan Bench, Multan]

Present: Muhammad Shan Gul, J.

MUHAMMAD SAEED AKHTAR--Petitioner

versus

JUSTICE OF PEACE, etc.--Respondents

W.P. No. 17996 of 2021, decided on 17.11.2021.

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

----Ss. 22-A & 22-B--Pakistan Penal Code, (XLV of 1860), S. 489-F--Dishonouring of cheque--Penal and Criminal liability--Perusal of original cheque clearly reveals that it has been signed by deceased father of Respondents No. 4 and 5--Account was in name of deceased father of Respondents No. 4 and 5--Penal or criminal liability does not devolve upon legal heirs--Respondents No. 4 and 5 may have inherited business of their late father and while they may have inherited his estate, it does not mean that they become criminally liable for actions or activities allegedly undertaken by their late father--While a suit for recovery from estate or inheritance may be in order, if at all, an application for registration of a criminal case against Respondents No. 4 and 5 on account of alleged deeds of their father cannot be countenanced--Concept of substitution of accused/convict is alien to criminal jurisprudence--Offences involving common object or common intention apart, a person is only liable for an offence that he commits himself--For any offence committed by an accused who dies, his legal heirs cannot be subjected to rigors of offence since criminal jurisprudence does not recognize devolving of criminal liability.

[Pp. 213, 214, 217 & 218] A, B, D & E

Constitution of Pakistan, 1973--

----Art. 3--Provision of safe Guard--Art. 3 of Constitution of Islamic Republic of Pakistan, 1973 clearly provides safeguards against exploitation and persecution of citizens. [P. 217] C

Rana Muhammad Ibrahim, Advocate for Petitioner.

Malik Shoukat Mahmood Mahra, Asstt. Advocate General for Respondents.

Date of hearing: 17.11.2021.

Judgment

The titled constitutional petition is sought to be decided through this judgment.

1. Facts in brief are that the petitioner filed an application under Sections 22-A & 22-B, Cr.P.C. for registration of a criminal case against Respondents No. 4 and 5 i.e. Chaudhry Ali Zahid and Chaudhry Khizar Zahid sons of Muhammad Zahid Iqbal. The petitioner claimed in his petition that the respondents were known to him and that they had purchased agricultural machinery from him and had issued a cheque Bearing No. 1673569183 dated 03.11.2020 amounting to Rs. 11,00,000/- to be drawn at MCB, Nawan Sher Branch, LMQ Road, Multan but that when the petitioner deposited the cheque in his account the same was dishonoured thrice. That the petitioner approached respondents for payment of his monies but they refused and in this view of the matter an offence in terms of Section 489-F, PPC was attracted to the facts and circumstances of the case.

2. A Justice of Peace requisitioned a police report in which it is clearly mentioned that the account in question at the MCB, Nawan Sher Branch, LMQ Road, Multan was in the name of the deceased father of Respondents No. 4 and 5 i.e. one Muhammad Zahid Iqbal who had passed away in December, 2020 and that the petitioner had admitted this aspect during the course of inquiry. It was also mentioned in the report that Respondents No. 4 and 5 were now managing the business of their late father through an authorized agent and were claiming under him.

3. A Justice of Peace vide order dated 03.7.2021 after clearly noting that the dishonoured cheque was drawn by the late father of Respondents No. 4 and 5 and after observing that there was nothing on record whereby the deceased father of Respondents No. 4 and 5 had personalized the transaction so as to become liable on behalf of the respondents, dismissed the application for registration of case since Respondents No. 4 and 5 had no concern with the alleged transaction and since the petitioner had presented a cheque not drawn by Respondents No. 4 and 5 but by their late father.

4. The petitioner has now filed this constitutional petition praying that the order passed by a Justice of Peace be declared bad in law and a direction be issued to the Station House Officer to register a criminal case against Respondents No. 4 and 5.

5. Notice was issued to the learned Asstt. Advocate General who has also been heard in the matter and, therefore, this case is being decided as a Pacca case.

6. Learned counsel for the petitioner submits that since Respondents No. 4 and 5 inherited the business of their late father, were carrying on the same business and since they were in the know of the alleged transaction between their father and the petitioner a criminal case ought to be ordered against them so that the petitioner was able to recover monies due to him.

7. On the other hand, learned Asstt. Advocate General has seriously objected to this petition and has alluded to the terminology employed in Section 489-F, PPC and has laid great stress on the use of the word 'whoever’ appearing at the start of Section 489-F, PPC and submits on the basis thereof that it is only a person who issues a cheque himself and which is dishonoured who can be held liable for an offence under Section 489-F, PPC and not any other person such as Respondents No. 4 and 5 who have neither issued the cheque in question nor are they the account holders of the account in question.

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

10. At the outset of these proceedings, the Court asked the counsel for the petitioner to share the original cheque with the Court so as for the Court to satisfy itself about the identity of the signatory of the cheque in question. Perusal of the original cheque clearly reveals that it has been signed by the deceased father of Respondents No. 4 and 5 and not by Respondents No. 4 and 5. Furthermore, what is also evident is that the account was in the name of the deceased father of Respondents No. 4 and 5. In this view of the matter, the term 'whoever’ appearing at the start of Section 489-F, PPC gains importance in the present context and it is obvious that unless and until an application for registration of a case is filed against a person who is the account holder and who has himself issued a cheque which has been dishonoured, no criminal liability is attracted.

1. Even more alarming in the present context is the absence of any written agreement between deceased father of Respondents No. 4 and 5 and the petitioner about the alleged transaction or for that matter any undertaking on the part of deceased father of Respondents No. 4 and 5 to own up or pay outstanding debts of Respondents No. 4 and 5. Likewise, the petitioner's false assertions in his application and in the present petition about Respondents No. 4 and 5 having issued the cheque in question also put paid the case of the petitioner. In fact, on this count alone the petitioner's petition merits to be dismissed because the petitioner has lied to the Court and has presented his side of the story in a false manner. What also runs against the petitioner is the fact that he kept quiet for a period of six months after the death of father of Respondents No. 4 and 5 and then sprung a shock on Respondents No. 4 and 5 in June, 2021.

12. It may also be noted that penal or criminal liability does not devolve upon legal heirs. While Respondents No. 4 and 5 may have inherited the business of their late father and while they may have inherited his estate, it does not mean that they become criminally liable for actions or activities allegedly undertaken by their late father. While a suit for recovery from the estate or inheritance may be in order, if at all, an application for registration of a criminal case against Respondents No. 4 and 5 on account of alleged deeds of their father cannot be countenanced.

13. In “Muhammad Abaid Ullah v. Ateeq-ur-Rehman and 8 others” (2015 CLD 307), a learned Single Bench of this Court has clearly alluded to this aspect at paragraphs No. 7, 8, 9 and 10 as follows:

“7. The crucial question to be decided is whether under Order XXXVII, Rule 2, C.P.C., a suit for recovery on the basis of cheque can be filed against the legal heirs of the person who had issued the said cheque. The provisions of Order XXXVII, Rule 2 make it clear that they are specific to the bills of exchange, hundies or promissory notes and that suits thereunder can only be filed against the executants of the aforementioned instruments and not otherwise.

1. It would also be seen that maker of the cheque, Abdul Maalik (deceased) had died before the cheque could be presented for encashment. The said cheque, thus, ceased to have any effect as a bill of exchange on the death of its maker. Therefore, the suit under Order XXXVII, Rule 2, C.P.C. filed by the petitioner was misconceived and was not maintainable.

2. In this regard, the provisions of Sections 29 and 29- A of the Negotiable Instruments Act, 1881, which have direct relevance to the issue, are reproduced as under:

"(29) A legal representative of a deceased person who signs his name to a promissory note, bill of exchange or cheque is liable personally thereon unless he expressly limits his liability to the extent of the assets received by him as such."

"(29)A. No person is liable as maker, drawer, endorser or acceptor of a promissory note, bill of exchange or cheque who has not signed it as such:

Provided that where a person signs any such instrument in a trade or assumed name he is liable there on as if he had signed it in his own name."

1. The aforementioned provisions make it clear that a party who is not a drawer or maker of a cheque/bill of exchange is not liable thereon and accordingly cannot be sued under Order XXXVII, Rule 2, C.P.C. Under Section 29-A of the Negotiable Instruments Act, 1881, in order for a legal representative of a deceased person to become liable under the cheque issued by his predecessor, it is necessary that he signs the said cheque for assuming the liability thereunder. However, this is not the case here as respondents did no such thing. The respondents, therefore, were not liable to the petitioner under the said cheque issued by their predecessor.”

2. In “Syed Shan Abbas v. The State and another” (2014 YLR 882), it has been held as follows:

“A bare perusal of Section 489-F, PPC would reveal that to constitute an offence under this provision it is mandatory to prove that the accused himself issued the cheque. It was not case of the complainant that the petitioner had issued a cheque rather he stated that the petitioner gave him a cheque issued by one Aneela Qaiser. As mentioned above, Section 489-F P.P.C. is attracted only where the cheque is issued by the accused himself. So in the present case this basic ingredient i.e. "issued" is missing. Here a question arises whether the petitioner has committed no offence? The answer is that "not under this section but under other provisions of Law". For the sake of academic discussion a question comes into mind, "Was it intent of Legislature to bring only those cases within the ambit of Section 489-F, P.P.C. where cheque was issued by the accused himself or whether mere handing over a cheque belonging to someone else's account would also bring the accused liable under this section?" The answer to my mind is that this section applies to those cases only where cheque is issued by the accused himself and not in other cases. This answer/intent has been gathered by me from careful perusal of this very provision of law. In the later part of this section it has been provided that to come out from the rigors of this Section the accused must show that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault… (Boldness of words and underlining is mine). This part of the provision makes it crystal clear that intention of the Law Maker is that this section would attract only to those cases where the cheque is issued by the accused himself and not in other cases because otherwise word "his" would not have been written and instead word "the" was sufficient. So the most important and basic ingredient to constitute an offence under this section is that the accused must himself issue a cheque.”

1. In “Muhammad Khan v. Magistrate Section 30, Pindi Gheb, District Attock and 3 others” (PLD 2009 Lahore 401), it has been held at 406-C as follows:

“Section 489-F, P.P.C. clearly lays down that whoever dishonestly issues a cheque towards repayment of a loan or fulfillment of an obligation is liable to face the legal consequences on its being dishonoured. Issuance of a cheque towards repayment of a loan or fulfillment of an obligation is primarily a civil matter. Object of Section 489-F, P.P.C. is not to affect recovery of the amount in question under the dishonoured cheque. This penal provision of law has been brought on the Statute Book in order to punish a person, who dishonestly issues a cheque with reference to his civil liability. Similarly, availability of an alternate remedy to the complainant is no ground to discharge the accused because the aggrieved complainant can invoke civil and criminal law simultaneously.”

1. On the basis of the last precedent case quoted above i.e. “Muhammad Khan v. Magistrate Section 30, Pindi Gheb, District Attock and 3 others” (PLD 2009 Lahore 401) the petitioner's contentions about his aim being to recover monies due to him can be laid to rest since it is clearly mentioned in the precedent case in question that the aim behind insertion of Section 489-F, PPC is not to encourage or precipitate recovery of monies but to punish the person ‘who’ dishonestly issued a cheque.

2. In neighboring India Section 138 of the Negotiable Instruments Act, 1881 echoes Section 489-F, PPC. Although both Sections are differently worded, the spirit, aim and essence of both Sections seem to be the same.

3. In Girga v. K. Vinay 2004(1) Recent Criminal Cases 458 (Kerala), the Kerala High Court has ruled as follows:

“...on careful perusal of the relevant statutory provisions of law, it is clear that the intention of the legislature was not to make the provisions for prosecuting the legal heirs of the drawer of a cheque, in the event of dishonour under the provisions of Negotiable Instruments Act.It is needless to say that the provisions of the Negotiable Instruments Act are a self-contained enactment and wherever there is lacking, the provisions of the Code of Criminal Procedure will have to be pressed into service. As stated earlier, there are absolutely no statutory provisions made under the Negotiable Instruments Act to cover the situation like this. Under the provisions of Section 394 of the Cr.P.C., it is seen that the said section deals with the abatement, of appeals filed Under Section 377 or 378 of the Cr.P.C. This provision cannot be pressed into service for the reason that the Trial Court or this Court has not been dealing with an appeal under the said provisions. It is also necessary to mention that the provisions of Section 256 of the Cr.P.C. deal with the situation that arises after the death of the complainant. In the case in hand, the drawer of the cheque, the accused in a proceeding of this nature, had died even earlier to the presentation of the complaint. Such being the case, the provisions of Section 256 of the Cr.P.C. also cannot come to the aid of the complainant. From this aspect, it is clear that the statute law in this regard is totally silent to meet the situation. When this be the intention of the Legislature, the Courts of law will have to interpret the law, keeping in mind, the golden rules of interpretation and the Courts should always interpret the law keeping in view the letter and spirit of law and such an interpretation should advance the purpose of legislation.”

1. In view of these clear pronouncements, it is evident that Respondents No. 4 and 5 are not drawers of the cheque in question and cannot be held liable upon a reading of Section 489-F, PPC. One of the basic ingredients of the offence contemplated by Section 489-F, PPC is that a person must have drawn and issued the cheque himself in respect of an account maintained by him in a bank and that cheque is dishonoured. It is also evident that the person liable in respect of this penal provision is only the person who has drawn the cheque. Similar observations have been recorded by the Andhra Pradesh High Court in Bhupinder Lima v. State of Andhra Pradesh 1999(6) ALD 143.

20. Furthermore, Article 3 of the Constitution of Islamic Republic of Pakistan, 1973 clearly provides safeguards against exploitation and persecution of citizens. This Article protects individual citizens from exploitation inasmuch as all citizens are only liable for what they have done themselves and they are not liable for acts of others. Almost all legal systems in the world recognize that criminal liability can only be imposed on an individual for the acts and omissions for which such individual is personally responsible. The concept of substitution of accused/convict is alien to criminal jurisprudence. Of course, the offences involving common object or common intention apart, a person is only liable for an offence that he commits himself. He can never be substituted or booked for the fault of some other person even if that person be his father or mother. A

Division Bench of Sindh High Court in “Salik Aziz v. Muhammad Emad and others” (2020 YLR 147) has clearly held that, “for any offence committed by an accused who dies, his legal heirs cannot be subjected to the rigors of the offence since criminal jurisprudence does not recognize devolving of criminal liability.

1. The present petition being misconceived is dismissed.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 218 [Multan Bench, Multan]

Present: Anwaar Hussain, J.

Dr. SHAHID MAHMOOD BOKHARI--Petitioner

versus

GOVERNMENT OF PUNJAB through Chief Secretary--Respondents

W.P. No. 17049 of 2020, decided on 1.10.2021.

Constitution of Pakistan, 1973--

----Art. 199--Petitioner was serving as Medical Superintendent--Receiving of numerous complaints--Suspension from service--Unprofessional attitude--Concealment of material facts--Maintainability--Challenge to--Order of' suspension of a civil servant is not a penalty and would not violate any legal right vested in suspended official and jurisdiction of High Court cannot be invoked--Petitioner approached respondent for inquiry about impugned order--Suspension order was passed on verbal direction of Chief Minister, who earlier visited Hospital and took notice of non-professional conduct of petitioner and later on, accorded ex post facto approval of suspension on summary put before him--Impugned Order has been passed with approval of Competent Authority and being so, it is a legal and valid order--Present petition is not maintainable on basis of what has been discussed herein above and matter, at present, is before Competent Authority, any further comments upon merits of case and grievance of petitioner may prejudice stance of either party before competent forum and deference is being shown from any dilation thereof--Petition was dismissed. [Pp. 224,225 & 226] C, D, E & F

Constitution of Pakistan, 1973--

----Art. 212--Bar on jurisdiction of High Court--Article 212 of Constitution places absolute and inflexible bar on jurisdiction of this Court in matters relating to terms and conditions of service of civil servants, which include appointment, posting, transfer, etc., and therefore, this Court has no jurisdiction to entertain a constitutional petition. [Pp. 221 & 222] A

Punjab Civil Servants Act, 1974 (VIII of 1974)--

----S. 2(1)(b)--Civil Servant--Civil servant shall not include a person who is working on deputation to Province of Punjab from the Federation or any other Province or authority. [P. 224] B

PLD 2000 SC 55, 2002 PLC (CS) 816, 2005 YLR 181 (Lah.) and 2017 MLD 323 ref.

Mr. Qamar-uz-Zaman Butt, Advocate assisted by Haji Tariq Aziz Khokhar, Advocate for Petitioner.

Mr. Muhammad Ayub Buzdar, Assistant Advocate General along with Mr. Aslam Javed, Senior Law Officer, SHC&ME Department, Lahore on behalf of Secretary, SHC & ME Department for Respondents.

Date of hearing: 2.9.2021.

Judgment

Through this writ petition, the petitioner, who at present is serving as Principal Medical Officer/Medical Superintendent (BPS-20), Nishtar Medical Hospital, Multan, has challenged order dated 14.11.2020 ("the Impugned Order") passed by the Secretary, Specialized Healthcare and Medical Education Department, Lahore ("SHC & ME Department") whereby the petitioner has been placed under suspension and directed to report to SHC & ME Department.

1. Report and parawise comments have been filed wherein it has been stated that the present petition is hit by bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"). On merits, the parawise comments contemplate that there were numerous complaints received from various quarters against the petitioner regarding his unprofessional attitude towards the patients, faculty and other staff affecting provision of health services. He was asked time and again to mend his behaviour but to no avail. Therefore, keeping in view his unprofessional attitude, the petitioner has been placed under suspension.

2. Learned counsel for the petitioner submits that suspension of the petitioner under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ("the PEEDA Act") without initiating any proceedings under the Act ibid is improper and hence, the present petition is maintainable. Adds that since the petitioner is working as Medical Superintendent, Nishtar Hospital, Multan, he is no more a civil servant and his services are being governed by the provisions, of Nishtar Medical University Act, 2017 ("the Act, 2017"). He lastly submits that the competent authority of the petitioner is the Chief Minister, however, the suspension order has been passed by the Secretary, SHC&ME Department, as such, it is without jurisdiction. Places reliance on S.H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others (PLD 1981 Supreme Court 612), Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another (1999 SCMR 819), Government of the Punjab through Collector, Faisalabad and another v. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others (2001 SCMR 209), Province of Sindh through Chief Secretary Sindh Karachi and 4 others v. Gul Muhammad Hajano (2003 SCMR 325), Syed Ibrar Shah v. Commissioner, Kohat Division and others (PLD 2004 Supreme Court 907), Meraj Din Bhatti v. Chairman, Punjab Board, of Technical Education, Lahore and 4 others (2005 PLC(C.S.)551), Aftab Gulzar and another v. Chairman, Punjab Local Government Board, Lahore and 2 others (2005 PLC(C.S.)714), Muhammad Amin Kalus and others v. Punjab Local Government Board and others (2006 PLC(C.S.) 394), Chaudhry Azhar Hussain v. Secretary, Local Government and Rural Development, Department, Government of the Punjab, Lahore and 2 others (2006 PLC(C.S.) 693), Roshan Khan, Set Government High School Kuz Pao, District Shangla v. Director Schools and Literacy, N.W.F.P., Peshawar and 4 others (2007 SCMR 599), Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi (2008 S C M R 611), Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others (2009 SCMR 339), Syed Mehboob Ali and 21 others v. Province of Sindh through Chief Secretary to Government of Sindh and 3 others (2011 PLC(C.S.) 37), Senior Member BOR and others v. Sardar Bakhsh Bhutta and another (2012 SCMR 864), SM Waseem Ashraf v. Federation of Pakistan through Secretary, M/O Housing and Works, Islamabad and others (2013 SCMR 338), S Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others (2014 SCMR 799), Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others (2015 SCMR 630), Muhammad Amin and another v. Government of Punjab and others (2015 SCMR 706), The Commandant, Khyber Pakhtunkhwa Constabulary, Headquarters Peshawar and another v. Muhammad Nasir and others (2015 SCMR 1040), Munawar Hussain Bukhari v Appellate Authority/Tribunal, Alipur District Muzaffarsarh and others (2016 SCMR 1087), Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others (PLD 2018 Supreme Court 114), Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others (2018 SCMR 1956), Amjad Ali Khan v. Ministry of Energy (Power Division), Islamabad through Secretary and 3 others (2019 PLC(C.S.) 300), Bashir Ahmad and others v. The Director General, Lahore Development Authority, Lahore and others (2020 SCMR 471), PESCO, WAPDA House through Chief Executive v. Ishfaq Khan and others (2021 SCMR 637) and Dr. Karim Shah v. Chairman, Search and Nomination Council/Health Minister, Government Khyber Pakhtunkhwa, Peshawar and others (2021 PLC(C.S.)235).

3. Conversely, learned Law Officer submits that the present petition has been filed by concealing and suppressing material facts inasmuch as Impugned Order dated 14.11.2020 was complied with by the petitioner on the same day by approaching the Secretary, SHC&ME Department, Lahore where he submitted his joining report and made request for release of his salary accordingly. Places reliance on Peer Muhammad v. Government of Balochistan through Chief Secretary and others (2007 SCMR 54), Fazal Ahmad Ranjha and 28 others v. Government of the Punjab through Secretary Education (Schools), Lahore and 39 others (2016 PLC (C.S.) 1209) and Chief Secretary Government of the Punjab, Lahore etc. v. Ms. Shamim Usman (Civil Petition No. 1097-L of 2020) to plead that writ petition is hit by Article 212 of the Constitution. In rebuttal, learned counsel for the petitioner submits that there is no suppression of facts as the petitioner has disclosed this fact in the pleadings in terms of para 4 of the writ petition.

4. Arguments heard. Record perused.

5. The pivotal question involved in the matter is the maintainability of the present petition. The petitioner is admittedly a civil servant and is serving as Medical Superintendent in Nishtar Hospital, Multan on deputation. The ancillary questions raised by petitioner's side, which require adjudication are that whether without initiating any proceedings under the PEEDA Act, the suspension order simplicitor is improper and therefore, this petition is maintainable and whether after his transfer and posting in the Nishtar Hospital on deputation, the petitioner was no more a civil servant and hence, the bar contained in Article 212 of the Constitution is not applicable to him.

7. Admittedly, the petitioner is a civil servant. Article 212 of the Constitution places absolute and inflexible bar on jurisdiction of this Court in matters relating to terms and conditions of the service of civil servants, which include appointment, posting, transfer, etc., and therefore, this Court has no jurisdiction to entertain a constitutional petition. In this regard, I am fortified by the judgment of the august Supreme Court of Pakistan in Peer Muhammad v. Government of Balochistan through Chief Secretary and others (2007 SCMR 54) wherein it was held by the Hon'ble Supreme Court that the ouster clause embodied in Article 212 is a constitutional command, which ousts the jurisdiction of the High Court as well as the civil Court. While relying on Peer Muhammad's case supra, this Court in Dr. Ghazanffarullah etc. v. Secretary Health etc. (PLJ 2011 Lahore 392) held that Article 212 is a non-obstante clause and hence, prevails over Article 199 of the Constitution. In addition to the pronouncement in Peer Muhammad's case supra, the Hon'ble Supreme Court of Pakistan in Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456) has exhaustively defined the jurisdictional delineations of the High Court pertaining to the matters of terms and conditions of service of civil servants. In the said judgment, the apex Court deprecated the exercise of constitutional jurisdiction in the matters pertaining to terms and conditions of service of civil servants and held that the said exercise is not only in defiance of constitutional contours of Article 212 of the Constitution but also confronts and defies Article 189 thereof. Reliance is also placed on the law laid down by the august Supreme Court in National Assembly Secretariat through Secretary v. Manzoor Ahmed and others (2015 SCMR 253). In the said cases, the Hon'ble Supreme Court of Pakistan has clearly held that any matter, which touches upon the terms and conditions of the civil servant, is to be looked into by the departmental hierarchy followed by an appeal before the learned Service Tribunal and the jurisdiction of this Court is ousted. In fact, any intervention by this Court to probe into the matter involving the terms and conditions of service of a civil servant has been deprecated and held to be in the defiance of the constitutional mandate as well as dicta laid down by the Hon'ble Supreme Court. Moreover, in Shamim Usman supra, the Hon'ble Supreme Court has reiterated the earlier position that any transgression of the constitutional limitation is void and illegal and assumption of jurisdiction by this Court in respect of matters of terms and conditions of a civil servant is unconstitutional and impermissible.

8. So far as the entire case law of the Hon'ble Supreme Court of Pakistan, this Court and other High Courts relied upon by learned counsel for the petitioner is concerned, the same is not applicable in the instant case as either the said cases are not related to terms and conditions of civil servants and these pertain to the employees of local government, autonomous bodies or such organizations, the employees of which are not civil servants. The only case relied upon by the petitioner, which may have some nexus with the instant matter, is S. Masood Abbas Rizvi supra, qua the point raised by the petitioner's side that since the petitioner was serving as a deputationist in Nishtar Hospital, he lost his status of being civil servant. The argument on behalf of the petitioner that he was no more civil servant once working in a borrowing agency is conjured out of thin air and based on fallacy. The bar contained in Article 212 of the Constitution is fully attracted in the present case and the writ petition is not maintainable and reliance on S. Masood Abbas supra too is also misconceived. In fact, in S. Masood Abbas supra, the august Supreme Court held that there is no vested right of the deputationist to remain on the post of deputation for the stipulated period and parent department is not obligated to assign any reason for the repatriation. Moreover, the august Supreme Court of Pakistan, in Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad through Chairman and other (2010 SCMR 378) has clearly held that no deputationist, by any stretch of imagination and in absence of any specific provision of law, can ask to serve the total period of deputation in the borrowing agency. It has been further held that such civil servant can be repatriated by the Competent Authority in the interest of exigency of service as and when so desired and such order of the Competent Authority cannot be questioned. It is also settled law that every civil servant is bound to serve anywhere within or outside the province in any post under the Government of the Punjab, Federal Government, any other provincial government or local authority or corporation or any other body set up or established by any such Government, which is evident from Section 9 of the Punjab Civil Servants Act, 1974 (hereinafter "the Act"). Similarly, Section 2(b) (i) of the Act defines a civil servant in the following manner:

"2. Definitions. (1) In this Act, unless there is anything repugnant in the subject or context, --

(a) ……………………

(b) 'Civil Servant' means a person who is a member of a civil service of the Province or who holds a civil post in connection with affairs of the Province, but does not include-

(i) a person who is on deputation to the province from the Federation or any other province or authority"

(Emphasis supplied).

There is nothing in the Civil Service Laws or in the Act, 2017 to indicate that any civil servant working under the administrative control of the Government of the Punjab, once transferred to an organization like Nishtar Hospital will cease to be a civil servant and will be governed by the Act, 2017.

9. The petitioner is not only a member of the civil service of the Province but also held the post of Medical Superintendent, Nishter Hospital Multan, which involves functions in connection with the affairs of the province. Therefore, as to the extent of the definition of civil servant, the petitioner is a civil servant for all intents and purposes. The exclusion clause attached to definition provided in Section 2(1)(b) of the Act reads that civil servant shall not include a person who is working on deputation to the Province of Punjab from the Federation or any other Province or authority. The conditions laid down in the said exclusion clause are that a person working on deputation in the Province shall not be a civil servant if sent to work on the said post from such Province to the Federation, any other Province or any authority which is not the situation in the instant case.

10. This takes me to the nub of the matter, which is to examine the scope of Impugned Order passed by the Secretary, SHC & ME Department, Lahore whereby the petitioner has been placed under suspension on administrative grounds and he has been directed to report to the said department. It is settled law that order of' suspension of a civil servant is not a penalty and hence, would not violate any legal right vested in the suspended official/officer and hence, the jurisdiction of this Court cannot be invoked. Reference is made to the Divisional Superintendent, Pakistan Railways, Lahore v. Muhammad Halim, through Legal Representatives and others (PLD 2000 SC 55), Muhammad Amin Mughal v. Secretary Local Government and Rural Development Department/Chairman Punjab Local Government Board, Government of the Punajb Civil Secretariat Lahore and 4 others (2002 PLC (C.S.) 816), Sh. Iqbal Hussain v. Anwar Hussain (2005 YLR 181 Lahore) and Khalid Pervez Bhatti v. Mst. Madiha Rafiq (2017 MLD 323 Islamabad).

11. Even otherwise, perusal of record placed on file through CM No. 5999/2021 filed by the respondents indicates that the petitioner has in fact complied with Impugned Order on the same day, i.e. 14.11.2020, by submitting joining report to the department, which fact could not be denied by the petitioner's side during the course of arguments. When contents of the present writ petition are perused, it appears that a vague reference has been made about the said fact in the words that the petitioner approached Respondent No. 2 for inquiry in about the Impugned Order. Furthermore, on 19.11.2020, a letter has been written by the petitioner which reads as under:

"To

The Secretary to Govt. of Punjab Specialized Healthcare and Medical Education Department Lahore.

Subject: Request to Adjust for Salary Purpose Sir, It is submitted that I was working as M.S. Nishter Hospital, Multan. I have been suspended vide your order No. SO(GC-I)4-1/2018 dated 14.11.220. I have reported for duty in your office on 19.11.20.

It is requested that I may please be adjusted for salary purpose against any vacant post of BS-20.

Signed/ DR. SHAHID MAHMOOD BUKHARI P.M.O. Ex-M.S. Nishter Hospital (Under Suspension) Mobile: 03007186420"

(Emphasis provided)

The above letter, written by the petitioner himself, unambiguously reads that the petitioner has not only submitted his joining report in compliance of the Impugned Order but also made request for release of his salary. Fair disclosure that Impugned Order has been acted upon by the petitioner and request made for release of the salary was not made before this Court regarding status of the Impugned Order even when the case was admitted and interim relief was granted on 11.12.2020. On this score alone, the petition merits dismissal.

12. A lot of emphasis has been laid on the point that the Competent Authority in the case of the petitioner is the Chief Minister but the Impugned Order has been passed by the Secretary, SHC & ME Department. When confronted with, learned Law Officer submits that the suspension order was passed on verbal direction of the Chief Minister, who earlier visited the Hospital and took notice of non-professional conduct of the petitioner and later on, accorded ex post facto approval of the suspension on the summary put before him. As such, the Impugned Order has been passed with the approval of the Competent Authority and being so, it is a legal and valid order.

13. Since this Court has reached the conclusion that the present petition is not maintainable on the basis of what has been discussed herein above and the matter, at present, is before the Competent Authority, therefore, any further comments upon the

merits of the case and grievance of the petitioner may prejudice the stance of either party before the competent forum and hence, deference is being shown from any dilation thereof.

1. In the light of what has been discussed above, this writ petition is not maintainable, which is accordingly dismissed with no order as to cost.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 226 [Rawalpindi Bench Rawalpindi]

Present:Jawad Hassan, J.

ALI HUSSAIN MANZOOR--Petitioner

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. No. 4146 of 2021, decided on 13.1.2022.

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

----S. 37--Medical Tribunal Act, (XXXIV of 2020), S. 6(11)--Constitution of Pakistan, 1973, Arts. 10-A & 199--Appearance in MDCAT--Receiving of result card--Marks in English subject were not matched with paper--Review petition--Dismissed--Right of fair trial--Obligation of citizens--Powers of medical tribunal--Stipulated period--Direction to--Remedy of appeal--MT Act clearly empowers Tribunal to hear and decide all appeals within stipulated period without exception, Petitioner, if so advised, can file an Appeal under Section 37 of PMC Act read with Section 6(11) of MT Act before Tribunal--If Petitioner file an appeal before Medical Tribunal, same will be decided by Tribunal strictly in accordance with law by providing proper hearing to all concerned including Petitioner within a period of one (01) month--Petition disposed of.

[P. 232] A & B

2021 PTD 216 (Lahore) ref.

Mr. Hassan Raza Pasha, ASC with Wajih Hassan Pasha and Mehar-un-Nisa, Advocates for Petitioner.

Mr. Rashid Hanif, Deputy Attorney General with Malik Ahtesham Saleem, Assistant Attorney General for Pakistan.

Sardar Taimoor Aslam, ASC for Respondents.

Date of hearing: 13.1.2022.

Order

The Petitioner through this writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) has prayed as under:

“In the above said circumstances it is most respectfully prayed that this Honorable Court may kindly allow the instant Petition and issue direction to the Respondents to set aside the impugned result card dated 23rd September, 2021 and result reviewed dated 9th November, 2021 by declaring it as illegal and unlawful.

It is further prayed that this Honourable Court may kindly direct the Respondent No. 3 to evaluate the Petitioner’s result in the light of the report furnished by the skilled team of the Respondent No. 5 and thereafter the enhancement of grace marks of a large numbers of students which were given by Respondent No. 3 without implementation of review policy in the interest of justice.

It is further prayed that review of the Petitioner’s result should be conducted in presence of skilled evaluators of Quaid-e-Azam University in the interest of justice.

Any other relief which this Honourable Court deem fit and proper may also be awarded.”

1. Mr. Hassan Raza Pasha, ASC submits that the Petitioner being brilliant student appeared in the National Medical & Dental Colleges Admission Test (the “MDCAT”) 2021, on 23.09.2021 having roll No. 1050035 and received his result card showing 132 Marks out of 210. He adds that the aforesaid marks are absolutely not matched with the paper conducted by the Petitioner in English Subject because as per result card he secured 39 marks out of 20, which created serious doubt upon the veracity of the entire process of MDCAT. He adds that the Petitioner filed review against the said error by depositing Rs. 5000/- as fee, whereupon the Respondent No. 3 on 09.11.2021, shared result of review through email while mentioning “there has been no change in your final result.”. Hence, this Petition.

2. Sardar Taimoor Aslam, ASC for the Respondent/PMC objects to the maintainability of this Petition by stating that the Petitioner’s review was dismissed, therefore, he can avail remedy of appeal under Section 37 of the Pakistan Medical Commission Act, 2020 (the “PMC Act”) read with Section 6(11) of the Medical Tribunal Act, 2020 (the “MT Act”) before the Medical Tribunal, which is functional.

3. In response thereof, Mr. Hassan Raza Pasha, ASC submits that the Petitioner had filed review before the Respondent No. 3 in the light of the judgment reported as “Rida Fatima v. Pakistan Medical Commission, etc.” (2021 LHC 5524), wherein it has been held that:

“23. Since the matter relates to the future of the Medical Students, therefore, the Petitioners, if so advised, may file their review(s) before the PMC for redressal of their grievance under the Terms and Conditions as mentioned in Paragraph No. 10, for which the deadline has been extended till 29.10.2021. It is directed that if the Petitioners apply for Review, the PMC shall decide the same strictly in accordance with law within a period of one (01) week from its filing.” (underline is mine)

The said Review was, however, dismissed. He further submits that Article 4 of the Constitution clearly states that it is his inalienable right to be treated in accordance with law by the Respondents and no action detrimental to the reputation, life, and liberty shall be taken except as per law. He lastly submits that Article 10-A of the Constitution provides right of fair trial and due process for determination of rights and obligations of the citizens of Pakistan, therefore, if the Petitioner is not given proper right of hearing, he will suffer an irreparable loss and injury.

1. Arguments heard. Record Perused.

2. From bare perusal of MDCAT result sheet it reveals that the Petitioner got 39 marks out of 20 in English Subject, therefore, the submissions made by the Petitioner seem to be correct. Needless to mention here that this Court in the judgment reported as “ABWA Knowledge Pvt. Ltd. v. Federation of Pakistan, etc.” (PLD 2021 Lahore 436) has already declared the Pakistan Medical Commission (PMC) as a Regulatory Body to regulate the process of admissions to all the medical colleges including private medical colleges through this mandatory test i.e. MDCAT. The relevant paragraph of the judgment is reproduced as under:

“22. Although, the term ‘medical profession’ is not provided in the Act yet the preamble of the Act provides for establishment of a uniform minimum standard of basic and higher medical education. The function of the PMC under the Act is of Regulator, which is being regulated by (i) Council (ii) Authority and (iii) Board. So, the word ‘uniform’ clearly shows the intent and purpose of regulator i.e. PMC which can regulate the admissions to all the medical colleges including private medical colleges through this mandatory test i.e. MDCAT. The language of Section 18(1) of the Act clearly demonstrates that the Authority shall conduct annually on a date approved by the Council as per standards approved by the Board a single admission test which shall be mandatory requirement for all students seeking admission to medical or dental under-graduate program. The Commission is formed with its Authority, Board and Council as defined under Section 2 and powers and functions are given under Section 8 of the Act. Sections 10 and 15 of the Act deals with the Board and the Authority and if they are read together, the purpose of Commission to regulate the medical profession through its Council, Board and Authority is achieved for the sole purpose as mentioned in the Preamble.”

This judgment has been upheld by the learned Division Bench of this Court vide judgment reported as “ABWA Knowledge Pvt. Ltd. through Director and another v. Federation of Pakistan, through Secretary, National Health Services and another” (2021 MLD 1455) and subsequently, upheld by the Hon’ble Supreme Court of Pakistan in C.M.A.No. 5777/2021 in C.P.Nil/2021 and Civil Petition No. 4944 of 2021, vide order dated 27.09.2021 by holding (in Paragraph-7) that:

“In light of the above, we see no reason to take a view different from the one taken by the High Court in the impugned judgment and in the judgment of the learned single judge. These petitions are, therefore, dismissed and leave refused.”

1. Furthermore, this Court in the judgment of Rida Fatima (2021 LHC 5524) (mentioned supra) has held that the Petitioners may apply for Review before the PMC, which has also been upheld by the Hon’ble Supreme Court of Pakistan in C.P. No. 5815 of 2021 on 06.12.2021. The Hon’ble Supreme Court of Pakistan has further strengthened this view in C.P.No. 6077 of 2020 on 11.02.2022 by upholding the judgment of Rida Fatima (mentioned above). Therefore, the Respondents are bound to decide the fate of the result by examining the same. For this purpose, the only remedy available to the Petitioner is an “Appeal” before Medical Tribunal under Section 37 of the PMC Act. For ready reference Section 37 is reads as follows:

2. Appeals to the Medical Tribunal.--(1) Any person including an employee of the Commission aggrieved by any order or direction of the Commission, including the Council, Authority or disciplinary committee, under any provision of the Act, or rules or regulations may prefer an appeal before the Medical Tribunal within thirty days of the date of communication of the impugned order or direction.

(2) An appeal to the Medical Tribunal shall be in such form, contain such particulars and be accompanied by such fees as may be prescribed.

1. Moreover, the Section 3 of the MT Act also provides right of an appeal to a person aggrieved by an act or order before the Medical Tribunal. Section 3 ibid reads as follows:

2. Cognizance of offences.--(1) No Court shall take cognizance in any matter to which jurisdiction of the Tribunal extends.

(2) Any person or entity aggrieved by an act which is an offence under any law for the time being in force triable by the Tribunal or by an order or act which is appealable before the Tribunal may institute a complaint or claim or appeal as the case may be before the Tribunal.

The Medical Tribunal (the “Tribunal”) is constituted under Section 4 of the MT Act and its powers are defined under Section 6 of the MT Act. Section 6(11) explains that the Tribunal shall hear and decide all the appeals within one hundred twenty days without exception. Section 6(11) reads as follows:

1. Jurisdiction and powers of Medical Tribunal.--

……

……

(11) The Tribunal shall hear and decide all appeals, complaints or claims instituted before it within one hundred twenty days without exception and shall refuse all requests for adjournments if sought by any party if such adjournment would lead to the Tribunal not being able to decide a case within the stipulated period.

1. Since the PMC has not decided the matter as to securing of 39 marks out of 20 in English Subject by the Petitioner instead informed that there has been no change in his final result, which should be decided by the Medical Tribunal as per the PMC Act, MT Act and the Pakistan Medical Commission Admission Regulations 2020-2021 (the “PMC Admission Regulations”).

2. This Court has already passed judgment reported as Shaheen Merchant v. Federation of Pakistan/National Tariff Commission and others (2021 PTD 2126 Lahore) that the matter should be decided by at least one independent forum. It has also been discussed therein the functioning of Tribunals with time-bound mechanism to decide the matters as per the time frame/limit given under the relevant Law under Article 37(d) of the Constitution. This Court in the judgment (2021 PTD 2126 Lahore) discussed the (i) Anatomy of a Regulator; (ii) Jurisprudential Anthology regarding duty of State to provide expeditious and inexpensive justice; (iii) Legal Anthropology of Tribunal; (iv) Pathology regarding “time” specific Tribunal with “time” bound mandate to decide appeals under the Act; and (v) Aetiology for the Doctrine of Stopgap. The relevant paragraph is reproduced as under:

“The coined maxim Interest Reipublicae Ut Sit Finis Litium means that it is in the interest of the state that there should be an end to litigation. The law of limitation provides and controls the time-duration as a legally permissible span to bring a justiable lis before a Court of law in order to bring certainty and conclusiveness to right of action and to avoid the probability of an indefinite threat of exasperation. Similarly, the Courts are also expected to decide the disputes brought before them by the parties within a reasonable time and in an expeditious manner. The celebrated maxim ‘Justice delayed is justice denied’ also highlight the significance of dispensation of justice in a timely manner and laid stress on the responsibilities of the Court to decide cases in an expeditious manner. However, considering the nature and signification of a particular subject-matter which requires swift and speedy resolution of Writ Petition No. 62992 of 20217 disputes by the judicial forums, the legislature has always incorporated a time-bound mechanism not only for preferring a dispute or appeal to the judicial forum or Appellate Tribunal, as the case may be, but also specifically prescribe and lays down a definite time limit to give decision thereon to meet the ends of expeditious justice, which is a command of Constitution under Article 37(d) wherein the State is duty bound to ensure inexpensive and expeditious justice to the citizens.”

It has been further observed that:

“24. The accumulative effect of this discussion is that when the statute has provided specific remedies of appeal to the Petitioner against Final Determination, already impugned before the Appellate Tribunal and when right of another appeal is still available after the decision of the Appellate Tribunal, then in such a situation, the impugned Final Determination cannot be given effect because doing so will not only frustrate the pending appeal before the Tribunal but it will also jeopardize the whole purpose of provision of remedy of Appeal under the Act.

Needless to emphasize that making the process of hearing appeal by the Tribunal and also by the High Court in a specific time-bound manner within a definite period of 45 days and 90 days respectively, was also to streamline the whole process of ascertaining the correctness of the decisions of the Commission in a timely fashion, so that if found justified under the law, it can be given effect to or if not affirmed can be rectified in a timely manner, so that both the parties may have a definite decision to pursue their course of action within a reasonable and specific time.”

11. For what has been discussed above, since Section 6(11) of the MT Act clearly empowers the Tribunal to hear and decide all the appeals within stipulated period without exception, therefore, the Petitioner, if so advised, can file an Appeal under Section 37 of the PMC Act read with Section 6(11) of the MT Act before the Tribunal.

12. It is also directed that if the Petitioner file an appeal before the Medical Tribunal, the same will be decided by the Tribunal strictly in accordance with law by providing proper hearing to all concerned including the Petitioner within a period of one (01) month. However, the intervening period consumed before this Court will not be considered as an impediment in decision of the said Appeal, relying on the judgment (2021 PTD 2126 Lahore) (mentioned supra).

1. Disposed of accordingly.

(Y.A.) Petition disposed of

PLJ 2022 Lahore 232 (DB) [Multan Bench, Multan]

Present: Sohail Nasir and Ahmad Nadeem Arshad, JJ.

PUNJAB PUBLIC SERVICE COMMISSION, through Chairman and 3 others--Appellants

versus

AHSAN-UL-HAQ--Respondent

I.C.A. No. 407 of 2019, decided on 7.9.2021.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Writ petition--Advertisement for post of sub-inspector--Criteria post--Respondents were qualified test and interview--Recommendation of PPSC--Matter of respondents was once again referred for medical examination--Second measurement--Eligibility for post--Challenge to--Both respondents got examined by qualified Boards which were duly constituted by authority and they issued their respective reports and while considering their reports both respondents were allowed to appear in exam/test and participate in interview process--After qualifying for test and interview, both respondents were declared eligible for post--Appellants did not set forth any criteria for re-measuring height of successful candidates--Single Judge in Chamber of High Court, while keeping in view principle lay down by august Supreme Court of Pakistan, as well as facts and of circumstances of case, allowed writ petitions--Assistant Advocate General appearing on behalf of appellants remains unable to point out any error or illegality in impugned order passed by Single Judge in Chamber--Appeals dismissed.

[Pp. 235 & 236] A & B

PLD 2001 SC 1012 ref.

Mr. Aziz-ur-Rehman Khan, Assistant Advocate General of Punjab for Appellants.

Ch. Mudassar Saghir, Advocate for Respondent.

Date of hearing: 7.9.2021.

Judgment

Ahmad Nadeem Arshad, J.--Through this single order, we intend to dispose of instant I.C.A. Bearing No. 407 of 2019 as well as connected I.C.A. Bearing No. 338 of 2019, as both were filed against the same order dated 13.06.2019 passed by learned Single Judge in Chamber on the basis of which writ petition Bearing No. 11452 of 2014 filed by Ahsan-ul-Haq respondent and writ petition Bearing No. 11659 of 2014 filed by Tehseen Qadir respondent was accepted and declared the second measurement of the respondents as without lawful authority and directed the appellant No. 1 to proceed with the case in accordance with law on its own merits by treating their height as meeting with the criteria of 5 feet and 7 inches as determined by the Board initially.

1. Setting apart unnecessary detail, facts in brevity are that the respondents namely Ahsan-ul-Haq and Tahseen Qadir filed their separate writ petitions by contending that in response to a publication made by the Punjab Public Service Commission, Lahore for the posts of Sub Inspector of Punjab Police, Lahore, they applied for the said post. The criteria for the said post was that along with the application form, to file the academic certificates along with medical examination regarding health, height, and chest, etc. For the medical examination, qualified Boards were constituted in different hospitals. The respondent Ahsan-ul-Qadir appeared before the Board constituted in Services Hospital, Lahore whereby his height was measured and was found as 175.5 cm which is estimated equal to 5 feet 7.25 inches whereas the height of respondent Tehseen Qadir was found as 5 feet 7 inches by the Medical Officer, District headquarter Hospital, Muzaffargarh. Both the respondents appeared in examination and interview and qualify the same and a recommendation was made by the Punjab Public Service Commission, Lahore to the Inspector General Police, Lahore for their appointments. However, the Regional Police Officer, Dera Ghazi Khan, once again referred the case of both the respondents for medical examination wherein the height of respondent Tehseen Qadir was found to be 5 feet 6.5 inches i.e. deficient from 0.5 inches whereas the height of respondent Ahsan-ul-Haq was found to be 5 feet 6.9 inches i.e. deficit by 0.1 inches. Consequently, both the respondents were not appointed. Both the respondents challenged the act of appellants by which they have shown a deficit in height and referring for the second measurement. The learned single Judge of this Court, while dealing with the writ petitions of the respondents, passed the impugned order dated 13.06.2019 and while relying upon the principle laid down in "Yousaf Haroon and others vs. Punjab Public Service Commission, Agha Khan/Davis Road, Lahore through Secretary and others" (PLD 2001 S.C. 1012) observed as under:

"While relying upon the principles laid down in the above referred judgment, it is observed that the petitioners were not put to notice that their height would be re-measured nor it was mentioned in the consolidated advertisement, therefore, the respondents have no cause to reject the appointment of the petitioners on the basis of height. It has been argued by the learned AAG that in the advertisement, it was mentioned that person who is not found to be fit in any manner would not be appointed despite the fact that he has cleared the examination. Be that as it may, the Medical Board had initially cleared the petitioners as having the requisite height. No illegality, mala fide or any other discrepancy has been pointed out in the report filed by concerned Medical Superintendents. Moreover, the measurement process could be defective in either of the stages, the benefit if any is to go to the person who is to be affected thereby.

1. Resultantly, it is held that once having been found to have complied with the height requirement in one measurement, the second measurement declaring them not to comply with the height requirement was not justified. Resultantly the second measurement is declared to be without lawful authority and Respondent No. 1 is directed to proceed with the case of the petitioners in accordance with law on its own merits by treating their height as meeting with the criteria of 5 feet and 7 inches as determined by the Board initially."

2. Learned Assistant Advocate General of Punjab, appearing on behalf of appellants maintained that the learned Single Judge without appreciating the facts of the case, allowed the writ petitions; that the Hon'ble Judge in Chamber has not gone through the matter while passing the impugned order and allowed the writ petitions without application of judicious mind; that the impugned order was passed while ignoring the submission made by the appellants ; that the impugned order is against the rules because the appellant No. l in its recommendations categorically mentioned that the commission is subject to passing such medical test of the candidates as may be required under the rule; that in compliance with the directions/policy the Inspector General of Police Punjab Lahore referred both the respondents to the medical Board in which the respondents were found deficit in height; that the respondents had not challenged/assailed the opinion of the medical Board before proper forum and directly filed the writ petitions; that the impugned order is result of mis-reading and non-reading of record available on the file and lastly prayed for acceptance of their appeals and setting-aside the impugned order.

3. On the contrary, learned counsel appearing on behalf of the respondents reiterating the facts as pleaded in their writ petitions, hotly opposed the contentions raised by the learned law officer and defended the impugned order by stating that it was passed in accordance with law by keeping in view the facts and circumstances of the case.

4. We have heard the learned counsel for the parties and perused the record with their able assistance.

6. The criteria as set forth by the Punjab Public Service Commission Lahore, required a candidate that his height must be equal to 5 feet 7 inches. It is also required that a certificate of medical examination regarding height issued by the qualified Board, constituted by the authority, was mandatory to annex with the application. Both the respondents got examined by the qualified Boards which were duly constituted by the authority and they issued their respective reports and while considering their reports both the respondents were allowed to appear in the exam/test and participate in the interview process. After qualifying for the test and interview, both the respondents were declared eligible for the post. The appellants did

not set forth any criteria for re-measuring the height of successful candidates. The learned Single Judge in Chamber of this Court, while keeping in view the principle lay down by the august Supreme Court of Pakistan, as well as facts and circumstances of the case, allowed the writ petitions. Learned, Assistant Advocate General appearing on behalf of the appellants remains unable to point out any error or illegality in the impugned order passed by learned Single Judge in Chamber. Hence, we find no force in these appeals which are hereby dismissed.

(Y.A.) Appeal dismissed

PLJ 2022 Lahore 236 [Rawalpindi Bench Rawalpindi]

Present: Mirza Viqas Rauf, J.

YAQOOB ALI (Deceased) through His Legal Heirs and others--Petitioners

versus

MUHAMMAD AYUB and others--Respondents

W.P. No. 1447 of 2017, heard on 15.4.2021.

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

----Ss. 42, 54 & 55--Civil Procedure Code, (V of 1908), S. 12(2)--Suit for declaration, permanent and mandatory injunction was ex-parte decreed--Non-adopting of proper procedure--Proper procedure was not observed in effecting service upon “respondents”--No active or concrete effort was made for their personal service--Resort to substituted service in circumstances was not only highly unwarranted but sketchy--It is also evident that Court while decreeing suit acted in haste, which casts serious aspersions on proceedings of trial as well--Petitioners have failed to point out any illegality or perversity in impugned judgments warranting interference by High Court in exercise of constitutional jurisdiction--Petition dismissed. [Pp. 244 & 246] D, E & G

2004 SCMR 843 and 2000 SCMR 296 ref.

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

----S. 12(2)--Remedy to an aggrieved person--Sub-section (2) of Section 12 “C.P.C.” provides a remedy to an aggrieved person to challenge validity of judgment, decree or order on plea of fraud, misrepresentation or want of jurisdiction--An application to this effect lies before Court, which passed final judgment, decree or order. [P. 241] A

Inalienable right--

----It is an inalienable right of every party to lis to have a fair and ample opportunity to plead and defend his/her cause before Court.

[P. 242] B

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

----O.V R. 16--Obligation for serving officer--Obligatory for a serving officer who delivers or tenders a copy of summons to defendant personally, or to an agent or other person on his behalf, that he shall require signature of person to whom copy is so delivered or tendered to an acknowledgment of service endorsed on original summons. [P. 243] C

Constitution of Pakistan, 1973--

----Art. 199--Exercising of writ jurisdiction--Writ jurisdiction should be exercised rarely and sparingly when Courts of competent jurisdiction proceeded to lay matter in controversy at rest after due application of judicial mind to facts of case. [P. 246] F

2020 SCMR 2155 and 2019 SCMR 919 ref.

M/s. Muhammad Shahzad Shaukat and Malik Muhammad Kabir, Advocates for Petitioners.

Mr. Muhammad Ilyas Sheikh, Advocate for Respondents No. 1 to 8(iv).

Mr. Tanveer Iqbal Khan, Advocate for Respondents No. 9(i) & 9(ii).

Ch. Shamas Tabraiz, Assistant Advocate General Punjab Respondents No. 10 & 11.

Date of hearing: 15.4.2021.

Judgment

This single judgment proposes to decide instant petition (Writ Petition No. 1447 of 2017) as well as Writ Petition No. 2954 of 2017 on account of involvement of similar questions of facts and law in both these petitions. Needless to observe that the petitioners in the former petition shall be treated as “petitioners” whereas the private respondents, who are also petitioners in the connected petition shall be treated as “respondents” for the purpose of convenience.

1. Facts in brief necessary for adjudication are that the petitioners instituted a suit for declaration, permanent and mandatory injunction against the “respondents” before the learned Senior Civil Judge, Rawalpindi averring therein that they are legal heirs of Saffu son of Ladhu and belong to caste Gujjar Kasana. As per averments contained in the plaint, there was another person namely Saffu son of Dinu in the same village, who belonged to caste Gujjar Chohan, predecessor-in-interest of the “respondents”. It is averred that Ladhu had two sons namely Saffu and Batto, while Saffu had two sons namely Sardar and Shamad. It is asserted that due to negligence of revenue officials the property of Saffu son of Ladhu got merged in the property of Safu son of Dinu and Qatba son of Juma, which resulted into sanctioning of mutations in the name of unauthorized person namely Safu son of Dinu. A decree was sought by the petitioners that they are owners in possession of suit land situated in village Nasrullah Tehsil and District Rawalpindi. The “respondents” were proceeded ex-parte and finally after recording of ex-parte evidence suit was decreed vide judgment dated 18th April, 2009. The “respondents” on attaining the knowledge moved an application under Section 12(2) of the Code of Civil Procedure (V of 1908) (hereinafter referred as “C.P.C.”) seeking annulment of the ex-parte judgment and decree passed in favour of the petitioners. The application was though resisted by the petitioners but it was accepted through order dated 09th June, 2016. The petitioners though assailed the said order through a revision petition before the learned Additional District Judge, Rawalpindi but revision petition was dismissed through judgment dated 08th May, 2017, hence this petition under Section 115 “C.P.C.”.

2. On the contrary, connected petition (Writ Petition No. 2954 of 2017) is impugning the order dated 12th September, 2017 passed by the Additional Deputy Commissioner, Rawalpindi, whereby he proceeded to accord the permission to review mutation No. 2925 in the light of ex-parte judgment and decree dated 18th April, 2009.

3. Though both these petitions are still at pre-admission stage but with the concurrence of learned counsel for the parties, these are treated as pacca cases and decide as such.

4. Mr. Muhammad Shahzad Shaukat, Advocate learned counsel for the petitioners contended that application under Section 12(2) “C.P.C.” does not disclose any valid ground for interference with the ex-parte judgment. It is added that grounds on which the application was founded are not sufficient enough to set at naught the well- reasoned ex-parte judgment and decree. Learned counsel emphasized that no cogent evidence was produced by the “respondents” to prove that service was defective. It is argued that the Courts below while allowing application under Section 12(2) “C.P.C.” proceeded on wrong premises. Learned counsel submitted that concurrent findings are suffering with material illegalities and as such are not sustainable. Placed reliance on Lal Din and another vs. Muhammad Ibrahim (1993 SCMR 710), Sain vs. Government of N.-W.F.P. through Secretary, Auqaf and 2 others (2005 SCMR 1848) and Muhammad Younas vs. Umar Hayat and another (2014 CLC 914).

5. Conversely M/s. Tanveer Iqbal Khan, Advocate as well as Muhammad Ilyas Sheikh, Advocate learned counsel for the “respondents” seriously controverted the contentions of the former. It is contended that suit was decreed in haste. Learned counsel submitted that substituted service of the “respondents” was directed without adverting to the mandatory provisions of law. It is contended that the process of service was not only defective but collusive as well. Learned counsel argued with vehemence that the application was rightly accepted by the Courts below and concurrent findings are unexceptionable. In order to supplement their contentions, learned counsel placed reliance on Muhammad Aslam and others vs. Mst. Kundan Mai and others (2004 SCMR 843) and Mehr Din through Legal Heirs vs. Azizan and another (1994 SCMR 1110).

6. Learned Law Officer on the other hand submitted that revenue authorities have proceeded in accord with the judgment of the Civil Court.

7. Heard. Record perused.

8. Suit at hand was instituted by the petitioners on 17th December, 2008, whereby they sought a declaration to the effect that they being the legal heirs of Saffu son of Ladhu are owners of the suit land, which was wrongly recorded in the name of Saffu son of Dinu who was predecessor-in-interest of the “respondents”. The “respondents” were proceeded ex-parte on 28th March, 2009 by the Civil Court after resorting to mode of substituted service and finally suit was decreed ex-parte vide judgment dated 18th April, 2009.

9. A petition under Section 12(2) “C.P.C.” was moved by the “respondents” seeking annulment of ex-parte decree on multiple grounds, including fake reports qua service. It was asserted in the application that ex-parte decree was obtained through fraud and misrepresentation. The petition was seriously resisted by the petitioners, who submitted their comprehensive reply. In view of serious divergence in the respective stances of the parties, the learned Civil Judge deemed it appropriate to encapsulate the matter in controversy in the issues to the following effect:

ISSUES

i. Whether Respondent No. 1 to 14 has obtained the impugned judgment and decree dated 18.04.2009 by committing fraud, forgery and misrepresentation on the basis of fake reports? OPA

ii. Whether instant petition is not maintainable on its present form? OPR

iii. Relief.

1. Before adverting to the propriety of the judgments of the Courts below it would be apt to observe that Section 12(2) “C.P.C.” recognizes three eventualities for setting at naught a judgment, decree or order, which reads as under:

“12. Bar to further suit.--(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies.

(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.”

(Underlining supplied for emphasis)

It is thus manifestly clear from the above that a judgment, decree or order can be annulled by the Court, who passed the same if it is the product of fraud, misrepresentation or coram non judice.

1. From the contents of petition under Section 12(2) “C.P.C.” it clearly evinces that the “respondents” have mainly called in question the vires of ex-parte judgment and decree on the ground that it is founded on the fake and fictitious reports qua service. This was the reason that Issue No. 1 was specifically framed to this effect.

2. There is though a reasonable force in the contention of learned counsel for the petitioners that the Courts below have mainly adverted to the merits of the case while pondering upon the petition under Section 12(2) “C.P.C.” but at the same time one cannot lost sight of the fact that the core issue was also addressed by both the Courts unequivocally. Needless to observe that any deliberation on the merits of the case would certainly cause prejudice to the case of any of the side before the learned trial Court, so avoidance and restraint is more feasible.

3. It is trite law that against an ex-parte decree several remedies are available to an aggrieved person out of which first can be an application under Order IX Rule 13 “C.P.C.”, second a review application under Section 114, third an appeal under Section 96 and fourthly an application under Section 12(2) of the Code ibid when the decree is the product of fraud, misrepresentation and coram non judice. It is always upon the suitor to opt any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he had to elect and or choose from amongst host of actions or remedies available under the law. The “respondents” thus opted to move an application under Section 12(2) “C.P.C.” with the assertion that they were proceeded ex-parte on account of fake and faulty service reports. Reference in this respect can be made to Government of N.W.F.P. through Secretary Works and Services Department Peshawar and another vs. Messrs Cemcon (Private) Ltd. through Managing Director (PLD 2018 Peshawar 154)

15. Sub-section (2) of Section 12 “C.P.C.” provides a remedy to an aggrieved person to challenge the validity of judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction. An application to this effect lies before the Court, which passed the final judgment, decree or order. Sub-section (2) of Section 12 “C.P.C.” was added by virtue of the Code of Civil Procedure (Amendment) Ordinance, 1980 in the following manner:

“2. Amendment of Section 12, Act V of 1908.--In the Code of Civil Procedure, 1908) (Act V of 1908), hereinafter referred to as the said Code, Section 12 shall be re-numbered as subsection (1) of that section and, after subsection (1) re- numbered as aforesaid, the following new subsection shall be added namely:

“(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.”

Prior to insertion of sub-section (2) the person aggrieved has to institute a suit for the said purpose. By virtue of sub-section (2) a Court was vested with the power to set at naught its own judgment, decree or order if same is the product of fraud, misrepresentation or lack of jurisdiction. An application under Section 12(2) “C.P.C.” can either be decided summarily or after framing of necessary issues. Reliance in this respect can be placed on Muhammad Aslam and others vs. Mst. Kundan Mai and others (2004 SCMR 843) and Mrs. Amina Bibi through General Attorney vs. Nasrullah and others (2000 SCMR 296).

16. It is an inalienable right of every party to the lis to have a fair and ample opportunity to plead and defend his/her cause before the Court. The main object of service of summons is that defendant should have notice of case against him and the Court in which he has to appear. The defendant should be given requisite information at a time when he is able to appear and defend the suit. In order to ensure due service all that is required is that there should be substantial compliance with the provisions relating to service of summons. Due service is the first fundamental right of a person, who has to defend his cause before Court of law which is even duly recognized by the principles of natural justice. Due service of summons is not a formality but a matter of such importance that Courts are obliged that before deciding the service to be sufficient must be satisfied that all requirements of law have been strictly complied with. This becomes more inevitable when the service is not personal but substituted.

1. Order V “C.P.C.” relates to issue and service of summons. Ex-parte proceedings were ordered against the “respondents” while resorting to the mode of substituted service through publication in newspaper. Order V Rule 20 “C.P.C.” prescribes the mode of substituted service, which is reproduced below for ready reference and convenience:

“20. Substituted service.--(1) Where the Court is satisfied that there is reason to believe that the defendant is 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, the Court shall order for service of the summons by--

(a) affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or (b) any electronic device of communication which may include telegram, telephone, phonogram, telex, fax, radio and television; or (c) urgent mail service or public courier services; or (d) beat of drum in the locality where the defendant resides; or (e) publication in press; or (f) any other manner or mode as it may think fit:

Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously.

Effect of substituted service.--(2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

Where service substituted time for appearance to be fixed.--(3) Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require which shall not ordinarily exceed fifteen days.”

Though Rule 20 provides the mechanism of substituted service but before resorting to said provision of law it is incumbent upon the Court to ensure the compliance of Rules 16, 18 & 19 of Order ibid.

8. In terms of Rule 16 it is obligatory for a serving officer who delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, that he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. Rule 18 further directs the manner of service in which the same is served, to mention the name and address of the person (if any) and identify the person served and witnesses of the delivery or tender of the summons. Rule 19 further goes on to lay down the procedure for the Court that where a summon is returned under Rule 17 aforesaid duly verified, the serving officer shall be examined on oath and may make such inquiry in the matter as it thinks fit and shall either declare that the summons is duly served or as it thinks fit and after his full satisfaction to proceed further. The provisions mentioned hereinabove are not illusory but it is bounden duty of the Court to make substantial compliance of the same before directing the substituted service in terms of Order V Rule 20 “C.P.C.”. The Court for the said purpose has to satisfy itself that all the efforts to effect service in the ordinary mode have failed. Non- adherence to the mandatory provisions would render the process invalid and the edifice built thereon would automatically fall down. Reliance in this respect can be placed on Mrs. Nargis Latif vs. Mrs. Feroz Afaq Ahmed Khan (2001 SCMR 99), Mubarak Ali vs. First Prudential Modaraba (NLR 2010 Civil 405), Haji Akbar and others vs. Gul Baran and 7 others (1996 SCMR 1703) and Fazal Hussain vs. Mst Husna Bano (1995 MLD 170).

1. In the case of Wapda vs. Ghulam Hussain (2000 CLC 530) this Court, while outlining the scope and object of Order V Rule 20 “C.P.C.” held as under:

“12. The object behind substitutive service is that the defendant may either himself learn about the proceedings pending against him in the Court, or he may be informed by some other person, who has read such notice in the newspaper, in case the defendant has not read the same. Another object behind service through publication is that the proceedings in the suit may continue and the same may not be defeated, merely because the defendant cannot be served with summons in the ordinary manner.

1. The petitioner had made no attempt to avoid acceptance of service in ordinary way. The Trial Court by ordering substitutive service without justifying the legal position had proceeded against the petitioner ex-parte.

2. Notice of a proceedings is a basic right of party and notice by substituted service cannot be ordered unless Court comes to the conclusion that party was avoiding service of notice or personal service was not reasonably practicable upon all defendants. Mere issue of notice several times upon the defendants/party without any report of bailiff, that it was not reasonably practicable for him to serve such notice, would not lay foundation for publication of notice. In this context a reference can be made to a case of M. Saadullah and 28 others v. Tahir Ali and 2 others 1986 CLC 2643, Major Taj-ud-Din and others v. Muhammad Akhtar and others 1989 CLC 2183, Shakoor Hussain v. Muhammad Sadiq 1991 MLD 67, Javed Raza v. Razi Ahmad 1991 MLD 2602, Major (Retd.) Muhammad Yusuf Baig v. Mst. Saeeda Parveen 1984 CLC 668.”

Reliance in this respect can also be placed on Syed Sajjad Hussain Shah vs. Messrs Federation of Employees Cooperative Housing Societies Ltd. through General Secretary (2003 CLC 1011).

20. A glimpse of record made it abundantly clear that proper procedure was not observed in effecting service upon the “respondents”. No active or concrete effort was made for their personal service. The resort to the substituted service in the circumstances was not only highly unwarranted but sketchy. The process of service was thus on the one hand tainted with procedural material irregularities and on the other fraught with illegalities. It is also evident that the Court while decreeing the suit acted in haste, which casts serious aspersions on the proceedings of trial as well.

1. There can be no second opinion with regard to the principles enunciated by the Hon’ble Apex Court in the cases of Lal Din etc. and Sain supra but the facts of the case at hand are clearly distinct and apart whereas judgment of the learned High Court (AJ&K) in the case of Muhammad Younas supra is not at all applicable to the present case.

2. On the contrary the case of Mehr Din through Legal Heirs vs. Azizan and another (1994 SCMR 1110) is quite relevant wherein the Hon’ble Supreme Court of Pakistan held as under:

“The perusal of the application filed by the respondents before the trial Court for setting aside the ex-parte decree dated 29-7-1967 would show that the same was filed under Order 9 Rule 13 (wrongly written as Rule 2) read with Section 12(2), C.P.C. on the grounds that the decree was obtained by fraud, misrepresentation and false statement of which they got the knowledge when the suit for the recovery of produce of the disputed land was filed against Karim Bakhsh who was in cultivating possession thereof as a tenant of the respondent. The sum and substance of the petition is that the decree holder practised fraud in the service of summons and kept the pendency of the suit against the respondents concealed from them by fraud and misrepresentation. The copies of the summons placed on the file reveal that proper procedure was not observed in effecting service upon the respondents who were admittedly Pardanashin ladies and special care had to be taken to inform them of the filing of the suit. The report on the first summons show that the respondents informed the process-server that in the absence of their attorney they cannot sign or thumb-impress the summons while at the time of visit of the process server for the second time for effecting service, the respondents were not present in their house. No effort was made to personally serve the respondents in the presence of their close relatives. The learned High Court has exhaustively incorporated the relevant provisions of C.P.C. pertaining to service on the parties which have not been complied with and the High Court justifiably felt inclined to annul the ex-parte decree against the ladies/respondents and ordering de novo trial.”

1. It is also noteworthy that application under Section 12(2) “C.P.C.” was not decided summarily rather fate of the case was determined after framing of necessary issues and recording of evidence of both the sides. Record is indicative of the fact that both the sides being conscious of the controversy produced their evidence which was appraised by the Courts below in a beneficent manner. Even otherwise glaring flaws in the mode of service are floating on the surface of record which were sufficient to erode the validity of ex-parte judgment and decree.

24. There are concurrent findings of facts recorded by both the Courts below. It is trite law that writ jurisdiction should be exercised rarely and sparingly when Courts of competent jurisdiction proceeded to lay the matter in controversy at rest after due application of judicial mind to the facts of the case. Guidance in this respect can be sought from Amjad Khan vs. Muhammad Irshad (Deceased) through LRs (2020 SCMR 2155) and Chief Executive Mepco and others vs. Muhammad Fazil and others (2019 SCMR 919).

25. The nutshell of above discussion is that the petitioners have failed to point out any illegality or perversity in the impugned judgments warranting interference by this Court in exercise of constitutional jurisdiction. As a sequel thereof, this petition fails and is hereby dismissed with no order as to costs. The connected petition (Writ Petition No. 2954 of 2017) as a consequence is allowed.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 246

Present: Shahid Bilal Hassan, J.

RanaMUHAMMAD SALEEM--Petitioner

versus

ADDITIONAL DISTRICT JUDGE and others--Respondents

W.P. No. 25033 of 2014, decided on 9.2.2021.

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----Ss. 9 & 10--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of maintenance allowances, dower amount and delivery expenses--Consolidated judgment--No evidence regarding snatching of gold ornament by petitioner--Financial status of petitioner--Courts below keeping in view needs of minors and Respondent No. 3 as well as financial status of petitioner while appreciating evidence on record have rightly fixed maintenance allowance of Respondents No. 3 to 5--Findings recorded by Courts below on this score do not call for any interference which are upheld and maintained--Gold ornaments are considered to be in possession of women folk, being their personal gifts and property as well as dear to them and when there is no evidence on record showing that same were snatched by petitioner, findings recorded by appellate Court on this point are exceptional and do not call for any interference at this stage--There appears no legal infirmity or error in impugned judgments and decrees warranting interference by High Court in exercise of extraordinary constitutional jurisdiction--Petition dismissed. [P. 248] A, B & C

Mr. Azam Jan Muhammad, Advocate for Petitioner.

Mr. Adeel Khawar Nahra, Advocate Vice Counsel for Respondents No. 3 to 5.

Date of hearing: 9.2.2021.

Order

This single order will dispose of the captioned petition as well as connected W.P. No. 25670 of 2014, as in both one and the same judgments and decrees have been impugned.

1. Precisely, the Respondents No. 3 to 5 instituted a suit for recovery of maintenance allowance, dower amount, 3 tolas golden ornaments and delivery expenses of Respondent No. 5 against the present petitioner Rana Muhammad Saleem, which was duly contested by him while submitting written statement. Out of divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties was recorded. The learned trial Courtvideimpugned judgment and decree dated 22.01.2014 in the following terms:

'------- Plaintiff No. 1 is entitled to receive maintenance allowance @ Rs. 1500/- per month from the date of her expulsion i.e. 10.04.2011 till the existence of marriage and plaintiffs No. 2, 3 are entitled to receive maintenance allowance @ Rs. 2000/- each per month from the date of their birth till the age of majority of Plaintiff No. 2 and till the marriage of Plaintiff No. 3 with 10% annual increment. Further Plaintiff No. 1 is entitled to receive Rs. 20,000/- and three tola gold ornaments as dower amount or its alternative current value. Further Plaintiff No. 1 is entitled to receive Rs. 20,000/- as delivery expenses from the defendant.'

Both the parties being aggrieved of the said judgment and decree preferred separate appeals. The learned appellate Court vide impugned consolidated judgment and decree dated 02.07.2014 partly allowed appeal preferred by the petitioner and set aside the judgment of learned trial Court to the extent of dower and dismissed claim of the Respondent No. 3 with regards to dower; hence, the instant constitutional petition as well as connected W.P. No. 25670 of 2014.

1. Heard.

2. In the instant constitutional petition, the petitioner has only called into question the impugned judgments and decrees to the extent

of quantum of maintenance allowance; however, it is observed that the learned Courts below keeping in view the needs of the minors and Respondent No. 3 as well as financial status of the petitioner while appreciating evidence on record have rightly fixed the maintenance allowance of the Respondents No. 3 to 5. The findings recorded by the learned Courts below on this score do not call for any interference which are upheld and maintained.

5. So far the claim of the dower of Respondent No. 3 is concerned, the learned appellate Court considering the contents of the Nikahnama has rightly observed that the dower was fixed as Rs. 20,000/- and in lieu thereof 3 tolas gold ornaments were given to the Respondent No. 3 by the petitioner. The gold ornaments are considered to be in possession of the women folk, being their personal gifts and property as well as dear to them and when there is no evidence on record showing that the same were snatched by the petitioner, the findings recorded by the learned appellate Court on this point are exceptional and do not call for any interference at this stage.

6. In view of the above, there appears no legal infirmity or error in the impugned judgments and decrees warranting interference by this Court in exercise of extraordinary constitutional jurisdiction. Resultantly, the petition in hand as well as connected W.P.No. 25670 of 2014 being without any force and substance stand dismissed with no order as to the costs.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 248

Present: Muhammad Sajid Mehmood Sethi, J.

MUHAMMAD SAIF ULLAH--Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY through D.G. and others--Respondents

C.R. No. 211935 of 2018, decided on 8.9.2021.

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

----S. 115 & O.XXI R. 23-A--Dismissal of objection petition--Concurrent findings--Suit filed by petitioner was decreed subject to payment of market value--Assessment of plot--Issuance of letter regarding deposit of interim cost of plot--Nature of plot was commercial in nature--Report of price assessment committee--Challenge to--Exceptions of law--Revisional jurisdictional--Suit was decreed subject to payment of its market value and it has nowhere been shown by petitioner that market value of plot in question has not been assessed by respondent-LDA in accordance with law--Concurrent findings of Courts below cannot be interfered with in routine, while exercising revisional jurisdiction under Section 115, CPC, unless there is any jurisdictional defect, material irregularity or gross illegality occurred therein counsel for petitioner has failed to bring his case within four corners of said exceptions of law, which are sine qua non for exercising revisional jurisdiction--Revision petition dismissed. [Pp. 250 & 251] A, B & C

Rana Rashid Akram Khan, Advocate for Petitioner.

Sahibzada Muzaffar Ali Khan, Advocate/Legal Advisor for Respondent-LDA.

Date of hearing: 8.9.2021.

Order

Through instant revision petition, petitioner has assailed judgments dated 01.02.2011 & 14.04.2018, passed by learned Civil Judge and Additional District Judge, Lahore, respectively, whereby petitioner's objection petition was concurrently dismissed.

1. Brief facts of the case are that during execution proceedings, petitioner filed objection petition on the ground that respondent-LDA/judgment-debtor mala fidely issued letter dated 31.10.2007 along with challan form in respect of interim cost of Plot No. 147, Nishter Block, Allama Iqbal Town, Lahore, measuring 07-Marlas 60-Sq. ft., assessing average market price of Rs. 1,58,46,160/- at the rate of Rs. 21,78,000/- per Marla; that said challan is not assessed according to average market price; and that the report of price assessment committee and aforesaid challan are forged and collusive, thus, liable to be cancelled. Respondents contested the objection petition by filing written reply. Learned Executing Court, after framing issues, recording evidence and hearing arguments of both sides, proceeded to dismiss the objection petitionvide judgment dated 01.02.2011. Petitioner challenged aforesaid order by way of filing appeal before learned Appellate Court, which was also dismissedvide judgment dated 14.04.2018. Hence, this revision petition.

2. Learned counsel for petitioner submits that the market price of the plot in question has to be assessed on the basis of value of property in the year 2003, but the needful has not been done, therefore, higher price is being demanded which is against the direction contained in decree dated 27.09.2003. In the end, he submits that impugned judgments are unsustainable in the eye of law. In support, he referred to order dated 20.04.2005, passed by this Court in C.R. No. 2289 of 2004, which was affirmed by the Hon'ble Apex Court vide order dated 15.03.2007.

3. Conversely, learned Legal Advisor for respondent-LDA defends the impugned decisions by contending that the Price Assessment Committee, LDA has rightly assessed the average market price as per the decree passed by learned Trial Court, therefore, instant petition is liable to be dismissed.

4. Arguments heard. Available record perused.

6. Perusal of record shows that petitioner while appearing as AW-1 has admitted that suit plot is commercial in nature and there is a 30-feet wide road in front of the suit plot. The suit was decreed subject to the payment of its market value and it has nowhere been shown by the petitioner that market value of the plot in question has not been assessed by the respondent-LDA in accordance with law.' Learned Appellate Court, after appreciating the entire record, has rightly observed as under:

"10. The above-referred depositions of AW1 reveal that the disputed plot is commercial in nature. Perusal of judgment and decree dated 27.09.2003 reveals that appellant/decree holder claimed allotment of suit plot on the basis of his long standing possession. He always shown his readiness to pay the market rate of the suit plot to the LDA. In that scenario, the suit was decreed subject to the payment of its market value. In order to support objection petition, the appellant produced one Ghulam Farid as AW-2 and Tariq Mehmood AW-3. Both AW-2 and AW-3 are the residents of Nishtar Colony, Allama Iqbal Town, Lahore. They are not the experts regarding the assessment of market value of properties. AW-2 namely Ghulam Farid deposed that he is the owner of nearby Plot No. 149. The copy of auction letter of that plot in the name of previous owner has been produced as Ex.A4 whereby the said plot was auctioned on 13.09.1984 at the price of Rs. 36,000/- per marla. AW-2 also produced the copy of agreement to sell of said Plot No. 149 as Ex.A-6, whereby he allegedly purchased it in total consideration of Rs. 14,00,000/-. The said agreement was allegedly executed in the year 2001. Both of the above referred documents cannot be considered because the Ex.A4 pertains to the year 1984 and Ex.A6 is a private document. The value of property in the year 1984 cannot be compared with the value of property existing at the time of institution of present execution petition in the year 2006. So, evidence of AW2 is of

no help to the case of appellant. Similarly, evidence of AW3 is also of similar nature and the same cannot be safely relied upon."

7. Learned counsel for petitioner has failed to point out any illegality or legal infirmity in the impugned decisions. Even otherwise, the concurrent findings of learned Courts below cannot be interfered with in routine, while exercising revisional jurisdiction under Section 115, CPC, unless there is any jurisdictional defect, material irregularity or gross illegality occurred therein. Learned counsel for petitioner has failed to bring his case within the four corners of the said exceptions of law, which are sine qua non for exercising revisional jurisdiction. The case law relied upon by learned counsel for petitioner, being on distinguishable facts and circumstances, is not attracted to the present scenario.

1. In view of the above, instant petition, being devoid of any merit, is hereby dismissed with no order as to costs.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 251 [Multan Bench Multan]

Present: Shahid Jamil Khan, J.

ALI SHER KHAN--Petitioner

versus

DISTRICT & SESSIONS JUDGE, MULTAN and others--Respondents

W.P. No. 8048 of 2021, decided on 3.6.2021.

Constitution of Pakistan, 1973--

----Arts. 192, 199 & 208--Appointment on various posts--Excess appointments--Appointment order were challenged--Rejected--Enhancement of posts--Lack of transparency--Irregularities--Recruitment policy--Fundamental right--Direction to--Deficiency in mandatory requirements of advertisement--Respondents were confronted to show any direction or instruction, in Notification or otherwise, from LHC to include enhanced posts in same process, but they failed--Posts enhanced through Notification were included in recruitment process, without being advertised, mandatory requirements of advertising ‘All Post’ and ‘Clear-cut Vacancies’ are not met--This deficiency has rendered whole recruitment process, except 27 posts of drivers, as illegal and it is held accordingly--Petition allowed. [Pp. 255 & 260] A & C

2005 SCMR 955 and 2003 PLC (CS) 1029 ref.

Constitution of Pakistan, 1973--

----Art. 208--Power to make rules--Under Article 208 of Constitution, Lahore High Court is empowered to make rules providing for appointments of officers and servants of Court including their terms and conditions of employment. [P. 265] D

Constitution of Pakistan, 1973--

----Art. 192--High Court--High Court, as defined under Article 192 of the Constitution, consists of a Chief Justice and Judges of the High Court. [P. 267] E

High Court Rules and Orders--

----Chap. 10, Vol. V, Rr. 1 to 4--Powers of administrative committee--Rules 1 to 4 deal with Constitution and powers of Administrative Committee, which is to control administrative and executive work of High Court. [P. 267] F

Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974--

----R. 17--Initial recruitments--Initial recruitments, against all posts in BS-1 and above, are made on merits (after examination or test).

[P. 258] B

Chaudhary Muhammad Khalid Mehmood, Advocate for Petitioner.

Malik Shaukat Mehmood Marha, Assistant Advocate General, Punjab assisted by Abdul Qayyum, Staff Officer, Faisal Shahid, English Clerk and Altaf Hussain Bhatti, ACOC, office of District & Sessions Judge, Multan for Respondents.

Date of hearing: 3.6.2021.

Judgment

Petitioners (in captioned and connected petition; W.P. No. 8049 of 2021) have challenged appointments, on various posts, by District and Sessions Judge Multan, alleging illegalities in procedure, lack of transparency and favoritism.

Directions were given, in earlier Petitions, for decision on representations, highlighting the grievance ibid. Orders dated 21.04.2021 passed in compliance are assailed, rejecting the allegations and petitioners’ claim for appointment.

1. Facts: briefly are that advertisement for the posts: of Junior Clerk (BS-11), Process Server (BS-07), Driver (BS-05), Naib Qasid (BS-03) and Watchman (Chowkidar) (BS-03), were published on 19.01.2021 (‘Dunya News’), 20.01.2021 (‘The Nation’) and 23.01.2021 (‘Khabrain & Express Multan’). Except for the posts of Watchman (Chowkidar), the procedure for appointment on all other posts was through written test and interviews.

The irregularities, voiced through these petitions relate to scrutiny of applications, conduct/result of written test and call for interview. The legal defect, as pointed out, is that the impugned appointments (excluding the posts of Driver) are in excess of the number of posts advertised.

1. Learned counsel for the petitioners submitted that the impugned orders, passed on direction by this Court, are silent about the irregularities pointed out in the representation, being decided by discussing, only, merits of the petitioners’ case.

Arguing on absence of transparency and irregularities; he submitted that written tests, for all the posts (excluding Chowkidar/Watchman), were conducted on 18.02.2021 and result was declared on the same date, which raised reasonable suspicion on transparency of the process. Contended that the result in written test, of the candidates for all posts, ibid, could not possibly be prepared manually and declared on same day. He informed that the result of successful candidates was in order of their serial numbers, appearing in the list of the candidates called for written test, after scrutiny of the applications. Contended; it was not practically possible that the candidates, qualifying written test, secured marks in line with their assigned serial numbers. His next contention was that successful candidates, reflecting at Sr.No. 2, 20, 25, 26 and 27 never appeared in the written test but their names were shown in the list of candidates called for interviews. By referring to the number of advertised posts and appointments made, he challenged the validity of the recruitment process, contending it to be in violation of mandatory rules.

1. In response to the notice, Mr. Abdul Qayyum (Staff Officer), Faisal Shahid (English Clerk) and Altaf Hussain Bhatti (ACOC) from the office of District & Sessions Judge, Multan appeared along with record.

Responding to the arguments on lack of transparency and irregularities, it was not denied that the list of candidates, declared successful in written tests, was as per their serial numbers, in the list for written tests. However, explained that merit wise list was available, but never displayed on website. Mr. Faisal Shahid, English Clerk being part of the process, could not deny that candidates at Serial Nos.2, 20, 25, 26 and 27, were never shown in the list of successful candidates in written test, however, explained that name of the above noted candidates were included in the revised list after removing objections on their applications during initial scrutiny, which was displayed on the website on 15.02.2021. On Courts’ query, he apprised that none of the lists is available now on the website. He could also not explain how, in presence of objection on application, a person could be allowed to appear in interview, and that too without reflecting his name in the list of candidates, who passed written test.

Learned counsel for the petitioners, in rebuttal, has referred to list dated 18.02.2021 (Annex-K) of successful candidates in written test, wherein name of above noted persons are not mentioned.

1. Responding to the appointments in excess of the advertised posts, it is apprised that appointment against 27 posts of Drivers (BS-05) were in accordance with the advertisement. However, it is admitted that appointments in rest of the categories are in excess of the posts, advertised in newspapers, detail of which is as under:

• 34 posts of Junior Clerk (BS-11) were advertised, whereas appointments are made against 86 posts.

• 27 posts of Process Server (BS-07) were advertised, whereas appointments of 57 posts have been made.

• 22 posts of Naib Qasid (BS-03) were advertised, whereas appointments were made against 65 posts.

• 04 posts of Chowkidar (BS-03) were advertised, whereas appointments were made against 12 posts.

On Court’s query, it was explained that the posts were enhanced, during recruitment process, vide Notification dated 08.02.2021, which were included in the same process without fresh publication. The Notification is reproduced:

“LAHORE HIGH COURT, LAHORE

ORDER

In exercise of powers conferred vide sub para (iii) of the Government of the Punjab, Finance Department’s Notification No. Judl-1-X (Home)/89, dated 8.10.1995, the Hon’ble Chief Justice has been pleased to accord sanction to the creation of following 100 new posts in respect of Sessions & Civil Courts, Multan as per details given below, with immediate effect.

Sessions Courts:

| | | | | | --- | --- | --- | --- | | Sr. No. | Description | BPS | No. of Posts. | | 1. | Junior Clerk | 11 | 34 | | 2. | Watchman | 03 | 08 | | 3. | Naib Qasid | 03 | 28 | | | Total | | 70 |

Civil Courts:

| | | | | | --- | --- | --- | --- | | Sr. No. | Description | BPS | No. of Posts. | | 1. | Process Server | 07 | 30 | | | Total | | 30 |

1. The expenditure involved will be met out of the existing budget grant under function No. PC21011-Administration of Justice-031101-Courts/Justice-LQ4114-Sessions -Court-MN4013-Session Court Multan & LQ4115-Civil Court-MN4015-Civil Court, Multan for the current financial year, 2020-21.

(ATA-UR-REHMAN)

Deputy Registrar (P&B) for Registrar

6. Respondents were confronted to show any direction or instruction, in the Notification or otherwise, from Lahore High Court to include the enhanced posts in the same process, but they failed. Learned AAG, assisted by the Staff Officer and others were asked to assist, by referring to any rule or law, which permits for appointments against enhanced posts in the recruitment process already initiated, without fresh advertisement, they could not refer to any provision.

On Court’s query, learned AAG submits that recruitments are made under Recruitment Policy, 2004 dated 17.09.2004 (“Policy of 2004”). In support, he has read instructions letter dated 27.07.2011, issued by the Additional Registrar (G&S), Lahore High Court, Lahore, which made Policy of 2004 applicable for appointment in Lower Judiciary from BS-01 to BS-16.

1. Arguments heard; perusal of the record and statements from respondents’ side leaves no doubt that the process of appointments in question was not transparent and full of irregularities.

Transparency is a condition of seeing through, like from glass, into the process of recruitment. It stems from Article 19A of the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution), which ensures fundamental right of “access to information in all matters of public importance.” Transparency is a tool; not only for ensuring but for showing that the procedure adopted is unbiased, provides equality of status and opportunity to each eligible candidate, for achieving the goal of recruiting the most suitable person. As the famous aphorism of Lord Hewart goes, “justice should not only be done, but should manifestly and undoubtedly be seen to be done.” The philosophy underlying manifestation and transparency is to maintain confidence of general public in the system. Selection and appointment of “Right person for right job” is the bedrock of ‘Social Justice’. As preamble of the Constitution, reveals that vision of Quaid-e-Azam Mohammad Ali Jinnah was ‘a democratic State based on Islamic Principles of Social Justice’. It envisions to guarantee fundamental right including equality of opportunity. And when it comes to an institution like judiciary, the standards of transparency, to ensure fairness through unbiased treatment for all candidates should be unmatched and unflinching.

1. The Respondent No. 1(District & Sessions Judge Multan); being Appointing Authority under The Punjab Civil and Sessions Court Establishment (Miscellaneous Post) Service Rules, 2005 (“Rules of 2005”), is the highest Judicial Officer of the district, bestowed with duty to recruit against the posts in machinery of judicial system. He was bound to follow and apply, stringently, the instructions given by Lahore High Court through Notification dated 27th of July, 2011, which is reproduced:

“LAHORE HIGH COURT, LAHORE

No. 17540/6-E/VII.A.27

From

Atta-ur-Rehman Additional Registrar (G&S), Lahore High Court, Lahore.

To

The District and Sessions Judges, In Punjab, except Islamabad.

Dated Lahore, the 27 day of July, 2011.

Subject: RECRUITMENT OF STAFF.

Dear Sir, I am directed to refer to the subject cited above and to say that the Competent Authority has directed to circulate a booklet (as enclosed herewith), well indexed comprising of Recruitment Policy 2004, copies of letters regarding observance of certain quotas in vacancies to be filled in and copies of necessary directions/notifications/letters issued by Government of the Punjab as well as of this Court on the subject to be taken into account of recruitments of staff in every Sessions Division in Punjab, except Islamabad, while also directing you as under:-

1. Henceforth the Recruitment Policy 2004 will be followed out, in lower judiciary, while making fresh selections for the posts in BS-01 to BS-16.

2. The applications to be considered under Rule 17-A of the A&CS Rules 1974 will be disposed of separately before the general recruitments, against available vacancies and shall not be made a part of general recruitments.

3. Hence forth, the Reference for seeking approval to the selections for different categories of posts shall not be sent to this Court in combined form rather the references regarding each category of posts shall be made received in this Court, segregatedly.

4. Directions/instructions of Government of the Punjab as well as of this Court shall be complied with in letter & spirit and for deviations/evasions, to the instructions of Government of the Punjab as well as of this Court, in addition to the learned members of recruitment Committee, Superintendent of respective learned District and Sessions Judge and COC of the respective Senior Civil Judge as the case may be shall also be held responsible.

5. To consider the district of domicile of a candidate, permanent address shown in his CNIC, shall be taken as a yardstick for the purpose.

6. All the recruitment records (only duplicate copies) properly indexed, shall be sent to this Court through special messengers, except the papers and applications of candidates which will be made received in this Court in the shape of small sized bundles, having serial wise specific number of the same, duly mentioned in the index attached, alongwith main reference.

Yours faithfully, (Atta-ur-Rehman) Additional Registrar(G&S)”

Recruitment Policy, 2004, issued by Government of the Punjab on 17.09.2004, was directed to be followed, besides implementing instructions and letters (part of the Booklet). The clause (4) renders compliance of the directions, under the Notification, as mandatory, because consequence of any deviation is fixation of responsibility, followed by an action. Needless to say, that any deviation from the mandatory direction, instruction including Recruitment Policy 2004, would go to the roots of the recruitment process in question.

9. The Recruitment Policy of 2004, under the heading LEGAL POSITION, refers to various provisions of law, relevant for recruitments, and its clause (v) mentions Rule 17 of The Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 (“Rules of 1974”) to ensure that initial recruitments, against all posts in BS-1 and above, are made on merits (after examination or test). The Policy, under the head MERIT BASED RECRUITMENT, requires advertisement of All Posts and recruitment strictly on merits. The head STEPS OF RECRUITMENT PROCESS, reiterates that recruitment should be strictly on the basis of merit/selection criteria and ensures that “recruitment is made against clear-cut vacancies”. The Rule 17 and excerpts from the Policy of 2004 are reproduced for facility:

“Rule 17. Initial appointments to all posts in Grade 1 and above except those filled under Rule 16, shall be made on the basis of examination or test to be held by the appropriate Committee or the Board, as the case may be, after advertisement of the vacancies in newspapers, or in the manner to be determined by the Government.”

“4. LEGAL POSITION

v). Rule 17 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 requires that initial recruitment against all posts in BS-1 and above shall be made on merit after advertisement of vacancies in newspapers.”

“8. MERIT BASED RECRUITMENT

a) All posts shall be advertised properly in at least two leading newspapers, as per rules.

b) No relaxation of qualification, experience, physical criteria etc. as provided in the relevant service rules shall be allowed, except as prescribed under the rules.

c) The relevant Selection Committees shall ensure that recruitments are made strictly on merit and in accordance with the rules, selection criteria and other provisions of this policy.

13.STEPS OF RECRUITMENT PROCESS

i) Administrative Secretary and the Appointing Authority shall periodically update the detail of available vacancies, especially prior to recruitment and ensure that recruitment is made against clear-cut vacancies, after accounting for vacancies occurring due to leave deputation etc.

ii) Before advertising the posts, it shall be ensured that there is no bar on recruitment and recruitments shall be made only against posts for which specific approval has been granted either under the Recruitment Policy or by the Chief Minister.

iii) Appointing Authority shall advertise the posts in at least two national dailies indicating the qualification, etc. as prescribed in the Service Rules of the post.

iv) At least 15 days’ time, from the date of advertisement, shall be given for submission of applications.

v) After detailed scrutiny of the applications, the eligible candidates shall be issued call letters for test/interview, as the case may be.

vi) The relevant Selection Committee shall conduct test/interview and recommend suitable candidates for appointment, strictly on the basis of merit/selection criteria, to the appointing authority.

vii) The Appointing Authority, shall issue offer of appointments to the candidates recommended by the Selection Committee, clearly indicating the terms and conditions of such appointment.

viii) The terms and conditions of contract appointment must be prepared as per provisions of Contract Appointment Policy and got approved from Finance Department before issuing offers of appointment.

ix) Appointing Authority shall issue appointment/posting orders after the acceptance of offer and after ensuring that all the codal formalities have been fulfilled.

x) All the candidates shall be required to produce National Identity Card, domicile certificate and transcripts of qualifications, in original, at the time of interview.

xi) The Selection Committee shall ensure that the certificates/degrees of candidates are genuine and have been obtained from recognized institutions.”

[emphasis supplied]

Besides Notification dated 27.07.2011, by High Court, usage of words like strictly and shall, in the Policy of 2004, make implementation of the selection criteria mandatory i.e., advertisement of all and clear-cut vacancies followed by written test and call for interview in fair and transparent manner.

10. Admittedly, the posts enhanced through Notification dated 18.02.2021, were included in the recruitment process, without being advertised, therefore, mandatory requirements of advertising ‘All Post’ and ‘Clear-cut Vacancies’ are not met. This deficiency has rendered the whole recruitment process, except 27 posts of drivers, as illegal and it is held accordingly. The decision of declaring the whole process illegal is fortified by the law laid down by August Supreme Court of Pakistan.

In Mst. Nusrat Fatima and others v. Deputy Director (Admn.) Directorate of Elementary Education and others (2005 SCMR 955), leave to appeal was refused against Service Tribunal’s decision, by upholding its findings;

“4. … The Tribunal found from the record that no advertisement had been made to the press inviting applications for the posts and that the letters of the appointment had been issued by the District Education Officer from their residence and not by the Deputy District Education Officer. …”

In Muhammad Sadiq and another v. Federal Service Tribunal, Islamabad and others 2003 PLC (C.S.) 1029, the rule requiring advertisement of the post was declared mandatory and the appointments were declared illegal, despite a favorable opinion by the Law Division and the practice of departing from the rule for recruitments was deprecated as under:

1. The appointments of the petitioners undeniably were made in departure to the method for appointment prescribed under Rule 11 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Under the above rules, the post is necessarily to be advertised in the newspaper before initiating the process of selection departure from this mandatory rule would render the appointment invalid and the defect is not automatically cured with the lapse of time. Learned counsel submitted that the appointment of Malik Azhar Mahmood, Stenotypist in identical manner, was subsequently regularized and the present petitioners despite the opinion of the Law. Division in their favour, were discriminated. We are afraid, the opinion of the Law Division would not cure the illegality in the appointments made in violation of rules and the same cannot be approved and allowed to be perpetuated on the basis of a favourable opinion of Law Division. The act of making of the appointments in departure to the rules amounts to defeat the equal right of employment on merits, therefore, the appointments obtained by the petitioners would not create any right in their favour for regularization. The mere passage of time would not be a ground to allow the rectification of irregularity on the ground that the appointees should not suffer for the fault of concerned authorities. It is sad that the public functionaries through misuse of their powers without observing the rules make appointments to oblige their favourites and deprive the deserving persons from their legitimate right of service. We may observe that a holder of public office by misusing his authority in breach of law and public trust, is guilty of misconduct. The Government while taking notice, of such regularities should take appropriate action against the concerned authorities under the Government Servants (Efficiency and Discipline) Rules, 1973 to ensure the transparency in the appointments and to eradicate the element of favouritism and nepotism for advancement of policy of merits and fairness.

2. We having heard the learned counsel for the parties, find no substance in these petitions and while upholding the judgment of the Tribunal dismiss these petitions with the observation that the posts against which the petitioners were appointed shall not be filled without following the prescribed method provided under the rules and the petitioners shall also be entitled for appointment subject to their eligibility and merit. Leave is refused.

[emphasis supplied]

In Abdul Waheed and another v. Secretary, Ministry of Culture, Sports, Tourism and Youth Affairs, Islamabad and another (2002 SCMR 769), appointments by an Officiating Director, working temporarily as Competent Authority, were challenged. Though this objection was found without substance, nevertheless, the appointments were declared illegal for not following the prescribed procedure. Relevant part from the judgment is reproduced;

“We have considered the contentions raised by the learned counsel and found that same are without any substance. We may observe that despite there being no specific bar for exercise of powers of Competent Authority by an Officiating Director, still he would not be supposed to exercise such powers of appointment/promotion of the employees without the proper sanction and allocation of budget besides observing the prescribed procedures including 'advertisement of the posts in the newspaper. The appointments made by the Officiating Director without following the prescribed procedure would not be legal and consequently the petitioners would neither have any right to hold such posts nor were entitled to the salaries and other benefits attached with the said posts. The Tribunal having considered all aspects of the matter and the pleas taken on behalf of the petitioners in the appeals, held that the orders of appointments/promotion of the petitioners were illegal and void ab initio. The learned counsel for the petitioners has not been able to convince us that the view taken by the Tribunal was violative of any law to be interfered by this Court. In any case, the submissions made by the learned counsel have no substance and further these petitions do not involve any question of public importance. The same are, therefore, dismissed and leave is refused.”

[emphasis supplied]

1. The law laid down by the Apex Court also justifies to declare the appointments against the post of Drivers illegal as well, because observance of the recruitment criteria under the Notification dated 27th of July, 2011 and the Policy of 2004 is lacking.

It is admitted by respondents, during proceedings, that written tests were conducted and result was declared on the same day, without showing fairness or transparency from the record. List of the successful candidates was defective, for not being displayed, physically or electronically, as per the prescribed procedure. The candidates, shown as successful at Sr.No. 2, 20, 25, 26 and 27, admittedly were not declared successful in the written test but their names were reflecting in the list of candidates called for interviews.

For the reasons noted above, the whole process of recruitment and consequent appointments, including the posts of Drivers, are declared illegal, with a direction to initiate fresh process, with approval of the High Court, after advertising all clear-cut vacancies, strictly in accordance with the rules and law.

1. There is another departure from the directions No. 3 and 6 of the Notification dated 27th of July, 2011, by the High Court; which are reproduced, again, for facility;

2. Hence forth, the Reference for seeking approval to the selections for different categories of posts shall not be sent to this Court in combined form rather the references regarding each category of posts shall be made received in this Court, segregatedly.

3. All the recruitment records (only duplicate copies) properly indexed, shall be sent to this Court through special messengers, except the papers and applications of candidates which will be made received in this Court in the shape of small sized bundles, having serial wise specific number of the same, duly mentioned in the index attached, alongwith main reference.

[emphasis supplied]

It was necessary to seek approval of the process of recruitment, before issuance of appointment letters and record of all the recruitments was to be sent to the High Court.

On an information, sought from Senior Additional Registrar (Services) of Lahore High Court, it is informed that this requirement was dispensed with through Notification dated 19.06.2014, which is reproduced:

“LAHORE HIGH COURT, LAHORE

No. 33/RHC Dated: 19.06.2014

From

The Registrar, Lahore High Court, Lahore.

To

(i) All the District & Sessions Judges in the Punjab.

(ii) All the Senior Civil Judges in the Punjab.

Subject: POLICY ABOUT RECRUITMENT.

Dear Sir, I have been directed to refer to above subject and to circulate that the Hon’ble Competent Authority has taken a serious notice of unnecessary delays and general complaints regarding recruitment process of the staff of lower Courts Establishment. It has been reiterated by the Hon’ble Authority that the District & Sessions Judges and Senior Civil Judges being Competent Authority to recruit the staff under relevant Policy/Rules are also competent to take disciplinary actions under E&D Rules 1999, therefore, prior approval of advertisement alongwith recruitment criteria followed by approval of recommendations of Selection Committees from this Court is anomalous and uncalled for.

1. In view of above, the circular letter No. 509/RHC dated 17.07.2008 is hereby withdrawn and the recruitments for Lower Courts Establishments shall no longer require prior approval of this Court. Likewise, the recommendations of Selection Committees alongwith relevant record of recruitment process shall not be submitted in future for approval to this Court.

2. Consequently, the recommendations for recruitments yet to be considered by this Court, shall be returned to the relevant quarters for their final disposal under Recruitment Policy, 2004, Civil & Sessions Courts Establishment (Misc. Posts) Service Rules, 2005 and other relevant SORs issued from time to time.

(MAHBOOB QADIR SHAH) REGISTRAR”

It is important to note that through this Notification, Circular letter No. 509/RHC dated 17.07.2008 was withdrawn, without making any amendment in the Notification dated 27th of July, 2011, which, in this Court’s opinion, still holds the field and non-compliance of it, renders all the appointments as illegal. For this departure alone, the appointment letters issued without approval of the High Court are nullity in eye of law, being against the spirit of Article 208 of the Constitution.

13. Under Article 208 of the Constitution, Lahore High Court is empowered to make rules providing for the appointments of the officers and servants of the Court including their terms and conditions of the employment. Supervision and control of all the Courts, subordinate to it, is given by the Article 203. Both the Articles are reproduced:

“203. High Court to superintend subordinate Courts. Each High Court shall supervise and control all Courts subordinate to it.”

“208. Officers and servants of Courts. The Supreme Court [and the Federal Shariat Court], with the approval of the President and a High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Court of officers and servants of the Court and for their terms and conditions of employment.”

[emphasis supplied]

The supervision and control of the Courts subordinate to the High Court, as ordained in the Article 203, could not be abdicated, through Notification dated 19.06.2014. The Notification dated 27th of July, 2011 appears to be in accordance with Articles 203 and 208 of the Constitution, which delegates the power for recruitment of staff in every Sessions Division in Punjab with directions, instructions and rules to be followed. The observation, in Notification dated 19.06.2014, that ‘District and Sessions Judges and Senior Civil Judges are Competent Authority to recruit the ministerial staff’, seems to have emanated from the Notification dated 19th of September, 2005, whereby, Rules of 2005 are made, opening part of which is reproduced for a quick reference:

“GOVERNMENT OF THE PUNJAB SERVICES AND GENERAL ADMINISTRATION DEPARTMENT.

(REGULATIONS WING)

Dated Lahore the 19th September, 2005

NOTIFICATION

No. SOR-III(S&GAD)1-10/93 In exercise of the powers conferred upon him under Section-23 of the Punjab Civil Servants Act,1974 (VIII of 1974), the Governor of the Punjab is pleased to make the following rules:-

1. Short title and commencement:-

(i) These rules may be called, ‘The Punjab Civil and Sessions Courts Establishment (Miscellaneous Posts) Service Rules, 2005 …”

[emphasis supplied]

These Rules have declared the District and Sessions Judge and Senior Civil Judge as Competent Authority. The power for issuance of this Notification, is derived from Section 23 of The Punjab Civil Servants Act, 1974 (“Act of 1974”), which is in conflict with unambiguous command in Article 208 of the Constitution; envisaging framing of Rules by High Court with approval of the Governor concerned. The underlined part of the Rules of 2005, has to be read down for bringing it within competence, under the Article 208 i.e. on recommendation by the Lahore High Court, the Governor has approved the Rules. The Rule, so read down, has appointed the Competent Authority, through delegation without abdicating the control and supervision of the High Court, as ordained by the Article 203.

1. The use of phrase “Competent Authority” for Lahore High Court, in various Notifications and Circulars, does not commensurate with Articles 192 (1) and 202 of the Constitution, which are reproduced hereunder:

“192. Constitution of High Court.

(1) A High Court shall consist of a Chief Justice and so many other Judges as may be determined by law or, until so determined, as may be fixed by the President.”

“202. Rules of procedure.

Subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any Court subordinate to it.”

[emphasis supplied]

The High Court, as defined under Article 192 of the Constitution, consists of a Chief Justice and Judges of the High Court. The High Court have delegated “powers for administrative and executive work” to the Chief Justice and Administrative Committee, as are mentioned in Chapter-10 Volume V of the Rules and Orders of Lahore High Court, Lahore (“the Rules & Orders”). Rules 1 to 4 deal with the Constitution and powers of Administrative Committee, which is to control administrative and executive work of the High Court. The proviso to Rule 1, excludes only the matters, which are exclusive concern of the Chief Justice, i.e. ‘constitution of Benches’ and ‘appointment and control of the High Court Establishment’. Rule 5 enlists the matters, upon which meeting of all the Judges (Full Court) is required to be called invariably. Sub-rule (i) of Rule 5 requires a meeting of all Judges on matters involving “questions of principle and policy”, sub-rule (ii) ensures convening of Full Court meeting for matters relating to “amendments in existing laws or to statutory rules”.

1. For what has been discussed, this and connected petition (W.P.No. 8049 of 2021) are allowed with following declaration and directions:

i). The process of recruitment for all the posts, in question and consequent appointments are declared illegal, having no effect.

ii). For fixation of responsibility and consequent action against the responsibles, who committed illegalities and irregularities, ibid, the Registrar, Lahore High Court, Lahore is directed to place the matter before the Administrative Committee for consideration to appoint an Inquiry Committee.

iii). Since Notification dated 27th of July, 2011, by the High Court, is declared to holds the field, therefore, the Registrar of this Court is directed to place record of appointments in all the Districts of the Punjab by respective District and Sessions Judges and by Senior Civil Judges, before the Administrative Committee for

approval, in terms of Clause (1) and (6) of the Notification.

iv). The Registrar shall also place the Rules, Regulations and Laws, relevant for recruitment of ministerial staff in subordinate Courts, before the Administrative Committee, for their consideration to bring them in harmony with Articles 192(1), 202, 203 and 208 of the Constitution.

Petitions are allowed.

(Y.A.) Petition allowed

PLJ 2022 Lahore 268 (DB) [Multan Bench, Multan]

Present: Sohail Nasir and Ahmad Nadeem Arshad, JJ.

Syed RIAZ HUSSAIN SHAH--Petitioner

versus

GOVERNMENT OF PUNJAB and 2 others--Respondents

W.P. No. 15433 of 2021, decided on 21.10.2021.

Anti-Terrorism Act, 1997 (XXVII of 1997)--

----S. 19--Powers of constitution of JIT by special Court--Special Court through a detailed order directed to Chief Secretary Punjab Lahore to constitute (JIT)--Later on Respondent No.1, in exercise of powers conferred upon him under Section 19 of Act constituted a JIT to finalize investigation of case--Courts can interpret provisions of law but cannot change or substitute such provisions and also cannot go beyond wisdom of law; when spoken about judicial review--Provision of Section 19 of Act undoubtedly gives no power or authority to Special Court to constitute JIT or to issue a direction to Government in this regard--Special Court travelled beyond its jurisdiction while issuing direction for constitution of JIT pursuant to order hence this writ petition succeeds and allowed--Impugned order and in consequence thereof, notification issued by Respondent No.1 are declared illegal and without lawful authority--Once ‘investigation’ starts, either in cognizable or non cognizable offence then it has to be concluded after observing all legal formalities and moment it is completed, a report under Section 173, Cr.P.C (Challan) is to be forwarded to a Magistrate in form prescribed by Provincial Government.

[Pp. 271, 272 & 273] A, B, C, D, E & G

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

----Ss. 173 & 512--Recording of evidence--General rule is that evidence has to be recorded in presence of accused or in presence of his advocate, if his personal attendance is dispensed with whereas, proceedings under Section 512 Cr.P.C are exception to general rule with an aim to preserve evidence so accused may not take advantage of his illegal act of absconding--This is fair part of rule of game as it covers advantages for prosecution that it may not be at defeating end because of some clever move by an absconder--This interpretation is based on plain reading of Section 512 Cr.P.C where it provided that evidence so recorded may be given against accused on trial for offence with which he is charged, if deponent (witnesses) is dead of incapable of giving evidence etc. [P. 274] I

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

----S. 2(L)--Investigation--Word ‘investigation’ has been defined under Section 2(L) of Cr.P.C., which is as under:

“Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.” [P. 273] F

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

----Ss. 173--Submission of challan--On conclusion of investigation report (Challan) is to be submitted only under Section 173 Cr.P.C. and it has nothing to do with Section 512 Cr.P.C.--What the Section 512 Cr.P.C. is and when this provision plays its’ role?

[P. 274] H

Malik Muhammad Saleem and Mr. Abdul Rehman Ahmad Sadozai, Advocates for Petitioner

Malik Altaf Hussain Rawn, AAG for State.

Date of hearing: 21.10.2021.

Order

After hearing both the sides, a notice has been issued to the Government of Punjab/Respondent No. 1 and same is accepted by learned AAG.

1. In brief facts of the case are that with regard to a police encounter took place in the area of Mauza Jiani District Dera Ghazi Khan, FIR No. 260, on 10.11.2019, was recorded at Police Station Kot Mubarak District Dera Ghazi Khan on the complaint of Azhar Hussain S.I (complainant) under Sections 302/324/353/186/440/148/149/337-D PPC read with Section 7 of the Anti Terrorism Act, (XXVII of 1997) {Act} and Section 13 of the Punjab Arms (Amendment) Ordinance, 2015. During this occurrence four accused lost their lives besides one Muhammad Salman Constable/1114 whereas, remaining accused were succeeded to escape.

2. On conclusion of investigation, a report under Section 173 Cr.P.C (Challan) was submitted in the Anti Terrorism Court Dera Ghazi Khan (Special Court)[1] titled as “State vs. Ghulam Shabbir & 2 others”.

3. A person named Din Muhammad/Respondent No. 3 claiming to be one of the legal heirs of Abdullah and Ghulam Haider (the deceased accused) came forward with a version that it was fake police encounter. His narrative was recorded, investigated and concluded in the manners that Riaz Hussain Shah/DSP (petitioner) and Kamran Saif SI were declared innocent whereas, Chaudhary Azhar Hussain SI (complainant) was an accused of abetment (109 PPC). The Challan in this context titled as “The State vs. Riaz Hussain Shah & 2 others” was also submitted in the Special Court.

4. Din Muhammad was not satisfied with the investigation, so he filed a private complaint[2] against petitioner and two others for their prosecution under Sections 302/34 PPC in the Court of ordinary jurisdiction. On conclusion of preliminary inquiry,[3] processes were issued against all accused by the learned Additional Sessions Judge Dera Ghazi Khan and they turned up. However, vide an order dated 09.04.2021, the case was transferred through proper channel to the Special Court for the reason that the trial in State case was pending in that Court.

5. The final position therefore, was that two Challans and a complaint case came for hearing before the learned Special Court. Howevervide an order dated 16.07.2021, passed by the said Court in Challan case against petitioner and others, it was observed that Section 7 of the Act was not made out hence it was triable by the Court of ordinary jurisdiction. In the light of same order, a verdict was recorded in the complaint case therefore, both the cases were transferred to the Court of ordinary jurisdiction which now are pending in the Court of learned Additional Sessions Judge Dera Ghazi Khan. It will not be out of context to mention here that when the Challan against deceased accused was kept pending by the Special Court, there was no justification to transfer the remaining two cases to the Court of ordinary jurisdiction as all were relating to one and the same occurrence.

7. Coming to the proposition in hand, it is found that on 24.05.2021 the learned Special Court through a detailed order directed to Chief Secretary Punjab Lahore to constitute Joint Investigation Team (JIT) in the following manners:

“I issued the direction to the Chief Secretary Punjab Lahore to constitute JIT comprising upon:-

(i) District Police Officer.

(ii) Incharge Commanding Officer ISI and

(iii) Commanding Officer of M.I.

8. It appears that later on the Secretary Government of the Punjab/Respondent No. 1, in exercise of the powers conferred upon him under Section 19 of the Act constituted a JIT to finalize the investigation of the case. In addition to composition directed by learned Special Court, the Regional Police Officer CID Dera Ghazi Khan was also declared as one of the members.

1. Petitioner, being aggrieved from the order dated 24.05.2021 passed by the learned Special Court and notification dated 26.08.2021 issued by Respondent No. 1 has approached this Court through the instant writ petition.

2. Learned counsel for petitioner maintains that the learned Special Court was under no authority at all to direct the constitution of JIT, which was the exclusive domain of the Government hence the order dated 24.05.2021 is illegal therefore issuance of notification is also of no consequence.

3. Learned AAG does not dispute the legal proposition. When he is asked that how about one and the same occurrence, the learned Judge of the Special Court could transfer the two cases to the Court of ordinary jurisdiction, while retaining the main case in that Court against deceased accused? He is having no convincing reply at all.

4. HEARD

5. Section 19 (1) of the Act to resolve the proposition about constitution of JIT is relevant and is reproduced as under:

“Procedure and Powers of Anti terrorism Court. (1) An investigating officer under this Act shall be an officer or Police Officer not below the rank of Inspector or equivalent or, if the Government deems necessary Joint Investigation Team to be constituted by the Government shall be headed by an Investigating Officer of Police not below the rank of Superintendent of Police, (BS-18) and other officers of JIT may include equivalent rank from Intelligence Agencies, Armed Forces and Civil Armed Forces…………

(Emphasized)

14. These are the settled principles of law that the Courts can interpret the provisions of law but cannot change or substitute such provisions and also cannot go beyond the wisdom of law; when spoken about judicial review, it is also necessary to be alive to the concept of judicial restraint; the principle of judicial restraint requires that Judges ought to decide cases while being within their defined limits of powers; Judges are expected to interpret any law as per the limits laid down in the law; it is the source of law which the judges are called upon to apply and that Judges, when apply the law, are constrained by the rules of language.

15. The provision of Section 19 of the Act (ibid) undoubtedly gives no power or authority to the Special Court to constitute a JIT or to issue a direction to the Government in this regard. The words “if the government deems necessary JIT to be constituted by the government” are meaningful which have excluded the Special Court to exercise such powers therefore it is the exclusive domain of the government to or not to constitute JIT.

1. It is evident from an order dated 02.09.2021 passed by the learned Special Court and also an application of DPO Dera Ghazi Khan (Convener of JIT) the constitution was not by the government under its own powers but it was in compliance of the order issued by the learned Special Court. Therefore, if impugned order is declared illegal, the notification shall also take its last breath.

17. Concluding the discussion made above, we find no reservation in our mind that the learned Special Court travelled beyond its jurisdiction while issuing the direction for constitution of JIT pursuant to order dated 24.05.2021 hence this writ petition succeeds and allowed. The impugned order and in consequence thereof, notification issued by Respondent No. 1 are declared illegal and without lawful authority. However, this order shall not forfeit the powers of the Government to constitute a JIT at its own for further investigation in the case.

1. Before parting with this judgment we want to observe that the learned Special Court also committed a serious illegality while transferring the state case against petitioner and others and complaint case filed by Din Muhammad to the Court of ordinary jurisdiction for the reason that as in all three cases the occurrence is one and the same but with different versions, therefore, all have to be tried by one and the same Court as a rule of propriety and to avoid conflict decisions by two Courts. We therefore, direct that the cases pending in the Court of ordinary jurisdiction shall be deemed to be returned to and pending in the Special Court forthwith and all the cases shall be tried side by side.

2. We have also observed that in one of the Challans of this case on the top/heading it is written as:

چالان زیر دفعہ 512 ض ف

1. We have noticed such heading almost in every Challan where accused is declared Proclaimed Offender. This is done not only by police officers and Prosecution but also by the Courts. As this practice is illegal, so for this reason we consider it to hold that what the correct position of law is?

21. The word ‘investigation’ has been defined under Section 2(L) of Cr.P.C., which is as under:

“Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf”

1. The process of investigation starts on receipt of information of a cognizable or non cognizable offence (155 and 156 Cr.P.C.). In cognizable offence once FIR is recorded, a police officer requires no permission for investigation as he possesses all the powers under the law vested in him under Section 156 Cr.P.C.. The position however, is different when case relates to non-cognizable offence as the powers to investigate are dependent on authorization by the Magistrate (155 {2} Cr.P.C.). The moment he is allowed to exercise his authority, he starts enjoying all the powers to be exercised in cognizable cases except power to arrest the accused.

23. Once the ‘investigation’ starts, either in cognizable or non cognizable offence then it has to be concluded after observing all the legal formalities and the moment it is completed, a report under Section 173 Cr.P.C. (Challan) is to be forwarded to a Magistrate in the form prescribed by the Provincial Government.

1. The words “every investigation’ used in Section 173, Cr.P.C are significant and leaves no room of doubt that it may be in cognizable or non-cognizable offence, the report (Challan) has to be submitted in a form prescribed by the provincial government.

25. So it is the absolute legal position that on conclusion of investigation report (Challan) is to be submitted only under Section 173 Cr.P.C. and it has nothing to do with Section 512 Cr.P.C.

1. What the Section 512 Cr.P.C. is and when this provision plays its’ role? For better understanding it is reproduce as under:

“512. Record of evidence in absence of accused: (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

(2) Record of evidence when offender unknown: if it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court may direct that any Magistrate of the First Class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence. Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of Pakistan”

(Emphasized)

1. The role under the above provisions is post to submission of report (Challan) and that too when it is before the Court of competent jurisdiction because of the words used "the Court competent to try such person for the offence complained of”.

2. As after the words ‘offence complained of’ the word ‘may’ has been used, therefore, discretion to proceed under Section 512 Cr.P.C also lies with the Court to be performed keeping in view the facts and circumstances of each case and in particular if Court finds that there is no immediate prospect of arresting the absconder.

29. We have also observed that these proceedings are called “trial in absentia” which is not the correct approach. The general rule is that evidence has to be recorded in the presence of accused or in presence of his advocate/pleader, if his personal attendance is dispensed with whereas, proceedings under Section 512 Cr.P.C are exception to general rule with an aim to preserve the evidence so accused may not take advantage of his illegal act of absconding. This is fair part of rule of the game as it covers advantages for the prosecution that it may not be at defeating end because of some clever move by an absconder. This interpretation is based on the plain reading of Section 512, Cr.P.C where it is provided that the evidence so recorded may be given against accused on trial for the offence with which he is charged, if the deponent (witness) is dead or incapable of giving evidence etc.

1. We, therefore, direct that copies of this order shall be sent to Inspector General of Police and Prosecutor General of Punjab who shall circulate it to all the concerned with directions that this illegal practice to mention “Challan under Section 512 Cr.P.C.” (چالان زیر دفعہ 512 ض ف) shall be discontinued forthwith. Office is further is directed to send the copies of this order to all the judicial officers of the Punjab (including on ex-cadre) for their guidance and compliance in future.

(K.Q.B.) Petition allowed

[1]. Established under Section 13 of the Anti Terrorism Act, 1997.

[2]. Defined under Section 4(H) of Cr.P.C.

[3]. Defined under Section 4(K) and procedure provided under Section Chapter XVI (Ss. 200 to 203-C) Cr.P.C.

PLJ 2022 Lahore 275

Present:Shahid Jamil Khan, J.

FATIMA NADEEM--Petitioner

versus

PROVINCE OF THE PUNJAB and others--Respondents

W.P. No. 6700 of 2022, heard on 4.2.2022.

Constitution of Pakistan, 1973--

----Arts. 25, 37(c) & 199--Petitioner were appeared in special examination--Declaration of results--Request for including of improved marks--Obtaining of improved marks in special examination--Request of petitioner was declined--Online applications--Admission policy--Discrimination--Violation of fundamental rights--Delayed result candidates category--Direction to--Respondents’ side is unable to displace factual position that candidates selecting category of ‘delayed result candidates’ and petitioners are one class, being similarly placed for purpose of Article 37(c) read with Article 25 of Constitution--Petitioners and other candidates appeared accordingly in examinations and their results have been declared on same dates, a class has been created within similarly placed person, by introducing technical condition in computer system--Technicality introduced in system is though a policy matter but it offends fundamental right of 27 candidates under Constitution by creating a class within a class--Court is convinced that by rejecting request for substitution of marks, respondents are ousting them, for a technicality, from being considered on merit, which is violation of fundamental right--Respondent No. 3 is directed to ensure that improved marks of 27 applicants, including petitioners, are included in their respective applications for admission by substituting original marks till 06.02.2022 and considered improved marks, while preparing merit list for admissions for MBBS/BDS in question--Petitions allowed.

[Pp. 281 & 282] A, B, C & E

Constitution of Pakistan, 1973--

----Art. 199--Primary duty of judge--Primary duty of a Judge in a High Court, exercising constitutional jurisdiction under Article 199, is to protect Constitution and fundamental rights guaranteed therein, even of those citizens who are not before Court. [P. 282] D

M/s. Barrister Haroon Dugal, Mian Tariq Hussain, Kashif Akbar Bandesha, Chaudhary Farrukh Ali, Ali Raza Kamboh, Subhe Nasib, Hamza Warraich, Saad Asim, Qasim Raza Chadhar, Khurram Riaz Kahlon, Sohail Anjum Virk, Javed Abbas Sial, Ghulam Abbas and Rizwan Afzal Tarar, Advocates for Petitioner.

Mr. Mohammad Osman Khan, Assistant Advocate General, Punjab for Respondent No. 1.

M/s. Barrister Chaudhary Muhammad Umar, Mufti Ahtesham-ud-Din Haider and Rana Muhammad Ansar, Advocates for Respondent.

Mr. Imran Muhammad Sarwar, Advocate assisted by Dr. Allah Rakha, Team Lead Admissions and Malik Hamza Izhar, Manager (Litigation), UHS, Lahore for Respondent.

Date of hearing: 4.2.2022.

Judgment

The petitioners in this and connected petitions (W.P.Nos.5075 & 6719 of 2022) are aggrieved of declining or not entertaining their request of including improved marks, obtained in Special Examination, while preparing final merit for admission in MBBS/BDS Session 2021-2022.

1. The petitioners have already filed their online applications on the basis of original result of Higher Secondary School Certificate (“HSSC”). It is apprised that online system is not allowing the petitioners for substitution of original marks with improved marks, cutoff date for which is 06.02.2022.

2. Facts of the case are narrated by learned counsel for respondent-UHS with permission. He has referred to Admission Policy, 2021-2022 duly approved by Government of the Punjab and read following paragraphs:-

“vii. Please also note that the Repeaters who have appeared in HSSC (Pre-Medical) Special Examination or A-Level (November 2021 Series) Examination in a bid to improve their marks and are awaiting their result, they must NOT enter their available HSSC/equivalent exam marks on their online application. They should also follow the aforementioned procedure. When their delayed HSSC (Pre-Medical) Special Examination or A- Level (November 2021 Series) Examination result is declared, they can submit the marks of that examination in which they secured higher marks. It must, however, be remembered that the deadline for such submission of delayed result is Sunday, 6th February, 2022.

vii. The Repeaters are informed that if they fail to follow the procedure as given in Para (vi) above and enter their available HSSC/Equivalent marks, intentionally or unintentionally, at the time of submission of their online application then, at the later stage, their improved marks in HSSC (Pre-Medical) Special Examination or A-Level (November 2021 Series) Examination shall NOT be accepted and no request in this regard shall be entertained.”

[emphasis supplied]

It is apprised that under the policy, applications for admission were required to be filed online till 22.11.2021, however, those applicants, who intended to improve their marks were asked to register their intention by selecting the category ‘delayed result candidates’ in the system. 1294 applicants selected this category, while submitting their applications online, who are allowed through the system to submit their improved marks till 06.02.2022. 27 applicants (including petitioners), failed to select the category of ‘delayed result candidates’ , therefore, are denied to submit their improved numbers in the system in view of Clause (vii), ibid, of the policy. System is not allowing them to submit their improved marks, it is explained.

1. In response, Barrister Haroon Dugal, Advocate, representing petitioners’ side has argued that non-selection of the category was due to a confusion created by a clarification letter dated 13.11.2021 issued by Pakistan Medical Commission (“PMC”). Relevant part referred by him is reproduced:

“This policy only applies to students who have sat for their HSSC examination in October-November 2021 for the first time and not as a repeat/re-sit student to improve their marks or to pass earlier failed exams in the same academic year.

A student who held an HSSC qualification at the time when application for admission were due is required to apply on the basis of such earlier result.”

However, it was followed by a clarification letter dated 18.11.2021, which is also reproduced:

" ایک بار پھر یہ بات واضح کی جاتی ہے کہ ایچ ایس ایس سی رپیٹرز ( Repeaters ) یاامپر وورز ( Improvers ) کے تاخیری نتائج قبول کرنے کے حوالے سے یونیورسٹی کی داخلہ پالیسی میں کوئی تبدیلی نہیں کی گئی ہے ۔ وہ امید وار جو HSSC کے سپیشل امتحان 2021 میں اپنے نمبروں کو بہتر بنانے ( Improveکی کوشش میں حصہ لے رہے ہیں وہ پراسپیکٹس میں درج اور 11 نومبر 2021 کو یونیورسٹی کی طرف سے تاخیر والے نتائج والے امید واروں کے لیے مشتہر کیے گئے طریقہ کار کے مطابق ایم بی بی ایس اور بی ڈی ایس میں داخلے کے لیے اپنی آن لائن درخواست جمع کروائیں گے ۔ یہ امید وار اپنی آن لائن درخواست میں فی الحال اپنے موجودہ HSSC نمبر درج نہیں کریں گے ۔ بلکہ جب ان کے HSSCسپیشل امتحان کا نتیجہ آجائے گا تو یہ امید داران مقررہ طریقے کے مطابق 6 فروری 2022 تک اپنے HSSC کے وہ نتائج یونیورسٹی کو فراہم کریں گے جن میں ان کے نمبر زیادہ ہوں گے ۔ اس حوالے سے امید وار پاکستان میڈیکل کمیشن کی 14 نومبر 2021 کو جاری کردہ وضاحت غور سے پڑھیں" ۔

He submitted that petitioners had applied online before issuance of subsequent clarification by UHS and had abstained to select the category of ‘delayed result candidates’ in view of letter dated 13.11.2021 by PMC.

1. Learned counsel for the petitioners has also raised question of discrimination and violation of fundamental rights under Article 25 read with Article 37(c) of the Constitution of the Islamic Republic of Pakistan, 1973” (“the Constitution”).

To substantiate discrimination, it is apprised that all successful candidates in HSSC Examination 2021 had right to appear in Special Examination 2021 for improvement in their marks to compete in the merit for admission in the MBBS/BDS. Result of all the candidates, who appeared in Special Examination was announced on the same date, therefore, they should be treated as one class to be considered for admission on the basis of improved marks. The impugned condition imposed by the respondent has created a class within a class to oust the petitioners from being considered on merit. Also submitted that medical universities of other Provinces did not impose any such condition and are allowing the students to submit their improved marks till the cutoff date.

1. Learned counsel for respondent-UHS submitted, in response, that option to select category was not availed by the petitioners, therefore, they are estopped by their conduct. He has placed reliance on a decision by another learned Single Bench of this Court in W.P.No.19918 of 2021 to submit that similar petition has already been dismissed.

It is argued that merit for admission has already been prepared on the basis of original marks, which cannot be disturbed. However, on Court’s query, it is not denied that the cutoff date for submission of improved marks is 06.02.2022, whereafter the merit is required to be finalized.

Responding to Court’s further query, Dr. Allah Rakha, Team Lead Admissions, UHS, Lahore has apprised that 100% marks in the system for the applicants, who opted for the category ‘delayed result candidates’ , shall be substituted with the improved marks obtained in Special Examination, based on which final merit shall be prepared.

The officer could not reply satisfactorily, when confronted, why originally submitted marks by the 27 applicants cannot be treated like the 100% marks and be substituted with the improved marks, as the option of substitution is available in the system. The reason given by him is not technical but factual i.e. the petitioners had not selected the category at the relevant time. To rescue the officer, at this stage, learned counsel for respondent-UHS submitted that merit of the candidates, who applied on the basis of original marks has already been prepared and declared online.

In response, learned counsel for the petitioners has referred to advertisement dated 11.11.2021 and read clause (v), which is reproduced:-

“v. It is clarified for information of all candidates that their admission shall remain absolutely provisional till 10th February, 2022”

1. Arguments heard. Record perused.

2. The judgment by another learned Bench, relied upon by learned counsel for the respondent-UHS is perused and relevant part is reproduced:-

“4. The respective contentions have been considered by this Court. Perusal of the impugned Order dated 17.12.2021 clearly depicts that the Petitioner alongwith other Applicants was provided an opportunity to follow the mandatory online procedure in terms of the conditions contained in advertisement dated 11.12.2021 which clearly provides that the Applicants who are Repeaters and have appeared in HSSC (Pre-Medical) Special Examination or A-Level (November 2021 Series) Examination in a bid to improve their marks and are awaiting their result must not enter their available HSSC/equivalent exam marks on their online Application but should follow the procedure when their delayed result is declared and can submit the marks of that examination in which they secure higher marks for which deadline is 06.02.2022. It was further stated that if a candidate failed to follow the procedure as above and enter their available marks, intentionally or unintentionally, at the time of submission of their online Application then, at the later stage, their improved marks shall not be accepted and no request in this regard shall be entertained. Hence, it is manifestly clear that the Petitioner voluntarily availed the option to be considered on the basis of his existing marks and waived off his option to apply in the category of “Delayed Result Candidates ”.

1. Further, the Petitioner has been duly considered and has been denied admission so far in accordance with the merit list. As such, the impugned Order is unexceptional. The contention of the learned counsel for the Petitioner that advertised clarification published by PMC permitted the Petitioner to change his category of admission, was duly rebutted by stating that said clarification was not applicable to Public Sector Universities and it was clearly mentioned in other clarification that each Public University may proceed as per its declared Admission Policy in terms of exam result policy which is considered for eligibility requirement for Admission and that is prerogative of the Public Universities under the PMC Act, 2020.”

It appears that learned Single Bench was not assisted properly on the grounds of discriminations; violation of Article 37(c) read with Article 25 of the Constitution and confusion created by the letter dated 13.11.2021 by PMC, therefore, is per incuriam, which is an exception to rule of Stare Decisis in law of precedence, asking to have persuasive or binding force of previous decision on same issue, by a Court of same strength.

9. Respondents’ side is unable to displace the factual position that the candidates selecting category of ‘delayed result candidates’ and the petitioners are one class, being similarly placed for the purpose of the Article 37(c) read with Article 25 of the Constitution. Article 37(c) enjoins upon the State, that it shall “make technical and professional education generally available and higher education equally accessible to all on the basis of merit”. Article 25 ensures equality and equal protection before law.

After declaration of original result for HSSC and A-level examination for 2021, all the students had a right to attempt for improvement of the marks in respective Special Examinations. The petitioners and other candidates appeared accordingly in the examinations and their results have been declared on the same dates, however, a class has been created within similarly placed person, by introducing technical condition in the computer system. The technicality introduced in the system is though a policy matter but it offends fundamental right of 27 candidates under Article 37(c) read with Article 25 of the Constitution by creating a class within a class.

1. Ample opportunity was given to respondents’ side for showing that creation of such class was inevitable and that allowing permission, to the petitioners and other similarly placed applicants, would halt the system. The explanation given by respondents’ side is not satisfactory. If 100% marks entered in the system for the applicants, who selected the ‘delayed result candidates’ category, can be replaced with improved marks, why original marks obtained and entered by 27 applicants cannot be substituted with their improved marks obtained in Special Examination. The submissions that result has already been prepared and declared is not found correct because the list, if any, before the fixed date is provisional as per Clause (v) of the advertisement.

The marks obtained by the candidates who opted for ‘delayed result candidates’ are being entered in the system till 06.02.2022, whereafter final list for the purpose of merit is to be prepared. Deadline by PMC can also not be taken as a pretext to violate the fundamental rights under Article 37(c) read with Article 25 of the Constitution.

It is not denied that merit of each public sector university like UHS is created differently and does not affect merit of other universities in different Provinces.

Reliance of learned counsel for the respondent-PMC on Pakistan Medical and Dental Council, Islamabad through Authorized Representative v. Shahida Islam Medical Complex (Pvt.) Limited through Authorized Director and another (2019 CLC 1761) is also of no avail because this judgment has dealt with extension of time through Court’s order. Whereas, the case in hand is not for extension of time but for allowing 27 applicants to substitute their improved marks with original marks before the cutoff date (06.02.2022), which has yet not reached.

11. It is admitted position that 27 applicants, including the petitioners have already applied for substitution of their improved marks before 06.02.2022, however, the request is declined through written orders or by not entertaining their applications. This Court is convinced that by rejecting the request for substitution of marks, respondents are ousting them, for a technicality, from being considered on merit, which is violation of the fundamental right under Article 25 read with Article 37(c) of the Constitution. Primary duty of a Judge in a High Court, exercising constitutional jurisdiction under the Article 199, is to protect the Constitution and fundamental rights guaranteed therein, even of those citizens who are not before the Court.

Under the circumstances, the Vice-Chancellor of UHS (Respondent No. 3) is directed to ensure that improved marks of 27 applicants, including the petitioners, are included in their respective applications for admission by substituting the original marks till 06.02.2022 and considered the improved marks, while preparing the merit list for admissions for MBBS/BDS in question.

1. This and connected petitions are allowed with direction to the Vice Chancellor-UHS.

(Y.A.) Petition allowed

PLJ 2022 Lahore 282

Present: Abid Aziz Sheikh, J.

MARATIB ALI ALVI--Petitioner

versus

PUNJAB BAR COUNCIL through Chairman--Respondent

W.P. No. 63835 of 2021, decided on 26.1.2022.

Legal Practitioners & Bar Councils Act, 1973 (XXXV of 1973)--

----Ss. 5 & 17--Constitution of Pakistan, 1973, Art. 199--Subscription of General and Benevolent Fund--Statutory body--Independently generation of funds--Ex-officio Chairman of Punjab Bar Council--Functions of Punjab Bar Councils were not connection with affairs of Provincial or Federal Government--Applicability of judgments of Supreme Court to Punjab Bar Council--Maintainability--Under Section 5 of Act, provincial Bar Council shall consist of Advocate-General of Province and such number of members as may be elected by Advocates on Provincial roll--Under provision of Act like Pakistan Bar Council, Punjab Bar Council is also a statutory body but same is autonomous and generates its own funds independently--Other than Advocate General of Province being ex-officiomember and Chairman of Punjab Bar Council, nothing in Act suggests that any administrative or financial control is being exercised by Federal or Provincial governments over affairs of Punjab Bar Council--Punjab Bar Council is not performing any functions in connection with affairs of Federation or Province or a local authority--Therefore, for purpose of maintainability of this Constitutional petition, status of Punjab Bar Council will be same as that of status of Pakistan Bar Council as settled by Hon'ble Supreme Court of Pakistan--Law settled by Hon'ble Supreme Court is squarely applicable to Punjab Bar Council, which is also an autonomous private body without any Government control, though constituted under Act, this Constitutional petition against Punjab Bar Council is not maintainable--Petition dismissed.

[Pp. 286] A, B, C & D

2021 SCMR 425 & 2020 SCMR 631 ref.

Petitioner in Person.

Barrister Tayeeb Jan, Assistant Advocate-General, Punjab for Respondent.

Date of hearing: 26.1.2022.

Judgment

This Constitutional petition has been filed against the Punjab Bar Council for directing it, not to charge exorbitant amount of subscription of General Fund and Benevolent Fund and consequently issue Bar Council license forthwith to the petitioner.

1. Learned Law Officer, at the very outset, raised preliminary objection that Punjab Bar Council being not performing any function in connection with the affairs of the Federation, a Province or local authority, this Constitutional petition is not maintainable.

2. The petitioner in response to the above preliminary objection submits that as Punjab Bar Council has been established under the Act of the Parliament, namely, "The Legal Practitioners and Bar Councils Act, 1973", therefore, this Constitutional petition is maintainable.

3. I have heard the petitioner and learned Law Officer on the threshold question of maintainability of this Constitutional petition.

4. Similar question of maintainability of writ petition against Pakistan Bar Council came up before the Hon'ble Supreme Court of Pakistan in the case of "Syed Iqbal Hussain Shah Gillani versus Pakistan Bar Council through Secretary. Supreme Court Bar Building, Islamabad and others" (2021 SCMR 425), where after detailed discussion the Hon'ble apex Court held that the Pakistan Bar Council is an autonomous body generating its own fund without any Government control, thus, not amenable to the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). The relevant extracts from the aforesaid judgment are reproduced as under:

"7. Pakistan Bar Council is a body established under an Act of Parliament namely "The Legal Practitioners and Bar Councils Act, 1973" ("Act of 1973"), whereas, the SCBAP is an association of Supreme Court Lawyers, working under the control of the Pakistan Bar Council. The Act of 1973 provides for the establishment of the Bar Council as well as matters relating to elections, disciplinary proceedings, constitution formation and powers of the committees and all other relevant matters. A bare reading of the 1973 Act reveals that other than the Attorney General for Pakistan being the ex-officio Chairman Pakistan Bar Council, nothing in the Act suggests any administrative control being exercised by the Federal or Provincial Government over the affairs of the PBC. The PBC is an entirely autonomous body which has independent elections and generates its own funding without any Government control. Thus, the State does not have any financial or other interests in the affairs of the PBC, nor does it perform any function in connection with the affairs of the Federation, a Province or a local authority.

1. In addition, it must be noted that it is settled law that fundamental rights are by and large (very exceptional circumstances apart) are enforceable against the State and not against private individuals. The Petitioner however seeks relief against the Executive Committee Pakistan Bar Council, which is an autonomous private body and not a State institution. Therefore, an argument regarding the enforceability of fundamental rights against such a body is flawed at the outset. Accordingly, we hold that a constitutional petition against Pakistan Bar Council or its Executive Committee is not maintainable under Article 199(l)(c) of the Constitution."

2. The same principle was also laid down by the Hon'ble Supreme Court of Pakistan in the case of "Mirza Muhammad Nazakat Baig versus Federation of Pakistan through Secretary Ministry of Law and Justice, Islamabad and another" (2020 SCMR 631), where it is held as under:

"A bare reading of the provisions of the Legal Practitioners and Bar Councils Act shows that the Act provides for establishment of Bar Councils in the Provinces as well as the Islamabad Capital Territory. It deals with all matters relating to elections of office bearers, disciplinary and other professional matters, constitution of committees, their powers and other related and incidental matters. However, it is clear that other than the Attorney General for Pakistan being the ex-officio, Chairman Pakistan Bar Council and Advocates Generals of the Provinces and Islamabad Capital Territory being ex-officio, Chairman of the Provincial Bar Councils and Islamabad Capital Territory neither the Provincial nor the Federal Government exercise any administrative control over the affairs of the Pakistan Bar Council or the Provincial Bar Councils. Pakistan Bar Council is a statutory body which is autonomous and generates its own funds independently. The Government does not have any control over it. Likewise, the Islamabad Bar Council acts as a regulator for affairs of the Advocates in Islamabad Capital Territory, admits Advocates to practice before the said High Court and maintains rolls of such Advocates. The functions of the Council also interalia include initiating proceedings for misconduct against Advocates on its rolls and award punishment in such cases. That being so, neither the Respondent nor any of its constituents or committees can be regarded as persons performing functions in connection with the affairs of the Federation, Provinces or Local Authority within the contemplation of the Article 199 of the Constitution of Islamic Republic of Pakistan. As such we are in no manner of doubt that Respondent No. 2 is not amenable to the jurisdiction of the High Court in terms of Article 199 of the Constitution."

1. The Pakistan Bar Council and Provincial Bar Councils including Punjab Bar Council are established under the provisions of the Legal Practitioners and Bar Councils Act, 1973 (Act). Under Section 5 of the Act, the provincial Bar Council shall consist of Advocate-General of the Province and such number of members as may be elected by the Advocates on Provincial roll. The qualification and disqualification for membership of Provincial Bar Council and functions of the Provincial Bar Councils are prescribed in Sections 5 to 9 of the Act and Standing Committees of Provincial Bar Councils are constituted under Section 10 of the Act. Similarly, the composition of Pakistan Bar Council, qualification of its members and functions are prescribed in Sections 11 to 15 of the Act. The remaining provisions including Section 17 of the Act (which is regarding funding of the Bar Councils), are general provisions relating to both the Pakistan and Provincial Bar Councils. Under the provision of the Act like Pakistan Bar Council, the Punjab Bar Council is also a statutory body but same is autonomous and generates its own funds independently.

8. Other than the Advocate General of Province being the ex-officio member and Chairman of the Punjab Bar Council, nothing in the Act suggests that any administrative or financial control is being exercised by the Federal or Provincial governments over the affairs of the Punjab Bar Council. Thus Punjab Bar Council is not performing any functions in connection with affairs of the Federation or Province or a local authority. Therefore, for the purpose of maintainability of this Constitutional petition, the status of the Punjab Bar Council will be same as that of the status of the Pakistan Bar Council as settled by the Hon'ble Supreme Court of Pakistan in the cases of Syed Iqbal Hussain Shah Gillani and Mirza Muhammad Nizakat Baig (supra).

9. The law settled in the afore-noted judgments by Hon'ble Supreme Court is squarely applicable to the Punjab Bar Council, which is also an autonomous private body without any Government control, though constituted under the Act, hence this Constitutional petition against Punjab Bar Council is not maintainable. The same view was also expressed by this Court in the recent judgment dated 05.01.2022, passed in Writ Petition No. 228 of 2022, titled "Sardar Qurban Ali Dogar vs. Pakistan Bar Council and others".

1. In view of above discussion, the preliminary objection of maintainability of this writ petition against Punjab Bar Council is sustained and this writ petition is dismissed being not maintainable.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 287 [Multan Bench, Multan]

Present: Ch. Muhammad Iqbal, J.

MANZOORAN Mai (deceased) through her Legal Heirs etc.--Petitioners

versus

GHULAM FAREED etc.--Respondents

C.R. No. 582-D of 2010, decided on 1.3.2021.

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

----S. 42--Civil Procedure Code, 1908--Suit for declaration--Forged tamleek deed--Suit was decreed--Appeal--Allowed--Abdundent duty of defendant--Failing to prove mandatory ingredients of valid gift--Duty of beneficiary--Non-compliance of mandatory provision of law--Non-considering of oral and documentary evidence by appellate Court--Defendant has failed to prove mandatory ingredients of a valid gift which oust substratum of his stance--Here in this case admittedly only one marginal witness was produced and other marginal witness was not produced in evidence by respondent without any reason which is blatant non-compliance of mandatory provision of law and it can conveniently be held that respondent has failed to prove execution of alleged Tamleek Nama--Findings of appellate Court are based on blatant mis-reading and non-reading of material record and same deserve reversal--Petitioners through convincing and trustworthy evidence successfully proved that alleged Tamleek Nama as well as gift mutation entered whereunder in favour of respondent are result of fraud, which material facts have not been considered by appellate Court who by committing misreading and non-reading of evidence--Appellate Court did not consider oral as well as documentary evidence and by committing misreading and non-reading of evidence, passed impugned judgment & decree which suffers from patent illegality and irregularity, as such, same is liable to be set-aside--Revision petition allowed. [Pp. 292, 294 & 295] B, D, E & F

2002 SCMR 1089, PLD 2011 SC 241, PLD 2015 SC 187 and 2016 SCMR 24 ref.

Muhammadan Law--

----Para 149 & 150--Pre-requisites of valid gift--As per Para Nos. 149 and 150 of the Muhammadan Law, three important prerequisites of valid gift has been described such as offer, acceptance and delivery of possession which are considered mandatory in nature.

[P. 291] A

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

----Arts. 17, 79, 129(g)--Duty of Beneficiary--It is duty of defendant to prove alleged Tamleek Nama by producing two marginal witnesses.

[P. 293] C

Ref. 2016 SCMR 662; 2017 SCMR 402; 2019 SCMR 1095.

Syed Muhammad Ali Gillani, Advocate for Petitioners.

Mr. Muhammad Faisal Bashir Chaudhary, Advocate for Respondents.

Date of hearing: 1.3.2021.

Judgment

Through this civil revision, the petitioners have challenged the judgment & decree dated 07.04.2010, passed by the learned Additional District Judge, Mailsi whereby the appeal of the Respondent No. 1 was accepted and by setting aside the judgment & decree dated 23.06.2008, passed by the learned Civil Judge, Mailsi, the suit of the petitioners was dismissed.

1. Brief facts of the case are that Allah Bukhsh, predecessor-in-interest of the parties of the lis, filed a suit for declaration against his real son namely Ghulam Fareed, Respondent No. 1/defendant on 01.02.1995 contending therein that Tamleek Deed No. 821 dated 18.07.1992 and subsequent transaction whereof/ gift Mutation No. 928 dated 30.03.1994 are forged, fictitious and are product of fraud, misrepresentation and collusiveness. He further contended that he is paralyzed for the last 8-10 years and about 2-1/2 years before, Ghulam Fareed, Respondent No. 1/defendant, obtained his thumb impressions on blank papers on the pretext of getting loan from the bank in order to purchase a tractor. Allah Bakhsh plaintiff alleged that he neither executed any Tamleek Deed nor transferred the suit land nor delivered the possession of the suit land to the respondent/defendant Ghulam Fareed. The Respondent No. 1/defendant filed contested written statement and controverted the assertions contained in the plaint. According to adversarial pleadings of the parties the learned trial Court framed issues, recorded pro and contra evidence of the parties and finally decreed the suit vide judgment & decree dated 23.06.2008. The Respondent No. 1 filed an appeal which was allowed by the learned appellate Court vide judgment & decree dated 07.04.2010 and by setting aside the judgment & decree dated 23.06.2008, passed by the learned trial Court, the suit of the petitioners was dismissed. Hence, this civil revision.

2. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

3. The core controversy in this case revolves around Issue No. 1, which is reproduced as under:

"Whether gift Mutation No. 821 dt. 18-7-1992 and Mutation No. 928 dt. 30-3-94 are void being against facts and law? OPP

In order to dissipate the onus of issue, plaintiff Allah Bukhsh, himself appeared as P.W.1 and deposed that:

بیان کیا کہ میں اراضی متد عومہ کا مالک کامل قابض ہوں ۔ میں عرصہ 9/10 سال سے فالج کا مریض ہوں ۔ ان پڑھ اور سادہ لوح دیہاتی ہوں ۔ میری عمر 81 سال ہے ۔ جبکہ مد عاعلیہ میرا بیٹا انتہائی چالاک ہے ۔ مد عاعلیہ نے عرصہ تقریبا تین سال قبل مجھے ٹریکٹر کے لئے زرعی بنک سے قرضہ حاصل کرنے پر مجبور کیا ۔ جسپر میں نے مدعا علیہ پر اعتبار کرتے ہوۓقرضہ کے حصول کی خاطر چند سفید کاغذات پر انگوٹھا جات لگا کر مد عاعلیہ کو دے دیئے ۔ آج سے عرصہ 10 ماہ قبل میں نے اپنی اراضی اپنے جیتے جی اپنے شرعی وارثان میں تقسیم کرنے کا ارادہ کیا اور پٹواری حلقہ سے رجوع کیا تو پٹواری حلقہ نے بتایا کہ تمہاری ملکیتی اراضی تو مد عاعلیہ کے نام بذریعہ تملیک نا مہ نمبری 821 مورخہ 18.07.92 اور انتقال نمبر 928 مورخہ 30.03.94 منتقل ہو چکی ہے جو کہ تملیک نامہ نمبری 821 مورخه 18.07.92 دھوکہ دہی ، فراڈ سے کی گئی اور پھر اس کی بنیاد پر غلط انتقال نمبر 928 تصدیق کر وایا حالانکہ میں نے کبھی بھی تملیک اراضی کی غرض سے کسی افسر مجاز کے روبرو بیان نہ دیا اور نہ ہی میں کبھی کسی افسر مجاز کے روبرو بابت تملیک متد عو یہ بر وانتقال تصدیق کروانے کے لیے پیش ہوا ۔ ایسی کسی دستاویز پر نہ تو میں نے کبھی انگوٹہ جات لگاۓاور نہ ہی مجھے کبھی کوئی تملیک نامہ پڑھ کر سنایا گیا ۔ مد عاعلیہ بقیہ وارثان کو محروم کرنے کی غرض سے جعلی و فرضی تملیک کروائی اور پھر انتقال تصدیق کروایا ۔ جو کہ غلط خلاف قانون ، خلاف واقعات اور خلاف انصاف ہے ۔ میں اگر تملیک کرتا بھی تو اپنے تمام شرعی وارثان بیٹوں اور بیوی کو کر تا ۔ تملیک متد عومیہ سے میرا کوئی تعلق واسطہ نہ ہے ۔ تملیک نمبر 821 مورخہ 18.7.92 اور اس تملیک نامہ کی بنیاد پر قائم انتقال نمبر 928 مورخہ 30.3.94 خارج فرمایا جائے ۔

Abdul Razzaq (P.W.2) deposed in his statement that during the pendency of the suit, plaintiff Allah Bukhsh died upon which his legal heirs were impleaded. After completion of the evidence of petitioners/ plaintiffs, the suit was decreed ex-parte on 11.12.1997. Thereafter, on the application of the respondents/defendants, the ex-parte judgment & decree dated 11.12.1997 was set aside and the evidence of the parties re-recorded.

1. Thereafter, Ameer Mai (P.W.1), one of the petitioners/plaintiffs, deposed that they are the legal heirs of Allah Bukhsh; that Allah Bukhsh did not gift any property to his son; that Ghulam Fareed committed fraud; that he (Allah Bukhsh) was aged about 80 years and was paralyzed and illiterate person; that in order to get loan from Agricultural Bank, Ghulam Fareed obtained thumb impressions of Allah Bukhsh on blank papers; that their father (Allah Bukhsh) in his lifetime filed suit; that after the death of Allah Bukhsh, Ghulam Qadir and Ghulam Hussain did not incorporate them (sisters) as party in the suit; that their brothers are trying to deprive them from their share in inheritance. Ghulam Qadir (mentioned by the learned trial Court as P.W.1) deposed that his father was owner of land measuring 177 Kanal 15 Marla; that he never gifted the property to Ghulam Fareed; that his father challenged the gift in his lifetime. Noor Muhammad (P.W.2) and Abdul Razzaq (P.W.3) also supported the version of the petitioners/plaintiffs.

2. To controvert the version of the petitioners/plaintiffs and to prove the impugned transactions, the respondent/defendant, Ghulam Fareed, produced Tariq Sharif, Sub Registrar (D.W.1), who stated that on 18.07.1992, he was appointed as Tehsildar/Sub-Registrar; that he attested the gift deed. In cross examination he stated that:

| | | --- | | | | | Description: Urduuuu |

The Respondent No. 1/defendant, Ghulam Fareed himself appeared as D.W.2 and stated that the suit land was gifted by his father in his favour. In cross examination, he deposed that when the gift was made, Allah Bukhsh doner was about 80-85 years of age; that at the time of gift, no one accompanied with him.

1. The respondent/defendant derives his right from the alleged Tamleek Deed (Exh.P. 1), perusal whereof shows that it does not bear signatures of the parties on its first page and only one thumb impression of Allah Bukhsh is available on first page at the bottom, which also proves the version of the petitioners/plaintiffs that the respondent/defendant obtained the thumb impressions of Allah Bukhsh deceased on the blank papers. A such like controversy has been resolved by this Court in a judgment cited as Manzoor Hussain vs. Haji Khushi Muhammad (2017 CLC 70), relevant portion whereof is reproduced as under:

2. Notwithstanding above, it is settled principle of law that where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. by signing or affixing their thumb impression. So that it should reflect and establish their "consensus ad idem", which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of assent, and reflects and proves the intention of the parties thereto [Sec Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187)]. In the present case, the first page of the document (Ex.P-1) is signed by the deed-writer only whereas its second page which bears the signatures of the vendor, vendee and deed writer does not contain the terms and conditions of sale. Although the parties and the witnesses should execute the document at the end, but parties must also sign each page if the document is written out on more than one page. [See N.S. Bindras' Conveyancing Draftsman and Interpretation of Deeds, 7th Edition, Delhi Law House, Delhi, 2008 at page 322]. This was not done and, therefore, appellant was required to bring on record the evidence to connect the two pages of the document (Ex.P-1) with each other. The appellant had not produced any evidence to connect the two pages of the document (Ex.P-1) with each other and this deficiency does not establish "consensus ad idem". Thus, on the basis of such type of document, which is non-compliant to the said principle of law, a decree for specific performance could not be issued. This view finds support from the case of Zafar Iqbal and others vs. Mst. Nasim Akhtar and others (PLD 2012 Lah. 386) which has been approved by the Hon'ble Supreme Court of Pakistan in Civil Petition No. 391-L of 2012 vide order dated 22.3.2013.

(emphasis supplied)

8. As per Para Nos. 149 and 150 of the Muhammadan Law, three important prerequisites of valid gift has been described such as offer, acceptance and delivery of possession which are considered mandatory in nature. The above said constituents mandatorily be elaborately mentioned in the pleadings and shall be proved through corroborative unshakable characteristic of evidence according to the litmus test settled in cases cited as Mst. Saadia vs. Mst. Gul Bibi (2016 SCMR 662), Allah Ditta & others vs. Manak alias Muhammad Siddique & others (2017 SCMR 402) & Naveed Akram & others vs. Muhammad Anwar (2019 SCMR 1095).

9. Admittedly, gift of suit land is main controversy in this case. The co-existence and prove of three constituents of a valid gift i.e. offer by the donor, acceptance by donee and delivery of possession are sine qua non and any infirmity in prove of the above constituents vitiates the transaction of the gift. It was bounded duty of the defendant/donee being beneficiary of the transaction, to prove the validity of the gift such as the offer was made by the donor (Allah Bukhsh) and acceptance of the offer of gift by the donee (respondent/defendant) as well as delivery of possession of gifted property through believable evidence with exact information of day, date, time and presence of the witnesses but in this case the defendant/beneficiary has failed to prove the mandatory ingredients of a valid gift which oust the substratum of his stance. From the bare perusal of the written statement, the respondent/defendant claims his right over the suit property on the basis of an gift deed but in the written statement, he has not mentioned the date, time, place and names of the witnesses in whose presence offer of gift was made to him and acceptance of the offer of gift by the him (donee) as well as delivery of possession of gifted property in his pleading (written statement) and said asserted stance shall be proved through believable evidence with exact information but in this case the respondent/defendant has failed to prove the ingredients of gift which legal flaw vitiates his claim of oral gift. Reliance is placed on a case cited as Mrs. Khalida Azhar vs. Viqar Rustam Bakhshi & others (2018 SCMR 30) wherein the Hon'ble Supreme Court of Pakistan has held as under:

"32 However, the said respondent was still required to prove a valid gift of the land by his father, grandmother, uncles and aunt in his favour to the exclusion of the other legal heirs of the deceased, it was absolutely necessary for the Respondent No. 1 to have proved all the essential ingredients of the gift independent of the gift mutations, Exh.DW-7/1 to DW-7/5. He was essentially required to prove that the donees have offered to gift the subject land to him and that he accepted the said offer and that the possession of the lands was delivered to him. He was also required to specify the date, time and place the offer was made and accepted by him, and also as to when the possession was delivered to him. However, neither has the Respondent No. 1 divulged such details nor has he produced any person who witnessed the happening of any of the above. Although proving and verifying the authenticity of the gift mutation and its attestation, would not have been sufficient, without proving the transaction embodied therein, as noted above, however, the Respondent No. 1 has failed ever to prove the authenticity and veracity of the mutations and its attestation, as none who allegedly witnessed the attestation of the mutations been produced, neither the revenue officer nor the Lumbardars or the other witnesses whose names find mention in the attestation, or any of them who participated in the relevant jalsa-e-aam/assembly been produced by Respondent No. 1, although there could have been a possibility that with the passage of long period of time, none of the above person may have survived, or may not have been traceable, but 'such also has not been claimed by Respondent No. 1. He has also not been able to say positively as to whether the signature of the person who witnessed the gift attestations, were obtained by the revenue office in the register of mutation as required in terms of subsection (7) of Section 42 of the West Pakistan Land Revenue Act, 1967. The Respondent No. 1 thus having failed to prove the essential elements of gift in his favour, and having also failed to prove the authenticity and veracity of the relevant attestation, no valid gift of the subject land can be presumed in his favour, the Respondent No. 1 is, therefore, liable to share the land with the appellant to the extent the appellant is entitled to inherit in accordance with Sharia, and also to pay to her the amount of mesne profit in respect of her such share in the land at the rate of Rupees eight thousands (Rs. 8000/-) per acre, per annum, from the date commencing three years before the date of filing the suit by the appellant, and till the, date the possession of the land to the extent of her share is delivered to her after proper partition and demarcation by the revenue authorities, which entire exercise shall be concluded within two months from the date hereof. In addition to the amount of mesne profit the Respondent No. 1 shall also pay to the appellant the amount of markup accrued thereon at the bank rate on year to year basis and till the time the entire amount is paid".

10. Under Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984, it is duty of the beneficiary/defendant to prove the alleged Tamleek Nama (gift deed) by producing two marginal witnesses but here in this case admittedly only one marginal witness was produced and other marginal witness namely Muhammad Nawaz was not produced in evidence by the respondent/defendant without any reason which is blatant non-compliance of the above mandatory provision of law and it can conveniently be held that the respondent/defendant has failed to prove the execution of the alleged Tamleek Nama. Reliance is placed on Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 10S9), Hafiz Tassaduq Hussain vs. Muhammad Din through LRs & others (PLD 2011 SC 241) and Farzand Ali & Another vs. Khuda Bakhsh & others (PLD 2015 SC 187). Besides above the respondent/defendant did.not produce the marginal witness of the alleged Tamleek Nama namely Muhammad Nawaz in support of his assertion which amounts to withholding of the best evidence and it would be legally presumed that had the said witness produced in the evidence, he would Have deposed against the respondent/defendant, as such, presumption under Article 129 (g) of Qanun-e-Shahadat Order, 1984 clearly operates against him. Reliance is placed on the case of Sughran Bibi vs. Mst. Aziz Begum & 4 others (1996 SCMR 137).

1. From the above, it can conveniently be held that the respondent/defendant failed to prove the execution of alleged Tamleek Nama through any convincing and trustworthy evidence. Resultantly the relinquishment deed (Tamleek Nama) itself as well as mutations whereof are result of fraud manipulation misrepresentation and deserve reversal, as such, the subsequent mutations entered on the basis of the said Tamleek Nama is also held to be entered on the basis of fraud and mala fide.

12. So far as the findings of the learned appellate Court qua the genuineness of compromise as well as withdrawal of the suit, suffice it to say that as per available record the plaintiff Allah Bakhsh, an advanced age paralyzed person had himself challenged the alleged relinquishment deed (Tamleek Nama) as well as gift mutation in his lifetime. On 29.05.1990, the suit was adjourned for 27.09.1996 but the learned counsel for Allah Bukhsh, filed application for early fixation and suit was fixed on 18.06.1996 when counsel for Allah Bakhsh got recorded statement regarding effecting compromise between the parties. Ghulam Qadir, Petitioner No. 3/plaintiff also filed application for summoning of Allah Bukhsh in person, to substantiate the fact of compromise but before the next date of hearing, Allah Bukhsh had passed away and the above statement of his counsel could not have been got verified as such the said statement of the counsel had no legal value as the same had been repudiated by the other legal heirs of the plaintiff. As such the findings of the appellate Court are based on blatant mis-reading and non-reading of material record and same deserve reversal.

13. In view of above, it can conveniently be observed that the petitioners/plaintiffs through convincing and trustworthy evidence successfully proved that the alleged Tamleek Nama as well as the gift mutation entered whereunder in favour of the respondent/defendant, Ghulam Fareed, are result of fraud, which material facts have not been considered by the learned appellate Court who by committing misreading and non-reading of the evidence, decided Issue No. 1 in favour of the respondent/defendant and against the petitioners/ plaintiffs, as such, these findings are not sustainable in the eyes of law which are hereby reversed and this issue is decided in favour of the petitioners/plaintiffs.

14. From the above, it is established that the learned appellate Court did not consider the oral as well as documentary evidence and by committing misreading and non-reading of evidence, passed the impugned judgment & decree which suffers from patent illegality and irregularity, as such, the same is liable to be set-aside. Reliance is placed on the case of Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24).

1. Resultantly, this civil revision is allowed, the judgment & decree dated 07.04.2010, passed by the learned appellate Court is set aside, the judgment & decree dated 23.06.2008, passed by the learned trial Court is upheld and the suit of the petitioners/plaintiffs is decreed as prayed for with cost throughout.

(Y.A.) Petition Allowed

PLJ 2022 Lahore 295

Present:Mrs. Ayesha A. Malik, J.

JAVAID IQBAL etc.--Petitioners

versus

PAKISTAN BAR COUNCIL through Chairman Appeal Committee Punjab II, Lahore etc.--Respondents

W.P. No. 46435 of 2021, decided on 26.7.2021.

Legal Practitioners & Bar Councils Act, 1973 (XXXV of 1973)--

----S. 15--Constitution of Pakistan, 1973, Art. 199--Declaration of election result of Tehsil Bar Association, Jaranwala--Filing of writ petition--Understanding between parties--Matter was placed before committee of Pakistan Bar Council--Election was conducted under supervision of observers--Election was challenged--Conclusion of committee--Committee unanimously concluded that election was conducted in a fair and transparent manner and as such illegality as highlighted by Petitioners is not made out--As per direction of this Court Petitioners were given an opportunity, of hearing on basis of their consent and agreement to appear before Appeal Committee, Punjab II--Matter was heard by a seven member committee which unanimously concluded that election took place in a fair and transparent manner, meaning that Petitioners' contentions are not made out--Petitioners were heard by a seven member committee which unanimously concluded that election took place on 6.2.2021, hence no case for interference is made out--Petition dismissed. [P. 297] A, B & C

Chaudhary Ishtiaq Ahmad Khan, Advocate with Petitioner.

Chaudhary Amjad Iqbal Khan, Vice Chairman, Punjab Bar Council, Lahore.

Date of hearing: 26.7.2021.

Order

Through this Petition, the Petitioners have challenged the order dated 2.7.2021 passed by the Appeal Committee (Punjab-II), Pakistan Bar Council. The Petitioners have also challenged the result as declared of the election of Tehsil Bar Association, Jaranwala dated 5.3.2021 and the holding of election dated 6.2.2021. The Petitioners essentially seek an order for re-election of Tehsil Bar Association, Jaranwala for constituting a new election board comprising of honest and unbiased persons.

1. It is noted that earlier WP No. 22982/2021 was filed by the same Petitioners and in that Petition the basic ground for challenge by the Petitioners was that Respondent No. 1, Chairman Appeal Committee, Punjab II, Lahore has passed an order which is against the mandate of the Legal Practitioners and Bar Councils Act, 1973 ("Act"). During the course of proceedings, all parties decided to resolve their dispute amicably and the Petitioners agreed to appear before the Appeal Committee, Punjab II of the Pakistan Bar Council in terms of Section 15 of the Act, however they requested that two members be co-opted, not being members from the Punjab. As per the understanding between the parties, the matter was referred to the Appeal Committee, Punjab II to decide the matter afresh.

2. In terms of order of this Court dated 1.6.2021 passed in WP No. 22982/2021, the matter was placed before a seven member committee of the Pakistan Bar Council which included two co-opted members, who heard the Petitioners along with Respondents and concluded that the election of Tehsil Bar Association, Jaranwala took place on 6.2.2021. However there was some scuffle between groups of advocates which was admitted before the committee by senior

members of the bar present during the course of hearing, who assured that such practices will not be repeated in future.

4. On the basis of this statement and while going through the record, the committee concluded that the election did take place on 6.2.2021 under the supervision of -two Observers and if at all there was any disturbance in the election process, that was towards the end of the polling time yet the election board managed to complete the election process with the help of the police and thereafter announced the election result. The committee unanimously concluded that election was conducted in a fair and transparent manner and as such the illegality as highlighted by the Petitioners is not made out. The Petitioners are again challenging the same issue that the election was not duly conducted and they again seek reliance on affidavits issued by various different members of the Punjab Bar Council in which they stated that the election did not take place fairly and that some members were not allowed to vote.

5. As per direction of this Court given in W.P. No. 22982/2021, the Petitioners were given an opportunity of hearing on the basis of their consent and agreement to appear before the Appeal Committee, Punjab II. The matter was heard by a seven member committee which unanimously concluded that the election took place in a fair and transparent manner, meaning that the Petitioners' contentions are not made out. Therefore under the circumstances given that the Petitioners were heard by a seven member committee which unanimously concluded that the election took place on 6.2.2021, hence no case for interference is made out.

1. In view of the aforesaid, the instant Petition is dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 297

Present: Faisal Zaman Khan, J.

LAHORE DEVELOPMENT AUTHORITY through Director General--Appellant

versus

Dr. JAVAID IQBAL and 4 others--Respondents

C.R. No. 758 of 2013, heard on 30.11.2021.

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

----Ss. 42 & 54--Constitution of Pakistan, 1973, Art. 10-A--Suit for declaration and mandatory injunction--Concurrent findings--Cancellation of exemption of plot in favour of respondent--Stance taken by petitioner in written statement and deposition of DW-1 were contrary--Bona fide purchaser--Non-issuance of notice to respondent prior to cancellation of exemption of plot--Violation of principle of audi alterm partem--Stance taken by petitioner in its written statement and deposition of DW-1 are contrary and oppose to each other--Another aspect which further weakens case of petitioner is that in support of its written statement, DW-1 appeared who claims to be Assistant Director LDA, DLD-I, M.A. Jauhar Town, Lahore--He was appearing on behalf of petitioner which is an Authority--There is nothing on record wherefrom this could be established that he was authorized to appear on behalf of petitioner and make a statement--There was nothing on record wherefrom this could be established that exemption of plot in dispute was cancelled through an order, Respondent No. 1, who is a bonafide purchaser for valuable consideration, could not be deprived of his title and dispossessed from plot in dispute upon which he has raised construction after seeking approval from petitioner--There is nothing on record wherefrom this could be established that prior to cancellation of exemption of Respondent No. 2, any notice was issued to Respondent No. 2 or Respondent No. 1--If any adverse order is passed, same would be violative of principle of audi alteram partem and Article 10-A of Constitution of Islamic Republic of Pakistan--Counsel for petitioner has not been able to highlight any jurisdictional defect or procedural impropriety in impugned judgments and decrees--Revision petition dismissed.

[Pp. 300 & 301] A, B, C, D & E

2014 CLD 415, PLD 2008 Karachi 540, PLD 1971 SC 550, 2016 SCMR 24, 2015 SCMR 799 & PLD 1994 SC 291 ref.

Sahabzada Muzaffar Ali, Advocate for Petitioner.

M/s. Mushtaq Ahmad Mohal and Rai Muhammad Naeem Kharal, Advocates for Respondent No. 1.

Nemo for Respondents No. 2 to 5.

Date of hearing: 30.11.2021.

Judgment

Through this Civil Revision, judgments and decrees dated 26.04.2011 and 13.10.2012 passed by learned Civil Judge Lahore and learned Additional District Judge, Lahore, respectively, have been assailed. By virtue of the former judgment, a suit for declaration with mandatory injunction filed by Respondent No. 1 against petitioner and other respondents has been decreed and through the latter, the same has been upheld.

1. Facts giving rise to the present petition are that in order to assail cancellation of Plot No. 177/G-4 measuring 104.65 Sq.m. situated in M.A. Johar Town, Lahore (“plot in dispute”), Respondent No. 1 filed a suit for declaration with mandatory injunction against petitioner and other respondents. It was the case of Respondent No. 1 that plot in dispute was originally exempted in favour of Respondent No. 2 who subsequently sold the same to Respondent No. 1 who, after getting the site plan approved from petitioner, constructed a house over said plot, however, subsequently he was informed that exemption in favour of Respondent No. 2 has been cancelled, therefore, being the bona fide purchaser of plot in dispute, present suit was filed. Written statements were filed by petitioner as well as Respondent Nos. 4 and 5. In its written statement, petitioner acknowledged the exemption of the plot in dispute and handing over its possession to Respondent No. 2 and also acknowledged transfer of the same in favour of Respondent No. 1 and approval of the site plan on an application filed by Respondent No. 1. Out of divergent pleadings of the parties, as many as 07 issues were framed; evidence pro and contra was led, whereafter, through judgment and decree dated 26.04.2011, the suit was decreed. Feeling aggrieved, petitioner filed an appeal which was dismissed vide judgment and decree dated 13.10.2012, therefore, this Civil Revision.

2. In order to contest this Civil Revision, only Respondent No. 1 appeared before this Court, however, despite service, not entered appearance on behalf of the Respondent Nos. 2 to 5 therefore, they are proceeded against ex-parte.

3. At the outset of hearing, learned counsel for petitioner has been asked to show from the available record the letter by virtue of which exemption of Respondent No. 2 was cancelled. He has also been asked to explain that on behalf of petitioner, DW-1 appeared as a witness, as to whether the said witness was authorized by petitioner/authority to appear on its behalf. Despite his earnest effort, learned counsel for the petitioner has not been able to point out any document which could answer the above queries.

4. Arguments heard. Record perused.

5. As discussed above, perusal of the written statement filed by petitioner would show that it acknowledges exemption of the plot in dispute in favour of Respondent No. 2 (Exhs.P.l&2) and also the handing over its possession to him vide letter dated 06.02.1995. It has also been acknowledged that the plot in dispute was transferred in favour of Respondent No. 1 through letter dated 16.09.1996 (Exh.P.4) subsequent to which site plan submitted by Respondent No. 1 was also approved (Exh.P.5), however, it was the case of petitioner that exemption of Respondent No. 2 was cancelled through order dated 22.07.1998. Oppose to this stance, a bare perusal of the statement made by DW-1 would show that he has set up altogether a new case which was never pleaded by petitioner in its written statement.

6. It has been held by the Honourable Supreme Court of Pakistan in judgments reported as Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914), Messrs Essa Engineering Company Pvt. Ltd. and another v. Pakistan Telecommunication Company Limited and another (2014 SCMR 922) Muhammad Ali and 7 others v. Mst. Humera Fatima and 2 others (2013 SCMR 178) and Fazal Din through L.Rs. v. Muhammad Anayat through L.Rs. (2007 SCMR 1), that mere pleadings of the parties is not per se evidence and in order to substantiate the facts narrated in the pleadings, evidence has to be produced, which should corroborate and prove the contentions, which in the case in hand the petitioner has failed to do so.

8. Keeping in view the above and placing the same in juxtaposition with the facts of present case it is clear and obvious that the stance taken by petitioner in its written statement and deposition of DW-1 are contrary and oppose to each other thus since the written statement has not be substantiated by the evidence of DW. 1 hence neither the written statement nor the statement can be looked into and relied upon. Moreover, petitioner has failed to produce any document therefrom this could be ascertained that the exemption of Respondent No. 2 was cancelled.

1. For a while if the stance taken by the petitioner in its written statement is taken to be correct since the statement made by its witness (DW-1) was beyond the scope of pleadings therefore, the same cannot be relied upon. For reference, reliance can be placed on Abdul Razaq v. Abdul Ghaffar and others (2020 SCMR 202), Moiz Abbas v. Mrs. Latifa and others (2019 SCMR 74), Combined Investment (Pvt.) Ltd. v. Wali Bhai and others (PLD 2016 S.C. 730), Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914), Messrs Essa Engineering Company Pvt. Ltd. and another (2014 SCMR 922), Muhammad Wali Khan and another v. Gul Sarwar Khan and another (PLD 2010 S.C. 295), Abdul Hague and others v. Shaukat Ali and 2 others (2003 SCMR 74) and Muhammad Hussain v. Khushi Muhammad through L.Rs. and 5 others (2003 CLC 478).

10. Another aspect which further weakens the case of petitioner is that in support of its written statement, DW-1 appeared who claims to be Assistant Director LDA, DLD-I, M.A. Jauhar Town, Lahore. Since he was appearing on behalf of petitioner which is an Authority, thus he had to produce some authority letter or resolution in order to represent the said authority and for making a statement on its behalf, however, there is nothing on the record wherefrom this could be established that he was authorized to appear on behalf of petitioner and make a statement.

1. It has been held by the Superior Courts that a lis initiated or a statement made on behalf of a Company/Trust/Organization without authorization-resolution is of no value and cannot be relied upon. For reference, reliance can be placed on Telecard Limited through Authorized representative v. Pakistan Telecommunication Authority through Chairman (2014 CLD 415), Messrs Nishat Chunian LTD through Chief Officer v. Province of Punjab through Secretary, Local Government and 2 others (2013 CLC 34), Pakistan American Commercial (PVT.) LTD. through Director v. Humayoun Latif and 7 others (PLD 2008 Karachi 540), Messrs Razo (PVT.) Limited v. Director, Karachi City Region Employees Old Age Benefit Institution and others (2005 CLD 1208) & Government of Pakistan v. Premier Sugar Mills and others (PLD 1991 Lahore 381) & Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) vs. Messrs Ghulan Nabi Corporation Ltd., Lahore (PLD 1971 SC 550).

12. In view of the above circumstances, since (there was nothing on record wherefrom this could be established that exemption of Respondent No. 2 qua plot in dispute was cancelled through an order, thus Respondent No. 1, who is a bonafide purchaser for valuable consideration, could not be deprived of his title and dispossessed from the plot in dispute upon which he has raised construction after seeking approval from petitioner. Even otherwise, there is nothing on record wherefrom this could be established that prior to cancellation of exemption of Respondent No. 2, any notice was issued to Respondent No. 2 or Respondent No. 1, thus if any adverse order is passed, the same would be violative of the principle of audi alteram partem and Article 10-A of the Constitution of Islamic Republic of Pakistan.

13. 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 Nizam-ud-Din and others v. Sheikh Zia-ul-Qamar 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.

Muhammad Arif (PLD 2015 SC 137), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) and Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291) no ground for interference is made out, as a sequel to which, this petition fails and the same is dismissed.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 302

Present: Muhammad Amjad Rafiq, J.

Mst. HIRA BIBI--Petitioner

versus

STATE etc.--Respondents

W.P. No. 1556 of 2022, decided on 24.1.2022.

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

----S. 164--Non-recording of statement of abductee by magistrate u/S. 164, Cr.P.C.--Jurisdiction--Abductee was not resides at district where FIR was logged--Requirement for magistrate--Abductee is not in district of registration of F.I.R. rather she is living at Lahore, her statement should have been recorded by a Magistrate at Lahore, even if it is unfavourable to prosecution or otherwise--No prejudice is caused nor statement recorded becomes useless because when any such statement or confession is recorded by a Magistrate out of district, he is required to forward same to Magistrate by whom case is to be inquired into or tried and it is not necessary to call such Magistrate as witness in trial in support of statement recorded by him--Petition allowed. [P. 309] B & C

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

----S. 186--Arrest in local jurisdiction--When any person is arrested in his local jurisdiction, Magistrate can attend to case for transportation of accused to respective district for purpose of trial--All such functions are to facilitate investigation of a case and not to deflect it. [P. 308] A

2011 MLD 722, PLD 2006 Lahore 304, 2007 YLR 2919 and 2008 YLR 2679 ref.

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

----S. 164—Recording of statement--Statement u/S. 164, Cr.P.C. can be recorded at the instance of accused, complainant or witness even if moved through a lawyer. [P. 311] D

Ref. PLJ 2002 Lahore 533.

Rana Ali Imran Khan, Advocate for Petitioner.

Mr. Muhammad Amjad Ansari, Assistant Advocate General.

Mr. Nisar Ahmad Virk, Deputy Prosecutor General.

Date of hearing: 24.01.2022.

Order

This writ petition has been filed against order dated 10.01.2021 passed by the learned Judicial Magistrate Section-30, District Courts, Lahore, whereby he has refused to record statement of the petitioner under Section 164_Cr,P,C in case FIR No. 1156/2021 dated 30.12.2021 under Section 496-A, PPC police station Basti Malook, District Multan on the ground that he lacks territorial jurisdiction as per Section 12(2) of Code of Criminal Procedure, 1898.

1. Learned counsel for the petitioner submits that statement under Section 164, Cr.P.C. can be recorded by any Magistrate even if he has no jurisdiction as is mentioned in the explanation attached to Section 164, Cr.P.C. He has placed reliance on case reported as “Mst. Amna Shaheen versus State, etc” (PLJ 2021 Lahore 645) and one unreported case titled “Mst. Asma Bibi versus State, etc” (Writ Petition No. 2335 of 2021).

2. On the other hand, learned Deputy Prosecutor General supports the contention of learned counsel for the petitioner.

3. Arguments heard. Record perused.

4. Dogma of statement recorded u/S. 164, Cr.P.C. carries two views to its recording on the touch stone of territorial jurisdiction, question has also been thrown in this case when a female witness approached the learned Magistrate at Lahore telling him to record her statement u/S. 164, Cr.P.C. because she apprehends threats to her life if go for the purpose at Multan where the FIR was registered. She faced refusal, ground was missed jurisdiction, sin qua non for her the concerned district of the case. Case has been examined in the light of object for recording of statement u/S. 164, Cr.P.C. which clearly is to secure the evidence for future use. It is to be recorded during investigation or at any time afterwards but before the commencement of inquiry or trial. Before throwing some instance of processes which the Magistrates attend to during investigation and to better appreciate the contention of learned counsel for the petitioner, it would be appropriate to reproduce Section 164, Cr.P.C. which is as under:

“164. Power to record statements and confessions. (1) Any Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf by the Provincial Government may, if he is not a police-officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial.

(1-A) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross-examining the witness making the statement.

(2) Such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in Section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.

(3) A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reasons to believe that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect:

“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him."

(Signed) A.B. Magistrate.

Explanation: It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having Jurisdiction in the case.

The word “any Magistrate” means as explained in section which includes Judicial Magistrate and Special Judicial Magistrate as per definition of “Magistrate” given in Section 4(ma) of Cr.P.C., even if they have no jurisdiction in the case. Such Magistrates are authorized to record any statement or confession during investigation or afterwards before the commencement of the inquiry or trial.

1. Investigation is a process of collection of evidence wherever it may be found, a recurring offence in more than one jurisdiction supply part evidence in a place and pieces are brought together to complete the picture. Authorized Criminal Courts are competent to inquire or try an offence as per scheme regulated under Section 177 to 189 of Cr.P.C. Therefore, Magistrates were given ordinary and special powers to play a role in the processes like remand, issuance of arrest warrants, search warrants, proclamation, inquest, bails, recording of statements & confessions. Such ordinary and special powers are entrusted u/S. 36 & 37 of Cr.P.C. which are as follows;

2. Ordinary Powers of Magistrates:All Magistrate have the powers hereinafter respectively conferred upon them and specified in the Third Schedule. Such powers are called “their ordinary powers”.

3. Additional powers conferrable on Magistrates: On the recommendations of the High Court, the Provincial Government may, in addition to the ordinary powers, invest any Magistrate with any powers specified in the Fourth Schedule.

Section 164, Cr.P.C. falls in Chapter XIV which encompasses sections 154 to 176, Cr.P.C., it entails steps relating to investigation in which Magistrate performs different functions. As per Section 6 of Cr.P.C. there are different classes of Magistrates under Code of Criminal Procedure and such Magistrates can be appointed by the Provincial Government in any district whose local areas are defined within which they may exercise all or any of the powers they are invested with under the Code. As per Section 12 of Cr.P.C. local limits of their jurisdiction can also be defined which shall extend throughout any district where they are posted. Sessions Judge of the area under Section 17 of Cr.P.C. can also frame rules or give special orders consistent with this Code as to the distribution of business among such Magistrates because they are subordinate to the Sessions Judge by virtue of said section.

1. As highlighted above, ordinary powers of Magistrates which they can exercise by virtue of their office as a Magistrate are mentioned in Section 36 of Cr.P.C. and such powers are listed in the Third Schedule of Cr.P.C. Similarly, under Section 37, Cr.P.C., Magistrates can be conferred upon additional powers as mentioned in Fourth Schedule of Cr.P.C. and mode of conferring powers as mentioned in Section 39 of Cr.P.C. is reflective of the fact that powers can be conferred by the Provincial Government either by name or in virtue of their office or classes of officials generally by their official title. Once the power is given, the Magistrate shall unless the Provincial Government otherwise directs or has otherwise directed, exercise the same powers in the local area in which he is so appointed. Until the Provincial Government withdraws all or any powers once conferred under this Code on any Magistrate, he shall continue exercising such powers wherever he is appointed as a Magistrate as ordained in Section 40 of Cr.P.C.

2. Ordinary Powers of Magistrate as enumerated in Third Schedule of Cr.P.C. include power to record statement and confession under Section 164, Cr.P.C. which fact is listed at Serial No. ‘7a’ of said schedule under Ordinary Powers of a Magistrate of the First Class. So, it is clear that Magistrate appointed in a district is whenever approached for the purpose of recording statement of a witness he cannot refuse recording thereof on the ground that case is one which has not been registered in his local district. Section 12(2) of Cr.P.C. means that a Magistrate working in a district can act as a trial Court and exercise ordinary powers as Magistrate within the precincts of that district only. A Magistrate appointed in a District ‘A’ and he while posted as such cannot be called to District ‘B’ for exercising his ordinary powers as Magistrate but if somebody approaches him from any other district and solicits to exercise his ordinary powers like recording of statement or confession, he cannot refuse to honour such request when Section 164, Cr.P.C. authorizes him to forward such statements or confessions to the Magistrate by whom the case is to be inquired into or tried. It is also in consonance with the explanation attached to Section 164, Cr.P.C. which says that it is not necessary that Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case, as has rightly been held in case reported as “Mst. Amna Shaheen versus State, etc” (PLJ 2021 Lahore 645) and unreported judgment cited above.

3. Scope of investigation in a case usually extends to collection of different pieces of evidence which can be gathered from wherever they may be found either within the district or out of district. Some of the offences have a recurring effect which starts in one district but ensued in another; in such eventuality if a witness is found out of district or an accused is arrested as such and police, in order to secure the evidence cannot take risk of their transportation before the concerned district, can produce them before the nearest Magistrate, so that evidence may be recorded at every early possibility, that is the reason Section 164, Cr.P.C. contains word “any Magistrate”, even if he has no jurisdiction at all. It is trite that statements and confessions promptly recorded carry comparably more evidentiary value because there remain remote chances to think, concoct or fabricate the facts, even influence of external factors are ruled out. Recording of statement has not been objected to rather given effect by the Court in a case reported as “Lal Singh v. Emperor" (AIR 1938 All 625), wherein FIR was registered in Agra District and accused was arrested in Gwalior State which lies to south of Tahsil Bah separated from it by river Chambal and a great area of ravine country, whose confession as well as identification parade was conducted by same Magistrate G.B. Dhekne (Ganesh Bapuji) of Gwalior State and Court while relying on such confession has convicted and sentenced the offender for offence of dacoity. A statement recorded out of district was declared admissible into evidence in a case reported as “Muhammad Sarfraz Khan versus The Crown” (PLD 1953 Lahore 495). FIR was of District Montgomery whereas statement was recorded at Lahore. The Court has observed in the following terms:

“Objection has been taken to the admissibility of her statement recorded at Lahore on the ground that this statement was not made “in the course of police investigation” and that, if so made, it was recorded by a Magistrate who had no jurisdiction to record it. In our view the words “In the course of an investigation” in Section 164, Cr.P.C. as would appear from the succeeding words “or at any time afterwards before the commencement of the inquiry” mean “while the investigation is in progress”, and a statement under that section may be recorded not only at the instance of the police but also at the instance of the accused or the aggrieved person or at the request of the witness himself. The authority to record statements in the course of police investigation does not exclusively vest in the Magistrates competent to take cognizance of the offence. The section itself expressly states that it is not necessary that the Magistrate recording such statement should have jurisdiction in the case, and there is a series of cases in which confessions recorded under that section by Magistrate in Indian States and foreign jurisdictions have been admitted in evidence. In any case we have no doubt that that portion of Mst. Gulzar Begum’s statement in which she alleged that the police was compelling her to make a particular statement was in the nature of a complaint which is admissible under Section 157 of the Evidence Act……...”

Similar view was adopted by this Court in a case reported as “Mst. Amina Bibi versus Sessions Judge Layyah, District Layyah and others" (1999 PCr.LJ 2044).

1. Some of the functions, Magistrate performs during investigation, like when an accused is required to be removed to tribal area for the purpose of investigation where the F.I.R. is registered; Magistrate, in whose district such accused is available, is authorized to inquire and then order for removal out of jurisdiction. Likewise, when a warrant is issued to a police officer, he is authorized to execute it throughout Pakistan as per Section 82 of Cr.P.C. and if he arrests the accused out of the district, he is required to produce him before the Magistrate of that district as per sections 84 & 85 of Cr.P.C. in order to regulate his custody so as to take security or release him on bail as mentioned in Section 86 of Cr.P.C. or authorize his removal to district concerned. If at that time police officer considers that statement of accused or confession is to be secured, he can request that Magistrate and it is not expected that Magistrate should refuse to record his statement or confession simply on the ground of lacking territorial jurisdiction. As per Section 99 of Cr.P.C. when in pursuance to a search warrant, anything is found beyond jurisdiction, police officer is required to produce that thing before the Magistrate of that jurisdiction who authorizes its removal to the Court concerned. Even under Section 186, Cr.P.C., when any person is arrested in his local jurisdiction, Magistrate can attend to the case for transportation of accused to the respective district for the purpose of trial. All such functions are to facilitate the investigation of a case and not to deflect it. Though in case reported as “Shabina Naz versus Special Judicial Magistrate and another” (2011 MLD 722) it has been held that it is discretionary with the Magistrate to record the statement, and he can refuse when witness could not justify recording of his statement out of district, but this judgment has also impliedly expounded a rule that statement can be recorded by a Magistrate out of a district. In a case reported as “Fozia Shabbir versus Additional Sessions Judge, Lahore and 8 others” (PLD 2006 Lahore 304), this Court has held that a statement under Section 164, Cr.P.C. can be recorded more than once and there is no bar for its recording if first statement of witness was recorded under coercion or was against his/her will or consent. Similar was the view expounded in cases reported as “Fozia Perveen versus Judicial Magistrate Section 30, Khushab” (2007 YLR 2919) & “Manzoor Hussain versus Special Judicial Magistrate and 2 others" (2008 YLR 2679). The Hon'ble Supreme Court of Pakistan while dealing with the question has issued an Obiter Dicta that statements of victims of rape should be recorded under Section 164, Cr.P.C. preferably by a female Magistrate because victims of rape usually show reluctance to appear before male Magistrate as they cannot express their agony appropriately before them, therefore, it is more appropriate if the statement of victim is recorded by a female Magistrate wherever available. The word “wherever available” connotes that it can be even out of the district. Reliance is placed on case reported as Salman Akram Raja and another versus Government of Punjab through Chief Secretary, Civil Secretariat, Lahore and others” (PLJ 2013 SC 107); equivalent citation (2013 SCMR 203).

2. In case reported as “Fateh Shah versus Muhammad Hassan and 2 others” (1983 PCr.LJ 1893) passed by this Court though it is mentioned that in propriety and practice witnesses should have been directed to appear before their Illaqa Magistrate for recording of their statements under Section 164, Cr.P.C. but with utmost respect with this case law it was not dealing with the question of recording of statement under Section 164, Cr.P.C. rather it was a bail matter in which learned Court has commented upon said section. Another judgment of this Court reported as “Mst. Kalsoom Bibi versus District and Sessions Judge, Bahawalpur and another” (2009 MLD 421) though reiterated the same view but it has also been considered therein that statement under Section 164, Cr.P.C. can be recorded out of the district when it is beyond the control of maker of such a statement or confession to get it recorded in the District concerned. Rule 4(f) of Chapter 13 of Volume-III of Lahore High Court Rules and Orders also supports the above said view. Recording of confession and statements u/S. 164, Cr.P.C. is also regulated under Rule 25.27 & 25.28 of Police Rules, 1934 and more elaborately in Appendix No. 25.27 of said Rules.

3. As highlighted above, recurring offences like abduction or kidnapping and some others as per Section 181, Cr.P.C. can also be inquired into or tried by a Court within the local limits of whose jurisdiction the person is kidnapped or abducted or conveyed or concealed or detained. Similar is the explanation mentioned in Rule 25.30 of Police Rules, 1934 which is as under:

Place of trial.--With regard to the place of trial of cases falling under Sections 179-183, Code of Criminal Procedure, police officers shall act solely with reference to the public convenience. Ordinarily such cases shall be sent up for trial in the district in which the witnesses can attend with the least inconvenience to themselves.

In this case, same is the situation, the abductee is not in the district of registration of F.I.R. rather she is living at Lahore, therefore, her statement should have been recorded by a Magistrate at Lahore, even if it is unfavourable to the prosecution or otherwise.

13. No prejudice is caused nor statement recorded becomes useless because when any such statement or confession is recorded by a Magistrate out of the district, he is required to forward the same to the Magistrate by whom case is to be inquired into or tried and it is not necessary to call such Magistrate as witness in the trial in support of statement recorded by him because Article 102 of Qanun-e-Shahadat Order, 1984 says as under:

“Evidence of terms of contracts, grants and other disposition of property reduced to form of document: When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

(Underlined supplied)

However, there is an exception to this Article with respect to confession and statement of accused only which is reflected in Section 533 of Cr.P.C., it is as under:

“Non-compliance with provisions of Section 164 or 364: (1) If any Court, before which a confession or other statement of an accused person recorded or purporting to be recorded under Section 164 or Section 364 is tendered or has been received in evidence, finds that any of the provisions of either of such sections have, not been complied with by the Magistrate recording the statement, it shall take evidence that such person duly-made the statement recorded; and notwithstanding anything contained in the Evidence Act, 1872, Section 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits.

(2) The provisions of this section apply to Courts of Appeal, Reference and Revision."

(Underlined supplied)

Corresponding to erstwhile Section 91 of Evidence Act, 1872, Article 102 of Qanun-e-Shahadat Order, 1984 is holding the field. The above situation explains that under said Article of Qanun-e-Shahadat Order, 1984, any thing that is required under the law to be reduced to the form of a document, no witness is required to prove it but the document itself. However, statement of an accused or his confession, though is admissible without calling the person who recorded it, but if it has not been recorded as per provisions of Section 164 or 364, Cr.P.C., then, Court shall take evidence that such person duly-made the statement recorded and may call the Magistrate but if confession or statement of accused has been taken down in accordance with law, Court shall presume its genuineness under Article 91 of Qanun-e-Shahadat Order, 1984.

1. Presumption as to documents produced as record of evidence: Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding Or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, the Court shall presume--that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it are true and that such evidence, statement or confession was duly taken.

(Underlined supplied)

Presumption under above Article unless rebutted shall be a proof of fact contained in the statement or confession. But such document shall not preclude the admission of oral evidence as to the same fact as mentioned in Explanation 3 of Article 102 of Qanun-e-Shahadat, Order, 1984.

14. An objection is usually taken that statement of a witness recorded out of district deprives the accused to cross examine the witness as per provision (1A) of Section 164, Cr.P.C., because an opportunity to cross examine the witness is mandatorily to be given to him. The word “may” used in the section makes it optional to record the statement in the presence of accused or not. In a case reported as “Mst. Zainab Bibi versus SHO and others” (2003 YLR 3191), it has been held that statement of abductee cannot be deferred till the arrest of the accused. It is trite that if a statement is recorded under Section 164, Cr.P.C. and accused had cross examined the witness, such statement is treated as evidence, reference is made to sections 244A & 265J of Cr.P.C. but if it is recorded in the absence of accused, it can be used as previous statement for the purpose of contradiction and corroboration respectively under Articles 140 & 153 of Qanun-e-Shahadat Order, 1984. Statement u/S. 164, Cr.P.C. can be recorded at the instance of accused, complainant or witness even if moved through a lawyer. The case reported as “Muhammad Yousaf versus State and 12 others” (PLJ 2002 (Lahore) 533), is referred in this respect.

1. For what has been discussed above, this writ petition is allowed; petitioner can approach to learned Magistrate at Lahore to get her statement recorded under Section 164 of Cr.P.C.

(Y.A.) Petition allowed

PLJ 2022 Lahore 312 [Multan Bench, Multan]

Present:Muzamil Akhtar Shabir, J.

KHALIL AHMAD etc.--Petitioners

versus

MUHAMMAD IQBAL etc.--Respondents

C.R. No. 1405 of 2021, decided on 31.12.2021.

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

----Ss. 24 & 115--Application for transfer of case--Rejected--Grievance of petitioner--Respondents were trying to delay matter--Direction to--District Judge, Khanewal is directed to transfer matter to some other Court of competent jurisdiction for its disposal--As other party is aggrieved of fact that petitioners are trying to delay matter, trial Court to which matter shall be entrusted shall expeditiously proceed with same and try to conclude it as early as possible--Civil revision allowed. [P. 312] A

Mr. Muhammad Faisal Bashir Chaudhry, Advocate.

Date of hearing: 31.12.2021.

Order

States that through the impugned order dated 20.12.2021 passed by the learned District Judge, Khanewal, transfer application filed by the petitioners has been turned down, without properly appreciating the grievance of the petitioner, which according to him has not been narrated in writing in detail to avoid embarrassment to the concerned.

1. The perusal of record shows that the transfer application filed by the petitioner before the learned District Judge, Khanewal was turned down on the ground that no case had been made out for the said purpose, besides the stance taken by the respondents that the petitioners were trying to delay the matter was also considered.

3. Without commenting upon the merits of the case or allegations raised by the petitioners, this Court deems it appropriate that in the interest of justice, the Learned District Judge, Khanewal is directed to transfer the matter to some other Court of competent jurisdiction for its disposal. However, as the other party is aggrieved of the fact that the petitioners are trying to delay the matter, therefore, the trial Court to which the matter shall be entrusted shall

expeditiously proceed with the same and try to conclude it as early as possible.

1. However, before parting with the matter it is observed that as this order has been passed in the absence of the respondents, while dispensing with the notice to them as the same may not only delay the disposal of the matter but also cause unnecessary expense to the respondents, if they are aggrieved of the afore-referred arrangement, they may file an application for resurrection of the matter to be decided on its own merits.

2. This civil revision is allowed in the foregoing terms.

(Y.A.) Civil revision allowed

PLJ 2022 Lahore 313

Present:Miss Aalia Neelum, J.

ROOBI SHABANA--Petitioner

versus

SHO etc.--Respondents

W.P. No. 63041-Q of 2020, decided on 10.3.2021.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471--Criminal Procedure Code, 1898, S. P.C. 249-A/265-K--Constitutional petition--Jurisdiction--Investigation--Statutory Right--Alternate Remedy--Registration of case--Challenge to--The prosecution has to prove that whether incident has taken in the same manner as stated by the petitioner would necessarily call for holding of a factual inquiry and the said exercise cannot be conducted by this Court in present writ petition through summery proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. After registration of the case, investigation of a case is a statutory right of the police and the Courts are always reluctant in interfering--Petitioner has an alternate remedy by way of filing application under Section 249-A/265-K, Cr.P.C., if challan is submitted before Court of competent jurisdiction--It would be premature to say that allegations are genuine or otherwise, as investigation is still in progress--However, if case after investigation is sent to Court for trial and petitioner is challaned, she can avail remedy before trial Court by filing an application under Section 249-A/265-K, Cr.P.C. for her acquittal--Petition was dismissed. [Pp. 314 & 315] A, B & C

Mr. Muhammad Mushtaq Ahmad Dhoon, Advocate for Petitioner.

Mian Shakeel Ahmed, A.A.G for Respondents.

Ch. Peer Muhammad Gujjar, Advocate for Respondent No. 2.

Date of Hearing: 10.3.2021.

Order

Through the constitutional petition filed in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has prayed that F.I.R Bearing No. 1274 of 2020, dated 25.11.2020, offence under Sections 420/468/471, P.P.C., registered against the petitioner at Police Station Khurrianwala, District Faisalabad be quashed.

1. Arguments heard and record perused.

3. The questions of facts raised by the petitioner in the instant petition can only be adjudicated by producing the evidence before a Court of competent jurisdiction. Even otherwise, the prosecution has to prove that whether incident has taken in the same manner as stated by the petitioner would necessarily call for holding of a factual inquiry and the said exercise cannot be conducted by this Court in present writ petition through summery proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. After registration of the case, investigation of a case is a statutory right of the police and the Courts are always reluctant in interfering with the same, therefore, the petitioner has an alternate remedy by way of filing application under Section 249-A/265-K, Cr.P.C., if the challan is submitted before the Court of competent jurisdiction. The Apex Court in the case of Col. Shah Sadiq v. Muhammad Ashiq (2006 SCMR 276) after elaborate consideration of the provisions of the Criminal Procedure Code and Police Rules of 1934 held that High Court has no jurisdiction to resolve the disputed question of fact in the Constitutional jurisdiction and the F.I.R. during the investigation cannot be quashed. In the case of Shahnaz Begum v. The Hon ‘ble Judges of the High Court of Sind and Baluchistan and another (PLD 1971 SC 677) a Full Bench of the August Supreme Court of Pakistan held that the High Court cannot interfere in the investigation undertaken by the police and same view is affirmed in the case of Dr.

Ghulam Mustafa v. The State and others (2008 S C M R 76) wherein it has also been held that:

“High Court had no jurisdiction whatsoever to take the role of the investigating agency and to quash the F.I.R. while exercising constitutional power under Article 199 of the Constitution or under Section 561-A, Cr.P.C. unless and until very exceptional circumstances exists.”

The facts already revealed and stated hereinabove, of course, disclose some private vengeance of both the parties. At this stage, it would be premature to say that the allegations are genuine or otherwise, as the investigation is still in progress. However, if the case after investigation is sent to the Court for trial and the petitioner is challaned, she can avail remedy before the learned trial Court by filing an application under Section 249-A/265-K, Cr.P.C. for her acquittal.

1. For what has been discussed above, this petition . has no force and the same is hereby dismissed.

(MMR) Petition dismissed

PLJ 2022 Lahore 315 (DB) [Multan Bench, Multan]

Present:Asjad Javaid Ghural and Ali Zia Bajwa, JJ.

GHULAM SHABBIR--Appellant

versus

JUSTICE OF PEACE, etc.--Respondents

I.C.A. No. 311 of 2020, decided on 12.10.2021.

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

----Ss. 22-A & 22-B--Law Reforms Ordinance, (XII of 1972), S. 3--Producing of document during trial of Civil suit--Application for registration of case--Declined--Writ petition--Direction to recording of statement of Respondent No. 3--Determination of sanctity of document--Challenge to--If any document is produced during course of trial proceedings and at time of conclusion of trial, such Court arrives at conclusion that document produced before it was forged, it could take cognizance of matter--Unless and until it is evaluated that document is forged or not, no order for registration of a case on basis of such documents should be passed--Trial Court shall determine sanctity of document in question--Appeal allowed.

[P. 316] A

Mr. Muhammad Sharif Karkhi, Advocate for Appellant.

Mr. Muhammad Imtiaz Hussain Marali, Assistant Advocate General for State.

Mehr Ghulam Shabbir Aheer, Advocate for Respondent No. 3.

Date of hearing: 12.10.2021.

Order

Through the instant Intra Court Appeal filed under Section 3 of the Law Reforms Ordinance, 1972, the appellant has assailed the vires of order dated 16.11.2020, passed by learned Single Judge in Chamber by virtue of which while allowing Writ Petition No. 9750/2016 filed by Allah Ditta/Respondent No. 3, SHO, Police Station Civil Line, Dera Ghazi Khan/Respondent No. 2 was directed to record his statement under Section 154, Cr.P.C. and proceed further in the matter.

1. We have heard the arguments advanced by learned counsel for the appellant, learned counsel for Respondent No. 3, as well as, learned Assistant Advocate General.

3. Perusal of record available on file reflects that during the course of proceedings of a civil suit titled ‘Muhammad Naseer etc. vs. Allah Ditta etc’ pending before learned Senior Civil Judge, Dera Ghazi Khan, allegedly some documents bearing forged signatures of Mushtaq Ahmed Sandhela on the plaint were produced before the learned trial Court, who according to version of Respondent No. 3 was abroad at that time. Hence, he moved an application before learned Ex-officio Justice of Peace under Section 22-A, 22-B, Cr.P.C. for registration of a case against the persons responsible for producing alleged forged documents before the learned trial Court, which was declined vide order dated 05.05.2016. The same was challenged through Writ Petition No. 9750/2016; wherein vide order dated 16.11.2020, SHO/Respondent No. 2 was directed to record statement of Respondent No. 3 under Section 154, Cr.P.C. There is no cavil to this proposition that if any document is produced during the course of trial proceedings and at the time of conclusion of trial, such Court arrives at the conclusion that document produced before it was forged, it could take cognizance of the matter. Unless and until it is evaluated that the document is forged or not, no order for registration of a case on the basis of such documents should be passed. Learned trial Court shall determine the sanctity of document in question. Thus, the order dated 16.11.2020 passed by learned Single Judge in Chamber directing Respondent No. 2 to record statement of Respondent No. 3, under Section 154, Cr.P.C., in the peculiar facts and circumstances of the

case, is against the scheme of law on the subject, which cannot be given legal sanctity, thus, the same is accordingly set aside by declaring it void ab initio.

1. The instant Intra Court Appeal stands allowed in the above terms.

(Y.A.) Appeal allowed

PLJ 2022 Lahore 317

Present: Mrs. Ayesha A. Malik, J.

BEACON HOUSE SCHOOL SYSTEM--Petitioner

versus

COMMISSIONER GUJRANWALA DIVISION, GUJRANWALA etc.--Respondents

W.P. No. 63559 of 2020, heard on 23.11.2021.

Words and Phrases--

----Institution--Word, institution means a privately managed college or school as notified by the Government. [P. 320] A

Punjab Private Educational Institutions (Promote and Regulation) Ordinance, 1984--

----S. 9--Cancellation of Registration-- registration can be cancelled if there is a contravention under the Ordinance, which essentially is with respect to payment of fee. [P. 320] B

Punjab Private Educational Institutions (Promote and Regulation) Ordinance, 1984--

----S. 12(c)--Instructions and directions--Section 12C of Ordinance provides directions and instructions that registering authority may give from time to time to accomplish objectives of Ordinance, which is section Respondent No. 3 has relied upon. [P. 320] C

Punjab Private Educational Institutions (Promote and Regulation) Ordinance, 1984--

----Ss. 9 & 12(c)--Expulsion from school for disciplinary reasons Bad behavior--Receiving of complaints--Basic objective of ordinance--Authorization of authority--Issuance of notification--There is nothing contained in Ordinance, which authorizes authority to regulate disciplinary issues with respect to students of private educational institution--Ordinance is limited in its application and cannot be used as a way to interfere in management and administration of a private educational institution--Record shows that several complaints were filed against Respondent No. 4 by teachers and other students with respect to his bad behaviour and abusive language and fact that he has not shown any regard for school rules-- Ordinance in this case does not authorize Respondent No. 3 to interfere in disciplinary matters and contention that this objective falls under Section 12C is totally without basis--It is also noted that notification dated 10.05.2019 issued by Special Secretary School Education Department in terms of direction given by august Supreme Court of Pakistan is also not relevant because it is related to payment of fee being charged by private educational institution and nothing more--Petition accepted. [Pp. 320 & 321] D, E & F

Mr. Muhammad Younus and Mr. Zahir Abbas, Advocates for Petitioner.

Mr. Akhtar Javed, Additional Advocate General for Respondents.

Mr. Sadaqat Mehmood Butt and Mr. Farrukh Ilyas Cheema, Advocates for Respondent No. 4.

Date of hearing: 23.11.2021.

Judgment

Through this petition, the Petitioner Beacon House School System (“BHSS”) has impugned order dated 23.11.2020 passed by Respondent No. 3, District Education Authority, Mandi Bahauddin.

1. The case of the Petitioner is that Respondent No. 2 has passed the impugned order for which he has no authority and which is beyond the mandate of the Punjab Private Educational Institutions (Promote and Regulation) Ordinance, 1984 (“Ordinance”). An issue arose with respect to Respondent No. 4, a student of Class 9 in the BHSS, Sufi City, Mandi Bahauddin. Several complaints were received against Respondent No. 4 with respect to his bad behaviour and violation of school rules. As per the complaints, the student was behaving aggressively with the teachers and other students, using abusive language and violating all school rules. Ultimately, the School Discipline Committee (“SDC”) took action against Respondent No. 4 by giving him a warning and when they saw no change in his behaviour, he was expelled from the school through termination letter dated 27.10.2020. The father of Respondent No. 4 filed a complaint before Respondent No. 3 stating therein that on the day when his son was expelled from school by the Principal, he misplaced and then recovered from Sargodha. Furthermore, due to personal grudge and a complaint filed by the father of Respondent No. 4 with regard to embezzlement in the school fund committed by the Principal to the head office of the school of the Petitioner, his son was expelled from the school by the Petitioner. Consequently, Respondent No. 3 issued show cause notice to the Petitioner seeking a response. The school responded and informed Respondent No. 3 of the merits of the case and also submitted the relevant record to show the manner in which the proceedings were dealt with by the SDC. A personal hearing was given and ultimately, Respondent No. 3 passed the impugned order wherein he concluded that the expulsion is illegal and Respondent No. 4 should be restored with immediate effect. The school administration was also strictly warned to comply with the requirements of the Ordinance.

2. Learned counsel for the Petitioner argued that Respondent No. 3 has exceeded his jurisdiction and that the matter of expulsion of Respondent No. 4 from the school does not fall within the mandate of the Ordinance. Learned counsel argued that even otherwise with respect to the merits of the case, Respondent No. 3 did consider the record and the proceedings carried out by the SDC against Respondent No. 4 and instead requires the Petitioner to restore the aggrieved student with immediate effect.

3. Report and parawise comments have been filed by Respondents No. 1 to 3. Since the basic dispute relates to Respondent No. 3, learned Law Officer argued that in terms of Section 12C of the Ordinance Respondent No. 3 directed the Petitioner to restore Respondent No. 4 as a student of its school. Learned Law Officer further argued that an appeal lies before the Commissioner under the Ordinance, which is appropriate remedy available to the Petitioner under the law. Learned Law Officer further argued that based on the complaint by the father of Respondent No. 4 an inquiry was made into the matter and based on the direction of the august Supreme Court of Pakistan in terms of notification dated 10.05.2019, Respondent No. 3 acted in accordance with law. Learned counsel for Respondent No. 4 adopts the arguments advanced by the learned Law Officer and stated that the Petitioner school acted in a harsh manner with the student, hence a complaint was filed by his father before Respondent No. 3, which has exercised his power under the Ordinance.

4. Heard and record perused. The basic issue before the Court is whether Respondent No. 3 has the authority under the Ordinance to direct a private educational institution, which has taken disciplinary action against a student, to restore the admission of the student, that is restored the admission of a student expelled on account of disciplinary action. As per the preamble, the Ordinance was promulgated to promote and regulate the setting up and management of educational institutions in the Punjab. The word, institution means a privately managed college or school as notified by the Government. Hence, the purpose of the Ordinance is to provide promotion and regulation of private educational institution. Section 3 of the Ordinance requires all institutions to be registered and Sections 7 and 7-A of the Ordinance require the private educational institution to comply with the conditions of registration relating to payment of fee and charging of fee at the rate prescribed as per the Ordinance. Section 9 of the Ordinance provides that the registration can be cancelled if there is a contravention under the Ordinance, which essentially is with respect to payment of fee. Section 12C of the Ordinance provides directions and instructions that the registering authority may give from time to time to accomplish the objectives of the Ordinance, which is the section Respondent No. 3 has relied upon. Section 12D of the Ordinance was added by way of amendment in 2020, which allows the registering authority to issue special directives for closure of school for ensuring that students are imparted education through alternative means in special circumstances. It also provides that the registering authority may issue directions for determining the fee to be charged by the schools for a period in which special directives remain in field. Therefore, the basic objective of the Ordinance is to regulate the charging of fees by the private educational institution as there is no other aspect of the private educational institution, which has to be regulated under the Ordinance. The basic contention of the Respondents particularly Respondent No. 3 that it has the power to direct the private educational institution to restore the admission of a student, who has been expelled for disciplinary reasons is misconceived and without basis. There is no provision under the Ordinance which empowers Respondent No. 3 to exercise such an authority over a private educational institution. Section 12C of the Ordinance requires the registering authority to issue directions and instructions to accomplish the objectives of the Ordinance. There is nothing contained in the Ordinance, which authorizes the authority to regulate disciplinary issues with respect to students of private educational institution. The Ordinance is limited in its application and cannot be used as a way to interfere in the management and administration of a private educational institution.

6. In this case, the record shows that several complaints were filed against Respondent No. 4 by the teachers and other students with respect to his bad behaviour and abusive language and the fact that he has not shown any regard for the school rules. As per the record, due process was followed by the Petitioner whereby the parents of Respondent No. 4 were informed of the disciplinary issues through letters dated 03.03.2020 and on 08.10.2020 he was given a warning to curtail his aggressive behavior. Thereafter, expulsion letter was issued on 27.10.2020. It is important to note that these letters describe the behaviours of Respondent No. 4, which are understandably unacceptable for any educational institution. Despite the warning and the suspension, Respondent No. 4 did not change his behavour, hence the SDC decided to expel him which he was given fair warning. The father of Respondent No. 4 immediately filed a complaint on 03.11.2020 before Respondent No. 3, who then sought response from the Petitioner school and called them for a personal hearing. In terms of the impugned order issued by Respondent No. 3, he made an effort to resolve the matter for the benefit of the student, hence he though it befitting to restore the admission of Respondent No. 4. This finding of Respondent No. 3 appears to be totally extraneous to the Ordinance and based on his own understanding on how to deal with the matter. Even the reasons given in his report dated 04.11.2020 evidence the mindset that the private school is responsible for controlling the behaviour of the student because they charge a hefty fee. In this regard, public functionaries are required to act in accordance with law and they derive their authority under the law. Public functionaries cannot impose extraneous conditions while exercising their powers nor can they go beyond the powers provided to them under the law. The Ordinance in this case does not authorize Respondent No. 3 to interfere in disciplinary matters and the contention that this objective falls under Section 12C is totally without basis. It is also noted that the notification dated 10.05.2019 issued by Special Secretary School Education Department in terms of the direction given by the august Supreme Court of Pakistan is also not relevant because it is related to the payment of fee being charged by the private educational institution and nothing more. In that context, the schools were directed not to take disciplinary action against students and the august Supreme Court of Pakistan also directed that students and their parents are required to pay the fee on time and those, who do not pay the reduced

fee should be liable for disciplinary action. This notification has been wrongly interpreted and relied upon as it has no nexus with the issue at hand.

1. Under the circumstances, this petition is accepted and the impugned order dated 23.11.2020 passed by Respondent No. 3 is set aside.

(A.A.K.) Petition accepted

PLJ 2022 Lahore 322

Present: Muhammad Sajid Mehmood Sethi, J.

DEFENCE HOUSING AUTHORITY LAHORE through Secretary DHA and another--Appellants

versus

Mst. SHAUKAT ARA and another--Respondents

R.S.A. No. 248910 of 2018, decided on 18.1.2022.

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

----Ss. 42, 54 & 55--Civil Procedure Code, (V of 1908), O.XLI R. 31-- Suit for declaration, mandatory and permanent injunction--Concurrent findings--Judgment of appellate Court--Points of determination--Respondent No. 2 was arrayed as plaintiff in suit after 7 years from institution of suit--Challenge to--Judgment of Appellate Court shall state points of determination, decision thereon and reasons for decision--The Court is required to record important questions involved in case in light of respective contentions of parties and decide same after application of its independent judicious mind--The decision should be self-explanatory, illuminative and in nature of a speaking order--The Court should set forth evidence relied upon and its own conclusions supported by reasons--I have gone through impugned judgment, which does not reflect what led Appellate Court to affirm findings of trial Court have neither been adverted nor alluded to--Even no finding has been given on issue of limitation--The contentions of parties though mentioned in impugned judgment but it is not discernible as to whose arguments merited dismissal of appeal--Appeal allowed. [P. 324] A & B

1996 SCMR 669, 2016 CLC 1258, 2017 YLR Note 253, 2021 CLC 1609 & 2021 CLC 1647 ref.

M/s. Tariq Masood and Hassan Tariq, Advocates for Appellants.

Mian Umer Farooq, Advocate for Respondent No. 2.

Date of hearing: 18.1.2022.

Order

This appeal is directed against judgment and decree dated 10.08.2018, passed by learned Additional District Judge, Lahore, whereby appellants’ appeal against judgment and decree dated 31.07.2013, passed by learned Civil Judge, Lahore, decreeing the suit filed in favour of Respondent No. 2, was dismissed.

1. Brief facts of the case are that respondents filed a suit for declaration, mandatory and permanent injunctions against appellants regarding suit property detailed in para 1 of the amended plaint. The suit was contested by the latter by filing written statement. After framing issues, recording evidence and hearing arguments from both sides, learned Trial Court decreed the suit in favour of Respondent No. 2 declaring him lawful owner of the suit property, directed to put him into the actual possession of the suit property, appellants were directed not to interfere into possession of Respondent No. 2 over the suit property illegally and without due course of law and registered sale-deed in favour of appellants was cancelled and set aside, vide judgment and decree dated 31.07.2013. Feeling aggrieved, appellants filed appeal before learned Additional District Judge, which was dismissed vide judgment and decree dated 10.08.2018. Hence, instant petition.

2. Learned counsel for appellants submits that the suit was barred by time but no findings was given by learned Appellate Court on this pivotal aspect of the matter. Adds that even otherwise, Respondent No. 2 was arrayed as plaintiff in the suit after about 07-years from institution of the suit. Further submits that learned Appellate Court has not given issue wise findings while deciding the appeal, hence, impugned judgment and decree is unsustainable in the eye of law. In support, he has placed reliance upon Syed Iftikhar-ud-Din Haider Gardezi and. 9 others v. Central Bank of India Ltd., Lahore and 2 others (1996 SCMR 669) and Pakistan Refinery Ltd., Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others (2019 SCMR 1726).

3. Conversely, learned counsel for Respondent No. 2 submits that issue wise findings were not necessary to be delivered as learned Appellate Court, after appreciating the available evidence and record, was inclined to confirm the judgment and decree of learned trial Court.

4. Arguments heard. Available record perused.

6. Order XLI Rule 31 C.P.C. provides that judgment of the Appellate Court shall state the points of determination, the decision thereon and reasons for the decision. The Court is required to record the important questions involved in the case in the light of respective contentions of the parties and decide the same after application of its independent judicious mind. The decision should be self-explanatory, illuminative and in the nature of a speaking order. The Court should set forth the evidence relied upon and its own conclusions supported by reasons. The rationale behind said provisions is that not only the party losing the case but the next higher forum may also understand what weighed with the Court in deciding the lis against it. Such exercise cannot be dispensed with even in the case of affirmative judgment otherwise it will not be known whether arguments addressed were accepted or rejected with due application of mind. I have gone through the impugned judgment, which does not reflect what led learned Appellate Court to affirm the findings of learned trial Court have neither been adverted nor alluded to. Even no finding has been given on issue of limitation. The contentions of the parties though mentioned in the impugned judgment but it is not discernible as to whose arguments merited dismissal of the appeal. In these circumstances, impugned appellate judgment is unsustainable in the eye of law. Reference can be made to Syed Iftikhar-ud-Din Haiar Gardezi and 9 others v. Central Bank of India Ltd., Lahore and 2 others (1996 SCMR 669), Muhammad Yousaf v. Mehmood and 2 others (2016 CLC 1258), Muhammad Ibraheem v. Mst. Sultan and 11 others (2017 YLR Note 253), Saeed Ullah Khan v. Muhammad Khalid and 3 others (2018 CLC 648), Mst. Hajul through L.Rs. and others v. Nasrullah Malik and others (2018 CLC 1564), Pakistan through Secretary, Ministry of Defence, Islamabad and 2 others v. Wadero Lal Bux (2021 CLC 1609) and Niamatullah and 2 others v. Essa Khan and 9 others (2021 CLC 1647).

1. In view of the above, instant appeal is allowed and impugned appellate judgment and decree dated 10.08.2018 is set-aside. Consequently,’ appellants’ appeal shall be deemed to be pending before learned lower Appellate Court, which shall be decided afresh, strictly in accordance with law, after hearing the parties, through a well-reasoned speaking decision, preferably within a period of thirty days from the first date of hearing before learned Court below. The parties are directed to appear before the Court on 02.02.2022. Office shall transmit copy of this order to the Court concerned immediately.

(Y.A.) Appeal allowed

PLJ 2022 Lahore 325 [Multan Bench, Multan]

Present:Sardar Ahmad Naeem, J.

ANEELA IRSHAD--Petitioner

versus

ADDITIONAL SESSIONS JUDGE and 3 others etc.--Respondents

W.P. No. 7828 of 2021, decided on 7.6.2021.

Constitution of Pakistan, 1973--

----Arts. 199--Guardian and Wards Act, 1890, S. 25--Petition for recovery of minors--Similar petition was filed by petitioner--Petitioner was afforded opportunity of meeting with minors-- Principle of togetherness--Maintainability--Minors including Azan Ali Shah and Aliyaan Ali Shah stated in unison that they had to live with their father whereas, Hania Fatima, other minor opted for both i.e. petitioner as well as her father--Petition is silent if minors were snatched by Respondent No. 3 from petitioner, thus, petition is not maintainable--Hania Fatima expressed her desire to join her parents but keeping in view principle of togetherness, it was expedient that she should not be deprived company of her brothers--Petition dismissed. [P. 326] A & B

Mr. Shafqat Raza Thaheem, Advocate for Petitioner.

Maher Imtiaz Hussain Marali, Assistant Advocate General for State.

Mr. Nadeem Ahmad Tarar, Advocate for Respondent No. 3.

Minor produced.

Date of hearing: 7.6.2021.

Order

Through this petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for the following relief:

“... prayed that the writ petition in hand may very kindly be accepted and order dated 08.05.2021 passed by learned Justice of Peace/ASJ, Respondent No. 1 may very kindly be declared ab-initio absolutely illegal, capricious, perverse, null and void and the proceedings upon the impugned order is requested to be quashed cancelled/set aside and this Hon’ble Court may very graciously be pleased to issue an appropriate direction to the Respondent No. 2 to recover the detenues namely, Azan Ali Shah aged about 7 years, Aliyaan Ali Shah aged about 5 years and Hania Fatima aged about 4 years from the illegal and improper custody of Respondent No. 3 and 4 and produce them before this Hon’ble Court and set them at liberty as well as custody of minors be handed over to the petitioner being a real mother and natural Guardian.”

1. Learned counsel for the petitioner argued at some length. The crux of the arguments was that the petitioner being real mother has got the preferential right of Hazanat and was also the best suitable person under the Muhammadan Law, thus, the custody of the minors may be handed over to the petitioner.

2. Learned counsel for the Respondent No. 3 opposed this petition with vehemence and submitted that the order the learned Additional Sessions Judge was in accordance with law; that it was not a case of recent snatching; that Respondent No. 3 has filed petition under Section 25 of the Guardian and Ward Act and, thus, the matter which requires the evidence can be resolved by the said forum provided under the law, thus, the petition is liable to be dismissed.

3. A review of the record demonstrates that a similar petition was filed by the petitioner before Sessions Judge, Khanewal and was dismissed by the learned Additional Sessions Judge, Jahanianvide order dated 08.05.2021. The merits of the case have been dealt with in details in para No. 6 to para No. 8 of the said order.

5. The detenues/minors were accompanied by their father and the petitioner was afforded an opportunity of a meeting with her children outside the Court. The case was called on for hearing at the fag-end of the day. The minors though were not mature but intelligent enough to form their opinion. The minors including Azan Ali Shah and Aliyaan Ali Shah stated in unison that they had to live with their father whereas, Hania Fatima, the other minor opted for both i.e. the petitioner as well as her father.

1. The petition is silent if minors were snatched by Respondent No. 3 from the petitioner, thus, the petition is not maintainable in view of the law laid down by their lordships in “Mst. Nadia Parveen v. Mst. Almas Noreen and others” (PLD 2012 SC 758).

As mentioned above, Hania Fatima expressed her desire to join her parents but keeping in view the principle of togetherness, it was expedient that she should not be deprived the company of her brothers including Azan Ali Shah and Aliyaan Ali Shah.

1. For the foregoing reasons, I proceed to dismiss this petition, being meritless.

However, Respondent No. 3 asserted if a petition for the custody of the minors is filed under the law for the custody of the minors before the competent forum, the learned Guardian Judge shall not be influenced with any of the observation made hereinabove or any findings recorded by the learned Additional Sessions Judge vide order dated 08.05.2021.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 327

Present: Ch. Muhammad Iqbal, J.

MUHAMMAD IKRAM--Petitioner

versus

CH. MUHAMMAD GULFAM--Respondent

C.R. No. 231370 of 2018, decided on 2.11.2021.

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

----O.XXXVII, S. 115--Suit for recovery--Promissory note--Application for comparison of thumb-impression of petitioner was dismissed--Denial of promissory note--duty of beneficiary of document--Challenge to--Petitioner while filing his written statement categorically asserted that thumb-impression over alleged pronote does not belong to him and also filed an application for comparison of his thumb-impression with one available on Pronote--The said application was dismissed by trial on sole ground that party itself has to prove its case by producing evidence and it cannot use shoulders of Court for creating any evidence in his favour--This is not a sufficient ground to turn down request of petitioner for comparison of thumb-impression--Where executant of a document denies execution of such document, it becomes duty of beneficiary of document to apply to Court for getting writing signatures thumb-impression thereon compared from an expert--Every available possible mode should be used by Courts for resolving real controversy between parties--Law laid down by Hon’ble Apex Court has escaped from judicial consideration of trial Court which passed impugned order illegally which is not sustainable in eyes of law--Revision petition allowed. [Pp. 328, 329 & 330] A, B, C & E

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

----Arts. 59 & 84--Jurisdiction of Court--Trial Court has jurisdiction to avail facility of expert opinion for reaching fair and just decision of case. [P. 329] D

2009 SCMR 264, 2012 SCMR 1258 & 2010 MLD 1745 ref.

Mr. Faisal Taimoor Tarar, Advocate for Petitioner.

Mr. Waqas Ahmad, Advocate for Respondent.

Date of hearing: 2.11.2021.

Judgment

Through this civil revision, the petitioner has challenged the validity of an order dated 10.05.2018 passed by the learned Additional District Judge, Ferozwala, who dismissed the application of the petitioner for comparison of his thumb impressions.

1. Brief facts of the case are that the respondent/plaintiff filed a suit for recovery of Rs. 18,30,000/- under Order XXXVII C.P.C against the petitioner/defendant on the basis of a promissory note. The petition for leave to appear and defend the suit filed by the petitioner was accepted whereafter he filed written statement denying his thumb-impression on the Pronote. The petitioner/defendant also filed an application for comparison of his thumb-impression with the thumb-impression available on the Pronote. The learned trial Court dismissed the said application vide impugned order dated 10.05.2018. Hence, this civil revision.

2. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

4. Admittedly, the petitioner/defendant while filing his written statement categorically asserted that the thumb-impression over the alleged pronote does not belong to him and also filed an application for comparison of his thumb-impression with the one available on Pronote. The said application was dismissed by the learned trial on the sole ground that party itself has to prove its case by producing evidence and it cannot use the shoulders of the Court for creating any evidence in his favour. This is not a sufficient ground to turn down the request of the petitioner for comparison of thumb-impression. It is well established principle of law that where the executant of a document denies execution of such document, it becomes duty of the beneficiary of the document to apply to the Court for getting the writing/ signature thumb impression thereon compared from an expert. Although the opinion of handwriting expert is not conclusive proof, but in the peculiar circumstances of the case it might be the only mode to prove the Pronote. In the present era, for just decision of a case, every available possible/modern mode should be used by the Courts for resolving the real controversy between the parties. Even otherwise, under Article 59 read with Article 84 of Qanun-e-Shahadat Order, 1984 the learned trial Court has the jurisdiction to avail the facility of the expert opinion for reaching fair and just decision of the case. The aforesaid provisions are reproduced as under:

“59. Opinion of experts. When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand-writing or finger impressions, or as to authenticity and integrity of electronic documents made by or through an information system, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions or as to the functioning, specifications, programming and operations of information system, are relevant facts.

Such persons are called experts.

.......

“84. Comparison of signature, writing or seal with others admitted or proved. (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

(3) This Article applies also, with any necessary modifications, to finger-impressions.”

(emphasis supplied)

The matter of obtaining the expert opinion with regard to the thumb impression, handwriting or signature of a party qua the discard of execution of a document, the Hon’ble Supreme Court of Pakistan in a case titled as Mst. Akhtar Begum vs. Muslim Commercial Bank Ltd. (2009 SCMR 264), has held as under:

“7. We have minutely examined the disputed documents. In view of the emphatic denial by the petitioner of having signed the aforesaid documents. In our view, it was imperative for the Banking Court to have referred the same to handwriting expert for obtaining his opinion whether the purported signatures on the disputed documents were in the handwriting of the petitioner or were forged or manipulated by somebody else. The above very important aspect of the case not only escaped the attention of the Banking Court but the High Court also did not take notice thereof without realizing that a person cannot be made liable or responsible to make payment which he or she would otherwise not legally be bound to pay but being pressurized or forced to pay on the around of some forged or manipulated documents. Persistent, strong and vehemence denial of the petitioner of her signature on the mortgage deed, power of attorney, etc. led us to make a comparison of her denied signatures with her admitted signatures and the comparison was made with the naked eye but the results were not very encouraging and the peculiar facts and circumstances of the case warranted such comparison by a handwriting expert for conclusively hold that the disputed documents bear the signature of the petitioner.”

(emphasis supplied)

In a case reported as Syed Sharif-ul-Hassan through L.Rs. vs. Hafiz Muhammad Amin & others (2012 SCMR 1258) the Hon’ble Apex Court after setting aside the impugned judgments & decrees of the High Court and those of the learned District Judge, and remanded the case back to the latter for decision afresh in the light of the opinion of the Finger Prints Expert, as to the genuineness or otherwise of the thumb-impressions or signatures of the executant of the instrument. Reliance can also be placed on the case titled as Muhammad Anwar vs Muhammad Yousaf & Others (2010 MLD 1745). But all the above material aspects, provisions of law as well as the law laid down by the Hon’ble Apex Court has escaped from the judicial consideration of trial Court which passed the impugned order illegally which is not sustainable in the eyes of law.

1. In view of above, this civil revision is allowed, the order dated 10.05.2018 passed by the learned trial Court is set aside and the application filed by the petitioner for comparison of his thumb-impression with the one available on alleged pronote is allowed. No order as to costs.

(Y.A.) Petition allowed

PLJ 2022 Lahore 331

Present: Rasaal Hasan Syed, J.

RAJAN--Petitioner

versus

AMJAD ALI and others--Respondents

C.R. No. 3542 of 2014, decided on 10.12.2021.

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

----S. 42--Civil Procedure Code, (V of 1908), S. 115--Mutation of sale--Septuagenarian and blind lady--Respondents were admitted in evidence regarding blindness of petitioner--Inadmissible evidence--Extraordinary care of public functionaries--Non-mentioning of factum of blindness of lady in report roznamcha--It was never case of respondents that petitioner was not blind at time of mutation or that she had lost her eyesight subsequently--Respondents in fact admitted in evidence that she was blind--Being so, statements of patwari and tehsildar, were sufficient to create reasonable doubt as to identity of lady who had appeared as “Rajan Bibi” before them for purposes of completing process of attestation of mutation--Entire evidence as to alleged visit to house of petitioner and making of alleged payment to Rasheed son of petitioner are inadmissible for reason that there was no foundation thereof in pleadings--It is settled rule that material facts shall be mentioned in pleadings and that evidence could be led to amplify same--Where alleged vendor is a blind person, extraordinary care is expected of public functionaries, i.e. revenue officers in this case, to ensure authenticity of transaction by making necessary inquiry that vendor was accompanied by some close male relative and independent advice was available and person concerned was made to understand transaction which they understood with its clear impact--Respondents miserably failed to prove oral sale or lawful sanctioning of any mutation of sale--Neither patwari halqa nor tehsildar mentioned factum of blindness of lady in rapt roznamcha--Addl. District Judge conveniently ignored reasoning recorded by Civil Judge and also facts noted and, impugned judgment suffers from serious error of law and jurisdiction and misreading and non-reading of evidence on record which is also otherwise contrary to settled rules approved by superior Courts--Findings recorded by Addl. District Judge being based on perfunctory reasoning and on illegal and erroneous analysis of evidence cannot sustain--Revision petition allowed. [Pp. 334, 335, 338 & 340] A, B, C, D, E & F

PLD 1976 SC 469, 1988 SCMR 1696, 2021 SCMR 642, 1999 CLC 576 and 2016 SCMR 1225 ref.

Mr. Muhammad Ijrar Haider, Advocate for Petitioner.

Mr. Aamir Shafiq Ch., Advocate for Respondents.

Date of hearing: 10.12.2021.

Judgment

The petitioner in this civil revision has impugned judgment and decree dated 01.9.2014 of the learned Addl. District Judge, Chunian in terms whereof appeal was allowed, the judgment and decree of the trial Court dated 01.11.2012 was set aside, and suit of the petitioner was dismissed.

1. Petitioner instituted a suit for declaration to challenge mutation No. 2338 dated 04.3.2003 as also rapt roznamcha waqiati No. 251 dated 31.1.2003 claiming that the same were fictitious, forged and procured by fraud and misrepresentation and that she being blind, female and a septuagenarian, Respondent Nos. 1 and 2 who were cosharers in the joint property, illegally and collusively, attempted to deprive her of property through an alleged mutation of oral sale; though in point of fact she had never agreed to sell the land nor sold the same or ever appeared before the tehsildar or receive any consideration and that the whole process was completed by collusion, fraud and forgery and that, being so, the impugned mutation was inoperative against her rights and liable to be annulled. The suit was resisted by Respondent Nos. 1 and 2 who denied the allegations. Issues were framed, evidence was recorded and ultimately the suit was decreed by the learned Civil Judge vide judgment and decree dated 01.11.2012. In appeal preferred by contesting respondents, the learned Addl. District Judge set aside judgment of trial Court and dismissed the suit of petitioner vide judgment dated 01.9.2014 which is now subject-matter of consideration before this Court.

2. Learned counsel for the petitioner argued that the learned Addl. District Judge completely misread the evidence, misapplied the law and illegally ignored that it was a case of fraud committed against a blind old lady, that evidence on record proved beyond doubt that she had never entered into any transaction of sale, no receipt or acknowledgement was adduced to prove the alleged payment of consideration and that the testimonies of witnesses produced by the respondents were materially discrepant, unworthy of any credence on the face of it and that the grounds that prevailed upon the learned Civil Judge for granting decree in the suit were illegally ignored and that the learned Addl. District Judge committed serious error of law and jurisdiction in reversing the findings of fact that were based on correct analysis of evidence on record. The learned counsel for the Respondent Nos. 1 and 2 contrariwise supported the impugned judgment and submitted that the appellate Court correctly scrutinized the evidence and that there was no misreading of record, the transaction of sale was duly proved and findings of the learned Civil Judge being erroneous were rightly interfered with in appeal.

3. Points raised pro and contra have been examined in the light of documents annexed with the present revision petition which comprise pleadings of parties, oral and documentary evidence as also the judgments of the Courts below. Perusal thereof reveals that the petitioner Rajan Bibi in her suit claimed that she was owner of land measuring 04 kanals situated at Mauza Khokhar Ashraf, Chunian, Respondent Nos. 1 and 2, Amjad Ali and Asghar Ali respectively, were joint-owners in the khata; Respondent No. 1 approached her and stated that he had to apply for some fertilizer loan and that she being a co-sharer in the land, her thumb-impression will be required for obtaining Agricultural Passbook and that on this false pretense she was taken to patwari where her thumb-impressions were obtained by claiming that the same were required for completing of process of issuance of Agricultural Passbook for the fertilizer loan and that this was also what the patwari had explained to her; and that a few days before the filing of suit her son Rasheed Ahmad informed that he had been told by the respondents that they allegedly purchased share of the petitioner’s land and an inquiry was made from the patwari consequent to which it transpired that the Respondent Nos. 1 and 2 had fraudulently obtained the thumb-impression of the petitioner on the pretense of obtaining Agricultural Passbook and that were misused and fraudulently transformed into an alleged rapt of oral sale in conspiracy with the patwari though she had never entered into any oral agreement of sale with Respondent Nos. 1 and 2 nor had ever any intention to sell her share of land and never settled any transaction of sale or receive any consideration and that she neither appeared before the revenue officer/tehsildar for recording statement for attestation of alleged mutation of oral sale nor ever made any statement before the tehsildar or acknowledged any such non-existent bargain; and that the entire process was completed fraudulently in conspiracy with the revenue staff.

4. In support of her case she appeared as PW-1 and reiterated the facts she had stated in the plaint. As against the petitioner, respondents produced Javaid Saeed Patwari Halqa as DW-1 who produced copy of mutation No. 2338, Parat Sarkar; Muhammad Sarwar, ex-Patwari appeared as DW-2 who had entered rapt No. 251 dated 21.1.2003; Falak Sher as DW-3; Muhammad Mushtaq as DW-4; Amjad Ali defendant/Respondent No. 1 appeared as DW-5 and Muhammad Ali Kamyana, ex-Revenue Officer Chunian who allegedly attested the disputed mutation was produced as DW-6.

6. It is discernible from the stance taken in the pleadings that the petitioner’s case was that she had never agreed to sell her land nor ever received any amount of consideration and that she never appeared before the revenue officer for the attestation of mutation of oral sale of land and that everything was completely fraudulently done. Foundation of her plea was that she was taken to the patwari on the pretext of issuance of an Agricultural Passbook which Respondent No. 1 intended to obtain for the purposes of some fertilizer loan, and this was what the patwari had explained to her and that she never acknowledged or admitted before the patwari about any oral sale of land. She had pleaded to be a blind lady aged between 70 and 75 years. Respondent No. 1, Amjad Ali, in his statement as DW-5 admitted in cross- examination that he had admitted in the written statement that the petitioner was a blind lady. Not only this, the respondents’ witness Falk Sher, DW-3, admitted it to be correct in cross-examination that Rajan Bibi was indeed blind. Muhammad Mushtaq, DW-4, another witness of respondents too admitted in the first line of his crossexamination that Rajan Bibi was a blind lady. Interestingly the patwari of the relevant time, who had entered rapt roznamcha waqiati, Exh.D-2, when appeared in evidence as DW-2, stated that before him a “healthy lady” had appeared. Same is the case with the tehsildar who appeared as DW-6 and stated that he did not recollect as to whether the lady who appeared for attestation of mutation as Rajan Bibi, was blind or not nor could remember as to whether her son or brother accompanied her at the time or not. Rather he claimed that Rajan Bibi who appeared before him was in full command of her senses. It was never the case of respondents that the petitioner was not blind at the time of mutation or that she had lost her eyesight subsequently. They in fact admitted in evidence that she was blind. Being so, the statements of the patwari and the tehsildar, were sufficient to create reasonable doubt as to the identity of the lady who had appeared as “Rajan Bibi” before them for the purposes of completing the process of attestation of mutation.

1. It was a case in which the existence of transaction of sale and payment of consideration were outright denied by the lady who was a septuagenarian and blind. The moment she appeared before the Court and made her statement on oath that she had not transacted for the sale of her property nor did she receive any valuable consideration and specifically denied having ever appeared before the concerned functionaries for attestation of mutation; heavy onus shifted upon the respondents to prove, not only the claim of genuineness of mutation proceedings but also the original transaction of sale itself. In this context it is observed that the respondents did not allege in the written statement that any meeting was held for the settlement of bargain in the house of the petitioner before the entry in rapt roznamcha waqiati. Their defense was that they had purchased the property and that the lady had allegedly appeared before the revenue functionaries i.e., patwari and tehsildar, and allegedly admitted transaction of sale and also receipt of consideration. In the evidence, a new narrative was introduced that before the entry in rapt roznamcha waqiati, the respondents along with the witnesses had allegedly visited the house of petitioner at Mauza Kot Umer Wattoo where the alleged payment of Rs. 1,00,000/- was made in the presence of Rasheed son of the petitioner and that the cash was counted by Rasheed whereafter the petitioner accompanied for reporting the transaction in roznamcha waqiati. This version was repeated by the witnesses though with certain discrepancies in respect of date or the day of the alleged visit to the house of petitioner; as respondent claimed that on the next day rapt was made but the witnesses stated that after two to three days the rapt was recorded. Be that as it may, the entire evidence as to the alleged visit to the house of the petitioner and making of alleged payment of Rs. 1,00,000/- to Rasheed son of the petitioner are inadmissible for the reason that there was no foundation thereof in the pleadings. It is settled rule that material facts shall be mentioned in the pleadings and that evidence could be led to amplify the same. In a case where a material fact is not pleaded in the written statement neither any evidence could be allowed nor, if recorded, shall it be admissible in law. In “Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad” (PLD 1976 SC 469) it was observed to the effect that if a plea of fact is not pleaded no case can be founded on it. In “Mst. Jannat Bibi v. Sher Muhammad and others” (1988 SCMR 1696) it was observed to the effect that in civil proceedings a party is not permitted to deviate from their pleadings, nor could the Court set up a different plea for a party and decide the suit on that basis let alone at the appellate stage. In “Sadar Ud Din (since deceased) through L.R.s v. Sultan Khan (since deceased) through L.R.s and others” (2021 SCMR 642) it was ruled to the effect that in the absence of plea in the plaint evidence could not be considered on the basis of the principle laid down by the Court that the parties were required to lead evidence in consonance with their pleadings and no evidence in support of a plea that had not been taken in the pleadings, could be led and that the parties were required to plead facts necessary to seek relief and to prove them through evidence of unimpeachable character.

2. As noted supra, in the instant case the respondents did not plead in the written statement that there was any meeting for settlement of pre-conditions or that payment was made in the house of petitioner a day prior to the reporting of transaction in the roznamcha waqiati nor was there any assertion that the respondents, along with their witnesses, had gone to the house of petitioner at Kot Umer Wattoo and that the sale consideration of Rs. 1,00,000/- was paid to Rasheed son of the petitioner who counted the amount. Instead, the plea was that the petitioner in the presence of witnesses before the patwari declared oral sale and for the incorporation of rapt No. 251 dated 31.1.2003 and that she allegedly affixed her thumb-impression on the roznamcha waqiati. There was no mention of any meeting prior to the entry of rapt roznamcha waqiati in the written statement and the entire narrative was introduced for the first time in the evidence. Obviously, such evidence being extraneous to the facts averred in the written statement and being without laying of any foundation in the written statement, could not be deemed to be admissible in law even if it was brought on record, in view of the rule settled in the precedents mentioned supra.

3. As regards the other evidence, the respondents’ claim was that they had purchased the property through oral sale in consideration of Rs. 1,00,000/-. It was imperative for them to allege in the pleadings the time, date and place where the terms and conditions for the alleged oral sale were proposed and accepted and the bargain was struck as well as the names of the witnesses in whose presence this happened. In the peculiar circumstances of this case where the respondents were claiming a deal with a blind old lady, it was also necessary for them to ensure that she was duly represented and had the independent advice of some near one and dear one like son, brother, husband or father if alive, who should have been present at the time of transaction to make a blind old lady fully and reliably comprehend the alleged arrangement of oral sale as well as to ensure the security of cash if paid at that time. Before it could be convincingly claimed that she had thumb-marked the document, it was necessary for the respondents to prove that she entered the deal with her free-will and volition. The petitioner, as stated above, in her plaint and also in her evidence on oath, categorically deposed that she never entered into any oral agreement of sale, never wanted to sell her share in the jointproperty and that she did not receive a single penny from Respondent Nos. 1 and 2 nor had she ever appeared before the tehsildar to record her statement to acknowledge and confirm any oral sale and that her thumb-impressions in the roznamcha waqiati, etc. were obtained by fraud and misrepresentation and in conspiracy with patwari halqa. In her cross-examination she had disclosed that she had three sons who were all young, two of them were married while the third one was unmarried and that she was living with her younger son Muhammad Munir who was matriculate and a salesman. She reiterated that she did not receive any amount nor ever made any oral transaction of sale of her share in the property. As against this, the respondents in their evidence claimed that the alleged payment was made to Rasheed son of the petitioner who allegedly counted the cash and confirmed the amount; but Rasheed was not produced or summoned as a witness or a Court-witness in support of their stance taken for the first time in evidence. Strangely enough, the learned Addl. District Judge assumed that it was the petitioner who was under an obligation to produce Rasheed as her witness little appreciating that the onus to prove the transaction of oral sale was upon Respondent Nos. 1 and 2 who were duty-bound to produce all the persons as their witnesses who in their understanding had performed any role in the completion of the alleged transaction. Since it was the respondents’ case in evidence that the payment was made through Rasheed, son of Rajan Bibi, it was their duty to produce him as their own witness or as a Court-witness and his non-production obviously triggered serious adverse inference against them.

4. Another important aspect of the matter is that the roznamcha waqiati is claimed to have been recorded on the oral information of petitioner Rajan Bibi who was allegedly identified by Falak Sher and Mushtaq; but names and thumb-impressions of Falak Sher and Mushtaq appear below the report and, thereafter, the names and thumb-impressions of Rajan Bibi and Amjad (the alleged vendee) occur that imparts an impression as if the rapt was prepared on the alleged oral information of the witnesses. The names of the informer, vendor and vendee as a matter of practice had to appear immediately after the completion of writing of rapt. In the instant case, however, the arrangement of signatures is inconsistent with the narrative of Rajan Bibi as informer of her own transaction as the signatures and thumb-impressions of the alleged witnesses are affixed before those of the alleged informer Mst. Rajan Bibi or the alleged vendee Amjad instead of occurring below the names and thumbimpression of the alleged informer, vendee and vendor. Another fact pointed out by the learned counsel for the petitioner appears to be of some significance. The pert patwar of mutation No. 2338 dated 04.3.2003 as also pert sarkar of the said mutation were produced as Exh.P-2 and Exh.D-1. The document in this case comprised two pages; but the thumb-impressions of the parties and their witnesses do not appear immediately below the proceedings of the alleged mutation dated 04.3.2003. Rather they are shown in part “bay” (tittima shijra) at second page of the document while all the columns in part “aleph” of tittima field-book are blank. This obviously supports the plea of the petitioner that the thumb-impression of the blind lady were obtained on blank paper as in ordinary course they ought to have got reflected on the page where the proceedings were completed by the revenue officer.

5. As regards the statement of DW-6, tehsildar/revenue officer of the relevant time who allegedly attested the mutation, curiously, the original record of mutation was never produced before him which fact was admitted by him; yet he had the guts to record his deposition on the basis of photocopy of a copy of document Exh.D-1. He admitted in cross-examination that the original mutation record was not before him and that he did not remember as to whether the lumberdar was present or not at the time of attestation of mutation. He claimed that he did not recollect if Rajan Bibi was blind or not nor could he recollect as to whether she was accompanied by any of her sons or brother but claimed that the lady who appeared before him was in her full senses. In cross-examination he further stated that he could not say if there was any daura (tour) of the revenue officer between 21.1.2003 to 06.4.2003. He volunteered that on 18.2.2003 he had a tour of the village but none of the parties appeared before him, and he could not recollect if he had checked the roznamcha waqiati or not before attesting the mutation. Scrutiny of his statement clearly reveals that there is no indication of the fact that the lady who appeared as Rajan Bibi before him was a blind lady or was aged between 70 and 75 years and that she was not accompanied by any male member of the family like son or brother.

12. It has been consistently observed that the revenue officers shall be very cautious in the matter of sanctioning of mutations wherein the transaction is claimed from a lady. Particularly when she is old and blind. It has repeatedly observed that where the alleged vendor is a blind person, extraordinary care is expected of the public functionaries, i.e. revenue officers in this case, to ensure the authenticity of the transaction by making necessary inquiry that the vendor was accompanied by some close male relative and that independent advice was available and the person concerned was made to understand the transaction which they understood with its clear impact. Reference can be made “Ghulam Shabbir and another v. Sikandar Shah and another (1999 CLC 576), “Mst. Asia Khatoon v. Khan Shareen” (2015 YLR 435) and “Rana Liaqat Ali and 10 others v. Mst. Azizan and 5 others” (2016 CLC 736). In “Phul Peer Shah v. Hafeez Fatima” (2016 SCMR 1225) it was observed to the effect that in cases where the transaction is claimed to be by a pardanashin lady the onus to prove the transaction is upon the beneficiary who has to establish free of all suspicions and doubt that the transaction was legitimately made and that certain mandatory conditions shall be complied with and fulfilled through transparent manner and that pre-conditions to be followed will be that the lady was fully cognizant of the nature of the transaction and its consequences; that she had independent advice from a reliable source and person of trust to fully understand the proposed commitment; that witnesses to the transaction are close relatives or fully acquainted with the lady without any conflict of interest with her; that sale consideration was duly paid and received by her in the same manner; and that the very nature of transaction is explained to her in the language she understands fully well and she is apprised of the contents of the documents involved.

1. In the instant case the evidence on record including the evidence of respondents proved beyond doubt that the petitioner was a blind lady. In the first instance the respondents admitted in cross-examination that Mauza Kot Umer Wattoo where the petitioner resided was at a distance of four to five miles from the patwar khana and that Respondent No. 1 escorted the blind lady on a bicycle there and after completing the process, he dropped her back at her house. It is odd that the lady was living with her son but he was not taken along with her which casts cloud of serious doubt upon the genuineness of the transaction. The entire narrative appears to elicit suspicion. Nor is there any creditworthy explanation as to why none of the three sons of petitioner (who were young and out of them two were married) was associated in the entire dealing, particularly, when it was not the case of respondents that they were not on speaking terms or had any bitter relations with the mother. DW-3 claimed that the lady was accompanied by Muhammad Rasheed to the office of patwari though this is not the case of either the respondents or any of their witnesses. It also cannot be overlooked that if the son of the petitioner, with whom she was living, was matriculate as to why a receipt could not be executed as acknowledgement of the payment. The respondents did not claim the execution of any such receipt as acknowledgement of the full sale price which in itself raises serious doubt as to the plea of oral sale and also the genuineness of the narrative of the respondents. As regards the plea of being in possession, the learned Civil Judge rightly observed that the respondents did not produce the khasra girdawari of the relevant khewat nor any record to prove the change of entries with regard to the column of possession. Be that as it may, the petitioner was owner of 04 kanals in joint land and being a co-sharer, every co-sharer is deemed to be in possession of the property and if any co- sharer holds the same it inures for the benefit of all the other co-sharers who will be deemed to be in joint-possession unless a case of complete ouster was claimed and proved which is obviously not so in the present instance.

14. In view of the factors noted supra, the respondents miserably failed to prove the oral sale or the lawful sanctioning of any mutation of sale. Rather the circumstances proved that it was a case of clear-cut fraud which was played upon an old and blind woman. The learned Civil Judge, in this backdrop, rightly observed that the evidence on record revealed that the respondents admitted the petitioner to be a blind lady. The woman who appeared before the patwari was not claimed to be blind rather she was claimed to be a healthy lady, who of course was not the petitioner and that the revenue officer also did not remember if the lady who appeared before him was blind or not and that the rule was that if an infirm and disabled person appeared regarding such transaction, the public functionaries had to show responsibility in looking after their affairs in the public interest and should be extremely cautious if a blind woman was produced before the patwari or before tehsildar without her close relatives and they were expected to be extra careful; but in this case neither the patwari halqa nor the tehsildar mentioned the factum of blindness of the lady in the rapt roznamcha or at the time of attestation of mutation and candidly admitted that the lady who appeared before them was of sound health and was not a blind woman and all these circumstances proved that the mutation and rapt roznamcha waqiati were result of fraud. The learned Addl. District conveniently ignored the reasoning recorded by the learned Civil Judge and also the facts noted supra and, therefore, the impugned judgment suffers from serious error of law and jurisdiction and misreading and non-reading of evidence on record which is also otherwise contrary to the settled rules approved by the superior Courts. The findings recorded by the learned Addl. District Judge being based on perfunctory reasoning and on illegal and erroneous analysis of evidence cannot sustain and are, accordingly, set aside.

1. Resultantly, the revision petition is accepted,the impugned judgment dated 01.9.2014 of learned Addl. District Judge, Chunian is set aside and by restoring the judgment and decree dated 01.11.2012 of the learned Civil Judge, Chunian, the suit of the petitioner shall remain decreed.

(Y.A.) Petition accepted

PLJ 2022 Lahore 341

Present:Ch. Muhammad Masood Jahangir, J.

MUHAMMAD RAFI--Petitioner

versus

Mst. JAMILA BEGUM and 9 others--Respondents

C.R. No. 1747 of 2015, heard on 5.3.2021.

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

----Ss. 42 & 9--Civil Procedure Code, (V of 1908), S. 115--Suits for declaration and possession--Consolidated judgment--Suit filed by plaintiff was decreed and suit filed by defendant was dismissed--Dismissal of appeals--Benamidar--Joint and equal title--Presumption of correctness--Motive for ostensible sale was not established--Exercising of wrong jurisdiction--Partial transaction--Challenge to--Sale-deed (Exh.P3) was original document, which vested joint & equal title to both brothers (plaintiff & petitioner)--This was a registered instrument, which prior to institution of suit had already attained age much over to 30 years, for both said counts attained strong presumption of correctness qua its attestation--Suit plot had been exclusively purchased by plaintiff, neither any express nor implied evidence was brought on suit file--Plaintiff omitted to plead and prove motive why subject plot was ostensibly purchased in name of petitioner, rather only mentioned therein that for love & affection it was done so-- Plaintiff failed to allege that his brother was required to show himself to be owner of some immovable property for his benefit and disputed transaction was effected in his name, in absence thereof, impugned partial transaction could not be declared a sham one--Ingredient ‘motive’ for ostensible sale in favour of petitioner was not established as well--Normally High Court does not interfere in concurrent findings of fact recorded by Courts below, but here impugned decrees being classic example of wrong exercise of jurisdiction & clearly suffering from material irregularity/patent illegality besides gross violation of law floating on its surface cannot be sustained--High Court cannot shut its eyes and is always under obligation to rectify error by interference in such like illegal findings--Revision petition allowed.

[Pp. 344, 346, 347, 348, 350 & 351] A, B, C, D, E & F

2004 SCMR 1001, 2006 SCMR 1238, 2014 SCMR 914 & 2016 SCMR 24 ref.

Mr. Muhammad Ahmad, Advocate for Petitioner.

Malik Muhammad Shafique Rajpoot, Advocate for Respondents No. 1 to 8 & 10.

M/s. Nasir Mahmud and Tahir Mahmood Mughal, Advocates for Respondent No. 9.

Date of hearing: 5.3.2021.

Judgment

Precisely, Muhammad Rafi, petitioner and late Muhammad Shafi (plaintiff) ascendant of Respondents No. 1 to 5, were brothers inter se, to whom suit plot measuring 14Marlas transferred by one Malik Din through sale-deed dated 16.12.1964 (Exh.P3). Much thereafter, on 31.01.2007, Muhammad Shafi/plaintiff instituted declaratory suit asserting that in 1964, when suit property was transferred, the petitioner/defendant was minor; that, indeed, the former from his own funds had purchased subject plot after paying entire sale price, whereas just for love and affection, name of minor brother/petitioner being benamidar was reflected in subject instrument. The latter not only contested the suit, rather he also filed an independent suit for declaration and possession etc. According to the pleadings submitted on behalf of petitioner/defendant, his stance was that suit property had been purchased in equal shares by their late father through his own resources for both of the sons (plaintiff and petitioner). It was further defence of the petitioner that subsequently, the plaintiff/respondents by selling out some area out of his 07marlas to one Muhammad Shabbir as well as to the petitioner vide Sale Deed and Relinquishment Deed respectively had not only become landless, rather already transferred share more than his entitlement. The ultimate posture of the petitioner was that he had become proprietor of 10marlas 02 Square Feet, thus possession of said area be awarded/restored to him.

1. The learned Trial Court captured disputed area of pleadings of the parties by materializing nine issues, however, subsequently Issue No. 1-A added as well and Issues No. 1, 1-A, 2, 3, 6 & 7, being pivotal for brevity sake, are reproduced here:-

2. Whether the plaintiff is entitled to a decree for declaration and permanent injunction as prayed for? OPP.

1-A. Whether the plaintiff is exclusive and sole owner of the suit property mentioned in the sale-deed No. 13633 dated 16.12.1964 and defendant is only benamidar? OPP

1. Whether the entries in the name of defendant in the Revenue Record and Excise and Taxation Record are based upon fraud, illegal and inoperative upon the rights of the plaintiffs? OPP

2. Whether the suit is time barred? OPD.

3. Whether the defendants Haji Muhammad Rafi etc. are entitled to a decree for declaration, possession cancellation of sale-deed along with permanent injunction as prayed for? OPD.

4. Whether the sale-deed No. 2194 dated 29.03.2001 is illegal, void and liable to be cancelled? OPD.

The learned Civil Court tried both the suits conjunctively and ultimately after receiving/appreciating evidence of the respective parties, decreed the suit of Muhammad Shafi, plaintiff (predecessor of Respondents No. 1 to 5), whereas dismissed that of petitioner/ defendant through consolidated judgment and decrees dated 30.11.2013. Although two independent appeals were preferred by the latter, but without any success having been dismissed on 27.04.2015, therefore, this as well as connected C.R.No. 1749-2015. Since both these Civil Revisions inter se the parties have arisen out of common verdicts and decrees involving identical questions of fact/law, therefore, for all intents and purposes, it would be better to decide the same vide this single judgment. However for reference, source will be file in hand.

1. Arguments heard, record perused.

2. At the very outset, it is noticed that by filing CM No. 1/C of 2018, the plaintiff/respondents prayed for production of additional evidence detailed in Para No. 7 thereof. No doubt in appropriate cases permission can be granted to produce the same, if found to be essential by the Court in arriving at just conclusion of the lis before it. Admittedly, the proposed documents were already in possession and knowledge of the plaintiff/respondents, who never produced the same in the evidence at the relevant time for the reasons best known. Moreover, mere placing of such documents on the record will not serve any useful purpose until and unless those are duly proved under the scheme of law. See Muhammad Yusuf Khan Khattak vs. S.M.Ayub and 2 others (PLD 1973 SC 160). Even otherwise, it is well settled principle up till now that permission to bring additional evidence cannot be accorded just to fill in the lacunas left by a party in its evidence. Reliance can be placed on the judgments reported as Muhammad Yousaf vs. Mst. Maqsooda Anjum and others (2004 SCMR 1049), Muhammad Siddique vs. Muhammad Sharif and others (2005 SCMR1231) and Rana Abdul Aleem Khan vs. Idara National Industrial Co-operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another (2016 SCMR 2067). Resultantly, instant application having no substance is dismissed.

5. Adverting to merits of the main lis, sale-deed No. 13633 dated 16.12.1964 (Exh.P3) was the original document, which vested joint and equal title to both the brothers (plaintiff and petitioner). This was a registered instrument, which prior to institution of suit on 13.01.2007 had already attained the age much over to 30 years, therefore for both the said counts attained strong presumption of correctness qua its attestation. Reliance can be placed upon Rasool Bukhsh and another vs. Muhammad Ramzan (2007 SCMR 85), Khan Muhammad vs. Khursheed (2010 CLC 970) and Muhammad Siddique (deceased) through LRs and others vs. Mst. Noor Bibi (deceased) through LRs and others (2020 SCMR 483). It is to be kept in mind that suit qua benami dispute is not the one wherein genuineness or veracity of the document is involved, rather in such like cases, the execution of the instrument is an admitted fact and the seeker intends just rectification of the document so as to eliminate/exclude the name of the benamidar. The question whether a particular transaction is benami or not, is largely one of the facts and for its determination, no absolute formula or test has been laid down, but while seeking guidance from dicta laid down in judgment reported as Muhammad Sajjad vs. Muhamamd Anwar (1991 SCMR 703), the following elements are to be affirmatively proved by the quester:-

i. Source of consideration;

ii. From whose custody original title deed came;

iii. Who is in possession of the property; and

iv. Motive of benami.

These essential elements must co-exist for proving benami transaction between ostensible owner and actual purchaser, who bought it through his own funds in the name of ostensible owner for certain reasons/motive to gain ultimate benefits.

1. As per prevailing situation emerging from pleadings of the parties under Article 117 of the Qanun-e-Shahadat Order, 1984, onus to prove the said claim was on the plaintiff, who asserted it positively. Admittedly, before recording evidence of the parties, Muhammad Shafi, (plaintiff)/alleged actual owner had already died, who was succeeded by Respondents No. 1 to 5. Out of them, Muhammad Taqi (PW1) in his statement neither exposed the essential detail in respect of time, date and names of witnesses, so as to prove when and before whom the consideration was paid, nor did he disclose the resources for generation of the funds. He simply stated in his examination-in-chief that suit property had been purchased by his father after making entire sale consideration, whereas nothing was invested by petitioner/defendant because he was minor. It was further worded by PW1 that subsequently some area out of suit property was alienated to one Muhammad Bashir and another 03 marlas was also transferred to petitioner/defendant for additional love and affection. He though stated that remaining part of the property was transferred by his father to the younger sons through sale-deeds and those were attested by the petitioner/defendant being marginal witness, yet this part of deposition was beyond the pleadings of the plaintiff. Muhammad Taqi (PW1), however, during test of cross-examination could not withstand the credibility. Some important glimpses out of his cross-examination are given below:

یہ درست ہے کہ جب متد عو یہ زمین کی ادائیگی ہوئی تو اس وقت میں موجود نہ تھا ۔ میرے والد صاحب نے کہا کہ رقم میں نے ادا کی تھی ۔ سال 1964 میں میری عمر 4 چار سال تھی ۔ یہ درست ہے کہ میرے دادا پر چون کی دکان کرتے تھے ۔

Meaning thereby that he being infant at the time of execution of sale-deed, was not in any position to utter that when original sale settled, how much consideration paid or what was the resource of his late father to beget the sale price. While answering another question, PW-1 admitted as well that his grandfather (real father of the plaintiff and petitioner) was running a shop. The said witness while further uttering as under:

جب میرے دادا جان پر چون کی دکان کر تے تھے تو اس وقت میرے والد پڑھتے تھے ۔ مجھے یاد نہ ہے کہ میرے دادا جان نے کس سال تک پرچون کی دکان کی۔

indeed, to some extent admitted the stance of his uncle/petitioner that father of original parties (grandfather of PW1) was an earning hand, whereas his father (plaintiff) was still student. The PW1 also deposed in following terms:

یہ درست ہے کہ ہمارے پاس OK نوار فیکٹری کی بابت کوئی بنک Statementیا سرٹیفیکیٹ کسی ادارے کی طرف سے فی الوقت موجود نہ ہے ۔ میں کل بھی یہ دستاویزات پیش نہ کر سکتا ہوں ۔

and thereby factually belied his own version, which for the first time was introduced by him in his statement-in-chief that his father had been running some factory and out of its income subject property was purchased. The PW1 in further cross-examination while conceding as follows:

یہ درست ہے کہ میرے والد نے 3 تین مرلہ تقریبا کا دستبر داری نامہ محمد رفیع کے نام کر وایا تھا۔

explicitly admitted as well that subsequent to sale-deed (Exh.P3), another area of 03marlas was alienated to petitioner/defendant. If initially out of fourteen, disputed seven marlas had ostensibly been transferred to petitioner/defendant in 1964 via subject sale-deed, then without demanding it back, the alienation of further 03marlas 02square feet through Relinquishment Deed No. 10037 dated 22.09.2010 (Exh.P5) was an additional acknowledgement of the earlier transfer.

1. Although in further collaboration, Jaleel Hassan Madni (PW2), Shahid (PW3) & Muhammad Ashraf (PW4) were produced, but PW2 in his early lines of the cross-examination admitted that:

یہ درست ہے کہ جب پراپرٹی متد عویہ کار قبہ خرید کیا گیا میں اس وقت موجود نہ تھا ۔

Whereas Shahid (PW3) also endorsed PW2, while acknowledging that:

درست ہے کہ پلاٹ متدعویہ کی رقم کی ادائیگی کے وقت میں موجود نہ تھا ۔

On the same pattern, PW4 conceded as well that:-

یہ درست ہے کہ جب پراپرٹی متدعو یہ خریدی گئی میں اس وقت موجود نہ تھا ۔

No other witness was examined. Thus, clear that all the four witnesses (PW1 to PW4) by admitting their absence at crucial point when sale price paid, lost their relevancy and importance, if any. Therefore, to the effect that suit plot had been exclusively purchased by plaintiff, neither any express nor implied evidence was brought on suit file. Indeed, better course for the beneficiary/plaintiff was either to summon the original vendor or the marginal witnesses of sale-deed (Exh.P3), so that through this direct evidence, the basic stance could be proved. The withholding of best evidence definitely created hostile inference against the plaintiff/respondents. The emphasis of worthy counsel for the latter that in the meantime the vendor and attesting witnesses might have died, if taken to be correct, then it was not enough to exonerate the plaintiff from his failure to produce the secondary evidence. The strict compliance of scheme of law in proving the fact was to be followed, but no heed was paid. It was plaintiff, who did not institute the suit promptly or till the existence of direct evidence and filing of suit after its elimination might be an afterthought, which in no way could advance benefit to the plaintiff, rather this aspect was drastic at his end. The available evidence was not only meager, infirm and weak, rather insufficient to prove the first ingredient.

8. Another setback of the case was that the plaintiff omitted to plead and prove the motive why the subject plot was ostensibly purchased in the name of petitioner, rather only mentioned therein that for love and affection it was done so. The ingredient of motive for creation of benami transaction is essential and relevant factor for the purpose of determining, whether title vesting is merely a benami and absence of motive always goes against the party claiming to be actual owner, thus heavy onus was on the shoulders of the plaintiff to prove that actually he had purchased it, but for certain reasons ostensibly got it transferred to his brother. It was neither the case of plaintiff that he was a taxpayer and the name of petitioner was added in the Exh.P3, so that taxes could be evaded, nor it was his stance that he had black money and to save himself from the inquiries, benami transaction was effected in favour of petitioner/defendant. Even he failed to allege that his brother was required to show himself to be owner of some immovable property for his benefit and the disputed transaction was effected in his name, thus in absence thereof, the impugned partial transaction could not be declared a sham one. As far as arguments of learned counsel for the plaintiff/respondents that per contents of subject sale-deed (Exh.P3) the consideration was exclusively paid by the plaintiff, therefore, the strict onus was upon the petitioner to establish that the same was generated by the father, is not well founded. Mere proof that sale price was paid by the plaintiff in such like cases is not enough and for the sake of arguments, if stance of the plaintiff that for love and affection, the half of the property was purchased in the name of his brother, is taken as correct, even then it could not be dubbed as benami. Once having purchased the suit property when there was benevolence as well as benignancy towards minor brother, thereafter plaintiff could not turn around to claim himself actual owner after liaisons became hostile and they fell apart. This view finds support from judgment of the apex Court reported as Ghulam Murtaza vs. Mst. Asia Bibi and others (PLD 2010 SC 569). The relevant paras 7 & 8 of latter one being all four corners applicable are reproduced here:

1. At this juncture, we may clarify that the motive part in the benami transactions is the most important one. A transaction cannot be dubbed as benami simply because one person happened to make payment for or on behalf of the other. We come across innumerable transactions where a father purchases property with his own sources for his minor son or daughter keeping in mind that the property shall best in the minor. Such transaction subsequently cannot be challenged by father as benami simply because the amount was paid by him. There are people who with positive application of mind, purchase properties in the name of others with intention that the title shall vest in that other.

2. As said earlier, there are certain transactions in peculiar circumstances of those peculiar cases where, for reason of certain emergencies or contingencies, the properties are purchased in the name of some other person without they intention that the title shall so vest permanently. If such motive is available and also is reasonable and plausible, a transaction can be held as benami, otherwise not. A property purchased with ones own sources in the name of some close relative like wife, son or daughter cannot be dubbed as benami when purchased with full intention of conferring title to the purchaser shown. If this principle is denied and that of benami attracted simply because the sources of consideration could not be proved in favour of the named vendee, it would shatter the most honest and bona fide transaction thereby bringing no end to litigation.

In addition thereto, any transaction effected for love and affection can, at the most, be termed as gift and for the said motive/reason, it cannot be termed as benami. See Ahmad Sultan Khan vs. Mst. Sanin Kausar and another (1986 SCMR 1591). In said case the father purchased the property for his minor daughter at his own sake and when subsequently the transaction was claimed to be benami, the apex Court declared as under:

\\We agree with the learned Judge of the High Court that there was nothing wrong or unusual for a father, in a society to which the parties belong, purchasing a plot of land for building a house for a minor daughter in her name. The question of Benami transaction or the purchase having been made by Umar Khan for his own sake, therefore, did not arise. Reliance of the learned counsel on Iman v. Saifur Rehman 1982 PSC 1474 is of no avail to the petitioner because that case is distinguishable from the present case.

For the reasons discussed hereinabove and law already laid down by the apex Court on the subject in hand, the ingredient ‘motive’ for ostensible sale in favour of the petitioner was not established as well.

1. The apex Court while dealing with a case involving benami transaction through authoritative judgment titled as Ch. Ghulam Rasool vs. Mrs. Nusrat Rasool and 4 others (PLD 2008 SC 146) besides proving of the essential elements discussed hereinabove also introduced an additional rule that sine qua non for claimant of benami transaction to establish that there was some mutual understanding between him and ostensible owner and as a result thereof, sham transaction was germinated. For better understanding, the relevant extract of the cited judgment (supra) is reproduced here:

“\\This may be seen that two essential elements must exist to establish the benami status of the transaction. The first element is that there must be an agreement express or implied between the ostensible owner and the purchaser for purchase of the property in the name of ostensible owner for the benefit of the persons who has to make payment of the consideration and second element required to be proved is that transaction was actually entered between the real purchaser and seller to which ostensible owner was not party. In the present case, the evidence brought on record would not directly or indirectly suggest the existence of any of the above elements to prove the benami character of the transaction of sale.\\”

This aspect is also lacking in the case in hand, therefore, plaintiff failed to cross the barrier set down by the august Supreme Court, whose decisions in terms of Article 189 of the Constitution are binding on each and every organ of the State including the subordinate Courts, but in the case in hand, the learned lower fora while passing the impugned decrees not only omitted to take notice thereof, rather the available evidence was misconstrued and misinterpreted to return its findings on factual issues, which being tainted with misreading and non-reading cannot be sustained, therefore, are set aside.

1. The contention of learned counsel for the plaintiff/respondents that petitioner while putting his signatures as one of the marginal witnesses over a subsequent sale-deed (Exh.P7) whereby plaintiff transferred some part of the disputed property to his son, in fact acknowledged that he had no nexus with the subject matter in hand was not persuasive. The execution of this document or affixing signature over there was specifically denied by the petitioner in his statement. The plaintiff while examining the second attesting witness or the Petition Writer of Exh.P7 could defuse the denial of the petitioner, but again the best evidence was withheld to attract adverse inference under Article 129 illustration (g) of the Qanune-e-Shahadat Order, 1984 that had they been produced, might have supported the stance of the petitioner. Moreover, the plaintiff could tender request for referring the Exh.P7 to the Handwriting Expert/Finger Print Bureau, so that genuineness of the alleged signatures of petitioner over there could be ascertained, but no such attempt initiated. Although the report of the Finger Print Bureau is not conclusive evidence, yet as held by the Supreme Court in Hamid Qayyum and two others vs. Muhammad Azeem through legal heirs and another (PLD 1995 SC 381), the opinion of an Expert is one of the modes of producing evidence, which after being properly proved, can be used as corroborative piece of evidence. By not resorting to this exercise at any stage so far, the petitioner himself incurred a hostile presumption that if any such effort was made, the report would have been given against him.

2. It is again admitted position that suit was instituted after more than forty years of the attestation of sale-deed, whereas per Article 120 of the Limitation Act, 1908 maximum six years are provided to seek a right. Since inception of the litigation, it was the stance of the petitioner that he engineered the subject sale-deed (Exh.P3), therefore, when it was known to him since its birth, why he took forty three years to file the suit. No plausible ground either introduced in the plaint or explored through available evidence. As such, suit on the face of it was badly barred by time. It is well settled by now that law helps the vigilant and not the indolent, whereas after expiry of the prescribed limitation, a vested right is always accrued in favour of the rivalry. See Muhammad Nawaz and 3 others vs. Mst. Saina Bibi and 3 others (1974 SCMR 223), Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial District Sialkot and others vs. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others (1998 SCMR 307) and Atta Muhammad vs. Maula Bakhsh and others (2007 SCMR 1446). It cannot be denied that compliance of statutory period within which a right has to be exercised or enforced is mandatory and Courts cannot ignore any lapse in this behalf, even if no such objection is raised by the adversary. The decisions of the Courts below on Issue No. 3 are erroneous and against the norms of justice as well as law, therefore the same are reversed as well.

12. The emphasis of learned counsel for the respondents that the concurrent findings of the Courts below cannot be disturbed by this Court while exercising revisional jurisdiction provided under Section 115 of Code, 1908 is not tenable. The impugned judgments and decrees having been found to be result of misreading/non-reading of evidence as well as non-adherence to the law laid down in this behalf by the superior Courts are not sustainable. It is correct that normally this Court does not interfere in the concurrent findings of fact

recorded by the Courts below, but here the impugned decrees being classic example of wrong exercise of jurisdiction and clearly suffering from material irregularity/patent illegality besides gross violation of the law floating on its surface cannot be sustained. On being faced with such situation, this Court cannot shut its eyes and is always under obligation to rectify the error by interference in such like illegal findings. Reliance can be placed upon the judgments reported as Ghulam Muhammad and 3 others vs. Ghulam Ali (2004 SCMR 1001) Mushtari Khan vs. Jehangir Khan (2006 SCMR 1238), Muhammad Nawaz@Nawaza vs. Member Judicial BoR & others (2014 SCMR 914) and Nazim-ud-Din and others vs. Sheikh Zia-ul-Qamar and others (2016 SCMR 24).

1. For the reasons recorded hereinabove, these Civil Revisions are allowed, impugned decrees passed by the learned lower fora are hereby reversed, resultantly the suit of the plaintiff/respondents is dismissed and the rival one instituted on behalf of petitioner is decreed as prayed for. No order as to costs.

(Y.A.) Petition allowed

PLJ 2022 Lahore 351 [Multan Bench, Multan]

Present: Ahmad Nadeem Arshad, J.

LIAQAT ALI--Petitioner

versus

MOHAMMAD ARSHAD and 2 others--Respondents

C.R. No. 1153 of 2012, heard on 23.9.2021.

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

----S. 9--Civil Procedure Code, (V of 1908), S. 12(2)--Suit for recovery of possession was dismissed--Ex-parte proceedings in revision petition--Dismissal of application for setting aside ex-parte decree--Non-receiving of any notice regarding pendency of revision petition--Miscarriage of justice--Revisional Court while passing impugned order completely overlooked second most important contention and objection of petitioner--Neither he received or served any notice nor it was in his knowledge about pendency of revision petition--Revisional Court failed to attend this objection while deciding application u/S. 12(2) C.P.C. which amounts to failure of complete adjudication and miscarriage of justice--Revisional Court should have given its findings with regard to this material proposition--Civil revision allowed. [P. 354] B, C & D

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

----S. 115--Revisional power--No doubt Section 115 of C.P.C. provided revisional power to High Court but same powers may be exercised by District Court whereby case decided by a Court subordinate to it.

[P. 353] A

Rao Jamshaid Ali Khan, Advocate for Petitioner.

Ch. Muhammad Jamal Nasir, Advocate for Respondent No. 1 and 2.

Ch. Muhammad Saeed Machra, Advocate along with Respondent No. 3.

Date of hearing: 23.9.2021.

Judgment

Through this civil revision, the petitioner has assailed the order dated 31.10.2012 passed by the learned Additional District Judge, Jahanian District Khanewal whereby an application filed by the petitioner under Section 12(2), CPC was dismissed.

1. The facts in brevity are that Respondents No. 1 and 2 instituted a suit for recovery of possession regarding Ahata No. 30/16 measuring 7-marlas situated in Chak No. 113/10-R Tehsil Jahanian District Khanewal against Respondent No. 3 and petitioner. The Respondent No. 3 contested the suit by filing written statement, whereas the petitioner was proceeded against ex-parte. Learned trial Court after framing of issues invited the parties to produce their respective evidence. Both the parties produced their evidence pros and cons. After completion of trial the suit was dismissed by the learned trial Court vide judgment and decree dated 08.05.2010. Feeling aggrieved, Respondents No. 1 and 2 filed a revision petition whereby ex-parte proceedings were initiated against the petitioner and vide judgment and decree dated 07.03.2011 revision petition was accepted and their suit was decreed. The petitioner filed an application under Section 12(2) of the CPC for setting aside of judgment and decree dated 07.03.2011 on 08.10.2011 by stating that neither he was served through notices nor pendency of revision petition was in his knowledge and the respondents with fraud and collusion obtained the said ex-parte judgment and decree against the petitioner by concealing the real facts. He also urged that no revision lies in the District Court against the judgment and decree passed under Section 9 of the Specific Relief Act, 1877. After hearing the parties learned revisional Court dismissed the application vide order dated 31.10.2012. Hence, this civil revision.

2. Learned counsel for the petitioner states that the impugned order dated 31.10.2012 is against the facts and law and result of mis-reading and non-reading of record. While relying upon “Late Mst. Majeedan through Legal Heirs and another versus Late Muhammad Naseem through Legal Heirs and another" (2001 SCMR 345) prayed for acceptance of the revision petition.

3. Conversely, learned counsel for the respondents hotly contested the revision petition while arguing that learned revisional Court has passed the impugned order strictly in accordance with law; that the learned revisional Court has the jurisdiction to entertain the revision against the judgment/order passed in a suit filed under Section 9 of the Specific Relief Act, 1877.

4. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

6. The Hon’ble Supreme Court of Pakistan in a case referred supra, while dealing with the proposition that whether appeal or revision is competent against an order/judgment passed in a suit for recovery of possession under Section 9 of the Specific Relief Act, 1877, observed that Section 9 of the Act (ibid) itself provides “That no appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such or decree be allowed” and further observed that “A revision lie to the High Court under Section 115 of the Civil Procedure Code in respect of an order or decree made in a suit under Section 9 of the Specific Relief Act." No doubt Section 115 of C.P.C. provided revisional power to High Court but the same powers may be exercised by the District Court whereby the case decided by a Court subordinate to it. The learned Revisional Court rightly observed in this regard as under:

“Admittedly originally and basically, revisional jurisdiction has been conferred upon the High Court (sic) pecuniary limits, District Court was also allowed to exercise the revisional power of the High Court. From the plain reading of Section 115(2), the following ingredients have been found necessary to invoke the revisional jurisdiction of District Court:-

(i) Case must have been decided by a Court sub-ordinate to District Court.

(ii) Against that decision, appeal is not competent, and

(iii) Amount or value of subject-matter of the case should not exceed the limits of appellate jurisdiction of District Court.

While the value of the suit for the purpose of jurisdiction was mentioned Rs. 24,000/- in Para No. 10 of the plaint and the

learnedRevisional Court had rightly decided the matter between the parties."

The learned counsel for the petitioner failed to understand the case law referred by him, rather he misinterpreted it.

7. I have observed that the learned revisional Court while passing the impugned order dated 31.10.2012 completely overlooked second most important contention and objection of the petitioner whereby he challenged the judgment and decree dated 07.03.2011 passed by learned trial Court on the ground that neither he received or served any notice nor it was in his knowledge about the pendency of revision petition. The petitioner by raising this objection in his application stated that the respondents collusively by concealing the facts procured the decree dated 07.03.2011 as infact the said Ahata was, transferred by Respondent No. 3 in favour of the petitioner after receiving consideration amount and due to that reason she lost her interest to peruse the case. The learned revisional Court failed to attend this objection while deciding application under Section 12(2) C.P.C. which amounts to failure of complete adjudication and miscarriage of justice. The learned revisional Court should have given its findings with regard to this material proposition. In this view of the matter, this civil revision is allowed and the impugned order dated 31.10.2012 is set aside. The case is remanded to the learned revisional Court to decide the application of petitioner under Section 12(2) of the CPC afresh after providing proper opportunity of hearing to the parties strictly in accordance with law within period of three months positively from the receipt of certified copy of order of this Court.

(Y.A.) Civil revision allowed

PLJ 2022 Lahore 354

Present:Ch. Muhammad Iqbal, J.

SHAMSHAD ALI--Petitioner

versus

MUHAMMAD SHARIF etc.--Respondents

C.R. No. 1411 of 2012, decided on 24.11.2021.

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

----Ss. 12 & 54--Suit for specific performance and permanent injunction--Concurrent findings--Non-mentioning of discription of property on sale agreement--First page of agreement to sell was not signed by either party--Sole discretionary power of Court--Principle of equity--In alleged agreement to sell (Exh.P-1) petitioner has not mentioned description of property and this flaw alone is considered fatal and plaint of suit is liable to be rejected--Courts below rightly rejected claim of petitioner--First page of agreement to sell was not signed by either party, as such, it cannot be considered as a valid document--Grant of decree for specific performance comes within sole discretionary power of Court which can refuse to grant relief on principle of equity even if suitor has proved case-- Courts below rightly dismissed suit as well as appeal of petitioner--Concurrent findings of fact are against petitioner which do 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--Civil revision dismissed. [Pp. 356, 357 & 358] A, B, C, D & E

2019 SCMR 524, 2017 CLC 70, 2019 SCMR 524, 2020 SCMR 406 & 2014 SCMR 1469 ref.

Mian Ghulam Rasool, Advocate for Petitioner.

M/s. Ch. Rizwan Mushtaq, Naila Mushtaq Dhoon & Mushtaq Ahmad Dhoon, Advocates for Respondents.

Date of hearing: 24.11.2021.

Judgment

Through this civil revision, the petitioner has challenged the legality of judgment and decree dated 08.06.2011 passed by the learned Civil Judge, Bhalwal who dismissed the suit for specific performance along with permanent injunction filed by the petitioner and judgment and decree dated 09.02.2012 passed by the learned Addl. District Judge, Bhalwal who dismissed the appeal of the petitioner.

1. Brief facts of the case are that the petitioner/plaintiff filed suit for specific performance of agreement along with permanent injunction against the respondents /defendants contending therein that he purchased land measuring 13-Kanals 16-Marlas fully described in the headnote of the plaint on the basis of agreement to sell dated 09.01.2003 against consideration of Rs. 1,09,713/- out of which Rs. 65,000/- was paid as earnest money and it was settled that remaining consideration amount of Rs. 44,713/- was to be paid till 15.02.2003 whereafter the respondents received Rs. 27,000/-. The petitioner asked the respondents to attest the registered sale-deed in his favour but they postponed the matter on one pretext or the other. Now Rs. 17,713/- is outstanding and the petitioner is ready to pay the same. Defendants No. 1 to 3 filed contesting written statement and denied the execution of agreement to sell as well as receiving of payment of consideration. The learned trial Court framed issues, recorded pro and contra evidence of the parties and dismissed the suit of the petitioner vide judgment and decree dated 08.06.2011. The appeal whereof of the petitioner was also dismissed by the learned appellate Court vide judgment and decree dated 09.02.2012. Hence, this civil revision.

2. I have heard the learned counsels for the parties at full length and gone through the record with their assistance.

4. Admittedly, in the headnote of the plaint the petitioner has mentioned that he purchased land measuring 13-Kanals 16-Marlas through agreement to sell dated 09.01.2003 against consideration of Rs. 1,09,713/- but in the alleged agreement to sell (Exh.P-1) he has not mentioned the description of the property and this flaw alone is considered fatal and the plaint of the suit is liable to be rejected. As such, the learned Courts below rightly rejected the claim of the petitioner/plaintiff. Reliance is placed in a judgment cited as Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524), the Hon’ble Supreme Court of Pakistan has held as under:

“13. Perusal of the receipt (Ex.P1) does not indicate any consensus between the owners and the buyers and we are in no manner of doubt that there was no meeting of minds. The receipt is just a receipt showing that an amount of Rs. 50,000/- had been paid subject to further steps, the most material of which was execution of a formal agreement containing all essential terms of sale. For a receipt to be termed and treated as a contract, if on going through the receipt four basic components can be spelt out without ambiguity namely:

i. Identity of seller and purchaser

iiThe amount of sale consideration.

iii. Identity and accurate description of the property agreed to be sold.

iv. Parties to the agreement to sell an immovable property are at consensus ad idem.

It is clear and obvious to us that the first, third and fourth ingredients were missing from the receipt. As such it was correctly not treated as an agreement. Further, the receipt envisages execution of a property agreement to sell. Such agreement was never executed, there was never an agreement in existence whose specific performance could be sought. In order to succeed in a suit for specific performance of a contract, the plaintiff has to assert that a valid and enforceable contract existed between him and the other side besides specifically and clearly pleading the terms and conditions on the basis of which the contract was executed which he desired to be specifically performed. 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."

(emphasis supplied)

5. Furthermore, first page of the agreement to sell dated 09.01.2003 was not signed by either party, as such, it cannot be considered as a valid document. A such like controversy has been resolved by this Court in a judgment cited as Manzoor Hussain vs. Haji Khushi Muhammad (2017 CLC 70), relevant portion whereof is reproduced as under:

1. Notwithstanding above, it is settled principle of law that where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. by signing or affixing their thumb-impression. So that it should reflect and establish their “consensus ad idem”, which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of assent, and reflects and proves the intention of the parties thereto [See Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187)]. In the present case, the first page of the document (Ex.P-1) is signed by the deed-writer only whereas its second page which bears the signatures of the vendor, vendee and deed writer does not contain the terms and conditions of sale. Although the parties and the witnesses should execute the document at the end, but parties must also sign each page if the document is written out on more than one page. [See N.S. Bindras’ Conveyancing Draftsman and Interpretation of Deeds, 7th Edition, Delhi Law House, Delhi, 2008 at page 322]. This was not done and, therefore, appellant was required to bring on record the evidence to connect the two pages of the document (Ex.P-1) with each other. The appellant had not produced any evidence to connect the two pages of the document (Ex.P-1) with each other and this deficiency does not establish “consensus ad idem”. Thus, on the basis of such type of document, which is non-compliant to the said principle of law, a decree for specific-performance could not be issued. This view finds support from the case of Zafar Iqbal and others vs. Mst. Nasim Akhtar and others (PLD 2012 Lah. 386) which has been approved by the Hon’ble Supreme Court of Pakistan in Civil Petition No. 391-L of 2012 vide order dated 22.3.2013.

(emphasis supplied)

6. Even otherwise, the grant of decree for specific performance comes within the sole discretionary power of the Court which can refuse to grant the relief on the principle of equity even if 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 and others (2019 SCMR 524) wherein it is 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.”

And similar principle has been reiterated in the case titled as Muhammad Miskeen vs District Judge Attock and others (2020 SCMR 406).

Keeping in view the aforesaid facts and circumstances of the case, the learned Courts below rightly dismissed the suit as well as appeal of the petitioner/plaintiff.

7. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in the impugned judgments and 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 v. Nazar Hussain and 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.) Civil revision dismissed

PLJ 2022 Lahore 359

Present:Abid Aziz Sheikh, J.

Mst. RUKHSANA KAUSAR--Petitioner

versus

MUHAMMAD NADEEM and 2 others--Respondents

W.P. No. 10342 of 2021, decided on 18.3.2021.

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----Ss. 9 & 10--Constitution of Pakistan, 1973, Art. 199--Suits for recovery of maintenance allowance and recovery of dowry articles--Consolidated judgment--Appeal for enhancement of maintenance allowance was dismissed--Barred by time--Challenge to--Consolidated judgment and decree one appeal of petitioner to extent of increase of alternative price of dowry articles was within time and same has been duly entertained by appellate Court, whereas other appeal against same consolidated judgment has been dismissed being barred by time--It is settled law that if against same consolidated judgment one appeal is within time then delay in filing of other appeal against same judgment is condonable--Appellate Court has erred in law and fact while dismissing appeal of petitioner being barred by time--Petition allowed. [P. 360] A & B

2019 SCMR 524 and PLD 2008 SC 591 ref.

Mr. Shafique Ahmad Bhutta, Advocate for Petitioner.

Mr. Azam Jan Muhammad, Advocate for Respondent Nos. 1 and 2.

Date of hearing: 18.3.2021.

Order

Through this writ petition the petitioner has challenged the order dated 30.1.2021 whereby petitioner’s appeal was dismissed being barred by time.

1. The relevant facts are that the petitioner filed two separate family suits i.e. one for recovery of maintenance allowance and the other for recovery of dowry articles. Both these suits were decided by learned family Court through consolidated judgment dated 21.12.2020. The petitioner being aggrieved filed two separate appeals, however, one appeal (for enhancement of the maintenance allowance) was dismissed being barred by time through impugned order dated 30.1.2021, hence this Constitutional petition.

2. The learned counsel for the petitioner submits that after consolidated judgment dated 21.12.2020, the petitioner applied for the certified copy of the judgment and decree on 26.12.2020 which was received on 15.1.2021 and a single appeal was filed against the consolidated judgment. However, the concerned office did not entertain the appeal and directed the petitioner to file two separate appeals as two separate suits were filed by the petitioner. Submits that petitioner again applied for another certified copy on 15.1.2021; which was received on the same day. However, as father of the counsel for the petitioner was hospitalized, therefore, the appeal was filed on 28.1.2021. Submits that appeal to the extent of maintenance allowance was dismissed being barred by time though the delay was duly explained in the application for condonation of delay.

3. Learned counsel for the respondents, on the other hand, submits that each and every day of delay was not explained hence appeal was lawfully dismissed.

5. Arguments heard. It is admitted position on record that against the consolidated judgment and decree dated 21.12.2020 one appeal of the petitioner to the extent of increase of alternative price of dowry articles was within time and same has been duly entertained by the learned appellate Court, whereas the other appeal against the same consolidated judgment has been dismissed being barred by time. It is settled law that if against the same consolidated judgment one appeal is within time then the delay in filing of the other appeal against the same judgment is condonable. In this regard reliance is placed on “Sheikh Akhtar Aziz vs. Mst. Shabnam Begum and others (2019 SCMR 524), “Subedar Sardar Khan through Legal Heirs and others vs. Muhammad Idrees through General Attorney and another (PLD 2008 S.C. 591). Further in the application of condonation of delay the petitioner has explained that delay was caused as father of the learned counsel for the petitioner was hospitalized. In the circumstances the learned appellate Court has erred in law and fact while dismissing the appeal of the petitioner being barred by time.

1. In view of above discussion, the petition is allowed and the impugned order dated 30.1.2021 is set aside. Consequently the delay in filing of the appeal is condoned and matter is remitted back to the learned appellate Court to decide the appeal on merits.

(Y.A.) Petition allowed

PLJ 2022 Lahore 361 [Multan Bench, Multan]

Present: Muhammad Shan Gul, J.

MUHAMMAD SALMAN CHISHTI--Petitioner

versus

GOVERNMENT OF PUNJAB through Chief Secretary Punjab Lahore and 4 others--Respondents

W.P. No. 13973 of 2021, decided on 16.9.2021.

Punjab Civil Servants Rules, 1974--

----R. 17-A--Death during service--Son of deceased was gained majority--Filing of application after death of father--Non-considering of application--Direction to--Self executory rule--Rule 17-A is a self-executory rule and is triggered minute contingency on which it is, predicated occurs i.e. death or invalidation--Send a copy of this petition to Respondent No. 4 who is directed to ensure that the application filed by the petitioner and pending before him is decided strictly in accordance with law in a fair and reasonable manner within a period of 20-days from today--Petition allowed.

[P. 362] A & B

Punjab Civil Servants Rules, 1974--

----R. 17-A--Beneficial legislation--It is a Rule which purports to confer a benefit on a class of persons--Beneficial legislation should be interpreted in a purposive or teleological manner as opposed to the strict literal approach because such a purposive approach would advance the objects of such welfare legislation-- Respondent No. 4 is directed to decide application of petitioner while keeping in view rationale behind insertion of Rule 17-A.--AAG shall convey order passed by this Court to Respondent No. 4. [Pp. 362 & 363] C, D & F

Constitution of Pakistan, 1973--

----Arts. 9 & 14—Right to life—Citizen dignity-- right to life not only denotes right to a vegetative life but to a vibrant life in which basic facilities and amenities required for human and civil existence are accessible and available to a citizen. Likewise, a citizens’ dignity which is secured by Article 14 of the Constitution will be compromised if administrative instructions are allowed to make inroads on his dignity. [P. 363] E

Malik Zaffar Mahboob Langrial, Advocate for Petitioner.

Mr. Azhar Saleem Kamlana, AAG on Court Call.

Date of hearing: 16.9.2021.

Order

The counsel for the petitioner submits that his father died during service and that he, as soon as he gained majority of age, approached the respondents with an application rooted in Rule 17-A of the Punjab Civil Servants Act, 1974 but that his request, ever since, has neither been acceded to nor considered and, therefore, seeks a Mandamus to the respondents.

2. It may be noted that Rule 17-A is a self-executory rule and is triggered the minute the contingency on which it is, predicated occurs i.e. death or invalidation.

3. Send a copy of this petition to Respondent No. 4/Chief Executive Officer District Health Authority, Health Department, Muzaffargarh, who is directed to ensure that the application filed by the petitioner and pending before him is decided strictly in accordance with law in a fair and reasonable manner within a period of 20-days from today. The petitioner reserves his right to come back to this Court if his grievance persists.

4. What is, however, absolutely unarguable, is the fact that Rule 17-A is a piece of beneficial legislation. It is a Rule which purports to confer a benefit on a class of persons. Examples of such laws are public assistance laws, laws on unemployment relief, etc. It is trite that beneficial legislation should be interpreted in a purposive or teleological manner as opposed to the strict literal approach because such a purposive approach would advance the objects of such welfare legislation. This purpose oriented approach encourages a liberal construction to promote its objects. Words occurring in Rules of liberal import such as social welfare and unemployment relief Rules are not to be shrunk to Lilliputian dimensions. In constructing such Rules, the imposture of literal construction must be avoided. What is relevant is the color, the content and the context of such enactments. In the words of the Indian Supreme Court (1980 (4) SCC 443 Surendra Kumar), “Semantic luxuries are misplaced in the interpretation of bread and butter enactments.” Welfare enactments must, of necessity, receive a broad interpretation. Where an enactment is designed to give relief to a particular group or class of persons, the Court is not to make inroads by making etymological excursions.

1. The raision d’etre behind insertion of Rule 17-A is not hard to discern. It was specifically added in an already existing catalogue of Rules only to compensate and provide a bond of fate to one immediate family member of a government servant who either died or was rendered incapacitated or invalidated while in service. There is no other possible reason for the insertion of Rule 17-A. One question that

arises in the present context is as to how administrative instructions or notifications that do not have the force of law be allowed to whittle down the effect and impact of the Rule. In fact, any notification or instruction that seeks to take away the benefit conferred by Rule 17-A borders on being exploitative within the meaning of Article 3 of the Constitution. It may also be viewed as an unnecessary incursion into the protection afforded by Articles 9 and 14 of the Constitution. It is trite that right to life not only denotes the right to a vegetative life but to a vibrant life in which basic facilities and amenities required for human and civil existence are accessible and available to a citizen. Likewise, a citizens’ dignity which is secured by Article 14 of the Constitution will be compromised if administrative instructions are allowed to make inroads on his dignity.

6. Respondent No. 4 is directed to decide the application of the petitioner while keeping in view the rationale behind insertion of Rule 17-A. The learned AAG shall convey the order passed by this Court to the Respondent No. 4.

1. With the above direction, this writ petition is disposed of.

(Y.A.) Petition allowed

PLJ 2022 Lahore 363

Present:Shahid Karim, J.

MUHAMMAD BILAL SHAHID--Petitioner

versus

USMAN HAIDER GUJJAR and others--Respondents

W.P. No. 70836 of 2021, decided on 1.12.2021.

Constitution of Pakistan, 1973--

----Art. 199--Conducting of raid on secret information--Filing of report by DIG--Statement made by A.A.G, act of; raiding premises of petitioner on ground that petitioner was involved in selling of adulterated oil etc. will not be repeated--This order will not impact any criminal cases registered on private complaints and in which cognizable offences are made out--Petition disposed of.

[P. 364] A & B

Mr. Sheraz Zaka, Advocate for Petitioner.

Mr. Muhammad Osman Khan, A.A.G.

Date of hearing: 1.12.2021.

Order

The learned A.A.G, on instructions, states that the petitioner shall not be harassed and his business premises shall not be raided by the police as this remains within the domain of authorities set up under the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971. It is also apparent from the report submitted on behalf of SHO P.S Lorry Adda Lahore that previous raid was conducted on secret information. Be that as it may, in view of the statement made by the learned A.A.G, the act of raiding premises of the petitioner on the ground that the petitioner was involved in selling of adulterated oil etc. will not be repeated. However, in the report filed on behalf of DIG (Investigation) Police, Lahore, it has been brought forth that there are a number of cases registered against the petitioner (list attached with this petition) which were registered on the applications of private individuals alleging various offences. It is made clear that this order will not impact any criminal cases registered on private complaints and in which cognizable offences are made out. With these observations this constitutional petition as well as connected applications Crl. Org. No. 22033 of 2021 and Crl. Org. No. 72694 of 2021 are disposed of.

(Y.A.) Petition disposed of

PLJ 2022 Lahore 364 [Multan Bench, Multan]

Present:Ch. Muhammad Masood Jahangir, J.

TARIQ MASOOD KHAN--Petitioner

versus

DISTRICT JUDGE, KHANEWAL and 4 others--Respondents

W.P. No. 3378 of 2013, heard on 26.10.2021.

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

----O.XVII R. 3--Constitution of Pakistan, 1973, Art. 199--Right of producing of remaining evidence of petitioner was struck off--Non-submission of list of witnesses--Lethargic attitude--Interlocutory order--Challenge to--When admittedly till this time list of witnesses was never submitted, how petitioner could be allowed to summon him--The better course for petitioner was to make application for submission of list of witnesses but he never opted for same, for his indolent/lethargic attitude right of remaining evidence was rightly closed about nine years ago--Petition dismissed. [P. 365] A

Mr. Muhammad Afzal Chandio, Advocate for Petitioner.

Mr. Iqbal Hussain Jafri, Advocate for Respondent No. 3.

Date of hearing: 26.10.2021.

Judgment

The sale settled in favour of respondents was pirated by petitioner through filing of suit for possession via pre-emption before the learned Civil Court on 01.03.2005, which having been contested, issues were on 14.11.2005, but admittedly so far list of witnesses was never submitted. No doubt, partial evidence was recorded, but despite seeking several adjournments, the petitioner could not lead the remaining evidence compelling learned Trail Court to struck off his such right on 28.09.20212 and further approved by the learned Revisional Court below vide order dated 27.02.2013, thus this petition was here.

2. Arguments heard, record perused.

3. The case diary maintained by the learned Civil Court confirmed that after the settlement of issues almost seven years were consumed by the petitioner to record his evidence. No doubt, on 04.10.2010, the petitioner examined three witnesses, but thereafter the remaining evidence was never brought before the Court despite issuance of warning and even imposition of cost. So far as the emphasis of learned counsel for petitioner that one more chance may be provided to his client is concerned, suffice it to say that per his statement dated 04.05.2010 he only reserved his right to produce postman in affirmative evidence, whereas rest of the oral evidence was closed. In such situation when admittedly till this time the list of witnesses was never submitted, how the petitioner could be allowed to summon him. The better course for the petitioner was to make application for submission of list of witnesses but he never opted for the same, therefore for his indolent/lethargic attitude the right of remaining evidence was rightly closed about nine years ago. The said interlocutor order duly congealed by Revisional Court below cannot be interfered with while invoking jurisdiction under Article 199 of the Constitution, 1973. Thus this petition is dismissed.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 366

Present: Shahid Karim, J.

Sahibzada FAISAL ALI KHAN--Petitioner

versus

CHAIRMAN LDA and another--Respondents

W.P. No. 104206 of 2017, decided on 20.10.2021.

Constitution of Pakistan, 1973--

----Art. 199--Lahore Development Authority Act, (XXX of 1975), S. 32--Pendency of civil suit--Issuance of order by D.G. LDA--Fabricated ownership document--Petitioner has already availed remedy under law--A civil suit was filed pursuant to directions by High Court and which is still pending--The petitioner has once again filed proceedings before this Court invoking constitutional jurisdiction to seek direction for referral of matter to bona fide commission--Claim of petitioner is based on fabricated ownership documents and plot in question was never allotted to any one by H&PP Department--It is clear that case of petitioner does not fall within ambit of cases which may be referred to bona fide commission--Petition dismissed.

[Pp. 366 & 367] A & B

Mr. Tallat Farooq Sheikh and Mr. Asim Sarfraz Uppal, Advocates for Petitioner.

Sahibzada Muzaffar Ali, Advocate for LDA.

Date of hearing: 20.10.2021.

Order

This constitutional petition seeks the setting aside of the order dated 4.11.2017 passed on the directions issued by the Director General, LDA. In that petition, the petitioner had made the same prayer, that is, the petitioner’s case be sent to the bona fide commission set up under Section 32 of the LDA Act, 1975.

2. Suffice to say that the petitioner has been agitating this matter for a long time and each time this petition has met with failure. Lastly this Court while deciding W.P No. 66314 of 2017 in its order dated 07.09.2017 had dismissed the petition seeking substantially the same relief and had directed the petitioner to file proceedings before the civil Court as the question involved required determination by taking down evidence. It is admitted by the counsel for the petitioner that indeed a civil suit was filed pursuant to the directions by this Court and which is still pending. The petitioner has once again filed

proceedings before this Court invoking the constitutional jurisdiction to seek direction for referral of the matter to the bona fide commission. The D.G LDA in the impugned order has reiterated the earlier stance which in a nutshell is that the claim of the petitioner is based on fabricated ownership documents and that the plot in question was never allotted to any one by the H&PP Department. It is clear therefore that case of the petitioner does not fall within the ambit of the cases which may be referred to the bona fide commission. Moreover, the petitioner has already availed the remedy under the law which may be pursued and this petition is frivolous and is dismissed.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 367

Present:Ahmad Nadeem Arshad, J.

ASHIQ MUHAMMAD (deceased) through L.Rs.--Appellants

versus

ABDUL MAJEED and others--Respondents

R.S.A. No. 35 of 2009, heard on 13.10.2021.

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

----S. 9--Punjab Pre-emption Act, (IX of 1991), S. 13--Alienation of suit land--Suit for possession through pre-emption--Presence of appellant at time of bargain and execution of sale-deed--Partial pre-emption--Plaintiff failed to rebut stance of vendees--Mala fide on part of pre-emptor--Plaintiff did not utter a single word with regard to stance of defendants while recording his affirmative evidence that he was not present there; that he did not get bargain suit property and had not made any promise that he will not pre-empt suit property--plaintiff did not opt to rebut it by recording any rebuttal evidence--After remand, plaintiff again recorded his statement and did not utter a single word to negate version of defendants--It is a settled principle of law that a portion of statement of witness which remained uncrossed, unchallenged and was not impeached by questioning in cross-examination, then same would be deemed to have been admitted--Plaintiff who was real son of vendor and resided in same house instituted suit for pre-emption after almost one year of registered sale deed--He failed to rebut stance of vendees that he himself got bargained suit property and remained present during execution of sale deed--Collusion between father and son could not be ruled out--Mala-fide on part of pre-emptor is also apparent, because if he genuinely so keen to purchase suit property, he would gladly pay price which is being offered to vendor by another person--Findings of appellate Court are not open to exception and are liable to be sustained--Appellate Court has rightly accepted appeal of respondents and dismissed suit of appellants while appreciating evidence available on file in its true perspective--Appeal dismissed.

[Pp. 372, 373, 374, 381 & 382] A, B, C, D, E & I

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

----O.XLI, R. 33--Power of Court--Court has manifest power to set right any illegality committed in law by Courts below while deciding specific issue in such context by exercising corrective powers.

[P. 378] G

PLD 2009 Lah. 407 and PLD 1991 SC 218 ref. PLD 1992 SC 590; PLD 1993 SC 418; 1998 SCMR 2306.

Limitation Act, 1908 (IX of 1908)--

----S. 22--Substitution of a new plaintiff or defendant--Where after institution of suit a new plaintiff or defendant is substituted or added, suit shall as regards to him be deemed to have been instituted when he was made a party. [P. 379] H

Ref. PLD 1982 SC 167.

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

----O.XLI, R. 33--Power of Court--This Court under Order XLI Rule 33 of C.P.C. has empowered to invoke provisions of law to do complete justice between parties or prevent ends of justice from being defeated and adjust right of parties in accordance with natural justice, equity, and good conscious. [P. 378] F

Mr. Anwar Mubeen Ansari, Advocate for Appellants.

Malik Javed Akhtar Wains, Advocate for Respondents.

Date of hearing: 13.10.2021.

Judgment

The appellants/legal heirs of the plaintiff filed the instant Regular Second Appeal against the judgment and decree dated 28.05.2009 passed by the learned appellate Court whereby while allowing the appeal of the respondents/defendants, set-aside the judgment and decree dated 22.05.2004 of learned trial Court and resultantly dismissed the suit for possession through pre-emption.

1. Precise facts of the case are that the predecessor of appellants/plaintiff instituted a suit for possession through pre-emption under the Punjab Pre-emption Act, 1913 on 01.10.1979 initially against Respondents No. 1 to 6/Defendants No. 1 to 6, subsequently added Respondent No. 7/Defendant No. 7 with regard to the land measuring 28-kanals (hereinafter called as suit property) by contending that his father namely Ghazi Muhammad son of Allah Bukhsh happened to alienate his landed property by way of sale for a consideration of Rs. 28,000/-vide registered sale deed No. 2644 dated 03.10.1978 but actually its price was settled and paid as Rs. 14000/-. The plaintiff/predecessor of appellants pre-empted the aforementioned sale by using his right of pre-emption on the ground of having the preferential right of pre-emption qua the defendants/ vendees being the son of Vendor, as his heir (Yak Jaddi of the vendor), co-sharer in the joint khata and khewat holder in the Mauza. The respondents/ defendants contested the suit by controverting the contentions of the plaint and raised many legal as well as factual objections in their written statement qua the valuation of the suit for the purpose of Court fee and jurisdiction; misdescription of the suit property; partial pre-emption; limitation, estoppal/waiver; depositing of zar-e-punjum beyond the prescribed time limit. The respondents/defendants specifically pleaded in their written statement that the suit is Benami and collusive; that the plaintiff was present at the time of bargain and he himself bargained and got completed the sale; that the plaintiff was present at the time of execution of sale deed and in this way he waived his right of pre-emption.

The learned trial Court framed necessary issues with regard to controversies as evinced from the pleadings of the parties and invited the parties to produce their respective evidence in support of their contentions and after recording evidence pro and contra and providing them proper opportunity of hearing dismissed the suit vide judgment and decree dated 27.07.1985. Feeling aggrieved, the predecessor of appellants preferred an appeal which was allowed by the learned appellate Court and decreed his suit vide judgment and decree dated 29.07.1986. The respondents/defendants filed a regular second appeal against that judgment and decree (R.S.A.No. 95 of 1986) before this Court which was allowed vide judgment/order dated 12.06.2000 and the case was remanded to the learned trial Court for impleading Respondent No. 7/Defendant No. 7 as a party and then to decide the suit afresh in accordance with the law. Issue No. 11-A was framed in this regard and evidence of the parties was recorded on this issue, the learned trial Court decreed the suit vide judgment and decree dated 22.05.2004. The respondents/defendants preferred an appeal which was allowed by the learned appellate Court vide judgment and decree dated 28.05.2009. Having dissatisfied, the appellants/legal heirs of the plaintiff filed instant regular second appeal before this Court.

1. Learned counsel appearing on behalf of the appellants contends that the impugned judgment and decree is against law and facts and result of mis-reading and non-reading of evidence on the record; that the impugned judgment and decree suffers from illegality and irregularity; that the appellant proved his right of pre-emption which was not specifically denied by the respondents; that the appellant is real son of vendor, so he has got superior right of pre-emption to file the suit; that respondents failed to establish that the appellant has waived his right of pre-emption as there is no written undertaking given by the plaintiff with regard to waiver of his right of pre-emption; that the respondents concocted a false story that the plaintiff was present at the time of sanctioning of impugned transaction and he was asked to purchase the suit property but he refused to do so; that the so-called stance pleaded by the respondents did not amount to estoppal; that the learned appellate Court wrongly concluded that the plaintiff has waived his right of pre-emption; that the plaintiff impleaded all the vendees in the light of copy of sale deed which was provided to him by the Copying Agency, therefore, it is not his fault regarding non-impleading of Defendant No. 7; that the plaintiff has pre-empted the whole property and his suit was not in any manner falls within the ambit of partial pre-emption; that the plaintiff has not intentionally omitted the name of Defendant No. 7, therefore, his suit is not defective on the point of principal of non-joinder of necessary party; that the suit was validly instituted and proceedable under the law; that the suit of the plaintiff was decreed in his favour before the target date of 31.07.1986, therefore, the plaintiff cannot be defeated on this ground and while relying upon case laws titled “Abdul Rashid versus Bashiran and another” (1996 SCMR 808), “Jam Pari versus Muhammad Abdullah” (1992 SCMR 786), “Abaid-ur-Rehman and others versus Muhammad and others” (1999 SCMR 201), “Baqri and 4 others versus Salehon and 3 others” (PLD 1972 Supreme Court 133), “Kidar Nath and others v. Bagh Singh and others” (A.I.R. 1937 Lahore 504), “Muhammad Ajaib versus Farrukh Imtiaz and 3 others” (PLJ 2004 Lahore 491), “Abdul Majid Ahmed Bawany and 7 others versus III Sindh Labour Court, Karachi and 3 others” (PLD 1961 SC 375),“Pakistan International Airlines Corporation versus Messrs Pak Saaf Dry Cleaners” (PLD 1981 Supreme Court 553) prayed for acceptance of the appeal and decree of the suit.

2. Conversely, learned counsel appearing on behalf of the respondents while defending the impugned judgment and decree of the learned appellate Court argued that the learned appellate Court has rightly dismissed the suit of the appellants on the ground of estoppal; that the respondents fully proved their version through cogent and concrete evidence; that the plaintiff waived his right of pre-emption; that the plaintiff failed to cross-examine the witnesses of respondents on the point of estoppal, therefore, it is a settled principle of law that the portion of evidence which was not questioned in the cross-examination deemed to be admitted; that the respondents purchased the suit property jointly by paying consideration amount jointly and they did not purchase separate khasra number, therefore, the share of Defendant No. 7 was not separated and distinguished from the share of the remaining defendants; that the plaintiff failed to implead Defendant No. 7 within prescribed period of limitation as provided for pre-emption’s suit, therefore, suit against Defendant No. 7 was not proceedable and liable to be dismissed; that the suit of predecessor of appellants falls within the ambit of partial pre-emption which is not proceedable; that the findings of the learned trial Court and learned appellate Court with regard to maintainability of the suit is against facts and law and liable to be set-aside; that no decree of pre-emption was passed in favour of the plaintiff and against Respondent No. 7/Defendant No. 7 before the target date of 31.07.1986, therefore, the suit of the predecessor of appellants was not maintainable against Respondent No. 7 and is liable to be dismissed. While relying upon case laws “Muhammad Khan versus Muhammad Khaliq Khan” (PLD 1981 Supreme Court 155), “Abdul Haque and others versus Shaukat Ali and 2 others” (2003 SCMR 74), “Suba and others versus Abdul Aziz and others” (2008 SCMR 332), “Ahmad Khan versus Muhammad Afzal etc.” (PLD 1979 Lahore 647), “Khalil Ahmad and others versus Kamal Din and others” (1982 CLC 1614), “Muhammad Hanif and another versus Abdul Aziz and 6 others” (1991 MLD 216), “Abdul Mannan and others versus Sikandar Khan” (1992 CLC 505), “Sedco Forex International versus Muhammad Nawaz and others” (2000 MLD 914), “Muhammad Aslam (deceased) through his Legal Heirs and another versus Abdul Haq and 3 others” (PLJ 2002 Lahore 944), “Ali Bahadur and others versus Nazir Begum and others” (PLD 2005 Lahore 218), “Agra Cooperative Housing Society Limited versus Syed Akhtar Ali and others” (1994 MLD 1747), “Arshad Mehmood Siddiqui versus Muhammad Haroon” (1992 MLD 810), “Raja Muhammad Ashraf Khan Kayani versus Azad Government of The State of Jammu And Kashmir through Chief Secretary, Muzaffarabad and 4 others” (1997 PLC (C.S) 376) “Muhammad Ashraf and 8 others versus Azad Government of the State of Jammu and Kashmir and 13 others” (PLD 1985 SC(A&JK) 102 prayed for dismissal of the appeal.

3. I have heard the arguments of learned counsel for the parties at full length and perused the record with their able assistance.

4. The learned appellate Court dismissed the suit of the appellant/plaintiff while rendering its finding upon Issue No. 7. The learned trial Court framed Issue No. 7 in the following manner:

5. Whether the plaintiff is estopped to file the suit? O.P.D.

That issue was framed in the light of preliminary Objection No. 7 of the written statement whereby the defendants took a specific plea that the plaintiff was present at the time of bargain of the suit property and he himself settled and completed the bargain and remained present at the time of execution and attestation of sale deed with regard to the suit property, therefore, waived of his right of pre-emption by his words and conduct. The plaintiff did not file any replication to controvert this assertion of defendants. Admittedly the vendor, who is the father of the appellant with an advanced age of 75/80 years, resided in the same house as admitted by the plaintiff during cross-examination. The vendor Ghazi Muhammad gave him land measuring 80/85 Bighas, meaning thereby relationship between them was also cordial. He also admitted that his father does not do any work, meaning thereby he was dependent on him. The onus of proof with regard to this issue was placed upon the defendants. To prove and discharge the onus the defendants produced DW-1 Hayat Muhammad who deposed that at the time of bargain plaintiff was present there and was asked to purchase the land but he refused to buy and promised that he would not be pre-empted the land. The plaintiff failed to cross-examine the DW-1 on this portion of his statement. DW-2 Faiz Bukhsh deposed that at the time of bargain plaintiff was present there and he was asked if he wants to pre-empt the land, then they will not purchase it but he replied that he would not pre-empt the land. The said witness further deposed, the plaintiff was asked to purchase the land but he refused to buy it. He was also not cross-examined on this portion of his testimony. Muhammad Ramzan guardian of the minor Defendants No. 1 and 2 while corroborating the version of DW-1 & DW-2 recorded his statement as DW-3 and deposed in the same line that at the time of bargain appellant/plaintiff was present there and asked if he wants to pre-empt the land, then they do not purchase it and he purchases it but he refused to buy the land and promised that he will not pre-empt the land. The plaintiff also failed to cross-examine the witness on this portion of his statement. The plaintiff did not utter a single word with regard to the stance of the defendants while recording his affirmative evidence that he was not present there; that he did not get bargain the suit property and had not made any promise that he will not pre-empt the suit property. The plaintiff did not opt to rebut it by recording any rebuttal evidence. Meaning thereby this evidence of defendants remained uncrossed, unchallenged and un-rebutted. In the first round of litigation the learned trial Court while relying upon that piece of evidence decided Issue No. 7 against the plaintiff and dismissed his suit. After remand, he again recorded his statement as PW-1 on 27.10.2001 and did not utter a single word to negate the version of the defendants.

It is a settled principle of law that a portion of the statement of witness which remained uncrossed, unchallenged and was not impeached by questioning in cross-examination, then same would be deemed to have been admitted. Reliance in this regard is placed upon “Mst. Nur Jehan Begum through Legal Representatives versus Syed Mujtaba Ali Naqvi” (1991 SCMR 2300) and “Farzand Ali and another versus Khuda Bakhsh and others” (PLD 2015 Supreme Court 187).

In the case “Mian Shah Nawaz Khan versus Allah Ditta, etc.” (1982 CLC 1348) this Court while taking notice of the pre-emptor’s presence with his father (vendor) at the time of attestation of sale observed that he waived his right of pre-emption. This Court held as under:

“I have checked up the evidence led by the parties under Issue No. 3 and find that the learned trial Court had rightly held the respondent having waived his right to pre-empt the sale in dispute by his conduct as he remained present at the time of transaction with his father, the vendor in this case. The respondent did not cross-examine, Muhammad Ramzan (D.W.4) and Hasham (D.W.5) who had stated that Allah Ditta respondent/plaintiff remained present at the time of transaction.”

The Hon’ble Supreme Court of Pakistan in a reported judgment as “Naseer Ahmad versus Arshad Ahmad” (PLJ 1984 Supreme Court 366) while highlighting the motive behind such type of suits for pre-emption whereby the pre-emptor being the son of vendor institute a suit for pre-emption finds mala fide and collusion between the two and observed as under:

“It is universally accepted that pre-emption is a piratory right, where a person plugs in his claim to purchase a certain piece of land or property after another person has purchased it. There is no dearth of cases, in actual practice, where the pre-emptors are close relatives of the vendors themselves and knew all about the transaction while it took place, but did not come forward to purchase it at that time. They allow another person to purchase it; wait for the whole year and then, on the last date of the period of limitation, they suddenly spring a surprise on him by filing a suit for pre-emption with the object (as appears to be the intention in the present case) to obtain the property in question at a nominal price, because it is expected that the case shall be decided after many years, by which time price of the land shall have been enhanced manifold and the price that he would be required to pay shall be the one prevailing at the time of the transaction. As a matter of fact, we have come across cases where the father sells land and his son files a suit for pre-emption, which cannot but lead one to assume that there was collusion between the two. We feel that such suits are very often mala fides because if the pre-emptor is genuinely so keen to purchase the land or property in question, he would gladly pay the price which is being offered to the vendor by another person or come forward and tender the highest bid at an auction rather than wait till the transaction is complete and thereafter spend 20 years of his life in litigation and incur huge expenditure which was in many cases be even more than the actual price of the land or the property at the time of the sale or auction. Apparently the motive behind it is to create a hurdle in the way of the vendee for his own benefit, because the vendee is compelled in many cases to dish out large sums of money as a price for the withdrawal of the suit by the plaintiff. The latter does not, therefore, deserve relief through Courts of law.”

In the present case the plaintiff who was real son of the vendor and resided in the same house instituted the suit for pre-emption after almost one year of the registered sale deed. He failed to rebut the stance of the vendees that he himself got bargained the suit property and remained present during execution of sale deed. The conduct of the pre-emptor clearly suggests the motive behind his suit for pre-emption, to deprive the vendees from their valuable rights for a price which they paid in the year 1978 and to create hurdles in their way which compel them to dish out a huge money as a price for the withdrawal of the suit by him. The collusion between father and son could not be ruled out. Mala-fide on the part of pre-emptor is also apparent, because if he genuinely so keen to purchase the suit property, he would gladly pay the price which is being offered to the vendor by another person. For the reasons discussed supra, the findings of learned appellate Court are not open to exception and are liable to be sustained.

1. Another aspect of the case is also very important. There are two sets of defendants, one who were impleaded at the time of institution of the suit which were six in number and called Defendants No. 1 to 6, second, Defendant No. 7 who was impleaded by moving an application before this Court in earlier round of litigation, during pendency of second appeal (R.S.A.No. 95/1986) and was made a party by impleading him as Defendant No. 7 in the amended plaint filed on 15.07.2000.

This Court while allowing the application of predecessor of appellants and accepting the R.S.A of respondents, remanded the matter to the learned trial Court while observing as under:

“After hearing both the learned counsel at length I find that one thing is certain that said Abdul Hameed was a necessary party to the suit and, as such, the application filed by the respondent is liable to be allowed on this short ground alone. So far as objections qua limitation etc. is concerned it will of course be open to said Abdul Hameed to take whatever objections are available to him when he puts in appearance in the learned trial Court. The appellants shall also be at liberty to raise whatever available objections there are to the amended suit and the respondent shall of course be at liberty to put in whatever defence is available to him to the said pleas. I, therefore, allow C.M No. 32/91 and order that Abdul Hameed be impleaded as a party to the suit as a defendant. As a result of the said circumstances this RSA is allowed. Both the judgments and decrees of the learned Courts below are set aside and the suit is remanded back to learned Senior Civil Judge, Multan, where the parties shall appear on 15.7.2000 and amended plaint shall be filed impleading the said Abdul Hameed as a defendant. The learned trial Court shall issue a notice to the said Abdul Hameed and thereafter proceeded to decide the suit in accordance with law.”

An additional Issue No. 11-A was framed on the application of the respondents/defendants in the following manner:

11-A Whether the suit is hit by order I Rule 10(5) of C.P.C. and 22 of Limitation Act on the ground that Defendant No. 7 was included in the suit at a belated stage? O.P.D.

The learned trial Court recorded evidence pro and contra after framing that issue and decided it in negative by observing that:

“It appears that the defendants/vendees throughout the first round of litigation intentionally concealed the factum of non-joinder of co-vendee with the obvious reason to frustrate/defeat the plaintiff’s right of pre-emption on the ground of partial pre-emption. Otherwise there is no apparent reason for non-joinder of the said co-vendee by the plaintiff in the inception. The defendants could not describe any mala fide on part of plaintiff for not impleading the 7th co-vendee while launching this litigation. The plaintiff had instituted this suit on the basis of sale deed Exh.P-1 issued by the Copying Agency containing names of only six vendees. The plaintiff acted bonafide and diligently, mistake of copying Branch not to be allowed to effect decision on merits. Impleading the aforesaid 7th co-vendee in array of defendants does not amount to bring a new party in the suit as he very much figured in the transaction in question, his non-impleadment was a mere bonafide omission. Therefore, provision of Order I Rule 10(5), CPC read with Section 22 of the Limitation Act are not applicable herein.”

The learned appellant Court did not differ with the findings of the learned trial Court while rendering its judgment.

The respondents/Defendants No. 1 to 6 took a specific stance in their written statement by raising preliminary objection No. 5 that suit is filed for partial land, therefore liable to be dismissed. From the perusal of Exh.P-1 (copy of sale deed produced by the plaintiff), it appears that although the name of Abdul Hameed was not mentioned in it while incorporating the names of vendees but after writing Abdul Majeed and Muhammad Bukhsh sons of Muhammad Ramzan shown to be three sons and three shares. The exact wording in verbatim is as under:

بدست عبدالمجید، محمد بخش پسران محمد رمضان ہرسہ بحصہ برابر سہ حصہ

Underline for emphasis

A copy of the same registered sale deed was produced by Respondents No. 1 to 6 on 18.06.1985 during the course of their documentary evidence, which clearly reflected the name of Abdul Hameed. The Mutation No. 789 was sanctioned on the basis of that sale deed on 20.11.1978, wherein the name of Defendant No. 7 also reflected. But this mutation was not produced in the first round of litigation, however produced in evidence after remand. The evidence available on the record negated the stance of the plaintiff.

1. The respondents failed to file any appeal or cross objection with regard to findings of learned appellate Court upon Issue No. 11-A. However, the learned counsel appearing on behalf of the respondents verbally prayed for arguing the case on Issue No. 11-A. The question arises that whether the respondents without filing any appeal or cross objection, are entitled to challenge the findings of two learned Courts below on Issue No. 11-A, which also encompasses the controversy.

The august Supreme Court of Pakistan while dealing with such proposition in its Full Bench Judgment reported as “Abdul Haque and others versus Shaukat Ali and 2 others” (2003 SCMR 74) declared that to do the complete justice a party may be allowed to support the judgment and decree under appeal on a ground which has been found against him in the following terms:

“Under Order XLI Rule 22, C.P.C. a respondent who does not file an appeal or cross-objection against a part of a decree can nevertheless support the decree on any of the grounds decided against him by the Courts below. In an appropriate case, an Appellate Court may allow a party, on consideration of justice, to support judgment and decree under appeal on a ground which has been found against him in that judgment and decree. In taking this view, we find support from the case of Syed Ziaul Hasan alias Thah Peer v. The State (1998 SCMR 1582) in which the cases of Kanwal Nain and Muhammad Afzal Khan (supra) were considered. The Supreme Court of India also took a similar view in the cases of Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and others (AIR 1965 SC 669) and Tepfulo Nakhro Angami v. Shrimati Ravoluei alias Rani M. Shazia (AIR 1972 SC 43).”

This view was further endorsed by the Hon’ble Supreme Court of Pakistan in a case reported as “Suba and others versus Abdul Aziz and others” (2008 SCMR 332) and observed as under:

“A party in whose favour a decree was passed, was not necessarily required to file an appeal or cross-objection as it could defend the decree on all the available grounds in support of the decree in appeal as provided by Order XLI, Rule 22, C.P.C., even though such grounds had been found against it. In Province of Punjab through Collector, Rajanpur District and 2 others v. Muhammad Akram and 2 others 1998 SCMR 2306 this Court had taken the view that where a respondent had neither preferred a petition nor filed an appeal, the Court had ample authority and full powers to extend relief to him provided that it was necessary either to do complete justice between the parties or the case otherwise involved invocation of Court’s inherent powers. Beneficial provisions of Order XLI of Rule 23(33), C.P.C. could also be invoked to do complete justice or to prevent the ends of justice from being defeated and to adjust the rights of the parties in accordance with justice, equity and good consciences as laid down in the case of Salah-ud-Din Butt and others v. Punjab Service Tribunal and others PLD 1989 SC 597.”

(emphasise provided)

In regular second appeal the same rules are applicable as provided in Order XLI C.P.C. in the light of Order XLII Rule 1, C.P.C. This Court under Order XLI Rule 33 of C.P.C. has empowered to invoke the provisions of law to do complete justice between the parties or prevent the ends of justice from being defeated and adjust the right of the parties in accordance with the natural justice, equity, and good conscious. This Court has manifest power to set right any illegality committed in law by Courts below while deciding specific issue in such context by exercising corrective powers as contained in Order XLI, Rule 33, C.P.C. Reference can be placed upon “Abdul Sattar and another versus Muhammad Iqbal” (PLD 2009 Lahore 407), “Ghulam Hussain and another versus Faiz Muhammad and 7 others” (PLD 1991 Supreme Court 218), “Central Government of Pakistan and others versus Suleman Khan and others” (PLD 1992 Supreme Court 590), “North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another versus Abdul Ghafoor Khan through Legal Heirs and 2 others” (PLD 1993 Supreme Court 418) and “Province of Punjab through Collector, Rajanpur District and 2 others versus Muhammad Akram and others” (1998 SCMR 2306).

Therefore, on account of the above discussion, I am of the considered view that without even filing any appeal or cross objection, the respondents are entitled to attack the findings of learned Courts below on Issue No. 11-A to establish and show this Court that such findings are illegal, unlawful, perverse and against the record. Therefore, while allowing the respondents I have also heard learned counsel for the parties on Issue No. 11-A.

1. As I have discussed supra there are two sets of defendants. If for the sake of arguments it is presumed that the plaintiff was not at fault by not impleading Defendant No. 7 as a party in his suit for pre-emption because of the inadvertence mistake of the copying agency by not incorporating the name of the said defendant in the copy of sale deed Exh.P.1, then the question arises what was the fault of Defendant No. 7 who acquired some rights with the afflux of time and why he should not be treated in accordance with the law. He was not a party in the suit for pre-emption at the time of institution of the suit and was made a party in the amended plaint filed on 15.07.2000. Meaning thereby neither any suit was instituted before 31.07.1986 nor any decree was passed against him. Then how any suit for pre-emption under the Punjab Pre-emption Act, 1913 can competently be entertained and proceed able against him. This Court while rendering its judgment in R.S.A.No. 95 of 1986 clearly held that the said Abdul Hameed has every right to take any objections whatever available to him, at the cost of repetition the exact wording is as under:

“So far as objections qua limitation etc. is concerned it will, of course, be open to said Abdul Hameed to take whatever objections are available to him when he puts in appearance in the learned trial Court”

The Defendant No. 7 was impleaded by moving an application (C.M.No. 32 of 1991) on 15.01.1991. Therefore, the suit was clearly barred by limitation against the said defendant. Omission on the part of the plaintiff to implead one of the vendees as a defendant within the prescribed period of limitation did not protect him by giving him the benefit of bonafide mistake rather appellant’s suit to the extent of Defendant No. 7 is clearly hit by the Order I, Rule 10(5), C.P.C. read with Section 22 of the Limitation Act, 1908, whereby it is described that where after the institution of suit a new plaintiff or defendant is substituted or added, the suit shall as regards to him be deemed to have been instituted when he was made a party. Both are reads as under:-

Order I Rule 10(5), C.P.C.

(1) ….

(2) ….

(3) ….

(4) ….

(5) Subject to the provisions of the [Limitation Act, 1908 (IX of 1908)], Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.”

1. Effect of substituting or adding new plaintiff or defendant. (1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.

(2) Nothing in subsection (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.”

The Hon’ble Supreme Court of Pakistan dealing with this proposition in a case reported as “Hayat and others versus Amir” (PLD 1982 Supreme Court 167) observed as under:

“Now according to this section, when a new person is substituted or added as a party in a suit already pending, then the suit as regard him shall be deemed to have been instituted only from the point of time when he is so made a party. In other words for purposes of determining whether the suit qua him is barred by limitation, the time shall be computed as if the suit had been filed by him. (if he is a plaintiff), or against him (if he is a defendant), on the date on which he was “So made a party”. The word ‘so’ used here evidently refers to his being made a party by ‘substitution’ in place of another party or by ‘addition’ as a new party.”

Therefore, the suit of the appellant/plaintiff is liable to be dismissed on the ground of limitation as well as barred by law against Defendant No. 7 and is hereby dismissed to his extent.

As the suit of appellant/plaintiff is dismissed to the extent of Defendant No. 7, therefore, the suit of the plaintiff has become partial pre-emption against the rest of the defendants which is not permissible.

1. The defendants purchased the suit property through a single transaction by a registered sale deed dated 03.10.1978 jointly and consideration amount was also paid on behalf of all the vendees jointly. The pre-emptor must seek pre-emption of the whole of the subject matter of the sale and pay the entire price paid by the vendees. The rule of partial pre-emption is however subject to an exception that in the following three categories of cases partial pre-emption would be permissible provided the whole sale money is paid:

(i) When the pre-emptor himself claims title to a part of the lands sold to a share out of those lands.

(ii) When the pre-emptor assail the vendor’s title to a part of the lands sold or the extent of his title thereto.

(iii) When the pre-emptor sets up the title of third persons to a part or share of the land sold.

The instant case does not fall in any one of these categories. The learned Division Bench of this Court in “Ahmad Khan versus Muhammad Afzal etc.” (PLD 1979 Lahore 647) held that in the case where one of the vendees is omitted from being impleaded as a defendant in a pre-emption suit to see whether a transaction of sale sought to be pre-empted is divisible or not, two requirements at least have to be met with, first, that there should be specified shares in which the vendees have purchased the land, secondly, that there is a positive proof of the specific and separate contribution made by each of the vendees towards the sale price. It was held further that by an omission to implead one of the vendees as a defendant within the prescribed time limit protection of Section 153, C.P.C. cannot be given to such case in teeth of a specific provision of Order I, Rule 10, C.P.C. read with Section 22 of the Limitation Act of 1908. The Hon’ble Supreme Court of Pakistan in a case tilted “Muhammad Khan versus Abdul Khaliq Khan” (PLD 1981 Supreme Court 155) held as under:

“It has been held by this Court in Abdullah and 3 others v. Abdul Karim and others (1), that to find out whether such a sale is divisible, the Court is to see two things viz. (i) whether the share of each vendee is specified and (ii) whether the proportion of price contributed or paid by each vendee is indicated separately. If any of these two ingredients is lacking, then the sale remains one joint indivisible sale and a suit for pre-empting the share of only one vendee without impleading the other vendee is not maintainable because in the absence of (confining ourselves to the facts of the present case) specification of separate sale price paid by each vendee, the unity of such a sale cannot be broken, and a suit for partial pre-emption with regard only to a part of the land cannot be maintained.”

The Respondents No. 1 to 6 in their written statement had raised a preliminary objection that the suit of the plaintiff is bad for partial pre-emption. The plaintiff as a person with ordinary prudence thus could have taken the precaution and rechecked the position to find out the background of that preliminary objection but he waited since 1991 when he first time moved an application for impleading the 7th vendee as a party in his suit. In a suit for pre-emption, where several vendees and one vendee was impleaded after time, due to an error in the copy of sale deed supplied to the plaintiff, this Court in similar situation dismissed the suit on the ground of partial pre-emption and barred by time. Reliance is placed upon “Abdul Rehman and another versus Faiz Bakhsh and others” (1989 CLC 2338) and “Jawala Das and others v. Gopal Lal (Pre-emptor) and Des Raj and others” (AIR 1925 Lahore 343).

1. The crux of the above discussion is that the findings of learned Courts below upon Issue No. 11-A are not correct and not maintainable, therefore, reversed.

2. The case laws referred to by the learned counsel for the appellants are not relevant to the facts and circumstances of this case, therefore not helpful for the appellants.

13. In view of the circumstances discussed supra, the learned appellate Court has rightly accepted the appeal of respondents/

defendants and dismissed the suit of the appellants/legal heirs of plaintiff while appreciating the evidence available on the file in its true perspective. I have seen no any illegality, material irregularity and mis-reading or non-reading of evidence on the part of learned appellate Court while passing the impugned judgment and decree. The learned counsel for the appellants miserably failed to show any jurisdictional defect in the findings recoded by the learned appellate Court.

14. Epitome of the above discussion is that there is no force in this second appeal, which is being meritless dismissed with no order as to costs.

(Y.A.) Appeal dismissed

PLJ 2022 Lahore 382

Present:Tariq Saleem Sheikh, J.

AMEER HUSSAIN--Petitioner

versus

GOVERNMENT OF PUNJAB etc.--Respondents

W.P. No. 31145 of 2021, decided on 24.5.2021.

Punjab Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)--

----S. 3--Detention of Tehreek-e-Labaik Activist--Extension of detention--Fundamental duty of Government--As per reports of SP & District Intelligence Branch, activities of petitioner’s nephew are prejudicial to public safety and maintenance of Public Order 1960--Subsequently, Additional Chief Secretary (Home Department) extended his detention for a further period of 30-days--Leadership of TLP which was banned under provisions of Anti-Terrorism Act, 1997 by Ministry of Interior was involved to create chaos in province of Punjab by blocking, destruction of public and private properties, injury and harm to police officials, harassing general public, instigating people against Government, etc--This was a case of preventive detention under security of Pakistan Act, 1952--The apex Court ruled that if right of a person to a petition for habeas corpus could not be syncopated--The Ameer of TLP has been demanding expulsion of French diplomat from Pakistan as a mark of protest against publication of irreverent caricatures in France-- The Court cannot substitute its discretion for that of administrative authority--The first and most fundamental duty of every government is preservation of order since order is condition precedent to all civilization and advance of human happiness--The Provincial Government’s action against Hafiz Saad seeks to preserve peace--Petition was dismissed.

[Pp. 384, 385, 390, 394, 395 & 396] A, B, G, H, I & J

2010 SCMR 27; PLD 1974 Lahore 7; PLD 2003 SC 442 ref.

Constitution of Pakistan, 1973--

----Art. 199--Power of Judicial review--The High Court can exercise power of judicial review only if it is satisfied that no other adequate remedy is provided by law. [P. 389] F

PLD 1983 SC 21; 1993 SCMR 1798; 1999 SCMR 1881; 2009 PTD 1392; 2016 SCMR 842; 2011 SCMR 1813 ref.

Constitution of Pakistan, 1973--

----Arts. 9 & 10--Deprivation from life and liberty--Provision of safe guard--Article 9 commands that no person shall be deprived of life or liberty save in accordance with law and Article 10 provides safeguards as to arrest and detention. [P. 386] C

Words and Phrases--

----Preventive detention--Preventive detention is a form of administrative detention, ordered by executive authorities, usually on assumption that detainee poses future threat to national security or public peace. [Pp. 386 & 387] D

Punjab Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)--

----S. 3(6)(a)--Communication of detention order--Section 3(6) of Ordinance stipulates that authority making detention order shall communicate grounds of detention to detainee within 15 days and he would be entitled to make a representation there against to government. Section 3(6-a) lays down that if such a representation is made government would duly consider it and, after giving an opportunity of hearing to detainee, modify, confirm or rescind that order. [P. 387] E

Mr. Ehsan Ali Arif, Advocate for the Petitioner.

Mr. Ahmad Awais, Advocate General, Punjab.

Mr. Akhtar Javed Additional Advocate General, Punjab.

Rai Shahid Saleem, Assistant Advocate General.

Dr. Ahsan Munir Bhatti, Deputy Secretary (Internal Security).

Date of hearing: 24.5.2021.

Order

Brief facts giving rise to this petition are that the Deputy Inspector General Police (Operations) addressed Letter No. 2048/DSP-L-Ops dated 12.04.2021 to the Deputy Commissioner, Lahore (Respondent No. 2), for detention of the Petitioner's nephew, Hafiz Saad Hussain Rizvi son of Hafiz Khadim Hussain Rizvi, under Section 3 of the Punjab Maintenance of Public Order Ordinance, 1960 (the "Ordinance"). The relevant excerpt from the said letter is reproduced hereunder:

"2. As per reports of SP Iqbal Town Division, Lahore and District Intelligence Branch, the activities of Hafiz Saad Rizvi s/o Khadim Hussain Rizvi are prejudicial to the Public Safety and Maintenance of Public Order, 1960.

1. SP Iqbal Town Division, Lahore and District Intelligence Branch has further reported that the above said person is the Ameer of Tehreek-e-Labaik Ya Rasool Lallah[1] He is in habit to harass the general public and oftenly takes part in activities against Government. There is credible information that in his meeting at 36-G Sabzazar on 11.04.2021 on Saturday, he has announced in the presence of members of TLP that they will hold a country-wide protest including road blocking processions and rallies in case the Government does not send back the French diplomat from Pakistan. The above-named activist along with his accomplices will create law and order situation and cause chaos amongst the general public. In this way, he has become a potential danger to public peace, law and order situation. Such like activists will give rise to a situation prejudicial to public safety and maintenance of public order, if they are not controlled. SP Iqbal Town Division, Lahore and District Intelligence Branch have recommended his detention under 03-MPO 1960 for a period of 90 days in order to keep the law and order situation in the city.

2. In order to prevent the above-mentioned activist from acting in manner prejudicial to public safety, maintenance of public order and tranquility, it is requested that his Detention Order under Section 03 Maintenance of Public Order Ordinance, 1960 for a period of 90 days may be issued. Reports of SP Iqbal Town Division and District Intelligence Branch, Lahore along with their enclosures are enclosed for perusal and necessary action."

2. Keeping in view the sensitivity of the matter, Respondent No. 2 immediately convened a meeting of the District Intelligence Committee (DIC) and on its recommendations, vide Order No. RDM/35 dated 12.04.2021, directed that Hafiz Saad Rizvi should be arrested and detained in the Central Jail, Kot Lakhpat, Lahore, for 30 days. Subsequently, vide Order dated 11.5.2021, the Additional Chief Secretary (Home Department) extended his detention for a further period of 30 days on the following grounds:

"i) The detenue [Hafiz Saad Rizvi] and other leadership of the organization namely Tehreek-e-Labaik Pakistan which was banned under the provisions of Anti-Terrorism Act, 1997 by the Ministry of Interior was involved to create chaos in the province of Punjab by blocking, destruction of public and private properties, injury and harm to police officials, harassing general public, instigating people against Government, etc.

ii) He, being the head of the proscribed organization has advocated and ensured such agitational course of action, instead of displaying responsibility. He has not shown any remorse on such actions, which has caused loss of lives and inflicted damage and pain on society.

iii) Under the leadership of detenue, the proscribed organization TLP has emerged as a negative group striving hard to dictate foreign policies and internal affairs of the country causing international and national pressure for the State and government.

iv) Credible information has been brought on record which has led the Provincial Intelligence Committee to believe that the said banned organization under his command, plans to restart the same agitation after the release of the said individual from jail. This act on the part of detenue re-affirms the apprehension of law enforcement agencies that if he is released, is likely to repeat and glorify his activities for the said proscribed organization, which would create law and order situation in the province thus giving rise to situation prejudicial to public safety and maintenance of public order."

1. Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has challenged the detention of Hafiz Saad Rizvi.

2. Respondents Nos. 2 and 3 have submitted report and parawise comments to this petition which are placed on record.

Arguments

1. The learned counsel for the Petitioner contended that Hafiz Saad Rizvi was the Ameer of Tehreek-e-Labaik Pakistan (TLP), a party duly registered under the law. He was a peaceful and law abiding citizen of the country and he had never engaged in any activity which could disturb public peace and tranquility. He maintained that the allegations against him were malafide, false and vexatious and there was no material to substantiate them. The learned counsel further contended that the grounds of detention were not communicated to Hafiz Saad within the prescribed period which rendered his incarceration unlawful.

2. The learned Advocate General, Punjab, vehemently opposed this petition. He contended that it was not maintainable because Hafiz Saad had not availed the statutory remedy provided under Section 3(6) of the Ordinance. On merits he contended that no exception could be taken to Hafiz Saad's detention. He was a big threat to public peace and the Federal Government had even proscribed his party, Tehreek-e-Labaik Pakistan, and enlisted it in the First Schedule of the Anti-Terrorism Act, 1997.

Opinion of the Court

7. Article 4 of the Constitution stipulates that every citizen, wherever he may be, and every other person for the time being in Pakistan has an inalienable right to enjoy the protection of law and to be treated in accordance with law. In particular, no action detrimental to his life, liberty, body, reputation or property shall be taken except in accordance with law. Then, Article 9 commands that no person shall be deprived of life or liberty save in accordance with law and Article 10 provides safeguards as to arrest and detention. Articles 9 and 10 are contained in Part-II Chapter-I of the Constitution which relates to Fundamental Rights. In Ismaeel v. The State (2010 SCMR 27) the Hon'ble Supreme Court of Pakistan observed that the rights guaranteed under Articles 4, 9 and 10 are sacrosanct and jealously guarded by our Courts.

8. Preventive detention is "a form of administrative detention, ordered by the executive authorities, usually on the assumption that the detainee poses future threat to national security or public peace."[2] Article 10 of the Constitution empowers the legislature to enact preventive detention laws to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan, or any part thereof, or external affairs of the country, or public order, or the maintenance of supplies or services subject to the safeguards and protections provided by clauses (4) to (9) of the said Article. In Begum Nazir Abdul Hamid v. Pakistan (Federal Government) through the Secretary, Interior Division, Islamabad and another (PLD 1974 Lahore 7) this Court observed that "the object of the framers of the Constitution in giving constitutional status to preventive detention was to prevent anti-social and subversive elements from imperiling the welfare of the State."

9. Ordinance XXXI of 1960 is one of the laws in force providing for preventive detention and control of persons and publications for reasons connected with public safety, public interest and the maintenance of public order in the Province of Punjab.[3] Section 3(1) is relevant for our present purpose which is reproduced below for ease of reference:

1. Power of arrest and detain suspected persons.--(1) Government, if satisfied that with a view to preventing any person from acting in any manner prejudicial to public safety or the maintenance of public order, it is necessary so to do, may, by an order in writing, direct the arrest and detention in such custody as may be prescribed under sub-section (7) of such person for such period as may, subject to the other provisions of this section, be specified in the order, and Government, if satisfied that for the aforesaid reasons it is necessary so to do, may, extend from time to time the period of such detention, for a period of not exceeding six months at a time.

Explanation I ...

Explanation II ...

Section 3(6) of the Ordinance stipulates that the authority making the detention order shall communicate the grounds of detention to the detainee within 15 days and he would be entitled to make a representation thereagainst to the government. Section 3(6-a) lays down that if such a representation is made the government would duly consider it and, after giving an opportunity of hearing to the detainee, modify, confirm or rescind that order.

1. The question as to whether a representation under Section 3(6) can be considered to be an "adequate remedy" within the meaning of Article 199 of the Constitution so as to bar a person from filing a constitutional petition straightaway before the High Court without availing the said remedy has generated a lot of debate. The learned Advocate General has also raised an objection regarding maintainability of this petition on that basis so I take up this issue first.

2. In England the law is that judicial review is a remedy of last resort: it is not a substitute for an appeal. In R v. Inland Revenue Commissioners, Exparte Preston, [1985] BTC 208, the House of Lords observed:

"A remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the Courts will allow the collateral process of judicial review to be used to attack an appealable decision."

1. Similarly, in Glencore Energy UK Ltd. v. Commissioners of HM Revenue and Customs, [2017] EWHC 1476 (Admin), High Court (Queen's Bench Division) held:

"The basic principle is that judicial review is a remedy of last resort such that where an alternative remedy exists that should be exhausted before any application for permission to apply for judicial review is made. Case law indicates that where a statutory alternative exists, granting permission to claim judicial review should be exceptional. The rule is not however invariable and where an alternative remedy is nonetheless ineffective or inappropriate to address the complaints being properly advanced then judicial review may still lie."

1. In the English law, the doctrine of "other adequate remedy" is vigorously followed only in relation to mandamus but is frequently relaxed in respect of certiorari.[4]

2. In India, Article 226 of the Indian Constitution empowers the High Courts to issue such writs, directions or orders for enforcement of the fundamental rights or "for any other purpose." However, the remedy provided for in Article 226 is discretionary and availability of an alternative remedy is one of the considerations which the High Court may take into account to refuse to exercise its discretion. In Union of India v. T.R. Varma (AIR 1957 SC 882), the Supreme Court of India observed:

"It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but ... 'the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs.' And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor."

1. Similarly, in Thansingh v. Superintendent of Taxes (AIR 1964 SC 1419) the Supreme Court ruled:

"The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy ... Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Article 226 of the Constitution, the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up."

16. Under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the High Court can exercise power of judicial review only if it is satisfied that no other adequate remedy is provided by law. In other words, "the High Court can exercise the constitutional jurisdiction only on the proof of non-availability of adequate remedy."[5] The purpose of writ jurisdiction is not to create a competing remedy. It is rather an additional remedy in the absence of an alternative adequate remedy subject to the satisfaction of the higher Court.[6] In Tariq Transport Company v. Sargodha Bhera Bus Service [PLD 1958 SC (Pak) 437], Muhammad Munir, CJ. held:

"It is wrong on principle for the High Court to entertain petitions for writs, except in very exceptional circumstances, when the law provides a remedy by appeal to another tribunal fully competent to award the requisite relief. Any indulgence to the contrary by the High Court is calculated to create a distrust in statutory tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat the legislative intent."

It is, however, important to point out that cases of absence of excess of jurisdiction stand on a different footing and are treated as an exception to the general rule stated above.[7]

17. In Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813) the Hon'ble Supreme Court of Pakistan held that the expression "adequate remedy" in Article 199 of the Constitution connotes an efficacious, convenient, beneficial, effective and speedy remedy which should also be inexpensive and expeditious. Further, the question as to whether a remedy is adequate or not depends on the circumstances of each case. The apex Court laid down the following tests for determination of the adequacy of relief:

"(i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an 'other adequate remedy' within the meaning of Article 199.

(ii) If the relief available through the alternative remedy, in its nature and extent, is what is necessary to give the requisite relief, the 'adequacy' of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense or convenience of obtaining it under Article 199. But in making this comparison those factors must not be taken into account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy.

(iii) In practice the following steps may be taken:

(a) Formulate the grievance in the given case, as a generalized category;

(b) Formulate the relief that is necessary to redress that category of grievance;

(c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent;

(d) If such a remedy is prescribed the law contemplates that resort must be had to that remedy;

(e) If it appears that the machinery established for the purposes of that remedy is not functioning properly, the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that that machinery begins to function as it should. It would not be correct to take over the function of that machinery. If the function of another organ is taken over, that other organ will atrophy, and the organ that takes over, will break down under the strain;

(f) If there is no other remedy that can redress that category of grievance in that way and to the required extent, or if there is such a remedy but conditions are attached to it which for a particular category of cases would neutralize or defeat it so as to deprive it of its substance, the Court should give the requisite relief under Article 199;

(g) If there is such other remedy, but there is something so special in the circumstances of a given case that the other remedy which generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Court should give the required relief under Article 199.

If the procedure for obtaining the relief by some other proceedings is too cumbersome or the relief cannot be obtained without delay and expense, or the delay would make the grant of the relief meaningless this Court would not hesitate to issue a writ if the party applying for it is found entitled to it, simply because the party could have chosen another course to obtain the relief which is due."

1. Having discussed the law, let us turn to Ordinance XXXI of 1960. There are a host of Single Bench cases which hold that availability of alternative remedy by way of representation to the government under Section 3(6) of the Ordinance does not fetter constitutional jurisdiction of the High Court under Article 199 of the Constitution.[8] However, the learned Advocate General has referred to two judgments of larger Benches of this Court, Muhammad Siddiq Khan v. District Magistrate (PLD 1992 Lahore 140) and Sheikh Rashid Ahmad v. D. M. Rawalpindi etc. (PLJ 2004 Lahore 1221), which take a contrary view. The first case was decided by a Division Bench on a reference by a Single Judge. The Court held that the right to make representation is a vital right and cannot be whittled down. It reasoned:

"From a reading of sub-Article (5) of Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973 it becomes obvious that the Constitution insists not only that the grounds for detention be communicated to the detenu but also that he shall be afforded the earliest opportunity of making a representation against the order. The right to make representation is thus not only statutory in nature but also finds recognition in the Constitution itself, and therefore stands on much higher padestal. The importance of this right cannot be whittled down and it must be given effect to. Sub-section (6) of Section 3 has been enacted to give effect to sub-Article (5) of Article 10 of the Constitution and it must be viewed in that context. It is also to be noticed that sub-section (6-a) requires the Government to hear the person concerned before deciding the representation."

However, the learned Division Bench ruled that in exceptional cases the constitutional jurisdiction of the High Court can be rightfully invoked. It held:

"As already held that Article 10(5) of the Constitution and Section 3(6) and (6-a) of the Punjab Maintenance of Public Order Ordinance, grant a right to detenu to make a representation which must be decided by the Government. That being so we are of the view that the remedy provided by Article 10(5) and sub-sections (6) and (6-a) of Section 3 of the Ordinance is adequate within the meaning of Article 199 of the Constitution. By so observing we do not find to lay down an inflexible rule and we should not be taken to have held that in no case a constitutional petition can be filed without filing a representation. There may be cases where it can be demonstrated that it is not possible to file a representation for example, where no grounds of detention are communicated to the detenu or where the filing of the representation would be a mere exercise in futility. Similarly, there may be other cases like complete lack of jurisdiction in the authority passing the order of detention where the filing of representation may not be necessary. In the ultimate analysis the question as to whether it would be necessary to file a representation in a given case would depend upon the facts of that case."

1. Sheikh Rashid Ahmad's case was decided by a Bench of five Hon'ble Judges. It held that the jurisdiction of the High Court under Article 199 of the Constitution is subject to law and when the statute itself provides a remedy it must be exhausted in the first instance.

20. It, however, appears that the view expressed in the above-mentioned two cases is at variance with the dictum laid down by the Hon'ble Supreme Court in Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Amatul Jalil Khawaja and others (PLD 2003 SC 442). This was a case of preventive detention under the Security of Pakistan Act, 1952. The apex Court ruled that if the right of a person to a petition for habeas corpus could not be syncopated. The relevant excerpt is reproduced below:

"The right of a person to a petition for habeas corpus is a high prerogative right and is a constitutional remedy for all matters of illegal confinement. This is one of the most fundamental rights known to the Constitution. There being no limitation placed on the exercise of this right, it cannot be imported on the actual or assumed restriction which may be imposed by any subordinate legislation. If the arrest of a person cannot be justified in law, there is no reason why that person should not be able to invoke the jurisdiction of the High Court immediately for the restoration of his liberty which is his basic right. In all cases where a person is detained and he alleges that his detention is unconstitutional and in violation of the safeguards provided in the Constitution, or that it does not fall within the statutory requirements of the law under which the detention is ordered, he can invoke the jurisdiction of the High Court, under Article 199 and ask to be released forthwith. (PLD 1965 Lah. 135). He need not wait for the opinion of the Advisory Board before praying for a habeas corpus. (AIR 1952 Cal. 26)."

1. The law laid down in Amatul Jalil Khawaja's case is binding on all Courts under Article 189 of the Constitution. Hence, the objection of the learned Advocate General regarding maintainability of this petition is overruled.

2. Inasmuch as "preventive detention makes an inroad on the personal liberty of a citizen without the safeguards of a formal trial before a judicial tribunal, it must be jealously kept within the bounds fixed by the Constitution and the relevant law."[9] Let us, therefore, examine the merits of the case.

3. In Amatul Jalil Khawaja's case, supra, the Hon'ble Supreme Court laid down that an order of preventive detention must conform to the following criteria:

"(i) the Court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention;

(ii) the satisfaction should be established with regard to each of the grounds of detention, and, if one of the grounds is shown to be bad, non-existent or irrelevant, the whole order of detention would be rendered invalid;

(iii) the initial burden lies on the detaining authority to show the legality of the preventive detention;

(iv) the detaining authority must place the whole material, upon which the order of detention is based, before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide;

(v) the Court has further to be satisfied, in cases of preventive detention, that the order of detention was made by the authority prescribed in the law relating to preventive detention and that every requirement, of the law relating to preventive detention had been strictly complied with;

(vi) the 'satisfaction' in fact existed with regard to the necessity of preventive detention of the detenue;

(vii) the edifice of satisfaction is to be built on the foundation of evidence because conjectural presumption cannot be equated with satisfaction; it is subjective assessment and there can be no objective satisfaction;

(viii) the grounds of detention should not be vague and indefinite and should be comprehensive enough to enable the detenue to make representation against his detention to the authority, prescribed by law;

(ix) the grounds of detention had been furnished within the period prescribed by law, and if no such period is prescribed, then 'as soon as may be'."

24. Hafiz Saad Hussain Rizvi is the Ameer of TLP. He has been demanding expulsion of the French diplomat from Pakistan as a mark of protest against publication of irreverent caricatures in France. The government was moved when he held a meeting with his party's top leaders at Sabzazar on 11.4.2021 and announced country-wide agitation, including march to Islamabad, to press for the aforesaid demand. The DIC met, discussed intelligence reports and unanimously recommended an action under Section 3(6) of the Ordinance for public safety, maintenance of public order and tranquility. Consequent thereupon Respondent No. 2 issued Hafiz Saad's detention order dated 12.04.2021. Although he was arrested, the TLP activists came out on the streets and resorted to vandalism. They also protested against his detention. The following week saw complete breakdown of law and order in the province. According to the report submitted by Respondent No. 3, three police officials were killed, 303 were injured, 28 were abducted in various incidents. Besides, 16 police vehicles, two oil tankers and the Orange Train Stations were damaged. Roads were blocked and private property worth crores of rupees, including cars and motorcycles, were also set ablaze. Thus, the government's intelligence reports regarding Hafiz Saad Rizvi and his activists proved correct.

1. The Federal Government has issued S.R.O. 479(I)/2021 dated 15.4.2021 proscribing TLP and placing it in the First Schedule of the Anti-Terrorism Act, 1997. The learned Advocate General has submitted reports of the law enforcement agencies and the recommendations of the Provincial Intelligence Committee which show that the TLP has plans to restart agitation as soon as Hafiz Saad is released. His activists would also glorify him and their organization. This would again cause mayhem and disrupt public life.

26. It is trite that when the order of an executive authority regarding detention of a particular person is challenged under Article 199 of the Constitution the High Court has limited jurisdiction because the remedy of judicial review cannot be treated as appeal or revision. The Court cannot substitute its discretion for that of the administrative authority. It can only see whether the order of detention is reasonable and objective. On the touchstone of these principles and those enumerated in paragraph 23, above, I have found Hafiz Saad's detention orders unexceptionable.

1. The Petitioner contends that the incarceration of Hafiz Saad is unlawful because the grounds of detention were not communicated to him within the prescribed period. The learned Advocate General has placed on record the detainee's written acknowledgement which negates this contention.

28. Clinton Rossiter writes that there is "no happiness without liberty, no liberty without self-government, no self-government without constitutionalism, no constitutionalism without morality, and none of these great goods without stability and order".[10] And in Niharendu Dutt Majumdar v. Emperor (AIR 1942 FC 22) Gwyer CJ. said that "the first and most fundamental duty of every government is the preservation of order since order is the condition precedent to all civilization and the advance of human happiness.[11] The Provincial Government's action against Hafiz Saad seeks to preserve peace. This petition has no merit and is, therefore, dismissed.

(K.Q.B.)

[1]. Also called Tehreek-e-Labaik Pakistan (TLP).

[2]. Reema Omer, No More preventive detention, www.dawn.com.

[3]. Preamble of Ordinance XXXI of 1960.

[4]. Fazal Karim, Judicial Review of Public Actions, Second Edition, p. 1453.

[5]. Abdur Rehman v. Haji Mir Ahmad Khan and another (PLD 1983 SC 21). Also see: Adamjee Insurance Company Ltd. v. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and 5 others (1993 SCMR 1798); Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1999 SCMR 1881); Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 PTD 1392); and Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others (2016 SCMR 842).

[6]. Naeem Jaffar v. Senior Superintendent of Police and 2 others (1997 MLD 1198).

[7]. Fazal Karim, Judicial Review of Public Actions, Second Edition, p. 1451.

[8]. See for example: Messrs Azad Papers Ltd. and another v. Province of Sindh through Secretary, Home Department, Karachi and another (PLD 1974 Karachi 81); Maulana Shah Ahmad Noorani v. Government of the Punjab (PLD 1984 Lahore 222);Maulana Abdul Latif Shamshad Ahmad v. District Magistrate, Kasur (1999 PCr.LJ 2104); Mamoona Saeed v. Government of Punjab through Secretary, Home Department and 2 others (PLD 2007 Lahore 128) Rafaqat Ali and others v. Deputy Commissioner, Rawalpindi and 3 others (2019 PCr.LJ Note 154); and Muhammad Abdaal alias Abdali v. Government of Punjab and others (PLD 2020 Lahore 471).

[9]. The Government of East Pakistan v. Rowshan Bijaya Shaukat Ali Khan (PLD 1996 SC 286).

[10]. Clinton Rossiter, Introduction to the Federalist, cited by Fazal Karim in Judicial Review of Public Actions, Second Edition, at p. 865.

[11]. Also cited by Fazal Karim in Judicial Review of Public Actions, at p. 865.

PLJ 2022 Lahore 396 (DB) [Multan Bench Multan]

Present: Ch. Muhammad Masood Jahangir and Anwaar Hussain, JJ.

STATE LIFE INSURANCE CORPORATION--Appellant

versus

Mst. BIBI REEMA--Respondent

Insurance Appeal No. 178 of 2021, heard on 27.9.2021.

Insurance Ordinance, 2000 (XXXIX of 2000)--

----Ss. 118 & 124--Specific Relief Act, (I of 1877), S. 42--Suit for declaration--Concurrent findings--Obtaining of insurance on nonmedical basis--Insurance of deceased husband of respondent--Respondent was nominee of her husband--Instalments of insurance policy were paid regularly--Death of respondent's husband--Filing of death claim--Refusal of claim--Submission of death certificate--Prescription was never confronted by appellant during cross-examination--Inquiry report--Question of whether deceased committed any fraud or misrepresentation while purchasing policy--Appellant was failed to prove mis-declaration--Appellant was required to prove fraud or misrepresentation on part of Deceased--Prescription along with inquiry report relied upon by appellant was its best evidence and no reasons have been specified as to non-production of Inquiry Officer or author of prescription--No effort was made on part of appellant to get post mortem of Deceased and in absence of same, there is no reason to discard death certificate which is public document and to which presumption of truth is attached--Appellant failed to prove mis-declaration--Death occurred within short period of time after purchase of policy is not per se a suspicious circumstance to deny relief to beneficiary--Claim of respondent has been denied and lingered by appellant without any just cause, as a result of which nominee of Deceased, who is of approximately six years of age, has suffered a lot, we are inclined to award cost of Rs. 200,000/-to be additionally paid to respondent side--Appeal dismissed. [Pp. 400, 402 & 403] A, C, E, F, G & H

PLD 1973 SC 160, 2012 SCMR 1106, 1999 CLC 1166 Lahore, 2012 CLC 246 Lahore 1997 (1) MPLJ 203 ref.

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

----Art. 78--Producing of document--Once a document is produced as a piece of evidence, it has to undergo crucible of objective scrutiny in terms of Article 78 of Qanoon-e-Shahadat Order, 1984. [P. 400] B

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

----Art. 129(g)--Adverse presumption--An adverse presumption is to be drawn against party which withholds best evidence. [P. 401] D

Barrister Malik Sohail Ashiq Shujra, Advocate for Appellant.

Sardar Muhammad Rashid Khan Baloch, Advocate for Respondent.

Date of hearing: 27.9.2021.

Judgment

Anwaar Hussain, J.--This appeal under Section 124 of the Insurance Ordinance, 2000 (“the Ordinance”) impugns judgment and decree of the Insurance Tribunal, Muzaffargarh dated 23.06.2021 whereby the suit of the respondent for recovery of insurance claim under Section 118 of the Ordinance was allowed in the sum of Rs. 300,000/-.

1. Succinctly, the respondent instituted a suit for declaration with the averments that her deceased husband, namely, Muhammad Ilyas s/o Abdul Razzaq (“the Deceased”), was insured by the appellant, vide Insurance Policy No. 607565139-0 wherein the respondent was appointed as guardian/nominee by her husband; the Deceased paid monthly instalments of insurance policy regularly and after payment of fourth instalment, he died; she filed death claim with the appellant on account of insurance policy of the Deceased, which was refused by the appellant and the respondent was constrained to institute the suit.

2. The appellant controverted the suit by filing written statement while raising legal as well as factual grounds and out of divergent pleadings of the parties, following issues were framed:

3. Whether the deceased Muhammad Ilyas purchased a Policy No. 607565139-0 for Rs. 3,00,000/-by nominating the plaintiff/guardian, hence she is entitled to get the decree as prayed for? OPP

4. Whether the suit of the plaintiff/petitioner is not maintainable in view of preliminary Objections No. 1 & 2? OPD

5. Relief.”

The parties led their respective evidence which was duly recorded by learned Tribunal and after hearing both sides, the suit of the respondent was decreed as prayed for, vide impugned judgment and decree.

1. Learned Counsel for the appellant argues that the policy was on non-medical basis and purchased initially on 27.10.2016; however, the Deceased did not pay the annual premium and same was cancelled and was later revived on 07.06.2018 where after, the Deceased only paid three instalments and died on 10.11.2019, which was after one year, five months and three days of the revival of the policy and upon inquiry, sufficient evidence surfaced which indicates that the Deceased was an addicted person and a known patient of Asthma and was under treatment of mental disease at the time when the policy was revived and evidence thereof has been ignored by learned Tribunal below. Learned Counsel argues that learned Tribunal misread the evidence, incorrectly applied the provisions of law and based its findings on inadmissible evidence and without appreciating that the claim based on a life insurance policy was obtained by the Deceased through fraud, misrepresentation and by concealment of pre-insurance illness, qua his health condition that was sheer violation of doctrine of utmost good faith, which is basis of the insurance contract. Insurance contract, as such, was unenforceable and the appellant is entitled to avoid the same in terms of Section 79 of the Ordinance, which contemplates that an insurer can avoid a contract if the person insured has fraudulently concealed material information from the insurer.

2. Conversely, learned Counsel for the respondent refuting the above arguments submits that the assertions of misrepresentation and bad faith were not supported by any record and that the findings of learned Tribunal are based on correct analysis of the evidence on record.

3. Arguments heard and record perused.

4. We have heard learned Counsel for parties and examined the record. Admittedly the Deceased obtained insurance on non-medical basis while nominating his daughter Anum Bibi as beneficiary. Non-medical life insurance assumes no medical test while issuing a policy as opposed to a traditional policy where medical tests are required (e.g., blood test, blood pressure, etc.) and are executed while relying upon the declaration, which the insured makes at the time of making of the contract of insurance. In the present case, the Deceased also made such a declaration. Insurance contracts belong to that limited category of contracts, which are regarded as one falling under doctrine of uberrimae fidei, i.e., of the utmost good faith and hence, any concealment may lead to cancellation thereof. The Deceased gave the declaration which was relied upon and the contract was revived. Instalments were admittedly paid by the Deceased. The case of the appellant is that said declaration was wrong and fraudulent as evident from the prescription handed over to the Inquiry Officer of the appellant who investigated the claim before whom the relatives of the Deceased recorded their statements that the Deceased was an addict and the early death of the Deceased after revival of policy corroborates the stance of the appellant.

5. Perusal of record reveals that the respondent discharged the burden of proving the issuance of the policy and payment of the premium by the Deceased before he died and the controversy only relates to whether the Deceased committed any fraud or misrepresentation while purchasing the policy. Death certificate (Ex.P.1) shows that the Deceased suffered natural death, therefore, in order to obtain benefit of Section 79 of the Ordinance and to repudiate the contract, the appellant was required to prove fraud or misrepresentation on part of the Deceased. In support of his stance, learned Counsel for the appellant places reliance on the medical prescription dated 18.05.2017 issued under the hand of one Dr. Azhar Hussain, Specialist of mental disease and addiction treatment along with inquiry report of the appellant’s official and statement of relatives of the Deceased (Ex.D.6). Though it is stated by the respondent in her statement that said prescription by Dr. Azhar Hussain was handed over to the Inquiry Officer of the appellant by brother of the Deceased, however, the respondent was never confronted with the said prescription while being cross-examined. By now, it is well-coalesced and deeply-embedded position of law that production of documents and their admissibility as well as the proof and probative value carried by such documents are entirely two different things and should never be used or construed interchangeably. For proving veracity of a document, the person who authored it must depose before the Court in support of the contents, otherwise such document can merely be taken into consideration for the purpose of showing that such a document was issued but whether the contents of the same are correct or not, such facts cannot go into the evidence unless the author of the document deposes before the Court and faces cross-examination. Once a document is produced as a piece of evidence, it has to undergo the crucible of objective scrutiny in terms of Article 78 of the Qanun-e-Shahadat Order, 1984 (“QSO”). Mere production of a document neither lends any credence nor confers any probative value to it. Guidance in this regard may also be sought from Pakistan Engineering Consultants through Managing Partner v. Pakistan International Airlines Corporation through Managing Director and another (PLD 2006 Karachi 511) and Messrs United Ethanol Industries Limited v. Messrs JDW Sugar Mills Ltd. (2015 YLR 1429 Lahore). In the instant case, the prescription of the doctor as well as the inquiry report has been produced in the evidence as Ex.D.6; however, astonishingly enough, neither the Inquiry Officer, namely, Muhammad Akram has been produced as a witness nor any justification as to withholding the evidence of Inquiry Officer has been advanced. Similarly, the doctor whose prescription has been presented has not been produced as a witness to prove the genuineness of the prescription sans which the same is merely a piece of paper without embodying any probative value. Hence, it was not proved that the prescription (part of Ex.D.6) was the same document, which was handed over to the Inquiry Officer. The appellant has tried to knit its case primarily around the mis-declaration implying that the concealed disease and illness of the Deceased has resulted in his death, which disentitles him from the amount claimed. It has been tried to put probative and evidentiary weight on the said stance mainly through the prescription of doctor appended with the inquiry report produced in evidence, which is a photocopy of the prescription and not the original. The probative value of the prescription, apart from the reasons given above, also evaporates in the thin air on the ground that the said prescription is a private document, hence, the genuineness of the same has not been proved in terms of Article 72 read with Articles 78 and 117 of the QSO. Said prescription is not a public document and cannot be received in evidence without proof of signatures of its author and hence, could not be tendered on bare statement of the Counsel for the appellant before learned Tribunal. Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160) and Muhammad Ashraf v. Shah Noor Khan and another (1996 MLD 1819 Lahore) are referred. Even otherwise, prescription along with other affidavits relied upon by the appellant could not be even marked as exhibit without proving those documents in accordance with the provisions of QSO and therefore, reliance on the same by the appellant is misconceived. Similarly, no one out of the relatives of the Deceased appeared in support of their statements made before the Inquiry Officer deputed by the appellant to investigate the claim of the respondent. In Muhammad Zakria and 3 others v. Bashir Ahmad (2001 CLC 595 Lahore), this Court has held that “the documents, which are not copies of the judicial record, should not be received in evidence, without the proof of the signatures and handwriting of the person alleged to have signed or written the instrument, even if, such documents are brought on record, are accepted without objection.”

9. There is yet another angle from which the case can be examined. Prescription along with the inquiry report relied upon by the appellant was its best evidence and no reasons have been specified as to non-production of the Inquiry Officer or the author of the prescription which brings the case of the appellant within the clutches of illustration (g) to Article 129 of QSO that contemplates that an adverse presumption is to be drawn against the party which withholds the best evidence. We are fortified by the dicta laid down by the Hon’ble Supreme Court in Dilshad Begum v. Nisar Akhtar (2012 SCMR 1106). Even otherwise, the same is mere prescription and not diagnosis or opinion of an expert regarding the health of the Deceased.

10. Admittedly, no effort was made on part of the appellant to get post mortem of the Deceased and in the absence of the same, there is no reason to discard the death certificate (Ex.P.1), which is public document and to which presumption of truth is attached. The said death certificate has neither been objected to nor its validity has been challenged or its presumption rebutted. Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan (1989 SCMR 704), Board of Intermediate and Secondary Education, Lahore through Secretary v. Mst. Sobia Chand (1999 CLC 1166 Lahore) and Fateh Ullah v. Noor Ahmad (2012 CLC 246 Lahore) are referred in this regard.

11. While it is correct that non-disclosure or wrong declaration of any material information can entitle the appellant to invoke Section 79 of the Ordinance to repudiate the contract of insurance, however, the said provision has to be interpreted in a reasonable manner. In present case, it has nowhere been asserted that the Deceased was unwell or had any symptoms from any ailment at the time of taking the Policy or its revival or before his death. In Indian Jurisdiction, Section 45 of the Insurance Act, 1956 is in pari materia with Section 79 of the Ordinance, and while interpreting the scope thereof, in Life Insurance Corporation of India and others. v. Asha Goel and others (2001) 2 SCC 160), the Indian Supreme Court held that on a fair reading of Section 45 it is clear that it is restrictive in nature and the burden of proof is on the insurer to establish these circumstances and unless the insurer is able to do so, there is no question of the policy being avoided on ground of misstatement of facts and repudiation of a policy should be done with extreme care and caution and not in a mechanical and routine manner. In the instant case, the appellant failed to prove the mis-declaration.

12. Much emphasis has been laid by learned Counsel for the appellant that the early death of the Deceased within one year, five months and three days of the revival of the policy, prima facie indicates that the declaration given by the Deceased was fraudulent and hence, Section 79 of the Ordinance was applicable in the instant case. Mere fact that the death occurred within short period of time after the purchase of the policy is not per se a suspicious circumstance to deny the relief to the beneficiary. Life Insurance Corporation of India v. Smt. Parkash Kaur and others (1997(1) MPLJ 203) is referred in this regard where death of the insured person therein took place within 06 months from the date of taking insurance policy and this aspect has not been given any weightage by the Court.

13. Since the claim of the respondent has been denied and lingered by the appellant without any just cause, as a result of which the nominee of the Deceased, who is of approximately six years of age, has suffered a lot, we are inclined to award cost of Rs. 200,000/- to be additionally paid to the respondent side.

1. In the light of what has been stated above, this appeal being bereft of any merit is hereby dismissed with cost of Rs. 200,000/-to be paid to the respondent.

(Y.A.) Appeal dismissed

PLJ 2022 Lahore 403 (DB)

Present: Abid Aziz Sheikh and Muhammad Sajid Mehmood Sethi, JJ.

A.M. CONSTRUCTION COMPANY (PVT.) LTD.--Appellant

versus

PROVINCE OF PUNJAB through Secretary Communication & Works Department etc.--Respondents

I.C.A. No. 18231 of 2021, heard on 30.9.2021.

Punjab Procurement Rules, 2014--

----Rr. 25(6), 56 & 67--Law Reforms Ordinance, (XII of 1972), S. 3--Submission of bids--Projects of construction and rehabilitation work of provincial roads highway--Issuance of first letter to pay performance security--Second letter was issued for additional performance security--Lowest bidder--Successful bidder-- Performance security--Additional performance security--General Directions including Para 25(A), 25(B) and 15 which were already part of bidding documents, could be applied by procuring agency as long as they are not inconsistent with Rules--This Court in preceding paragraphs has already noted that these paras in General Directions are not inconsistent with Rule 56 of Rules--Counsel for appellants have also not referred to any other rule which specifically deal with performance security or additional performance security, in case tender amount is less than approved estimated amount and in conflict these paras--It is also well settled that at bidding stage, tendering authorities are free to formulate any conditions of tenders unless action of tendering authority is found to be arbitrary, discriminatory or malicious--No performance guarantee after acceptance of bid, can be claimed more than 10% of “contract price” as ordained by Rule 56 of Rules--But additional performance security or performance security from lowest bidder before his bid was accepted can be claimed as per General Directions circulated to bidders--Petitioner was merely lowest bidder, demand of additional performance security under Para 26(A) of General Directions was justified and in case of failure, procuring agency had authority to reject lowest bid and proceed for retendering--Award of contract to 3rd party in subsequent tender is not hit by Rule 56 of Rules or any other provision of law--Petition disposed of. [Pp. 412, 413 & 414] D, E & F

2010 YLR 2452 and 1999 MLD 476 ref.

Punjab Procurement Rules, 2014--

----R. 35--Rejection of bids--Procuring agency may reject all bids or proposals at any time prior to acceptance of a bid or proposal.

[P. 412] C

PLD 2020 Lahore 565, 2005 YLR 1443 and 2010 CLC 1046 Karachi ref.

Punjab Procurement Rules, 2014--

----R. 56--Furnishing of performance guarantee--Where it is needed and clearly expressed in bidding documents, procuring agency shall require successful bidder to furnish performance guarantee, however successful bidder should not be required to furnish performance guarantee exceeding 10% of contract amount--This rule is only applicable to successful bidders who have been awarded procurement contract and contract amount is also determined.

[P. 410] A & B

Mian Muhammad Kashif, Advocate, Mr. Rawal Hussain Kazmi, Advocate, Barrister Amar Saeed Rawn, Mr. Riaz Karim Qureshi, Advocate, Ch. Muhammad Ibraheem, Advocate, Ch. Muhammad Yaqoob, Advocate, Mian Abdul Ghaffar, Advocate, Mr. Pervaiz Khalid, Advocate, Mian Shah Behram Sukhera, Advocate and Mr. Naseer Ahmad Ch., Advocate for Appellant.

Mr. Junaid Razzaq, Assistant Advocate General Punjab along with Noman Baig, SDO Irrigation Department, Abdul Hakeem, SDO Building and Younas Kamal, Sub-Engineer Narowal, Mian Zahid, Legal Advisor, Finance Department, Mr. Zahid Shah, Advocate/Legal Advisor C&W Department for Respondents.

Date of hearing: 30.9.2021.

Judgment

Abid Aziz Sheikh, J.--This judgment will also decide writ petitions mentioned in Appendix A of this Intra Court Appeal (ICA) as common questions of law and facts are involved in all these matters.

1. The legal question that requires our expression of opinion and determination is that whether additional performance security demanded under Para 26(A) of the General Directions for the guidance of the tenderers (General Directions) is violative of the Rule 56 of the Punjab Procurement Rules, 2014 (Rules).

2. Because of the commonality of question of law mentioned above in all these matters, it is not necessary to narrate or advert to the facts in each one of these cases separately. However, to illustrate the factual mattress upon which these cases are founded, we narrate hereunder the facts of the instant ICA.

3. The Respondents No. 2 and 3 in ICA (respondents) invited sealed bids from eligible construction contractors for four projects of construction and rehabilitation works of provincial roads highway through a tender notice. The last date for submission of bids was 01.03.2021. The appellant in this ICA obtained the bidding documents, which consist of General Directions. The appellant submitted its bids on 01.03.2021. The bid was accompanied by cash deposit receipt at 2% of the approved estimate as earnest money. The approved estimate of the project was Rs. 51,20,83,000/- (approved estimate). However, the bid was submitted in the sum of Rs. 45,43,13,870/- (bid amount). The appellant was found to be the lowest bidder for the project and was accordingly issued two letters dated 01.03.2021 under Para 26(A) of the General Directions. In one letter appellant was demanded to pay performance security of Rs. 2,57,00,000/-and in second letter, additional performance security of Rs. 5,77,70,000/-was demanded being difference between the bid amount and approved estimate. The appellant challenged the demand of impugned additional performance security amount of Rs. 5,77,70,000/-being violative of Rule 56 of the Rules in W.P. No. 17122/2021. However, the said writ petition was disposed of on 12.03.2021 with direction to the Redressal Grievance Committee under Rule 67 of the Rules to decide the objections of the appellant, but the respondents again repeated the impugned demand through letter dated 12.03.2021. As number of writ petitions were already pending on the above legal issue, therefore, the appellant also filed instant appeal which was clubbed with those writ petitions before this Division Bench for deciding the question of law raised therein.

4. The facts in all the other connected writ petitions (in Appendix A) are more or less the same. The petitioners in all these writ petitions are also aggrieved of the similar demand of additional performance security under Para 26(A) of the General Directions, being violative of Rule 56 of the Rules. For convenience the word “appellants” used hereafter will also include all the petitioners in connected writ petitions and the word “respondents” will include the respondents in all connected writ petitions.

5. The learned counsel for the appellant in this ICA (Mian Muhammad Kashif, Advocate) submits that under Rule 56 of the Rules, the performance guarantee cannot be more than 10% of the contract price, therefore, the impugned demand of additional performance security being beyond the limit of 10% of the bid amount is not sustainable. The learned counsel adds that the performance security and additional performance security are of the same species and therefore, merely because the word “additional performance security” has been used in the General Directions, the same cannot go beyond the limits prescribed under Rule 56 of the Rules. It is further argued that change of nomenclature will not defeat the intent of legislation spelt out in Rule 56 of the Rules. He submits that as Rule 56 of the Rules specifically mentioned performance guarantee, therefore, any other kind of guarantee is excluded by necessary implication. Submits that Para 26(A) of the General Directions of the tender documents being in violation of Rule 56 of the Rules is liable to be struck down. Learned counsel submits that demand of performance securityvide letter dated 01.03.2021, besides additional performance security means that bid was accepted and appellant was the successful bidder.

6. Learned counsel for the petitioner in W.P. No. 23960/2021 (Ch. Muhammad Ibraheem, Advocate) referred to letters dated 28.05.2014 and 03.06.2014 issued by respondents to submit that performance security and additional performance security are both for one and the same purpose to ensure security of work, therefore, both these securities cannot be treated differently. He therefore, argued that Rule 56 of the Rules is equally applicable to both these kind of securities.

7. Mr. Riaz Karim Qureshi, Advocate (in W.P. No. 21707/2021) submits that under Para 26(A) of the General Directions, the respondents could at best claim 5% to 10 % of the difference between tender amount and estimated cost. However, the respondents have demanded more than 50% of the difference, which is even beyond scope of Para 26(A) of the General Directions.

8. The learned counsel for the petitioner in W.P. No. 16822/2021, (Barrister Amer Saeed Rawn) submits that vide letter dated 15.12.2020, the petitioner was directed to deposit additional performance security of Rs. 75,55,913/-within period of 15 days. On failure to deposit additional performance security, the respondents issued fresh tender for the same work with closing date on 01.02.2021. Submits that petitioner being aggrieved filed W.P. No. 6097/2021 which was disposed of on 29.01.2021 with direction to respondents to decide petitioner’s application, if filed, before taking any adverse action. The learned counsel submits that instead of deciding petitioner’s application, the contract was awarded to 3rd party on 02.03.2021. He submits that in this writ petition, the petitioner has challenged the work order issued in favour of 3rd party besides challenging the notice to deposit additional performance security.

9. The learned Law Officer on the other hand on behalf of respondents submits that performance security and additional performance security are two different types of guarantees obtained for different purposes. He submits that performance security of 5% of the contract amount is obtained from the successful bidders only where the bid amount is of Rs. 50 Million and above as per General Directions, which is in line with Rule 56 of the Rules. Submits that additional performance security is obtained from the lowest bidder as per Paras 26(A) and 26(B) of the General Directions. Submits that Paras 26(A), 26(B) and 15 in the General Directions were introduced through Finance Department’s Notifications dated 06.04.2005 and 04.09.2012. He further submits that on similar issue, the learned Single Bench of this Court in W.P. No. 58398/2020 vide judgment dated 09.02.2021 already held that Rule 56 of the Rules is not attracted to additional performance security.

10. We have heard the learned counsel for the parties and perused the record with their able assistance. The baseline question which requires determination by this Court is that whether impugned demands of additional performance security under Para 26(A) of the General Directions are violative of Rule 56 of the Rules. For convenience relevant Paras 26(A), 26(B), 15 and 30 of the General Directions are reproduced hereunder:

“26(A) In case the total tendered amount is less than 5% of the approved estimated (DNIT) amount, the lowest bidder will have to deposit additional performance security, from the Scheduled Bank ranging from 5% to 10% as under, within 15 days of issuance of notice or with in expiry period of bid, whichever is earlier.

| | | | --- | --- | | TOTAL TENDERED AMOUNT BELOW CORRESPONDING ESTIMATED COST | ADDITIONAL PERFORMANCE SECURITY. | | 5% | 5% | | 6% | 6% | | 7% | 7% | | 8% | 8% | | 9% | 9% | | 10% | 10% |

“26(B) Lowest evaluated bidder shall, within 15 days of receipt by him of a notice in this regard, furnish to the tender approving authority in cash, bank draft, cashier’s cheque, payment order or bank guarantee (valid for three months beyond completion time/extended completion time) from any scheduled Bank of Pakistan, the amount to make up performance security and/ or additional performance security where required and specified in the tender in item (h) of Memorandum of work. Should the lowest evaluated bidder refuse or fail for any reason to furnish performance security within the specified time, it should constitute a just cause for rejection of his tender and in the event of such rejection the entire earnest money shall be forfeited to government as compensation for such default.”

“15 The lowest evaluated bidder will be required to furnish the performance security/ additional Performance security (wherever required), enter into a contract and commence the work within the time specified in the memorandum of work. Should the lowest evaluated bidder refuse or fail for any reason to furnish the performance/ additional performance security, enter into contract or to commence the work within the time specified in the memorandum of work, it should constitute a just cause for rejection of his tender/ annulment of award and in event of such rejection/ annulment, the entire money shall be forfeited to Government, as compensation for such default.”

“30. At the time, the Engineer-in-charge notifies acceptance of the tender to the tenderer, he will send the tenderer the form of agreements between the parties. Within 15 days of receipt of the form of agreement, the successful tenderer shall furnish the performance security (5% of the contract price) and sign the contract in the presence of the Engineer-in-charge.”

For ease of reference, Rule 56 of the Rules under Chapter VIII is also reproduced as under:

Chapter-VIII: Acceptance of Bids and Award of Contracts.

“Rule 56. Performance guarantee.--Where needed and clearly expressed in the bidding documents, the procuring agency shall require the successful bidder to furnish a performance guarantee which shall not exceed ten percent of the contract amount.”

1. The plain reading of Para 26(A), 26(B) of the General Directions shows that the same relates to the deposit of performance security/additional performance security by the “lowest bidder”, whereas Rule 56 of the Rules relate to the furnishing of performance guarantee by the “successful bidder”. Under Para 26(A) of the General Directions, in case the total tender amount is less than 5% of the approved estimated amount, then the lowest bidder will have to deposit additional performance security from the scheduled bank ranging from 5% to 10% (however, in some of the General Directions, the upper limit prescribed in Para 26(A) is more than 10%). Under Para 26(B) of the General Directions, should the lowest evaluated bidder refused or failed for any reason to furnishing the performance security/additional performance security within specified time, it should constitute a just cause for rejection of his tender and in the event of such rejection, the entire earnest money shall be forfeited. Similarly under Para 15, if the lowest bidder, who was required to furnish performance security or additional performance security to enter into contract, enters into contract and commences work but fails to furnish performance security, this will be a just cause to reject the tender and annulment of award.

2. The above Paras 26(A), 26(B) and 15 of the General Directions show that these are for furnishing of performance security or additional performance security by the lowest bidder in case the total tender amount is less than 5% of the estimated amount. However, once the lowest evaluated bid is accepted and lowest bidder becomes successful bidder only then Rule 56 of the Rules shall come into play. The terms “performance security” and “additional performance security” are used interchangeably in Paras 26(A), 26(B) and 15 of the General Directions. The test is not whether the demand is of performance security or additional performance security rather the test is that whether demand is from the lowest bidder or from a successful bidder. If the demand is from the lowest bidder, then whether it is performance security or additional performance security, the Rule 56 of the Rules shall not apply, however, if the demand is from the successful bidder, then Rule 56 of the Rules will apply regardless of the nomenclature used for the security.

14. Rule 56 of the Rules is not an over-riding provision rather it is subject to bidding documents. Under Rule 56 where it is needed and clearly expressed in bidding documents, the procuring agency shall require the successful bidder to furnish performance guarantee, however the successful bidder should not be required to furnish performance guarantee exceeding 10% of the contract amount. The perusal of Para 30 of the General Directions shows that same is relevant to Rule 56 of the Rules and provided that successful tenderer shall furnish the performance security 5% of the contract amount.

15. The Rule 56 of the Rules is not applicable to performance guarantees or additional performance guarantees from the lowest evaluated bidders for the difference of tender amount or the estimated amount rather this rule is only applicable to successful bidders who have been awarded procurement contract and the contract amount is also determined. This interpretation of Rule 56 of the Rules is explicit not only from the fact that this rule is mentioned in Chapter VIII of the Rules, (which deals with “Acceptance of bids and Award of Contracts)” but also from the words “successful bidder” and “contract amount” mentioned in Rule 56 of the Rules. Plain, natural and ordinary reading of Rule 56 of the Rules show that said rules will only be applicable when the lowest bidder will become successful bidder and the contract amount will be determined.

1. It is elementary rule of construction that the Court called upon to interpret any provision and statute needs to ascertain the intention of law makers from the words used which may receive their literal, natural and ordinary meaning. This has been known as rule of litera legis. It is also settled principle of interpretation that where the words of statute are clear and unambiguous, the provision should be given its plain and normal meaning without adding or rejecting any words. Departure from the literal rule by making structural changes or substituted words in a clear statutory provision under the guise of interpretation will pose a great risk as the changes may not be what the legislature intended or desired. Following the above golden principles of interpretation of statute, there is no manner of doubt that by plain reading, Rule 56 of the Rules is not applicable to performance security or additional performance security under Para 26(A), 26(B) or 15 of the General Directions. In this regard, reliance is placed on Waris Ali and 5 others vs. The State (2017 SCMR 1572), Baz Muhammad Kakar and others vs. Federation of Pakistan through Ministry of Law and Justice and others (PLD 2012 SC 923), Syed Mukhtar Hussain Shah vs. Mst. Saba Imtiaz and others (PLD 2011 SC 260), Pakistan Sugar Mills Association (PSMA), Islamabad through Secretary General and authorized Attorney and 10 others vs. Federation of Pakistan through Secretary Cabinet Division, Islamabad and 9 others (PLD 2021 Islamabad 55), Commissioner of Income Tax (Legal), Islamabad vs. Messrs Askari Commercial Bank Limited, Rawalpindi (2018 PTD 1089 Islamabad) and Commissioner Inland Revenue vs. Messrs Azgard Nine Ltd. (2015 PTD 1068 Lahore).

2. Learned counsel for the appellant vehemently argued that after submission of lowest bid, as appellant was required to furnish performance security, hence this will amount to acceptance of bid and consequently appellant has become successful bidder. We are afraid that this plea is misconceived. It is well settled that a bid made at the auction is in the nature of an offer which does not mature into contract at all till its acceptance. Chapter VIII of the Rules deals with acceptance of bids and contracts. Rule 55 of the Rules, which is provided under that Chapter reads as under:-

“55. Acceptance of bids.--Subject to these rules, the bidder with the lowest evaluated bid, if not in conflict with any other law, shall be awarded the procurement contract within the original or extended bid validity period.”

From bare reading of aforesaid rule, it is obvious that the award of contract is contingent upon acceptance of bid. Mere fact that a particular party is a lowest bidder would not ipso facto entitle him for the acceptance of his bid or award of the contract. The bids given in the auctions are offers made by prospective contractors to the procuring agency and only after acceptance of those bids, the acceptance of willing offers is made and the contract between the bidders and the procuring agency is concluded. There is no concluded contract till the bid is accepted.

1. There is difference between “lowest bidder” and “successful bidder”. The successful bidder is a post acceptance of bid status of the bidder. Acceptance of bid leads to the stage where concluded contracts come into force either by signatures on the contracts or where signatures are not required by placing work orders to the bidders. However, mere lowest bid does not inevitably usher in its immediate acceptance unless the contract comes in force after examining that the bid satisfied all terms and conditions of the bidding document and not in conflict with any other law as provided in rule 55 of the Rules. It is also relevant to note that under Rule 35 of the Rules, the procuring agency may reject all bids or proposals at any time prior to the acceptance of a bid or proposal. However where a bid is accepted and procurement contract is awarded, then rights are created in favour of a successful bidder under procurement contract. In this regard reliance is placed on Messrs Bio-Labs Private Ltd. vs. Province of Punjab and others (PLD 2020 Lahore 565), Ahmad Shah vs. District Council, Sargodha through Administrator, District Council, Sargodha (2003 MLD 1108), Babu Javed Ahmad, Tehsil Nazim and 2 others vs. Abdul Hafeez (2005 YLR 1443) and Messrs Reliance Consultancy and Engineering Works Private Limited vs. Federation of Pakistan and 2 others (2010 CLC 1046 Karachi).

19. The next question is that whether Paras 26(A), 26(B) and 15 are beyond the scope of the Rules. In this regard it is noted that Para 26(A) in the General Directions was introduced through notification dated 06.04.2005 by the Finance Department. Subsequently Para 26(B) and Para 15 were also incorporated in the tender documents vide notification dated 04.09.2012. Rule 25 of the Rules define bidding documents and under Rule 25(6), until the standard bidding documents are specified under the regulations, the procuring agency may use bidding documents already in use of the procuring agency to the extent they are not inconsistent with the Rules. The said rule 25(6) shows that the General Directions including Paras 25(A), 25(B) and 15 which were already part of the bidding documents, could be applied by the procuring agency as long as they are not inconsistent with the Rules. This Court in preceding paragraphs has already noted that these paras in the General Directions are not inconsistent with Rule 56 of the Rules. The learned counsel for the appellants have also not referred to any other rule which specifically deal with performance security or additional performance security, in case the tender amount is less than the approved estimated amount and in conflict these paras.

20. It is also well settled that at the bidding stage, the tendering authorities are free to formulate any conditions of tenders unless the action of the tendering authority is found to be arbitrary, discriminatory or malicious. Once these General Directions including Paras 26(A), 26(B) and 15 are part of the bidding documents and the appellants have submitted their bids without objecting to these bidding document, the same will be binding on the appellants. While interpreting the documents, it is settled law, that when the document itself is unambiguous, then putting upon its language a speculative opinion or using surrounding circumstances in order to portray the instrument as different in nature is not permissible in law. In construing the bidding document, the words are to be taken in their literal, plain and ordinary meaning. In this regard reliance is placed on Mst. Ishrat Bano vs. Noor Hussain and 2 others (2010 YLR 2452) and Province of the Punjab through the Secretary to Government of the Punjab, Communication and Works Department and another vs. Malik Muhammad Ilyas and 2 others (1994 MLD 476).

1. There is no cavil with settled law that where the plain and ordinary meaning may lead to inconsistency with other expressions used in the document, then such plain and ordinary meaning can be modified to avoid absurdity or inconsistency. However, the plain and literal reading of Paras 26(A), 26(B), 15 and 30 of the General Directions shows that there is no absurdity or inconsistency in these paragraphs. Paras 26(A), 26(B) and 15 deal with performance security or additional performance security from the “lowest bidder” if the tender amount is less than 5% of the approved estimated amount, whereas Para 30 deals with performance security by the successful bidder @ 5% of the contract price once his bid has been accepted and the forms of agreement are sent to him.

22. Indeed Para 30 of General Directions is in pursuance to Rule 56 of the Rules, regarding performance security after the acceptance of the bid, which leaves no manner of doubt that no performance guarantee after the acceptance of the bid, can be claimed more than 10% of the “contract price” as ordained by Rule 56 of the Rules. But the additional performance security or performance security from the lowest bidder before his bid was accepted can be claimed as per General Directions circulated to the bidders. However, it is needless to observe that in case under Para 26(A) of the General Directions, the maximum additional performance security cannot be more than 10% of the difference between tender amount and estimated cost, then the procuring agencies are bound to follow the said paras in the General Directions and only in those cases where Para 26(A) in General Directions specifically provided for additional performance security more than 10%, the amount more than 10% could be demanded.

23. We have noted that in W.P. No. 16822/2021, the petitioner besides challenging the additional performance security demand has also challenged the work order dated 02.03.2021 awarded to 3rd party in the constitutional petition. We are afraid that this challenge has no substance. It is not the case of the petitioner in said petition that the bid was accepted and the contract was awarded. As said petitioner was merely the lowest bidder, the demand of additional performance security under Para 26(A) of the General Directions was justified and in case of failure, the procuring agency had the authority to reject the lowest bid and proceed for retendering. Therefore, the award of contract to 3rd party in subsequent tender is not hit by Rule 56 of the Rules or any other provision of law.

24. In view of above discussion, this ICA alongwith writ petitions mentioned in Appendix A are disposed of in following terms:

ORDER OF THE COURT.

(i) Demand of additional performance security under Para 26(A) of the General Directions is not violative of Rule 56 of the Rules.

(ii) In all those petitions/appeal, where the lowest bidder did not become successful bidder, the performance security or additional performance security under Para 26(A) of the General Directions could be demanded in terms thereof and Rule 56 of the Rules had no bearing on such performance/additional performance securities.

(iii) However, if the lower bidder acquired the status of a successful bidder, then performance security or even additional performance security shall be governed by Rule 56 of the Rules and no payment of performance security or additional performance security could be demanded beyond the limit of 10% of the “contract price” prescribed in Rule 56 of the Rules.

(iv) In case no performance security or additional performance security as per Para 26(A) of the General Directions was provided by the lowest bidder, the procuring agency was within its right to reject the bid under Paras 15 and 26(B) of the General Directions read with rule 35 of the Rules.

Appendix A

| | | | | --- | --- | --- | | Sr. No. | Case Number | Title | | 1. | W.P.No.16822/2021 | M/S Al Ahsan and Co vs. Province of Punjab etc. | | 2. | W.P.No.23960/2021 | M/S Doughal and Company (Pvt.) Ltd. etc. versus Province of Punjab etc. |

| | | | | --- | --- | --- | | 3. | W.P.No.21707/2021 | M/s. Muhammad Afzal vs. Province of Punjab etc. | | 4 | W.P.No.59098/2021 | M/s Arfa Hussain Enterprises etc. vs. Province of Punjab etc. | | 5. | W.P.No.28778/2020 | M/s Muhammad Aslam Contractors Vs Province of Punjab etc | | 6. | W.P.No.30548/2020 | M/s Muhammad Aslam Contractors Vs Province of Punjab etc. | | 7. | W.P.No.9688/2021 | M/s Allied Construction Company etc. Vs Province of Punjab etc. | | 8. | W.P.No.22588/2021 | M/s. Munawar and Brothers Vs Province of Punjab etc. | | 9. | W.P.No.3555/2021 | M/s Haroon Construction Company Vs. Province of Punjab etc. | | 10. | W.P.No.25271/2021 | M/s Ch Muhammad Sharif Khan etc. vs. Province of Punjab etc. | | 11 | W.P.No.30127/2021 | Ms Arfa Hussain Enterprises Vs Province of The Punjab etc | | 12. | W.P.No.33068/2021 | M/s Husnain Kareeman Co. etc Vs. Province of The Punjab etc. | | 13. | W.P.No.35008/2021 | M/S Pervaiz Khalid vs. Province of Punjab etc. | | 14. | W.P.No.35773/2021 | M/s Ijaz Ahmad Nadeem & Co. etc. Vs. Province of Punjab etc. | | 15. | W.P.No.37603/2021 | M/S Zain Construction Company etc. vs. Province of Punjab etc. | | 16 | W.P.No.39598/2021 | M/S Mashal Construction Company etc. vs. Province of Punjab etc. | | 17. | W.P.No.42125/2021 | M/S Manj Traders and Builders etc. vs. Province of Punjab etc. | | 18. | W.P.No.43577/2021 | M/S Farooq Ahmad Chatha etc. vs. Province of Punjab etc. | | 19. | W.P.No.46762/2021 | M/s Sheikh Iqbal Akhtar & Co., etc. vs. Province of Punjab etc. |

| | | | | --- | --- | --- | | 20. | W.P.No.51807/2021 | M/s Azeem Akbar vs. Province of Punjab etc. | | 21. | W.P.No.51992/2021 | M/s Ch. Farzand Ali & Co., etc. vs. Province of Punjab etc. | | 22. | W.P.No.53229/2021 | M/s Muhammad Islam Chaudhry etc. vs. Province of Punjab etc. | | 23. | W.P.No.55106/2021 | M/s Allied Constructions Co. etc. vs. Province of Punjab etc. |

(Y.A.) Petition disposed of

PLJ 2022 Lahore 416 [Multan Bench Multan]

Present:Muzamil Akhtar Shabir, J.

ARSHAD ALI QADRI--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, KHANEWAL and others--Respondents

W.P. No. 17958 of 2019, decided on 1.2.2021.

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

----S. 12--Constitution of Pakistan, 1973, Art. 199--Suit for specific performance--Application for summon as witnesses in rebuttal of evidence by respondent--Allowed--concurrent findings--Matter was remanded--Scope of--Direction to recording of cross-examination and producing of evidence--Name of witness was not mentioned in list of witnesses--Challenge to--Scope of--Judgment passed by ADJ whereby matter was remanded back to Trial Court shows that while setting aside impugned judgment and decree matter was remanded to Trial Court with a direction to allow cross examination of PWs-1 to 3 recorded and also allowed parties to produce evidence in rebuttal in accordance with law and decide same afresh--It cannot be concluded that allowing of application to produce said Saeed Anjum is beyond scope of remand order--Merely because name of said witness was not mentioned in list of witnesses, does not bar Courts from passing an order for summoning of witness for just decision of matter as many question have been raised relating to register of deed writer--Impugned order and judgment passed by both Courts below do not suffer from any illegality or jurisdictional defect for High Court to interfere in same in its constitutional jurisdiction, which order and judgment even otherwise being well warranted and based on sound reasoning are up-held--Petition dismissed. [P. 417] A, B & C

Malik M. Tariq Nonari, Advocate for Petitioner.

Malik Aftab Abbas Khan, Advocate for Respondents.

Date of hearing: 1.2.2021.

Order

Through this constitutional petition the petitioner has called in question order and judgment dated 14.02.2019 & 02.08.2019 respectively passed by learned Courts below whereby application filed by Respondent No. 3 to summon one Saeed Anjum as witness in rebuttal of evidence, has been concurrently allowed.

1. It is contended by learned counsel for the petitioner that in compliance of remand order dated 21.03.2014, Respondent No. 3 who was defendant in suit could only lead his evidence while appearing as defendant but not in rebuttal after the evidence of the petitioner was recorded, therefore, the impugned order permitting the respondent to produce Saeed Anjum in evidence is not justified.

3. The judgment dated 21.03.2014 passed by learned Additional District Judge whereby matter was remanded back to learned Trial Court shows that while setting aside the impugned judgment and decree dated 21.07.2011 the matter was remanded to the learned Trial Court with a direction to allow cross-examination of PWs-1 to 3 recorded on 22.07.2003 and also allowed the parties to produce evidence in rebuttal in accordance with law and decide the same afresh. Therefore, it cannot be concluded that the allowing of application to produce said Saeed Anjum is beyond the scope of remand order. Even otherwise the Court vide impugned order has permitted Respondent No. 3 to produce the aforesaid witness in evidence by observing that his production will be beneficial for just decision of the matter. Therefore, merely because the name of the said witness was not mentioned in the list of witnesses, does not bar the Courts from passing an order for summoning of witness for just decision of the matter as many question have been raised relating to register of deed writer. Consequently, it is held that the impugned order and judgment passed by both the Courts below do not suffer from any illegality or jurisdictional defect for this Court to interfere in the same in its constitutional jurisdiction, which order and judgment even otherwise being well warranted and based on sound reasoning are up-held.

1. In view of the above discussion, this petition being devoid of merits is dismissed.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 418

Present:Mrs. Ayesha a. Malik, J.

MUHAMMAD ARSHAD PARVAIZ--Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY (LDA) through Director General and 2 others--Respondents

W.P. No. 8209 of 2020, decided on 14.10.2021.

Constitution of Pakistan, 1973--

----Art. 199--Application for alternate land was dismissed--Allotment of plot of one kanal--Physical possession of 18 marla plot handed over to petitioner--Map of town planning wing of LDA--Dispute of two marla land--There is a dispute of two marla land, same is a factual dispute, which cannot be decided by High Court in constitutional jurisdiction as Petitioner himself has taken different stance before Court--Dispute must be raised before Respondent LDA for compensation of same if any, if Petitioner is entitled to same based on price that was paid by Petitioner at time of physical possession of 18 marlas 92 square feet--Petition disposed of. [Pp. 419] A & B

Ch. Babar Ali Vainse, Advocate for Petitioner.

SahibzadaMuzaffar Ali, Advocate for Respondent-LDA.

Date of hearing: 14.10.2021.

Order

Through this petition, the Petitioner has impugned order dated 30.11.2019 passed by Respondent ,No. 1, Director General, Lahore Development Authority ("LDA"), Lahore.

1. The basic case of the Petitioner is that he has been allotted Plot No. 150 measuring 1 kanal (20 marlas) in Block-J LDA Avenue -1 Housing Scheme, Lahore but he has been given a plot measuring 14.93 marlas. Learned counsel states that this is not the size of the plot that he has paid for hence alternate plot be handed over to the Petitioner. In this regard, the Petitioner was heard as per the impugned order passed by Respondent No. 1. In terms thereof, the Petitioner was allotted 1 kanal plot and he was informed videletter dated 19.11.2014 that he will be given physical possession after receiving plans from the Town Planning Wing, LDA. The Petitioner was ultimately handed over physical possession of 18 marla 92 square feet plot as verified by Town Planning Wing, LDA. Therefore, the contention of the Petitioner that he has been given a plot measuring 14.93 marlas is without basis. Learned counsel states that even otherwise, it is still two marla short and the Petitioner is entitled to the same. Learned counsel for the Respondent LDA explained that at the time when physical possession was handed over to the Petitioner and others in the same vicinity, they were informed that as per Town Planning Wing, LDA, two marlas will be adjusted based on the availability of the land. Learned counsel states that this fact was informed to the Petitioner and he has verified the same from Town Planning Wing, LDA. Therefore, he was not ignorant of this fact.

3. Heard. The basic dispute between the parties is over two marlas of land. In this regard, it is noted that the contention of the Petitioner in the writ petition is that he was handed over a plot measuring 14.93 marlas whereas today, learned counsel for the Petitioner has argued that the Petitioner was handed over the possession of 16 marlas of land. Learned counsel admitted that the Petitioner through some private party had got the land measured hence has not sure of the exact deficiency. The record of the Respondent LDA shows that the Petitioner was handed over physical possession of 18 marla 92 square feet land, which is in accordance with the map of Town Planning Wing, LDA and the Petitioner verified the same from LDA that two marlas had to be adjusted based on the availability of the land. Given the same there is no grievance made out before this Court. If at all, there is a dispute of two marla land, the same is a factual dispute, which cannot be decided by this Court in constitutional jurisdiction as the Petitioner himself has taken different stance before the Court. Furthermore, the dispute must be raised before the Respondent LDA for compensation of the same if any, if the Petitioner is entitled to the same based on the price that was paid by the Petitioner at the time of physical possession of 18 marlas 92 square feet.

1. Disposed of accordingly.

(Y.A.) Petition disposed of

PLJ 2022 Lahore 420 [Lahore High Court Bahawalpur Bench]

Present:Muhammad Amjad Rafiq, J.

Dr. MUHAMMAD JEHANGIR AKBAR--Petitioners

versus

STATE, etc.--Respondents

W.P. No. 4658 of 2021-BWP, decided on 23.9.2021.

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

----S. 200--Filing of private complaint--Dismissal of complaint--Dismissal of criminal revision--Recording of statement of accused persons--Objection regarding recording of statements of respondents--After receipt of complaint statement of complainant was recoded on oath--No procedural illegality or irregularity has been committed by Magistrate in issuing notices to respondents, recording their statements at cursory stage and then satisfying its conscience about truth or falsehood of complaint--Petitioner was booked in an FIR No. 540/2020 under section 25-D of Telegraph Act registered at police station Shah Rukn-i-Alam, Multan and as a matter of fact it was episode of his arrest which was transformed into his abduction by petitioner either for himself or for his family members--Inquiring Court has rightly passed impugned order--Consequently, I see no illegality in impugned order which could warrant interference by High Courts--Petition dismissed.

[Pp. 422 & 423] A, B, C & D

PLD 1972 Lahore 185, 1985 Cr.J 1309 & AIR 1935 Lah. 14 ref.

Malik Saeed Ijaz, Advocate.

Mr. Jam Muhammad Afzal Gasoora, Assistant Advocate General.

Mr. Zafar Iqbal Sheikh, Advocate for Respondent No. 2.

Date of hearing: 23.9.2021.

Order

Briefly the facts of the case relevant for the decision of instant writ petition are that Dr. Muhammad Jehangir petitioner filed a private complaint against the respondents, wherein, after giving background of some previous litigation, the precise allegation was that on 19.10.2020 at about 9/10.00 pm. He (the petitioner/complainant) along with Umar Daraz, Malik Mumtaz Hussain and Haji Muhammad Afzal came out of the house and when reached the shop of Pir Gi, accused (Respondents No. 1 to 3 and 5 of the complaint) who were standing there caught hold of him, tortured him, accused/Respondent No. 1 from petitioner's pocket took, out Rs. 17500/-, one mobile SI Pro VIVO and one signed cheque No. 00016986 of Askari Bank and by keeping him in unlawful custody kept him roaming in official vehicle ڈالاand then accused/Respondent No. 1 made a call to accused/ Respondent No. 4 and on his asking the police of police station Shah Rukn-e-Alam came there about three hours later and told that a case had been registered against the petitioner. The petitioner was taken to police station Shah Rukn-e-Alam and was confined there. It was further alleged that accused/respondents were disturbing his family life and were harassing him by converting family affairs into criminal cases.

1. On receipt of complaint the learned trial Magistrate, Lodhran after inquiry (recording statements of accused/Respondents No. 1 to 3) dismissed the complaint vide order dated 13.03.2021. The said order was challenged by the petitioner through a criminal revision, which too was dismissed by learned Additional Sessions Judge vide order dated 08.04.2021, hence, the instant writ petition.

2. The learned counsel for the petitioner while attacking the impugned orders on legal premises argued that the inquiry Court at the time of recording cursory evidence summoned the accused/ respondents, recorded their statements and then formed the opinion in the light of material that no offence was committed, therefore, declined to issue the process. The contention of learned counsel for the petitioner is that such practice is alien to criminal proceedings as required under section 202 Cr.P.C, which does not ordain participation of the accused at preliminary stage. The learned counsel further added that otherwise, sufficient material was available with the complainant/ petitioner to connect the respondents with the commission of the crime, but the learned inquiring Court acted in haste in dismissing the complaint at initial stage without evening properly summoning the accused/respondents.

3. On the other hand, learned counsel for the respondents while referring the case "Anwar Ali Khan and others versus Wahid Bux and others” (1991 SCMR 1608) and “Muhammad Panjal versus Ghulam Shabir Jat, etc (NLR 2004 Criminal 224) opposed the above submissions and defended the impugned orders by submitting that participation of accused/respondents is not an illegality, rather an assistance to the Court to form an opinion before issuing the process, and such practice is not illegal in any manner.

4. Heard. Record perused.

6. So far as legal objection of learned counsel for the petitioner with regard to recording of statements of the respondents at cursory stage is concerned, the language of Section 202 Cr.P.C. by itself is so clear that no ambiguity is left to say that the Court before whom a complaint of an offence has been made or sent to him under section 190 sub-section (3), or transferred to it under Section 191 or 192, may, if it thinks fit, for reason to be recoded postpone the issue of process for compelling the attendance of the person complained against, and either enquire into the case itself or direct any inquiry or investigation to be made by any Justice of the Peace or by a police officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint. The only pre-condition which has been imposed before passing an order under sub-section (1) of Section 202 Cr.P.C. is examination of the complainant on oath under Section 200 Cr.P.C. and in this case the available record shows that after receipt of complaint the statement of the complainant was recoded on oath on 14.01.2021 i.e. before the impugned order dated 13.03.2021. In the case "Anwar Ali Khan and others versus Wahid Bux and ethers" (1991 SCMR 1608) the Hon'ble Supreme Court of Pakistan after detailed discussion with reference to Section 202 and 203 Cr.P.C, pinned down the legal proposition by holding that:

"We are inclined to hold that in a preliminary inquiry under section 202, Cr.P.C. it is not contemplated that a notice be issued to the accused person before issuing a process, as was pointed out by A.S, Faruqui, J. but at the same time, if the Court holding such an inquiry issues such a notice to the accused person before issuing process, if would not vitiate the inquiry. We are also of the view that there is a marked distinction as to the approach of appraisal of evidence at the time of holding of a preliminary inquiry and at the regular hearing of a criminal case. At the former stage, the Magistrate or the Court is not expected to examine the evidence or the case minutely, whereas at the latter stage, the Magistrate or the Court is required to appraise the evidence thoroughly and to record its findings on the basis of such appraisal, and that any benefit of doubt arising out of such appraisal should be given to the accused person. "

While reiterating that it is for the Court only that while making an inquiry in terms of Section 202 Cr.P.C. it may issue notices to the accused party to join the inquiry or not, however, the accused party itself cannot claim the right of audience at pre-summoning or pre-process stage. In this respect guidance has been sought from the case

"Mst. Bashir Begum and 2 others versus Ghulam Nabi And Another" (PLD 1972 Lahore 185); "Somu alias Somasundaram and others v. The State and another" (1985 Crl.L.J. 1309) and "Abdulla Jan vs. Totigul" (AIR 1935 Pesh 14). Therefore, here in this case no procedural illegality or irregularity has been committed by the learned Magistrate in issuing notices to the accused/respondents, recording their statements at cursory stage and then satisfying its conscience about truth or falsehood of the complaint.

7. Even on merits, material/documents in abundance are available on the file to reflect that complainant/petitioner was booked in an FIR No. 540/2020 under section 25-D of the Telegraph Act registered at police station Shah Rukn-i-Aalam, Multan and as a matter of fact it was episode of his arrest in the above said case, which was transformed into his abduction or harassment by the complainant/petitioner either for himself or for his family members. There is no doubt that while assessing the truth or falsehood of a private complaint at initial stage, it was not for the said Court to have evaluated the material on the touchstone of a full-fledged trial and it had only to take a view after cursory glance at the material available before it, but at the same time, with such a background as is in the instant case, the inquiry Court of course must have been more vigilant in forming its opinion about truth or falsehood of the complaint and considering the facts and circumstances of the case, I am convinced that the inquiring Court has rightly passed the impugned order. Consequently, I see no illegality in the impugned order which could warrant interference by this Courts. The instant writ petition, therefore, is dismissed.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 423

Present:Ch. Muhammad Iqbal, J.

MUHAMMAD IQBAL etc.--Petitioners

versus

MUHAMMAD ASHRAF etc.--Respondents

C.R. No. 6583 of 2020, heard on 2.11.2021.

Malicious Prosecution--

----Recovery of damages--Acquittal due to deficient proof--Ingredients of malicious prosecution--Respondent No. 1 under law was duty bound to prove that defendants acted without any reasonable and probable cause and defendant was actuated by malice and proceedings had interfered with plaintiffs liberty and had also affected his reputation. No ingredients of malicious prosecution had been proved by Respondent No. 1--He was acquitted only on ground that prosecution has failed to prove case against accused beyond any shadow of reasonable doubt--When an-accused is acquitted by Court on, basis of benefit of doubts or prosecution's failure to-prove its case beyond a reasonable doubt, then recovery of damages on of malicious prosecution are not available in said case--Mere acquittal of Respondent No. 1 in criminal case by extending him benefit of doubt is not sufficient by itself to establish a case for malicious prosecution--Facts and consistent law on subject has not been taken into consideration by Courts below illegally passed impugned judgments & decrees on basis of misreading and non-reading of evidence as well as against record and mis application of law which are not sustainable and liable to be set-aside--Revision petition allowed. [Pp. 428, 431 & 433] B, C, D & E

1999 SCMR 700, PLD 2020 Sindh 700, 2020 CLC 1331, 2018 MLD 1202 and 2016 SCMR 24 ref.

Ingredients for Melecious Prosecution--

----Recovery of damages--

i) That Plaintiff was prosecuted by the Defendant;

ii) That the prosecution ended in favour of the Plaintiff;

iii) That the Defendant acted without reasonable and probable cause;

iv) That the Defendant was actuated by malice (with. improbable motive and not to further the ends of justice); and

v) That the proceedings had interfered with the Plaintiffs liberty and had also affected his reputation and the Plaintiff had suffered damages. [P. 427] A

Rana Muhammad Akmal Khan, Advocate for Petitioners.

Ms. Naila Mushtaq Dhoon and Mr. Muhammad Mushtaq Ahmad Dhoon, Advocates for Respondents.

Date of hearing: 2.11.2021.

Judgment

Through this civil revision, the petitioners have challenged the legality of judgment & decree dated 23.02.2016 passed by the learned Civil Judge, Sialkot who decreed the suit for Recovery of damages on the basis of malicious prosecution to the tune of Rs. 50,00,000/- filed by Respondent No. 1 whereas to the extent of Defendants No. 4 to 8 suit was dismissed and judgment & decree dated 16.09.2019 passed by the learned Addl. District Judge, Sialkot who dismissed the appeal of the petitioners.

1. Brief facts of the case are that Respondent No. 1/plaintiff filed suit for recovery of Rs. 1,01,50,000/- on the basis of malicious prosecution against the petitioners/defendants contending therein that he was retired clerk in Pakistan Army and was residing in Rawalpindi, Muhammad Boota, the real brother of defendant No. 1 was murdered on the mid-night of 28/29-06-2000. Defendant No. 1 got registered an FIR No. 440/2000 under section 34, 449, 460, 449, 302 PPC at Police Station, Uggoki against unknown persons. Through a supplementary statement dated 07.07.2000, defendants nominated Respondent No. 1/plaintiff as well as Hafiz Ghulam Hussain, Amjad Hussain and Muhammad Asghar as accused persons in the said criminal case. The Respondent No. 1/plaintiff was being army personnel could not be arrested and was declared proclaimed offender. Later on, Respondent No. 1 was arrested and after trial he was acquitted by the learned Addl. Sessions Judge vide judgment dated 11.10.2008, Respondent No. 1/plaintiff filed present suit for recovery (Rs. 1,01,50,000/-) on the basis of malicious prosecution against the petitioners contending therein that he was involved falsely and collusively in the said criminal case. Thus he suffered mental & physical agony injury to reputation, etc. and is entitled to receive damages as prayed for.

Petitioners appeared and filed contesting written statement by taking all the factual and legal pleas. The learned trial Court framed relevant issues, recorded pro and contra evidence of the parties and decree the suit on 23.02.2016 to the tune of Rs. 50,00,000/- against the petitioners whereas to the extent of defendants No. 4 to 8 suit was dismissed. The appeal of the petitioners was also dismissed by the learned appellate Court vide order dated 16.09.2019. Hence, this civil revision.

1. I have heard the learned counsels for the parties at some length and gone through the record with their able assistance.

2. The main controversy involves in this case revolves upon Issue Nos. 4 to 8 which are reproduced as under:-

"4. Whether the alleged prosecution ended in favour of the plaintiff? OPP

1. Whether the alleged prosecution was without reasonable and probable cause? OPP

2. Whether the alleged prosecution was initiated against the plaintiff oh the: basis of malice? OPP

3. Whether the alleged prosecution caused mental, physical reputation and financial loss to the plaintiff to the tune of Rs. 1,01,50000/-? OPP

4. Whether-the plaintiff is entitled to damage for malicious prosecution as prayed for? OPP"

Onus probandi of the above issues was placed upon the shoulders of Respondent No. 1/plaintiff. He as a sole witness appeared as FW-1 and stated that he was employee of Pakistan Army and got retirement. That brother of Muhammad Iqbal. namely Muhammad Boota was murdered oh 28/29-06-2000 and Ghulam Rasool was injured in the occurrence Muhammad Iqbal got registered FIR against him (plaintiff) and Hafiz Ghulam Rasool, Amjad Hussain, Asghar were also nominated on 10.10.2000. Hafiz Ghulam Rasool, Amjad Hussain and Asghar were acquitted. The plaintiff being employee of the Pakistan Army could not be arrested and was declared proclaimed offender. Later on, he was arrested, faced the trial and was also acquitted. That he has three daughters and one son but none of his children got education due to his incarceration. He became patient of Asthama, Had-he not been involved in the criminal case then he would have continued his job or obtained any alternative job in Civil Department, He bears the expenses/expenditures of the Advocate. He was acquitted in the said case due to deficient prove of his involvement in offence of murder of brother of the defendant. Due to this criminal case, he lost his reputation in the society. He spent huge amount during his being behind the bars and also suffered loss of reputation and faced mental and physical agony etc. In cross examination he deposed as under:

میں اپنے علاوہ کوئی دیگر گواہ پیش نہ کرنا چاہتاہوں۔

Further deposed that he was promoted as Havaldar in the year 1992 and got retirement in the year 2001. He received all the dues from the Government. He himself got retirement. He came to know in October, 2000 that he is nominated in the criminal case. Further deposed as under:

علم ہونے سے گرفتاری تک میں نے نہ پولیس سے رابطہ کیا اور نہ عدالت سے میں اس دوران پولیس سے چھپتا تھا میں آرمی میں ملازمت کرتا تھا ۔ جب میں گرفتار ہوا تب آرمی سے ریٹائر ہو چکا تھا ۔ میں ریٹائر منٹ کے بعد سول ملازمت کر تارہا ہوں ۔ جب میں گر فتار ہوا تب بھی میں سول ملازمت کر تا تھا ۔ میرے علم میں تھا مجھے مقدمہ میں نامزد کر دیا گیا ہے ۔ لیکن پھربھی میں نے کسی سے کوئی رابطہ نہ کیا ۔ میں جب اشتہاری ہوا تھا آرمی میں تھا ۔۔۔۔۔۔ یہ درست ہے کہ میرے بری ہونے میں تاخیر میری وجہ سے ہوئی ہے ۔ دوران ریمانڈ پولیس نے میرے ساتھ بدتمیزی کی تھی ۔ جو میں نے اپنے عرضی دعوی میں لکھی ہے ۔ میں نے بد سلوکی کی شکایت کسی آفیسر سے نہ کی تھی کیونکہ میری کوئی سنتا ہی نہ تھا ۔ اس بد سلوکی کی شکایت ٹرائل کورٹ یاکسی مجسٹریٹ کورٹ میں تحریری نہ کی تھی ۔ میں جو دوران قید بیمار ہوا میں نے ٹرائل کورٹ کو کبھی کوئی درخواست نہ دی ۔ میں نے جیل میں جیل کے ڈاکٹر سے معائنہ کروایا تھا جیل میں معائنہ تحریری نہ ہو تا ہے ۔ میں نے مستقل دمہ کے مریض کے ثبوت کے طور پر کوئی دستاویز لف نہ کی ہے ۔۔۔۔ میں نے پولیس کی جانب سے جانبداری کرنے کی تفتیش تبدیل کروانے کے لیے کسی Forum میں درخواست نہ دی تھی ۔ کیونکہ میری کوئی سنتا نہ تھا ۔ میں نے تفتیش تبدیل کروانے کے لیے کسی عدالت سے رجوع بھی نہ کیا ۔ فوجداری مقدمہ کے دوران شہادت میرے خلاف پیش ہوئی تھی ۔۔۔۔ یہ درست ہے کہ پولیس نے مجھے گہنگار قرار دے کر عدالت میں تیتمہ چلان پیش کیا ۔ ۔۔۔ میرا ذہنی توازن بھی درست ہے ۔ میں اپنی پنشن خود وصول کر تاہوں ۔ میں اپنے گھر کے کام کاج اچھے طویقے سے کر رہا ہوں ۔ اس وقت میری عمر 55 سال کے قریب ہے ۔ میں عمر کے حساب سے میری صحت اللہ کے شکر سے ٹھیک ہے ۔ میری بیماری وغیرہ کا علاجC. M. Hمیں فری ہو تا ہے ۔ محمد اقبال نے قتل کی اطلاع پولیس کو دی تھی ۔ یہ درست ہے کہ قتل کے مقدمہ کی تفتیش کر کے اس میں بے گناہ کر نا یا گنہگار کر نا پولیس کا کام ہے ۔۔۔۔ اس مقدمہ کی وجہ سے مجھے Dismiss from service نہ کیا گیا تھا ۔ میں نے ریٹائر منٹ خود لی تھی ۔

The respondent/plaintiff did not produce any other independent witness in support of his assertions.

5. The essentials requirements in the suit for damages for malicious prosecution are as under:

i) That Plaintiff was prosecuted by the Defendant;

ii) That the prosecution ended in favour of the Plaintiff;

iii) That the Defendant acted without reasonable and probable cause;

iv) That the Defendant was actuated by malice (with. improbable motive and not to further the ends of justice); and

v) That the proceedings had interfered with the Plaintiffs liberty and had also affected his reputation and the Plaintiff had suffered damages.

Admittedly brother of the petitioner/defendant was murdered, as such an offence was occurred. Thus just and probable cause was in existence to lodge a criminal case. It was mandatory for the plaintiff to dislodge the above through corroborative and affirmative evidence but the Respondent No. 1/plaintiff failed to prove any non-existence of reasonable and probable cause. He admitted himself voluntarily getting retirement from the Pakistan Army. He has neither produced any independent witness nor any documentary evidence to prove his stance. Respondent No. 1/plaintiff under the law was duty bound to prove that the defendants acted without any reasonable and probable cause and the defendant was actuated by malice and the proceedings had interfered with the plaintiffs liberty and had also affected his reputation. No ingredients of malicious prosecution had been proved by Respondent No. 1/plaintiff. Respondent No. 1 was acquitted only on the ground that prosecution has failed to prove the case against the accused beyond any shadow of reasonable doubt. This controversy has been resolved by the Hon'ble Supreme Court of Pakistan in a case titled as Subedar (Retd.) Fazale Rahim vs. Rab Nawaz (1999 SCMR 700), the Hon'ble supreme Court of Pakistan has observed as under:

"7. There appears to be no controversy in regard to the different elements which constitute the test for awarding decree to the plaintiff in a suit for malicious prosecution. As was noticed by this Court in Muhammad Akram v. Mst. Farman Bi (PLD 1990 SC 28) the following factors must be established by the plaintiff before such a decree can be awarded to him.

(i) That the plaintiff was prosecuted by the defendant;

(ii) That the prosecution ended in plaintiffs favour;

(iii) That the defendant acted without reasonable and probable cause;

(iv) That the defendant was actuated by malice;

(v) That the proceedings had interfered with plaintiffs liberty and had also affected her reputation; and finally

(vi) That the plaintiff had suffered damage."

Reliance is also placed on the case titled as Abdul Majeed Khan v. Tawseen Abdul Haleem & others (PLD 2012 SC 80) wherein it is held as under:

"21. It is well-known that a person who is maliciously prosecuted on a criminal charge can sue in tort for damages if the prosecution ends in his acquittal and the prosecution was malicious in the sense that it was without any reasonable cause. To ground a claim for malicious prosecution a plaintiff must prove (1) that the law was set in motion against him on a criminal charge; (2) that the prosecution was determined in his favour; (3) that it was without reasonable and proper cause; and (4) that it was malicious."

In another case titled as Muhammad Saeed vs. Jan Muhammad (2006 YLR 2201), this Court holds as under:

"5. In a suit for recovery of damages and compensation on the basis of malicious prosecution the plaintiff is under legal obligation to establish the following ingredients:

(a) He was prosecuted by the defendant in criminal charge.

(b) The prosecution has ended in his favour.

(c) The prosecution was malicious.

(d) The prosecution was without reasonable and probable cause.

(e) The proceedings had interfere with the plaintiffs liberty and had affected/ruined: the reputation and he has to suffer the mental and financial agony."

Reliance is also placed on the case titled as Ishtiaq Hussain Shah vs. Mushtaq Hussain Shah & Another (2019 MLD 314), it is held as under:

"9. ... The first two pf these conditions are required for the issue of maintainability whereas the remaining three are to be proved; furthermore, the said conditions must exist contemporaneously (rel: Muhammad Saeed, v. Jan Muhammad [2006 YLR, 2201 Lahore High Court]). These conditions are as follows:

i) That Plaintiff was prosecuted by the Defendant;

ii) That the prosecution ended in favour of the Plaintiff;

iii) That the Defendant acted without reasonable and probable cause;

iv) That the Defendant was actuated by malice (with improbable motive and not to further the ends of justice); and

v) That the proceedings had interfered with the Plaintiff s liberty and had also affected his reputation and the Plaintiff had suffered damages:"

Reliance is also placed on the case titled as Noor Ali vs. The Province of Sindh through Secretary to Govt. of Sindh, Home Department, Karachi & 3 others (PLD 2020 Sindh 700) wherein it has been held as under:

"23. .......... In order to claim damages for malicious prosecution it is well settled exposition of law that the plaintiff has to prove (i) that he was prosecuted by the defendant (ii) that the prosecution ended in the plaintiffs favour (iii) that the defendant acted without reasonable and probable cause and (iv) that the defendant was actuated by malice. All these elementary set of circumstances have to accumulate and if any of them is found lacking, the suit must be failed."

Further reliance is placed on the case titled as Allah Rakhio vs. Muhammad Usman & 2 others (2020 CLC 1331) wherein it is observed as under:

"6. ......... The ingredients for establishing the suit for damages on account malicious prosecution, are namely the plaintiff was prosecuted by the defendant; the prosecution ended in plaintiff s favour; the defendant acted without reasonable and probable cause; the defendant was actuated by malice; the proceedings had withheld plaintiffs liberty and had also affected his or her reputation and the plaintiff had suffered damages …..”

In another case titled as Arif Irfan vs. Sharif Peeran Ditta (2021 CLC 1008) wherein this Court held as under:

"5. ....... The first two of these conditions are required for the issue of maintainability whereas the remaining three are to be proved; furthermore, the said conditions must exist contempothneously. These conditions are as follows.

i) That Plaintiff was prosecuted by the Defendant;

ii) That the prosecution ended in favour of the Plaintiff;

iii) That the Defendant acted without reasonable and probable cause;

iv) That the Defendant was actuated by malice (with improbable motive and not to further the ends of justice); and

v) That the proceedings had interfered with the Plaintiffs, liberty and had also affected his reputation and the Plaintiff had suffered damages."

1. Moreover on the supplementary statement dated 07:07.2000 and 10.10.2001, the respondent was nominated as accused in this case and he was arrested in 2010. The other accused persons were acquitted and the plaintiff was declared as an absconder; Respondent No. 1 was acquitted on the basis of benefit of doubt. When an-accused is acquitted by the Court on the basis of benefit of doubts or prosecution's failure to-prove its case beyond a reasonable doubt, then recovery of damages on the basis of malicious prosecution are not available in the said case. Reliance is placed on the case titled as Tahirullah vs. Muhammad Rafiullah & another (2018 MLD 1202) wherein it is observed as under:

"6. .... When a criminal Court acquits an accused it passes an order by arriving at a definite conclusion that the criminal prosecution is falsely lodged and the accused is falsely' implicated or it may by extending benefit of doubt acquit an accused. In the latter case, the charge could not be considered as mala fide but fails due to some defective investigation by the police or for any other reason connected therewith"

Reliance is also placed on the case titled as Noor Ali vs. The Province of Sindh through. Secretary to Govt. ofSindh, Home Department, Karachi & 3 others (PLD 2020 Sindh 700) wherein it has been held as under:

"24. .......... When a criminal Court acquits an accused, it passes an order by arriving at a definite conclusion that the criminal prosecution is falsely lodged and the accused is falsely, implicated or it may, by exteinding benefit of doubt, acquit an accused. In the latter case, the charge could not be considered as mala fide but fails due to some defective investigation by the police or for any other reason connected therewith ........"

Reliance is placed on the case titled as Allah Rakhio vs. Muhammad Usman & 2 others (2020 CLC 1331) wherein it is observed as under:

"6. ......... Patently, there is no question of prosecution of the applicant in the subject criminal case without reasonable or probable cause; the applicant's liberty was not allegedly curtailed by keeping him in custody; no finding regarding the ease being false having been rendered, but the learned Trial Court by extending benefit of doubt on prosecution's failure to prove its case beyond a reasonable doubt, had passed the acquittal judgment; and the-particulars of the damages have also not been shown in the plaint. And thus, most of the ingredients for a suit on account of malicious prosecution are not available in the case one in hand.."

7. Mere acquittal of the Respondent No. 1/plaintiff in the criminal case by extending him benefit of doubt is not sufficient by itself to establish a case for malicious prosecution. Reliance is placed on the case titled as Subedar Retd. Fazale Rahim vs. Rab Nawaz (1999 SCMR 700), the Hon'ble supreme Court of Pakistan has observed as under:

"10.. The ratio of the said judgments, of which we approve, therefore, appears to be that, the mere fact that prosecution instituted by the defendant against the plaintiff ultimately failed, cannot expose the formerto the charge of malicious prosecution unless it is proved by the plaintiff that the prosecution was instituted without any reasonable or probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect."

Reliance is also placed on the case titled as Abdul Khaliq vs. Gul Faraz (PLD 2011 Peshawar 112) wherein it has been held as under:

"7 Mere acquittal is no ground for claiming damages for malicious prosecution. Acquittal may be for the reason of doubtful involvement of the accused and may be based on benefit of doubt. In such circumstances, no clear cut case could be made for damages…."

Reliance is also placed on the case titled as Ishtiaq Hussain Shah vs. Mushtdq Hussain Shah & Another (2019 MLD 314), it is held as under:

"19... Mere fact that a Plaintiff was prosecuted and acquitted will not suffice for the purposes of bringing an action for malicious prosecution so long as he also proves the absence of reasonable and probable cause and malice .........."

Reliance is also placed on the case titled as Noor Ali vs. The Province of Sihdh through Secretary to Govt. of Sindh, Home Department Karachi & 3 others (PLD 2020 Sindh 700) wherein it has been held as under:

"25. ....... Mere acquittal of the plaintiff in the aforesaid criminal case, by extending him benefit of doubt, is not sufficient by itself to establish a case for malicious prosecution against defendants 1 to 3..."

Reliance is also placed, on the case titled as Nawab Sher & another vs. Ismaeel (2020 MLD 14) wherein it has been held asunder:

25. ............ Mere fact that a Plaintiff was prosecuted and acquitted will not suffice for the purposes of. bringing an action for malicious prosecution so long as he also proves the absence of reasonable and probable cause and malice …."

Further reliance is placed on the case titled as Mst. Afroz Qureshi & another vs. Muhammad Ikram Siddiqui (1995 CLC735).

1. The respondent withdrew the case against the injured witness namely Ghulam Rasool. The learned trial Court dismissed the suit to the extent of police officials and the respondent did not challenge the said findings before appellate Court. The complainant/ Petitioner No. 1 lodged the FIR and during the investigation, the Investigating Officers declared the respondent as guilty of the offence and Submitted challan in the Court.

9. The aforementioned facts and consistent law on the subject has not been taken into consideration by the learned Courts below illegally passed the impugned judgments & decrees on the basis of misreading and non-reading of evidence as well as against the record and mis application of law which are not sustainable and liable to be set-aside. Reliance is placed on the case titled as Nazim-ud-Din and others v. Sheikh Zid-ul-Qamar and others (2016 SCMR 24).

1. In view of above, this Civil Revision is allowed. Judgment & decree dated 23.02.2016 passed by the learned Civil Judge, Sialkot and dated 16.09.2019 passed by the learned Addl. District Judge, Sialkot are hereby set aside and suit of Respondent No. 1 is dismissed. No order as to costs.

(Y.A.)

PLJ 2022 Lahore 433

Present:Muhammad Sajid Mehmood Sethi, J.

LAHORE DEVELOPMENT AUTHORITY (LDA) through D.G. & others--Petitioners

versus

IKRAM-UL-HAQ QURESHI--Respondent

C.R. No. 32758 of 2019, decided on 22.9.2021.

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

----Ss. 42, 54 & 55--Civil Procedure Code, 1908, S. 155--Suit for declaration, permanent & mandatory injunction--Demolishing of construction--Right to file written statement was closed--Suit was decreed--Non-framing of issues--Exercise of jurisdiction--Non-speaking judgment--Direction to--Trial Court proceeded to decide suit by simply observing that evidence in rebuttal was not available on record from petitioners' side--It is settled principle of law that no judgment could be passed without discussing evidence--Appellate Court has also not thrashed out available evidence and applied its judicial mind to controversy involved in lis--If Court fails to give its own reasons, it would be deemed that Court had acted with material irregularity and illegality and in that eventuality, decision would not be sustainable in eye of law--It is now well-settled that non-speaking judgment is to be discouraged and Court is required to give reasons while passing judgments--It must supply adequate reasons for conclusion arrived at and should reflect application of judicious mind by Judge, and not to be mechanical or non-speaking--Revision petition allowed. [PP. 435 & 436] A, B & C

2007 MLD 1732, 2007 YLR 2220 & 2015 CLC 603 ref.

Sahibzada Muzaffar Ali, Advocate/Legal Advisor for Petitioners.

M/s. Rana Intezar and Arslan Yousaf, Advocates for Respondent.

Date of hearing: 22.9.2021.

Order

Through instant revision petition, petitioners have assailed judgments & decrees dated 22.05.2013 & 03.04.2018, passed by learned Civil Judge and Additional District Judge, Lahore, respectively, whereby respondent's suit for declaration along with permanent and mandatory injunction was concurrently decreed to the effect that petitioner-LDA has no concern with the suit property.

1. Brief facts of the case are that respondent filed suit for declaration along with permanent and mandatory injunction contending that he is owner-in-possession of suit property measuring 04-Kanal 16-Marla (fully described in the plaint) vide Document No. 8134, bahi No. 1, Jild No. 1818 dated 12.07.2008; that suit property does not come within the control of petitioner-LDA; and that petitioner-LDA illegally and unlawfully demolished the constructions over said property and caused heavy loss to respondent. During the course of proceedings, petitioners' right to file written statement was closed. Learned Trial Court, after recording evidence of respondent and hearing arguments, proceeded to decree the suit vide judgment & decree dated 22.05.2013 to the extent that petitioner-LDA has no concern with the suit property. Feeling aggrieved, petitioners filed appeal before learned Additional District Judge, which was dismissed vide judgment & decree dated 03.04.2018. Hence, this revision petition.

2. Learned counsel for petitioners submits that impugned judgments & decrees are absolutely illegal and without any lawful justification. He adds that although petitioners' defence was struck off by learned Trial Court, but Trial Court was under legal obligation to pass speaking judgment after taking into account the admissions of PWs during the course of cross-examination, which aspect of the matter has been overlooked by learned lower Appellate Court while passing impugned judgment dated 03.04.2018, thus, same is absolutely non-speaking within the contemplation of Section 24-A of the General Clauses Act, 1897. In the end, he submits that impugned appellate judgment & decree is liable to be set aside.

3. Conversely, learned counsel for respondent defends the impugned decisions.

4. Arguments heard. Available record perused.

6. Perusal of record reveals that right to file written statement of defendant/LDA was closed in this case, therefore, learned Trial Court did not frame issues and after recording ex parte evidence suit was decided. I have gone through ex parte judgment and decree of learned trial Court, wherein learned Court although noted names of PWs and documentary evidence, however, did not bother to discuss the entire evidence, especially statement of PW-1, whose depositions/ admissions in cross-examination might be relevant to arrive at a just conclusion. The relevant portion of the statement of PW-1 is reproduced hereunder:-

7. Learned Trial Court proceeded to decide the suit by simply observing that evidence in rebuttal was not available on record from petitioners' side. It is settled principle of law that no judgment could be passed without discussing the evidence. Learned Appellate Court has also not thrashed out the available evidence and applied its judicial mind to the controversy involved in the lis. Needless to say that a judgment must discuss and cover all substantial points involved in the case and should also reflect that the Court has scanned and examined the material available on record minutely as well as evidence adduced by the parties but such exercise was not undertaken by learned Courts below, hence, impugned judgments and decrees are unsustainable in the eye of law. Reference can be made to (Lt.-Col.Retd.) Ashfaq Ahmed v. Altaf Ahmed Gujjar and 6 others (2017 YLR Note 435) and Khalid Mehmood v. Naseem Akhtar and others (2019 MLD 820).

8. Learned Appellate Court has also not properly exercised the jurisdiction vested in it as whole case gets reopen in appeal and learned Appellate Court was obliged to give its own reasons by discussing the facts and the evidence on record for pronouncing a judgment and if the Court fails to give its own reasons, it would be deemed that the Court had acted with material irregularity and illegality and in that eventuality, the decision would not be sustainable in the eye of law. Reference can be made to Mst. Sabahat Idrees and another v. Mst. Clare Benedicta Conville and 4 others (2007 MLD 1732), Akhtar Hussain v. Muhammad Aslam (2007 YLR 2220) and Gul Zaman v. Muhammad Usman and 7 others (2015 CLC 603).

9. It is now well-settled that non-speaking judgment/order is to be discouraged and Court/Judge is required to give reasons while passing judgments/orders. It must supply adequate reasons for the conclusion arrived at and should reflect application of judicious mind by the Judge, and not to be mechanical or non-speaking. Reliance, in this regard, can be placed upon Province of Sindh through Secretary Education, Government of Sindh, Karachi and 3 others v. Miss Saima Bano and others (2003 SCMR 1126), Muhammad Farooq Shah v. Shakirullah (2006 SCMR 1657), Abdul Majeed Zafar and others v. Governor of the Punjab through Chief Secretary and others (2007 SCMR 330), Umar Din through L.Rs. v. Mst. Shakeela Bibi and others (2009 SCMR 29), Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others (2010 SCMR 511), Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid (2011 SCMR 1) and Messrs MFMY Industries Ltd. and others v. Federation of Pakistan through Ministry of Commerce and others (2015 SCMR 1550).

1. In view of the above, instant revision petition is allowed in the matter that impugned appellate judgment & decree dated 03.04.2018 is set aside. Consequently, petitioners' appeal shall be deemed to be pending before learned Appellate Court to decide the same afresh, strictly in accordance with law, through a well-reasoned speaking judgment, after affording opportunity of hearing to learned

counsel for the parties. The parties are directed to appear before learned Appellate Court on 04.10.2021, who shall decide the appeal within next thirty days under intimation to this Court through Deputy Registrar (Judicial).

(J.K.) Petition allowed

PLJ 2022 Lahore 437 [Multan Bench, Multan]

Present:Sultan Tanvir Ahmad, J.

Mst. SHAHNAZ PARVEEN--Petitioner

versus

Mst. ASMA KALSOOM & 20 others--Respondents

C.R. No. 113 of 2018 & C.R. No. 1674 of 2017, decided on 13.9.2021.

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

----S. 42--Suit for declaration--Decreed--Appeal Filing of application for impleadment as party during pendency of appeal--Accepted--Matter was remanded--Producing of documents at appeal stage by respondent--Determination of documents--Challenge to--Admissibility of documents cannot be determined without giving chance to parties to exhibit same and or chance to produce makers and witnesses of documents--Any ruling as to authenticity of documents without proper examination can result into miscarriage of justice and at same time shall prejudice trial and/or appeals-- Order of remand by Appellate Court is simply a matter sent to trial Court for re-examination and this order is not final determination of rights of parties--Discretion exercise by Appellate Court is neither unwarranted nor unjust in circumstances--Counsel of petitioner has failed to make out any case of material irregularity or illegality, requiring interference in revisional jurisdiction--Revision petition dismissed. [Pp. 439 & 441] A, C & D

PLD 1962 SC 291 ref.

Power of Court--

----Court is empowered, at all stages of proceedings, to add any party or parties whose presence before Court is necessary to adjudicate upon real matter in dispute or when presence of parties is necessary to enable Court to effectually and completely adjudicate upon matter.

[P. 439] B

Malik Muhammad Tariq Nonari, Advocate for Petitioner (in Revision Petition No. 113-2018).

Mr. Iqbal Hussain Jafri, Advocate for Respondents.

Mr. Iqbal Hussain Jafri, Advocate for Petitioner (in Revision Petition No. 1674-2017).

Malik Muhammad Tariq Nonari, Advocate for Respondents.

Date of hearing: 13.9.2021.

Judgment

Through this single judgment, the captioned revision petitions being outcome of same order, alongwith all the civil miscellaneous applications, shall be decided together.

1. The present revision petitions are arising out of the consolidated order dated 23.10.2017 passed by learned Additional District Judge, Khanewal in civil appeals.

2. The facts, necessary for the decision of these civil revisions, are that Mst. Shahnaz Parveen (the 'Petitioner') obtained a judgment and decree dated 22.02.2016 in civil suits No. 59 of 1997, whereby she was declared as lawful daughter of Hussain Ahmad Khan and Mst.Khursheed Jahan and Mutation No. 183 dated 19.01.1972 was cancelled. The Petitioner was held entitled to inherit the estate of her parents alongwith sisters namely Mst. Munawar Jahan and Mst. Raees Jahan and brother Sarwar Ali Khan. Appeals were filed by unsatisfied defendants.

3. Mst. Asma Kalsoom (the 'Respondent No. 1') filed applications under Order 1, Rule 10 of the Code of Civil Procedure Act, 1908 in the referred appeals. Learned Additional District Judge, Khanewal on 23.10.2017 while accepting the applications, ordered to implead her as party in the suits as defendants. The entire matter was remanded to the learned trial Court with the direction to obtain the written statement of Respondent No. 1, frame proper issues and to decide the matter after recording evidence, if any produced. Said order has been challenged by way of present revision petitions.

4. Malik Muhammad Tariq Nonari, learned counsel for the Petitioner, while arguing the case submitted that the documents relied by the learned Appellate Court are fake and forged; that Madrasah/School certificate is inadmissible as the certificate produced contains a stamp which say "copy to copy is not admissible in Court" and further contended that the relevant school has refused to recognized the document; that similarly Marriage Certificate issued by Government of Punjab having entry dated 06.04.2016 is bogus; that Family Certificate has been ignored by the learned Appellate Court. Learned counsel for the Petitioner has argued that suit titled "Mst. Kalsoom v. Manager NADRA" was filed on 16.06.2016 for correction of the name of father which was dismissed, likewise, some other suits for correction of the names were also dismissed. It has been further argued that the order of remand by the learned Appellate Court is illegal and the learned Appellate Court should have obtained the evidence itself instead of making the order of remand.

5. Conversely, Mr. Iqbal Hussain Jafri, learned counsel for the Respondents, has opposed this revision petition and submitted that the documents produced with this revision were never produced before the learned Appellate Court and the same were obtained after the decision of remand by influencing the authorized person.

6. I have heard the arguments and with the able assistance of the learned counsel for the parties record is perused.

7. Respondent No. 1 at the appeal stage produced the certificate, which shows her name as Mst. Asma Kalsoom, daughter of Muhammad Sarwar Ali Khan. Her Marriage Certificate with one Malik Irshad Hussain, which was issued on 06.04.2016, is reflecting the same. Divorce Deed dated 30.06.1998 is produced before learned Appellate Court, whereby Muhammad Sarwar Ali Khan has allegedly divorced the mother (Mst. Khalida Parveen) of Respondent No. 1. Though, the learned counsel for petitioner has countered these documents by placing on record certificate issued by the school and a marriage certificate dated 27.05.2016 which contains name of one Abdullah in column of the father's name and other documents have also been relied upon, which contradict the stance taken by the Respondent No. 1.

9. The admissibility of aforementioned documents cannot be determined without giving chance to the parties to exhibit the same and/or the chance to produce the makers and witnesses of these documents. Any ruling as to the authenticity of these documents without proper examination can result into miscarriage of justice and at the same time shall prejudice the trial and/or appeals.

10. It is settled law that the Court is empowered, at all stages of the proceedings, to add any party or parties whose presence before the Court is necessary to adjudicate upon the real matter in dispute or when presence of the parties is necessary to enable the Court to effectually and completely adjudicate upon the matter. The person, who is claiming to own share in the suit for administration or inheritance, certainly falls in the category of persons, who are likely to be adversely affected by the adjudication.

1. It will be beneficial to reproduce the relevant part of the judgment of the Honourable Supreme Court in case titled "Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others" (PLD 1962 Supreme Court 291):

".... According to Order I, rule 10, of the Civil Procedure Code any persons whose presence is "necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the suit" may be added as a party to the suit. There should be no objection to a plaintiff joining in an administration suit all those who claim to be entitled to a share in the property of the deceased and whose claim he wants to be adjudicated upon. To refuse the plaintiff to implead such persons will lead to an almost intolerable situation. Suppose there are ten claimants to an estate of the deceased and the plaintiff who sues for administration admits the claim of only one of them. If he is allowed to implead only the one whose claim he admits the decree passed in the administration suit distributing the estate may be nullified by one of the remaining claimants filing a suit and serving a declaration that he is entitled to a share in the estate of the deceased. The heir who has already got a decree in the administration suit will, if he still desires distribution of the estate, have to file a second suit for administration impleading also the heir who has secured a declaration, but the decree in this second suit too may be nullified by another claimant filing a suit and getting a declaration that he is entitled to a share in the estate of the deceased. It seems clear therefore that an acceptance of the contention of learned counsel for the appellant may lead to a hopeless multiplicity of suits. Great stress is laid by learned counsel on the fact that the plaintiff will by an administration suit be getting possession from persons who are in fact only trespassers and this is outside the scope of an administration suit. But the plaintiff will be getting possession only from persons who claim to be entitled to a share in the property of the deceased and who claim no independent right in themselves. While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own right and adversely to the deceased there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is

negatived. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit and in fact learned counsel for the appellant does not contended to the contrary his plea being that a defendant in an administration suit can raise a question as to whether the plaintiff or another defendant is entitled to a share but that the plaintiff cannot raise such a plea as to a defendant. We see no good reason for this distinction. "

(Emphasis supplied)

12. Furthermore, order of remand by the learned Appellate Court is simply a matter sent to the learned trial Court for re-examination and this order is not final determination of rights of the parties. I am of the considered view that discretion exercise by the learned Appellate Court is neither unwarranted nor unjust in the circumstances. It cannot be said that while passing order of remand to re-examine the matter in the light of fresh facts, documents and parties, learned appellate Court has acted arbitrarily or without jurisdiction.

13. Learned Counsel of the petitioner has failed to make out any case of material irregularity or illegality, requiring interference in the revisional jurisdiction. The instant revision petition is, therefore, dismissed, with no order as to costs.

1. For reasons recorded above, the Revision Petition No. 1674 of 2017 having no substance is also dismissed.

2. C.M. No. 2970-C of 2018 in Civil Revision No. 1674 of 2017 for impleading Applicants as necessary party is disposed of, as the same can be filed before the learned Court, where the trial is pending, if permissible by law.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 441

Present: Shams Mehmood Mirza, J.

PUNJAB HEALTHCARE COMMISSION--Petitioner

versus

DISTRICT & SESSIONS JUDGE FAISALABAD etc.--Respondents

W.P. No. 61047 of 2019, decided on 26.1.2021.

Punjab Healthcare Commission Act, 2010 (XVI of 2010)--

----Ss. 4, 30 & 31--Constitution of Pakistan, 1973, Art. 199--Inspection of medical store--Medical store was sealed--Issuance of notice--Imposing of fine--Appeal--During pendency of appeal fine was disposited without protest--Appeal allowed and fine was reduced--Gravity of offence--Challenge to--Respondent after imposition of fine by Punjab Healthcare Commission without any protest deposited same and as such he had no right to challenge said order--District Judge could not reduce fine by stating that gravity of offence and strength of business being operated by Respondent No. 2 so warranted--District Judge did not enter into any meaningful discussion in impugned order for reducing fine--Petition allowed.

[P. 443] A & B

Ch. Muhammad Umer, Advocate for Petitioner

Mr. Azam Jan Muhammad, Advocate for Respondent.

Date of hearing: 26.1.2021.

Order

This writ petition calls into question order dated 30.04.2019 passed by the District Judge, Faisalabad rendered in an appeal filed under section 30 and 31 of the Punjab Healthcare Commission Act, 2010 by Respondent No. 2.

1. The facts of the case in brief are' that Respondent No. 2 was running a medical store which was inspected by the Deputy District Health Officer under the authorization of the petitioner/Punjab/ Healthcare Commission. Respondent No. 2 was found to be practicing allopathic medicine without any license from Pakistan Medical & Dental Counsel (PMDC) or a registration certificate issued by the Punjab Healthcare Commission. The medical store being operated by Respondent No. 2 was accordingly sealed and notice was issued to him. After granting hearing to Respondent No. 2. Punjab Healthcare Commission inter alia, imposed a fine of Rs. 400,000/- on him through order dated 02.07.2018. Respondent No. 2 filed an appeal against the said order before the District Judge under sections 30 and 31 of the Act. During the pendency of the appeal, however, Respondent No. 2 without any protest deposited an amount of Rs. 400,000/-imposed as fine with the petitioner/Punjab Healthcare Commission. Although this fact was brought to the notice of District Judge, Faisalabad, the fine imposed by the petitioner/Punjab Healthcare Commission was reduced to Rs. 75,000/- while dismissing the appeal.

2. Learned counsel submits that appeal of the Respondent No. 2 was dismissed by the District Judge by accepting the fact that quackery was being practiced by him. It is accordingly submitted that the District Judge erred by reducing the amount of fine to Rs. 75,000/- from Rs. 400,000/-. Learned counsel for Respondent No. 2, on the other hand, supported the order passed by District Judge by stating that Respondent No. 2 did not indulge in quackery and that the fine was rightly reduced in view of the small medical facility being operated by him.

3. Arguments heard, record perused.

5. Respondent No. 2 after the imposition of fine by the Punjab Healthcare Commission without any protest deposited the same and as such he had no right to challenge the said order.

1. Be that as it may, the District Judge while dismissing the appeal made the following observations:

"From the above discussion it is clear that appellant was not authorized to even run Medical Store rather he was doing quackery therein. In this way he was playing with the lives of innocent citizens and the factum of quackery stands proved against him by way of recovery of aforesaid material. He was rightly held guilty by the Commission. The material available on record evinces that provision of section 4 of the Punjab healthcare Commission Act, 2010 was duly complied with. The appellant failed to point out any illegality or irregularity in the order impugned. Hence, this appeal fails, as such the same is dismissed."(Emphasis Supplied).

In view of the aforementioned observations, the District Judge could not reduce the fine by stating that the gravity of the offence and the strength of business being operated by Respondent No. 2 so warranted. In any event, the District Judge did not enter into any meaningful discussion in the impugned order for reducing the fine.

1. In view of the fact that Respondent No. 2 had deposited the fine without any protest, the appeal before the District Judge could not continue. In the result, this writ petition is allowed and order passed by District Judge on 30.04.2019 is set aside.

(Y.A.) Petition allowed

PLJ 2022 Lahore 444 [Multan Bench, Multan]

Present:Ch. Muhammad Iqbal, J.

HASO KHAN alias HASSAN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and others--Respondents

W.P. No. 1987 of 2021, decided on 9.2.2021.

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

----O.XXXIX Rr. 1 & 2--Specific Relief Act, (I of 1877), S. 42--Dismissal of application for grant of interim injunction--Concurrent findings--Suit for declaration--Balance of convenience--Challenge to--Matter in issue is factual in nature which requires recording of evidence of respective parties--petitioner has no prima facie case, as such, balance of convenience and irreparable loss do not tilt in his favour--Courts below have rightly turned down request for grant of interim injunction of petitioner--Concurrent findings of facts are against petitioner which do not call for any interference by this Court in absence of any illegality or any other error of jurisdiction--Petition dismissed. [P. 445] A, B & C

PLD 1970 SC 180, PLD 1980 Lahore 647, 2007 MLD 1710 ref.

Malik Zafar Mehboob Langrial, Advocate for Petitioner.

Date of hearing: 9.2.2021.

Order

Through this writ petition, the petitioner has challenged the legality of order dated 10.12.2020 passed by the learned Civil Judge, Muzaffargarh who turned down the request of the petitioner for grant of ad-interim injunction and order dated 21.12.2020 passed by the learned Addl. District Judge, Muzaffargarh who dismissed the appeal of the petitioner.

1. Brief facts of the case are that the petitioner filed suit for declaration against the respondents seeking cancellation of general power of attorney No. 126/4 dated 16.06.1986 as well as Mutation No. 1277 dated 24.01.1954 of Mouza Noran Abraind Tehsil & District Muzaffargarh. Along-with the suit, petitioner has also filed an application under Order XXXIX Rules 1 & 2 for grant of ad-interim injunction. The learned trial Court after hearing the preliminary arguments of the learned counsel for the petitioner turned down his request for grant of an ad-interim inunction videorder dated 10.12.2020. Petitioner filed an appeal which was also dismissed by the learned appellate Court vide order dated 21.12.2020. Hence, this writ petition.

2. I have heard the arguments advanced by the learned counsel for the petitioner and gone through the record with his able assistance.

4. Petitioner filed suit for declaration seeking cancellation of general power of attorney No. 126/4 dated 16.06.1986 as well as Mutation No. 1277 dated 24.01.1954 of the suit land situated in Mouza Noran Abraind Tehsil & District Muzaffargarh. Admittedly, Respondent No. 6/defendant No. 4 filed an appeal against inheritance Mutation No. 346 of deceased Kareeman which was accepted by the Assistant Commissioner, Muzaffargarh vide order dated 24.09.2020. Against the said order, the petitioner filed an appeal before the Additional Commissioner, Dera Ghazi Khan which is still pending. The matter in issue is factual in nature which requires recording of evidence of the respective parties. The petitioner has no prima facie case, as such, the balance of convenience and irreparable loss do not tilt in his favour as enunciated under Order XXXIX Rules 1 & 2 of CPC i.e. existence of prima facie arguable case, balance of convenience and irreparable loss or injury, as such, the learned Courts below have rightly turned down the request for grant of interim injunction of the petitioner. Reliance is placed on the cases titled as Mian Muhammad Latif vs. Province of West Pakistan through the Deputy Commissioner, Khairpur & Another (PLD 1970 SC 180) & AmtulBatool & Another vs. Qamar Sultana (PLD 1980 Lahore 647).

5. 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 do not call for any interference by this Court in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Zulfiqar Ali vs. Judge, Family Court & 7 others (2007 MLD 1710).

1. For what has been discussed above, this writ petition is dismissedin limine being devoid of any merits.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 446

Present:Safdar Saleem Shahid, J.

MUHAMMAD WAQAS etc.--Petitioners

versus

GOVERNMENT OF PUNJAB etc.--Respondents

W.P. No. 10572 & 10365 of 2021, decided on 9.7.2021.

Constitution of Pakistan, 1973--

----Art. 199--Non-issuance of roll number slips--Demand for deposit of late fee--Valuable right of petitioner--Negligence of college administration--Conducting of preliminary inquiry--Embezzlement by college administration--Petitioners are students of college and they cannot be penalized for negligence if committed by college administration--Petitioners cannot be deprived of their valuable rights to appear in up-coming examination schedule to be held on 10.07.2021--Lapse if any committed by College Administration or Board, petitioners cannot be penalized and their future carrier cannot be left at mercy of College and Board Administration which would definitely ruin future carrier of petitioners--Petition allowed.

[Pp. 447 & 448] A, B & C

Constitution of Pakistan, 1973--

----Art. 23--Fundamental rights--Fundamental rights enshrined by Constitution are most sacred rights which are far above ordinary rights conferred under law. [P. 448] D

Constitution of Pakistan, 1973--

----Art. 8--Inconsistency in prevalent law--Any prevalent law in consistent with fundamental rights shall be void. [P. 448] E

PLD 2009 Lahore 240 ref.

Qazi Muhammad Waseem Abbas, Advocate for Petitioners.

Mr. Muhammad Ayub Buzdar, Assistant Advocate-General for Respondents.

Mr. Allah Baksh Khan Kulachi, Advocate/Legal Adviser for Board of Intermediate and Secondary Education D.G Khan.

Date of hearing: 9.7.2021.

Judgment

This judgment shall govern W.P. No. 10572 of 2021 and 10365 of 2021 as common question of law and facts are involved.

1. The version taken by the petitioners/students in the instant petitions are that they got admission in Government Decree College Jatoi in the year 2019 as regular students and since then they are getting education from the College. The grievance of the petitioners/ students is that they have already deposited the admission fee/requisite dues being the regular students, with administration of the college, on the instructions of Respondent No. 5 within time and Respondent No. 5/ Administration of the college is responsible for the clearance of the petitioners/ students for the up-coming examination schedule to be held on 10.07.2021 but their Roll number slips have not been issued till yet by College Administration and the Board/ Respondent No. 3, rather, the respondents demanded from the petitioners/ students to deposit the fee/dues at the rate of Rs. 50,000/-as late admission fee. Thus, it is submitted that by accepting these petitions a direction be issued to respondents to issue the Roll number Slips to petitioners/students so that they could appear in upcoming examination schedule to be held on 10.07.2021.

2. Learned Legal Adviser entered appearance before this Court on behalf of Board of Intermediate & Secondary Education D.G Khan with the version that if the petitioners/aggrieved students are ready to pay the requisite admission fee as per prescribed rules/ Notification issued by the Punjab Boards of Intermediate and Secondary Education Act 1976, the Roll number Slips would be issued to the Candidates/aggrieved students.

3. Arguments heard. Record perused.

5. The documents attached with these petitions reveal that petitioners are the regular students of the college and as per their version, they have already deposited requisite fee in the office of the clerk of the college administration on the instructions of Respondent No. 1 within the prescribed time and it was the duty of the college administration to forward the applications /admission forms alongwith fee to the board/ Respondent No. 3 and there was no fault on the part of the students for not depositing the requisite examination fee. The petitioners are the students of the college and they cannot be penalized for the negligence if committed by the college administration. If the official of the college administration had not deposited the fee of the candidates in the office of board within due time, the students/candidates would not be liable for the act/omission done by the college Administration, rather, it is matter between the College Administration and the board. In these circumstances, the petitioners cannot be deprived of their valuable rights to appear in the up-coming examination schedule to be held on 10.07.2021. Record also reveals that after conducting a preliminary inquiry into the matter, three

officials of the college administration who were allegedly involved in the alleged embezzlement have already been suspended by competent authority. The competent authority after conducting a thorough inquiry into the matter, shall proceed against the delinquent in accordance with law. As per settled principle, the lapse if any committed by the College Administration or Board, the students/ petitioners cannot be penalized and their future carrier cannot be left at the mercy of the College and the Board Administration which would definitely ruin the future carrier of the candidates/petitioners. The impugned action of the respondents, if examined on the touchstone of article 23 of the Constitution it may be held that fundamental rights enshrined by the Constitution are the most sacred rights which are far above the ordinary rights conferred under the law and thus have special significance and sanctity attached thereto; the importance of these rights can be gauged and spelt out from the provisions of article 8 of the Constitution which declares that any prevalent law in consistent with the fundamental rights shall be void. Reliance in this regard is placed on case law reported as “Ch. Muhammad Ishtiaq Advocate vs. Cantonment Executive Officer, Chunian District Kasur and another” (PLD 2009, Lahore 240).

6. As a result of above discussion, these petitions are allowed and Chairman Board, D.G Khan/Respondent No. 3 is directed to issue Roll number Slips to the petitioners/students immediately on depositing of ordinary fee by the petitioners/students without imposing any fine or penalty so that they could appear in the up-come examination schedule to be held on 10.07.2021.

(Y.A.) Petition allowed

PLJ 2022 Lahore 448

Present:Muhammad Ameer Bhatti, CJ.

MUHAMMAD HAMZA SHAHBAZ SHARIF and another--Petitioners

versus

PROVINCE OF PUNJAB and others--Respondents

W.P. Nos. 21710 & 21711 of 2022, decided on 13.4.2022.

Constitution of Pakistan, 1973--

----Arts. 67, 53, 127, 130(3) & 254--Rules of Procedure of Provincial Assembly of Punjab, 1997, Rr. 17 to 20--Election of Chief Minister--Without cabinet assembly would not be able to perform its function--Whenever office of Chief Minister falls vacant, same shall be filled promptly by election keeping in view desire of Constitution and Rules 17, 18, 19 & 20 of Rules of Procedure framed under mandate of Constitution in terms of Article 67 read with Article 127 which provide procedure for completion of election within two unified days from summoning of Session--Deputy Speaker, who was performing functions of Presiding Officer because of exclusion of Speaker being nominee in election of Chief Minister, adjourned sitting and fixed it firstly for 06.04.2022 and subsequently for 16.04.2022 beyond mandate of Constitution and Rules of Procedure--Taking benefit of curable provision of Article 254, High Court has no option except to validate act of fixing of day of sitting of Provincial Assembly for 16.04.2022 as valid for voting for election of office of Chief Minister. [P. 467] A, B & C

Constitution of Pakistan, 1973--

----Art. 53(3)--Speaker and Deputy Speaker--Functions of deputy speaker in absence of speaker--Power of Deputy Speaker--When Speaker is absent or unable to perform his functions due to any cause, Deputy Speaker shall act as a Speaker; meaning thereby Speaker who is contesting election for office of Chief Minister is unable to perform functions on principle of propriety as well; hence, by virtue of this Article Deputy Speaker was rightly acting as a Speaker--When Constitutional provisions itself, in a clear and unequivocal manner, entrust all powers of Speaker to Deputy Speaker on account of his non-availability or dis-functioning, it does not demand from Speaker to notify in this regard--If Speaker has no right of issuing Notification to entrust any power while exercising provisions of Rules of Procedure then recalling or withdrawing of any power, which is otherwise within domain of Deputy Speaker by virtue of Article 53(3) of Constitution, same is unconstitutional and unlawful, any order issued by Speaker withholding of any power of Deputy Speaker for purpose of this Session particularly when he is contesting candidate of Chief Minister himself, is unwarranted and against Constitution; hence, hereby set-aside. [Pp. 468 & 469] D & E

Rules of Procedure of Provincial Assembly of Punjab, 1997--

----R. 17--Constitution of Pakistan, 1973, Art. 130(3)--Election of office of Chief Minister--Motion of no confidence against Speaker and Deputy Speaker--Question of--Mandate of--Election of office of Chief Minister and two Motions of No-Confidence against Speaker and Deputy Speaker are pending, therefore, question arises as to which one of these is to be taken first--According to mandate of Article 130(3) of Constitution and Rule 17 of Rules of Procedure, election of Chief Minister is to be given priority. [P. 469] F

Rules of Procedure--

----R. 12(1) & (2)--Removal of Speaker or Deputy Speaker--Grant of leave--After grant of leave under Rule 12(5), then there will be debate on resolution whereas in this case motion is still at stage of obtaining of leave--Even otherwise prohibition contained in Constitution for presiding over Session by Speaker and Deputy Speaker against whom No-Confidence is pending, is with regard to preside Session in which that resolution will be considered; meaning thereby other Sessions will not affect powers of Speaker or Deputy Speaker to preside over. [P. 470] G

M/s. Azam Nazeer Tarar, Advocate, Khalid Ishaque, Ch. Sultan Mahmood, Attaullah Tarar, Asadullah Chathha, Atif Mohtashim Khan, Ch. Asif Mehmood, Qamar Hayat, Usama Mohtashim Khan, Rana Afzal Razzaq, Rana Muhammad Ashraf Khan, Muhammad Arshad Malik, Nasir Javed Ghumman, Abid Hussain, Sardar Ali Akbar Dogar, Zahir Abbas, Kh. Mohsin Abbas, Mazhar Ali Ghallu, Kh. Aurangzeb Alamgir, Khalil Tahir Sandhu, Muhammad Nasir Chohan, Imtiaz Elahi, Rana Shahzad Khalid, Khawar Ikram Bhatti, Advocates for Petitioner (in W.P.No. 21710 of 2022).

Barrister Muhammad Umer Riaz, Advocate, M/s. Usama Khawar, Waqas Umer Sial, Rana Rehan, Muhammad Amin, Muhammad Zulfiqar, Mahad Ghafoor, Mian Asif Habib, Kashif Bashir, Waheed Ashraf Bhatti, Advocates for Petitioner (in W.P. No. 21711 of 2022).

Barrister Syed Ali Zafar, Advocate, M/s. Zahid Nawaz Cheema, Talib Hussain and Jehanzeb Sukhera, Advocates for Respondents.

M/s. Imtiaz Rashid Siddiqui, Advocate, Barrister Shehryar Kasuri, Raza Imtiaz Siddiqui, Muhammad Humzah Sheikh, Jamshid Alam, Qadeer Ahmad Kalyar and Sabeel Tariq Mann, Advocates in both the Petitions.

M/s. Aamir Saeed Rawn and Safdar Shaheen Pirzada, Advocates for Applicant-Respondent in Miscellaneous Applications filed in both petitions.

M/s. Ashfaq Ahmed Kharal, Malik Mohsin Sadiq, Misbah Sarwar Goraya and Irfan Mehmood Ranjha, Advocates for Respondents.

M/s. Ahmad Awais, Advocate General Punjab, Rai Shahid Saleem, Umair Khan Niazi, Muhammad Arif Raja, Anis Ali Hashmi and Arshad Jehangir A-Jojha, Additional Advocates General for Respondents.

Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor General for Respondent.

Mr. Muhammad Khan Bhatti, Secretary, Provincial Assembly of Punjab.

Date of hearing: 12.4.2022.

Judgment

The short order was announced in open Court on 13.04.2022, which is as under:

1. The prayer of the petitioner in Writ Petition No. 21710/2022 to shorten the date of Session, which is already fixed by the Deputy Speaker for 16.04.2022 to elect the Chief Minister is hereby declined.

2. It is directed that the Deputy Speaker on the date fixed i.e. 16.04.2022 shall proceed to elect the Chief Minister in terms of sub-Article (3) of Article 130 of the Constitution read with Rule 20 of the Rules of Procedure and all other enabling provisions and powers in this behalf. The Deputy Speaker and all other persons including the Provincial Government are directed to act impartially, justly and fairly to ensure the supremacy of the Constitution.

3. During the course of arguments the respondents’ counsel including the learned Advocate General have not shown any reservation for holding of election in terms of Article 130(3) of the Constitution read with Rule 20 of the Rules of Procedure on 16.04.2022, who shall not, in any manner, hinder, obstruct or interfere with any member of the Provincial Assembly who wish to attend the Session summoned as above, and to participate in, and cast their votes in terms of short order of the honourable Supreme Court dated 07.04.2022. The Secretary and other employees of the Provincial Assembly shall make all efforts to provide assistance which they otherwise are under legal obligation in this regard.

4. The Secretary, Provincial Assembly is further directed to ensure the completion of renovation work of the Provincial Assembly before 11:00 pm of 15.04.2022 and should be made available for its use for the honourable members of the Provincial Assembly on 16.04.2022 in respectable manner.

5. Impugned order dated 06.04.2022 in Writ Petition No. 21711/2022, whereby the powers of the Deputy Speaker in terms of Rule 25 of the Rules of Procedure were withdrawn, being contrary to Article 53(3) of the Constitution by virtue of which Deputy Speaker in absence of the Speaker attained the status of Speaker for this Session, completely overriding the powers provided in Rules, is hereby set-aside.”

The following are the reasons of the aforesaid short order.

1. This single judgment shall dispose of Writ Petition No. 21710/2022 (Muhammad Hamza Shahbaz Sharif v. Province of Punjab and 04 others) and Writ Petition No. 21711/2022 (Sardar Dost Muhammad Mazari v. Provincial Assembly of the Punjab and 03 others) as both these petitions are interlinked, though on different subjects, but involve common question concerning election of the office of the Chief Minister of the Punjab.

2. Since both the parties have presented arguments at length in three hearings, therefore, this case is being treated and decided as admitted case.

3. The petitioner-Muhammad Hamza Shahbaz Sharif in Writ Petition No. 21719/2022 has made the following prayer:

“In view of the foregoing, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to:

i. Declare that the Impugned Actions and inactions e.g. adjourning the house time and again without holding of the election of the chief minister, sealing of the premises of the Provincial Assembly of the Punjab and barring/restraining the members of the Provincial Legislature from discharging their constitutional mandate and from exercising their most basic fundamental right to elect Chief Minister are without lawful authority and of no legal effect;

ii. Declare and direct that the session of the Provincial Assembly of the Punjab be convened forthwith and the process of election of the Chief Minister be completed without any adjournment in any manner whatsoever;

iii. Direct that the Respondents shall ensure that there should not be any hindrance or obstruction or interference with any members of the Provincial Assembly of the Punjab who wish to attend the session and cast their vote for the election of the Chief Minister of the Punjab.

iv. Any other relief that this Honourable Court may deem appropriate.”

1. The brief facts necessary for disposal of the aforesaid Constitutional petitions are that on acceptance of the resignation of the then Chief Minister Sardar Usman Ahmed Khan Buzdar, by the Governor of the Punjab, a Notification was issued declaring the office of the Chief Minister vacant. As a result thereof, vide Notification dated 01.04.2022, the Governor of the Punjab summoned the 40th Session of Punjab Assembly to be conveyed on Saturday, 2nd April, 2022 at 11:00 a.m. in the Punjab Assembly, Lahore, for the election of Chief Minister under Article 130 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution). Consequently the Session commenced and two members of the Assembly came forward as candidates namely; the present petitioner-Muhammad Hamza Shahbaz Sharif and Respondent No. 4, the incumbent Speaker-Ch. Pervez Elahi and submitted their nomination papers on the same day before the Deputy Speaker, who by virtue of Article 53(3) of the Constitution was acting as a Speaker. Moreover, he was notified by the Speaker himself following the order of the Governor of the Punjab relating to summoning of Session of Provincial Assembly for holding election for the office of Chief Minister under Article 130 of the Constitution. The nominations after their scrutiny were declared valid on the same day in terms of Rules 17 & 18 of the Rules of Procedure of the Provincial Assembly of the Punjab, 1997 (the Rules of Procedure) and the Session was adjourned for voting in terms of Rule 20 of the Rules of Procedure for 3rd April, 2022. On 03.04.2022, it is reported that on account of some unavoidable circumstances the Session was adjourned for 06.04.2022, though the specific cause is missing in the said Notification. The record further reveals that on 05.04.2022 the 40th Session of the Punjab Assembly, which was ordered to be held on 06.04.2022 vide order dated 03.04.2022, was changed to 16.04.2022 at 11:30 a.m. in Assembly Chambers, Lahore.

It is noticed that the honourable Supreme Court on 03.04.2022 took suo moto notice of the Ruling of the Deputy Speaker of National Assembly and the political party-PML(N) also filed a constitutional petition before the honourable Supreme Court bearing C.P. No. 05/2022 concerning the matter of election of office of the Chief Minister and during the course of those proceedings, taking cognizance of this petition, the following order was passed:-

“1. …….

1. …….

2. …….

3. …….

4. …….

5. …….

6. Mr. Azam Nazeer Tarar, ASC has reported that the proceedings of the Punjab Provincial Assembly were fixed today for the election of the new Chief Minister of Punjab. These proceedings have been adjourned by the Deputy Speaker of the Assembly to another date without citing any reason or cause. A large number of MPAs are still in the premises of the House of the Provincial Assembly which is creating an unpleasant situation both inside and outside the House. Notice under Order XXVIIA, CPC be issued to Advocate General Punjab to examine the vires of the decision by the Deputy Speaker of the Punjab Assembly and the situation that has arisen as a consequence thereof. All the political parties involved in the process of election of the new Chief Minister shall exercise restraint and maintain peace and public order. It is directed that the state functionaries and the law enforcement agencies of the Province shall ensure that peace and public order is maintained in the Province and they act strictly in accordance with the Constitution and the law guided by the principle laid down by this Court in Sindh High Court Bar Association's case (ibid).

7. Since these matters relate to an urgent issue, therefore, office is directed to fix the same tomorrow i.e. 04.04.2022 at 1:00 pm before a larger bench.”

In pursuance to the direction of honourable Supreme Court, textually quoted above, the learned Advocate General appeared and expressed before the apex Court that the Session of the Provincial Assembly of the Punjab for election of the office of Chief Minister, scheduled for 06.04.2022 at 11:30 am, will be held in accordance with law, however, the change in date for Session of the Provincial Assembly from 06.04.2022 to 16.04.2022, made vide an order dated 05.04.2022, was also brought to the notice of the apex Court by the learned Advocate General. It is worth mentioning here that all the orders for fixation of the Session of the Provincial Assembly were passed by one and same Deputy Speaker-Sardar Dost Muhammad Mazari. It is also noticed that another last order in series, passed by said Sardar Dost Muhammad Mazari, Deputy Speaker on 05.04.2022, summoning the Session changing date from 16.04.2022 to 06.04.2022 at 7:30 pm was issued and admitted by the Deputy Speaker but it did not contain the office endorsement number or signature of the Secretary of the Provincial Assembly. Hence, on account of non-availability of the concerned administerial infrastructure the Session could not be held. Respondent-Secretary in his reply claimed that he did not receive any information about change of date of Session from the Deputy Speaker, therefore, he alleged that he could not believe that this order for change of Session was issued by the Deputy Speaker- Sardar Dost Muhammad Mazari and for this reason he remained unable to make necessary arrangements including providing information to all the respectable members regarding holding of Session of the Provincial Assembly for election of the Chief Minister.

1. The honourable Supreme Court disposed off all the petitions including the petition of PML(N) relating to non-holding of election of Chief Minister of the Provincial Assembly reflecting from order dated 07.04.2022 but nothing has been said about the inaction of the Deputy Speaker of the Provincial Assembly for not holding the election on 06.04.2022. It is expedient to reproduce the order of the Hon'ble Supreme Court:

“For detailed reasons to be recorded later and subject to what is set out therein by way of amplification or otherwise, these matters are disposed of in the following terms:

1. The ruling of the Deputy Speaker of the National Assembly (“Assembly”) given on the floor of the House on 03.04.2022 (“Ruling”) in relation to the resolution for a vote of no-confidence against the Prime Minister under Article 95 of the Constitution (“Resolution”) (for which notice had been given by the requisite number of members of the Assembly on 08.03.2022, and in relation to which leave was granted to move the Resolution on 28.03.2022), and the detailed reasons for the Ruling (released subsequently and concurred with by the Speaker) are declared to be contrary to the Constitution and the law and of no legal effect, and the same are hereby set aside.

2. In consequence of the foregoing, it is declared that the Resolution was pending and subsisting at all times and continues to so remain pending and subsisting.

3. In consequence of the foregoing, it is declared that at all material times the Prime Minister was under the bar imposed by the Explanation to clause (1) of the Article 58 of the Constitution and continues to remain so restricted. He could not therefore have at any time advised the President to dissolve the Assembly as contemplated by clause (1) of Article 58.

4. In consequence of the foregoing, it is declared that the advice tendered by the Prime Minister on or about 03.04.2022 to the President to dissolve the Assembly was contrary to the Constitution and of no legal effect.

5. In consequence of the foregoing, it is declared that the Order of the President issued on or about 03.04.2022 dissolving the Assembly was contrary to the Constitution and of no legal effect, and it is hereby set aside. It is further declared that the Assembly was in existence at all times, and continues to remain and be so.

6. In consequence of the foregoing, it is declared that all actions, acts or proceedings initiated, done or taken by reason of, or to give effect to, the aforementioned Order of the President and/or for purposes of holding a General Election to elect a new Assembly, including but not limited to the appointment of a care-taker Prime Minister and Cabinet are of no legal effect and are hereby quashed.

7. In consequence of the foregoing, it is declared that the Prime Minister and Federal Ministers, Ministers of State, Advisers, etc stand restored to their respective offices as on 03.04.2022.

8. It is declared that the Assembly was at all times, and continues to remain, in session as summoned by the Speaker on 20.03.2022 for 25.03.2022 (“Session”), on the requisition moved by the requisite number of members of the Assembly on 08.03.2022 in terms of clause (3) of Article 54 of the Constitution. Any prorogation of the Assembly by the Speaker prior to its dissolution in terms as stated above is declared to be of no legal effect and is set aside.

9. The Speaker is under a duty to summon and hold a sitting of the Assembly in the present Session, and shall do so immediately and in any case not later than 10:30 a.m. on Saturday 09.04.2022, to conduct the business of the House as per the Orders of the Day that had been issued for 03.04.2022 and in terms as stated in, and required by, Article 95 of the Constitution read with Rule 37 of the Rules of Procedure and Conduct of Business in National Assembly Rules, 2007 (“Rules”).

10. The Speaker shall not, in exercise of his powers under clause (3) Article 54 of the Constitution, prorogue the Assembly and bring the Session to an end, except as follows:

a. If the Resolution is not passed by the requisite majority (i.e., the no-confidence resolution is defeated), then at any time thereafter;

b. If the Resolution is passed by the requisite majority (i.e., the no-confidence resolution is successful), then at any time once a Prime Minister is elected in terms of Article 91 of the Constitution read with Rule 32 of the Rules and enters upon his office.

1. If the Resolution is passed by the requisite majority (i.e., the no-confidence resolution is successful) then the Assembly shall forthwith, and in its present Session, proceed to elect a Prime Minister in terms of Article 91 of the Constitution read with Rule 32 of the Rules and all other enabling provisions and powers in this behalf and the Speaker and all other persons, including the Federal Government, are under a duty to ensure that the orders and directions hereby given are speedily complied with and given effect to.

2. The assurance given by the learned Attorney General on behalf of the Federal Government in C.P. 2/2022 on 21.03.2022 and incorporated in the order made in that matter on the said date shall apply as the order of the Court: the Federal Government shall not in any manner hinder or obstruct, or interfere with, any members of the National Assembly who wish to attend the session summoned as above, and to participate in, and cast their votes, on the no confidence resolution. It is further directed that this order of the Court shall apply both in relation to the voting on the Resolution and (if such be the case) in relation to the election of a Prime Minister therefore, it is however clarified that nothing in this Short Order shall affect the operation of Article 63A of the Constitution and consequences therefore in relation to any member of the Assembly if he votes on the Resolution or (if such be the case) the election of a Prime Minister thereafter in such manner as is tantamount to his defection from the political party to which he belongs within the meaning of the said Article.

3. The order of the Court made in SMC 1/2022 on 03.04.2022 to the following effect, i.e., “Any order by the Prime Minister and the President shall be subject to the order of this Court” shall continue to be operative and remain in the field, subject to this amplification that it shall apply also to the Speaker till the aforesaid actions are completed.”

Hence, this petition is filed by Muhammad Hamza Shahbaz Sharif seeking this Court's indulgence to grant the prayer, reproduced hereinabove in Paragraph-03.

1. On the other hand, another Writ Petition No. 21711/2022 has been filed by the Deputy Speaker-Sardar Dost Muhammad Mazari asserting therein that though he had adjourned the Session for 16.04.2022 but on acquiring the information about statement made by the learned Advocate General, Punjab, before the honourable Supreme Court, he re-scheduled the said election for a date earlier fixed i.e. 06.04.2022, which could not be materialized on account of irresponsible attitude of the Secretary, Provincial Assembly. Further adds that Speaker vide impugned letter dated 06.04.2022 withdrew his powers relating to Rule 25 of the Rules of Procedure, which has been called-in-question, with the following prayer:

“In view of the foregoing facts and circumstances, it is respectfully prayed that the instant writ petition may graciously be accepted in the following terms:

i. Declare that the Impugned Order of the Speaker/Candidate for Chief Minister dated 06.04.2022 be declared as without lawful authority, and without legal effect; and set Impugned Order aside.

ii. Declare that since the submission of nomination papers by the Respondent No. 2 on 2nd of April 2022 for election to the Chief Minister, the Petitioner has been lawfully acting as the Speaker, while the Respondent No. 2 is not competent or has been disabled to exercise powers of the Speaker. Additionally, till the election of the Chief Minister is completed in accordance with the law, the Petitioner is entitled to act as the Speaker.

iii. Declare that it is the legal and constitutional obligation and duty of the Respondents to ensure that there should not be any hindrance, obstruction, or interference with any members of the Provincial Assembly of the Punjab who wish to exercise their rights and privileges as members of Provincial Assembly, especially, the right of the members to participate without any fear or physical retrain in the process of the election of the Chief Minister of the Punjab.

iv. Direct that the ongoing election process for the position of Chief Minister within the Provincial Assembly of the Punjab, be completed without any further delays or disruptions within the election process, as well as to ensure that the election process remains fair and transparent;

v. Any other relief that this Honourable Court may deem appropriate.”

Considering the legal question of non-holding of Session for the election of office of the Chief Minister necessary to be held promptly under Article 130(3) of the Constitution read with Rules 17 to 20 of the Rules of Procedure even excluding all other business and without debate will give the negative effect on Government functioning, notices were issued to the respondents, and Secretary Provincial Assembly, was called in person along with record of the election process of the office of Chief Minister.

1. I have heard the learned counsels for the parties and gone through record of the case.

2. Mr. Azam Nazeer Tarar, learned counsel for the petitioner in Writ Petition No. 21710/2022, filed by a candidate for the office of the Chief Minister contends that prompt filling of the vacant office of the Chief Minister is essential mandate of the Constitution and law. He adds that the Chief Minister's resignation was accepted on 01.04.2022 and as consequence whereof the office of Chief Minister had become vacant, necessary to be filled in contemplation of Article 130(3) of the Constitution read with the Rules 17, 18 and 20 of the Rules of Procedure. Governor had met his legal responsibility by issuing notification for summoning of Session of the Assembly for 02.04.2022. The nomination papers in terms of Rule 17(2) for the election of the Chief Minister were received on 02.04.2022 and also scrutinized on the same day as required by Rule 18 and election for the Chief Minister was to be held on 03.04.2022. Accordingly, Session was called for election of Chief Minister on 03.04.2022 but the same was adjourned to 06.04.2022 after few minutes’ proceedings on the pretext of some dispute in the Provincial Assembly of the Punjab, which was an illegal act. He argued that the Punjab is the largest Province of Pakistan but at present Government is non-functional and cannot run its business in the light of celebrated judgment in Mustafa Impex's case (PLD 2016 Supreme Court 808). He argued that under Article 130(3) of the Constitution the Chief Minister is to be elected soon after election of Speaker and Deputy Speaker, to the exclusion of any other business which is also incorporated in Rule 17 of the Rules of Procedure which are framed under the Constitution and are mandatory in nature but not only the constitutional provision but also the rules are being flouted by not conducting the election of Chief Minister in the Punjab Assembly. It is further contended that under Article 53(3) of the Constitution, in absence of the Speaker, the Deputy Speaker was fully competent to act as a Speaker, therefore, the Speaker, who was unable to perform his functions due to his candidature for the office of Chief Minister, direction may be issued to the Deputy Speaker for earliest fixation of date for voting of office of the Chief Minister. Regarding filing of Civil Petition in the honourable Supreme Court, it is contended that the said petition was filed by a political party PML(N) and after passing of first order by the apex Court it was not heard and probably on the statement made by the learned Advocate General it was disposed off for approaching this Court, however, the detailed order will reflect the reasons. It is also contended that effect of those proceedings conducted by the honourable Supreme Court will not prejudice petitioner's rights, who has otherwise, being a candidate for the office of the Chief Minister, in his own right, has approached this Court for getting relief restraining infringement of his fundamental rights as well as alleged violation of the provisions of the Constitution and law in this regard, therefore, issuance of direction to the concerned Deputy Speaker does not fall within the prohibition contained in Article 69 of the Constitution. It is added that this Court has the jurisdiction to intervene and review the action and inaction of the respondents creating hurdle, if any, in completion of the process of election of the office of Chief Minister. The learned counsel has placed reliance on Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif and 09 others (PLD 2017 Supreme Court 265) and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan and others (PLD 2010 Supreme Court 61).

3. Barrister Muhammad Umer Riaz argued that the petitioner is Deputy Speaker of the Provincial Assembly and was Presiding the Session for the election of Chief Minister because the Speaker of the Assembly himself is contesting for the post of Chief Minister and he could not preside the Session, which is covered under Article 53(3) of the Constitution and Deputy Speaker has to act as Speaker if the Speaker is unable to perform his functions due to any cause. He argued that the Deputy Speaker was performing his duty smoothly under Rules 17, 18 & 20 of the Rules of Procedure by receiving nomination papers, scrutiny of the nomination papers and conducting the Session for the election of Chief Minister, which was required to be conducted to the exclusion of any other business as envisaged in Article 130(3) of the Constitution. He argued that the other side portrayed a misconceived picture of law that Deputy Speaker cannot preside over the Session on account of pendency of resolution of noconfidence against him, hence, the Deputy Speaker cannot preside a meeting of the Assembly when a resolution for his removal from office is being considered while in the present situation he has to preside the meeting for election of Chief Minister, so Article 53(4) read with Rule 9(3) of the Rules of Procedure does not bar the Deputy Speaker to preside the Assembly. He further argued that the act of the Deputy Speaker for calling the Session on 06.04.2022 at 07:30 p.m. instead of 16.04.2022 was according to law because during the proceedings of the SMC No. 1/2022 the learned Advocate General, Punjab, had made statement that election of the Chief Minister would be held on 06.04.2022. He adds that the Deputy Speaker acted according to the Constitution and the Rules of Procedure but the Speaker issued illegal order by withdrawing his powers because as per Constitution Speaker includes Deputy Speaker and Speaker being the candidate for the Chief Minister could not exercise such power. He further added that the Deputy Speaker had been restrained to use his office. He concluded the arguments while saying that Article 53(3) of the Constitution is clear that if the Speaker is unable to perform function, then the Deputy Speaker shall act as a Speaker and holding of the chair by panel of Chairmen is out of question because under Rule 13 of the Rules of Procedure, any member amongst members of panel can take the chair if Deputy Speaker is absent while in the present scenario the Deputy Speaker is neither absent nor unable to perform its function. He relied upon Brig. (Retd.) F. B. Ali and another v. The State (PLD 1975 Supreme Court 506), Muhammad Naeem Akhtar v. Speaker, Sindh Assembly and others (1992 CLC 2043), “Mining Industries of Pakistan (Pvt.) Ltd. v. Deputy Speaker” (PLD 2006 Queta 36), “Munir Hussain Bhatti v. Federation of Pakistan and others” (PLD 2011 Supreme Court 407), “Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others” (PLD 2012 Supreme Court 774).

4. On the other hand, M/s. Ali Zafar, Imtiaz Rasheed Siddiqui and Aamir Saeed Rawn, Advocates, submitted arguments on behalf of respondents by raising the objection regarding maintainability of these petitions as the same is short of any illegality committed by the said respondent. The second limb of their argument is that since the same relief by virtue of C.P. No. 05/2022 has been availed before the honourable Supreme Court, therefore, by virtue of res judicata, this petition is not maintainable as the said petition in the apex Court reflecting from the short order dated 07.04.2022 stood disposed off. Although nothing is reflecting from this short order about prayer made before the honourable Supreme Court for its grant or refusal, however, fate of the petition can be determined as the short order is showing its disposal but after the announcement of detailed judgment/order further arguments on this point can be advanced and till then the petition is not maintainable. It is also argued that jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is to be exercised subject to Constitution as envisaged in the said Article, so before exercising the jurisdiction under Article 199 of the Constitution the Court cannot ignore the other provisions of the Constitution. He contended that Article 69 read with Article 127 of the Constitution makes it quite clear that proceedings in the Parliament shall not be called-in-question on the ground of any irregularity of procedure and this is a firewall which if crossed, would amount to intervention in the functions of legislature which is fundamentally against the basic concept of trichotomy and democratic form of government. It is also argued that no illegal act is committed because the Chief Minister's resignation was accepted on 01.04.2022 while nomination papers for the election of the Chief Minister were received and scrutinized on 02.04.2022 and election for the Chief Minister was to be held on 03.04.2022. The Session of the Assembly was called for the said date to elect the Chief Minister but due to dispute between the honourable members, the meeting was adjourned for 06.04.2022. That, later on, keeping in view the situation of the floor of the Assembly, which had been damaged due to scuffle between the members, the Session was called for 16th April, 2022 at 11:30 a.m. instead of 06th April, 2022 at 11:30 a.m. by the Deputy Speaker which was duly notified on 5th April, 2022 but afterwards an order of Deputy Speaker calling the Session of the Assembly for 06th April, 2022 at 07:30 p.m. was seen in social media and T.V. channels despite the fact that the same was not handed over to any official of the Provincial Assembly of the Punjab to notify the same and to make arrangements. They emphasized that all the proceedings for the election of Chief Minister were being carried-out according to law and rules as nominations were received under Rule 17 of Rules of Procedure of the Provincial Assembly of the Punjab, 1997, which were scrutinized under Rule 18 ibid and election was scheduled under Rule 20 for 03rd April, 2022 but the same could not be conducted due to law and order situation and Rules 25 and 210(4) of the Rules of Procedure empower the Chair to adjourn the Assembly Session, so no illegality was committed. They further argued that although there is no delay in the election of Chief Minister as required by Article 130(3) of the Constitution read with Rule 17 of the Rules of Procedure, yet if there is any delay that cannot be termed illegal or unconstitutional in the light of Article 254 of the Constitution. It is also argued that the order of withdrawal of power of Deputy Speaker by the Speaker was also passed according to law because the Deputy Speaker could use the powers which were delegated by the Speaker under Rule 15 of the Rules of Procedure and only the Powers conferred under Rule 25 (b) were withdrawn to avoid any Constitutional crisis because the Deputy Speaker made his office disputed while issuing an illegal letter for changing the date of Session from 16.04.2022 at 11:30 a.m. to 06.04.2022 at 07:30 p.m. The matter relating to presiding over the Session for the election of Chief Minister was also argued with contention that Deputy Speaker has changed his affiliation and resolution for vote of no- confidence has been submitted, so under Article 53(4) of the Constitution read with Rule 9(3) of the Rules of Procedure, he cannot preside over the Session. They place reliance on Pakistan v. Ahmad Saeed Kirmani and others (PLD 1958 Supreme Court (Pak) 397), BNP (Pvt.) Ltd. v. Capital Development Authority and others (2016 CLC 1169), Wasi Zafar v. Speaker Provincial Assembly) (PLD 1990 Lahore 401), Gohar Nawaz Sindhu v. Mian Muhammad Nawaz Sharif and others (PLD 2014 Lahore 670) and Riaz Hanif Rahi v. Federation of Pakistan and 14 others (PLD 2019 Islamabad 230).

5. After hearing learned counsels for the parties, going through the available record, the case-law cited at bar as well as the provisions of law in the Constitution and Rules of the Procedure, referred to from both sides, Article 67 read with Article 127 and Articles 130(3), 53 and 254 of the Constitution of Islamic Republic of Pakistan, 1973, and Rules 17 to 20 of Rules of Procedure of the Provincial Assembly of the Punjab, 1997, in particular, first of all, I want to dilate upon the election of the Chief Minister. Article 130(3) of the Constitution as well as Rules 17, 18 & 20 of the Rules of Procedure, referred to from both sides, for the sake of interpretation are reproduced as under:

“Article 130. The Cabinet. (1) ……..

(2) …………

(3) After the election of the Speaker and the Deputy Speaker, the Provincial Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its members to be the Chief Minister.

Rules 17, 18 & 20 of the Rules of Procedure framed under Article 67 read with Article 127 of the Constitution stipulate as under:

“17. Election of Chief Minister.--(1) After the election of the Speaker and the Deputy Speaker following a general election, or whenever the office of the Chief Minister falls vacant for any reason, the Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its members as the Chief Minister.

(2) At any time before 5:00 pm preceding the day on which the Chief Minister is to be elected, any member may nominate another member for election as the Chief Minister (hereinafter called "the candidate") by delivering to the Secretary a nomination paper set out in the First Schedule signed by himself as proposer and by another member as seconder, together with a statement signed by the candidate that he consents to the nomination. (underline supplied)

(3) The nomination paper in terms of sub-rule (2), may be delivered either by the candidate, or the proposer, or the seconder.

(4) A candidate may be nominated by more than one nomination paper but no member shall subscribe, whether as proposer or seconder, more than one nomination paper at an election.

(5) The Secretary shall endorse under his signature the date and time of the receipt on each nomination paper, shall record it in the register maintained for the purpose, and shall issue an acknowledgement as set out in the First Schedule.

(6) If a member has subscribed to more than one nomination paper, the nomination paper delivered to the Secretary prior in time shall be valid and all subsequent nomination papers shall be invalid and shall not be taken into consideration.

1. Scrutiny.--(1) The Speaker shall, at 6:00 pm on the day preceding the day of the election or at such other time as he may determine, scrutinize the nomination papers received in terms of Rule 17, in the presence of such candidates, their proposers or seconders as may wish to be present.

Explanation.--Where the Speaker determines the time for scrutiny of nomination papers other than the time mentioned in this sub-rule, the Secretary shall intimate the candidates, the proposers and the seconders, the time determined by the Speaker for scrutiny of the nomination papers.

(2) The Speaker may reject a nomination paper if he is satisfied that--

(a) the proposer or the seconder or the candidate is not a member;

(b) any provision of rule 17 has not been complied with; or

(c) the signature of the proposer or the seconder or the candidate is forged.

(3) Notwithstanding anything in [sub-rule] (2), the Speaker shall not reject a nomination paper on the ground of any defect which is not of substantial nature and may allow any such defect to be rectified at the time of scrutiny.

(4) The Speaker shall endorse on each nomination paper his decision accepting or rejecting the nomination paper and shall, in case of rejection, record brief reasons for the rejection of nomination paper.

(5) The rejection of a nomination paper of a candidate shall not invalidate the nomination of the candidate through another valid nomination paper.

(6) The Decision of the Speaker, accepting or rejecting a nomination paper, shall be final.

1. Election.--(1) Before the commencement of the election, the Speaker shall read out to the Assembly the name or names of the candidates validly nominated in the order in which their nomination papers were received and shall proceed to conduct the election in accordance with the procedure prescribed in the Second Schedule.

(2) If there is only one contesting candidate and he secures the votes of the majority of the total membership of the Assembly, the Speaker shall declare him to have been elected as the Chief Minister; but, in case, he does not secure the majority, all proceedings for the election, including nomination of the candidates, shall commence afresh.

(3) If no candidate secure the votes of the majority of the total membership of the Assembly in the first poll, the Speaker shall conduct a second poll between the candidates who secure the two highest numbers of votes in the first poll and shall declare the candidates who secures the majority of votes of the members present and voting to have been elected as Chief Minister:

Provided that if the number of votes secured by two or more candidates securing the highest number of votes in equal, the Speaker shall hold further polls between them until one of them secures the majority of votes of the members present and voting, and shall declare such candidate to have been elected as the Chief Minister.”

Article 130(3) of the Constitution demonstration whereof indicates that after election of the Speaker and the Deputy Speaker, the Provincial Assembly has been given the mandate of election of the Chief Minister by using the words, “exclusion of any other business” directing the prompt exercise to elect the Chief Minister. The mandate of this Article manifests the importance of earliest election of the Chief Minister. Certainly without the Cabinet the Assembly would not be able to perform its functions and the Chief Minister being head of the Cabinet, who has to constitute/formulate his Cabinet, must have been elected without further loss of time after the election of the Speaker and the Deputy Speaker so that the Government is functional. From this analogy it can safely be concluded that whenever the office of the Chief Minister falls vacant, the same shall be filled promptly by election keeping in view the desire of the Constitution and Rules 17, 18, 19 & 20 of the Rules of Procedure framed under the mandate of the Constitution in terms of Article 67 read with Article 127 which provide the procedure for completion of the election within two unified days from summoning of the Session.

It is noticed that the Session was summoned by the Governor's order dated 01.04.2022 for the purpose of holding election on 02.04.2022. Sub-rule (2) of Rule 17 of the Rules of Procedure requires the filing of nomination papers before 5:00 pm preceding the day on which the Chief Minister is to be elected. It means the election of the Chief Minister shall be completed within two unified days. The framers of the Rules of Procedure were clear in their mind while fixing the two unified days for completion of the election of the Chief Minister in contemplation of Article 130(3) of the Constitution, which occupies its pedestal higher than the statutory rules promulgated under delegated exercise of power, therefore, it is held that the Deputy Speaker, who was performing the functions of Presiding Officer because of exclusion of Speaker being nominee in the election of the Chief Minister, adjourned the sitting and fixed it firstly for 06.04.2022 and subsequently for 16.04.2022 beyond the mandate of the Constitution and Rules of Procedure, however, in such like situation the Constitution has provided rescue provision of Article 254, which is as under:

“254. Failure to comply with requirement as to time does not render an act invalid. When any act or thing is required by the Constitution to be done within a particular period and it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reason only that it was not done within that period.”

So, taking the benefit of the curable provision of Article 254, this Court has no option except to validate the act of fixing of the day of sitting of the Provincial Assembly for 16.04.2022 as valid for voting for election of the office of Chief Minister.

1. So far as the action of the Speaker is concerned, Article 53 of the Constitution needs to be read, which is as under:

“53. Speaker and Deputy Speaker of National Assembly. (1) After a general election, the National Assembly shall, at its first meeting and to the exclusion of any other business, elect from amongst its members a Speaker and a Deputy Speaker and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall elect another member as Speaker or, as the case may be, Deputy Speaker.

(2) Before entering upon office, a member elected as Speaker or Deputy Speaker shall make before the National Assembly oath in the form set out in the Third Schedule.

(3) When the office of Speaker is vacant, or the Speaker is absent or is unable to perform his functions due to any cause, the Deputy Speaker shall act as speaker, and if, at that time, the Deputy Speaker is also absent or is unable to act as Speaker due to any cause, such member as may be determined by the rules of procedure of the Assembly shall preside at the meeting of the Assembly. (underline supplied)

(4) The Speaker or the Deputy Speaker shall not preside at a meeting of the Assembly when a resolution for his removal from office is being considered.

(5) The Speaker may, by writing under his hand addressed to the President, resign his office.

(6) The Deputy Speaker may, by writing under his hand addressed to the Speaker, resign his office.

(7) The office of Speaker or Deputy Speaker shall become vacant if--

(a) he resigns his office;

(b) he ceases to be a member of the Assembly; or

(c) he is removed from office by a resolution of the Assembly, of which not less than seven days notice has been given and which is passed by the votes of the majority of the total membership of the Assembly.

(8) When the National Assembly is dissolved, the Speaker shall continue in his office till the person elected to fill the office by the next Assembly enters upon his office.”

Demonstration whereof adequately gives the understanding that when the Speaker is absent or unable to perform his functions due to any cause, the Deputy Speaker shall act as a Speaker; meaning thereby the Speaker who is contesting the election for the office of the Chief Minister is unable to perform the functions on the principle of propriety as well; hence, by virtue of this Article the Deputy Speaker was rightly acting as a Speaker. When this Article of the Constitution entrusts all the powers to the Deputy Speaker in the absence of Speaker, the rules framed under the Constitution, which empower the Speaker to entrust his powers to the Deputy Speaker by notifying it, does not mean absence of any such Notification or by issuing any Notification he can take away or curtail any power of the Deputy Speaker to act as a Speaker. The Rules of Procedure are subservient to the Constitution and when the Constitutional provisions itself, in a clear and unequivocal manner, entrust all the powers of the Speaker to the Deputy Speaker on account of his non-availability or dis-functioning, it does not demand from the Speaker to notify in this regard. Moreover, if the Speaker has no right of issuing Notification to entrust any power while exercising the provisions of Rules of Procedure then recalling or withdrawing of any power, which is otherwise within the domain of the Deputy Speaker by virtue of Article 53(3) of the Constitution, the same is unconstitutional and unlawful, therefore, any order issued by the Speaker withholding of any power of the Deputy Speaker for the purpose of this Session particularly when he is contesting candidate of Chief Minister himself, is unwarranted and against the Constitution; hence, hereby set-aside.

14. So far as the contention of the learned counsel for the respondents that the Motion of No-Confidence against the Speaker and Deputy Speaker is pending, therefore, the Deputy Speaker shall not preside over the Session for election of office of the Chief Minister, suffice it to say that since the election of the office of the Chief Minister and two Motions of No-Confidence against the Speaker and Deputy Speaker are pending, therefore, question arises as to which one of these is to be taken first. According to mandate of Article 130(3) of the Constitution and Rule 17 of the Rules of Procedure, the election of the Chief Minister is to be given priority. Even otherwise, Article 53(7)(c) read with Article 27 of the Constitution provide for removal of the Speaker and Deputy Speaker of the Provincial Assembly for which at least seven days notice is required. Rule 12(1) & (2) of the Rules of Procedure provide as under:

“12. Removal of Speaker or Deputy Speaker.--(1) A member may give to the Secretary notice in writing of a motion for leave to move a resolution under paragraph (c) of clause (7) of Article 53 read with Article 127 of the Constitution for the removal from office of the Speaker or the Deputy Speaker and the Secretary shall forthwith circulate the notice to the members.

(2) The motion for leave to move the resolution shall be entered in the name of the member concerned in the List of Business for the first working day after the expiry of seven days of the receipt of the notice under sub-rule (1).”

Rule 12(5) further provides as under:

“12(5). Immediately after the motion referred to in sub-rule (2) has been moved, the Presiding Officer shall call such of the members as may be in favour of the leave being granted to rise in their seats and, if at least one-fourth of total membership of the Assembly does not so rise, he shall declare that the member has not the leave of the Assembly, or, if such membership so rises, call upon the member to move the resolution.”

According to Rule 12(1) & (2) of the Rules of Procedure, only motion has been entertained and the leave is yet to be granted and procedure as provided in these rules for obtaining leave at least one-fourth of total membership of the Assembly have been shown under sub-rule (5) of Rule 12. After grant of leave under Rule 12(5), then there will be debate on the resolution whereas in this case the motion is still at the stage of obtaining of leave. Even otherwise prohibition contained in the Constitution for presiding over the Session by the Speaker and the Deputy Speaker against whom No-Confidence is pending, is with regard to preside the Session in which that resolution will be considered; meaning thereby the other Sessions will not affect the powers of the Speaker or Deputy Speaker to preside over.

1. The main emphasis of the learned counsel for the respondents was on Article 69 of the Constitution qua the prohibition contained therein for calling-in-question the validity or otherwise of any proceedings of Parliament relating to irregularity of proceedings.

So far as the bar of Article 69 of the Constitution and its applicability in the instant case is concerned, I have examined all the case-law, referred to by both the sides, particularly the case of “Muhammad Azhar Siddique and others v. Federation of Pakistan and others" (PLD 2012 Supreme Court 774) where, in peculiar circumstances of the case, the Ruling of the Speaker was set-aside and it was held that the Speaker performs the administrative task of determining, whether a question of determination of disqualification has arisen and in doing so he went beyond the Constitutional limit, misapplied the applicable law or misused discretion, then her/his decision would be reviewable. Article 69 would not provide such a ruling any immunity from judicial review. On the touchstone of determination of this immunity attached to the Ruling of the Speaker, suffice it to say that only if he performs his duties within the parameters of the Constitution. If he crosses the limits determined by the Constitution or misapplies the applicable law or misuses his discretion then the act/decision of the Speaker or Deputy Speaker will be reviewable excluding the immunity provided under Article 69 of the Constitution. The latest ruling of the Deputy Speaker of National Assembly was set-aside by the honourable Supreme Court in suo moto Case No. 01/2022 as he crossed his constitutional limits. Here in this case keeping in view the law laid down by the apex Court the mandate of holding the election is manifest under Article 130(3) in shortest period from the date of vacation of the office of the Chief Minister and keeping in view the mandate of the Constitution the Governor of the Punjab summoned the Session after accepting the resignation of the incumbent Chief Minister which was accepted on 01.04.2022 and summoning order was also passed on the same day for holding the election for 02.04.2022 whereas the Deputy Speaker, who was holding the charge to perform the function of the Speaker, as the Speaker was contesting the election and for this reason he was unable to perform the functions as a Speaker; hence, after receiving the nomination papers according to Rule 17(2) of the Rules of Procedure and completing its scrutiny, on the same day, the nomination papers of both the candidates were declared valid and the next day was fixed for voting of the members to elect the Chief Minister as the Rules of Procedure mandates two unified days for completion of election in contemplation of sub-Article (3) of Article 130 of the Constitution, hence, the adjourning of Session firstly for 06.04.2022 and then without achieving that target, while sitting in the office issuance of another Notification fixing the date as 16.04.2022, was clear violation of the Constitution and beyond the competency of the Deputy Speaker. Moreover, frequent changes in dates of holding of election of Chief Minister lost the right of privilege granted by the Constitution; however, on account of paucity of time, I do not feel it appropriate to accept the prayer of the petitioner to shorten the date of Session for voting of office of Chief Minister. This request is declined being an exercise in futility. Accordingly, the office objection raised as well as the respondents‟ objection relating to maintainability of writ petitions is over-ruled. C.M. No. 03/2022 in W.P.No. 21710/2022 seeking suspension and setting-aside of transfers/postings of the Chief Secretary, Punjab, and Inspector General of Police, has become redundant by the efflux of time.

1. On direction issued in Writ Petition No. 21711/2022 on 11.04.2022, the Registrar of this Court visited the Assembly Hall and

submitted his report regarding the damage allegedly caused by the members during the Session held on 03.04.2022. According to that report it was a minor damage of some chairs and tables, which could have been repaired within last 2/3 days but since 03.04.2022, no effort has been made by the Secretary. The inaction on his part, in this regard, being very unfortunate is regrettable.

1. Mr. Amir Saeed Rawn, Advocate, has filed civil miscellaneous application bearing C.M. No. 4/2022 in W.P. No. 21710/2022 and C.M. No. 03/2022 in W.P.No. 21711/2022 seeking permission to implead 'The Pakistan Muslim League through its Secretary General Kamal Ali Agha' as respondent in both these petitions. The intervener has been heard without objection from the other side, therefore, these applications stand disposed off.

2. C.M. No. 05/2022 in W.P. No. 21710/2022 and C.M. No. 04/2022 in W.P. No. 21711/2022 have also been filed on behalf of the applicant/respondent/the Secretary, Provincial Assembly of the Punjab, by Mr. Imtiaz Rashid Siddiqui, Advocate, with the allegation against the petitioner-Muhammad Hamza Shahbaz Sharif as well as Sardar Dost Muhammad Mazari-petitioner for filing of false affidavits for which permission is sought to cross-examine them, are rejected for the simple reason that the said applicant-respondent has to first prove by leading evidence about falsehood of affidavits and contents thereof and the present cases are not of the nature in which such like proceedings can be allowed to be undertaken; hence, I am not inclined to permit to hold an inquiry being not in the fitness of things. It will be seen in any other case at proper time. Accordingly, C.M. No. 6/2022 seeking dispensation of certain documents appended with C.M. No. 5/2022 also stands dismissed.

(R.A.)

PLJ 2022 Lahore 472 (DB) [Multan Bench, Multan]

Present: Asjad Javaid Ghural and Muhammad Waheed Khan, JJ.

MUHAMMAD ZAMAN--Petitioner

versus

STATE etc.--Respondents

W.P. No. 5702 of 2020, decided on 12.1.2022.

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

----S. 426--Constitution of Pakistan, 1973, Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 365-A/34/37--Anti-Terrorism Act, 1997 (XXVII of 1997), S. 7--Suspension of sentence--Complainant specifically alleged that he has paid the ransom amount to co-accused--But the said accused was declared innocent during investigation--Complainant as well as alleged abductee appeared before the trial Court and exonerated the said co-accused from the commission of charge and ultimately he was acquitted--The role of the petitioner is on lesser footing as compared to his aforesaid acquitted co-accused--His responsibility to the extent of sharing common intention with the principal accused--He is behind the bars for a continuous period of more than 4 ½ years. There is no prospect of early hearing of petitioner’s appeal in near future--Petition is allowed. [P. 474] A, B & C

Ms. Shughfta Khaliq, Advocate for Petitioner.

Mr. Abdul Rehman Ahmad Khan Sidozai, Advocate for Complainant.

Mr. Sheharyar Mehboob, A.A.G. for State.

Date of hearing 12.1.2022.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner Muhammad Zaman has sought the suspension of his sentence awarded by the learned Judge, Anti-Terrorism Court, D.G. Khan vide judgment dated 20.02 2019 in case FIR No. 137/17 dated 23.04.2017, in respect of offences under Sections 365-A, 37 & 34, PPC read with Section 7 of Anti Terrorism Act, 1997, registered at Police Station, Kot Chutta, District D.G. Khan whereby he was convicted, and sentenced as under:

Under Sections 365-A read with Section 34/37, PPC

Imprisonment for life with confiscation of his moveable and immoveable property to the tune rupees three lac.

Under Section 7(e) of ATA, 1997

Imprisonment of life.

Both the sentences were ordered to run concurrently. He was given benefit of Section 382-B Cr.P.C.

1. Learned counsel for the petitioner seeks suspension of sentence on the ground that the co-accused namely Aman Ullah, to whom a specific allegation of receiving ransom amount and handing over the abductee to the complainant was attributed, was subsequently exonerated by the complainant and the abductee, as such he has been acquitted of the charge u/S. 265-K, Cr.P.C., therefore, the case of the petitioner needs reappraisal of the evidence at the time of final arguments in appeal.

2. On the other hand, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant has opposed this petition on the ground that the acquitted co-accused was declared innocent during investigation and nothing could be recovered from his possession, therefore, his case is distinguishable to that of the present petitioner; that the petitioner has been found guilty by the learned trial Court after appraisal of the evidence in its true perspective and, thus, the presumption of his innocence stands evaporated.

3. We have heard learned counsel for the parties and have perused the available record.

5. It has straightaway been observed that in the crime report, complainant specifically alleged that he has paid the ransom amount to co-accused Aman Ullah, who subsequently handed over the abductee to him but the said accused was declared innocent during investigation and report u/S. 173 Cr.P.C. was submitted by placing his name in Column No. 2 of the said report. In the said challan, complainant as well as alleged abductee appeared before the learned Trial Court and exonerated the said co-accused from the commission of charge and ultimately he was acquitted by the learned trial Court u/S. 265-K, Cr.P.C. vide order dated 21.01.2020. The role of the petitioner is on lessor footing as compared to his aforesaid acquitted co-’ accused and, thus, his responsibility to the extent of sharing common intention with the principal accused, needs reappraisal of the evidence at the time of arguments in the main appeal. The petitioner was arrested in this case in the month of May, 2017, the judgment impugned was passed on 20.02.2019 and he is behind the bars for a continuous period of more than 4½ years. There is no prospect of early hearing of petitioner’s appeal in near future. Nothing is available on record to show that he has earlier been proved to be a desperate or hardened criminal. In the circumstances, the petitioner is entitled to the relief of suspension of his sentence.

1. For what has been discussed above, this writ petition is allowed, the conviction and sentence of the petitioner is suspended and he is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- (one lac only) with one surety in the like amount to the satisfaction of the Deputy Registrar (J) of this Court till the final disposal of this appeal. He is directed to appear on every date of hearing till the final disposal of the main appeal.

(K.Q.B.) Petition allowed

PLJ 2022 Lahore 475 [Rawalpindi Bench Rawalpindi]

Present: Mirza Viqas Rauf, J.

BABAR NAWAZ and 3 others --Petitioners

versus

MUHAMMAD RIAZ--Respondent

C.R. No. 4-D of 2021, heard on 24.11.2021.

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

----S. 10--Specific Relief Act, (I of 1877), S. 8--Suit for possession and recovery of mense profit--Filing of application for stay of proceedings-Pendency of CPLA regarding suit property in Apex Court--Dismissed--Suit instituted by petitioner was prior to respondents suit--Scope of--Challenge to--Principle of res sub-judice--Suit instituted by Petitioner No. 1 was prior in time and it is relatable to "suit property" wherein respondent is also a party--Petitioners, while invoking provisions of Section 10. ibid, though moved an application before Civil Judge seeking stay of proceedings but their application was declined--From perusal of record it clearly evinces that previous suit is not only interse same parties but subject matter was also same--Suit instituted by respondent was not proceedable in view of pendency of suit filed by Petitioner No--1 as same was not only relatable to "suit property" but cause canvassed therein was having direct nexus and bearing to cause agitated in present suit--Both Courts below have misconstrued impact of Section 10 "CPC" while rejecting application of petitioner and allowing suit to proceed further--Revision petition allowed.

[Pp. 478 & 479] A, C, E, F & G

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

----S. 10--Primary objection--Section 10 of "CPC" places an embargo upon Court to proceed with trial of a suit-in which matter in issue is also directly and substantially in issue in a previously instituted suit between same parties, or between parties under whom they or any of them claim litigating under same title where such suit is pending in same or any other Court in Pakistan having jurisdiction to grant relief claimed, or in any Court beyond limits of Pakistan established or continued by Central Government and having like jurisdiction, or before Supreme Court--Section 10 of "CPC" is structured on principle of res sub-judice--Primary objection of Section 10 "CPC" is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same matters in issue.

[Pp. 478 & 479] B & D

Mr. Sana Ullah Zahid, Advocate for Petitioners.

Raja Zafar Iqbal, Advocate for Respondent.

Date of Hearing: 24.11.2021.

Judgment.

This petition under Section 115 of the Code of Civil Procedure (V of 1908) arises out of a judgment and decree dated 2nd November, 2020, whereby the learned Additional District Judge, Jhelum, proceeded to dismiss the appeal preferred by the petitioners as well as cross-objections filed by the respondent against the judgment and decree dated 24th October, 2019 passed by the learned Civil Judge Class-I, Jhelum.

1. Facts in precision necessary for adjudication of instant petition are that the respondent instituted a suit for possession, injunction and recovery of mesne profit averring therein that he purchased house No. C-233, situated in Bilal Town, Jhelum (hereinafter referred as "suit property") from Muhammad Hussain Shah s/o Barkat Ali Shah in the year 1993. As per averments contained in the plaint, allotment deed No. 269 dated 4th August, 1993 was also issued in favour of respondent by the department of Housing & Physical Planning Division, Jhelum. It is asserted that the respondent alongwith his family is settled in Germany since 1976 and his parents were living in the "suit property". It is averred that Petitioner No. 1 was since having no house, so he was allowed to reside in the suit house with his family by the respondent. In the year 2003, father of the respondent died whereas his mother departed in the year 2009. The respondent then requested the petitioners to vacate the "suit property" but they refused to do so. Suit was resisted by the petitioners by submitting written statement wherein they controverted the assertions contained in the plaint. They also raised some preliminary objections with regard to maintainability of the suit. A specific preliminary objection was also raised on the ground that Petitioner No. 1 has already preferred a suit, which was though dismissed but proceedings are pending before the High Court. From the divergent pleadings of the parties, multiple issues were framed and suit was finally decreed partly vide judgment dated 24th October, 2019. The petitioners, feeling aggrieved, preferred an appeal before the learned Additional District Judge-whereas the respondent also filed cross-objections in terms of Order XLI Rule 22 "CPC". The appeal as well as cross-objections were dismissed through impugned judgment and decree.

2. Learned counsel for the petitioners submitted that though it is the claim of the respondent that he is the owner of the "suit property" and he has handed over the same to Petitioner No. 1 for his temporary residence but this fact was specifically controverted by the petitioners with the assertion that the respondent, in the first instance, executed a special power of attorney in favour of Petitioner No. 1 and in furtherance thereof, he sold the "suit property" to him through an oral transaction while receiving the earnest money. Learned counsel contended that the Petitioner No. 1 has already preferred a suit for declaration, specific performance, permanent and mandatory injunction to that effect, which was dismissed vide judgment and decree dated 1st March, 2014 and now the matter is subjudice before the Hon'ble Supreme Court of Pakistan. Learned counsel maintained that during the pendency of suit, an application under Section 10 "CPC" was moved by the petitioners, which was dismissed by the learned Civil Judge vide order dated 15th July, 2019. It is contended that suit was finally partly decreed vide judgment dated 24th October, 2019 and while preferring the appeal, the petitioners though have set forth a ground of objection in the memorandum of appeal but it was not attended at all by the learned Appellate Court. Learned counsel emphasized that suit should not have been proceeded and the impugned judgments and decrees are nullity in the eye of law.

3. Conversely, learned counsel for the respondent submitted that there are concurrent findings of facts, which are based on proper appraisal of evidence. He added that suit was rightly proceed by the Courts below and the impugned judgments and decrees are unexceptionable.

4. Heard. Record perused.

5. Suit at hand was instituted by the respondent on the ground that he is owner of the "suit property", which was temporarily handed over to the Petitioner No. 1 for his residence. On the contrary, it is stance of the petitioners that the respondent had sold out the "suit property" to Petitioner No. 1 through an oral transaction and to this effect, he received the sale consideration. It is apparent from the record that Petitioner No. 1, to this effect, had already instituted a suit for declaration, specific performance, permanent and mandatory injunction, which was dismissedvide judgment and decree dated 1st March, 2014. It evinces from the record that proceedings in the said suit are now pending before the Hon'ble Apex Court in CPLA No. 3043 of 2018.

7. There is no cavil that suit instituted by Petitioner No. 1 was prior in time and it is relatable to the "suit property" wherein the respondent is also a party. Section 10 of "CPC" places an embargo upon the Court to proceed with the trial of a suit-in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Pakistan having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Pakistan established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. For ready reference and convenience, Section 10 of "CPC is reproduced below:

1. Stay of suit.--No Court shall proceed with the trial of a suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Pakistan having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Pakistan established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Section 10 of "CPC" was inserted in the Code for avoiding multiplicity of proceedings on same cause and obviate conflict of decisions and unnecessary labor on adjudication of a common suit. From the bare perusal of Section 10 of "CPC" reproduced hereinabove, it becomes manifestly clear that for invoking the provision, the following are the necessary limbs:

i. The matter in issue in both suits must be directly and substantially the same in both the proceedings.

ii. The previously instituted suit is pending in a Court of competent jurisdiction.

iii. The Court before whom the previous suit is pending must be competent to grant relief in the subsequent suit.

iv. Both the suits, i.e. the previous and the subsequent suits must be between the same parties or their representatives; and

v. The parties must be litigating under the same title.

8. The petitioners, while invoking the provisions of Section 10. ibid, though moved an application before the learned Civil Judge seeking stay of proceedings but their application was declined vide order dated 15th July, 2019. The petitioners though have not challenged the said order through separate proceedings but in terms of Section 105 of "CPC", they were entitled to set forth a ground .of objection in the memorandum of appeal as the said order was affecting the decision of the case. Suit was later on decreed partly vide judgment dated 24th October, 2019 against which the petitioners preferred an appeal wherein while invoking Section 105 of "CPC", they have categorically set forth a ground of objection as Ground No. 8 in the memorandum of appeal with regard to the said order.

9. It appears that the learned Additional District Judge has though adverted to the said aspect of the matter but he discarded the same on the ground that even if the CPLA filed by Petitioner No. 1 is decided in his favour, even then Section 144 of "CPC" will cater such a situation, suffice to observe that while observing so, the learned Additional District Judge was oblivious of the mandate of Section 144 "CPC", which clearly applies to the proceedings ensuing from the suit at hand and not to any other proceedings.

10. Section 10 of "CPC" is structured on the principle of res sub-judice. The primary objection of Section 10 "CPC" is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same matters in issue. While incorporating the above principle in the Code, it was apparently the intent of legislature to confine the parties to one suit with regard to the same cause in order to obviate the possibility of conflicting judgment. From the perusal of record it clearly evinces that previous suit is not only interse same parties but the subject matter was also the same. Reference in this respect can be made to Messrs H & B General Trading Company through Director v. Messrs International Marketing Company through Proprietor and 2 others (2009 CLC 354), Abdur Rashid and 6 others v. Muhammad Hanif and 2 others (1985 CLC 1887), Habib Bank Ltd. v. Ali Mohtaram Naqvi (PLD 1987 Karachi 102), Dr. Haider Ali Mithani and another v. Ishrat Swaleh and others (PLD 1999 Karachi 81) and Muhammad Chotey Khan v. Muhammad Muneer Khan (1999 CLC 1895).

11. After having examined the scope of Section 10 "CPC", there remains no cavil that suit instituted by the respondent was not proceedable in view of pendency of suit filed by Petitioner No. 1 as the same was not only relatable to the "suit property" but cause canvassed therein was having direct nexus and bearing to the cause agitated in the present suit.

12. The nutshell of above discussion is that both the Courts below have misconstrued the impact of Section 10 "CPC" while

rejecting the application of the petitioner and allowing the suit to proceed further. Resultantly this petition is allowed. As a sequel whereof, application moved by the petitioners under Section 10 "CPC" shall stand accepted declaring the order dated 15th July, 2019 as well as judgments and decrees nullity in the eye of law. As a sequel, the proceedings shall remain stayed till final conclusion of the proceedings in the previously instituted suit. No order as to costs.

(Y.A.) Petition allowed

PLJ 2022 Lahore 480 (DB)

Present: Masud Abid Naqvi and Shahid Bilal Hassan, JJ.

JAFAR ALI--Appellant

versus

LAHORE DEVELOPMENT AUTHORITY etc.--Respondents

I.C.A. No. 67102 of 2021, heard on 27.1.2022.

Law Reforms Ordinance, 1972--

----S. 3(2)--Lahore Development Authority Land Use Rules, 2014, R. 27--Application for commercialization of property--Decided as per direction in writ petition filed by petitioner--Maintainability--As per proviso (2) of Section 3 of Law Reforms Ordinance 1972, no appeal will be available or competent before a bench of two or more judges of a High Court from an order passed by a Single Judge of that Court in constitutional petition, if such petition arises out of any proceedings in which law applicable provides at least one appeal against original order--By bare reading of record as well as plain reading of provisions of law, we find that this appeal is not maintainable--Petition was dismissed. [P. 481] B

Lahore Development Authority Land Use Rules, 2014--

----R. 27--Appeal--Any person aggrieved by an action taken under these rules, may, within thirty days, file an appeal before Government.

[P. 481] A

Syed Faisal G. Meeran, Advocate for Appellants.

SahabzadaMuazaffar Ali, Advocate for Respondents.

Date of Hearing: 27.1.2022.

Judgment

MasudAbid Naqvi, J.--Brief facts of this appeal are that appellant filed an application for commercialization of his property before the Director Commercialization, LDA Lahore and the same was

decided in view of direction passed by the learned Single Judge in Chamber in Writ Petition No. 28162/2019 vide order dated 25.09.2019. Aggrieved by the above mentioned order, the appellant filed Writ Petition No. 8571/2020 which was disposed of by the learned Single Judge in Chamber vide order dated 05.10.2021 and the same order is challenged through this intra Court appeal.

1. Learned counsel for respondents/LDA argues that this appeal is not maintainable in view of Rule 27 of Lahore Development Authority Land Use Rules, 2014 ("Rules 2014") as the order dated 25.09.2019 passed by the Director Commercialization LDA Lahore was/is an appealable order as the same was/is passed under Rule 31 of the Rules 2014, ibid, while learned counsel for the appellant has failed to convince this Court regarding the maintainability of this appeal by referring any relevant provision of law/rules whatsoever.

3. Clearly, against the order dated 25.09.2019 passed by the Director Commercialization, LDA Lahore, the appellant had' the remedy of an appeal under Rule 27 of Rule 2014, which is reproduced for ready reference:

27. Appeal. (1) Any person aggrieved by an action taken under these rules, may, within thirty days, file an appeal before the Government.

(2)---------------

(3)---------------

4. As per the proviso (2) of Section 3 of Law Reforms Ordinance 1972, no appeal will be available or competent before a bench of two or more judges of a High Court from an order passed by a Single Judge of that Court in constitutional petition, if such petition arises out of any proceedings in which the law applicable provides at least one appeal against the original order. By bare reading of record as well as plain reading of provisions of law, we find that this appeal is not maintainable and the same is hereby dismissed.

(Y.A.) Appeal dismissed

PLJ 2022 Lahore 481

Present: Muhammad Sajid Mehmood Sethi, J.

MUHAMMAD ANWAR--Petitioner

versus

WAPDA through Chairman Wapda House, Lahore and others--Respondents

W.P. No. 73222 of 2021, decided on 12.1.2022.

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

----O.VII R. 10--Constitution of Pakistan, 1973, Art. 199--Electricity Act, 1910. S. 26(6)--Return of plaint--Bill of excess units--Powers of electric inspector--Jurisdiction--Challenge to--As per well-settled' principles of law, in matters relating to examining and working of metering equipment and other similar apparatus, Electric Inspector, on account of possessing special expertise, has jurisdiction to entertain reference under Section 26(6) of Electricity Act, 1910--Civil Court has no jurisdiction in suchlike matters, only Electric Inspector has powers to take cognizance thereof--Rightly observed that Civil Court is not equipped with required instruments or expertise to evaluate technicality of claim, thus, matter squarely comes within domain of Electric Inspector and thus, rightly returned plaint under allowing revision petition filed by respondent-WAPDA--Petitioner has failed to point out any illegality or legal infirmity in impugned order of Revisional Court--Petition was dismissed. [Pp. 483 & 484] A, B & C

PLD 2012 SC 371 ref.

Ch. Muhammad Sharif Zahid, Advocate for Petitioner.

Mr. Atique-ur-Rehman Sheikh, Advocate/Legal Advisor for Respondent-WAPDA.

Date of hearing: 12.1.2022.

Order

Through instant petition, petitioner has assailed vires of order dated 28.10.2021, passed by learned Additional District Judge, Kasur, whereby respondent-WAPDA's revision petition against order dated 12.01.2021, passed by learned Civil Judge, was allowed and plaint of the suit filed by petitioner, was returned under Order VII Rule 10 CPC.

1. Learned counsel for petitioner submits that the matter pertains to issuance of correct bill as per units consumed, therefore, Civil Court has got the jurisdiction to proceed in the matter. He further submits that observation of learned Additional District Judge that the matter has already been decided by the Ombudsman is wrong, as the said matter was regarding some other bill and had no nexus with the controversy involved in this case. He further submits that material aspects of the matter have been overlooked while passing impugned order, hence, same is unsustainable in the eye of law. In support, he relied upon Multan Electric Power Company Ltd. through "Chief Executive and another v. Muhammad Ashiq and others (PLD 2006 Supreme Court 328).

2. Conversely, learned Legal Advisor for respondent- WAPDA defends the impugned order.

3. Heard. Available record perused.

4. Perusal of record shows that the matter in hand was earlier agitated before the Wafaqi Mohtasib (Ombudsman)'s, Secretariat by way of filing complaint against respondent-WAPDA, which was withdrawn by the petitioner's side vide order dated 15.10.2014 upon assurance of respondent-WAPDA that the premises of complainant would be re-checked and excess units, if any, would be withdrawn, consequent whereof bill in question would be revised as per reading on the meter. The relevant part of said order is reproduced hereunder:

"The complaint pertained to charging of unjust detection bill. The complainant requested for redressal of his grievance.

1. The Agency in its report dated 26.08.2014 informed that the premises of the complainant would be re-checked, and excess units if any would be withdrawn to redress his grievance.

2. Joint hearing held. Both parties were present and heard. On receiving assurance from the Agency's official that his bill would be revised as per reading on the meter, the complainant agreed to withdraw his complaint.

3. In view of the above, further investigation of the above complaint is closed in terms of Regulation 23(1)(f) of the Wafaqi Mohtasib (Investigation and Disposal of Complaints) Regulations, 2013. Compliance be reported within 30 days from the receipt of these findings."

6. Even otherwise, the dispute pertains to the bill of excess units relating to electricity meter vide reference No. 19- 11722-1643200R for the agricultural connection in Mauza Sanda, Chastana, Tehsil & District Kasur. As per well-settled' principles of law, in the matters relating to examining and working of metering equipment and other similar apparatus, Electric Inspector, on account of possessing special expertise, has jurisdiction to entertain reference under Section 26(6) of the Electricity Act, 1910. Civil Court has no jurisdiction in suchlike matters, only Electric Inspector has powers to take cognizance thereof. Learned Revisional Court, while referring to case law reported as Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others (PLD 2012 Supreme Court 371), rightly observed that Civil Court is not equipped with

required instruments or expertise to evaluate the technicality of the claim, thus, the matter squarely comes within the domain of Electric Inspector and thus, rightly returned the plaint under Order VII, Rule 10 CPC by allowing the revision petition filed by respondent-WAPDA.

7. Petitioner has failed to point out any illegality or legal infirmity in the impugned order of learned Revisional Court. The case law relied upon by learned counsel for petitioner being distinguishable, is not attracted to the facts and circumstances of this case.

1. Resultantly, instant petition, being devoid of any merit, is dismissed. No order as to costs.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 484

Present: Ahmad Nadeem Arshad, J.

ABDUL HAMEED, etc.--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

C.R. No. 3650 of 2012, decided on 23.2.2022.

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

----S. 12--Suit for specific performance--Decreed with direction to payment of stamp duty as per market value--Sale agreement--Appeal--Dismissed--Challenge to--If legality of impugned decisions of Courts below are adjudged on touchstone of afore-referred judgment of Hon’ble Supreme Court there leaves no ambiguity that same have been passed strictly in accordance with law on subject--Though counsel appearing on behalf of petitioners has addressed Court at certain length but failed to point out any illegality or jurisdictional defect in impugned judgments and decrees of Courts below justifying interference by this Court in exercise of its revisional jurisdiction--Civil revision was dismissed. [P. 490] D

Stamp Act, 1899 (II of 1899)--

----S. 27-A--Excessive value of property--Moreover, as per proviso to Section 27-A of Act, if value of property mentioned in valuation table appears to be excessive, then aggrieved party may apply to Commissioner or any other person notified by Government and who shall determine correct value of property. [P. 488] A

Registration Act, 1908 (XVI of 1908)--

----S. 80--Determination of fee--All fees payable on a document shall be determined according rate prevalent at date of its presentation.

[P. 489] B

Punjab Registration Rules, 1929--

----R. 112--Duty of registration officer--A document which is presented for registration is required to be stamped as per stamp duty applicable on such day, when it is presented and it is duty of Registration Officer to examine document in order to determine whether it bears requisite stamps or requisite stamp duty has been paid. [P. 489] C

2016 SCMR 203 ref.

Ch. Muhammad Afzal, Advocate for Petitioners

Nemo for Respondent No. 3.

Date of hearing: 23.2.2022.

Judgment

Briefly put, the petitioners instituted a suit for specific performance of an agreement to sell against Respondent No. 3 which was contested by him. After full-fledged trial, the learned trial Court decreed the suit vide judgment & decree, dated 07.10.2011, with the direction that petitioners/plaintiffs would pay the requisite stamp duty as per market value of the suit land prevalent at the time of execution of registered sale deed in their favour. Petitioners/plaintiffs were further directed to get registered sale deed in their favour within 30 days, otherwise their suit would be deemed to have been dismissed. The petitioners preferred an appeal challenging condition imposed by the learned trial Court with regard to payment of stamp duty according to the rate prevalent at the time of registration of registered sale deed. The learned appellate Court dismissed the appeal in limine through decision, dated 11.07.2012; hence this revision petition.

1. Learned counsel for the petitioners submits that since the petitioners purchased the suit property against consideration of Rs. 8,50,000/- they were liable to pay stamp duty according to the said amount. Adds that when Respondent No. 3 admitted execution of agreement to sell between the parties the amount of consideration was to be considered as Rs. 8,50,000/- but while fixing the impugned condition regarding payment of stamp duty according to the rate of the suit property on the date of execution of formal sale deed not only the learned trial Court travelled beyond its jurisdiction but also the appellate Court omitted to note said blunder on the part of the learned trial Court. Adds that general law relating to payment of duties/fees on a written instrument on the date of presentation of a document cannot be stretched to the documents which are to be executed pursuant to the orders of the Courts.

2. Nobody appeared on behalf of Respondent No. 3 despite service.

3. I have heard the learned counsel for the petitioners and perused the file.

4. In pith and substance, the petitioners are aggrieved of the decree of learned trial Court to the extent of condition that the petitioners shall pay the requisite stamp duty as per market value of the suit property prevalent at the time of registration of sale deed. The relevant portion from the judgment passed by the learned trial Court is reproduced herein below:

“In view of my findings on above issues, suit of the plaintiffs is hereby decreed. The plaintiffs shall pay the requisite stamp duty as per present market value of the suit land at the time of execution of registered sale deed in their favour. The plaintiffs are further directed to get execute the registered sale deed within 30 days of this order, otherwise, this suit shall be deemed to have been dismissed.”

1. The learned appellate Court, vide decision dated 11.07.2012 dismissed the appeal of the petitioner in limine with following observations:

“Since the transfer of property is being made in the year 2012 and agreement to sell does not create any right of title. Since, transfer of property is being effected in the year 2012, therefore, there is no question to relinquish the present schedule of taxes and fee etc.”

The question of stamp duty usually arises when, after the sale of an immoveable property, it is transferred through an instrument by the seller to the buyer. Section 27 of the Stamp Act, 1899 (hereinafter to be referred as “the Act 1899”, deals with the matters relating to registration of instruments, which reads as under:

1. Facts affecting duty to be set forth in instrument.--The consideration (if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein.

Conceivably, due to increasing tendency of evading stamp duty by the buyers and sellers by mentioning lesser amount of consideration, the legislature deemed it appropriate to amend the Stamp Act, 1899, through Punjab Finance Act, 2008 by inserting Section 27-A which for convenience of reference is reproduced hereunder:

[27-A. Value of immovable property.--(1) Where any instrument chargeable with ad valorem duty under Articles [23, 27–A, 31, 33, 35 (1)(b), 48 (b), 48 (bb), 55(b), 63 and 63–A] of Schedule 1, relates to an immovable property, the value of the immovable property shall be calculated according to the valuation table notified by the District Collector in respect of immovable property situated in the locality.

[(2) Where an instrument mentioned in subsection (1) relates to an immovable property consisting of land and structure including a multi-storey building, such instrument shall state the value of the land and structure separately, and stamp duty on the structure shall be calculated as per the covered area or the area of the structure mentioned in the instrument whichever is higher, and in case there is no approved building plan, two percent duty of the value of land in addition to payable duty shall be charged.]

(3) Where the value of immovable property stated in an instrument to which sub-section (1) applies is more than the value fixed according to the valuation table, the value declared in the instrument shall be accepted as value for the purposes of stamp duty.

(4) Where the value given in the valuation table notified under sub-section (1), when applied to any immovable property, appears to be excessive, the [Commissioner] or any other person notified by the Government may, on application made to him by the aggrieved person, determine its correct value and for that purpose the provisions of sections 31 and 32 shall apply as nearly as possible.]

From the above provision of law, it is crystal clear that ad-volorem duty is required to be calculated and charged according to the valuation table. The Stamp Act is a self-contained law on the subject of stamps and provides for the payment of stamp duty on different kinds of instruments. Section 10 of the Stamp Act, 1899, deals with payments of duties on instruments which for facility of reference is reproduced herein below:

“10. Duties how to be paid.--(1) Except as otherwise expressly provided in this Act, all duties with which any instruments are chargeable shall be paid, and such payment shall be indicated on such instruments by means of Stamps[or e-stamps]

(a) according to the provisions herein contained; or

(b) when no such provision is applicable thereto as the Provincial Govt. may by Rule direct.

(2) The rules made under sub-section (1) may, among other matters regulate,-

(a) in the case of each kind of instrument, the description of stamps [or e-stamps] which may be used;

(b) in the case of instruments stamped with impressed stamps-the number of stamps which may be used;

(c) in the case of bills of exchange or promissory notes written in any Oriental language- the size of the paper on which they are written.”

Further, Section 17 of the Stamp Act, 1899 provides guidelines regarding chargeability of stamp duty on an instrument. The said provision is reproduced herein below:-

“17. Instruments executed in Pakistan.--All instruments chargeable with duty and executed by any person in Pakistan shall be stamped before or at the time of execution”.

Moreover, as per proviso to the Section 27-A of the Act, if the value of property mentioned in the valuation table appears to be excessive, then the aggrieved party may apply to Commissioner or any other person notified by the Government and who shall determine the correct value of the property.

1. The Registration Act, 1908, deals with the registration of documents which are either compulsorily register-able in terms of Section 17 of the said Act or their registration is optional under Section 18 of the Act. Part XII of the Registration Act 1908, deals with the situation where the authority refuses to register a document whereas Rule 112 of the Punjab Registration Rules, 1929, encompasses the duties of the Registering Officer. The said Rule starts with the following sentence:

“112. Examination as to stamp-Cancellation of Court-fee stamps.--When a document is presented for registration, the first duty of the Registering Officer is to examine it so as to see that it is duly stamped; this is an obligation imposed by law, which must take precedence of all other procedure. Special power-of-attorney for the conduct of cases in British Courts should be stamped with Court-fee labels according to the scale in Article 10 Schedule 11 of the Court Fees Act, 1870; but all other power-of-attorney including those for the conduct of cases in foreign Courts, whether special or general, must be stamped with non-judicial stamps according to Article 48, Schedule 1-A of the Stamp Act, 1899. When a document bearing a Court-fee label is, presented for registration, the registering officer, before returning it after registration, will cancel the label by writing the word “registered” with this signature and the date of registration across it.”

Similarly, Section 80 of The Registration Act, 1908 provides that all fees payable on a document shall be determined according the rate prevalent at the date of its presentation. The accumulative reading of the above-referred provisions of different legislative pieces and the Rules makes it abundantly clear that all the requisite fees on a written instrument are payable according to the rate prevalent on the date of presentation of the said document.

8. Admittedly, the petitioners instituted suit for specific performance of an agreement to sell dated 19.05.1987 (registered on 26.05.1987) on 22.01.2011 with regard to a plot measuring 07 kanals 19 marlas 07 sersahi which was agreed to be sold against consideration of Rs. 8,50,000/-. The respondent, while admitting the execution of the agreement to sell, contested the suit on other grounds. The learned trial Court, after full-fledge trial, keeping in view the relevant provisions of law, directed the petitioners to pay the requisite stamp duty as per market value of the suit land prevailing at the time of execution of registered sale deed. As discussed earlier a document which is presented for registration is required to be stamped as per the stamp duty applicable on such day, when it is presented and it is the duty of the Registration Officer to examine the document in order to determine whether it bears the requisite stamps or the requisite stamp duty has been paid. The august Supreme Court of Pakistan, in its judgment cited as “Dy. District Officer (Revenue) Lahore and others versus Raja Muhammad Yousaf and others” (2016 SCMR 203) clinched the issue, under discussion, as under:

“A document which is presented for registration is required to be stamped as per the stamp duty applicable on such date, and it makes no difference whether the document was voluntarily presented by the executants thereof or has been prepared pursuant to a decree. The Registering Officer examines the document to determine whether it bears the requisite stamp or the requisite stamp duty has been paid. The date, the document is presented for registration, is the material date, and it is immaterial whether it has been prepared pursuant to a decree of a Court. And if a valuation table has been notified pursuant to Section 27-A(i) of the Stamp Act, then the amount of the stamp duty is to be calculated on the basis of such notional/deemed valuation. This is the only conclusion that can be reached from a consideration of the applicable legal provisions mentioned above, including Section 10, 17, 27 and 27-A of the Stamp Act.”

Further, in the referred case, while dealing with the question regarding payment of stamp duty in the cases where conveyance/sale deeds prepared pursuant to a decree in a suit for specific performance, the apex Court of country has inter alia clarified as under:-

“Conveyance/sale deeds prepared pursuant to a decree in a suit for specific performance shall be stamped in accordance with stamp duty as is applicable under the Stamp Act on the date the same is presented for registration, however, if a valuation table has been notified pursuant to Section 27-A(i) of the Stamp Act, then the applicable stamp duty will be calculated in accordance therewith in respect of documents wherein the sale consideration that is mentioned is less than that specified in the said valuation table.”

If the legality of the impugned decisions of the Courts below are adjudged on the touchstone of the afore-referred judgment of the Hon’ble Supreme Court there leaves no ambiguity that the same have been passed strictly in accordance with law on the subject. Though learned counsel appearing on behalf of the petitioners has addressed the Court at certain length but failed to point out any illegality or jurisdictional defect in the impugned judgments and decrees of Courts below justifying interference by this Court in exercise of its revisional jurisdiction.

1. For what has been discussed above, I see no force in the instant Civil Revision which is accordingly dismissed with no order as to costs.

(Y.A.) Revision dismissed

PLJ 2022 Lahore 491 (DB)[Rawalpindi Bench, Rawalpindi]

Present: Mirza Viqas Rauf and Raheel Kamran, JJ.

HAMNA RAZZAQ--Petitioner

versus

FEDERATION OF PAKISTAN through Ministry of National Health Services Regulations and Co-ordination Islamabad and 4 others--Respondents

W.P. No. 3171 of 2021, decided on 14.12.2021.

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

----S. 18(1)--Educational institution--Entry test for purpose of admission in medical colleges--Future of student--Petitioners, in order to get admission in Medical & Dental Colleges, participated in entry tests conducted by Respondent No. 3 with collaboration of Respondent No. 4--While feeling aggrieved from manner of conducting examination, they have challenged process of examination as well as vires of "Act, 2020" and "Regulations--During pendency of these petitions before us, certain further developments have taken place, which cannot be ignored--For foregoing reasons, this petition as well as connected W.P. Nos. 3034, 3105 and 3252 of 2021 are dismissed--Petitioners may, however, avail alternate remedy in accordance with law.

[Pp. 494, 495 & 496] A, B & C

Mr. Hassan Raza Pasha, Advocate for Petitioner.

Sardar Abdul Raziq Khan, Advocate for Petitioners (in W.P. No. 3034 of 2021.

Sh. Muhammad Suleman, Advocate for Petitioner (in W.P. No. 3252/2021).

M/s. Malik Asif Taufeeq Awan, Kalim-ud-Din Malik and Faheem Ahmed Chaudhry, Advocates (in W.P. No. 3105/21).

Mr. Tariq Mehmood Khokhar, Additional Attorney General, Mr. Haroon Irshad Janjua, Deputy Attorney General and Mr. Saqlain Haider Awan, Assistant Attorney General for Pakistan.

Mr. Mujeeb-ur-Rehman Kiyani, Additional Advocate General, Punjab.

Barrister Taimoor Aslam Khan, Advocate for Respondent No. 3.

Date of hearing: 14.12.2021.

Order

Through this single order we intend to dispose of the titled writ petition along with W.P. Nos. 3034,3105 and 3252 of 2021 as common questions of law and fact are involved in these petitions.

1. The petitioners being candidates for the entry test for the purpose of admission in Medical and Dental Colleges are aggrieved of the manner of conducting the examination by the respondents have, inter alia, thrown a challenge to Pakistan Medical Commission Conduct of Examinations Regulations, 2021 (hereinafter referred to as "Regulations, 2021") framed by PMC for being ultra vires the provisions of Section 18(1) of the Pakistan Medical Commission Act, 2020 (hereinafter referred as "Act, 2020") and Articles 4, 10-A and 25 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution"). These petitions were resisted by the respondents mainly on the ground that in a similar situation, this Court in Writ Petition No. 56763/2021 titled, "Rida Fatima v. Pakistan Medical Commission, etc." has already decided the issue while declaring the provisions of statute as intra vires with the observations that since the matter relates to the future of medical students, therefore, the petitioners, if so advised, may file their review(s) before the Pakistan Medical Commission for redressal of their grievance under the terms and conditions as mentioned in paragraph No. 10 and 26.

2. These writ petitions were initially fixed for hearing before a Single Bench comprising one of us (Mirza Viqas Rauf, J.), however, in view of the submission made by learned counsels for the petitioners to the effect that the judgment in the case of Rida Fatima supra appeared to be the outcome of lack of proper assistance, in which the learned Single Bench found weight, the matter was placed before the Hon'ble Chief Justice vide order dated 3.11.2021 for the constitution of a larger Bench for adjudication of the matter and accordingly this Bench was constituted by the orders of the Hon'ble Chief Justice.

3. By order dated 24.11.2021, notice under Order XXVII-A of the Code of Civil Procedure (V of 1908) was issued to the learned Attorney General for Pakistan in the light of law enunciated in the case of Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. A/tab Ahmad Khan Sherpao and others (PLD 1992 SC 723). Thereafter these cases were fixed for 1.12.2021, 2.12.2021, 6.12.2021, 9.12.2021 and 14.12.2021 to hear the learned Attorney General for Pakistan, but despite extending every possible opportunity, he did not turn up on account of his service exigencies. We thus having no other option proceeded with the case accordingly.

4. Learned counsels for the petitioners, inter alia, contended that the entry test was conducted in oblivion to the mandate of Section 18 of the "Act, 2020" whereunder it is specifically provided that the Authority shall conduct annually on a date approved by the Council and as per standards approved by the Board a single admissions test which shall be a mandatory requirement for all students seeking admission to medical or dental under-graduate programs anywhere in Pakistan. While going through Section 20 of the "Act, 2020" and Regulations No. 5 & 6 of "Regulations, 2021" learned counsels emphasized that the respondents have completely failed to adhere to the mandatory provisions in conducting the admission tests which renders the whole process nullity in the eye of law. It is contended with vehemence that "Act, 2020" was promulgated to provide for the regulation and control of the medical profession and to establish a uniform minimum standard of basic and higher medical education and training and recognition of qualifications in medicine and dentistry. Learned counsels, while making reference to the results announced by the respondents in pursuance of the admission tests submitted that whole process is lacking transparency. They added that this aspect is even affirmed by the press release issued by the Punjab Medical Commission. Learned counsels submitted that remedy of appeal, review, revision is a creation of statute. They further added that constitutional jurisdiction cannot be abridged merely on the ground that some other remedy is available. Learned counsels argued that even otherwise, there is no remedy available to the candidates appearing in the examination and the respondents, in order to frustrate the process of law, have taken a stance that the remedy of review is available to the candidates in the light of which in the case of Rida Fatima supra, the petitioner was directed to file review, which was never permissible under the law. Learned counsels contended that in view of glaring illegalities and irregularities committed by the respondents in the process of admission tests, future of thousands of students has been put at stake and this is a classic case, which requires judicial review and scrutiny by this Court in exercise of constitutional jurisdiction.

5. Learned counsel for Respondent No. 3 contended that Section 18(1) of the "Act, 2020" does not restrict or prohibit the entry test to be computerised so the Council has acted with lawful authority in approving the same and the Regulations, 2001 are intra vires. He added that these writ petitions are not maintainable in view of decision of the learned Division Bench of this Court dated 8.11.2021 passed in ICA No. 68369 of 2021. He also emphasized that the judgment in the case of Rida Fatima supra which was assailed in Civil Petition No. 5815 of 2021 before the Hon'ble Supreme Court of Pakistan, was upheld in that leave was not granted and the petitioner therein was allowed to withdraw the same in order to enable him to avail the review as ordered by the High Court in para No. 23 of the impugned judgment.

6. Learned counsels for the petitioners, in rebuttal, have contended that by order dated 06.12.2021 Civil Petition No. 5815 of 2021 has only been dismissed as withdrawn on the statement of learned counsel for the petitioner to avail the remedy of review as ordered by the High Court in Para No. 23 of the judgment impugned therein and as such there is no order passed by the Hon'ble Supreme Court of Pakistan refusing to grant leave or otherwise upholding the judgment in the case or Rida Fatima supra.

7. Heard. Record perused.

9. The petitioners, in order to get the admission in the Medical & Dental Colleges, participated in the entry tests conducted by Respondent No. 3 with the collaboration of Respondent No. 4. While feeling aggrieved from the manner of conducting the examination, they have challenged the process of examination as well as vires of "Act, 2020" and "Regulations, 2021". A similar petition i.e. W.P. No. 56763 of 2021 titled "Rida Fatima v. Pakistan Medical Commission, etc." was placed before a learned Single Bench of this Court at Lahore, who decided the same vide order dated 20th October, 2021. These petitions, however, when were placed before one of us (Mirza Viqas Rauf J.) through order dated 3rd November, 2021, while making following observations, the matter was referred to the Hon'ble Chief Justice:

"The petitioner being candidate for the entry test for the purpose of admission in medical and dental college is aggrieved of not only the manner of conducting the examination by the respondents but she also throws a challenge to the provisions of Pakistan Medical Commission Act, 2020 (hereinafter referred as "Act, 2020") as well as Pakistan Medical Commission Conduct of Examinations Regulations, 2021 (hereinafter referred as "Regulations, 2021").

1. This petition is resisted by the respondents mainly on the ground that in a similar situation, this Court in W.P. No. 56763 of 2021 titled "Rida Fatima v. Pakistan Medical Commission, etc." has already decided the issue while declaring the provisions of statute as intra vires with the observations that since the matter relates to the future of medical students, therefore, the petitioners, if so advised, may file their review (s) before the Pakistan Medical Commission for redressal of their grievance under the terms and conditions as mentioned in Paragraph No. 10, for which the deadline has been extended till 29th October, 2021.

2. Learned counsel for the petitioner, however, submitted that judgment in the case of Rida Fatima supra appears to be the outcome of lack of proper assistance. It is contended that entry test was conducted in oblivion of mandate of Section 18 of the "Act, 2020" whereunder it is specifically provided that the Authority shall conduct annually on a date approved by the Council and as per standards approved by the Board a single admissions test which shall be a mandatory requirement for all students seeking admission to medical or dental under-graduate programs anywhere in Pakistan. While going through Section 20 of the "Act, 2020" and regulations No. 5 and 6 of "Regulations, 2021", learned counsel emphasized that the respondents have completely failed to adhere the mandatory provisions while conducting the admission test which renders the whole process nullity in the eye of law. It is contended with vehemence that "Act, 2020" was promulgated to provide for the regulation and control of the medical profession and to establish a uniform minimum standard of basic and higher medical education and training and recognition of qualifications in medicine and dentistry. Learned counsel, while making reference to the results announced by the respondents in pursuance to the admission tests submitted that the whole process is depicting non-transparency. He added that this aspect is even affirmed by the press release issued by the Punjab Medical Commission. Learned counsel submitted that remedy of appeal, review, revision is a creation of statute. He further added that constitutional jurisdiction cannot be abridged merely on the ground that some other remedy is available. Learned counsel argued that even otherwise, there is no remedy available to the candidates appearing, in the examination and the respondents, in order to frustrate the process of law, have taken a stance that the remedy of review is available to the candidates in the light of which in the case of Rida Fatima supra, the petitioner was directed to file review, which was never permissible under the law. Learned counsel contended that in view of glaring illegalities and irregularities committed by the respondents in the process of admission tests, future of thousands of students has been put at stake and this is a classic case, which requires judicial review and scrutiny by this Court in exercise of constitutional jurisdiction.

3. After having heard respective contentions of learned counsel for the parties, I do find reasonable weight in the contentions raised at the Bar by learned counsel for the petitioner. It appears that above noted aspects were not properly brought in the notice of Court in the case of Rida Fatima supra. It would, thus, be apt to place this matter before the Hon'ble Chief Justice for constitution of larger Bench for the resolution of matter in issue.

4. Office to proceed accordingly."

10. We are mindful of the fact that during the pendency of these petitions before us, certain further developments have taken place, which cannot be ignored. The judgment in the case of Rida Fatima case supra was assailed in I.C.A.No. 68369 of 2021 before the learned Division Bench of this Court, who proceeded to dismiss the same being not maintainable vide order dated 8th November, 2021. The relevant extract from the same is reproduced below.

"4. At the outset, learned counsel representing the Federation has submitted that the instant ICA and the connected ICA are not maintainable. He has further submitted that any order or direction passed by the Commission including the Council, Authority or Disciplinary Committee under the provisions of Pakistan Medical Commission Act, 2020 are appealable through an appeal before the Medical Tribunal as provided under Section 37 of Pakistan Medical Commission Act, 2020. In response, learned counsel for the appellants could not satisfy us with regards to the stance taken up by the learned law officer. Therefore, in such eventuality, when the appellants have an alternate and efficacious remedy of appeal before the Medical Tribunal, their grievance through the constitutional jurisdiction cannot be met out.

1. In this view of the matter, this appeal and the connected appeal i.e. I.C.A. No. 69124 of 2021 being not maintainable are dismissed, accordingly."

2. We have also noticed that in the meanwhile, C.P.No. 5815 of 2021 was also filed before the Hon'ble Supreme Court of Pakistan against the judgment passed in Rida Fatima's case supra. The petition was, however, withdrawn vide order dated 16th December, 2021, which is reproduced below for ready reference and convenience:-

"In order to avail the review as recorded by the High Court in para No. 23 of the impugned judgment, learned

counsel for the petitioners wants to withdraw this petition. Consequently, this petition is dismissed as withdrawn."

1. We thus are constrained to observe that in the light of above developments, we have no other option except to follow the principles laid down therein as is held in Multiline Associates v. Ardeshir Cowasjee And Others (1995 SCMR 362).

13. For the foregoing reasons, this petition as well as connected W.P. Nos. 3034, 3105 and 3252 of 2021 are dismissed. The petitioners may, however, avail the alternate remedy in accordance with law.

(R.A.) Petition dismissed

PLJ 2022 Lahore 497

Present: Muhammad Sajid Mehmood Sethi, J.

MUNAZIR ALI RANJHA--Petitioner

versus

MUHAMMAD AHMAD SAQIB and others--Respondents

W.P. No. 72503 of 2021, decided on 16.2.2022.

Constitution of Pakistan, 1973--

----Art. 199--General Clauses Act, (X of 1897), S. 24-A--Application for cancellation of written statement and power of attorney--Concurrently dismissed--Lacking of valid lawful reasons-- Constitutional jurisdiction--Revisional Court has neither noted contentions of petitioner nor properly thrashed out while passing impugned order, thus, same, lacking valid lawful reasons, has been passed in violation of the provisions of Section 24-A of General Clauses Act, 1897, which binds down Judge to assign reasoning and pass speaking order/judgment--Where reasons are not forthcoming from impugned order/judgment, appellate/revisional authority/ Higher Court is deprived of valuable views of subordinate forum--In these circumstances, impugned revisional order is amenable to constitutional jurisdiction of this Court--Petition was allowed.

[Pp. 498 & 499] A

2010 SCMR 511, 2011 SCMR 1 and 2015 SCMR 1550 ref.

Mr. Sheraz Zaka, Advocate for Petitioner.

Mr. Ahsan Ullah Ranjha, Advocate for Respondent No. 1.

Date of hearing: 16.2.2022.

Order

Through instant petition, petitioner has challenged vires of orders dated 20.05.2021 & 20.10.2021, passed by learned Civil Judge and Additional District Judge, Kotmomin, respectively, whereby petitioner's application for cancellation of written statement as well as power of attorney was concurrently dismissed.

1. Learned counsel for petitioner submits that neither conceding written statement was signed by petitioner nor was it given with free consent. He adds that material aspects of the matter have been overlooked while passing impugned orders, thus, same are unsustainable in the eye of law.

2. Conversely, learned counsel for Respondent No. 1 defends the impugned orders.

3. Arguments heard. Available record perused.,'

4. The main contentions of petitioner are that he neither appointed any Advocate nor authorized any person to file conceding written statement on his behalf; that on 22.10.2020, petitioner was identified by learned counsel of plaintiff/Respondent No. 1 rather by counsel allegedly engaged by petitioner, which shows mala fide and ulterior motive of Respondent No. 1; that petitioner's signatures on the margins of order sheet of learned Trial Court are different as on orders dated 18.08.2020, 18.05.2021 and 20.05.2021; that even otherwise, admissions attributed to the petitioner/defendant in the written statement were not of the nature as to show that he was confessing the claim of Respondent No. 1/plaintiff; that Trial Court cannot pass judgment on the basis of such admissions within the purview of Order XII Rule 6 CPC, rather it is incumbent upon the Trial Court to frame issues and then decide the case in accordance with the procedure provided in Civil Procedure Code, 1908. He has placed reliance upon Federation of Pakistan through Cabinet Secretary to the Government of Pakistan, Cabinet Secretariat Islamabad and 2 others v. Ally Brothers & Company (Pak) Ltd. through Managing Director/Chief Executive and another (2001 MLD 1615).

6. Perusal of the impugned revisional order shows that learned Revisional Court has neither noted the contentions of petitioner nor properly thrashed out while passing impugned order, thus, same, lacking valid lawful reasons, has been passed in violation of the provisions of Section 24-A of the General Clauses Act, 1897, which binds down the Judge to assign reasoning and pass speaking order/judgment. Where the reasons are not forthcoming from the impugned order/judgment, the appellate/revisional authority/Higher

Court is deprived of the valuable views of the subordinate forum. In these circumstances, impugned revisional order is amenable to the constitutional jurisdiction of this Court. Reliance, in this regard, can be placed upon Province of Sindh throush Secretary Education, Government of Sindh, Karachi and 3 others v. Miss Saima Bano and others (2003 SCMR 1126), Muhammad Farooq Shah v. Shakirullah (2006 SCMR 1657), Abdul Majeed Zafar and others v. Governor of the Punjab through Chief Secretary and others (2007 SCMR 330), Umar Din through L.Rs. v. Mst. Shakeela Bibi and others (2009 SCMR 29), Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others (2010 SCMR 511), Government of Pakistan through Director-General Ministry of Interior, Islamabad and others v. Farheen Rashid (2011 SCMR 1) and Messrs MFMY Industries Ltd. and others v. Federation of Pakistan through Ministry of Commerce and others (2015 SCMR 1550).

1. In view of the above, instant petition is allowed and impugned .order dated 20.10.2021 is set aside. The case is remitted to learned Revisional Court with direction to re- decide the same through a well-reasoned speaking order, strictly in accordance with law, preferably within a period of thirty days from the date of receipt of certified copy of this order. Parties are directed to appear before learned Additional District Judge on 28.02.2022. Compliance report shall be furnished to this Court through Deputy Registrar (Judicial).

(Y.A.) Petition allowed

PLJ 2022 Lahore 499

Present: Ch. Muhammad iqbal, J.

ARIF MAHMOOD--Appellant

versus

AZHAR IQBAL--Respondent

R.F.A. No. 274 of 2018, heard on 28.6.2021.

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

----O.XXXVII R. 2(2) & S. 96--Suit for recovery on basis of dishonoured cheque--Rendition of accounts--Issuance of cheque as well as partnership of business--Leave to defend was allowed subjects to submission of surety bonds equivalent to disputed amount--Application for extension of time and submission of surety was dismissed--Validity--Since acceptance of PLA sufficient time was given by trial Court as well as this Court to appellant for furnishing of surety bonds but it transpires from record that appellant neither made any bona fide effort to comply with orders of Court and nor fulfilled conditions imposed by Courts as such conditional order to extent of leave to appear and defend suit would automatically cease to have any effect. [P. 502] A

Negotiable Instrument Act, 1881 (XXVI of 1881)--

----S. 118--Issuance of negotiable instrument--Cheque--Presumption--Under Section 118 of Negotiable Instruments Act a strong legal presumption of issuance negotiable instrument (cheque) against negotiable instrument (cheque) against consideration is attached to said document and appellant was placed under heavier obligation to produce extraordinary trustworthy corroborative evidence to dissipate presumption but he contumaciously showed defiance to orders of Court and deliberately missed opportunity of defending suit and has failed to dislodge above legal presumption which disentitled him from any relief. [P. 503] B

Rana Muhammad Iqbal Noon, Advocate for Appellant.

M/s. Rana Muhammad Asif Saeed Khan & Malik Amir Javed Butta, Advocates for Respondent.

Date of hearing: 28.6.2021.

Judgment

Through this single judgment, I intend to decide the titled RFA along with connected RFA Nos. 273 & 275 of 2018 as common questions of law and facts are involved in these appeals.

1. Through these Regular First Appeal under Section 96 CPC, the appellant has challenged the validity of order & decree dated 18.10.2018 passed by the learned Addl. District Judge, Burewala who decreed the suit for recovery of Rs. 3,35,00,000/- filed by the respondent in terms of sub-rule (2) of Rule 2 of Order XXXVII CPC.

2. Brief facts of these appeals are that the respondent/plaintiff filed suit for recovery of Rs. 3,35,00,000/- on the basis of dishonoured cheque dated 02.06.2017 under Order XXXVII Rules 1 & 2 CPC against the appellant/defendant contending therein that both the parties are close relatives and they entered into joint business in the year 2010 for setting up Housing Colonies in District Faisalabad. In the year 2017 they renditioned the accounts of business. A sum of Rs. 4,53,00,000/- was accrued in favour of the plaintiff as profit, out of which Rs. 97,00,000/- was paid whereas a Cheque No. 11562226 dated 02.06.2017 of Silk Bank Sargodha Branch regarding the remaining amount of Rs. 3,35,00,000/- was issued in favour of the appellant. On presentation of the said cheque the same was dishonoured.

Appellant/defendant filed petition for leave to appear and defend the suit in which the learned counsel of the respondent made his conceding statement on 02.10.2018 .that the plaintiff has no objection for acceptance of leave to defend subject to submission of surety bonds equivalent to suit amount. The learned Addl. District Judge, Burewala on the basis of above statement granted leave to appear and defend the suit on 08.10.2018 subject to furnishing of surety bonds equivalent to the disputed amount of Rs. 97,00,000/- with one surety in the like amount to the satisfaction of the Court with further stipulation that in case the suit is decreed in favour of the plaintiff, both defendant/appellant and the surety would be bound to pay the decretal amount. Surety bonds be deposited within 10 days. The appellant filed application for extension of time of submission of the surety which was dismissed and on the same day, suit of the respondent was decreed vide order & decree dated 18.10.2018. Hence, these appeals.

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

2. Issuance of cheque as well as partnership of business is admitted between the parties. On 02.10.2018, the learned counsel for the respondent/plaintiff made statement that the plaintiff has no objection if the leave to defend of the appellant is allowed subject to submission of surety bonds equivalent to the disputed amount. On 08.10.2018, the learned trial Court allowed the petition for leave to defend the suit subject to furnishing surety bonds equivalent to the disputed amount of Rs. 97,00,000/-within ten days but the appellant did not comply with order rather filed application u/S. 148 CPC for extension of time without any good cause. The said application was dismissed by the learned trial Court vide order dated 18.10.2018 directing the appellant to submit surety bonds in terms of order dated 08.10.2018 but he did not comply with the above said order of the Court whereas the learned trial Court at 3:30 pm decreed the suit of the respondent while exercising his power under Rule 2(2) of Order XXXVII, CPC and decreed the suit.

3. Even otherwise, this Court vide order dated 31.05.2019 passed restraining order on application (CM No. 01-C of 2018) for the grant of interim relief;

"Subject to deposit, of 1/3rd of decretal amount and submission of 3rd party surety equivalent to remaining decretal, amount within two months from today with the Deputy Registrar (Judicial) of this Court and notice for the given date, the operation of impugned decree is suspended in the meanwhile. If ad-interim injunction is not extended on any future date, the same shall stand vacated."

Even, the said order of this Court was also not complied with by the appellant and he filed an application (C.M. No. 2883-C/2019) on 24.10.2019 for modification of order dated 31.05.2019 and this Court vide order dated 26.11.2019 modified the order dated 31.05.20i9 in the terms that the appellant will submit bank guarantee equivalent to 1/3rd of the decretal amount and furnish third party surety bond equivalent to the remaining decretal amount supported by property in any district of the province within thirty days with the Deputy Registrar (Judicial) of this Court but as per record the said order was also not complied with by the appellant whereafter he filed application (CM.No. 58-C of 2020) for extension of time on 16.01.2020 for compliance of order dated 26.11.2019. Since acceptance of the PLA sufficient time was given by the learned trial Court as well as this Court to the appellant for furnishing of the surety bonds but it transpires from the record that the appellant neither made any bona fide effort to comply with the orders of the Court and nor fulfilled the conditions imposed by the Courts as such the conditional order to extent of leave to appear and defend the suit would automatically cease to have any effect. Reliance is placed on the case titled as Abdullah vs. Shaukat (2001 SCMR 60). Relevant portion is reproduced as under:

"5. The appellant had all the time in the world to comply with the direction, dated 18.1.1992 and that too by submitting a personal surety bond in the sum of Rs. 22,400 between 18.01.1992 and 9.2.1992. He did not do so and his failure was rightly considered by the learned District Judge and the learned Judge in the Lahore High Court, Multan Bench as tantamount to admission of the claim of the other side."

In another case titled as Muhammad Ramzan & others vs. Ghulam Qadir (2011 SCMR 659) the Hon’ble Supreme Court of Pakistan held as under:

"It is not denied that it was within the discretion of the learned trial Court to grant leave to defend the suit subject to imposition of condition. The order of the learned trial Court on that regard was perfectly legal, furthermore it was not challenged by the petitioners. The petitioners were given sufficient time to comply with the direction of the learned trial Court vis-a-vis furnishing the surety bonds but the orders were not complied with for no justifiable reasons. The learned trial Court rightly dismissed the applications of the petitioners seeking leave to defend. The learned counsel failed to point out any irregularity or infirmity in the judgments passed by the learned Courts below."

In a case titled as Abbas Ali & Another vs. Asif Abbas & 3 Others (2016 CLD 555) wherein it is held as under:

"8. In view of the law laid down by the Hon 'ole Supreme Court, it is clear that when leave to appear and defend the suit is granted to the defendant subject to any condition, it would imply that if such condition is not fulfilled and the conditional leave granting order is not complied with by the defendant, such order shall cease to have effect to the extent of grant of leave to appear and defend the suit; and in such an event, the defendant's application for leave to appear and defend the suit shall be deemed to have been' dismissed. The overall effect of the above would be that the averments and allegations made in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree under Rule (2) of Order XXXVII. CPC."

Reliance is also placed on the case titled as Haji Ali Khan & Company. Abbottabad & 8 Others vs. M/s. Allied Bank of Pakistan Limited. Abbottabad (PLD 1995 SC 352).

7. Under Section 118 of the Negotiable Instruments Act a strong legal presumption of issuance of negotiable instrument (cheque) against consideration is attached to said document and the appellant was placed under heavier obligation to produce extraordinary trustworthy corroborative evidence to dissipate the presumption but he contumaciously showed defiance to the orders of the Court and deliberately missed the opportunity of defending the suit and has failed to dislodge the above legal presumption which disentitled him from any relief. Reliance in this regard is placed on the case titled as Najaf Iqbal vs. Shahzad Rafique (2020 SCMR 1621).

1. Learned counsel for the appellant has not been able to point out any illegality or material irregularity, in .the impugned order passed by the learned trial Court and has also not identified any jurisdictional defect.

2. In view of above, these appeals are dismissed being devoid of any merits with no order as to costs.

(R.A.) Appeal dismissed

PLJ 2022 Lahore 504

Present: Asim Hafeez, J.

AHMED KHAN and another--Petitioners

versus

DIRECTOR GENERAL, LDA, etc.--Respondents

W.P. No. 189041 of 2018, decided on 18.1.2021.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Right to seek enforcement--No default of authority regarding enforcement of obligation--Availability of remedy--Plenary jurisdiction--Allocation letters are examined, which letters per se do not extend any vested right, but certainly extends a right to seek enforcement of terms of allocation, subject to performance of terms and conditions--There is no occasion to exercise constitutional jurisdiction and to direct Authority to adjudicate upon and determine contractual disputes inter se petitioners and Respondent No. 4--Hence, no default of any enforceable obligation could be attributed to Authority--Petitioners have remedy available in law to resort to Courts exercising penary jurisdiction--No illegality is found in order impugned--Petition was dismissed. [P. 503] A & B

Malik Rizwan Khalid Awan, Advocate for Petitioners.

Sahibzada Muzaffar Ali, Advocate for LDA.

Date of hearing: 18.1.2021.

Order

This constitutional petition is directed against order dated 07.03.2018, whereby Respondent No. 2 proceeded to dismiss the representation of the petitioners.

1. The precise grievance of the petitioners is that Respondent No. 4 - M/s. Eden Housing Developers -allegedly allotted plots to the petitioners, in respect whereof all payable amounts were paid but still Developer failed to deliver possession and issue transfer letters, conferring proprietary rights therein. Case of the petitioners is against Lahore Development Authority (Authority), asserting that requisite approval for development was accorded by the Authority, and same, being the regulator, is obligated to take action against the developer, for being defaulted in performance of its obligations. Learned counsel referred to clause (e) of Rule 21 of the Punjab Private Housing

Schemes and Land Sub-Division Rules 2010. It is expedient to reproduce said clause, for ease of reference, which reads as;

"Notwithstanding anything in the contract, in case of delayed handing over of possession of the plot/property beyond the stipulated date, the developer shall be liable to pay an amount equivalent to two percent per month of the amount paid by the allotted".

1. Submissions are misconceived, when construed in the context of present facts. It is apparent from the perusal of the order impugned, that the issue, simplicitor, was not regarding delayed delivery of possession. In fact Respondent No. 4 alleged default on the part of the petitioners in making requisite payments, as per terms of the arrangement - Reference is made to ground (D) of the Order impugned.

4. Allocation letters are examined, which letters per se do not extend any vested right, but certainly extends a right to seek enforcement of the terms of allocation, subject to performance of terms and conditions. In exercise of powers under clause (e) of Rule 21, Authority is not eligible to decide disputes of such nature - contractual defaults. Rule 21(e) applies to such cases where developer exclusively defaults or fails to discharge its obligations under the terms of the permissions granted by the Authority to the Developer.

5. In view of the facts and circumstances of this case, there is no occasion to exercise constitutional jurisdiction and to direct the Authority to adjudicate upon and determine contractual disputes inter se the petitioners and Respondent No. 4. Hence, no default of any enforceable obligation could be attributed to the Authority. Petitioners have the remedy available in law to resort to the Courts exercising penary jurisdiction. No illegality is found in the order impugned.

1. This petition is devoid of merits and same is, therefore, dismissed.

(Y.A.) Petition dismissed

PLJ 2022 Lahore 505

Present: Abid Hussain Chattha, J.

DILAWAR HUSSAIN--Petitioner

versus

PAKISTAN RAILWAYS through Chief Executive Officer/General Manager, Pakistan Railways, Headquarter Officer, Lahore and 3 others--Respondents

W.P. No. 250500 of 2018, decided on 14.6.2021.

Constitution of Pakistan, 1973--

----Art. 199--Petitioner was a gangeman--Allegations of bribery--Issuance of show-cause notice--Compulsorry retirement--Rejection of departmental appeal--Non-speaking orders--Non-providing of opportunity of hearing--That same have been passed without considering rebuttal of Petitioner and examination of material on I record with a preset mind in a mechanical manner--The impugned orders are non-speaking and without reasoning--It is quire apparent that competent authorities have not heard Petitioner themselves--All and every aspect of case have not been considered while awarding major penally upon Petitioner on charge of Rs. 1000/- taken as bribe in light of principles laid down in case of Allah Yar--Petition was disposed of. [Pp. 507 & 508] A & B

2001 SCMR 256 ref.

Syed Ali Raza Rizvi, Advocate for Petitioner.

Sh. Aftab Umar, Advocate for Respondents.

Date of Hearing: 14.6.2021.

Order

Brief fuels of the case are that the Petitioner was a 'Gangman' employed with Respondents (Pakistan Railways). He was issued Show Cause Notice dated 19.08.2014 for misconduct. His reply dated 22.05.2014 was not found satisfactory and accordingly he was compulsory retired by the competent Authority vide order dated 17.10.2014. His departmental appeal was rejected on 27.06.2015. He then filed appeal with the Federal Service Tribunal which was dismissed vide order dated 01.10.2018. The Federal Service Tribunal declared him a 'Workman' and accordingly held that the Petitioner has invoked the jurisdiction of the Tribunal unlawfully, hence dismissed his appeal on the question of maintainability. The Petitioner instead of filing appeal before the Hon'ble Supreme Court of Pakistan under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 or closing right forum for redressal of his grievance, filed the instant Constitution Petition.

1. The learned counsel for the Respondents, accordingly submitted that this constitution Petition was not maintainable and that the Petitioner should have filed appeal before the Hon'ble Supreme Court of Pakistan or he should have filed a representation before the Labour Court after he was declared a 'Workman' by the Federal Service Tribunal.

2. Learned counsel for the Petitioner submits that the Officer (Respondent No. 4) who issued the Show Cause Notice dated 19.08.2014 was not competent Authority and after getting the defence from the Petitioner, he submitted his case directly to Respondent No. 3 for appropriate orders who imposed major penalty of compulsory retirement merely on the alleged charge of Rs. 1000/- taken as bribe; He submitted that the impugned orders are without jurisdiction, carom non-judice and malafide in law and fact. He submitted that the impugned orders were passed in complete derogation of the law laid down by the August Supreme Court of Pakistan in case titled Allah Yar v. General Manager, Railways Headquarters. Lahore and another (2001 SCMR 256). Relying upon the referred judgment, he submits that not only the order of major penalty was without jurisdiction but also the appellate Authority (Respondent No. 2) mechanically rejected the plea of the Petitioner and did not consider the material on record including the affidavits of the Petitioner and his father in the inquiry proceedings. He submitted that the disciplinary proceedings was unlawfully initiated under Government Servants (E &D) Rules, 1973 and Railways Servants (E&D) Rules, 1973 which were wrongly invoked. Learned counsel for the Petitioner has also placed reliance on cases of Tariq Jameel Butt and another v. Pakistan Engineering Company Ltd. (PECO) through Managing Director and another (2010 PLC (C.S.) 204) and Federation of Pakistan through Secretary, Establishment Division, Islamabad and another v. Gohar Riaz (2004 SCMR 1662).

4. The perusal of the impugned orders transpires that the same have been passed without considering the rebuttal of the Petitioner and examination of material on record with a preset mind in a mechanical manner. The impugned orders are non-speaking and without reasoning. It is quire apparent that the competent authorities have not heard the Petitioner themselves. The Hon'ble Supreme Court of Pakistan in the case of Allah Yar (Supra) has observed as follows:

"9. The appeal filed by the appellant has not been dilated upon diligently but has been disposed of in a haphazard and mechanical manner without taking into consideration as to whether all the mandatory formalities were completed as envisaged under the Rules before initiation of disciplinary proceedings but no one has bothered about it which is really pitiable. The appellate forum is required to examine each and every aspect of the matter in depth and only thereafter a conclusion should be drawn in accordance with record, evidence, prevalent laws, rules made therein, principles of natural justice and settled norms of justice. "In the case of Abdul Hafeez v. Chairman, Municipal Corporation, Lahore (PLD 1967 Lah. 1251) the principles of natural justice were brought out in the following terms:

"In the absence of anything to the contrary, the approach of quasi- judicial tribunal must always be judicial and conform to the principles of natural justice to maintain the rule of law. This is the essence of justice and the very fountainhead which must on no account be allowed to be polluted. No doubt there are no uniform standards of natural justice applicable in all cases and the rule is an classic one. Its requirement may vary with the constitution of the quasi-judicial tribunals and bodies having regard to the functions to be performed by them and powers and duties entrusted to them the nature and the subject-matter of the dispute and all others relevant circumstances are to be kept in view in applying this golden rule. Nonetheless in this respect certain broad principles are accepted on all hands. They are deducible from the two Latin maxims: Nemo debet esse judex in propria causa" (no one should be a judge in his own cause and the judges should be above suspicion. (The other maxim of no less importance is "audialteram partem" (hear the other side)."

5. In view of above discussion and perusal of both the impugned orders, it transpires that all and every aspect of the case have not been considered while awarding major penally upon the Petitioner on the charge of Rs. 1000/- taken as bribe in the light of the principles laid down in the case of Allah Yar (Supra). As such the impugned orders, dated 17.10.2014 and 14.09.2015 are set aside, Show Cause Notice shall be deemed pending which shall be decided afresh on merits after hearing the Petitioner in accordance with law and in the light of above referred judgment of Hon'ble Supreme Court of Pakistan and after recording reasons on the material furnished by the Petitioner.

1. This petition is disposed of in the above terms.

(Y.A.) Petition disposed of

PLJ 2022 Lahore 508 [Lahore High Court, Multan Bench]

Present: Muhammad Amjad Rafiq, J.

MUHAMMAD ZAMAN--Petitioner

versus

ADDITIONAL SESSIONS JUDGE etc.--Respondents

W.P. No. 6132 of 2018, decided on 9.2.2022.

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

----S. 550--Constitution of Pakistan, 1973, Art. 199--Seization of non-custom paid vehicle--Application for custody of vehicle--Dismissed--Jurisdiction of Special Judge Custom--Authority of police for seization--Order for registration of case--Challenge to--No FIR was stood registered for theft or otherwise of such vehicle nor it was found in circumstance that it could have been taken into possession under such section particularly when there was no evidence of tempering of chassis number etc--Even police have no authority to stop or seize non-custom paid vehicle because Customs Act, 1969 does not authorize police to take such action which authority rest with Custom Officers--If it was mistakably taken, even then subordinate officer was bound to inform Officer Incharge of Police Station and not Magistrate as section says--Petitioner has thus performed his duty and no breach or violation can be attributed to him--It was duty of Officer Incharge of Police Station to inform Magistrate if he could have found that above conditions of section are met, otherwise he was under duty to inform Custom officers for further proceedings which is in consonance with Customs Act, 1969--Special Judge Customs has no jurisdiction for adjudication of property subject-matter of seizure which exclusively falls within domain of Customs authorities--Special Judge Customs has no jurisdiction to intervene into these matters, there is no question of vesting jurisdiction on Magistrates or Sessions Judges to entertain such proceedings--Police was not authorized to seize non-custom paid vehicle--If police have taken vehicle into custody, it did not bind them to inform Magistrate about seizure when they were already in correspondence with Directorate of Intelligence & Investigation FBR, Multan--ASJ should not have passed order for registration of case--Petition was allowed.

[Pp. 511, 513, 514, 515 & 516] A, D, E, F & G

2013 PTD 1988, 2018 PTD 1716 and 2019 PTD 1595 ref.

Custom Act, 1969 (IV of 1969)--

----S. 170--Duty of officer incharge of police station--It was duty of Officer Incharge of Police Station to inform Magistrate if he could have found that above conditions of section are met, otherwise he was under duty to inform Custom officers for further proceedings which is in consonance with Customs Act, 1969. [P. 511] B

Prevailing of Special Law--

----It is trite that provisions of special law prevail over general law; a special procedure has been given in Customs Act, 1969 with respect to seizure of non-custom paid vehicle and dealing with offence therein. [P. 513] C

Sardar Tariq Sher Khan, Advocate for Petitioner.

Maher Muhammad Mumtaz Hussain Mirali, Assistant Advocate General.

Mian Ashfaq Hussain, Advocate/Legal Advisor for Respondent No. 4 (Custom Department).

Date of hearing: 9.2.2022.

Order

Muhammad Zaman petitioner was working as “Dafaydar” in Border Military Police at Check Post Bawata, when on 01.09.2017, he halted and seized a Vitz Car, bearing registration No. LEH-2307-13, Model 1999 from one Suleman Khan. For whose custody later Director Custom Intelligence, D.G. Khan and said Suleman Khan moved applications before the Magistrate who vide order dated 02.02.2018 dismissed both the applications; however, directed the Director Custom to approach concerned special Court for like relief. Said order was challenged by Suleman Khan, upon which impugned order was passed by learned Additional Sessions Judge on 03.04.2018, whereby he has overturned the order of Magistrate directing therein to conduct inquiry u/S. 523, Cr.P.C. before taking decision about custody of vehicle; further directed to take action against the petitioner by lodging a case under Article 155-C of Police Order, 2002 because he has not reported the matter to Magistrate forthwith as required u/S. 523, Cr.P.C. Challenge was thrown against direction for lodging of FIR on the ground that vehicle was taken into custody u/S. 550, Cr.P.C. by the petitioner and as being subordinate officer immediately through Rapt No. 5 dated 01.09.2017, intimated the high ups and as such has discharged his function in accordance with law. It has also been observed that vehicle was one that could not have been taken into custody under Section 550, Cr.P.C. by the police. To better appreciate the contention, Section 550, Cr.P.C. is reproduced as under;

1. Powers of police to seize property suspected to be stolen: Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission, of any offence, such police officer, if subordinate to; the officer Incharge of a police station, shall forthwith report the seizure to that officer.

Two conditions are necessary for seizure of property which are as follows:

i. any property which may be alleged or suspected to have been stolen or

ii. found under circumstances which create suspicion of the commission of any offence

What is stolen property, it has been defined in Section 410 PPC which is as follows;

1. Stolen Property;

Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as stolen, property, "whether the transfer has been made, or the misappropriation or breach of trust has been committed within or without Pakistan. But if such property subsequently comes into the possession of a person legally entitled to the possession thereof it then ceases to be stolen property.

Whereas “found under the circumstance” means, some offence has been committed by use of such vehicle in any area.

2. In the case, no FIR was stood registered for theft or otherwise of such vehicle nor it was found in the circumstance that it could have been taken into possession under such section particularly when there was no evidence of tempering of chassis number etc. Even police have no authority to stop or seize non-custom paid vehicle because Customs Act, 1969 does not authorize police to take such action which authority rest with Custom Officers. If it was mistakably taken, even then subordinate officer was bound to inform the Officer Incharge of Police Station and not the Magistrate as the section says. Petitioner has thus performed his duty and no breach or violation can be attributed to him. It was the duty of Officer Incharge of Police Station to inform the Magistrate if he could have found that above conditions of section are met, otherwise he was under duty to inform the Custom officers for further proceedings which is in consonance with the Customs Act, 1969; relevant section is as under;

1. Procedure in respect of things seized on suspicion by the police.--(1) When any things liable to confiscation under this Act are seized by any police-officer on suspicion that they had been stolen, he may carry them to any police-station or Court at which a complaint connected with the stealing or receiving of such things has been made, or an inquiry connected with such stealing or receiving is in progress, and there detain such things until the dismissal of such complaint or the conclusion of such inquiry or of any trial thence resulting.

(2) In every such case the police-officer seizing the things shall send written notice of their seizure and detention to the nearest custom-house and immediately after the dismissal of the complaint or the conclusion of the inquiry or trial, he shall cause such things to be conveyed to and deposited at, the nearest custom-house, to be there proceeded against according to law.

It is clear from above section that police can carry such vehicles to any police-station or Court at which a complaint connected with the stealing or receiving of such things has been made and can kept under custody till the conclusion of inquiry or trial but not otherwise and as per sub-section (2) they are bound to inform the nearest custom-house.

1. Coming to the question of application of Section 523, Cr.P.C. in this case which was not as complex as learned Additional Session Judge has perceived because correspondence of police was started immediately with Directorate of Intelligence & Investigation FBR, Multan and police was finally directed to hand over the said vehicle to the Directorate. Before proceeding further, let see what the Section 523, Cr.P.C. says which is as under:

2. Procedure by police upon seizure of property taken under Section 51 or stolen: (1) The seizure by any police officer of property taken under Section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence shall be forthwith reported to a Magistrate who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2) Procedure where owner of property seized unknown: If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.

This section requires that seizure of property shall be forthwith reported to “a Magistrate” which does not mean Area Magistrate in all cases but one who is authorized under the law to deal with property so taken. If the vehicle is seized under Control of Narcotics Substance Act, 1997, only Court concerned would deal with the vehicle and not the Area Magistrate, similar is the case for all other special laws. Police was bound to hand over such vehicle to Directorate of Intelligence & Investigation FBR, Multan. That was a right course, involvement of Magistrate in such matter is not required under the law who could only tackle the properties mentioned in Section 523, Cr.P.C. It is trite that provisions of special law prevail over general law; a special procedure has been given in the Customs Act, 1969 with respect to seizure of non-custom paid vehicle and dealing with offence therein. Such procedure is more comprehensive as per section sections 179 and 180 and it also includes a provision of regularization of such vehicles as per following section;

181. Option to pay fine in lieu of confiscated goods.--Whenever an order for the confiscation of goods is passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit.

Honourable Supreme Court in the case of “Adam vs. Collector of Customs, Karachi and another” reported in PLD 1969 Supreme Court 446, has observed as follows:

“………. The intention of the Legislature in thus clear that the disposal of the goods seized under the Act is left entirely in the jurisdiction of the custom authorities. The proceedings taken by the custom authorities for the confiscation of the goods are more in the nature of departmental proceedings which have been characterized in English and American jurisprudence as proceedings in condemnation of the goods for the purpose of revenue and are regarded as proceedings of a civil nature, despite their penal character ……”

Even special Judge Customs has no jurisdiction for adjudication of property subject-matter of seizure which exclusively falls within the domain of Customs authorities.

This view has been affirmed in “State through Director-General, Pakistan Coast Guards, Turbat vs. SABRO and another” reported in (1992 P Cr. L J 1795), another Single Judge (Munawar Ahmed Mirza, C.J., as he then was) acting under the Appellate Jurisdiction under the Customs Act (Quetta) has observed as follows:-

“………….. Therefore, in the peculiar circumstances question of adjudication vested in Custom forums as authoritatively determined by the Honorable Supreme Court in case Adam v. Collector of Customs Karachi and another P L D 1969 SC 446. It is quite evident that powers of Special Judge Customs are only restricted to trial of the accused who have committed offence for the violation of Custom Act.

However, adjudication of property subject-matter of seizure exclusively falls within the domain of Customs authorities as contemplated by sections 179 and 181 of the Customs Act.”

This view is supported with above cited Judgment of Honourable Supreme Court reported as PLD 1969 Supreme Court 446 wherein it was held as under:

“Both are concurrent remedies but each is independent of the other. They cannot, therefore, be deemed to be mutually exclusive. Therefore, no question of double jeopardy arises when simultaneously or subsequently a trial is held to determine the guilt of the individual, who has been concerned in the offences in respect of the goods, which are the subject-matter of the adjudication proceedings. And since the proceedings for adjudication by the Customs Authorities and the criminal prosecution of the offender in the Court are not interdependent, they can proceed simultaneously and neither can remain under suspension for the sake of the other.”

Similar view was reiterated in another case reported as “Government of Pakistan through Additional Secretary (Customs), Ministry of Finance, Islamabad and another vs. Mahmood Ahmed Qureshi and another” (PTCL 2002 CL. 579).

4. It is clear from above dictum that when a Special Judge Customs has no jurisdiction to intervene into these matters, there is no question of vesting jurisdiction on Magistrates or the Sessions Judges to entertain such proceedings as has been held by Honourable Supreme Court in a case “The Director Intelligence and Investigation (Custom) FBR, Islamabad and another versus Fazal Ghani and others” (Criminal Petition No. 802 of 2015) as follows:

“The question emerging for consideration of this Court is whether the vehicles seized have been lawfully imported and the persons importing them have paid the duties and taxes leviable thereon. The answer to the question is simple no. When this being the case, the learned Additional Sessions Judge could not have passed an order for their disposal under Section 516-A of the Cr.P.C. nor could the High Court in the hierarchy affirm such order.”

In two other cases reported as “Bhutto Khan and 4 others versus Director General Of Police Khyber Pakhtunkhwa Peshawar and 4 others” (2018 PTD 1716) and “Muhammad Salam versus the State and another” (2019 PTD 1595); it has been held:

“Admittedly, the vehicles in question were neither brought into settled area in accordance with the provisions contained in the Customs Act, 1969 nor the custom duty nor any duties and taxes leviable thereon were paid by its importers, hence, neither the High Court nor Sessions Judges nor judicial Magistrates have power to release such vehicles on superdari. These vehicles are subject to departmental adjudication as envisaged under the Customs Act, 1969.”

The Customs Act, 1969 authorizes the police to take possession of any vehicle only for the assistance of Custom Officers and not for any other purpose; relevant section is reproduced for reference:

7. Assistance to the officers of customs:.--All officers of Federal and Provincial Governments, including Inland Revenue, Police, National Highways and Pakistan Motorway Police, Civil Armed Forces, Border Military Police (BMP) and officers engaged in the collection of land-revenue are hereby empowered and required to assist the officers of customs in the discharge of their functions under this Act. The provision of assistance so requested shall be binding.

Therefore, police was not authorized to seize non-custom paid vehicle. The Honourable Peshawar High Court has held in case reported as “Additional Director, Intelligence and Investigation versus Banaras Khan” (2013 PTD 1988) [Peshawar High Court] as follows:

17. The police personnel who seized the vehicles in question, were not authorized officer under the Custom Act, and they were never conferred with such power of seizer, in case when there was no tempering of chassis etc. since then all the further proceeding conducted in consequence thereof in regard to illegal seizure falls to ground and the vehicles shall not be out rightly confiscated in the shield of S.R.O. 499(I)/2009.

In the same judgment further reliance was upon an earlier decided case in the context of this query, which the Court has referred as under:

1. This proposition has been already settled by the learned Tribunal Karachi Bench, Karachi in case of Sheikh Nazir Ali v. Customs Central and Excise and others (PTCL 2002 CL 340) and thereafter consistently followed by Courts of the country in this regard. This Court in an unreported case of "Additional Director Intelligence and Investigation, Peshawar v. Sartaj Khan" [T.R. 5-P/20120] decided on 5-6-2012 has held similar view as:

"It was also held that under the relevant provision of Customs Act, 1969, the police have no power to take into possession of the said vehicle. Moreover, no tempering was deciphered on its chassis number, thus the same was held to be non-duty paid vehicle there to release the vehicle on payment of fine equal to 20% of its customs value in addition to leviable duty and taxes was declared as legal order passed by the learned Appellate Tribunal Peshawar."

5. As observed above if the police have taken the vehicle into custody, it did not bind them to inform the Magistrate about seizure when they were already in correspondence with Directorate of Intelligence & Investigation FBR, Multan. Learned Additional Session Judge should not have passed order for registration of case because official acts of police taken in good faith are protected under Article 171 of Police Order, 2002, 171. No police officer to be liable to any penalty or payment of damages on account of acts done in good faith in pursuance of duty.--No police officer shall be liable to any penalty or to payment of damages on account of an act done in good faith in pursuance or intended pursuance of any duty imposed or any authority conferred on him by any provision of this Order or any other law for the time being in force or any rule, order or direction made or given therein.

1. For what has been discussed above, this writ petition is allowed, order of Learned Additional Sessions Judge D.G Khan dated 03.04.2018 is set aside as prayed for; however, Custom authorities can recourse to legal remedy available under the law as explained in this decision for custody of vehicle and confiscation thereof.

(Y.A.) Petition allowed

PLJ 2022 Lahore 517 (DB) [Lahore High Court Multan Bench]

Present: Muhammad Waheed Khan and Muhammad Amjad Rafiq, JJ.

KHALID HUSSAIN--Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Director General NAB, Multan and 4 others--Respondents

W.P. No. 684 of 2022, decided on 21.2.2022.

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance, (XVIII of 1999), S. 9--Bail was allowed--Offence of embezzlement/misappropriation and fraud--Investigation proceedings--Similar allegation of misappropriation of land mentioned therein has been leveled against present petitioner and above mentioned co-accused persons, who have been allowed bail--So, we believe that counsel for petitioner has rightly contended that present petitioner also deserves to be treated alike, on touchstone of principle of consistency--Petitioner is behind bars since 16.09.2021 and in recent past above said Reference has been sent by NAB to trial Court and there is no prospect of its earlier conclusion.

[Pp. 518] A & B

Ref. 1979 SCMR 09.

Rana Muhammad Asif Saeed, Advocate for Petitioner.

Mr. Muhammad Akram Rao, Special Prosecutor for NAB with Umer Hayat Assistant Director NAB/Investigating Officer.

Date of hearing: 21.2.2022.

Order

Petitioner, Khalid Hussain, having failed to get post arrest bail in NAB Reference No. 12-M/2020 instituted by the NAB Authorities, Multan, from Court of learned Judge, Accountability Court-I, Multan, vide order dated 06.01.2022, has prayed the same relief through the instant constitutional petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

1. Precisely, allegation against the petitioner/accused contained in the above mentioned Reference is that he in connivance with other co-accused has caused loss to the WAPDA Employees Co-operative Housing Society (WECHS-III) to the tune of Rs. 8,000,000/- by not mutating/transferring the land measuring 08 kanals in the name of the society despite receiving due consideration rather the same has been further sold to a private person, hence, this case.

2. We have heard learned counsel for the petitioner, learned Special Prosecutor NAB and gone through the available record with their assistance.

4. It is noticed that a complaint was received against the officials/officers of the WAPDA Employees Co-operative Housing Society (WECHS-III), Multan and others to the NAB, Multan qua the allegation that land measuring 266 kanals and 10 marlas purchased by them in 2015, was not mutated in the name of the said society nor possession of the same was handed over to it, rather the same land was further sold out to private persons, hence, committed the offence of embezzlement /misappropriation and fraud. Accordingly, an inquiry was authorized which was upgraded into investigation. After completion of investigation proceedings, Investigating Officer has submitted final investigation report and the above said Reference has been sent to the learned trial Court against thirteen accused persons including the present petitioner. The crux of arguments of learned counsel for the petitioner was that similarly placed co-accused persons, namely, Fida Husain and Muhammad Iqbal were granted post arrest by this Court, whereas co-accused persons, namely, Muhammad Riaz, Mujahid Hussain and Jaffar Hussain, were admitted to bail by the learned trial Court. We have gone through the earlier order passed by this Court dated 16.09.2021, wherein bail to co-accused Fida Hussain and others was allowed by this Court. When confronted, learned Special Prosecutor NAB could not differentiate the case of the present petitioner from his co-accused, who have been admitted to bail but submits that case of the present petitioner stands on different footings as he after executing sale deed in favour of the society transferred the land in favour of some private persons fraudulently. But on going through the copy of Reference annexed herewith this petition, we have noticed that similar allegation of misappropriation of land mentioned therein has been leveled against the present petitioner and the above mentioned co-accused persons, who have been allowed bail. So, we believe that learned counsel for the petitioner has rightly contended that the present petitioner also deserves to be treated alike, on the touchstone of the principle of consistency. Reliance has been placed on the dictum laid down by the august Supreme Court of Pakistan in the case of “Muhammad Fazal alias Bodi v. The State'' (1979 SCMR 09). The petitioner is behind the bars since 16.09.2021 and in recent past the above said Reference has been sent by the NAB to the learned trial Court and there is no prospect of its earlier conclusion.

1. For the foregoing reasons, this constitutional petition is allowed and the petitioner is admitted to post-arrest bail, subject to his furnishing bail bond in the sum, of Rs. 5,00,000/- (Rupees five lacs) with one surety in the like amount to the satisfaction of the learned trial Court.

(R.A.) Petition allowed

PLJ 2022 Lahore 519

Present: Muhammad Tariq Nadeem, J.

IJAZ alias JUJJI--Petitioner

versus

STATE, etc.--Respondents

W.P. No. 80463 of 2021, decided on 26.1.2022.

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

----Ss. 35, 397 & 561-A--Sentences run concurrently in two different criminal cases registered at two different districts---Tried by different Courts--Petitioner having been booked in criminal case and was tried by a ASJ, Lahore--Petitioner alongwith co-accused was further convicted in criminal case registered at District Kasur--Petitioner assailed the vires of impugned judgments before High Court which were dismissed and subsequently upheld by the August Supreme Court of Pakistan--Section 397 of, Cr.P.C. deals with various sentences passed in a single trial of two or more offences--Section 397, Cr.P.C.; enables and empowers the trial and or Appellate/Revisional Court, as the case may be, in a subsequent trial or in appeal or revision arising out of subsequent trial to order for the consolidation of sentence in subsequent trial--Writ Petition is allowed and the sentences passed against the petitioner in above mentioned two F.I.Rs is ordered to run concurrently.

[Pp. 520, 521, 524 & 525] A, B, C, D, F & G

PLJ 2016 SC 255; PLD 2015 SC 15; 2016 SCMR 467; 2018 SCMR 418 ref.

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

----Ss. 35--Pakistan Penal Code, 1860, S. 71--Several Punishment/ Sentences to a person chaged for multiple offence in some trial may run concurrently. [P. 524] E

Rai Bashir Ahmad, Advocate for Petitioner.

Ch. Manzoor Ahmad Warraich, AAG for State.

Date of hearing: 26.1.2022.

Order

Through the instant writ petition filed under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973 read with all other enabling provision of law, the petitioner Ijaz alias Jujji, who is convicted prisoner presently confined at Central Jail Kot Lakhpatt, Lahore, has agitated his grievance as under:

“In view of the circumstances and submissions made above, it is most respectfully prayed that the imprisonments and sentences awarded to the petitioner in case FIR No. 842/2000 dated 18.11.2000 under Sections 302/324 /452/364/148/149/337/ 337-F(iv), 337-F(vi), Police Station Phoolnagar, District Kasur and sentence awarded in case FIR No. 121/2003 dated 21.03.2003 under Sections 302/324/34, PPC, Police Station Manga Mandi, District Lahore may kindly be declared that all the sentences awarded in the above noted two different cases shall run concurrently and not consecutively.

It is further prayed that a direction may kindly be issued to Respondent No. 2 that if the sentences awarded to the petitioner have been served out by the petitioner, treating the sentences as running concurrently, then the Respondent No. 2 may kindly be ordered to release the petitioner.”

2. Tersely, the facts of the case are that the petitioner having been booked in case FIR No. 121 dated 21.03.2003 under Sections 302, 324, 34, PPC, registered at Police Station Manga Mandi Lahore, was tried by a learned Additional Sessions Judge, Lahore, who convicted and sentenced the petitioner vide judgment dated 10.12.2015 as under:

| | | | --- | --- | | U/S. 302(b)/34, PPC | Life imprisonment as Tazir for committing Qatl-e-Amd of Muhammad Afsar and to pay compensation of Rs. 4,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof to further undergo six months S.I | | U/S. 337-F(iii), PPC | To rigorous imprisonment for three years as Tazir and Daman Rs. 20,000/- for causing Injury No. 1 Jurh Ghair Jaifah Mutlahima on the person of Shakeel Ahmad, PW. | | U/S. 337-F(iii), PPC | To rigorous imprisonment for three years as Tazir and Daman Rs. 20,000/- for causing Injury No. 2 Jurh Ghair Jaifah Mutlahima on the person of Shakeel Ahmad, PW. | | U/S. 337-F(iii), PPC | To rigorous imprisonment for three years as Tazir and Daman Rs. 20,000/- for causing Injury No. 3 Jurh Ghair Jaifah Mutlahima on the person of Shakeel Ahmad, PW. |

3. Petitioner along with co-accused was further convicted in case FIR No. 842/2000 dated 18.11.2000 registered at Police Station Phool Nagar, District Kasurvide judgment dated 18.06.2011 passed by the learned Additional Sessions Judge, Pattoki, District Kasur in following sections:

| | | | --- | --- | | U/S. 452 read with Section 34, PPC | Rigorous imprisonment seven years and to pay fine of Rs. 50,000/- cash and in default thereof to furtherundergo 06 months S.I. | | U/S. 324 read with, Section 34, PPC | Sentenced to 10 years imprisonment for attempt to commit qatal-e-amd of Manzoor And Yaqoob PWs on twocounts and to pay fine of Rs. 50,000/- each in default to suffer six months S.I. each | | U/S. 337-F(vi), PPC | Rigorous imprisonment for seven years with a daman of Rs. 50,000/- for causing injuries to Yaqoob injured for Injuries No. 2 and 3 declared as Jurrah-e-Mankala. | | U/S. 337-F(iv), PPC | To rigorous imprisonment for seven years as Tazir and Daman Rs. 50,000/for causing Injury No. 1 declared as Jurrh-e-Mudhihah. | | U/S. 364/34, PPC | To undergo life imprisonment and to pay fine of Rs. 50,000/- and in default to suffer six month S.I. | | U/S. 302(b)34, PPC | Life imprisonment with a compensation of Rs. 2,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default six months S.I. |

Feeling aggrieved from the judgments of Courts below, the petitioner assailed the vires of impugned judgments before the High Court which were dismissed and subsequently upheld by the August Supreme Court of Pakistan. The petitioner is undergoing to two sentences of life imprisonment along with other sentences awarded in the above noted two cases and the Respondent No. 2 has not treated the same as concurrent sentences.

1. Heard. Perused the record.

2. I find that in the above said case, the petitioner was tried and convicted but the learned Courts below while passing the impugned judgments, no order regarding the sentences awarded in two different cases shall run concurrently has been passed. The moot point of discussion before this Court is that whether this Court has jurisdiction to pass an order for considering the

i) sentences passed against the petitioner in two different cases shall run concurrently or not. And

ii) that whether benefit of Section 382-B, Cr.P.C. can be granted in Constitutional jurisdiction.

It is by now well embedded and deeply entrenched universal principle of law that while interpreting the provision of punitive law, Courts are required to strive in search of an interpretation, which prefer the liberty of a person instead of curtailing the same and that too unreasonably and unfairly unless, the statutory law clearly directs otherwise.

Generally a sentence of imprisonment (subject to Sections 381, 401 and 426, Cr.P.C.) comes into effect the moment it is passed and unless the trial, appellate or revisional Court as the case may be orders consolidated computation of several conviction sentences passed in singular trial, the sentences run in row, however, Section 35 of the, Cr.P.C. enables the trial and or higher Courts of appeal to order consolidation of several imprisonment sentences in the same trial.

If remissions were to be calculated, the minimum period of substantive sentence of a lifer to undergo would be 15 years. Section 35 of the Code of Criminal Procedure, 1898, also deals with the question of maximum sentence of imprisonment in case of conviction for more than one offence at one trial. For facility of reference the said provision is reproduced below:

“35. Sentence in case of conviction of several offences at one trial.--(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Pakistan Penal Code, sentence him, for such offences, to the several punishments prescribed there for which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court:

Provided as follows:--

(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;

(b) if the case is tried by a Magistrate, the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise of his ordinary jurisdiction, competent to inflict.

(3) For the purpose of appeal. The aggregate of consecutive sentences passed under, this section in case of conviction for several offences at one trial shall be deemed to be a single sentence.”

Courts in Pakistan generally, take charitable view in the matter of sentences affecting deprivation of life or liberty of a person and unless some aggravating circumstances do not permit so, liberally exercise enabling power under Section 35 and Section 397, Cr.P.C. respectively to order concurrent running of sentence in one trial and so also consolidation of earlier sentence while handing down sentence of imprisonment in a subsequent trial.

I may observe Section 35, Cr.P.C. subject to Section 71 of Pakistan Penal Code empowers not only the trial Court to hand down several punishment/sentences to a person charged for multiple offence in same trial and in its discretion direct that such conviction/sentence may run concurrently.

1. To meet out with this proposition Section 397, Cr.P.C. is reproduced as under:-

“397. Sentence on offender already sentenced for another offence. When a person already undergoing a sentence of imprisonment or imprisonment for life is sentenced to imprisonment, or imprisonment for life, such imprisonment, or imprisonment for life shall commence at the expiration of the imprisonment, or imprisonment for life to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.

Provided that where a person who has been sentenced to imprisonment by an order under Section 123 in default of furnishing security is, while undergoing such sentence, sentence to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.”

A bare perusal of above Section 397, Cr.P.C. reveals that procedure to be observed for the sentences awarded to an accused in cases regarding sentences to run consecutively or concurrently should be passed at the time of deciding the case and if for any reason or there to some inadvertent mistake the same is not passed, the matter could be settled by invoking the jurisdiction of this Court.

Section 397, Cr.P.C. further provides that when a person is sentenced at a time when he is already undergoing imprisonment, then his subsequent sentence is to commence upon the expiration of the earlier sentence unless the Court has specifically given directions that subsequent sentence to run concurrently with the previous sentence. This section deals with various sentences passed in a single trial of two or more offences. The sentences are to run consecutively unless the Court directs otherwise. Thus Section 397, Cr.P.C. perfectly covers the present case.

9. I may well observe that Section 35, Cr.P.C. subject to Section 71 of Pakistan Penal Code empowers not only the trial Court to hand down several punishment/sentences to a person charged for multiple offence in same trial and in its discretion direct that such conviction/sentence may run concurrently (per proviso thereto, in no case be more than 14 years in aggregate) even the Appellate Court while hearing the appeal against the conviction may direct several sentences/punishment handed down in same trial; to run concurrently.

Whereas Section 397, Cr.P.C.; enables and empowers the Trial, and or Appellate/Revisional Court, as the case may be, in a subsequent trial or in appeal or revision arising out of subsequent trial to order for the consolidation of sentence in subsequent trial with the sentence(s) handed down in earlier trial(s) as may be maintained or modified in appeal/revision arising there from. In case earlier, conviction was not brought to the notice of the learned trial Court at the time of handing down the subsequent conviction/sentence the trial or Appellate/ Revisional Court could exercise such jurisdiction even after the sentence of imprisonment in subsequent trial is announced in exercise of its inherent jurisdiction under Section 561-A, Cr.P.C. read with Section 397, Cr.P.C., provided of course, where the trial, or superior Courts of appeal have specifically and consciously ordered the

sentences either in same trial or in subsequent trial to run consecutively.

Thus, in the light of above said provisions of law, there remains no doubt that this Court has jurisdiction under Section 561-A read with Section 35 and or Section 397, Cr.P.C. as the case may to ordered such multiple sentences in same transaction/trial or in a separate and subsequent trial and so also this considering the sentences of the petitioner to run consecutive would not serve the interest of justice rather the same would be contrary to the law discussed above.

10. In view of above and while placing reliance upon the cases of “Mst. Shahisa Bibi and another vs. Superintendent Central jail, Mach and 2 others" (PLD 2015 SC 15), Sajjad Ikram and others vs. Sikandar Hayat and others" (2016 SCMR 467), “Rahib Ali vs. The State” (2018 SCMR 418) and Sajjad lkram and others vs. Sikandar Hyat, etc. (PLJ 2016 SC 255), this writ petition is allowed and the sentences passed against the petitioner in above mentioned two F.I.Rs. is ordered to run concurrently. Superintendent Central Jail, Kot Lakhpatt, Lahore, where the convict is presently confined, is directed to do the needful.

(K.Q.B.) Petition allowed

PLJ 2022 Lahore 525

Present: Shahid Bilal Hassan, J.

MUHAMMAD YOUSAF KHAN--Petitioner

versus

GHULAM AHMED, etc.--Respondents

C.R. No. 3077 of 2011, decided on 24.9.2021.

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

----O.XVII R. 3--Specific Relief Act, (I of 1877), S. 12--Suit for specific performance--Closing of right to producing evidence--Petitioner was failed to produce evidence--Dismissal of suit--Appeal--Dismissed--Leniency show by trial Court regarding producing of evidence--Disobedience of orders of Court--A leniency shown by trial Court instead of complying with clear-cut direction and order, neither he appeared himself in witness box nor produced his evidence--How petitioner 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--Civil revision was dismissed. [Pp. 526 & 527] A & B

2015 SCMR 1401 and 2020 SCMR 300 ref.

Nemo for Petitioner.

Mr. Abdul Rauf and Mr. Muhammad Javed Hanif, Advocates for Respondents.

Date of hearing: 24.9.2021.

Order

Despite reflection of name of the learned counsel for the petitioner in the cause list, none has entered appearance on his behalf; thus, the instant petition being old one is going to be decided after hearing learned counsel for the respondents and going through the available record.

1. Precisely, the petitioner instituted a suit for specific performance of agreement to sell against the respondents/defendants, which was contested by the respondents/defendants. Issues were framed and case was adjourned for evidence of the petitioner but the petitioner despite availing numerous opportunities failed to produce his witnesses for facing the cross-examination, thus, the learned trial Court vide impugned order dated 07.04.2010 closed his right to produce evidence by invoking powers under Order XVII, Rule 3 of the Code of Civil Procedure Code 1908 and vide even dated judgment and decree dismissed the suit for want of evidence. The petitioner being aggrieved preferred an appeal but the same was also dismissed vide impugned judgment and decree dated 13.07.2011; hence, the instant civil revision.

2. Heard.

4. Considering the arguments and perusing the record, made available, as well as going through the impugned order, judgments and decrees passed by the learned Courts below, it becomes diaphanous that the suit under discussion was instituted on 05.01.2006 and issues were framed. After that, on different dates the petitioner/plaintiff was directed to produce his evidence, he got examined P.W.1 to P.W.5 but despite availing of many opportunities he failed to produce his witnesses for the purpose of cross-examination. On 17.03.2010, the petitioner was granted, one last opportunity for production of his complete evidence with a warning that if he failed to avail the same his right to lead evidence will be closed; however, on the date fixed neither the petitioner nor his witnesses nor his counsel appeared, which shows that he paid a deaf car to such a vivid direction. Despite such a leniency shown by the learned trial Court instead of complying with the clear-cut direction and order, neither he appeared himself in the witness box nor produced his evidence, Which shows his unyielding and adamant attitude towards the orders of the Court. The above picture of affairs makes it lurid that how the petitioner 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).'

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 parly 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 is 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.'

1. In view of the above discussion and observations as well as by placing reliance on the judgments supra, the civil revision in hand comes to naught and stands dismissed. No order as to the costs.

(Y.A.) Revision dismissed

PLJ 2022 Lahore 529

Present: Ch. Muhammad Iqbal, J.

MUHAMMAD AMIN SHAH--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD etc.--Respondents

W.P. No. 21150 of 2018, heard on 8.2.2022.

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

----Ss. 12 & 54--Constitution of Pakistan, 1973, Art. 199--Suit for specific performance and permanent injunction--Concurrent findings--Application for comparison of signatures and thumb-impression of petitioner--Accepted--Oral sale agreement--Deniel of thumb-impression and signatures by petitioner--Veracity of document--Bad conduct of petitioner during trial--Challenge to--Constitutional jurisdiction--Bad conduct of petitioner in pursuing case as he off and on remained absent in proceedings of lis without any justiciable cause--It is settled law that this Court in constitutional jurisdiction ordinarily avoids to interfere with such order unless said order is found to be patently illegal or passed without jurisdiction--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. 531 & 532] A, B & C

1991 SCMR 970 and 2007 MLD 1710 ref.

Ch. Imran Ali, Advocate for Petitioner.

Rana Muhammad Ashfaq, Advocates for Respondents.

Date of hearing: 8.2.2022.

Judgment

Through this constitutional petition, the petitioner has challenged the validity of order dated 25.09.2017 passed by the learned Senior Civil Judge, Faisalabad who accepted the application for comparison/verification of signatures and thumb impressions filed by the respondent/plaintiff and also assailed the order dated 06.04.2018 passed by the learned Additional District Judge, Faisalabad who dismissed the revision petition of the petitioner.

1. Brief facts of the case are that the Respondent No. 2/plaintiff filed a suit for specific performance of an agreement to sell along with permanent injunction contending therein that he purchased a constructed house, fully described in Paragraph No. 1 of the plaint, on the basis of an oral agreement to sell against consideration of Rs. 40,00,000/-, out of which an amount of Rs. 100,000/- was paid in cash, the stamp paper amounting to Rs. 447500/- was purchased for the execution of the sale deed on 03.03.2015. On 18.03.2015, the sale deed was prepared and a Cheque No. 05071652 dated 30.03.2015 of UBL Branch for an amount of Rs. 20,00,000/- was sent to the petitioner/defendant which was received by him. On 13.04.2015, the petitioner/defendant signed the draft of the sale deed and also imposed his thumb impressions but at the date fixed for registration of sale deed, he did not appear before the Sub Registrar. Thereafter, the respondent/plaintiff filed suit for specific performance of the agreement. The petitioner/defendant filed contesting written statement. During the pendency of the suit, the respondent/plaintiff filed an application for comparison/verification of the signatures and thumb impressions of the petitioner/defendant on the sale deed. The petitioner/defendant objected the said application. The learned Senior Civil Judge, Faisalabad accepted the application vide impugned order dated 25.09.2017. Being aggrieved, the petitioner filed a civil revision which was dismissed by the learned Additional District Judge, Faisalabadvide order dated 06.04.2018. 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.

3. The petitioner/defendant while filing the written statement impliedly denied his signatures and thumb impressions over the alleged sale deed, which has been has been brought on record [as Exh.P.4]. Thus, to check the veracity of the said document, it would be in the fitness of the things to get the signature and thumb impression of the petitioner/defendant with the one available on the said alleged sale deed and the petitioner/defendant would be last person to object the same. Regarding the matter of obtaining the expert opinion with regard to the thumb impression, handwriting or signature of a party qua the discard of execution of a document, the Hon'ble Supreme Court of Pakistan in a case titled as Mst. Akhtar Begum vs. Muslim Commercial Bank Ltd. (2009 SCMR 264), has held as under:

“7. We have minutely examined the disputed documents. In view of the emphatic denial by the petitioner of having signed the aforesaid documents. In our view, it was imperative for the Banking Court to have referred the same to handwriting expert for obtaining his opinion whether the purported signatures on the disputed documents were in the handwriting of the petitioner or were forged or manipulated by somebody else. The above very important aspect of the case not only escaped the attention of the Banking Court but the High Court also did not take notice thereof without realizing that a person cannot be made liable or responsible to make payment which he or she would otherwise not legally be bound to pay but being pressurized or forced to pay on the ground of some forged or manipulated documents. Persistent, strong and vehemence denial of the petitioner of her signature on the mortgage deed, power of attorney, etc. led us to make a comparison of her denied signatures with her admitted signatures and the comparison was made with the naked eye but the results were not very encouraging and the peculiar facts and circumstances of the case warranted such comparison by a handwriting expert for conclusively hold that the disputed documents bear the signature of the petitioner.”

(emphasis supplied)

In a case reported as Syed Sharif-ul-Hassan through L.Rs vs. Hafiz Muhammad Amin and others (2012 SCMR 1258) the Hon'ble Apex Court after setting aside the impugned judgments and decrees of the High Court and that of the learned District Judge, remanded the case back to the latter for decision afresh in the light of the opinion of the Finger Prints Expert, as to the genuineness or otherwise of the thumb impressions or signatures of the executant of the instrument. Reliance can also be placed on the case titled as Muhammad Anwar vs. Muhammad Yousaf and others (2010 MLD 1745).

5. Furthermore, the record of the learned trial Court was requisitioned by this Court, perusal whereof shows the bad conduct of

the petitioner in pursuing the case as he off and on remained absent in the proceedings of the lis without any justiciable cause. The respondent/plaintiff has got recorded his evidence and now the case is fixed for 12.02.2022.

6. Even otherwise the order impugned in this petition has been passed by learned revisional Court whereas it is settled law that this Court in constitutional jurisdiction ordinarily avoids to interfere with such order unless the said order is found to be patently illegal or passed without jurisdiction. Reliance is placed on a case cited as Muhammad Khan and 6 others vs. Mst. Ghulam Fatima and 12 others (1991 SCMR 970), wherein the Hon'ble Supreme Court of Pakistan has held as under:

“The learned High Court observed that a revisional order arising out of civil litigation could not be challenged in the Writ Petition and relied upon Ghulam Hussain v. Malik Shahbaz Khan 1985 SCMR 1925; Muhammad Bakhsh v. Ghulam Hussain 1989 SCMR 443 and Muhammad Zahoor v. Lai Muhammad 1988 SCMR 322.”

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 and 7 Others(2007 MLD 1710).

1. Resultantly, this writ, petition is hereby dismissed being devoid of any merits. However, the learned trial Court, seized of the matter, is directed to decide the main lis between the parties as early as possible preferably within four months.

(J.K.) Petition dismissed

PLJ 2022 Lahore 532 (DB)

Present: Shujaat Ali Khan and Ahmad Nadeem Arshad, JJ.

Mst. SHABINA FIRDOUS--Appellant

versus

LATIF SIDDIQUE and 2 others--Respondents

R.F.A. No. 17780 of 2021, decided on 21.2.2022.

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

----S. 12--Suit for specific performance was decreed--Agreement to sell--Earnest money was paid--Non-performance of agreement by appellant--Suit property was mortgaged against multiple loans--Extension of time for payment--Appellant was failed to redumption of suit property--Challenge to--Appellant/defendant, who failed to get redeemed suit property inspite of receiving half of consideration amount, could not blame respondents/plaintiffs/vendees that they failed to abide by their commitment in terms of agreement to sell--On one hand appellant received millions of rupees from respondents-vendees in part performance of contract and on other hand retained possession of suit property which fact also stands proof of fact that appellant-defendant was not ready to perform her part of contract--It cannot be believed that respondents- vendees were financially so feeble that they were not able to clear balance amount of consideration--It is proved on record that plaintiffs/respondents/vendees were ready to pay remaining consideration amount and were also willing to perform their part of agreement which could not be performed due to reluctance of defendant-appellant--We have not seen any illegality, irregularity and mis-reading or non-reading of evidence on part of trial Court while passing impugned judgment and decree--Findings of trial Court on question of facts and law having based upon proper appreciation of oral as well as documentary evidence produced in suit are not open to any interference--Appeal was dismissed.

[Pp. 549, 552, 557 & 558] B, C, F, G & H

Contract Act, 1872 (IX of 1872)--

----S. 55--Failure to performance of contract--Deals with effects of failure of a party to perform its part of contract where time is essence of contract and contracts where time is not essence of contract. [P. 544] A

Ref. PLD 2003 SC 430.

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

----S. 22--Grant of decree for specific performance-- A perusal of above-quoted provision shows that grant of decree for specific performance is discretionary in nature and such discretion should be justly exercised. [P. 553] D

Ref. 1994 SCMR 2189.

Discretionary relief--

----It is relevant to note over here that discretionary relief cannot be denied to a litigant, who otherwise is vigilant always ready and willing to perform his part of obligation, merely because his lis remained pending for many years in Court. [P. 554] E

Barrister Haris Azmat, Advocate for Appellant.

Mr. Mehmood Ahmad Bhatti, Advocate for Respondents.

Date of hearing: 21.2.2022.

Judgment

Ahmad Nadeem Arshad, J.--This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) has been directed against the judgment and decree dated 09.12.2020, passed by the learned Civil Judge, Sialkot whereby respondents-vendees suit for specific performance of agreements to sell was decreed.

1. Briefly, the facts, forming factual canvass of this appeal, are that appellant, being owner in possession of factory measuring 02 Kanal 06 Marla falling in Khewat No. 902, Khatoni No. 936 Kharsa No. 1337 situated within the revenue estate of Jiram Pur Said Pur, District Sialkot, entered into an agreement to sell with the respondents against total consideration of Rs. 6,75,00,000/- through agreement to sell dated 25.01.2016, which was followed by another agreement dated 30.04.2016. Out of total consideration amount, a sum of Rs. 100,00,000/- was paid by the respondents-vendees at the time of execution of agreement to sell dated 25.01.2016, whereas, Rs. 2,37,50,000/- were to be paid by the respondents-vendees on 25.04.2016 while Rs. 1,68,75,000/- were to be paid on 25.09.2016 and the last instalment of Rs. 1,68,75,000/- was to be paid by the respondents-vendees on 31.12.2016. The respondents-vendees paid total sum of Rs. 3,37,50,000/- in terms of two agreements to sell. As the instalment due on 25.09.2016 was not paid by the respondents-vendees, the appellant served upon them a legal notice, dated 17.10.2016, sanitizing them to pay the due installment with the warning that in the event of their failure the agreement would stand revoked which was replied by the respondents-vendees inter-alia with the plea that since the appellant had not got issued NOC from the relevant department as the property was mortgaged with the bank against a loan, they were not bound to pay the installment(s). As a last resort, respondents-vendees filed suit for specific performance of agreements to sell dated 25.01.2016 on 24.01.2017, which was contested by the appellant inter-alia averring that since the respondents-vendees failed to perform their part of contract, they were not entitled to a decree for specific performance. Initially the Issues were framed by the learned trial Court on 12.04.2017, however, the same were re-casted on 22.11.2017 which are reproduced herein below:

ISSUES:-

1. Whether the plaintiffs were ready to pay the remaining consideration amount regarding suit property and they were also willing to perform their part of the agreement which could not be performed due to the reluctance of defendant? OPP.

2. Whether the plaintiffs are entitled to discretionary relief of specific performance if so at what grounds and to the what extent? OPP.

3. Whether the tenure mentioned in agreement to sell was essence of the contract but plaintiffs neither offered nor paid remaining consideration of suit property within stipulated period of time hence agreement to sell has been corrupted and impracticable? OPD.

4. Whether plaintiffs have no cause of action to bring this suit hence same is liable to be dismissed? OPD.

5. Relief.

6. To discharge their onus, Babar Siddique and Latif Siddique, two of the plaintiffs, appeared as PW-1 and P.W.3 while they examined their father Muhammad Siddique as PW-2. In addition to oral evidence, the respondents-vendees also produced in evidence 09 documents ranging from Exh.P-1 to Exh.P-9.

7. On the contrary, one Muhammad Aleem Tahir, special attorney of appellant-defendant appeared as DW-1 and tendered ten documents as Exh.D-1 to Exh.D-10.

8. Upon conclusion of the trial, the learned trial Court decreed the suit of the respondents-vendees vide judgment and decree dated 09.12.2020 and directed them to pay the outstanding amount of consideration within 30 days after encashment of the Defence Saving Certificates already purchased against the amount deposited by them during the pendency of the proceedings before the learned trial Court. Being aggrieved of the judgment and decree passed by the learned trial Court, the appellate preferred the instant appeal.

9. Learned counsel for the appellant submits that while decreeing the suit, the learned trial Court failed to consider that at the time of execution of first agreement to sell it was made clear to the respondents-vendees that the suit property was mortgaged with the bank and it was to be redeemed upon payment of entire amount of consideration by the respondents-vendees but when they failed to abide by their commitment as per agreement to sell, they were not entitled for decree for specific performance which otherwise being discretionary relief could not be claimed by anybody as a right. Adds that the learned trial Court while passing the impugned judgment and decree mainly relied upon the bank statements produced by the respondents-vendees as Exh.P-3 to Exh.P-5 but while doing so it omitted to note that the closing balance as per the bank statements produced by the respondents-vendees was not sufficient to pay the remaining amount of consideration. Further adds that in the legal notice the appellant asked the respondents-vendees to deposit the balance amount of consideration in the bank(s) with which the property was mortgaged but they failed to do so which fact on the one hand speaks volumes about the bona fide of the appellant towards completion of the contract and on the other stands proof of inaction on the part of the respondents- vendees towards payment of the balance amount. Argues that according to the latest view of the superior Courts, the intent of the vendee(s) to complete the agreement between the parties is discernable from his readiness to deposit the balance amount with the Court at the time of filing of suit for specific performance but the respondents-vendees did not do so until and unless they were compelled by the Court in that regard. Further, argues that non-serious attitude of the respondents-vendees is also vividly clear from the fact that firstly they deposited the balance amount with the Court but subsequently they succeeded to withdraw it and again they deposited the same after the decision of the suit. Contends that at the most the respondents-vendees were entitled for return of the paid amount but by no stretch of imagination they were entitled for a decree of specific performance. Further contends that though the appellant is not bound to return the amount received from the respondents-vendees but to show her bona fide she is ready to return the same. In support of his contentions, learned counsel for the appellant has relied upon the cases reported as “Sheikh Akhtar Aziz versus Mst. Shabnam Begum and others” (2019 SCMR 524), “Mst. Samina Riffat and others versus Rohail Asghar and others” (2021 SCMR 7), “Inayatullah Khan and others versus Shabir Ahmad Khan” (2021 SCMR 686), “Muhammad Jamil and others versus Muhammad Arif” (2021 SCMR 1108) and “Muhammad Yousaf versus Allah Ditta and others” (2021 SCMR 1241).

10. Conversely, learned counsel appearing on behalf of respondents-vendees, while defending the impugned judgment and decree, argues that since the cut-off date for final payment was 31.12.2016, the statements brought on record by his clients show that there were sufficient funds for payment of outstanding consideration amount, thus, the assertion of the learned counsel for the appellant that respondents-vendees did not have sufficient fund at the crucial date is against record thus it cannot be given any weightage. Adds that since no penal consequence were provided in the event of non-compliance of contract between the parties, the same could not be assumed by the learned trial Court at the whims of the appellant especially when she herself was responsible for non-performance of her part of the agreement; that in a suit for specific performance instead of deposit of cash in the Court, the capacity of the vendees has to be judged by the Court and when DW-1 in his cross examination admitted that respondents-vendees had the capacity to pay the balance amount, no illegality was committed by the learned trial Court while decreeing the suit; that bona fide and readiness of the respondents-vendees to perform their part of the contract in the shape of payment of balance amount is also evinced from the fact that while replying to the legal notice sent by the appellant, they stated in unequivocal words that they were ever ready to pay the balance but upon production of documents relating to redemption of suit property from the bank; that as a matter of fact the appellant defrauded the respondents-vendees as she did not disclose that the property was mortgaged against multiple loans availed by her; that when the appellant admitted during evidence that she had been receiving the installments against amount of consideration beyond the stipulated date, the time was not the essence of contract as alleged by the learned counsel for the appellant; that since the respondents-vendees deposited the balance amount before the learned trial Court, no adverse opinion could be formed against them on the ground that they did not do so at the time of filling of the suit as they could not deposit the amount without permission of the Court; that the application of the respondents-vendees before the learned trial Court for investment of the deposited amount in some profit bearing scheme stands proof of the fact that they were ever ready to perform their part of the contract; that prompt filing of the suit by the respondents- vendees within a month from the date of payment of last installment speaks volume about the fact that they were ever ready to perform their part of contract; that even during the evidence PW-1 stated in clear cut words that respondents- vendees were ready to pay the balance amount upon execution of formal sale deed by the plaintiff in their favour. To fortify his contentions, learned counsel for the respondents-vendees has relied upon the cases reported as “House Building Finance Cooperation versus Shahinshah Humayun Cooperative House Building Society and others (1992 SCMR 19), “Mrs. Mussarat Shaukat Ali versus Mrs. Safia Khatoon and others” (1994 SCMR 2189), Mst . AMINA BIBI versus Mudassar Aziz (PLD 2003 Supreme Court 430), “Hafiz Shaikh Anwar-Ul-Haque Through L.Rs. versus Jehan Khan and others (PLD 2011 Supreme Court 540) and “Muhammad Iqbal versus Mehboob Alam (2015 SCMR 21).

11. Learned counsel for the appellant, while exercise his right of rebuttal, submits that even if some part of the contract was performed by the respondents-vendees they were not entitled for decree of specific performance as held by the Hon’ble Supreme Court of Pakistan in case “Inayatullah Khan and others versus Shabir Ahmad Khan” (2021 SCMR 686). Adds that since respondents failed to pay the instalments were due on 25.09.2016 and 31.12.2016 the applicability of sufficient fund in their account on a subsequent date is immaterial.

12. We have heard learned counsel for the parties and have also perused the record of the learned trial Court in addition to the case-law cited at the bar.

13. There is no dispute with the facts that respondents-vendees entered into an agreement to sell dated 25.01.2016 with the appellant-defendant with regard to sale of the suit property for a consideration of Rs. 6,75,00,000/- (rupees six crores and seventy five lacs) in equal shares and paid Rs. 1,00,00,000/- (rupees one crore) as earnest money (Rs.25,00,000/- in cash and Rs. 75,00,000/- through three cheques). Balance consideration amount of Rs. 5,75,00,000/- was to be paid in three installments i.e. Rs. 2,37,50,000/- on 25.04.2016, Rs. 1,68,75,000/- on 25.09.2016 and Rs. 1,68,75,000/- on 31.12.2016. Another agreement was executed between the parties on 30.04.2016 for extension of the time for payment of second installment and as a result of it Rs. 2,00,00,000/- (rupees two crores) were paid through three different cheques and Rs. 37,50,000/- were paid on 27.05.2016 which acknowledged by the appellant-defendant through receipt (Exh.P.3). The dispute arose between the parties when third installment of Rs. 1,68,75,000/- was not paid on 25.09.2016. The appellant sent legal notice dated 17.10.2016 (Exh.D.1) which was duly replied by the respondents-vendees on 29.10.2016 (Exh.P.9). The appellant sent second notice on 12.01.2017 by informing that agreement was cancelled and earnest money was confiscated/forfeited. To resolve the controversy, respondents approached the Court by way of instituting the suit on 24.01.2017. It is also a matter of record that suit property was mortgaged with the Habib Metropolitan Bank through Mutations No. 4964 and 4282 as evident from two agreements (Exh.P.1 & Exh.P.2). During cross-examination, the attorney of appellant/defendant disclosed that third loan amounting to Rs. 1,65,00,000/- was also availed by the appellant in year 2012 from Habib Metropolitan Bank and Mutation No. 3705 was sanctioned in this regard. In this background, we move to appreciate the arguments advanced by the respective counsel for the parties with reference to the evidence available on record.

14. Firstly taking up the foremost question as to whether the time was essence of the contract or not, we are of the view the same can be deciphered from the recitals of the agreements between the parties. For convenience of reference, agreement, executed between the parties on 25.01.2016, is reproduced herein below:-

| | | --- | | | | | Description: Page-1 |

From the perusal of the afore-quoted agreement, it appears that bargaining was struck between the parties for a total sale consideration of Rs. 6,75,00,000/- in equal share. An amount of one crore rupees was received from respondents as earnest money to the modes i.e. Rs. 25,00,000/- in cash and Rs. 75,00,000/- through three different cheques. It was further settled between them that Rs. 2,37,50,000/- was to be paid on 25.04.2016 and remaining Rs. 3,37,50,000/- was to be paid in two instalments, one on 25.09.2016 with regard to Rs. 1,68,75,000/- and second Rs. 1,68,75,000/- on 31.12.2016. Thereafter admittedly second agreement was executed between the parties on 30.04.2016 which for convenience of reference is reproduced herein below:

A cursory glance over the afore-quoted agreement brings it to limelight that with regard to payment of second instalment amounting to Rs. 2,37,50,000/- on 25.04.2016 time was extended and it was settled that Rs. 2,00,00,000/- was to be given through three cheques, the detail are as under:

Rs. 67,00,000/- on 05.05.2016, Rs. 67,00,000/- on 05.05.2016, &

Rs. 66,00,000/- on 05.05.2016.

The remaining amount of Rs. 37,50,000/- was to be paid within one month. On the backside of stamp paper a receipt was executed on 27.05.2016 (Exh.P.3) with regard to receipt of an amount of Rs. 37,50,000/-, the details whereof are as under:

Rs.12,50,000/- through cheque dated 26.05.2016

Rs. 12,50,000/- through cheque dated 26.05.2016 &

Rs. 12,50,000/- in cash dated 27.05.2016.

In the above backdrop entering into further contract by the appellant was a sufficient indicator of the fact that time was not the essence of the contract. Due to the extension of time, the importance of the previous time frame had become redundant.

12. It is important to mention over here that in the contract relating to immovable property generally time is not the essence of the contract. The failure to perform part of contract by the date fixed in the agreement to sell i.e., for execution of the sale deed is not a ground for refusing relief of specific performance unless the circumstances must be highlighted and proved by the owner-vendor of the land that time is essence of the contract. Section 55 of the Contract Act, 1872 deals with the effects of the failure of a party to perform its part of the contract where time is essence of the contract and the contracts where the time is not the essence of the contract. For convenience of reference, the said provision is reproduced herein below:

Effect of failure to perform at fixed time, in contract in which time is essential When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before a specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.

Effect of such failure when time is not essential---If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.

Effect of acceptance of performance at time other than that agreed upon------If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance he gives notice to the promisor of his intention to do so.

From above, it is vividly clear that intention to make time of the essence of the contract must be expressed in unmistakable language and it can be inferred from what passed between the parties before but not after the contract is made. A mere mention of a specified period in an agreement for completion of sale would not make the time as essence of the contract unless it is expressly intended by the parties and the terms of the contract do not permit any other interpretation. This question has to be decided according to the intention of the parties reflecting in the agreement, its terms, conduct of the parties after the agreement and all the attending circumstances. Reliance is placed upon the case reported as Mst. Amina Bibi versus Mudassar Aziz (PLD 2003 Supreme Court 430) wherein it has inter alia been held as under:

12.Generally speaking, specific performance of a contract of sale of immovable property has been granted by the Courts although there has been a failure to keep the dates assigned by it, if justice could be done between the parties and if nothing in (a) the express stipulation of the parties, (b) the nature of the property, or (c) the surrounding circumstances make it inequitable to grant the relief.

1. It is well-settled that intention to make time of the essence of the contract must be expressed in unmistakable language and it may be inferred from what passed between the parties before, but not after, the contract is made. A mere mention of a specified period of an agreement for completion of sale has been held as not to make the time of essence of the contract. In contracts of sale of immovable property, ordinarily, time is not considered to be the essence of the contract unless it was expressly intended by the parties and the terms of the contract do not permit of any other interpretation.

Similarly, in case of “Muhammad Hussain and others versus . Dr. Zahoor Alam (2010 SCMR 286) the issue, under discussion, was clinched in the following manner:

In the contract relating to immovable property time is not generally the essence of the contract in the failure to perform part of the contract by the date fixed in the agreement to sell i.e. for execution of sale deed is not a ground for refusing specific performance unless the circumstances must be highlighted and proved by the owner of the land that time is essence of the contract in view of the law laid down by this Court in various pronouncements. See Abdul Hamid‘s case (PLD 1962 SC 1) Seth Essabhy‘s case (PLD 1973 SC 39).‖

Moreover, the apex Court of the country in the matter of “Hafiz Shaikh Anwar-Ul-Haqure Through L.Rs. versus Jehan Khan and others (PLD 2011 Supreme Court 540) responded the query, under discussion, in the following words:

If time is extended for performance of a contract pertaining to immovable property, then time can never be enforced as of the contract.

Likewise, the august Supreme Court of Pakistan in case titled “Muhammad Abdur Rehman Qureshi versus Sagheer Ahmed” (2017 SCMR 1696) while interpreting that whether time is essence of the contract in the real estate transactions held as under:

It must be interpreted and applied specifically considering the facts and circumstances of each case to balance equities, keeping the standards of reasonability in mind and ensuring that injustice is not done to either side.

If the question as to whether the time was essence of the agreements entered between the parties is adjudged on the touchstone of the afore-referred judgments of the Hon’ble Supreme Court there leaves no ambiguity that according to the recitals of agreement to sell (Exh.P-1) the suit property was under mortgage and it was settled between the parties that it would be the duty of the appellant/vendor to get redeem the whole suit property. The respondents-vendees were to pay balance consideration amount in three installments. In this way, the said agreement to sell consisted of reciprocal promises to be simultaneously performed by the parties to the contract without any penalty for non- performance of the respective part of the contract. In this background, it can safely be concluded that the time was not essence of the contract.

13. A bird’s eye view over the appellant’s evidence shows that her attorney while recording his statement as DW-1 deposed that she received Rs. 3,37,50,000/- from the plaintiffs but did not pay even a single penny in bank from this amount. He volunteered that she (appellant-defendant) had been constructing a building due to which he could not make repayment of bank loan. The exact deposition is as under:

He admitted it correct that in the year 2012, defendant took a loan of Rs. 1,65,00,000/- from Habib Bank Metropolitan against which Mutation No. 3705 was sanctioned. He also admitted it correct that in the agreement to sell (Exh.P-1) the loan with regard to Mutation No. 3750 was not mentioned. The exact deposition in that regard is as under:

From above admission on the part of DW-1 it is abundantly clear that the appellant-respondent concealed material fact regarding availing of loan against Mutation No. 3750 meaning thereby that she kept the respondents-vendees in dark. In the case of “Said Muhammad v. Abdul Rehman” (1996 MLD 60) while dealing with the consequences of non-payment of balance amount where the title of the vendor is not clear it has inter alia been held that:

Plaintiff need not have offer to make balance amount to defendant on specified date for defendant‘s title was not perfect on the said date and defendant was not ready on the said date to perform his reciprocal of transfer of land in favour of the plaintiff

It is evident from the perusal of Exh.P-1 that the respondents/plaintiffs/vendees bound down themselves to pay remaining considering amount till 31.12.2016 and the date for execution of formal sale deed was settled as 31.12.2016. It was also settled that it was the duty of the appellant/defendant to get redeemed the whole suit property and she was liable to pay all dues. It was further settled that before registration, appellant/defendant/vendor will bound to deliver the possession within time after clearance of all dues and getting NOC from the bank and thereafter she would be bound to execute registered sale deed in favour of respondents/ plaintiffs/vendees and would also be entitled to receive the balance consideration amount and in the event of her denial to get registered the sale deed within time, the vendees would have a right to institute suit for specific performance at the costs of the appellant-defendant and if the vendees failed to get registered the sale deed within time, then earnest money would be forfeited and agreement would be deemed to be cancelled. Exact wording in the agreement to sell is as under:

| | | --- | | | | | Description: Page-9 |

The august Supreme Court of Pakistan in the case cited as “Mst. Rehmat and others versus Mst. Zubaida Begum and others (2021 SCMR 1534) while interpreting Section 51 of the Contract Act, 1872, concluded that in such situations time is not essence of the contract which is reproduced as under:

Clause 4 of the said agreement made it mandatory for the First Party‘ that is the vendor Mst. Ashfaq Jahan to obtain all documents necessary for registration of the suit property in the following terms:

4) That the FIRST PARTY shall obtain all documents necessary for registration of the said property in the name of the SECOND PARTY, namely:

i. Income Tax clearance certificate.

ii. No objection certificate from the Excise and Taxation Authority, Hyderabad.

iii. Certificate/Receipt showing payment of electricity and water charges.

iv. Mutation in the City Survey record kept in the City Survey Officer, Hyderabad.

11.Clause 4, of the agreement as reproduced above, reveals that the appellant No. 2 while acting as an attorney of his mother Mst. Ashfaq Jahan was required to procure all the documents noted therein, before the execution of sale deed. These conditions manifest that the agreement dated April 1973 contained reciprocal promises on the part of the vendor as well vendee and both the parties were required to perform their respective part of the contract in order to accomplish the sale transaction; however, the vendor failed to perform her part of reciprocal obligations and did not procured requisite documents, except the Income Tax Clearance Certificate; which is also apparent from the perusal of notices Ex.91, Ex.116, Ex.118. As the vendor Mst. Ashfaq Jahan herself failed to perform her part of contract, therefore, she could not rescind and revoke the agreement dated April 1973, after the delivery of possession of the suit property to the Respondent No. 1 and the receipt of a sum of Rs. 36000/- i.e. 80% of the total sale consideration in part performance of performance of sale transaction. It can safely be concluded that the time was never the essence of the agreement dated April 1973 and the failure on the part of the promisor/vendor to perform her part of contract could not put her into a position of rescinding or revoking the contract in terms of Section 51of the Contract Act, 1872.

14. A cursory glance over the agreement to sell reproduced in the preceding paragraphs it cannot be said that respondents/ plaintiffs/ vendees will have to face the consequence of non-payment of consideration amount within the stipulated time. Firstly, it was the duty of the appellant to fulfill the obligation imposed upon her in Exh.P-1 then she could attribute the failure on the part of respondents/plaintiffs/vendees followed by the forfeiture of their earnest money and cancellation of the agreement. The appellant/ defendant, who failed to get redeemed the suit property inspite of receiving half of the consideration amount, could not blame the respondents/plaintiffs/vendees that they failed to abide by their commitment in terms of agreement to sell.

1. Considering from another angle, the conduct of the parties of a contract are very relevant to determine the question as to whether the time was the essence of contract or not. Insofar as the case in hand is concerned, suffice it to note that admission on the part of DW-1 that a partial amount of consideration was being received by the appellant even beyond the cutoff date mentioned in the agreement to sell which proves that the time was not essence of contract. Exact deposition is as under:

| | | --- | | | | | Description: Page-10 |

16. During the course of arguments learned counsel for the appellant emphatically pleaded that since respondents-vendees failed to pay Rs. 1,68,75,000/- by 25.09.2016 as they agreed in the agreement to sell they were not entitled for decree for specific performance. In this regard, we do not see eye to eye with the learned counsel for the appellant for the reason that while replying to the legal notice of the appellant, the respondents-vendees showed their readiness to pay the balance amount but with the condition that the appellant should perform her part of the contract towards issuance of NOC by the financial institutions with which the suit property was mortgaged. For ready reference the reply submitted by the respondents- vendees to the legal notice got issued by the appellant is reproduced as under:

The appellant failed to give replication of said reply and in this regard D.W.1 admitted in the following manner:

"پھر کہا کہ اس جواب نوٹس کا میں نے جواب نہ دیا تھا۔"

If the plea of the parties is considered and put in juxtaposition, there leaves no doubt that the respondentsvendees were ever ready to perform their part of the contract.

17. There is no cavil with the proposition that it is not incumbent upon the Court to decree every suit for specific performance if the circumstances of the case require otherwise. As far as the case in hand is concerned, despite addressing the Court at length, learned counsel for the appellant has not been able to convince us with solid reason as to why the suit of the respondents-vendees could not be decreed. It is admitted proposition that on the one hand the appellant received millions of rupees from the respondents-vendees in part performance of the contract and on the other hand retained the possession of the suit property which fact also stands proof of the fact that the appellant-defendant was not ready to perform her part of the contract.

1. It is relevant to note that Section 22 of the Specific Relief Act, 1877 deals with discretion to grant of decree for specific performance. The said provision is reproduced herein below:-

2. Discretion as to decreeing specific performance.--The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.

The following are cases in which the Court may properly exercise a discretion not to decree specific performance:

(I) Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff‘s part.

(II) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff.

(III) Where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

A perusal of above-quoted provision shows that grant of decree for specific performance is discretionary in nature and such discretion should be justly exercised. The Hon’ble Supreme Court of Pakistan in the case reported as “Mrs Mussarat Shaukat Ali versus Mrs. Safia Khatoon and others” (1994 SCMR 2189) highlighted the principles for grant of decree for specific performance in the following words:

It is true that grant of relief of specific performance is discretionary with the Court but this discretion cannot be exercised arbitrarily. The relief of specific performance being an equitable relief, it can be refused by the Court only if the equities in the case are against the plaintiff. The Court while refusing to grant a decree for specific performance to a plaintiff must find some thing in the conduct of plaintiff which disentitled him to the grant of equitable relief of specific performance, or the Court reaches the conclusion that on account of delay in seeking the relief, the circumstances have so materially changed that it would be unjust to enforce the agreement specifically. The specific performance of a contract cannot be refused merely – because it is lawful for the Court to refuse it. Section 22 of the Specific Relief Act, though not a exhaustive provides some instances in which the specific relief of a contract may be refused by the Court in its jurisdiction.

It was further held in “Liaqat Ali Khan and others versus Falak Sher and others” (PLD 2014 Supreme Court 506) that

A plain reading of above reproduced statutory provision leads to a definite conclusion that the role of specific performance claimed by Respondents Nos.1 to 4 in their suit is, purely discretionary in nature and the Court is not bound to grant such relief merely as it is lawful to do so. At the same time, the discretion to be exercised by the Court shall not be arbitrary, but it should be based on sound and reasonable analysis of the relevant facts of each case, guided by judicial principles and capable of correction by a Court of appeal. Moreover, in sub-paragraphs Nos.i, ii and iii of Section 22 (ibid) some instances have been given, wherein the Court can refuse to exercise its discretion to pass a decree for specific performance. A careful reading of these instances, which are self-explanatory, further amplify vast powers of the Court in the matter of exercise of its discretion for ordering specific performance or otherwise. When the above reproduced provision of law is read in conjunction with the case law cited at the Bar by both the learned Senior Advocate Supreme Courts, the things as regards powers of the Court in exercising its discretion, became even more clear that there is no two plus two, equal to four formula available with any Court of law for this purpose, which can be applied through cut and paste device to all cases of such nature. Conversely, it will be the peculiar facts and circumstances of each case, particularly, there terms of the agreement between the parties, its language, their subsequent conduct and other surrounding circumstances, which will enable the Court to decide whether the discretion in terms of section22(ibid) ought to be exercised in favour of specific performance or not. Besides, some well articulated judgments on the subject, have further broadened the scope of exercise of such discretion of the Court by way of awarding reasonable compensation to the parties, keeping in view the other surrounding circumstances, such as rate of inflation, having direct bearing the value of suit property, inordinate delay/passage of time, and change in the circumstances or status of the subject property etc.

Moreover, the issue, under discussion, has elaborately been dealt with in case of “Mrs. Zakia Hussain and another versus Syed Farooq Hussain” (PLD 2020 Supreme Court 401) in the following manner:

It is time and again held by this Court that specific performance of a contract is essentially an equitable and discretionary relief and the Court seized of the matter is in a better position to decide and resolve not simply according to the spirit of the law but also in accordance with the principles of substantial justice by keeping in mind peculiar facts and circumstance of each case. It cannot be claimed as a matter of right. The discretion to be exercised by the Court requires that it should not be arbitrary but should be sound and reasonable guided by judicial principles and capable of correction by a Court of appeal. Such an exercise of grant or refusal of relief would depend on the facts and circumstances of each case and also the conduct of the parties.

19. It is relevant to note over here that discretionary relief cannot be denied to a litigant, who otherwise is vigilant always ready and willing to perform his part of obligation, merely because his lis remained pending for many years in the Court. Increase of price of the property during the time when causes remain pending in Courts, not ipso facto disentitles the purchaser to seek discretionary relief of specific performance. Rise in the price of the property may be relevant factor in denying the relief of specific performance, keeping in view the conduct of the vendee, date of agreement of sale, time agreed to performance and time of filing of the suit before trial Court. In the present case, time for performance of the agreement to sell was 31.12.2016, respondents instituted their suit for specific performance on 24.01.2017 just after 24 days and deposited the balance sale consideration in terms of the order passed by the Court despite the fact that they were not in possession of the suit property. The said fact alone is sufficient to prove bona fide of the respondents-vendees towards performance of their part of the contract.

1. It is also discernable from the record that the amount received by the appellant-defendant from the respondents-vendees was utilized by her for raising construction at some other site but despite that she averred that she suffered loss of about one million without specifying the reason as to why she did not get redeemed the suit property from the bank after repayment of the loan availed by her.

2. It is very astonishing to note that on the one hand the stance of the appellant is that she could not get redeemed the suit property from the bank as the respondents-vendees did not pay the entire outstanding amount of consideration but on the other hand she had no explanation for the fact as to why she did not pay the amount already received from the respondents-vendees to the bank for redemption of the suit property. Had there been any bona fide on the part of the appellant, it was foremost for her to firstly clear her liability towards the bank and then to think about investment at some other site. As the appellant was not ready to execute formal sale deed after getting the suit property clear from bank, the respondentsvendees rightly withheld the payment of balance amount especially when the possession of the suit property was also with the appellant.

3. During the course of arguments, learned counsel for the appellant offered for return of the amount received by the appellant from the respondents-vendees as partial payment of the consideration amount, the same is of no worth at this stage as after passing the decree in their favour, a vested right has already accrued in their favour and this Court cannot compel them to receive the said amount and desist from the deal as according to the own showing of the appellant the price of the suit property had increased reasonably.

4. Now coming to the financial position of the respondents/ plaintiffs/vendees to liquidate their liability towards payment of the balance amount we are of the view that according to three bank statements brought on record as Exh.P.3, Exh.P.4 and Exh.P.5 they had sufficient funds in their accounts to clear the balance amount till 31.12.2016. Further, PW-1 during his testimony stated as under:

P.W.1 in his statement further deposed that they contacted the appellant to get the property redeemed and visit the bank for this purpose but she had neither paid the loan nor released the property. Exact deposition is as under:

As against the above, D.W.1, during cross-examination deposed that plaintiffs are dealing with business of motorcycles and schools. He further deposed that plaintiffs had their petrol pumps. He did not deny specifically that plaintiffs are running business of trillions. Exact deposition is as under:

In view of above it cannot be believed that the respondents- vendees were financially so feeble that they were not able to clear the balance amount of consideration.

24. In nutshell, it is proved on the record that plaintiffs/ respondents/vendees were ready to pay the remaining consideration amount and were also willing to perform their part of the agreement which could not be performed due to the reluctance of defendant-appellant. The learned trial Court, keeping in view the facts & evidence of the parties, rightly decided issues No. 1 to 3 in favour of the respondents/plaintiffs.

25. During the course of arguments, learned counsel for the appellant ferociously pleaded that since the respondents-vendees did not offer for the deposit of balance amount at the time of filing of the suit, they were not entitled for decree for specific performance of agreements to sell. Perhaps learned counsel for the appellant has raised such plea in oblivion of order dated 18.01.2018 passed by the learned trial Court which clearly shows that the learned counsel for the respondents-vendees offered for payment of remaining consideration amount and investment of said outstanding amount of Rs. 3,37,50,000/- in some profit bearing scheme and accordingly they purchased Defence Saving Certificate as is evident from the concluding paragraph of the impugned judgment and statement of P.W.1 whereby the said witness produced certificates amounting to Rs. 3,37,60,000/- for perusal of the Court which were returned after perusal. Exact deposition of PW-1 in that regard is as under:

1. While arguing the matter, the learned counsel for the appellant took specific plea that since respondents- vendees withdrew the amount deposited with the learned trial Court, they were not entitled to decree for specific performance. While pleading so, learned counsel for the appellant omitted to note that respondents-vendees invested the balance amount for purchase of Defence Saving Certificates, copies whereof were produced by the learned counsel for the respondent-vendees and the said fact stands affirmed from the concluding paragraph of the impugned judgment and decree, wherein the learned trial Court clearly mentioned that the respondent-vendees

shall pay the balance amount within 30 days after getting encashed the Defence Saving Certificate, thus the said plea of the learned counsel for the appellant is without any substance.

1. So far as the case-law referred by the learned counsel for the appellant is concerned, suffice it to note that the same is not applicable to the peculiar facts and circumstances of the presence case for the reason that in none of the said cases it has been held that the vendee can be denied the decree for specific relief even if the vendor(s) fails to get redeemed the suit property admittedly mortgaged with any financial institution against loan availed by the vendor(s).

28. We have not seen any illegality, irregularity and mis-reading or non-reading of evidence on the part of learned trial Court while passing the impugned judgment and decree. The findings of the learned trial Court on question of facts and law having based upon proper appreciation of oral as well as documentary evidence produced in the suit are not open to any interference.

1. The epitome of above discussion is that instant Regular First Appeal is without any merits and substance, hence, the same is, hereby dismissed with no order as to costs.

(Y.A.) Appeal dismissed

PLJ 2022 Lahore 558

Present: Anwaar Hussain, J.

Mst. SHAISTA PARVEEN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P No. 849 of 2020, heard on 22.2.2022.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Jurisdiction of appellate court against decree of maintenance allowance--Section 14(2) of Act, appeal against decree of dowry articles not exceeding Rs. 100,000/- is barred--Bar contained in Section 14(2) of Act is applicable to husband only and same cannot be applied to minor or wife--Since maintenance allowance granted to each person was less than Rs. 5000/- per month, therefore, appeal under Section 14(2) of act, was barred--This writ petition is allowed and impugned judgment and decree passed by appellate court below is set aside, appeal of petitioner will deem to be pending before learned appellate court below. [Pp. 560 & 561] A, B, C & D

2018 SCMR 1885; 2017 YLR 1684 ref.

Malik Waqar Haider Awan, Advocate for Petitioner.

Mr. Qadeer Asif Toor & Ms. Raheela Saleem, Advocates for Respondents.

Date of hearing: 22.2.2022.

Judgment

Succinct facts of the case are that on 28.06.2012, petitioner, namely, Mst. Shaista Parveen (“the petitioner”) on her behalf as well as minor, namely, Muhammad Suleman Ajmal (“the minor”) instituted a suit for recovery of maintenance allowance and dowry articles against Respondent No. 3,namely, Muhammad Ajmal (“the respondent”) on the ground that nikah of the parties was solomnized on 29.09.2009 and rukahsatitook place 15 days thereafter; that out of this wedlock, the minor was born; that after some time, the respondent became cruel towards the petitioner; that he borrowed a sum of Rs. 200,000/- from step father of the petitioner on different pretexts and 11 months prior to institution of the suit, asked the petitioner to bring a sum of Rs. 50,000/- more from her step father but she refused whereupon the respondent kicked out the petitioner along with the minor from his house; that at the time of the marriage, the respondent was given dowry articles worth Rs. 5,63,200/-, which are lying with the respondent; that despite repeated demands, the respondent neither paid any maintenance allowance to the petitioner and the minor nor returned the dowry articles which constrained the petitioner to institute the suit.

1. The respondent contested the suit by filing written statement. He also instituted a suit for resultation of conjugal rights. Both the suits were consolidated and consolidated issues were framed. After recording of evidence of the parties, learned trial Court decreed the suit of the petitioner in the terms that the minor is entitled to maintenance allowance at the rate of Rs. 2000/- per month for the last two years and at the same rate in future with 10% increase per annum and dismissed the claim of the petitioner to the extent of maintenance allowance and dowry articles and also decreed the suit of the respondent for restitution of conjugal rights vide consolidated judgment and decree dated 25.11.2013. Both sides preferred appeals, which were dismissed by learned appellate Court below vide judgment and decree dated 27.02.2014. The petitioner assailed both the judgments of learned Courts below by way of filing Writ Petition No. 3723/2014 wherein the case was remanded to learned trial Court to the extent of dowry articles only vide order dated 25.03.2019. In post-remand proceedings, learned trial Court partially decreed the suit of the petitioner and held her entitled to recover a sum of Rs. 60,000/- as alternate price of dowry articles vide judgment and decree dated 20.05.2019. The petitioner feeling dissatisfied preferred appeal, which was dismissed by learned Additional District Judge, Jampur on the ground that the legislature has not provided any appeal against decree of dowry articles not exceeding Rs. 100,000/- under Section 14(2) of Family Courts Act, 1964 (“the Act”) vide judgment and decree dated 08.11.2019. Hence, this writ petition has been filed.

2. Only controversy involved in the matter, is quantum of alternate value of dowry articles. Learned counsel for the petitioner submits that under Section 14(2) of the Act, the embargo has been placed upon the husband by restraining him not to challenge a decree of dowry article if it is upto Rs 100,000/- but no such restriction has been placed upon the wife by the legislature for enhancement of the. amount granted as alternate value of dowry articles. Submits that the learned lower appellate Court below has erred in dismissing the appeal of the petitioner depriving her from her statutory right of appeal. The said assertion of learned counsel for the petitioner has been controverted by learned counsel for the respondent while submitting that the appeal against grant of dowry articles not exceeding Rs. 100,000/- is explicitly barred by law. He has placed reliance on Sarfrazv. Additional District Judge and 5 others [2017 YLR1684 Lahore (Rawalpindi Bench)].

3. Arguments heard. Record perused.

5. Perusal of impugned judgment and decree of learned appellate Court below reveals that the learned appellate, Court below has dismissed the appeal of the petitioner on the sole ground that under Section 14(2) of the Act, appeal against decree of dowry articles not exceeding Rs. 100,000/- is barred. Suffice to state that the legislature in its wisdom has impuned the said restriction keeping in view the present price hike and strong custom of our society to give dowry articles to the brides while considering that dowry articles of ordinary nature, which are usually given to the brides at the time of marriage, will not be less than the value of Rs. 100,000/-. This restriction has been imposed upon the husband to curtail the litigation so that the wife could, at least, get the said amount, if it is decreed by the Court without further litigation by the husband as a matter of right. By no stretch of imagination, the said embargo is applicable to the wife. In this view of the matter, the learned appellate Court below has misinterpreted and misapplied the law on the subject and wrongly dismissed appeal of the petitioner, therefore, the impugned judgment and decree of learned appellate Court below cannot sustain. In this regard, I am fortified by dicta laid down in Saif-ur-Rehmanv. Additional District Judge, Toba Tek Singh (2018 SCMR 1885) and Rahim Bux, Additional District Judge Muzaffargarh (2004 MLD 1749 Lahore). In the latter judgment, it has been held that:

“8. Now applying the said rule to the said Section 14 of the Family Courts Act, 1964, one finds no ambiguity whatsoever in the words of the provide to the said argue that the intention of the legislature was to avoid the challenge by a person to a decree passed in the sum of Rs. 1,000/- or less by way of maintenance to a child or a wife. Applying the very rule being relied upon by the learned counsel for the petitioner we find a bar to an appeal by a child or a wife to seek enhancement of the maintenance allowance where the trial Court grants it in a sum less than Rs. 1000 is not to the read into the said proviso.

(Emphasis supplied)

Bare perusal of above unambiguously reflects that the bar contained in Section 14(2) of the Act is applicable to the husband only and the same cannot be applied to the minor or the wife, if the family Court decrees their suit for maintenance allowance to the extent of Rs. 1000/- or the dowry articles to the tune of Rs. 100,000/-.

6. Learned counsel for the respondent has relied upon Sarfrazsupra to contend that no appeal, even to a wife, is available under Section 14(2) of the act against a decree of dowry upto the amount of Rs. 100,000/-. I have gone through the said judgment. The facts of the referred case are distinguishable from that of the instant case inasmuch as in the said case, the husband challenged the decree whereby the wife was granted maintenance allowance at the rate of Rs. 3,000/- per month for IddatPeriod, and the minors at the rate of Rs. 4,500/- month per head. Therefore, it was held in the referred case that since the maintenance allowance granted to each person was less than Rs. 5000/- per month, therefore, the appeal under Section 14(2) of the Act was barred. Whereas, in this case, the appeal was filed against a decree of dowry article less than Rs. 100,000/- by a wife who was not debarred to challenge the same as the restriction imposed under Section 14(2) of the Act is only upon the husband, as discussed hereinabove. The contention of learned counsel for the respondent that the appeal of wife is also barred under the said provision is without any foundation, which is accordingly discarded.

7. For what has been discussed above, this writ petition is allowed and the impugned judgment and decree passed by learned appellate Court below is set aside. Resultantly, the appeal of the petitioner will deem to be pending before learned appellate Court below. Parties are directed to appear on 05.03.2022 before learned District Judge, Rajanpur who will hear the appeal of the petitioner

himself or entrust it to a Court of competent jurisdiction. The Court so seized with the matter will decide the appeal of the petitioner afresh to the extent of claim of dowry only, after affording opportunity of hearing to both sides, expeditiously, preferably within a period of one month commencing from the date of such entrustment, strictly in accordance with law.

(K.Q.B.) Petition allowed

PLJ 2022 Lahore 562 [Lahore High Court, Multan Bench]

Present: Muhammad Shan Gul, J.

MUHAMMAD MUMTAZ and another--Petitioners

versus

GOVERNMENT OF PUNJAB through Secretary Services and General Administration Department and others--Respondents

W.P. No. 1965 of 2022, decided on 11.2.2022.

Punjab Civil Servants (Appointment & Conditions) of Service Rules, 1974--

----R. 17-A--Constitution of Pakistan, 1973, Art. 199--Withholding of Salaries Existence Excellence of notification--Direction to--Salaries notification, on basis of which respondents have refused payment of salaries to petitioners does not exist anymore, there is no reason for respondents not to release salaries of petitioners--Appointment under Rule 17-A had to be made on a regular basis from date of initial appointment and not on contractual basis--Respondent No.7 shall ensure, without fail, that salaries due to petitioners are paid within ten days from today--Accountant General of Punjab who is directed to ensure payment of salaries to the petitioners--Petition disposed of. [Pp. 563, 564 & 565] A, B, C & D

Mr. Faisal Aziz Ch., Advocate for Petitioners.

Mr. Muhammad Shahid Riaz, Assistant Advocate General for State.

Date of hearing 11.2.2022.

Order

This petition has been filed for seeking a direction to the respondents so as for them to release the salaries of the petitioners wrongly withheld by them.

1. Learned counsel for the petitioners submits that the petitioners gained employment with the respondents in terms of Rule 17-A of the Punjab Civil Servants (Appointment & Conditions) of Service Rules 1974 since their parents had retired upon being declared incapacitated while in government service. While the petitioners have worked and have put in labour, the respondents on the misplaced belief based on an equally irregular notification of the Regulations Wing of the Services and General Administration Department dated 06.05.2021 have denied payment of salaries to the petitioners on the basis that since their parents retired upon being declared medically unfit in category-B, they could not be accommodated and paid salaries. This, according to the petitioners, is persecution and exploitation at its worst.

2. Learned Assistant Advocate General Punjab is present on Court call and submits that a judgment of this Court dated 03.06.2021 passed in Writ Petition No. 4396 of 2021 "Muhammad Ijaz vs. Government of the Punjab, Bahwalpur Bench", has already declared the notification dated 06.05.2021, emanating from the Regulation wing, as bad in law and of no legal effect. Informs the Court that an Intra Court Appeal was filed against the said judgment and the operation of the judgment was suspended purely on technical grounds. Submits that, however, these technical issues were taken care of and addressed during the second round when one Muhammad Waleed approached the Bahawalpur Bench of this Court in Writ Petition No. 6054 of 2021 and vide judgment dated 28.07.2021, notification dated 06.05.2021 was again declared to be of no legal effect and this time round, a full-dress hearing was conducted whereby all relevant stake holders including the concerned Administrative Secretaries of the Provincial Government were present and after allowing them a real and proper opportunity of defence, the petition was allowed and the notification in issue was set aside. He submits that this judgment still holds the field and no Intra Court Appeal has been filed against this judgment and which is why the respondents' refusal to release salaries to the petitioner is indefensible.

4. In this view of the matter, since the notification dated 06.05.2021 on the basis of which the respondents have refused payment of salaries to the petitioners does not exist anymore, there is no reason for the respondents to not to release salaries of the petitioners. Needless to add that Administrative instructions can never dilute the effect of statutory law or statutory rules. This is trite and needs no reiteration.

1. In addition the Regulations Wing has itself acknowledged this position of law by means of issuance of clarification dated 22.12.2021 which is being reproduced:-

To

The Deputy Accountant General, Office of the Accountant General Punjab, AG Office Complex, Turner Road, Lahore.

Subject: APPOINTMENT UNDER RULE 17-A ON THE BASIS OF INVALIDATION IN CATEGORY "B".

Reference your letter No. TM-l/H-3-1/SCR/2020-21/2678, dated 02.12.2021 on the subject noted above.

1. The case has been examined in Regulations Wing, S&GAD and it is observed that Honourable Lahore High Court, Bahawalpur Bench, Bahawalpur vide order dated 03.06.2021 passed in writ petition No. 4396/2021 titled as Muhammad Ijaz versus Government of the Punjab, etc. and dated 28.07.2021 passed in writ petition No. 6054/2021 titled as Muhammad Waleed versus Government of the Punjab, etc. have struck down the clarification of Regulations Wing, S&GAD bearing No. SOR-III(S&GAD) 2-61/2018, dated 06.05.2021 regarding appointment under Rule 17-A of PCS(A&CS) Rules, 1974, in case of invalidation of a government servant in category-B. Hence, the said clarification is no more in field. Moreover, Regulations Wing, S&GAD has not issued any letter, regarding stoppage of salaries of already recruited staff under rule ibid.

3. Foregoing in view, the Accountant General, Punjab is advised to comply with the orders passed by the Honourable Lahore High Court, Lahore in the Writ Petition No. 57463/2021, in letter and spirit, if the said order has attained finality.

6. Learned counsel for the petitioners also submits that in terms of a judgment of this Court passed in Writ Petition No. 51484 of 2019 such appointment under Rule 17-A had to be made on a regular basis from the date of initial appointment and not on contractual basis. Relies on Notifications of Government of the Punjab dated 29.10.2019 and 19.01.2021 which categorically, and unequivocally note and acknowledge what the counsel for the petitioner states.

1. This argument raised by the counsel for the petitioners in indeed interesting and worth consideration because of the presence of two notifications noted above and also on account of the law laid down in "Ali Ahmad v. Executive District Education Officer, Sialkot and another" (2014 PLC(C.S) 793).

8. In this view of the matter, Respondent No. 7 shall ensure, without fail, that salaries due to the petitioners are paid within ten days from today.

9. A copy of this petition is also dispatched to the Accountant General of Punjab who is directed to ensure payment of salaries to the petitioners. A copy of the judgment passed by this Court in writ Petition No. 6054 of 2021 "Muhammad Waleed vs. Govt. of Punjab" has been made a part of the file and a copy of this judgment shall also be shared with the official respondents by the office of this Court.

1. With these observations, this petition is disposed of.

(K.Q.B.) Petition disposed of

PLJ 2022 Lahore 565

Present: Muhammad Ameer Bhatti, CJ.

MUHAMMAD HAMZA SHAHBAZ SHARIF--Petitioner

versus

PROVINCE OF PUNJAB and 2 others--Respondents

W.P. No. 24320 of 2022, heard on 22.4.2022.

Constitution of Pakistan, 1973--

----Arts. 104/130/199--Oath of new elected Chief Minister--Since Governor through Advocate general has categorically informed Court regarding non-administering oath of newly elected chief minister for reason to be recorded in letter addressed to president--Court appropriate to direct president for exercising powers u/a 104 of constitution for nomination of another person for administration of new elected chief minister--it is also hoped that president of Pakistan will not wait for letter of Governor. [Pp. 566 & 567] A & B

PLD 2016 SC 808 ref.

M/s. Ashter Ausaf Ali, Khalid Ishaq, Sardar Akbar Ali Dogar, Kh. Mohsin Abbas, Malik Muhammad Abbas Farooq, Ahmad Saeed, Danyal Akber, Faizan Ahmad, Qamar Hayat, Adeel Shahid Karim, Mirza Waqas Baigh, Abid Sial, Ch. Sultan Mahmood, Zahir Abbas, Muhammad Asif Mehmood, Khalil Tahir Sandhu, Imtiaz Elahi, Muhammad Irfan-ul-Haq, Mian Imran Ali, Muhammad Nasir Chohan, Samran Mushtaq Ch., Kh. Aurangzeb Alamgir, Khawar Ikram Bhatti, Rafaqat Dogar, Attahullah Tarar, Raja Zulqarnain, Malik Mohsin Sadiq Awan, Barrister Asad Rahim Khan, Kashif Akbar Bandesha and Nimra Arshad, Advocates for Petitioner.

M/s. Ahmad Awais, Advocate General Punjab, Rai Shahid Saleem, Umair Khan Niazi, Khadim Hussain Qaiser and Anis Ali Hashmi Additional Advocates General for Respondents.

Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor General.

Date of hearing: 22.4.2022..

Judgment

Through this Constitutional petition the reluctance of the Governor of the Punjab to administer oath of the newly elected Chief Minister Punjab has been called-in-question.

1. As both the parties have been heard at length, therefore, this case is being treated and decided as admitted case.

2. In pursuance of direction issued by this Court on 21.04.2022, the learned Advocate General Punjab has entered appearance at 9:30 am before this Court and stated that the Governor of the Punjab has instructed him to inform this Court about his inability to administer oath, however, he failed to provide any evidence in this regard for which this Court has granted time till 11:00 am for production of the said letter to be addressed to the President of Pakistan by the Governor. At 11:00 am, the learned Advocate General informed that although the Governor has decided not to administer the oath but he has not written the letter in this regard to the President of Pakistan so far, however, he remained uncertain about the time period the Governor would consume for writing supra mentioned letter. This Court again granted another opportunity to obtain the instructions about the time needed by the Governor for writing that letter to the President of Pakistan expressing his inability to administer oath. Accordingly, now at 2:00 pm the learned Advocate General after obtaining the instructions from the Governor informed this Court that within 24-hours the letter would be dispatched to the President expressing his inability to administer oath.

4. Since the Governor through Advocate General has categorically informed this Court regarding non-administering oath of the newly elected Chief Minister for the reason to be recorded in the letter addressed to the President of Pakistan, therefore, this Court concludes that, in such eventuality, I deem it appropriate to direct my office to transmit this order through fax to the office of the President for its placement before the President of Pakistan for exercising the power provided under Article 104 of the Constitution of Islamic Republic of Pakistan, 1973, for nomination of another person, keeping in view the peculiar circumstances, for administration of newly elected

Chief Minister’s oath. It is expedient to reproduce the said Article as under:

“104. Speaker Provincial Assembly to act as, or perform functions of Governor in his absence. When the Governor, by reason of absence from Pakistan or for any other cause, is unable to perform his functions, the Speaker of the Provincial Assembly and in his absence any other person as the President may nominate shall perform the functions of Governor until the Governor returns to Pakistan or, as the case may be, resumes his functions.”

It is expected from the President of Pakistan that he will resolve/ decide the matter of nomination of any person in terms of Article 104 of the Constitution keeping in view the fact that people of the Province of Punjab are already suffering on account of non-functional Provincial Government for the last 21-days, which as held in Mustafa Impex’s case by the honourable Supreme Court (PLD 2016 Supreme Court 808) consists of Chief Minister and the Cabinet.

It is also hoped that the President of Pakistan will not wait for the letter of the Governor as the Governor has no authority under Article 130(5) of the Constitution, which is as follows:

“130(5). The member elected under clause (4) shall be called upon by the Governor to assume the office of Chief Minister and he shall, before entering upon the office, make before the Governor oath in the form set out in the Third Schedule:”

to exercise any option except to ask the newly elected Chief Minister to assume the office by administering oath promptly. With these observations, the writ petition stands disposed of.

(K.Q.B.)

PLJ 2022 Lahore 567[Multan Bench, Multan]

Present: Abid Hussain Chattha, J.

AHMAD WALEED ADNAN and 28 others--Petitioners

versus

GOVERNMENT OF PUNJAB through Secretary Education Punjab, Lahore and 5 others --Respondents

W.P. No. 3049 of 2020, heard on 7.4.2022.

Educational Institution--

----University of Sargodha Ordinance, 2002, S. 23--Regulations and Rules of university regarding code of honor and academics shall be applicable--Students were not awarded degree--Condition of compulsory pass comprehensive examination was imposed--Condition was not disclosed at time of admission--Requirement of taking comprehensive examination is within domain and ambit of University--Mere prescribing of an examination does not prejudice rights of students--Impart of education is primary objective of any educational institution and during course of Program, different requirements are prescribed, applied and tested amongst students to further and advance purpose and objective of imparting education--No student should shy away from appearing in any; examination which is indiscriminately prescribed by an educational institution--No student has any vested right to claim immunity from any such examination--Prospectus only prescribes basic features of an educational institution and programs offered by institution--It does not contain minute details regarding trivial educational requirements which evolve during Program and can subsequently be altered after following due process of law as circumstances may warrant--All rules and regulations of University including code of honor and academics shall be applicable and adopted by all affiliated institutions and Pakistan Institute of Engineering & technology, Multan is of no exception.

[P. 570] A & B

SardarMuhammad Rafique Dogar, Advocate and Abdul Qadoos Khan, Advocate for Petitioners.

Mr. Khush Bakhat Khan, A.A.G., Mr. Shan Saeed, Legal Advisor, Mr. Muhammad Fayyaz Mansab, Advocate, Ch. Bashir Ahmad Ansari, Advocate and Mr. Mushtaq Haider Tipu, Advocate for Respondents

Date of hearing: 7.4.2022.

Judgment

This Judgment shall decide the titled and connected Writ Petitions No. 2548/2020, 2595/2020 and 6256/2021 since common questions of law and facts are involved therein.

1. The brief facts of the case are that the Petitioners were admitted in University of Sargodha (the "University") in different B.Sc. Programs including Mechanical Engineering after fulfillment of requisite requirements for admission in the year 2015. It is contended that the Mechanical Engineering Program (the "Program") at the relevant time was offered on the basis of semester system as stipulated in the prospectus. The Petitioners participated in the examination and successfully completed the Program. Later, the students were not awarded degrees against the Program on the premises that the Petitioners have to appear and pass the comprehensive examination. In this background, it was submitted that the condition imposed upon the students to compulsorily pass the comprehensive examination in order to successfully complete the B.Sc. Program is unlawful for the reasons that the condition was not disclosed at the time of admission; the condition is arbitrary and capricious; and exposes the students to an extraneous condition failing which their educational career may be ruined.

2. Report and parawise comments filed by the Respondent University reveal that the University is a public sector University existing under the administrative domain of Higher Education Department of Government of Punjab. Column No. 4 of the First Schedule of the Punjab Government Rules of Business, 2011 confers the status of an autonomous body to the University which was established under the University of Sargodha Ordinance, 2002 (the "Ordinance"). As such, the University has the lawful authority to formulate its policies and regulations regarding admission of students in the University and conditions under which they are admitted or allowed to undergo the courses and examinations and become eligible for the award of degrees, diplomas and certificates. The Academic Council of the University under Section 23 of the Ordinance is empowered, inter alia, to prescribe standards of instruction, research, publication and examination in order to promote and prescribe higher standard of education in the affiliated colleges. The Academic Council of the University in its meeting held on 10.07.2014 directed the Deans Committee to formulate the regulations for the conduct of comprehensive examinations. The draft regulations were approved by the competent authority and notified vide notification dated 09.12.2014 (the "Notification"). The Notification was duly served upon the Principals of all the affiliated colleges of the University and has also been approved by the Syndicate of the University. The format of the comprehensive examination is in the form and substance of a written paper comprising of one hundred MCQs taken from five core courses related to Major Area of the degree. The comprehensive examination, however, has to be cleared and passed by obtaining at least fifty marks in maximum three attempts. Core courses have been prescribed for each discipline.

3. The University has lawful authority to promulgate regulations for the conduct of comprehensive examinations of the students. In addition, the prospectus of the affiliated institutes also explicitly states that all regulations and rules of the University regarding code of honor and academics shall be applicable. This Court was informed that previously comprehensive examinations of students of the affiliated institutes including Pakistan Institute of Engineering & Technology, Multan were duly held in August/September, 2017, May, 2018 and February, 2020. Hence, the assertion that the Petitioners have been taken by surprise regarding this requirement has no legal basis. Further, the Notification is not being implemented with retrospective effect as the Petitioners took admission in their respective courses (2015-2019 session). It was also asserted that this petition has become infructuous as the impugned comprehensive examination 2020 has already taken place.

5. The requirement of taking comprehensive examination is within the domain and ambit of the University. Mere prescribing of an examination does not prejudice the rights of the students. In fact, the impart of education is the primary objective of any educational institution and during the course of Program, different requirements are prescribed, applied and tested amongst the students to further and advance the purpose and objective of imparting education. No student should shy away from appearing in any examination which is indiscriminately prescribed by an educational institution. No student has any vested right to claim immunity from any such examination. The prospectus only prescribes the basic features of an educational institution and the programs offered by such institution. It does not contain minute details regarding trivial educational requirements which evolve during the Program and can subsequently be altered after following due process of law as the circumstances may warrant. In the instant case, the comprehensive examinations were notified way back in 2014. Even the prospectus clearly spells out that the curriculum is subject to the final approval of the University. The prospectus also clearly states that all rules and regulations of the University including code of honor and academics shall be applicable and adopted by all the affiliated institutions and Pakistan Institute of Engineering & technology, Multan is of no exception. Moreover, the comprehensive examinations are being regularly conducted.

1. The Supreme Court of Pakistan in recent times increasingly emphasized that the Courts should not interfere in the matters of admission and examination in educational institutions as the concerned educational authorities are the sole judges of the criteria laid down in the prospectus. Interference by the Court in such matters

creates difficulties for the institutions to run its affairs in an appropriate manner according to their rules and regulations. Recently, in case titled "Khyber Medical University and others vs. Aimal Khan and others" (PLD 2022 Supreme Court 92), it was held that the Court should sparingly interfere in the internal governance and affairs of educational institutions. The University authorities, who possess technical expertise and experience and are aware of day to day affairs, should be allowed to run such institutions as unnecessary interference would lead to disruption in the smooth educational activities carried on by the University. It is not the constitutional mandate of the Courts to run and manage public or private institutions or to micro-manage them or to interfere in their policy and internal administrative matters.

1. In view of the above, there is no merit in the instant constitutional Petition and the same is dismissed, accordingly.

(R.A.) Petition dismissed

PLJ 2022 Lahore 571

Present: Muhammad Ameer Bhatti, CJ.

MUHAMMAD HAMZA SHAHBAZ SHARIF--Petitioner

versus

FEDERATION OF PAKISTAN and 4 others--Respondents

W.P. No. 25671 of 2022, decided on 27.4.2022.

Constitution of Pakistan, 1973--

----Arts. 199 & 255--Constitutional petition--Administration of oath--Causing any delay in administration of oath required under Constitution--Governor shall ensure completion of process of administration of oath of Chief Minister Punjab, either himself or through his nominee, in terms of Article 255 of Constitution, on or before 28.4.2022--President of Pakistan, who is also under constitutional obligation to facilitate expeditious administration of oath of Prime Minister or Chief Minister in any Province, hence, is suggested to play his role mandated by Constitution ensuring a functional Provincial Government in Punjab--Office of High Court is directed to transmit this order through fax immediately to offices of Governor and President for its placement before them, today.

[P. 573] A & B

Mr. Ashter Ausaf Ali, Senior Advocate Supreme Court, M/s. Khalid Ishaq (ASC), Ch. Sultan Mehmood, Attaullah Tarar, Sardar Akbar Ali Dogar, Qamar Hayat, Zahir Abbas, Barrister Asad Rahim Khan, Nimra Arshad, Kashif Akbar Bandesha, Sardar Khalil Tahir Sandhu, Rana Afzal Razzaq, Atif Mohtashim Khan, Rana Muhammad Ashraf, Khawar Ikram Bhatti, Kh. Mohsin Abbas, Muhammad Asif Mehmood, Abid Hussain Sial, Wajahat Ali, Adeel Shahid Karim, Faizan Ahmed, Rahil Riaz, Danyal Akbar, Ahmed Saeed, Usman Nassir, Ali Javed Bajwa, Faiqa Dawood, Malik Muhammad Abbas Farooq, Raja Khurram Shahzad, Mian Imran Ali, M. Irfan-ul-Haq, Imtiaz Elahi, Muhammad Nasir Chohan, Sitar Sahil, Rafaqat Dogar, Khawaja Aurangzeb Alamgir, Malik Mohsin Ali Awan, Ch. Arshad Hussain, Ch. Waseem Ahsan, Syed Abbas, Ch. Sultan Mahmood, Samran Mushtaq Ch. and Ahmad Hassan Khan Shahani, Advocates for Petitioner.

M/s. Ahmed Awais, Advocate General Punjab, Umair Khan Niazi, Anees Ali Hashmi, Fayyaz Ahmad Mehar and Mian Shakeel Ahmad, Addl. Advocates General.

Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor General.

Mirza Nassar Ahmad, Addl. Attorney General and Mr. Tahir Mehmood Ahmad Khokhar, Deputy Attorney General.

Date of hearing: 26.4.2022.

Order

For reasons to be recorded later in detail, this petition is disposed of with the following observations:

1. It is, therefore, concluded that all the enabling provisions/Articles of the Constitution of Islamic Republic of Pakistan, 1973, suggest prompt formation of Governments, i.e. Provincial and Federal. For that matter, expeditious administration of oath either by President or by Governor or their nominee, as the case may be, is mandatory; as all expected reasons/options causing delay are excluded/procured by suggesting/ providing alternate mechanism and I do not find any vacuum or space in the Constitution for causing any delay in administration of oath required under Constitution. Whereas the Province of Punjab is being operated without the functional Government, for the last 25-days, since the acceptance of the resignation of the then Chief Minister Mr. Usman Buzdar. On the other hand, the oath of the newly elected Chief Minister, Punjab Mr. Muhammad Hamza Shahbaz Sharif is being

delayed on one pretext or the other, which is not only against democratic norms but also against the scheme of the Constitution.

2. That being the case, it is suggested/advised/proposed that Governor shall ensure the completion of the process of administration of oath of Chief Minister Punjab, either himself or through his nominee, in terms of Article 255 of the Constitution, on or before 28.04.2022.

3. Moreover, President of Pakistan, who is also under constitutional obligation to facilitate the expeditious administration of oath of Prime Minister or Chief Minister in any Province, hence, is suggested to play his role mandated by the Constitution/Law, ensuring a functional Provincial Government in Punjab.

1. The office of this Court is directed to transmit this order through fax immediately to the offices of the Governor and President for its placement before them, today.

(R.A.) Petition disposed of

PLJ 2022 Lahore 573

Present: Safdar Saleem Shahid, J.

RASHEED AHMED--Petitioner

versus

ADDITIONAL DISTRICT JUDGE etc.--Respondents

W.P. No. 27152 of 2013, heard on 25.1.2022.

Family Courts Act, 1964 (XXXV of 1964)--

----Preamble--West Pakistan Family Courts Act, 1964 has been enforced to make provisions for establishment of Family Courts for expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith. [P. 576] A

Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 15 & 16--Provision of C.P.C. and Q.S.O.--Applicability--Powers of Family courts--Under Section 15 Family Courts are provided with power to summon witnesses whereas Section 16 enable them to proceed with contempt matters--Similarly, Family Court has power to adopt any procedure under law for summoning of witnesses or exhibiting documents--Procedures, provided in CPC and Qanun-e-Shahadat Order, are not applicable in stricto sensu--Wisdom behind scheme is to avoid technicalities so that matters could be resolved expeditiously and justice could be provided within very short span of time. [P. 576] B

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 5--Jurisdiction--Family affairs--Proceedings of Family Courts--Procedure before1 Civil Court is very lengthy and painful, all matters relating to family affairs were made subject to Family Courts--Judges of Family Courts have been given vast power to regulate proceedings of family cases with wisdom that Family Courts can initiate to bring about compromise between spouses for their reunion and for their living together, during proceedings of case twice provision of reconciliation have been inducted in Court proceedings--Purpose behind whole exercise is to make efforts for reunion of spouses so to have a peaceful and good family future.

[P. 576] C

Nikah Form--

----Vital importance regarding resolution of disputes--Most of Nikah Khawn Nikah Registrars have no understanding with spirit of columns of Nikah Form especially in rural areas where literacy rate is very low and people do not understand meaning of some special terms--Nikah Khawn/Nikah Registrars while filling Nikah Form do not keep in mind purpose of columns thereof that ultimately creates problems for spouses in case any dispute arises between them. [P. 577] D

Interpretation of Column No. 17 of Nikah Form--

----Nikah Form was written in petitioner’s presence and signed over same but conditions were not written--Neither petitioner has filed an application before concerned union council for correction of entries if were wrongly filled in column 17 nor brought a suit before competent Court to get entries corrected, meaning thereby that Nikah Nama is an admitted document. [P. 577] E

Family Courts Act, 1964 (XXXV of 1964)--

----S. 5--Nikah form--Column No--17--Presumption of truth--Personal property and belonging of wife can be claimed by her at any time and matter is triable by Family Court--Since this property has not been fixed with any condition by husband, this will be taken as personal property and belonging of wife, which has been rightly decreed by Additional District Judge. [P. 579] F

Mr. Muhammad Iftikhar Ullah Dhilon, Advocate, for Petitioner.

Mr. Shan Saeed Ghumman, Advocate, for Respondents.

Date of hearing: 25.1.2022.

Judgment

This petition calls into question the legality of the consolidated judgment and decree dated 18.02.2013, whereby the learned Additional District Judge, Sialkot, while dismissing the appeal filed by the petitioner, partly accepted the appeal filed by Respondent No. 3 and modified the judgment and decree dated 21.06.2012 passed by the learned Judge Family Court Sialkot, in the terms that the decree for recovery of Rs. 100.000/- as alternate value of dowry articles and pocket money/maintenance at the rate of Rs. 5000/- per month w.e.f.. 01.01.2010 till copletion of her period of Iddat passed in favour of Respondent No. 3 was maintained and her suit tor recovery of gold ornaments weighing eleven tolas or the current market price thereof was also decreed.

1. Brief facts giving rise to this petition are to the effect that Respondent No. 3 filed two suits one for recovery of dowry articles. gold ornaments and maintenance allowance and the other for recovery of dower in shape of gold ornaments weighing 14 tolas and pocket money at the rate of Rs. 5000/- per month as mentioned in the Nikah Nama, alleging that she was married with the petitioner on 20.11.2009, however, there was no issue out of the wedlock; she was given gold ornaments and dowry articles by her parents as per list attached with the plaint but in July 2010 she was ousted by the petitioner from his house, as Such she prayed for a decree for recovery of dowry articles, gold ornaments, maintenance allowance, dower in the shape of gold ornaments weighing 14-lolas and Rs. 5000/- per month as pocket money as per condition of Nikah Nama. The petitioner contested the suit by filing written statement with certain preliminary objections.

2. The learned trial Court out of divergent pleadings of the parties, framed issues, recorded evidence of the parties, and after having gone through the same while dismissing the suit of Respondent No. 3 for recovery of dower in the shape of gold ornaments weighing 14-tolas and pocket money, partially decreed the suit for recovery of dowry articles to the extent of Rs. 100,000/- as alternate price thereof and maintenance allowance at the rate of Rs. 5000/- per month from January, 2010 till the period of her Iddat. Feeling aggrieved, both the parties preferred appeals, which were decided through a consolidated judgment and decree by the learned Additional District Judge in the terms recorded in para-1 above.

3. Arguments heard. Record perused.

5. Prior to the discussion on the legal aspects of the proposition regarding the interpretation of column 17 of the Nikah Nama, I would like to discuss the wisdom maintained in the scheme in object of the Family Court. The West Pakistan Family Courts Act, 1964 has been enforced to make provisions for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith. That is why the application of the provisions of CPC and Qanun-e-Shahadat Order, 1984, have not been strictly made applicable to the family cases, rather the powers have been vested to the Family Courts to perform their functions. Under Section 15 the Family Courts are provided with the power to summon witnesses whereas Section 16 enable them to proceed with contempt matters. Similarly, the Family Court has the power to adopt any procedure under law for summoning of the witnesses or exhibiting the documents. The procedures, however, provided in CPC and Qanun-e-Shahadat Order, are not applicable in stricto sensu. Meaning thereby the wisdom behind the scheme is to avoid the technicalities so that the matters could be resolved expeditiously and justice could be provided within the very short span of time. That is why Section 5 of the Act provides "Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts .shall have exclusive jurisdiction to entertain, hear and adjudicate upon matter specified in the Schedule". Prior to introduction of this Act, some of the matters relating to the family affairs were subject to the Civil Courts and the Civil Court being the ultimate Court of jurisdiction was having the power to entertain those matters, but keeping in view the fact that the procedure before the Civil Court is very lengthy and painful, all the matters relating to the family affairs were made subject to the Family Courts. The Judges of the Family Courts have been given vast power to regulate the proceedings of the family cases with the wisdom that the Family Courts can initiate to bring about compromise/settlement between the spouses for their reunion and for their living together, therefore, during the proceedings of the case twice the provision of reconciliation have been inducted in the Court proceedings. The purpose behind the whole exercise is to make efforts for the reunion of the spouses so to have a peaceful and good family future. This is not only beneficiary for the families but this will also help to build a healthy and beautiful society.

1. With the introduction of the Act, the Nikah Form has attained a very vital importance regarding the resolution of the disputes, if arise between the spouses. Nikah Form otherwise is very important document. It has been observed that unfortunately most of the Nikah Khawn/Nikah Registrars have no understanding with the spirit of the columns of the Nikah Form especially in the rural areas where the literacy rate is otherwise very low and people do not understand the meaning of some special terms. Nikah Khawn/Nikah Registrars while filling Nikah Form do not keep in mind the purpose of the columns thereof that ultimately creates problems for the spouses in case any dispute arises between them. Furthermore, in some matters it is very difficult for the Court to see the exact intention of the spouses regarding those columns at the time of Nikah. If Nikah Form is perused, its columns have very systematic sequence. From columns 1 to 6. it relates to the place of Nikah with the details of the spouses regarding their names, parentage, age and their matrimonial status i.e. bachelor or married, whereas columns 7 to 11 are regarding the requirements of a valid Nikah, wherein names of the witnesses and the name of Wakeel on behalf of the spouses, if any appointed, are mentioned. Column 12 is regarding the date of Nikah. Columns 13 to 17 relate to the fixation of dower. Now this head has been detailed in four different columns and every column has its own significance. While filling up these columns normally the person filling up does not care for the wisdom behind the said columns, which are very clear in their meanings. Column 17 is regarding "خاص شرائط اگر کوئی ہوں". According to the scheme of the form it reflects that this is a part of the dower and the conditions if having been imposed regarding the dower. It cannot be interpreted anywhere that this column is regarding the conditions after the divorce or in case of divorce, because Nikah Form clearly shows that column 18 starts from the subject of divorce and all the conditions regarding the divorce have been separately mentioned in two different columns.

7. The proposition in hand revolves around the interpretation of column 17 of the Nikah Form. Admittedly, the Nikah was performed between the parties on 20.1 1.2009, the document (photocopy of Nikah Nama) Mark-A is admitted by both the sides and there is no objection from any side regarding its execution. The petitioner has admitted that this Nikah Form was written in his presence and he signed over the same but he has further stated that these conditions were not written. He, however, has not challenged these conditions independently before any forum. Neither the petitioner has filed an application before the concerned union council for correction of the entries if were wrongly filled in column 17 nor brought a suit before the competent Court to get the entries corrected, meaning thereby that Nikah Nama is an admitted document. The learned Judge Family Court while interpreting column 17 of the Nikah Mama observed as under:

"In support of her version plaintiff lady has also produced a copy of her Nikah Nama as mark-A, perusal of which clearly reveals that in Column No. 17 of the same, following words are mentioned:

"17: خاص شرائط اگر کوئی ہوں:- چودہ تولے زیور طلائی کی صورت میں۔ پانچ ہزار روپے جیب خرچ"

Above mentioned words are so ambiguous that no clear picture of these words can be drawn. Plaintiff has stated that golden ornments mentioned in this column were agreed to be paid as her dower but perusal of Column No. 13 and 14 of Nikah Nama of the parties clearly shows that dower in the shape of 11-tolas golden ornaments was paid to the plaintiff at the time of her marriage. In these circumstances when dower has already been paid to the plaintiff, golden ornaments mentioned in Column No. 17 cannot be termed as dower of the plaintiff. It is also note worthy here that Column No. 17 of the Nikah Nama on the basis of which plaintiff lady has claimed the above mentioned 14-tolas golden ornaments etc, is completely silent about the status of these ornaments etc, mode of their payment/delivery so, in these circumstances this Court is of the view that on the basis of such an ambiguous column plaintiff lady cannot be held entitled to get these gold ornaments alongwilh Rs. 5000/- as per month pocket money in the shape of her Haq Mehr."

Whereas the learned Additional District Judge while dealing with the issue interpreted the said column otherwise and mentioned that it could be treated as deferred dower which the lady could claim under law. The wisdom of the judgment of Additional District Judge is backed by the case of jehangir Khan through Attorney vs. Mst. Saeeda Begum and 2 others (2020 YLR 2350), wherein column 17 was interpreted as under:

"As far as petitioner's claim qua house is concerned, I have examined Column No. 17 of the Nikahnama dated 20.11.2009 Ex.PW-1/1, though it was not specifically mentioned that it was given to her either in lieu of dower or as gift, however, it was also not mentioned that it was given to her for residential purpose only. In the absence of such stipulation in the Nikahnama, the suit house given to the wife is conclusive in nature and may be construed as a part of dower or gift in consideration of marriage, therefore, it would be falling with the exclusive jurisdiction of the Family Court as envisaged in Section 5 read with Part-1 of the schedule of the Family Courts Act, 1964 and it has become personal property of the Respondent No. 1."

Similarly, in the case of Mst. Shehnaz Mai vs Ghulam Abbas and 2 others (2018 CLC Note 104) column 17 of the Nikah Nama was also interpreted in the same way and the property mentioned therein was decreed in favour of wife and the said property was declared as deferred dower. There is no other view that presumption of truth is attached to the Nikah Nama. but at the same time, if the entries thereof are denied the same can be challenged and the party challenging the entries is under obligation to prove that those entries were not settled between the parties at the time of Nikah, but in this proposition there is no evidence regarding this aspect. Admittedly, the Nikah was performed in the Majlis and all the persons whose names are appearing on the Nikah Nama (Mark-A) including the petitioner signed over the same. Keeping in view the sequence of the scheme of Nikah Form, its column 17 is condition of dower which in other way can be interpreted as the property belonging to the wife after marriage and under Section 5 of the West Pakistan Family Courts Act, 1964, personal property and belonging of the wife can be claimed by her at any time and the matter is triable by the Family Court. Since this property/amount has not been fixed with any condition by the husband, therefore, this will be taken as the personal property and belonging of the wife, which has been rightly decreed by the learned Additional District Judge. The citations referred by the learned counsel for the petitioner are not as such applicable to the present proposition.

1. For what has been discussed above, the learned counsel for the petitioner has been unable to point out any exercise of excess of jurisdiction by the learned appellate Court. The learned counsel for the petitioner has similarly been unable to point out any illegality or material irregularity having been committed by the learned appellate Court. Under the circumstances this petition, having no merit, is dismissed and the judgment and decree passed by the learned appellate Court is upheld. There shall be no order as to costs.

(R.A.) Petition dismissed

PLJ 2022 Lahore 580

Present: Safdar Saleem Shahid, J.

SADIA IQBAL--Petitioner

versus

UMAR NASIM AHMED etc.--Respondents

W.P. No. 14646 of 2016, decided on 8.3.2022.

Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 14 & 17--Jurisdiction of--Filing of objection application--Execution proceedings--Right of appeal--No provision of appeal or revision shall lie against an interim order--Provisions of C.P.C. and Qanun-e-Shahadat Order are not applicable to proceedings of Family Court--Only one right of appeal has been provided by Act against final order of Family Court, whereas no provision of appeal or revision shall lie against an interim order of Family Court--High Court has reason to believe that while assuming jurisdiction to entertain said appeal and passing impugned order, erred in law by setting aside interim orders passed by Executing Court.

[P. 583] A, B & C

2002 SCMR 1950 ref.

M/s. Adnan Qureshi & Tanveer Hayat, Advocates for Petitioner.

M/s. Agha Abdul Hassan Arif & Nosheen Amber Bukhari, Advocates for Respondent No. 1.

Date of hearing: 8.3.2022.

Order

Through this constitutional petition, Mst. Sadia Iqbal petitioner has challenged the validity of judgment dated 11.03.2016 whereby learned Addl. District Judge, Lahore set aside the orders dated 23.05.2015 & 15.12.2015 passed by learned Executing Court Lahore, “with the directions to learned Executing Court to determine/ ascertain the actual value of gold ornaments and not pure gold, prevailing at the date of satisfaction/execution of decree, when the judgment debtor had paid decretal amount, which was exact date of execution/satisfaction of decree, as per order of Hon’ble Lahore High Court, Lahore”.

1. Perusal of order dated 06.05.2016 passed by this Court in the instant petition reveals that on the said date, learned counsel for the petitioner contended that Respondent No. 1 had filed an application before the learned Executing Court raising objection on the value of gold ornaments on 3rd June, 2015 which was dismissed vide order dated 11th June,2015. Thereafter, the Respondent No. 1 filed EFA No. 1366 of 2015 against the said order, which he withdrew, after arguments, vide order dated 21.10.2015; that instead of availing appropriate remedy, he again moved an application with the same contents, pleadings and prayer seeking revaluation of the gold ornaments on 28.11.2015 which was also dismissed by the learned Executing Courtvide order dated 15.12.2015. Thereafter, he preferred an appeal before the learned Lower Appellate Court which was taken up and decided vide impugned judgment dated 11.03.2016, despite the objection of learned counsel for the petitioner that appeal did not lie against the said interim order as per provisions of Section 14(3) and 17 of the West Pakistan Family Court Act 1964.

2. Arguments heard. Record perused.

3. The actual point involved in the instant petition was that whether learned first Appellate Court was having jurisdiction to entertain the appeal against the interim orders of learned Executing Court as per provisions of Section 14(3) and 17 of the West Pakistan Family Court Act 1964?. Here I would like to reproduce Section 14(3) & Section 17 (supra) as under:

“Section 14(3) “No appeal or revision shall lie against an interim order passed by a family Court”.

“Section 17 provisions of evidence Act and Code of Civil procedure not to apply.(1) save as otherwise expressly provided by or under this Act, the provisions of the (Qanun-e-Shahdat, 1984 (P.O No. 10 of 1984) and the Code of Civil procedure, 1908 (except Sections 10 & 11) shall not apply to proceedings before any Family Court ( in respect of part I of Schedule).”

(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts.

1. It has been noticed that Mst. Sadia Iqbal petitioner filed writ petition Bearing No. 29500 of 2013 before this Court. Vide order dated 12.06.2014 this Court observed as under:-

“The respondent is held entitled for recovery of gold ornaments as prayed for or in alternate their market value which would be prevailing at the time of execution/satisfaction of the decree”

“From the above discussion, it has been established on record that both the learned Courts below erred in law while declining the prayer of respondent for recovery of deferred dower. The petitioner could not prove that he has paid the dower during the existence of marriage, therefore, respondent is held entitled to recover Rs. 1,00,000/- from the petitioner as deferred dower.

Keeping in view the aforesaid observations passed by this Court, the learned Executing Court vide order dated 23.05.2015 had fixed the value of seventy tolas gold ornaments as Rs. 32,90,000/- and dower amount of Rs. 1,00,000/-, total decretal amount was calculated as Rs. 33,90,000/ and thereafter the learned Executing Court, Lahore directed the respondent/judgment debtor to present seventy tolas gold ornaments or its value ascertained hereinabove or Rs. 33,90,000/- as decretal amount. The respondent/judgment debtor filed an application seeking evaluation of correct price of gold ornaments and depositing of an amount of Rs. 3,00,000/- in lieu of decretal amount which was dismissed by learned Executing Court vide order dated 11.06.2015. Being aggrieved by the orders of learned Executing Court, the respondent/judgment approached this Court by filing EFA No. 1366 of 2015 which was dismissed by this Court vide order dated 21.10.2015 and that dismissal order was not assailed by the respondent /judgment debtor. It has further been noticed that respondent/judgment debtor also filed an application under Section 151 CPC read with Section 94 of CPC praying the Court to appreciate the actual direction of this Court given in para No. 13 of the judgment dated 12.06.2014 passed in W.P No. 12640 of 2013, which was also dismissed by learned Executing Court vide order dated 15.12.2015. Thereafter on 05.01.2016 against the orders dated 23.05.2015 & 15.12.2015 passed by learned Executing Court, the respondent/judgment debtor filed a family appeal before the learned Addl. District Judge, Lahore who set aside the aforesaid orders passed by learned Executing Court. The other question arises that whether interim order dated 23.05.2015 passed by learned Executing Court, during the execution of decree in question can be assailed through appeal which was allegedly filed by the respondent/judgment debtor on 05.01.2016 with the delay of more than seven months. The West Pakistan Family Courts Act, 1964 provides only one provision of appeal and in view of that whether appeal against other interim order dated 15.12.2015 is competent and maintainable before learned Ist Appellate Court. During the course of arguments learned counsel for respondent/judgment debtor took stance that an illegal order of the Court may be assailed in appeal before the Court of competent jurisdiction and as such the appeal before the learned appellate Court regarding the aforesaid orders passed by learned Executing Court was well maintainable before the said Court. It was further contended by learned counsel for the respondent that learned executing Court was bound to fix the market value of alleged gold ornaments keeping in view the spirit of judgment dated 12.06.2014 passed by this Court in W.P No. 12640 of 2013 which was not certainly followed by the learned Executing Court. In the case reported as “Muhammad Sadiq vs Dr. Sabir Sultana” (2002 SCMR 1950) the Hon’ble Supreme Court of Pakistan has observed as under:-

Ss.13 & 17--civil procedure Code (V of 1908),O.XXI, R. 54--Order of attachment and auction of property by the Family Court--Compliance of O.XX,R.54, C.P.C.--Necessity--Provisions of O.XXI, R.54, being not mandatory substantial compliance with the said provision is enough--Strict compliance with O.XXI,R.54 CPC may not be insisted upon as S.13 of the West Pakistan Family Courts Act, 1964 provides for the execution of a decree passed by the Family Court and application of O.XXI, R.54 C.P.C has been excluded by S.17 of the said Act.

The West Pakistan Family Courts Act 1964 is a special law and all the proceedings are conducted under the said act and when only one provision of appeal is provided that means there is philosophy behind the said provision of aforementioned Act and Family Court has been empowered to decide all the matters while observing the principle of law. The provisions of C.P.C and Qanun-e-Shahadat Order are not applicable to the proceedings of Family Court in order to decide the matters within the shortest possible time with permanent solution. This is why that only one right of appeal has been provided by the Act against the final order of the Family Court, whereas no provision of appeal or revision shall lie against an interim order of the Family Court, especially when the petitioner has taken a specific objection regarding the maintainability of appeal before the learned 1st Appellate Court, that matter should have been decided first in view of spirit of law. Keeping in view the facts and circumstances of the case, this Court has reason to believe that learned Addl. District Judge, Lahore while assuming the jurisdiction to entertain the said appeal and passing the impugned order, erred in law by setting aside the interim orders passed by learned Executing Court.

1. For what has been discussed above, instant petition is accepted and order dated 11.03.2016 passed by learned Addl. District Judge, Lahore is set aside.

(K.Q.B.) Petition accepted

PLJ 2022 Lahore 584 [Multan Bench Multan]

Present: Shakil Ahmad, J.

ABDUL ZAHOOR--Petitioner

versus

JUDGE FAMILY COURT, MULTAN and another--Respondents

W.P. No. 220 of 2022, decided on 2.2.2022.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 9--Punjab Family Courts (Amendment) Act, 2015--Closing of petitioner--Non-filing written statement by petitioner--Judge Family Court proceeded to close right of petitioner--Neither petitioner file written statement on day when he entered appearance before Judge Family Court nor submitted written statement on successive five adjourned dates for a period converting more than five months--Petitioner willfully and by design tried to prolong litigation and did not comply with order of court for submission of written statement.

[Pp. 584, 585 & 587] A, B & C

PLD 1981 SC 246; PLD 1974 SC 139 ref.

Mr. Mujeeb-ur-Rehman Hashmi, Advocate for Petitioner.

Haji Dilbar Khan Mahaar, AAG for State.

Mr. Aftab Hussain Malik, Advocate for Respondent No. 2.

Date of hearing: 2.2.2022.

Order

Instant petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to assail order dated 20.11.2021 passed by learned Judge Family Court, Multan, whereby right of Abdul Zahjoor (petitioner herein) to submit written statement was closed.

1. Heard learned counsel for the parties and record so annexed with the petition perused.

3. Learned counsel for the petitioner contends that learned Judge Family Court proceeded to close the right of petitioner in undue haste on technical ground. Learned counsel, however, could not refute the fact that the petitioner through his counsel entered appearance before learned Judge Family Court on 14.06.2021. Neither petitioner filed written statement on the day when he entered appearance before learned Judge Family Court nor submitted written statement on successive five adjourned dates for a period covering more than five months till 20.11.2021 when impugned order was passed by learned Judge Family Court. Procedure for submission of written statement has been specified in Section 9(1) of the Family Courts Act, 1964 (hereinafter referred to as the 'Act, 1964'). For the facility of ready reference, said provision is reproduced hereunder:

"[S. 9. (1) Written statement.--On the date fixed under clause (a) of sub-section (1) of Section 8, the plaintiff and the defendant shall appear before the Family Court and the defendant shall file his written statement, and attach therewith list of his witnesses alongwith a precise of the evidence that each witnesses is expected to give."