PLJ 2023 Judgments

PLJ 2023 Karachi 1 (DB)

Present: Muhammad Junaid Ghaffar and Agha Faisal, JJ.

NESTLE PAKISTAN LTD. KARACHI through Plant Manager--Petitioner

versus

FULL BENCH OF NATIONAL INDUSTRIAL RELATIONS COMMISSION and 2 others--Respondents

C.P. No. D-4469 of 2019, decided on 11.10.2022.

Constitution of Pakistan, 1973--

----Art. 199--Allegation of--Submission of bogus documents and falsifying medical claims--Removal from decision was reversed by NIRC--Ambit of write jurisdiction--Duty of Court--No suggestion of procedural impropriety in disciplinary proceedings--Proving of change--Misapplication of law--Ambit of writ jurisdiction is not that of a subsequent forum of statutory appeal and is restricted inter alia to appreciate whether any manifest illegality is apparent from a judgment impugned--It is also duty of this Court to ensure that any discretion exercised by a subordinate forum was done judiciously pursuant to sound legal principles and not contrary to law or usage having force of law--Full Bench of NIRC appears to have erred in disregarding preponderance of uncontroverted evidence and rested its contrary findings upon administrator not having been examined--Charge against respondent was proven and it was for petitioner to assess quantum of punishment, permissible within confines of law--There was no suggestion of any procedural impropriety in disciplinary proceedings, culminating in dismissal of respondent--No case has been substantiated to consider petitioner's initiation of disciplinary proceedings as time barred--Impugned Judgment is prima facie predicated upon erroneous assumption of facts and misapplication of law--Petition allowed.

[Pp. 4 & 6] A, B, C & D

Mr. Faisal Mahmood Ghani, Advocate for Petitioner.

Mr. Ali Asadullah Bullo, Advocate for Respondents.

Date of hearing: 11.10.2022.

Judgment

Agha Faisal, J.--Briefly stated, the respondent had been accused of submitting bogus documents and falsifying medical claims. After being subjected to an inquiry the respondent was removed from service by the petitioner. A grievance petition was filed by the respondent, however, the same was dismissed by the learned Single Bench of the NIRC vide Order dated 04.10.2018 ("SB Order"). The decision was reversed by the Full Bench of the NIRC vide Order dated 19.06.2019 ("Impugned Judgment"), hence, this petition. It is considered prudent to reproduce the operative constituent of the respective orders to illumine the lis before us.

Single Bench NIRC

"7. Whole contention of the respondent has been admitted by the petitioner in his cross-examination. After inquiry, petitioner was found guilty of charge of cheating the company by raising fake/bogus claim of medical cost leveled in the show- cause notice is proved. Petitioner has not alleged in his petition that his termination was in connection with industrial dispute or the same has led to any industrial dispute. No violation or any award or settlement has been raised by petitioner during the inquiry proceedings. Petitioner has also not challenged the allegation of submitting bogus/fake medical claim, which was verified by the doctor. Burdon of prove was on the petitioner but petitioner neither got exhibited documents in support of his version before the Commission nor challenged the charge during inquiry proceedings through cross-examining the witness and whatever has been alleged by the petitioner in his petition was not brought on record by petitioner during evidence except admitting the version of respondent during cross-examination.

1. This case has been badly be conducted, there is nothing on record to support the petitioner case except contention in grievance petition and without supporting the same by the petitioner in evidence mere pleadings cannot be consider as evidence. Petitioner has failed to prove his case, hence; this petition is dismissed. No order as to costs. File be consigned to record room after its due completion."

Underline added for emphasis.

Impugned Order - Full Bench NIRC

1. In the light of above case law as well as discussion, we are of the considered opinion that the dismissal of the petitioner, in consequences of an inquiry initiating on the basis of submission of forged medical bill which was not ever paid to the appellant and without examining the administrator/doctor from the hospital, was harsh decision and accordingly we also disagree with the findings of the Learned Single Member whereby he dismissed the grievance petition filed by the appellant/petitioner. We have also gone through the steamed case law relied upon the learned counsel for respondent but the facts and circumstances of the appeal in hand are distinguishable

2. In view of the aforementioned discussion, while setting aside the impugned order dated 04.10.2018 the appeal of the appellant is hereby accepted and the appellant is reinstated with all back benefits. No order as to costs. File be consigned to record room after its due completion."

3. Per learned counsel, the petitioner had duly conducted an inquiry into the allegations and determined the matter in the light to the uncontroverted evidence/record. It has been submitted that the learned Single Bench had appreciated all the evidence/record and rendered its findings in accordance with the law. However, it was articulated that the Impugned Judgment was rendered prima facie in erroneous appreciation of the facts and in manifest derogation of the law.

4. The respondent's counsel supported the Impugned Judgment and submitted that it merited no interference whatsoever. It was argued that the learned Single Bench NIRC ought to have conducted its own independent verification of the record and not relied solely upon the evidence adduced there before. It was insisted that there was no witness needed by the respondent, therefore, none was ever produced and that the initiation of the disciplinary proceedings by the petitioner were in any event time barred.

5. Heard and perused. We are cognizant that ambit of writ jurisdiction is not that of a subsequent forum of statutory appeal and is restricted inter alia to appreciate whether any manifest illegality is apparent from a judgment impugned. It is also the duty of this Court to ensure that any discretion exercised by a subordinate forum was done judiciously pursuant to sound legal principles and not contrary to law or usage having the force of law.

6. The matter pertains to allegations of submitting bogus documents and falsifying medical claims. The SB Order categorically observes that the petitioner (respondent herein) has not challenged the allegation of submitting bogus/fake medical claim.[1] Even in the arguments before us no cavil was articulated in such regard by the respondent's counsel. The SB Order also observes that the respondent did not adduce any documents; did not produce any witnesses; did not challenge the charge through cross-examination; and admitted the factual narration submitted by the petitioner. In such circumstances, it appears safe to observe that the respondent appears to have made no serious endeavor to dispute the facts relied upon by the petitioner. In view of the foregoing, no case stands made out before us to place any onus upon the learned Single Bench of the NIRC to have conducted an independent exercise for verification of documents.[2]

7. The learned Full Bench of the NIRC appears to have erred in disregarding the preponderance of uncontroverted evidence/record and rested its contrary findings upon the administrator/doctor not having been examined. There is no suggestion in the Impugned Judgment that the findings in the SB Order could not have been predicated upon the evidence/record relied upon. While an appellate forum has every right to revisit the evidence and exercise its discretion, however, such discretion has to be exercised in consonance with judicially recognized principles. With utmost respect, we cannot consider the disregard of uncontroverted evidence, in favor of a presumption, as judicious exercise of discretion.

8. The reliance of the learned Full Bench NIRC upon Muhammad Usman Rajar[3] appears wholly unmerited as the issue therein was that the person was not alleged to have made the application for payment or found manipulating/tampering the record; whereas, before us the contrary is the case as the respondent has been found culpable for submitting a false claim for payment and falsifying receipts. Under such circumstances it is observed that Muhammad Usman Rajar does not afford any sanctity to the Impugned Judgment and contrarily supports the case of the petitioner.

9. The petitioner initiated remedial proceedings and there is no suggestion that the same was besieged by any infirmity.[4] It was never the respondent's case before us either that the disciplinary proceedings suffered from any procedural impropriety. The respondent has been shown to have received letter/s[5] providing ample opportunity to produce documentary and oral evidence, cross-examine management witnesses and nominate any co-worker to be present during enquiry. Additionally, the respondent has accorded his satisfaction in respect of the inquiry proceedings and appended his signature to the report without any manifest demure.[6]

10. The next issue to consider is that of the alleged delay. Per Section 15(4)[7] of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the respondent was required to be informed of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer.[8] The record shows that the petitioner found out about the misconduct on 12.11.2015,[9] when informed by the

insurance company, and informed the respondent on 01.12.2015.[10] It was never the respondent's case before us that the petitioner had knowledge of the misconduct at any time prior to the communication received from the insurance company; hence, no case is made out to consider the petitioner's issuance of the information/show-cause notice as being barred by time.

1. The charge against the respondent was proven and it was for the petitioner to assess the quantum of punishment, permissible within the confines of the law.[11] The august Supreme Court has also recognized the deterrence factor while considering the award of punishment.[12] There was no dispute before us in so far as the facts were concerned. The record demonstrated that there was no suggestion of any procedural impropriety in the disciplinary proceedings, culminating in the dismissal of the respondent. No case has been substantiated to consider the petitioner's initiation of disciplinary proceedings as time barred. Therefore, we are of the deliberated view that the Impugned Judgment is prima facie predicated upon erroneous assumption of facts and misapplication of the law, hence, cannot be sustained.

2. In view hereof, this petition had been allowed and the Impugned Judgment dated 19.06.2019 rendered by the learned Full Bench of the NIRC had been set aside vide our short order, announced in Court upon conclusion of the hearing earlier today. These are the reasons for our short order. The amounts secured before the petitioner herein, in pursuance of order dated 05.07.2019, may be returned thereto along with any appurtenant profit.

(Y.A.) Petition allowed

[1]. Paragraph 7 of the SB Order.

[2]. China Petroleum Engineering Construction vs. Khattak Allied Construction Company reported as 2004 SCMR 1777.

[3]. Muhammad Usman Rajar vs. SLAT & Others reported as 2011 PLC 24.

[4]. Per Dorab Patel J in Raja Javed Akhtar vs. EVP UBL & Others reported as 1978 SCMR 212.

[5]. Enquiry letter received on 28.1.2016 available at page 153.

[6]. Reliance is placed upon Muhammad Naeem Khan vs. NBP & Others reported as 2021 SCMR 785 (authored by Ijaz ul Ahsan J) to observe that once due process is manifest from a person's signatures on documents of inquiry proceedings, the said person may not be permitted to resile there from.

[7]. (4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and the employer shall institute independent inquiries before dealing with charges against a workman.

[8]. Muhammad Yousaf Khan vs. HBL & Others reported as 2004 SCMR 149: Muhammad Ali vs. SLAT reported as NLR 2017 Labour 107; Novartis vs. Muhammad Arif reported as 2005 PLC 351.

[9]. Letter available at page 169 of the file.

[10]. Vide Show-Cause Notice dated 01.12.2015.

[11]. Per Muhammad Haleem J in Pakistan Tobacco Company Limited vs. Channa Khan & Others reported as 1980 PLC 981; Ghulam Mustafa Channa vs. MCB & Others reported as 2008 SCMR 909.

[12]. Per Tanveer Ahmed Khan J in Abdul Wahid vs. The General Manager & Others reported as 2004 PLC (CS) 90.

PLJ 2023 Karachi 6 (DB)

Present: Ahmed Ali M. Shaikh, CJ. and Yousuf Ali Sayeed, J.

MARIE STOPES SOCIETY through Authorized Officer--Petitioner

versus

FEDERATION OF PAKISTAN and 4 others--Respondents

C.P. No. D-1817 of 2019, heard on 28.10.2021.

Constitution of Pakistan, 1973--

----Art. 199--Policy for regulation of organizations receiving foreign contributions, 2013, Cl. 7--Application for registration and signing of MOU--Approval was not granted--Appeal--Declined--Legislative mandate--Stop-gap arrangement--Inherent power--Executive has no inherent power except that has been vested in it by law, a source of power and duty--No executive authority can take any action without support of a valid law and any action taken in violation of rule can be struck down by High Court under Constitution as being without lawful authority--Interestingly enough Notification was issued in November 2013 till date no legislation for a regulatory framework for foreign economic assistance flowing outside governmental channels is enacted nor there anything on record-- Respondent was not vested with such powers nor in law was empowered to regulate or curb Petitioner’s operations through Policy, which has no constitutional strength or legislative mandate or legal sanctity or backing of enabling law, as such, does not carry any weight--Impugned Notification Respondent was a stop-gap arrangement and in response of which Federal Government did not take any step to provide a legislative cover, is of no legal effect--Petition allowed. [Pp. 11, 13, 14, 15, 16 & 17] A, B, C, E & F

PLD 2007 SC 642 ref.

Constitution of Pakistan, 1973--

----Art. 4--Right of citizen--It is inalienable right of every citizen to be dealt with in accordance with law as envisaged in Article 4 of Constitution and it is duty of public functionaries to act within four corners of mandate of Constitution and Law. [P. 16] D

M/s. Salahuddin Ahmed, Muhammad Rizwan and Salman J. Mirza, Advocates for Petitioner.

Mr. Khaleeq Ahmed, DAG for Respondent No. 1.

Mr. Atif-ud-Din, Advocate alongwith Mr. Yasir Arfat, Joint Director for Respondent No. 3.

Date of hearing: 28.10.2021.

Judgment

Ahmed Ali M. Shaikh, C.J.--Invoking the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has sought following relief(s):-

“A. Set aside the Policy for regulation of organizations receiving foreign contributions vide Notification No. 1(5)INGO/05 dated 28.11.2013 and declare that the same is issued without lawful authority and is void ab initio and non est;

B. Restrain the Respondents from impeding, hindering or interfering with the Petitioner’s functions and operation on the basis of the 2013 Policy or otherwise;

IN THE ALTERNATIVE, AND WITHOUT PREJUDICE;

C. Set aside the Impugned Order dated 09.01.2019 passed by the Respondent No. 1 and declare that the same is issued without lawful authority and jurisdiction and is even otherwise arbitrary, unreasonable and contrary to law and natural justice;

D. Restrain the Respondents or any other government agencies or instrumentalities from taking any adverse action against the Petitioner on the basis of the Impugned Order dated 09.01.2019;

E. Direct the Respondent No. 1 to register the Petitioner under the 2013 Policy and duly execute MOU with the Petitioner thereunder;

F. Grant such other relief or mould the relief as may be just and appropriate.”

1. Petitioner, M/s. Marie Stopes Society, is a Pakistani organization registered under the Societies Registration Act, 1860, with the object of helping the people, precisely, less aware and illiterate, on the subject related to health and population welfare. The petitioner provides family planning service and ante and post natal care for mothers and new-borns via nearly 600 healthcare clinics and centres, the majority of which are registered with the respective Healthcare Commissions in the Provinces. The petitioner also provides family planning and reproductive health services in rural and far flung area across the country covering 63 Districts, inter-alia, through multiple service delivery channels like Behtar Zindagi Centres, Suraj Social Franchise and Pehli Kiran Reproductive Health Private Partners, Roshani Mobile Vans and Helpline & Website. The petitioner claims that it principally operates through funding from foreign charitable and aid organizations such as Susan Thompson Buffet Foundation, UK Department for International Development, USAID and Global Affairs Canada and all the foreign donations are remitted completely through banking channels as per law and relevant regulations.

2. In November, 2013, the Economic Coordination Committee (ECC)vide Notification No. 1(5)INGO/05 introduced a “policy for regulation of organizations receiving foreign contributions (the “Policy”).” In terms of the Policy any organization registered outside/ inside Pakistan and desirous of utilizing foreign economic assistance will need prior registration with the Government and, subject to concurrence, will sign a MoU containing the information specified by the Government.

3. The petitioner firstly applied for registration in terms of the Policy on 06.3.2014 but its case was allegedly placed in cold storage. On 22.09.2017 the petitioner again applied for signing the MoU, however, the Respondent No. 1 in a summary manner did not approve the same. On 28.01.2019, the petitioner submitted an Appeal under Clause 7 of the Policy but the same was also declined.

4. Learned counsel for the petitioner submitted that the Policy purports to determine the legal character and obligations of the organizations receiving foreign funding, issued through a Notification, is, prima facie, an attempt by the Executive Branch of the State to legislate, which amounts to a violation of the Constitution. He further submitted that the Policy itself recognizes the need for legislation and is nothing but a stop-gap arrangement, bereft of any force of law but is nonetheless being implemented so as to curtail the Petitioner’s operations. He argued that the Article 4 of the Constitution stipulates that no person can be compelled to do something or be hindered from doing something other than in accordance with law. Per counsel, the Policy is bereft of legal force and is ultra vires the Constitution in terms of impinging on Fundamental Rights. He further contended that under the Constitution it is the prerogative of the legislature to lay down a law and under no circumstance such power can be exercised and or implemented by the executive. Counsel further argued that under the trichotomy of powers every organ of the State i.e. the Parliament, Judiciary and Executive has to remain well within their respective domains and even in case of dire need the executive cannot exercise such powers to enact law or policy having nexus with the affairs of the State. While emphasizing on Article 4 of the Constitution he urged with vehemence that every individual has a right to be dealt with in accordance with law and no person can be compelled to do or hindered from doing so unless it is under the sanction of law. In support of his contention the learned counsel has relied upon the cases reported in PLD 1965 Dacca 156, PLD 1967 Dacca 607, PLD 1978 Lahore 1298, PLD 1979 Karachi 300, 1983 SCMR 125, PLD 1993 SC 473, 1995 SCMR 529, 1998 SCMR 2268, PLD 1999 SC 1025, PLD 2007 SC 642, 2007 SCMR 330, 2010 SCMR 511 and 1778, PLD 2010 SC 61, 2011 SCMR 1, 2015 PLC (CS) 283, 2016 PLD SC 808, PLD 2019 SC 509 and 2021 SC 678. He prays that in the given circumstances the Policy may be declared ultra vires to the Constitution or alternatively the impugned letter/decision be set-aside directing the Respondent No. 1 to enter into MoU with the petitioner allowing it to continue its lawful activities.

5. He also contended that the Policy was issued pursuant to the decision of the Economic Coordination Committee of the Cabinet while it is settled law that the governmental decisions are to be taken by the Cabinet as a whole and not by a part thereof. He has relied upon the Honourable Supreme Court Judgment reported in the case of Mustafa Impex v. Government of Pakistan 2016 PLD SC 808. He further submitted that even otherwise the impugned order/letter dated 09.01.2019 was devoid of reasoning, hence violated Section 24-A of the General Clauses Act, 1895.

6. Contrarily, the learned DAG opposed the petition on the premises that the Article 90(2) of the Constitution allows the Prime Minister to perform his functions either directly or through Federal Minister, the ECC committee of the Cabinet (constituted pursuant to Rule 17(2) of the rules of Business, 1973), therefore; the Notification/Policy issued in pursuance of the decision of the ECC Committee was lawful. He submitted that as the Judgment of the Superior Courts operates prospectively, the Policy issued in the year 2013, aimed to ensure accountability, transparency and securing the interests of the Country, is not covered by the Judgment of the Honourable Supreme Court pronounced in the case of Mustafa Impex supra. He, however, could not show any document that the impugned Notification/policy has any backing of the law or the Economic Affairs Division, Government of Pakistan was vested with such powers to issue promulgate and implement the Notification/policy.

7. The learned DAG-also submitted ‘that the Honourable Apex Court vide order dated 10.10.2018 passed in Suo Moto Case No. 13 of 2015 examined the Policy and satisfied with its purpose; however, after passage of five months the petitioner approached this Court, inter-alia, declaring the Policy to be ultra vires to the Constitution. He pointed out that against the rejection of request, the petitioner preferred an Appeal in term of Clause 7 of the policy, which was also rejected on 10.12.2019 due to non-clearance of the security with direction to apply afresh for any new foreign funding project as terms of the Policy.

8. We have heard the learned counsel for the petitioner, DAG and perused the material available on record. It is an admitted position that the impugned Notification/Policy was framed/issued by the Economic Coordination Committee of the Cabinet sans Cabinet as a whole. As it was not a government decision taken by the Cabinet, it would be appropriate to examine the authority and powers of the executive to issue any policy/notification or whether any notification/order/directive issued by the Executive being devoid of constitutional backing has any sanctity in the eyes of law. It is settled principle of law that the executive has no inherent power except that has been vested in it by the law, a source of power and duty. While elaborating the powers of the executive the honourable Supreme Court in the case of Pakistan Muslim. League (N) v. Federation of Pakistan (PLD 2007 SC 642) has observed that:

“It may not be out of place to mention here that “there is no inherent power in the executive, except what has been vested in it by law, and that law is the source of power and duty. The structure of the machinery of government, and the regulation of the powers and duties which belong to the different parts of this structure are defined by the law, which also prescribes, to some extent the mode in which these powers are to be exercised or those duties performed. From the all prevailing presence of law, as the sole source of governmental powers and duties, there follows the consequence that the existence or non-existence of a power or duty is a matter of law and not of fact, and so must be determined by reference to some enactment or reported case. Consequently, there are no powers or duties inseparably annexed to the executive Government. It cannot be argued that a vague, indefinite and wide power has been vested in the executive to invade upon the proprietary rights of citizens and that such invasion cannot be subjected to judicial scrutiny if it is claimed that it is a mere executive order. This is not the position in law. Any invasion upon the rights of citizens by anybody no matter whether by a private individual or by a public official or body, must be justified with reference to some law of the country. Therefore, executive action would necessarily have to be such that it could not possibly violate a Fundamental Right. The only power of the executive to take action would have to be derived from law and the law itself would not be able to confer upon the executive any power to deal with a citizen or other persons in Pakistan in contravention of a Fundamental Right. Functionaries of State, are to function strictly within the sphere allotted to them and in accordance with law. No Court or Authority is entitled to exercise power not vested in it and all citizens have an inalienable right to be treated in accordance with law. Therefore, an action of an Authority admitted to be derogatory to law and Constitution, is liable to be struck down.” (PLD 1976 Karachi 1257 (DB), PLD 1967 Dacca 607 (DB), 19 DLR 689, 1990 CLC 1772, 1990 MLD 1468.”

1. Additionally, the Honorable Apex Court in the same case has observed that:

“It is bounden duty of the Executive to respect an ordinary legal right of a subject in the same way as a Fundamental Right. For it is an established principle of British jurisprudence which may be treated as constituting a part of the Pakistan law also, that no member of the executive can interference with the liberty or a property of a subject except on the condition that he can support the legality of his action before a Court of Justice.”

1. In the case of Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 the Full Bench of the Honourable Supreme Court has observed that “in a -Constitution contained in a written document wherein the powers and duties of the various agencies established by it are formulated with precision, it is the wording of the Constitution itself that is enforced and applied and this wording can never be overridden or supplemented by extraneous principles or non-specified enabling powers not explicitly incorporated in the Constitution itself. In view of the express provisions of our written Constitution detailing with fullness, the powers and duties of the various agencies of the Government that it holds in balance there is no room of any residual or enabling powers inhering in any authority established by it besides those conferred upon it by specific words.” Reference in this context can also be made to the cases of Ghulam Zamin v. A. B. Khondkar reported as PLD 1965 Dacca 156 and the Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan reported as PLD 2010 SC 61.

2. While elaborating and examining the discretionary authority of the government or its functionary in the nature of prerogative either under the Constitution or under any of the Act of the Parliament, the Honourable Supreme Court in the case of Controller of Patents and Designs v. Muhammad Quadir 1995 SCMR 529 observed that:

“There can be no cavil with the proposition that the Government of Pakistan or for that matter any of the holder of its offices or any Government functionary do not enjoy conventional prerogative as was or is available to Crown in England except those discretionary powers which are either specially conferred by the Constitution or under any law passed by the Parliament. We are also of the view that any discretionary power available to Government or its functionaries in the nature of prerogative either under the Constitution or under any of the Act of the Parliament is subject to the process of Judicial review by the Superior Courts, in accordance with their jurisdiction under the Constitution. However, any exercise of discretionary power in the nature of a prerogative claimed by the Government or holder of any of its offices, or its functionaries has to be justified either under some statute law or under the provision of the Constitution, before it is pressed into service before a Court.”

1. In the case of Province of Punjab v. Gulzar Hassan PLD 1978 Lahore .1298, while relying on the observations of the Honourable Supreme Court in the case of Manzoor Elahi v. Federation of Pakistan (1975 SC 66), a Division Bench of the Lahore High Court has observed that:-

“58. The view expressed by my Lord S. Anwarul Haq, J. (the present Chief Justice of Pakistan) in the above case at page 147 is also given below:

“While Article 4 embodies provisions of the utmost importance to the individual in the matter of his life, liberty, body, reputation and property (sic), his right to freedom of action, and immunity from illegal restraint of any kind, yet it does not form part of Part II of the Constitution containing fundamental rights, and, for that reason, any violation of this Article would not bring the case within the four corners of the jurisdiction conferred on the Supreme Court by clause (3) of Article 184 of the Constitution. That jurisdiction has reference only to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution. Nevertheless, it is clear at the same time that the High Court, acting under the various clauses of Article 199 of the Constitution, would be fully competent to deal with a case involving a violation of the provisions of Article 4 of the Constitution ...”

1. In view of the above observations of the Supreme Court, it is absolutely clear that no executive authority can take any executive action without the support of a valid law and any action taken in violation of the above rule can be struck down by the High Court under Article 199 of the Constitution as being without lawful authority.”

2. In this regard there is no cavil that every citizen or every person for the time being in Pakistan guaranteed as his inalienable right to enjoy the protection of law and be treated as such.

3. With regard to the submissions of the learned DAG that the Petitioner had itself applied for registration and signing of MoU under the Policy and after rejection of their application it challenged the Policy as illegal and stop-gap or temporary arrangement not recognized by the law, is untenable. With profound respect it has been time and again observed by the superior Courts that though acquiescence is a specie of estoppel but there can be no estoppel against the law. (PLD 1963 SC 486, PLD 1995 SC 66, PLD 1998 SC 161, PLD 2006 SC 602, 2013 SCMR 642 and PLD 2019 SC 509). Furthermore, in the case of University of Malakand v. Alam Zeb 2021 SCMR. 678 it has been observed by the Honourable Supreme Court of Pakistan that “if a person has been bestowed some legal right by law/statute and he omits to claim such legal right for a certain period of time, it does not mean that he has waived his legal right and subsequently he cannot claimed such right. Inherent power and doctrine of estoppel cannot be applied to defeat the provisions of statute;” Accordingly, while applying for registration and signing of MoU under the Policy the petitioner is not estopped from challenging the same.

4. The learned DAG also argued that under the Article 90(2) of the Constitution the Prime Minister has to perform his functions either directly or through Federal Ministers, the Economic Coordination Committee of the Cabinet constituted by him in terms of Rule 17(2) of the Rules of Business, 1973, therefore, the Notification/policy, impugned herein, issued in pursuance of decision of the ECC is strictly in accordance with law. With profound respect, the submission made by the learned DAG as above is misconceived. For ready reference the Article 90 of the Constitution is reproduced hereunder:

“90. The Federal Government.--(1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister, who shall be the chief executive of the Federation.

(2) In the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federal Ministers.”

1. In the celebrated Judgment of Mustafa Impex v. Government of Pakistan PLD 2016 SC 808, the Honourable Supreme Court while examining different Articles of the Constitution, has observed that under Article 90 of the Constitution the executive authority of the Federation shall be exercised in the name of the President by the Federal Government. The Federal Government is then described as consisting of the Prime Minister and the Federal Minister. However, more fundamentally, in the opening paragraph of the Policy it has been incorporated that “until legislation for a regulatory framework for foreign economic assistance flowing outside government channels is enacted, for improved accounting of such flow of funds and greater and effectiveness the following policy will operate.” The word “until” used in the aforesaid paragraph of the policy is defined in the Black’s Law Dictionary Sixth Edition as under:-

“Until. Up to time of. A word of limitation, used ordinarily to restrict that which precedes to what immediately follows it, and its office is to fix some point of time or some event upon the arrival or occurrence of which what precedes will cease to exist.”

Interestingly enough the Notification was issued in the November 2013 and till date no legislation for a regulatory framework for foreign economic assistance flowing outside governmental channels is enacted nor there anything on the record or submitted by the learned DAG that the Policy was placed before the Cabinet for decision/approval, as the case may be.

1. Now, reverting to the submission of the learned counsel for the Petitioner that the impugned letter dated rejecting the petitioner’s application is a non-speaking order against the spirit of Section 24-A of the General Clauses Act. Before proceeding further it would be appropriate to reproduce hereunder the said letter, copy available at page 191 of the file:-

“It is submitted that your application alongwith supporting documents for signing of MoU with GoP/EAD was shared with the stakeholders as per “Policy for Regulation of Organizations Receiving Foreign Contributions, 2013” it is respectfully informed that your case for signing of MoU has not been approved.

M/s. Marie Stopes Society Pakistan may apply for signing of MoU afresh in case the organization secures foreign funding for some new project(s).”

1. The letter/order rejecting the Petitioner’s application for signing MoU cannot be termed as a speaking order within the meaning of Section 24-A of the General Clauses Act, that envisages that every decision/order/judgment passed by the any forum, department or Court should be passed after application of mind with reasoning. Therefore, the impugned letter issued merely observing that the petitioner’s application alongwith documents was shared with the stakeholders in terms of the Policy and same was rejected, is a cursory and slipshod approach always deprecated by the superior Courts and the impugned letter cannot sustain on this score as well. Reliance in this regard can be placed on the cases reported in 2010 SCMR 511 and 1998 SCMR 2268.

2. From the above discussion, it is crystal clear that the impugned letter dated 09.01.2019 rejecting the Petitioner’s Application for signing MoU and the decision in the Appeal preferred against such order in terms of the Policy, lacked reasoning, with it only being mentioned in the comments that on account of dubious activities of the Petitioner, the MoU was not approved by the security apparatus and clearance of the project by the security agencies is mandatory requirement for signing the MoU with the Respondents.

3. Furthermore, it is the inalienable right of every citizen to be dealt with in accordance with law as envisaged in Article 4 of the Constitution and it is the duty of the public functionaries to act within the four corners of the mandate of the Constitution and Law. Action taken upon no ground at all or without proper application of the mind and without of the backing of law does not qualify as action in accordance with law and is liable to be struck down. In law, no person should be prevented from or be hindered in doing that which was not prohibited by law, and no person shall be compelled to do that which the law does not require him to do. Be that as it may, in light of the plethora of Judgments and principles laid down by the superior Courts, as referred to and discussed hereinabove, it is manifest that the Respondent Ministry of Finance, Revenue, Economic Affairs, Statistics and Privatization (Economic Affairs Division) was not vested with such powers nor in law was empowered/competent to regulate or curb the Petitioner’s operations through the Policy, which has no constitutional strength or legislative mandate or legal sanctity or backing of enabling law, as such, does not carry any weight. We, therefore, arrived at an irresistible conclusion, that, the impugned Notification/Policy dated 28.11.2013, which per Respondent was a

stop-gap arrangement and in response of which the Federal Government did not take any step to provide a legislative cover, is of no legal effect. Consequently, any action/step taken against the Petitioner pursuant to the impugned Notification/Policy is declared to be without lawful authority and of no legal consequence. The Petition stands allowed in such terms.

(Y.A.)

PLJ 2023 Karachi 17 (DB)

Present: Muhammad Junaid Ghaffar and Agha Faisal, JJ.

SyedaFATIMA HAIDER--Petitioner

versus

M/s. NOVARTIS PAHRMA (PAKISTAN LTD.) KARACHI and 3 others--Respondents

C.P. No. D-2583 of 2022, decided on 29.9.2022.

Constitution of Pakistan, 1973--

----Art. 199--Application regarding recalling of order--Dismissed--Dismissal of appeal--No application for condonation of delay--Limitation period--Death of earlier counsel of petitioner--Dismissal of grievance was in knowledge of petitioner--Constitutional jurisdiction--Petitioner’s Counsel has argued that delay was due to death of earlier Counsel; however, from perusal of aforesaid affidavit it clearly reflects that this is not case--It was in knowledge of Petitioner that Grievance Petition stood dismissed as late as on 08,9,2020 and thereafter certified copy of order was issued on 28.9.2020, whereas, application for recalling of dismissal order was filed on 27.10.2020--Admittedly, Counsel for Petitioner, then appearing before NIRC, had expired, much earlier in time, and contention of Petitioners’ Counsel is apparently incorrect that delay of 4 days in filing of Application for recalling was due to death of Counsel of Petitioner before NIRC--It is wholly wrong to consider that Constitutional jurisdiction is designed to empower High Court to interfere with decision of a Court or tribunal of inferior jurisdiction merely because in its opinion decision is wrong--Petition dismissed. [Pp. 18 & 19] A, B & C

Ch. Muhammad Abu Bakar Khalil, Advocate for Petitioner a/w Petitioner.

Mr. Faisal Mahmood Ghani, Advocate for Respondents.

Date of hearing: 29.9.2022.

Order

Through this petition the Petitioner has impugned order dated 03.2.2022 passed by a Full Bench of NIRC in Appeal No. 12-A(134)/2021-K, whereby, while dismissing the appeal, order dated 30.3.2021 passed by the Single Member, NIRC through which the application of the Petitioner regarding recalling of order dated 03.9.2020 was dismissed, has been maintained.

1. At the very outset, we have confronted the Petitioner’s Counsel as to exercise of any discretion in this matter under our constitutional jurisdiction against two orders of the forums below which have factually determined that no case for condonation of delay in filing of Application for recalling of the order of dismissal of the Grievance Petition in non-prosecution has been made out and Counsel has argued that since the lawyer, representing the Petitioner, had expired and therefore the application for recalling of the said order could not be filed within the limitation period of 30 days; hence, the petition be allowed by setting aside the two orders in question and the grievance petition be restored for its adjudication on merits. On the other hand, Respondents Counsel has opposed the petition and submits that no case of any indulgence is made out as facts have been concealed, whereas, the forums below have passed reasoned orders.

We have heard both the learned Counsel, and perusal of the record reflects that apparently the arguments of the Petitioners Counsel are belied by the very affidavit of the Petitioner filed in support of restoration application; Para 3 whereof reads as under:

“3. That I say that I was not aware about the case was dismissed on 08.9.2020 as may Counsel was expired and in short time I cannot engage another Counsel who can file the applicant for recalling of order dated 08.9.2020, therefore, this Honourable Court may be pleased to condone delay to file applicant for recalling of order dated 08/09/2020 in the larger interest of justice.”

1. Before us Petitioner’s Counsel has argued that the delay was due to death of the earlier Counsel; however, from perusal of the aforesaid affidavit it clearly reflects that this is not the case. Admittedly, it was in the knowledge of the Petitioner that the Grievance Petition stood dismissed as late as on 08,9,2020 and thereafter certified copy of the order was issued on 28.9.2020, whereas, the application for recalling of the dismissal order was filed on 27.10.2020. Admittedly, the Counsel for the Petitioner, then appearing before NIRC, had expired, much earlier in time, and therefore, the contention of the Petitioners’ Counsel is apparently incorrect that delay of 4 days in filing of the Application for recalling was due to death of the Court of the Petitioner before the NIRC. Besides this no other reason has been assigned or argued for seeking relief in this Constitutional jurisdiction. Lastly, we may observe that it is wholly wrong to consider that the Constitutional jurisdiction is designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction merely ‘because in its opinion the decision is wrong. In that case, it would make the High Court’s jurisdiction indistinguishable from that exercisable’ in a full-fledged appeal, which plainly is not the intention of the Constitution-makers.

2. In view of the above, we do not see any reason to interfere with the orders passed by the forums below in this Constitutional jurisdiction as apparently the conduct of the Petitioner does not warrant such interference; hence the petition being misconceived is hereby dismissed.

(Y.A.)

PLJ 2023 Karachi 19

Present: Muhammad Faisal Kamal Alam, J.

MADNI AHMED ALI ARFAT SIDDIQUI--Plaintiff

versus

SUI SOUTHERN GAS COMPANY LIMITED and another--Defendants

Suit No. 424 of 2022, decided 03.10.2022.

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

----S. 42--Suit for declaration--Recruitment of professionals in Senior Management positions--Requirement for specialized qualifications--Non-creation of vested right--Sole declaration--Maintainability--An employee can be considered for such specialized posts, only if he; has requisite qualifications--Merely that he fulfills criteria of length, of service or any other general criteria for promotion does not itself creates a vested right in favour of Plaintiff--Defendant No. 1 is not bound to promote an employee to next higher grade if that post requires specialized qualifications--Plaintiff has done B.E--Electronics, obviously he cannot be considered for post of senior General Manager Information Technology, with in present times—It is one of most important posts in any Organization--It is concerned, fit is sole discretion of Defendant No. 1 to consider any of employees including Plaintiff, if Defendant No. 1 is unable to hire a suitable candidate externally--Advertisement does not violate any of provisions of present service structure, Rules or Policy; no interference is required in this proceeding in executive decision(s) of Defendant No. 1, which is lawful--There is a difference between maintainability of suit and grant of any relief--Facts of present suit prima facie show that suit is maintainable, but after considering of record, main relief with regard to setting aside recruitment process initiated through impugned Advertisement cannot be granted--Suit dismissed. [Pp. 25 & 26] A, B, C, D, E & F

M/s. Muhammad Ali Lakhani and Mujtaba Sohail Raja, Advocates for Plaintiff.

M/s. Faisal Mahmood Ghani and Sohail Tharani, Advocates, along with Mr. Bilal Farooq Alvi, Senior Legal Counsel for Defendant No. 1.

Mr. Ameer Haider, Advocate, holds brief for Mr. Ovais Ali Shah, Advocate for Defendant No. 2.

Dates of hearing: 11.08.2022, 28.09.2022 and 03.10.2022.

Judgment

Through the present action at law, Plaintiff has challenged the Public Notice dated 05.12.2021, given by Defendant No. 1 through Defendant No. 2, for recruitment of professionals in senior management positions in different Departments of Defendant No. 1. Plaint contains the following prayer clause:--

i. a declaration that Defendant No. 1’s Employment Policy, its Human Resource Handbook and Succession Planning are of binding effect and nature;

ii. (Consequently) A declaration that progression via promotion precedes recruitment in any manner;

iii. (Resultantly) A declaration that Public Notice dated 05.01.2022 and all ensuring processes are illegal, unlawful and without jurisdiction;

iv. A Mandatory Injunction directing Defendant No. 1 (including persons acting under it, through it and/or on its behalf) to initiate a promotion cycle for Job Grade 9 as per applicable rules /regulations;

v. A permanent Injunction suspending the recruitment process initiated under Public Notice dated 05.12.2021

vi. A permanent Injunction restraining Defendant No. 1 (including persons acting under it, through it and/or on its behalf) from causing recruitments to offices specified in Paragraph 3 supra;

vii. (In pursuance of present cause) A Permanent Injunction restraining Defendant No. 1 (including persons acting under it, through it and/or on its behalf) from taking any action(s) adverse to the rights of the Plaintiff, including suspension from service, initiation of disciplinary proceedings, an outstation transfer, termination or dismissal from service, withholding of service benefits etc.

viii. Grant of reliefs otherwise deemed necessary, just and appropriate in given facts and circumstances;

ix. Grant costs of proceedings.”

1. Gist of the submissions of Mr. Muhammad Ali Lakhani, Advocate, is, that the manner in which Defendant No. 1 is trying to fill up Senior Management positions of Senior General Managers in its Departments, viz. Senior General Manager (Information Technology), (2) Senior General Manager (Procurement & Inventory Management) and (3) Senior General Manager (Health, Safety, Environment & Quality Assurance/Quality Control--HSEQA), violates the Service Rules and Policy of Defendant No. 1 itself, besides, impeding the career progression of the Plaintiff and therefore, the present Lis is filed and is maintainable. Plaintiff has legitimate expectation that considering the long association of Plaintiff with the Defendant No. 1 with unblemished service record, the Defendant No. 1 should first consider the Plaintiff for any of the positions advertised and then go for external selection of eligible persons, inter-alia, by following the internal succession plan of Defendant No. 1-SSGCL. In support of his arguments, learned counsel has relied upon the following case law--

i. PLD 2001 Supreme Court 176

[The Managing Director, Sui Southern Gas Co. Ltd. versus Saleem Mustafa Shaikh and others] — Saleem Mustafa Shaikh case;

ii. Unreported Judgment dated 06.06.2022 passed in Civil. Petition No. 419 of 2020 [President, ZTBL, Head Office, Islamabad versus Kishwar Khan and others] — ZTBL case;

iii. 1995 SCMR 1053 [Federation of Pakistan through Secretary, Government of Pakistan, Establishment Division, Islamabad and 2 others versus Abdul Rashid];

iv. 2005 SCMR 650 [Walayat Ali Mir versus Pakistan International Airlines Corporation through its Chairman and another];

v. 2004 SCMR 1820

[Nighat Yasmin versus Pakistan International Airlines Corporation, Karachi and another]; and

vi. 1989 SCMR 353 [Messrs Radaka Corporation and others versus Collector of Customs and another]

1. On the other hand, Mr. Faisal Mahmood Ghani, Advocate, representing Defendant No. 1, has raised serious question about the maintainability of present suit; contended that it is the discretion of Defendant-SSGCL to search, select and appoint the best from the job market, in order to improve the overall business operations of Defendant Company, Paragraph-31 of the Counter Affidavit is referred, to rebut the arguments of Plaintiff, that the latter was not considered for the advertised position; Plaintiff applied for the position of HSEQA, he was considered by the Committee and was not found fit. Further clarified, that Plaintiff has relied upon the Policies and Service Rules, which have been superseded by the Policies, through various decisions of the Board of Defendant No. 1 Company and in this regard he has filed relevant portions of the decisions under his Statement dated 13.08.2022. He has cited the following case law in support of his arguments:--

i. 2016 SCMR 1021

[Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others versus Hayat Hussain and others] — Hayat Husain case;

ii. Unreported Judgment of the Honourable Supreme Court passed in Civil Petition No. 4282 of 2018 [Faraz Ahmed versus Federation of Pakistan through Secretary, Ministry of Communications, Government of Pakistan, Islamabad and others] -Faraz Ahmed case.

1. Since no triable issues exist, thus this Lis can be decided on legal issues. From the pleadings of the parties, following issues are settled--

2. Whether the Suit is maintainable?

3. Whether the Defendant No. 1 has violated its own service regulations and policies when it advertised the impugned Public Notice dated 05.12.2021/ Advertisement?

4. What should the decision be?

5. The precis of the case law relied upon by the Plaintiff’s counsel is that, in the case of Saleem Mustafa Shaikh (ibid), it is held that although Rules of SSGCL (present Defendant No. 1) are non-statutory, but since is owned and controlled by the Federal Government, therefore, it cannot be accepted that such Rules are not enforceable and hence, such Rules are to be adhered to, even if the rules are non-statutory. Notification for filling up the Post of Director General is to be first filled by promotion and recruitment including induction of outsider candidate be done if no Officer in the Department is eligible and qualified for the promotion. If an employee is prevented through mala fide acts from getting promotion, then same can be corrected in an appropriate proceeding. Service Rules of Statutory Organization binds the Employer and the Employee both. Established Departmental practice if is not violative of any law or rules, should be equally applied to other persons having the same case. In the recent judgment, the Honourable Supreme Court in the case of ZTBL (ibid) has propounded the phrase “Master and Servant” and it is held that a suit is maintainable for declaration and injunction, challenging the imposition of penalty, while dealing rather diluting the strict interpretation of the concept of ‘Master and Servant’, from the perspective of human rights.

6. Crux of the case law relied upon the Defendant’s counsel is that the Government is entitled to make Rules in the interest of expediency of service and to remove anomalies in its Service Rules, which is exclusive domain and policy decision making of Government and the interference with such matters by the Courts is not warranted and that no vested right of a Government employee is involved in the matter of promotion or the rules determining their eligibility or fitness; for a contractual employee, no vested rights exist for his permanent absorption on account of his length of service, but his request can be considered by the Management.

7. Adverting to the present case.

8. Learned counsel for the Plaintiff in rebuttal has also referred to earlier Email of 22.12.2020 (available at page-91 of the second part of Court’s file) that on occasions, Defendant No. 1 has invited employees to apply for different Posts, which shows that for the present Posts as well same criterion should have been followed. He has further referred to a newly promulgated amendments in H.R. Manual and Service Rules, particularly, relating to the Succession Plan. He argued that present advertisement clearly violates the Paragraph-18 of current Succession Plan, in which criterion is laid down for promotions, inter-alia, from Grade 8 to 9 and 9 to 10. However, to a specific query on Paragraph-31 of the Counter Affidavit of Defendant, which has been referred, to which it is replied, that Plaintiff was assessed last year, that is, FY 2020-21, for the Senior Post of HSEQA (Health, Safety, Environment & Quality Assurance /Quality Control) and not for the present impugned Advertisement. However, the said Paragraph-31 clearly states that Plaintiff was not found fit. Plaintiff’s ‘counsel then referred to Annexure ‘H’ with the caption ‘minimum eligibility criteria for promotion as approved by H.R. Committee /BOD’ and refers to its Serial No. 9, that criteria mentioned for the post of Senior General Manager in Grade-9 is that a person should be a General Manager in Grade-8 (which the Plaintiff is) and should have worked in the said Grade for at least three years. To this argument, it is stated by learned counsel for the Defendant No. 1, that this Policy has been superseded by the latest H.R. Manual (which is filed under the Statement of Defendant):

ISSUE NO. 1:

1. As far as Issue No. 1 is concerned, in view of the Case Law on the subject and particularly, the latest decision of the Honourable Supreme Court in ZTBL case (supra), I am also of the considered view that merely because Rules are non-statutory and relationship of Defendant No. 1 and Plaintiff is that of Master and Servant, it does not mean that Plaintiff and such other employees are remediless. If the service regulations are violated or the established policies are deviated from to deprive an employee from his career progression, then the suit is maintainable, because Section 24-A of the General Clauses Act, 1897, is also applicable to Defendant No. 1, while framing the Policies for the Employees, they have to act fairly, justly and reasonably.

ISSUE NO. 2:

1. The Posts advertised require specialized qualifications. In order to run organization in an efficient and viable manner, it is not necessary that a senior management position is always filled up internally through promotion specially when the present positions are on contract and not regular posts. Defendant No. 1 and any other Organization especially of Public Sector, can hire the services of well qualified and reputed professional(s) in order to operate efficiently. Secondly, in my considered view, an employee can be considered for such specialized posts, only if he has the requisite qualifications. Merely that he fulfills the criteria of length of service or any other general criteria for promotion does not itself creates a vested right in favour of Plaintiff. Defendant No. 1 is not bound to promote an employee to the next higher grade if that post requires specialized qualifications. The present qualification of the Plaintiff should have direct nexus with the Posts advertised. Record shows that Plaintiff has done B.E. Electronics, thus, obviously he cannot be considered for the post of Senior General Manager – Information Technology, which in the present times, is one of the most important posts in any Organization; rather, sine qua non for viable operation of an Organization, including Defendant No, 1. Similarly, he was last year considered for the position of HSEQA and was not found fit and nothing is placed on record that what further qualification the Plaintiff has acquired, to become eligible for the said position. As far as the third Post of Senior General Manager, Procurement and Inventory Management it is concerned, it is sole discretion of Defendant No. 1 to consider any of the employees including Plaintiff, if the Defendant No. 1 is unable to hire/induct a suitable candidate externally.

2. In the previous and present Service Regulations, H.R. Manual and Employment Policies, nothing has been shown, which can be termed as violative of any principle of law or statutory provisions. Taking guidance from the Honourable Supreme Court Judgment in Hayat Hussain Case (ibid), it is discretion of the Board of Defendant No. 1 to modify, amend, replace and frame policies in accordance with the present day requirement. The Defendant No. 1 has decided to induct the best of the best from the open market through the impugned Advertisement and no tangible material has been brought on record to show that such act, decision or the subject Advisement is violative of any of the provisions of its HR Manual or Succession plan (in particular), therefore, answer to the Issue No. 2 is that the subject Advertisement does not violate any of the provisions of present service structure, Rules or Policy; hence, no interference is required in this proceeding in the executive decision(s) of Defendant No. 1, which is lawful.

3. The case law cited by learned counsel for the Plaintiff is quite distinguishable from the facts of present case, inter-alia, as nothing adverse has been done against the interest of Plaintiff. Similarly, the other factor is that such Advertisement/Public Notice, has been challenged only by Plaintiff and if it was/is so blatantly repressive, then other Senior Employees should have come forward. However, this fact is not a determining factor of this case. It is further

clarified that there is a difference between maintainability of suit and grant of any relief. In the foregoing paragraphs, it has already been decided that facts of present suit prima facie show that the suit is maintainable, but after considering of record, the main relief with regard to setting aside the recruitment process initiated through the impugned Advertisement/Public Notice dated 05.12.2021, cannot be granted, coupled with other relief(s) as mentioned in the Prayer Clause (ibid), including relating to promotion and recruitment through promotion, but, Defendant No. 1, exercising its discretion can consider Plaintiff or any other eligible, employee for the advertised positions.

1. Consequently, this suit is dismissed along with all pending application(s), but with no order as to costs.

(Y.A.) Suit dismissed

PLJ 2023 Karachi 26

Present: Adnan-ul-karim memon, J.

MANTHAR ALI and another--Appellants

versus

REGISTRAR SINDH UNIVERSITY JAMSHORO and 10 others--Respondents

Second Appeal No. S-59 of 2022, decided on 4.11.2022.

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

----Ss. 39, 42 & 54--Suit for declaration cancellation of sale-deed and mandatory and perpetual injunction--Decreed--Concurrent findings--Allotment of land--Housing scheme--Cause of action--Joint written statement--Report from commissioner--Entries in revenue record were not available--Fake documents relied upon by counsel of appellants--Fraud vitiates every solemn proceeding and no right can be claimed by a fraudster on ground of technicalities--Both Courts held that documents relied upon by counsel for appellants are fake, thus this Court in second appeal is not in a position to contradict view as taken by both Courts below as no material has been placed on record to suggest that findings arrived by both Courts are perverse and against well settled principles of law--Judgment and Decree passed by trial Court is based upon sound reasoning and proper appreciation of evidence, which has been maintained by 1st Appellate Court--Two Courts below, while recording findings of fact have neither misread evidence nor ignored any material piece of evidence--No other point worth consideration has been raised in support of this Appeal--The concurrent findings on face of record are neither arbitrary nor fanciful or perverse--Appeal dismissed. [Pp. 30 & 32] A, D & E

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

----S. 115--Concurrent findings--Exercising of jurisdiction--It is well-settled law that ordinarily concurrent findings recorded by Courts below could not be interfered with by High Court while exercising jurisdiction in second appeal howsoever erroneous findings may be, unless such findings had been arrived at by Courts below either by ignoring a piece of evidence on record or through perverse appreciation of evidence. [P. 32] C

Words & Phrases--

----The definition of “fraud” as defined in Black’s Law Dictionary, which is as under:

Fraud--(1) A knowing misrepresentation of truth or concealment of a material fact to induce another to act to his or her detriment--Fraud is usually a tort, but in some cases (esp. when conduct is wilful) it may be a crime.... (2) A misrepresentation made recklessly without belief in its truth to induce another person to act--(3) A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment--(4) Unconscionable dealing; esp., in contract law, unconscientious use of power arising out of parties’ relative positions and resulting in an unconscionable bargain. [P. 30] B

Barrister Azmatullah Channa, Advocate for Appellants.

Nemo for Registrar Sindh University Jamshoro, though served.

Mr. Allah Bachayo Soomro, Additional Advocate General, Sindh.

Date of hearing: 4.11.2022.

Judgment

Through this 11nd Appeal, appellants are ashing for setting aside the Judgment and Decree dated 11.05.2022 & 16.05.2022 passed by learned IInd Additional District Judge, Jamshoro @ Kotri in Civil Appeal No. 10 of 2021 (Re-Manthar Ali and another v. Province of Sindh and others) dismissing the appeal filed against the judgment and Decree dated 10.2.2021 and 15.02.2021 whereby Suit No. 29 of 2015 of Respondent No. 1/plaintiff was disposed of in the terms as under:-

a. Defendant No. 10 by virtue of Entry No. 96 dated 03.11.1991 is not the lawful owner of the suit land.

b. The order Bearing No. EDO(Rev)/Reader/1027/2008 Jamshoro dated 18.6.2008 is fahe order.

c. The Entry No. 96 dated 3.11.1991 in favour of Defendant No. 10, the general power of attorney dated 17.4.2014 in favour of Defendant No. 11 and the subsequent sale-deed dated 8.1.2015 in favour of Defendant No. 12 are hereby cancelled as the same have no value in the eyes of law. All concerned officials are directed to beep the cancellation remarks against the above mentioned documents in the relevant record.

d. The Defendant Nos. 10 to 12, their agents and or their subordinates are hereby restrained from claiming the piece of land of the plaintiff on the basis of Entry No. 96 dated 3.11.1991 the general power of attorney dated 17.4.2014 and the sale-deed dated 8.1.2015.”

1. Brief facts of the case as per memorandum of appeal are that plaintiff/Respondent No. 1 (hereinafter called as “respondent”) was allotted total 8500 acres land out of which 3500 acres were situated in Deh Mohro Jabal while 5000 acres in Deh Sonwalhar (Makan Goh) wherein time and again some pieces of land were handed over to Mehran Engineering University, Liaquat University, NHA and other Government Departments by keeping revenue entries; soon after, respondent started housing projects on the said allotted land and completed its first phase; however in the year 2014, second phase of housing scheme through its contractor M/S TREC Private Limited was started; that on 06.01.2015 Respondent No. 12 appeared on the suit land alongwith 35 other persons claiming ownership over subject property based on revenue Entry No. 96 dated 3.11.1991 mutated in favour of Respondent No. 11 who gave power of attorney to Appellant No. 1 in the year 2014 who executed sale-deed in favour of Appellant No. 2 on 08.01.2015, hence this triggered cause of action to respondent-university for filing Suit for declaration, cancellation of registered sale-deed and revenue entry, damages, mandatory and permanent injunction.

2. The Suit of the respondent-university was admitted whereupon official respondents filed written statement denying the allegation levelled in the memo. of plaint while a joint written statement was also filed by the appellants, thereafter learned Trial Court on the pleadings of the parties framed six issues and recorded the evidence of both the parties on the above issues and decreed the suit vide Judgment and decree dated 10.2.2021 and 15.02.2021. The said Judgment and Decree were assailed in Civil Appeal No. 10 of 2021 whereby the learned Additional District Judge-II, Jamshoro @ Kotri dismissed the Appeal hence the instant Second Appeal.

3. Barrister Azmatullah Channa learned counsel for appellants during the course of arguments, while reiterating the contents of memo. of appeal, has urged that the Courts below while passing the impugned judgments and decree failed to consider the registered instruments i.e sale-deed bearing serial No. 11 dated 8.1.2005 and Registration No. 68 dated 19.1.2015 and digital scanning No. BOR 15.18.69 dated 21.1.2015 and revenue Entry No. 131 of Deh Sonwalhar (Makkan Parity) thus the impugned judgment and decrees are liable to be set aside. Learned counsel referred the evidence brought on record in favor of appellants and submitted that the power of attorney Bearing No. 151 dated 17.4.2014, with Registration No. 41 VB, M.F No. U1708 dated 8.5.2014 is based upon the order of EDO Revenue Jamshoro which is based on an entry dated 20.11.2014 thus there was no occasion for the Courts below to dispute the registered instruments and order its cancellation without evidence. He prayed for allowing the instant appeal.

4. Mr. Allah Bachayo Soomro, learned additional Advocate General, Sindh has supported the decisions of both the Courts below and argued that the revenue entries relied upon the appellants are found to be fake thus penal action is required against the appellants as well as revenue officials, who supported the appellants in usurping the subject land and used the precious time of the Courts of law. He prayed for dismissal of the appeal.

5. No one has bothered to appear on behalf of respondent-university to defend the case and assist on the subject issue involved in the matter though notice was issued to learned counsel for the parties vide order dated 16.9.2022.

6. I have heard learned counsel for the appellants as well as learned A.A.G. and have also gone through the record available before me.

7. Scanning of evidence on record transpires that learned trial Court while delivering the Judgment observed that the order dated 18.6.2008 was fraudulently prepared with the fake signature of DDO jamshoro, as in evidence he denied the execution, issuance and existing of order dated 18.6.2008 on the basis which fraudulent Entry No. 118 dated 20.11.2014 was kept and general power of attorney was prepared. Learned trial Court also observed that the appellant was required to make compliance of orders passed by Honourable Supreme Court in Cr. Org. Petition No. 4-K/2014 in C.A. No. 96/2010 and the suit of the plaintiff was disposed of; the appeal preferred was also dismissed. This Court also called report from Commissioner Hyderabad Division vide order dated 3.10.2022 who submitted report with the recommendation ‘that Entry No. 96 dated 3.11.1991 of VF-VII-B, Deh Sonwalhar, Taluha Kotri and subsequent entries 118 dated 20.11.2014 and Entry No. 131 dated 22.01.2015 of VF-VII-B, Deh Sonwalhar and referred entries (mother entries) are not available in the record of rights, viz, VF-VII-A (re-written 1985- 86), are bogus and managed and are liable to be cancelled under the relevant laws.

8. The question in the instant appeal is as to whether the appellants can be permitted to lay emphasis on fraudulent revenue entry time and again and Court has to be silent spectator under the guise of label of various legal proceedings at different stages by taking untenable stands.

9. Fraud vitiates every solemn proceeding and no right can be claimed by a fraudster on the ground of technicalities. The definition of “fraud” as defined in Black’s Law Dictionary, which is as under:

“Fraud: (1) A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. Fraud is usually a tort, but in some cases (esp. when the conduct is wilful) it may be a crime.... (2) A misrepresentation made recklessly without belief in its truth to induce another person to act. (3) A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment. (4) Unconscionable dealing; esp., in contract law, the unconscientious use of the power arising out of the parties’ relative positions and resulting in an unconscionable bargain.”

1. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine .

2. Reverting to plea of learned counsel for the appellants that the registered sale-deed ought not to have been cancelled by the civil Court as a whole. On this proposition I am of the view that Civil Court is only competent to cancel the registered deed but here question is only with regard to cancellation of revenue, entry/mutation and Sale Deed based upon that mutation which was challenged by o respondent-university and learned trial Court framed issues and discussed the same on evidence produced by both the parties and while reaching at the conclusion that subject property was fraudulently mutated as whole in fauour of predecessor of appeallants, hence one cannot be entitled to derive his legal character from a fraudulent transaction, therefore, this plea taken by learned counsel has no force. Besides, learned counsel for appellants has failed to point out any illegality or irregularity in impugned judgments. Reference Can be made to the cases of Nawab Khan v. Raisa Begum and others (2003 SCMR 1498), Talib Hussain and others v. Member Board of Revenue and others (2003 SCMR 549), Yousuf Ali v. Muhammad Aslam Zia (PLD 1958 SC (Pak.) 104), Lal and another v. Muhammad Ibrahim (1993 SCMR 710) Government of Sindh through Chief Secretary and others v. Khalil Ahmed and others (1994 SCMR 782), Abdul Hameed through LRs and others v. Shamsuddin and others (PLD 2008 SC 140).

3. The grounds taken in the instant appeal were raised before the trial Court as well as before the learned first appellate Court who after framing proper issues and recording oral as well as documentary evidence gave exhaustive judgments. Both the Courts below have

unanimously held that the Appellants could, not prove their case in respect of the subject property.

1. It is well-settled law that ordinarily concurrent findings recorded by the Courts below could not be interfered with by the High Court while exercising jurisdiction in second appeal howsoever erroneous findings may be, unless such findings had been arrived at by the Courts below either by ignoring a piece of evidence on record or through perverse appreciation of evidence. In the present case, both the Courts held that the documents relied upon by the learned counsel for the appellants are fake, thus this Court in the second appeal is not in a position to contradict the view as taken by both the Courts below as no material has been placed on record to suggest that the findings arrived by both the Courts are perverse and against the well settled principles of law.

2. In my view, the judgment and Decree passed by the trial Court is based upon sound reasoning and proper appreciation of evidence, which has been maintained by the 1st Appellate Court. Two Courts below, while recording findings of fact have neither misread the evidence nor ignored any material piece of evidence. No other point worth consideration has been raised in support of this Appeal. The concurrent findings on the face of record are neither arbitrary nor fanciful or perverse; hence, interference of this Court is not warranted, scope of which is restricted. Hence, the instant Second Appeal being devoid of any force is dismissed.

(Y.A.) Appeal dismissed

PLJ 2023 Karachi 32 (DB)

Present: Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ.

MUMTAZ ALI--Petitioner

versus

SECRETARY TO THE GOVERNMENT OF PAKISTAN MINISTRY OF MINORITIES (MINORITIES AFFAIR DIVISION), ISLAMABAD and 4 others--Respondents

C.P. No. D-36 of 2006, decided on 24.11.2022.

Constitution of Pakistan, 1973--

----Art. 199--Acquisition of evacuee property--Compensation pool--Allotment of agriculture land--Evacuee property--Mutation was recorded in record of rights--Petitioner was claimed that suit land was purchased by him and he was cultivating--Counsels for parties were agreed to referring matter to chairman ETP Board--Counsel for petitioner submits that in past identical cases were filed before this Court and this Court was pleased to refer matters to Chairman ETP Board Lahore for reconsideration on basis of documents possessed by them and his case may also be referred to Chairman ETP Board for reconsideration on same ground--Counsel for Board has accepted this proposal and has recorded no objection--Petition disposed of. [Pp. 33 & 34] A & B

Mr. Gulab Khan Kaimkhani, Advocate for Petitioners.

Mr. Ziauddin Shaikh, Advocate for Respondents No. 1 to 3.

Mr. Muhammad Ismail Bhutto, Addl: Advocate General Sindh.

Mr. Ghulam Abbas Sangi, Attorney General for Pakistan.

Date of hearing: 24.11.2022.

Order

Petitioner claims to have purchased agricultural land bearing C.S Nos. 239, 306, 309/1,2,3 and 6 admeasuring 14.3 acres in Deh Pai Taluka Tando Adam District Sanghar in the year 1994, and since then he is in possession of the land and cultivating the same. His case is that the land was Evacuee property and was acquired under the compensation pool and was allotted to one Waheeda Begum vide Khatooni dated 03.09.1959 RL-II No. 48 dated 03.09.1959 by the Assistant Rehabilitation Commissioner against her verified claim. Thereafter, she was put into physical possession of the same and necessary mutation was also recorded in the record of rights vide entry No. 29 in Deh Form-XV, and later on in Deh Form-VII on 24.02.1994 in her name.

The case of the Evacuee Trust Property-respondents No. 2 and 3 is that this was Evacuee property, and never made part of compensation pool and it was not allotted to Wahida Begum. It was a part of trust pool and since from very beginning the Evacuee Trust Property is in possession of the property. Learned counsel for the petitioner submits that in the past identical cases were filed before this Court and this Court was pleased to refer the matters to the Chairman ETP Board Lahore for reconsideration on the basis of documents possessed by them and his case may also be referred to the Chairman ETP Board for reconsideration on the same ground.

Learned counsel for the Board has accepted this proposal and has recorded no objection. Accordingly, this petition is disposed of. The case of the petitioner is referred to the Chairman ETP Board Lahore for reconsideration on the lines reportedly, the cases of others similarly placed persons have been considered and decided, after examining all the documents including the documents which the petitioner may file for supporting his case and for a decision within the period of three months from today.

(Y.A.) Petition disposed of

PLJ 2023 Karachi 34

Present: Adnan-ul-karim memon, J.

GHULAM SHABIR and others--Applicants

versus

GOVERNMENT OF PAKISTAN through Chairman Evacuee Trust Property, Lahore and others--Respondents

C.R.A No. 176 of 2006, decided on 15.8.2022.

Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

----Ss. 8 & 14--Applicants were in possession of plots--Plots were allotted to applicants--Rent was stopped by applicant after allotment--Construction of pacca house by appellants--Suit filed by applicants was decreed--Appeal--Allowed--No ground for re-evaluation of evidence--Challenge to--Since year 2018 neither applicants nor counsel turned up which shows that perhaps they have lost interest in these proceedings, therefore--There are findings of appellate Court available against applicant which does not require further interference by this Court--Primarily, cases can be revised by this Court as it possesses revisional jurisdiction as defined under Section 115 of Code of Civil Procedure--This Court has right to revise cases decided by subordinate Courts to ensure delivery of justice and maintenance of fairness--At revisional stage, applicants have agitated grounds already exhausted by them and properly adjudicated by competent forum--This Court in its Revisional Jurisdiction cannot interfere in findings recorded by competent appellate Court and also do not see any illegality, infirmity, or material irregularity in Judgment of appellate Court warranting interference of this Court--Revision application dismissed. [Pp. 36 & 37] A, B & D

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

----S. 115--Discretionary jurisdiction--Undoubtedly Revision is a matter between higher and subordinate Courts, and right to move an application in this respect by Applicant is merely a privilege--The provisions of Section 115, C.P.C., have been divided into two parts; first part enumerates conditions, under which, Court can interfere and second part specifies type of orders which are susceptible to Revision--In numerous judgments, Honorable Supreme Court was pleased to hold that jurisdiction under Section 115, C.P.C. is discretionary. [P. 37] C

Mr. Zafar Ali Vighio, Advocate who is called absent today.

Mr. Ziauddin Shaikh, Advocate for Respondents.

Mr. Rafiq Ahmed Dahri, Asstt: A.G.

Date of hearing: 15.8.2022.

Order

Through instant revision application, the applicants have called in question the judgment dated 16.05.2006 passed by learned 1st Addl. District Judge, Nawabshah in Civil Appeal No. 36 of 2005, whereby the learned Judge while allowing the appeal set aside the Judgment dated 16.4.2005 and decree dated 23.4.2005 passed by trial Court in F.C Suit No. 124 of 1999. The applicant has now attempted to re-open the case through this revision application under Section 115, CPC, inter-alia on the ground that the impugned judgment and decree passed by the learned appellate Court is illegal, void, mala fide, and liable to be set aside, whereas the judgment and decree passed by the learned trial Court is legal, valid, proper, lawful and under the law and is liable to be maintained. That the learned appellate Court failed to consider this material aspect of the case that in the year 1971 the residents/occupants of the adjoining houses/plots moved applications to the Defunct Deputy Commissioner, Nawabshah for allotment of the plots in their possession. Later on, the said plots/houses were allotted to the occupants and necessary documents of the title were also issued in their names. On getting allotment of the plot in their possession the occupants of plots so also applicants stopped paying rent to the Evacuee Department. Accordingly the Defunct Deputy Commissioner, Nawabshah also allotted the plot in possession of the father and predecessor in interest of applicants in the name of their father and necessary title documents were also issued by the concerned authorities in the name of the father of the applicants and since then the applicants own the said plot as owners. Hence the impugned judgment and decree of the learned appellate Court are liable to be set aside. That the learned appellate Court also failed to consider this material aspect of the case that the applicants had made huge investment on the said plot and got constructed a pacca house and are putting on in the said plot/house since 1962, without any hindrance or disturbance. Hence the impugned judgment and decree of the learned appellate Court are liable to be set aside.

1. None present for the applicants and no intimation is received. The record reflects that since the year 2018 neither the applicants nor counsel turned up which shows that perhaps they have lost interest in these proceedings, therefore, I have gone through the record as available before me and find that there are findings of the appellate Court available against the applicant which does not require further interference by this Court. An excerpt of the appellate judgment is reproduced as under:

“Issue No. 8

In view of my findings on Issues No. 1 to 6 above, I have come to the conclusion that suit of plaintiffs is not maintainable neither the Civil Court has jurisdiction to declare any property as evacuee trust property under Section 8 of Evacuee Trust Properties (Management and Disposal) Act, 1975, nor Civil Court can issue any injunction under Section 14 of the Act as such this issue is erroneously decided by the trial Court.

In view of findings on the Issues No. 1 to 8 above I am of the considered opinion that Judgment dated 16.4.2005 and Decree dated 23.4.2005 are passed by the Court on the basis of misreading and non-reading of evidence and cannot be sustained in this appeal. I, therefore, answer Point No. 1 in affirmative that Judgment dated 16.4.2005 and Decree dated 23.4.2005 calls for interference in this appeal.

Point No. 2

In view of my findings on Point No. 1 above, I have come to the conclusion that learned trial Court has erroneously decreed the suit without any jurisdiction. I, therefore, allow this appeal, set aside the Judgment dated 16.4.2005 and Decree dated 23.4.2005 and dismiss the suit of the plaintiffs accordingly. However, therefore is no order as to costs.

1. Primarily, cases can be revised by this Court as it possesses revisional jurisdiction as defined under Section 115 of the Code of Civil

Procedure. This Court has the right to revise cases decided by subordinate Courts to ensure the delivery of justice and maintenance of fairness. In the present case at revisional stage, the applicants have agitated the grounds already exhausted by them and properly adjudicated by the competent forum, thus in my view, no perversity and illegalities have been pointed out in the findings of the competent appellate forum, therefore no ground existed for re-evaluation of evidence, and thus, I maintain the Judgment and Decree passed by the appellate Court.

1. Before parting with this order, it is observed that undoubtedly. Revision is a matter between higher and subordinate Courts, and the right to move an application in this respect by the Applicant is merely a privilege. The provisions of Section 115, C.P.C.., have been divided into two parts; the first part enumerates the conditions, under which, the Court can interfere and the second part specifies the type of orders which are susceptible to Revision. In numerous judgments, the Honorable Supreme Court was pleased to hold that the jurisdiction under Section 115, C.P.C. is discretionary.

2. In the light of the above facts and circumstances of the case, I am of the view that this Court in its Revisional Jurisdiction cannot interfere in the findings recorded by the competent appellate Court and I also do not see any illegality, infirmity, or material irregularity in the Judgment of appellate Court warranting interference of this Court. Hence, this Revision Application is found to be meritless and is accordingly dismissed along with the pending application(s) with no order as to costs.

(Y.A.) Application dismissed

PLJ 2023 Karachi 37 (DB)

Present: Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ.

Mst. MARYAM and others--Petitioners

versus

GOVERNMENT OF PAKISTAN through Secretary M/o. Religious Affairs Zakat & Ushr and Minorities Affairs Islamabad and others--Respondents

C.P. No. D-147 of 1997, decided on 6.10.2022.

Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

----Ss. 8, 9 & 10--Order for retaining possession of property--Order was challenged--Petition disposed of--Evacuee property--Father of petitioner was tenant of evacuee property--Permanent transfer deed was issued--Disputed property was not transferable due to evacuee property--Disputed property was depicted as Hindu Property--Cancellation of transfer deed and rent was demanded to petitioner being legal heirs--PTD was mala fidely issued--Challenge to--A perusal of order of Chairman, ETPB, and Secretary shows that departmental representatives disputed claims of father of petitioners as well as called in question genuineness of P.T.D. and R.T.O. extract of subject property reflects that property was described as Devi Jo than (Charitable), which has been described by respondents as Evacuee trust property reserved for charitable purposes under evacuee laws--It is well-settled law that any order passed by any authority having not jurisdiction is a nullity in eye of law and can be safely ignored whenever it is being acted upon--There is no question of limitation on part of Chairman ETPB in initiation of subject proceedings for simple reason that evacuee properties attached to charitable, religious, or educational trusts were excluded from jurisdiction of concerned authorities for transfer to beneficiaries--Orders of competent authority are based on extract from property register card--These are findings of fact not liable to be interfered with in these proceedings under Article 199 of constitution--Impugned orders do not suffer from any illegality--Petition dismissed. [Pp. 43, 44 & 45] A, E & G

Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

----S. 2(d)--Evacuee Trust Property--In section 2(d) of Evacuee trust Properties (Management and Disposal) Act, 1975, “evacuee trust property” has been defined to mean evacuee trust properties attached to charitable, religious, or educational trust or institutions or any other properties which form part of Trust Pool constituted under that Act. [P. 44] B

Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

----S. 8--Cancellation of allotment--Powers of chairman--Under section 8 thereof if a question arises whether an evacuee property is; attached to a charitable, religious, or educational trust or institution or not, it shall be decided by Chairman whose decision shall be final and shall not be called in question in any Court and if he decides that a property is evacuee trust property, he may pass an order canceling allotment or alienation, as case may be. [P. 44] C

Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

----S. 8--Declaration of property as evacuee property--The provision of aforementioned Act applies only if property is admittedly evacuee trust property which presupposes that owner of property must have left for India and declared as evacuee property by Custodian at relevant time. [P. 44] D

Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

----S. 12(2)--Sale and disposal of property managed by ETPB--The Honorable Supreme Court in recent decision has held that to sell or dispose of land managed by ETPB, a resolution has to be passed by ETPB’s Board which is then to be approved by Federal Government--Once approval has been accorded by Federal Government, an officer is designated and authorized by Chairman in terms of Section 12(2) of ETPB Act who shall then carry out sale of disposal of land/property in terms laid down by Federal Government and/or through sanctioned Board resolution. [P. 45] F

Mr. Akhtar Ali Abro, Advocate for Petitioners.

Mr. Ziauddin Shaikh, Advocate for Respondents.

Mr. Ghulam Abbas Sangi, Asstt: Attorney General.

Date of hearing: 15.9.2022.

Order

This petition is directed against the impugned order dated 19.02.1997 passed in Case No. 3-63/91 Rev by Respondent No. 1/Secretary to Government of Pakistan Ministry of Religious Affairs, Zahat and Ushr and Minorities Affairs Islamabad, whereby he maintained the order dated 15.05.1991 passed by Chairman Evacuee Trust Property Board/Respondent No. 2, by retaining the possession of property bearing C.S Nos. 1419 & 1419/1 Ward-D, Juman Shah Ka Pir, Sunar Gali Hyderabad. An excerpt of the order is reproduced as under:

“5. The learned Legal Advisor of the Board concedes that their occupation is before the target date but his contention is that since the nature of this property was evacuee trust property in the record, it could not be transferred because it did not form part of the compensation pool. The Chairman, ETP Board has discussed all these points in the impugned order. I have also seen the record which clearly mentions ownership of Devi Jo Than, the place of Devi and the name Pars Ram is the Gaddi Nasheen.

1. After carefully considering the arguments of both the sides I find that the impugned order suffers from no illegality or impropriety. The position on the record is clear. It is an evacuee trust property. Moreover the petitioner is one of the eight persons who are occupants in the property. The other seven are admittedly the tenants of ETP Board and paying rents. The learned Legal Advisor assures that the Board has no intention of disturbing the petitioners who will continue as a tenants of the Board of payment of reasonable rent as per rules. On account of above reasons the petition is disposed of.”

2. Mr. Akhtar Ali Abro, learned counsel for petitioners, has argued that the petitioners are successors-in-interest of late Allah Din, who was the transferee owner of the House and Shop constructed on the subject property. He next argued that late Allah Din on migration from India occupied the subject property in the year 1947, being evacuee property, and initially was paying rent in respect thereof to concerned Custodian Officer Hyderabad. He further argued that since late Allah Din was a claimant/displaced person; therefore, on the basis of his verified claim the Condensation Book Bearing No. 91054-HDR-II-260: was issued in his name by Deputy Settlement Commissioner Hyderabad/Respondent No. 4. He added that on promulgation of Displaced Persons (Compensation and Rehabilitation) Act, 1958 late Allah Dad applied on C.H and C.S Forms for transfer of subject property in his name and the same was transferred in his name by Settlement Department/Respondent No. 4 vide Permanent Transfer Order (P.T.O) No. 15 dated 15.10.1959 and transfer price of which was duly paid by late Allah Dad from his Compensation Book, referred to above, and on clearance of rental dues the Permanent Transfer Deed (PTD) Bearing No. 2143 dated 03.07.1967 was issued in his favour and thereafter late Allah Dad also filed Rent Applications Bearing No. 36 & 37 of 1961 against his tenants Abdul Ghaffar and Amir Bux before Rent Controller, which later on was compromised. He further added that after the death of Allah Din the petitioners, being his legal heirs, inherited the subject property; however, after twenty years of the transfer, Respondent No. 3/Assistant Commissioner Evacuee Trust Property Board demanded the rent from the petitioners and threatened them for eviction from the subject property; hence the petitioners moved an application before Chairman ETPB/Respondent No. 2; however, ha did not validate the transfer vide his order dated 15.05.1991 and the said order was maintainable by Secretary/ Respondent No. 1. He argued that both the impugned orders are illegal, void and without lawful authority. He also argued that respondents have failed to give any finding to the fact that the subject property was an evacuee property attached to a Charitable, Religious, or Education Trust or Institution, as defined sender Section 8(1) of the Act, 1975. He further argued that respondents have also failed to appreciate that the subject property was transferred in the name of late Allah Din much before the crucial date viz. June 1968 as provided under the law. He submits that Sections 8, 9 & 10 of the Act ibid have been declared repugnant to the injunction of Islam by the Federal Shariat Court, thus no further action could have been taken on the purported plea of being Evacuee Property. He prayed that impugned orders may be set aside in terms of the Permanent Transfer Deed (PTD) Bearing No. 2143 dated 03.07.1967 issued by the authorized officer/competent authority. In support of his contentions, learned counsel relied upon the cases of Divisional Evacuee Trust Property Committee Karachi v. Abdullah and 2 others, 1987 SCMR 503, Tahir Ali Federation of Pakistan and others, PLD 1987 Karachi 290 and Mst Farkhanda Ahhtar and 3 others v. Chairman, Evacuee Trust Property Board, PLD 1980 Lahore 804.

3. We asked the learned counsel representing the respondent Evacuee Trust Property Board ‘ETPB’, whether in presence of the Permanent Transfer Deed (PTD) Bearing No. 2143 dated 03.07.1967, the subject property could be canceled from the name of the father of petitioners; and, retained being Evacuee Trust Property under the Evacuee Trust Property (Management and Disposal) Act, 1975.

4. Mr. Ziauddin Shaikh, learned counsel, replied to the query and submitted that the subject property is evacuee property and the father of petitioner late Allah Dad was a tenant. He next contended that the subject property belonged to Devi Jothan Charitable, which was/is not transferable; however, while issuing PTD the Settlement Department depicted the subject property as Hindu Property. He further contended that it all was done intentionally by the Settlement Department just to illegally benefit the late father of the petitioners. He supported the impugned orders and prayed for the dismissal of the petition.

5. Learned Assistant Attorney General also supported the impugned order dated 19.02.1997 passed by the Secretary, Government of Pakistan, Ministry of Religious Affairs Zakat and Ushar and Minorities Affairs, Islamabad, in Case No. 3-63/91-REV and prayed for dismissal of the petition.

6. We have heard learned counsel for the parties and perused the record with their assistance and case law cited at the bar.

7. In the present case, the Chairman, Evacuee Trust Property Board, Government of Pakistan, Lahore reversed the orders of the Deputy Settlement Commissioner dated 15.10.1959 and 03.07.1967 and held that the property in question was an evacuee trust property and the P.T.D. was erroneously issued in favor of the father of the petitioners and, therefore, the transfer in his favor was canceled. The petitioners contend that since their father had paid the full price before the crucial date as provided under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as their right was/is protected in terms of Sections 8 & 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975, and nothing was required to be adjudicated by the Chairman, Evacuee Trust Property Board, and Secretary concerned. Petitioners’ further contention is that even if the property in dispute was/is an evacuee trust property, it would simply enable the Evacuee Property Trust Board to recover the price from the Settlement Department but would not, in any way, affect the transfer already made in favor of the father of the petitioners by the Settlement Department which was/is now a past and closed transaction.

8. The petition has been contested by the respondents ETPB and discarded the viewpoint of the petitioners with the assertion that the P. T. D. was mala fidely issued by the Settlement Department, despite knowing the fact that the subject Evacuee property was not available for transfer to the father of the petitioner being Devi jo Than’ (Charitable), therefore, the petitioner’s case was not covered by Sections 8 & 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975 as portrayed by them. Hence the transfer in favor of their father was illegal therefore, the right title cannot be conferred upon the legal heirs of deceased Allah Din; and, was rightly canceled by the Chairman, Evacuee Trust Property, Lahore, and maintained by the Secretary.

9. The questions involved in the present petition are whether the transfer of the property in favor of the father of petitioners could be canceled and treated being Devi Jo than (Charitable), and not covered by Section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975; and, whether the subject Evacuee Property was available for disposal in terms of Section 3 of Displaced Persons (Compensation and Rehabilitation) Act, 1958; and whether the extract from the Record of Rights or City Survey Hyderabad show the subject property being an Evacuee Property and reserved for the charitable purpose; and, could be disposed of by way of sale and purchase; and/transfer by the Deputy Settlement Commissioner.

10. To appreciate the aforesaid propositions, it is expedient to have a glance over section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, which reads as under:

“(i) An immovable evacuee trust property,--

(a) if situated in a rural area and utilized bona fide under any Act prior to June 1964, for allotment against the satisfaction of verified claims; and

(b) if situated in an urban area and utilized bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued before June 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool.”

1. It appears from the aforesaid section 10(1)(b) of the Act, 1975, that there are two conditions which were/are required to be satisfied. Firstly the P. T. D. must have been issued before June 1968, and secondly, the transfer by the Settlement Authorities must be bonafide, and the question whether such transfer is bona fide or not is to be decided by the Chairman ETPB.

2. A perusal of the order of the Chairman, ETPB, and Secretary shows that departmental representatives disputed the claims of the father of the petitioners as well as called in question the genuineness of the P.T.D. and /R.T.O. Besides, the extract of the subject property reflects that the property was described as Devi Jo Than (Charitable), which has been described by the respondents as Evacuee trust property reserved for charitable purposes under the evacuee laws.

3. In the instant case, initially Provisional Transfer Order (PTO) was issued in favor of the father of the petitioner vide order dated 15.10.1959 followed by P. T. D. vide letter dated 03.07.1967, which is a date much before June 1968, and prima facie, validated by the Settlement Authorities; however the Chairman reversed the findings of Settlement Authorities on the analogy that the subject property was not available for transfer being Devi Jo Than (Charitable), under Section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 with further reasoning that under the Act, 1958 there was a separate pool of Evacuee Trust Properties which could not be transferred.

4. To go ahead further it appears that in Section 10(1)(6) of the Evacuee Trust Properties (Management and Disposal) Act, 1975, the condition laid down is that it has been utilized, bond-fide, under the Act, 1958, for transfer against the satisfaction of verified claims. Though the word “Permanent Transfer Deed” has only been mentioned in Section 10(1)(6) and not the word Provisional Transfer Order. The Provisional Transfer Order is issued before the payment is made while the permanent transfer deed is issued after the entire price is paid. In the present case, the P. T. O. was issued after the entire price was allegedly paid, and subsequent PTD was issued in the year 1967.

5. In Section 2(d) of the Evacuee trust Properties (Management and Disposal) Act, 1975, “evacuee trust property” has been defined to mean the evacuee trust properties attached to charitable, religious, or educational trust or institutions or any other properties which form part of the Trust Pool constituted under that Act. Section 7 of that Act provides for the constitution of a Trust Pool consisting inter-alia of all evacuee trust property which immediately before the commencement of that Act formed part of the Trust Pools constituted under the Acts. Under Section 8 thereof if a question arises whether an evacuee property is attached to a charitable, religious, or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court and if he decides that a property is evacuee trust property, he may pass an order canceling the allotment or alienation, as the case may be take possession thereof and assume administrative control management and the maintenance thereof. The provision of the aforementioned Act applies only if the property is admittedly evacuee trust property which presupposes that the owner of the property must have left for India and declared as evacuee property by the Custodian at the relevant time. Under Section 10(1)(6) of the Evacuee Trust Properties (Management and Disposal) Act, 1975, the condition laid down is that it has been utilized, bona fide, for transfer against the satisfaction of verified claims. Section 10 of Act XIII of 1975 intended to provide relief to those claimants to whom Settlement Authorities had transferred evacuee trust properties erroneously in a bona fide manner. A deliberate or willful transfer of evacuee trust property was not intended to be covered by the said provision.

6. It is well-settled law that any order passed by any authority having not jurisdiction is a nullity in the eye of law and can be safely ignored whenever it is being acted upon. Besides, there is no question of limitation on the part of Chairman ETPB in the initiation of the subject proceedings for the simple reason that evacuee properties attached to charitable, religious, or educational trusts were excluded

from the jurisdiction of concerned authorities for transfer to the beneficiaries. In such circumstances, we are of the view that the impugned orders do not suffer from any illegality. On the aforesaid proposition, we are guided by the decisions of the Honorable Supreme Court in the cases of 1990 SCMR 25 Re-District Evacuee Trust Committee vs. Muhammad Umar and others, 1991 SCMR 2006, Re- Qazi Akbar Jan and others vs. The Chairman, District Evacuee Trust Committee, Peshawar and others, 2004 MLD 2033, Re-Muhammad Bashir through Attorney vs. The Islamic Republic of Pakistan through Secretary Ministry of Religious Affairs, Zakat, Usher and Minorities Affairs, Islamabad and 4 others, 2009 SMCR 362, Re-Fayyazuddin Khan vs. Federal Government of Pakistan through Secretary to the Government of Pakistan, Minorities Affairs Division, Islamabad and others, 2009 SCMR 375, Re-Administrator, Muslim Auqaf, Punjab and others vs. Muhammad Mohsin and another and 2016 SCMR 679 Re-Khurshid Ahmed and others vs. Rana Murntaz Ahmed and others.

1. The Honorable Supreme Court in the recent decision has held that to sell or dispose of land managed by ETPB, a resolution has to be passed by the ETPB’s Board which is then to be approved by the Federal Government. Once approval has been accorded by the Federal Government, an officer is designated and authorized by the Chairman in terms of Section 12(2) of the ETPB Act who shall then carry out the sale of disposal of the land/property in the terms laid down by Federal Government and/or through sanctioned Board resolution.

2. In the right of what has been discussed above, the orders of competent authority are based on the extract from the property register card. City Survey/Hyderabad. Besides these are findings of fact not liable to be interfered with in these proceedings under Article 199 of the constitution. We are of the view that the impugned orders do not suffer from any illegality. This Constitutional Petitioner is accordingly dismissed but there will be no order as to costs.

(Y.A.) Petition dismissed

PLJ 2023 Karachi 45

Present: Adnan-ul-Karim Memon, J.

Mst. FARAH NAZ and another--Appellants

versus

PROVINCE OF SINDH through Board of Revenue and 10 others--Respondents

11nd Appeal No. S-29 of 2018, decided on 28.11.2022.

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

----O.VII R. 11--Specific Relief Act, (I of 1877), Ss. 9 & 42--Suit for declaration and permanent injunction--Application for rejection of suit--Accepted--Suit was rejected--Appeal--Dismissed--Non-recording of evidence of appellants--Technical knock out of appellant--More than one prayer in plaint--Two contradictory stances could only be threshed out if Mukhtiarkar concerned and District Officer Revenue are examined by trial Court including any other official well conversant with subject land--It is a trite law that cause of action is a bundle of facts and whether plaint discloses a cause of action is a question of fact that has to be gathered based on averments made in plaint in its entirety by taking those averments to be correct--Plaint discloses some cause of action that requires a determination by Court, mere opinion that possession was not with appellants and they failed to approach in time or appellant may not succeed, cannot be a ground for rejection of plaint--There are more than one prayer as mentioned in plaint, it is settled now that partial rejection is not permissible under law--If with regard to any one prayer jurisdiction of civil Court is barred and with regard to other prayers it is not, plaint cannot be rejected--In instant matter when there are other prayers also rejection of plaint was not justified by civil Court, all two for a below fell in error while rejecting plaint--Record does not show that revenue entry as claimed by appellants has been canceled or extinguished based on Khasra Gardawri--Disputed mutation in favor of a third party in intervening period, if any, is to be thrashed out in evidence by examining Mukhtiarkar concerned and title holder of document--Appeal allowed. [Pp. 52, 53 & 54] A, C, G & H

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

----O.VII R. 11--Non-disclosing of cause of action--When no cause of action is disclosed in plaint, Court will not unnecessarily protract and party should not be unnecessarily harassed in suit--To invoke power, Court has to read plaint whether it discloses cause of action and if it does, then plaint cannot be rejected by Court by exercising power under Order 7 Rule 11 CPC. [P. 52] B

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

----O.VII R. 11--Rejection of plaint--A plaint should not be rejected under Order 7 Rule 11 of Civil Procedure Code at initial stage without proper inquiry--At same time, a Court of Law has enough powers to see that vexatious litigation are not allowed to consume time of Court. [P. 52] D

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

----O.VII R. 11--Cause of action--Allegations made in plaint cannot be gone into at threshold as it is a matter to be tried in civil suit--Even if cause of action pleaded is a false or deliberate falsehood, same cannot be gone into an application under Order 7 Rule 11 CPC.

[P. 53] E

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

----S. 42--Sanctioning of mutation--A mutation is always sanctioned through summary proceedings and to beep record updated and for collection of revenue, such entries are made in relevant Register under Section 42 of Land Revenue Act, 1967. [P. 53] F

Appellant No. 1 is present in person.

Mr. Allah Bachayo Soomro, Additional Advocate General, Sindh.

M/s. Ziauddin & Abdul Aziz Shaikh, Advocate for Respondents 6 to 8.

Date of hearing: 7.11.2022.

Judgment

Through this IInd Appeal, appellants are asking for setting aside the Judgment and Decree dated 12.03.2018 and 14.03.2018 respectively passed by learned 3rd Additional District Judge, Hyderabad dismissing Civil Appeal No. 142 of 2017 (Re-Mst. Farah Naz and another v. Province of Sindh and others) filed against the order doted 20.04.2017 whereby plaint of F.C. Suit No. 311 of 2015 was rejected under Order VII Rule 11 (d), C.P.C., inter alia on the ground that appellants were condemned unheard in violation of Article 10-A of the constitution; that both the learned Courts below failed to appreciate the legal character of the appellants in terms of the order passed by the competent authority under the revenue hierarchy; that both the Courts failed to appreciate the judgment and decree passed by the learned Civil/Family Judge and Vth J.M Hyderabad in favor of mother of appellants namely Mst. Sitara Jabeen in IIIrd Class Suit No. 27 of 2010; that both the Courts below failed to appreciate the factum that the respondents attempted to dispossess the appellants from the suit property and criminal proceedings were initiated arising out of F.I.R. No. 06 of 2015 under Sections 447, 448, 506(2), 427, 509 and 34 P.P.C at police station B-Section Latifabad Hyderabad which was illegally disposed of under ‘B’ Class by declaring the subject property allegedly allotted to satellite town TMA Latifabad Hyderabad; that the learned Courts below failed to appreciate that the matter required evidence, as such, the ingredients of Order VII Rule 11, C.P.C. were not met.

1. Brief facts leading from the instant appeal are that father of the appellants namely Raza Ahmed Rajput was enjoying possession of agricultural land admeasuring 03-28 acres out of Survey No. 226, situated at Deh Guddu Bandar Taluka Latifabad Hyderabad since 1980 and died on 09.07.2009, thereafter appellants inherited the suit land; however, their deceased father before his death moved an application to District Officer Revenue Hyderabad on 26.10.2003 to grant “Khata” that respondents 4 to 8 having evil eyes upon the said property attempted to dispossess the appellants with the support of respondents 2 & 3 hence cause of action accrued to them for filing FC Suit for Declaration and Permanent Injunction.

2. Upon service of summons, Mubhtiarkar Latifabad filed the written statement contending therein that per Entry No. 54 dated 31.01.1985 Survey No. 226 was/is property of Satellite Town. Respondents 6 & 8 filed application under Order VII Rule 11, C.P.C. on the premises that the appellants having no legal character were/are not owners of the property hence the suit was/is not maintainable under Section 42 of Specific Relief Act, 1877; thereafter the appellants filed a counter affidavit and in paragraph-6 stared that their mother filed T.C. Suit No. 27 of 2010 for permanent injunction which was decreed by learned 6th Senior Civil Judge, Hyderabad but failed to state anything in respect of title; however, learned counsel for said respondents apprised the Courts below that land pertains to Government and learned D.D.A by supporting said application also stated that property was/is of Government as far as the point of its possession is concerned, same was/is illegal; however, before learned Trial Court appellants argued that their father was in possession of the subject property and they filed statement containing a copy of “Khasra Gardwari”, and copies of “Dhal” receipts relating to the years 1981 and 2006 as well as application addressed to Revenue Official for issuance of “Khata” in respect of suit property.

3. Learned trial Court after hearing the parties rejected the plaint under Order VII Rule 11(d), C.P.C. vide order dated 20.04.2017. The appellants being aggrieved by and dissatisfied with the order dated 20.04.2017, filed Civil Appeal No. 142 of 2017 which was also dismissed by learned 3rd Additional District Judge Hyderabad on the premises that the suit filed by the appellants was rightly dismissed under Order VII Rule 11, C.P.C. as the appellants had no legal character in terms of section 42 of Specific Relief Act, 1877.

4. Appellant No. 1 who is present in person has reiterated the grounds mentioned in the instant appeal with the narration that the judgment, decree and order passed by respondents 10 & 11 are illegal, unlawful based on erroneous findings of facts hence are not sustainable in the eyes of law; that though on merits appellants is/was having good case to prove but the Courts below did not offer opportunity to lead evidence in respect of their claim as the averments made in the plaint are to be treated as true and correct until refuted through evidence, thus this principle was completely ignored as well as learned Courts below failed to appreciate right and legal character as is/was evident from the available record even then plaint of appellants was rejected and appeal preferred also dismissed without recording evidence; that learned fora below also erred in appreciation of record as the decree of Civil Court was already in favour of mother of appellants wherein their right stood established and same was not challenged by respondents; that the case law cited by the appellants was not even considered; that appellants paid all revenue assessment (Dhal) of Suit land same were received by revenue authorities without raising any question; that Directorate of Survey and Land Record through report dated 5.3.2016 requested some time on the premises that old record was much necessary to peruse from which it would be cleared that how the suit land had been mutated in the name of Satellite Town but same record had not been produced which could be a solid evidence to reach proper decision and resolving the controversy regarding the title of the suit land. She lastly prayed for allowing the instant appeal by setting aside the impugned judgment, decree, and order passed by the Courts below.

5. Learned counsel for respondents 6 to 8 argued that they have no concern with the alleged suit land and they have been erroneously arrayed as party in the proceedings, they prayed for dismissal of the appeal against them.

6. Learned A.A.G has refuted the stance of the appellants with the narration that the record in respect of Survey No. 226 explicitly shows that while rewriting the aforesaid entry of the land was in the name of the satellite Town Department. At this stage, Appellant No. 1 has referred to the order dated 03.11.2011 passed by the District Officer/Collector Hyderabad whereby the competent authority under para-5 of the statement of the condition under the colonization act granted an area of 03-28 acres in favor of appellants and submitted that appellants ought to have been heard by the learned Civil Court to lead evidence, as such, giving shut-up call in beginning was/is not called for as these are the property rights which could be established through evidence which right has been snatched by not allowing the appellants to prove their case before the Trial Court and under the garb of non-availability of title documents the appellants were non-suited which order on the part of learned Trial Court is illegal and without lawful justification under the law and is liable to be set aside. Appellants have relied upon various documents attached with the memo. of appeal and submitted that this appeal is liable to be allowed.

7. I have heard Appellant No. 1 who is present in person, as well as learned counsel representing the private respondents, and learned A.A.G representing Respondents No. 1 & 3 and have also gone through the record available before me.

8. The basic grievance of the appellants is that they filed F.C Suit No. 311/2015 for declaration and permanent injunction before learned II-Senior Civil Judge, Hyderabad, however, their plaint was rejected vide order dated 20.04.2017 on the ground that they were not entitled to claim relief as they had no legal character or legal right to prove the title of the land in terms of Section 42 of Specific Relief Act.

9. Civil Appeal No. 142/2017 preferred by the appellants was, too dismissed on the premise that appellants have no cause of action as they have no title documents of the suit property in their favor. This second appeal has been preferred on the ground that the appellants/plaintiffs were not allowed to prove their case through evidence and they were technically knocked out on the premise that they failed to prove their title documents. The Appellants want their case to be decided on merits on the premise that the Khusra Gardwari and receipt Dhal as well as the judgment passed by the learned VI-Civil Judge Hyderabad in Civil Suit No. 27 of 2010 is in their favor, therefore, they could not be knocked out on the purported plea of non-availability of title documents of the suit land.

10. This Court vide order dated 04.06.2021 appointed the Additional Registrar to inspect the subject land i.e. Survey No. 226 as well as adjoining land who filed a report along with photographs of the subject land to ascertain whether any portion of Survey No. 226 had been occupied or otherwise. The Mukhtiarkar and other officials of the Settlement and Survey Department were directed to assist the Additional Registrar for such a purpose. The inspection Report has been filed by the Additional Registrar on 10.02.2022 and he found the following factual position of the case:

“6. From the inspection of the site, I have observed that Survey No. 226, 218 and adjoining Survey No’s are fully constructed with houses and Commercial activities. So far the alleged contemnor have constructed “Nimra Plaza” and occupied any portion of Survey No. 226 is concerned, the survey was manually conducted; I found no exact point of any survey surrounding Survey No. 226 so I can surely be said that such and such survey starts and ends at the exact place though the officials have got started survey stating that the village Tando Bughio is the starting point of Survey No. 218 but no any official document was produced supporting such version. From further inspection of Survey No. 226, it was impossible to accurately come to the just and proper outcome which enables us to find the exact location of the Survey. However, it is stated that as per manual measurement the subject plaza is situated in Survey No. 218. It is stated that there was a big graveyard consisted about 09.20 acres out of Survey No. 226 and about 0.22 ghuntas from the crea of S. Nos. 218, 219 and 221. Based on the site visit, the officials were directed to prepare as sketch, as such, the map duly signed by Tapedars and Mukhtiarkar, Latifabad was produced.

1. It is pertinent to mention here that as per revenue authorities the subject project including others constructed in the flood zone, as evident from the letter of Assistant Executive Engineer, Phuleli Bund Sub-Division, Hyderabad addressed to the Director Building Control Department (HDA) on 11.04.2014, which is also mentioned in the order dated 04.06.2021 of this Hon’ble Court.

2. Moreover, as I have observed that the entire area except 39 ghuntas is in possession of countless inhabitants who are residing by constructing their houses/flats and beeping in view the ignorance of said officials from the Settlement and Land Survey Department a team consisting of Mubhtiarkar, Taluka Latifabad, Director Settlement and Land Survey Department well acquainted technical persons be constituted with a mandate for demarcation and locating the actual claimed area of the appellants, if this Hon’ble Court deems appropriate.”

3. The appellants claim that the piece of agricultural land admeasuring 3-28 acres out of Survey No. 226 Deh Gudu Badar Tehsi! Latifabad was mutated in favour of their father in the year 1980 and was/is in their possession after the death of their father in 2009 and in the intervening period, appellants moved an application to the office of District Officer/Collector Hyderabad District regarding grant of compensation in lieu of their agricultural land out of Survey No. 226 area 3-28 acres in Deh Gudu Taluba Latifabad Hyderabad, which was allowed vide order dated 03.11.2011.

4. On the contrary, Mukhtiarkar Taluba Latifabad has submitted the report with the narration that according to Entry No. 54 dated 31.10.1985 of V.F-VII (rewriting), the above Survey No. 226 admeasuring 14-02 acres stood entered in favor of Satellite Town Deh Gudu Badar Taluka Latifabad Hyderabad and the appellants have nothing to do with the said property.

5. These two contradictory stances could only be threshed out if Mukhtiarkar concerned and District Officer Revenue/Collector Hyderabad District are examined by the trial Court including any other official well conversant with the subject land.

6. Coming to the core issue of rejection of the plaint under Order VII Rule 11, CPC, clause A deals with the disclosure of the cause of action. The idea undermined in the said provision is that when no cause of action is disclosed in the plaint, the Court will not unnecessarily protract and the party should not be unnecessarily harassed in the suit. To invoke the power, the Court has to read the plaint whether it discloses the cause of action and if it does, then the plaint cannot be rejected by the Court by exercising power under Order VII Rule 11, CPC.

7. It is a trite law that the cause of action is a bundle of facts and whether the plaint discloses a cause of action is a question of fact that has to be gathered based on the averments made in the plaint in its entirety by taking those averments to be correct. So long as the plaint discloses some cause of action that requires a determination by the Court, the mere opinion that possession was not with the appellants and they failed to approach in time or the appellant/plaintiff may not succeed, cannot be a ground for rejection of the plaint.

8. Primarily a plaint should not be rejected under Order VII Rule 11 of the Civil Procedure Code at the initial stage without proper inquiry. At the same time, a Court of Law has enough powers to see that vexatious litigation are not allowed to consume the time of the Court. However, a Plaint should be rejected as per Order VII Rule 11 of the Civil Procedure Code where it does not disclose a cause of action and not where there is a cause of action.

9. A cause of action means every fact, which if traversed, would be necessary for the plaintiff to prove to support his right to a judgment of the Court. In other words, it is a bundle of facts that are taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defense which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff, thus a Plaint would be read as a whole and the merits of the case are not to be considered at this stage.

10. From the submissions made by both sides, this Court is of the considered opinion that the allegations made in the plaint cannot be gone into at the threshold as it is a matter to be tried in the civil suit. Even if the cause of action pleaded is a false or deliberate falsehood, the same cannot be gone into an application under Order VII Rule 11, CPC.

11. In view of the above, all this further leads me to draw the inference that a mutation is always sanctioned through summary proceedings and to keep the record updated and for collection of revenue, such entries are made in the relevant Register under Section 42 of Land Revenue Act, 1967. It has no presumption of correctness before its incorporation in the record of rights. It is also settled law that entries in mutation are admissible in evidence but the same is required to be proved independently by the persons relying upon it through affirmative evidence. An oral transaction reflected therein does not necessarily establish title in favor of the beneficiary. A mutation cannot by itself be considered a document of title and may have been attested as an acknowledgment of past transactions.

12. Furthermore, there are more than one prayer as mentioned in the plaint, it is settled now that partial rejection is not permissible under the law. Further, if with regard to any one prayer the jurisdiction of the civil Court is barred and with regard to other prayers it is not, the plaint cannot fee rejected. In the instant matter when there are other prayers also the rejection of plaint was not justified by the civil Court, therefore, all two fora below fell in error while rejecting the plaint.

13. Since the Appellants have to substantiate their case through evidence thus the Courts below drew the wrong conclusions by non-suiting the appellants on the purported pleas for the simple reason that the appellants prayed for a declaration that they are in lawful possession of the suit property and the letter dated 23.01.2015 about allotment of the subject land in favor of Satellite Town was illegal and had fraudulently been entered in the revenue record.

14. Primarily, each entry in the revenue record gives a fresh cause of action to an aggrieved person, and adverse entries in the revenue record even if allowed to remain unchallenged do not have the effect of extinguishing the rights of a party against whom such entries

had been made. Even otherwise, the record does not show that revenue entry as claimed by the appellants has been canceled or extinguished based on Khusra Gardwari. Besides, the disputed mutation in favor of a third party in the intervening period, if any, is to be thrashed out in evidence by examining the Mukhtiarkar concerned and the title holder of the document.

1. In view of the above facts and circumstances of the case, I deem it appropriate to remand the matter to the trial Court to examine the appellants/plaintiffs, as well as Mukhtiarkar concerned and District Officer Revenue/Collector Hyderabad District and/or any other aggrieved person claiming ownership of the subject property by making him as a party in the proceedings and decide the case afresh on merits after allowing the parties to lead evidence within one month, consequently the judgment and decree dated 12.03.2018 passed by the learned Ill-Additional District judge Hyderabad Civil Appeal No. 142 of 2017 and order dated 20.04.2017 passed by the learned Second Senior Civil judge Hyderabad in F.C Suit No. 311 of 2015 ate set-aside.

2. The appeal is allowed in the above terms with no order as to costs.

(Y.A.) Appeal allowed

PLJ 2023 Karachi 54 (DB)

Present: Mahmood A. Khan and Adnan-ul-Karim Memon, JJ.

MOULA DINO and others--Petitioners

versus

METLOOB HUSSAIN and others--Respondents

C.P. No. D-686 of 1995, decided on 14.9.2022.

Land Reforms Ordinance, 1977 (II of 1977)--

----S. 29--Land Reforms Regulations, 1972 (MLR 115), Regln. 25(3)(d)--Application for pre-emption and respondent No. 1 was declared pre-emptor--Allowed--Challenge to--Writ petition--Dismissed due to availability of alternate remedy--Appeal before competent fouram--Dismissed being time-barred--Revision petition--Dismissed--Purchasing of subject land by petitioners--Sale-deed was duly mutated in record of rights since then petitioners were cultivating land--Respondent No. 1 was neither Hari nor resident of deh--Prima-facie, sale transaction had taken place on 13.05.1980 and there is nothing on record to prove that Respondent No. 1 was cultivating suit land as tenant on that day; even after death of Respondent No. 1, right to claim pre-emption, would not survive pre-emptor under law; Honorable supreme Court in Ghulam Nabi’s case; and Muhammad Vounas v. Khushal (1989 SCMR 69) had declared that right of pre-emption was not heritable and got extinguished with death of pre-emptor--Private respondent to succeed was required to establish by unimpeachable evidence that he was in possession of suit land at time of transaction and used to pay rent--Purported tenancy of private respondent has not been established by competent Court of law--Merely saying of Assistant and/or Deputy Commissioner was/is not sufficient to establish such tenancy right to claim pre-emption--Private respondent could not be considered as tenant within definition of tenant for simple reason that he has no right title in his favor of subject land as such, impugned decisions of revenue hierarchy are erroneous and nullity in eyes of law, thus are liable to be set-aside--Sale Deed of petitioners as discussed has not been called into question by private respondent before competent Court of law; vires of said document could not be assailed before Revenue hierarchy and Rehabilitation Authorities--Petition allowed. [Pp. 59, 60, 60 & 61] C, D, E & F

1989 SCMR 69, PLD 1990 SC 99 and 1989 SCMR 543.

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

----S. 4(26)--Tenant--‘Tenant’ means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent to that other person, and includes predecessors and successors-in-interest of such person, but does not include: (a) mortgagee of rights of land ownership or. (b) a person to whom a holding has been transferred, or an estate or holding has been let in from, under provisions of this Act, for recovery of an arrears of Land Revenue or a sum recoverable as such an arrear. (c) a person who tabes from Government land of unoccupied land for purpose of sub-lettings it--Similarly, I tenancy means a parcel of land held by a tenant under one set of conditions and this has been defined under section 4(27) of Land Revenue Act. [Pp. 58 & 59] A

Land Reforms Regulations, 1972, (MLR 115)--

----Para, 25, sub-para (3)(d)--Attributes of tenant--No doubt first right in respect of land comprising tenancy of a tenant was conferred under sub-para (3) (d) of para 25 of MLR 115, but above-stated clause prescribes three attributes of tenant; firstly, that he shall hold land; that he shall hold, it under another person/landlord, and thirdly, that he is liable to pay rent for use and occupation of it to such a person--All these three attributes concur to creating legal relationship between landlord and tenant. [P. 59] B

Mr. Parkash Kumar, Advocate for Petitioners.

Mr. Muhammad Arshad Pathan, Advocate for Respondent No. 1.

Mr. Bashir Ahmed Almani & Ms. Shamim Mughal, Assistant Attorney Generals for Respondents No. 2 & 3.

Mr. Allah Bachayo Soomro, Addl: A.G Sindh for Respondents No. 4 & 5.

Date of hearing: 6.9.2022.

Order

Adnan-ul-Karim Memon, J.--Petitioners have impugned the order dated 16.08.1995 passed by Federal (judicial) Board of Revenue Sindh/Respondent No. 3, whereby their revision application, preferred against the order dated 18.05.1993 passed by Commissioner Hyderabad/Respondent No. 4 stood dismissed.

1. Mr. Parkash Kumar learned counsel for the petitioners has submitted that Respondent No. 2 has the jurisdiction to entertain the revision application under Paragraph 29 of the Land Reforms Ordinance; as such he has committed illegality by not entertaining the Revision Application; that Respondent No. 5 had no jurisdiction to entertain and allow pre-emption application based on the order dated 20.07.1980 passed in tenancy matter, in which petitioners were not a party. He pointed out that the findings of the revenue officers in the present case are erroneous without any evidence available on record, thus liable to be discarded. Hence, the instant petition may be allowed and the impugned orders of the Revenue officers may be set-aside; that Respondent No. 4 illegally dismissed the appeal without going into the merits of the case and without verifying the legality and propriety of the order; that the order passed by Respondent No. 5 was void ab-initio, as such there was no question of limitation, even otherwise delay was explained, hence the appeal was not liable to be dismissed; that the official respondents have not decided the case of the petitioners on merits rather dismissed it on technicalities. He emphasized that law always demands decisions on merits rather than on technicalities.

2. Mr. Muhammad Arshad S. Pathan advocate, representing Respondent No. 1, while supporting the impugned orders has contended that petitioner No. 3 was the owner of subject land and Respondent No. 1 was her Hari at that time; however, Petitioners No. 1 & 2 being big Zamindars of the area made clash with the Haris of Petitioner No. 3 and behind the door filed false application under Tenancy Act before Mukhtiarkar/Tenancy Tribunal Tando Adam and obtained the order dated 06.05.1979; however, the order passed by Assistant Commissioner, setting aside the order of Mukhtiarkar, has deliberately not been annexed by the petitioners with the present petition. He next contended that upon filing of proceedings under Section 25 of the Land Reforms Act, the Deputy Commissioner had passed the order, whereby he declared Respondent No. 1 as pre-emptor, but the said order was not challenged by the petitioners before the competent forum, as required by Land Reforms Act, rather challenged it in C.P No. 844 of 1981, which was dismissed. He further contended that the order passed by this Court in C.P No. 844 of 1981 provides no leniency or permission to petitioners to file any proceedings; however, after the dismissal of the above petition, petitioners filed a timed barred appeal before the Commissioner in the year 1992, challenging the order dated 24.08.1981, which has rightly been dismissed by the Commissioner. He also contended that in the third round of litigation petitioners filed present petition and had obtained stay order and are enjoying the possession of the subject land under the cover of said stay; however, during pendency of the present petition Respondent No. 1 expired on 4.2.2021 and thereafter petitioners have taken the plea of abatement., which is not available to them. He added that in a judgment reported in PLD 1986 SC 360 there is no discussion regarding abatement but the crucial date has been discussed where from the Martial Law Regulation 115 were deemed to be not applicable being repugnant to Injunction of Islam with effect from specified date and by such means the very judgment also does not affect the status of Respondent No. 1. He also added that tenant’s rights under para-25(4) cannot be taken away by giving retrospective effect to Hon’ble Supreme Court’s judgment before its operative date viz: 31.07.1986, which has been held in the subsequent case of Hon’ble High Court as well as Hon’ble Supreme Court (NLR 1987 Rev. Abbottabad 61 & NLR 1987 SCJ 474). He prayed for dismissal of the petition. He also placed reliance on NLR 1986 SCJ 449 and 1992 CLC 571; since Respondent No. 1 has been successful under the hierarchy of Revenue and Rehabilitation Authorities/Land Commission, therefore their decision on the subject land is final and cannot be called into question under Paragraph 19 and 26 of the Land Reforms Regulation, 1972 which, explicitly provide that the decision of Government shall not be called in question before any Court, including the Honorable Supreme Court and this Court, on any ground whatsoever. Learned Counsel concluded by submitting that under Regulation 115 a tenant shall not be ejected from his tenancy unless it is established in Revenue Court. He prayed for dismissal of the instant petition.

3. We have heard learned counsel for the parties and perused the material available on record as well as case-law cited at the bar.

4. The questions involved in the present proceedings are whether the petitioners are the owner of Survey Bearing No. 199 admeasuring 8-06 acres situated in Deh Belaro Taluka Tando Adam District Sanghar by way of registered Sale Deed dated 13.05.1980; And whether the respondent was/is Hari/tenant of Mst. Khursheed Khatoon-Petitioner No. 3 at the relevant time, in Khasra Girdwari register, for the subject land and was/is entitled to the right of pre-emption under 25(3)(d) MLR 115; and in occupation of the subject land in terms of orders passed by Revenue hierarchy under the Tenancy-Act.

5. To appreciate the aforesaid propositions, let us have a glance at the factual aspect of the case. The parties have informed that Respondent No. 1 (since died), preferred an application before Deputy Commissioner Sanghar to pre-empt Survey Bearing No. 199 admeasuring 8-06 acres situated in Deh Belaro Taluka Tando Adam District Sanghar (subject land). Respondent-Deputy Commissioner allowed the said application vide order dated 24.08.1981, which was challenged by the petitioners through Constitutional Petition No. 844 of 1981 before this Court; however, said petition was dismissed on 16.03.1989 on the ground of availability of alternate remedy of appeal before the competent forum. Thereafter petitioners preferred an appeal before Commissioner Hyderabad/Respondent No. 4, however, the same was dismissed being time-barred vide order dated 18.05.1993. The said order was challenged by the petitioners in revision before Federal (Judicial) Board of Revenue Sindh Hyderabad/Respondent No. 3, which too was dismissed vide order dated 16.08.1995, then petitioners preferred another revision application before Federal Land Commission Islamabad/Respondent No. 2; however, the same was held to be not maintainable.

6. It is admitted position that there is no definition of tenant given in para 25 of MLR 115. The definition of the tenant as contemplated in Section 4(26) of the Land Revenue Act, 1967 is as under:

“(26) tenant’ means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent to that other person, and includes the predecessors and successors-in-interest of such person, but does not include: (a) mortgagee of the rights of land ownership or. (b) a person to whom a holding has been transferred, or an estate or holding has been let in from, under the provisions of this Act, for the recovery of an arrears of Land Revenue or a sum recoverable as such an arrear. (c) a person who tabes from the Government land of unoccupied land for the purpose of sub-lettings it. Similarly, I tenancy means a parcel of land held by a tenant under one set of conditions and this has been defined under Section 4(27) of Land Revenue Act.”

1. From the foregoing narration of facts, the circumstances of the case, and the material available on record, this Court has to consider whether the private respondent was in occupation of the subject land as tenant and so possessed better right qua the petitioners in terms of registered sale Deed dated 13.05.1980. No doubt first right in respect of the land comprising tenancy of a tenant was conferred under sub-para (3) (d) of para 25 of the MLR 115, but the above-stated clause prescribes three attributes of tenant; firstly, that he shall hold land; that he shall hold, it under another person/landlord, and thirdly, that he is liable to pay rent for the use and occupation of it to such a person. All these three attributes concur to creating the legal relationship between the landlord and tenant.

2. On the aforesaid proposition, we have noticed that petitioners 1 and 2 had purchased the subject land from petitioner No. 3, through registered Sale Deed dated 13.05.1980, which was duly mutated in Record of Rights, and during the hearing, we have been informed that, since then Petitioners 1 & 2 are cultivating the subject land and are also paying the land revenue. Per counsel for petitioners Respondent No. 1 was/is neither Hari nor a resident of Deh Belaro; however, he applied to pre-empt the subject land, though he was well aware of the factum of sale-deed of the subject land; besides in presence of sale-deed the revenue officer under the revenue hierarchy was not competent to pass the order in favor of tenant, under the revenue law and/or under the Land Reforms Regulation, 1972; however, he succeeded to obtain favorable and ex-parte order from Deputy Commissioner Sanghar, which is violative of the principles of audi alteram partem and natural justice. Prima-facie, the sale transaction had taken place on 13.05.1980 and there is nothing on record to prove that Respondent No. 1 was cultivating the suit land as tenant on that day; even after the death of Respondent No. 1, the right to claim pre-emption, would not survive the pre-emptor under the law; further the Honorable Supreme Court in Ghulam Nabi’s case; and Muhammad Younas v. Khushal (1989 SCMR 69) had declared that the right of pre-emption was not heritable and got extinguished with the death of pre-emptor.

3. Record does not reflect that the private respondent owned the suit land and his tenancy right existed at the relevant time for the simple reason that the petitioners had already purchased the subject land through registered sale-deed and is still in possession. Looking from this angle, it can safely be said that the private respondent to succeed was required to establish by unimpeachable evidence that he was in possession of suit land at the time of aforesaid transaction and used to pay rent. Besides, the purported tenancy of private respondent has not been established by the competent Court of law. Merely saying of Assistant and/or Deputy Commissioner was/is not sufficient to establish such tenancy right to claim pre-emption. However, the earlier decision of this Court in C.P No. 844 of 1981 will not be construed in stricto-senso as constructive res-judicata, for the reason that the petitioners were left at liberty to avail the alternate remedy. An excerpt thereof is reproduced as under:-

“The relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can only be granted if a High Court is satisfied that no other adequate remedy is provided by law. To the present _ pointed out hereinabove the adequate remedy was available to the petitioners by way of filing appeal and revision before the authorities specified in the law, itself, and they having failed to avail of the same cannot approach this Court for remedy under the said Article.

It may be worthwhile to point out here that the right of pre-emption granted to tenants of agricultural land by the Land Reforms Regulations, 1972 was declared to be against the injunctions of Islam by the Judgment of the Shariat Appellate Bench of the Supreme Court of Pakistan reported as Government of N.W.F.P, thorugh Secretary Law Department versus Malik Saeed Kamal Shah in PLD 1986 Supreme Court 360 and has become non-existent. This decision can also not help the petitioners as the decision in favour of respondent Matloob Hussain had long before become final and operative as explained here-in-above.

In view of above, we had by our short order, dismissed the petition, while the above are the reasons for the same.

1. In this view of the matter, the private respondent could not be considered as tenant within the above definition of tenant for the simple reason that he has no right title in his favor of the subject land as such, the impugned decisions of revenue hierarchy are erroneous

and nullity in the eyes of law, thus are liable to be set-aside. On the aforesaid proposition, we are fortified with the decision of Honorable Supreme Court in the case of Sher Muhammad v. Ghulam and others 1989 SCMR 543.

1. We have observed that the Sale Deed of petitioners as discussed supra has not been called into question by the private respondent before the competent Court of law; however, the vires of said document could not be assailed before the Revenue hierarchy and Rehabilitation/Land Commission Authorities. Besides the decision of Hon’ble Supreme Court in the case of Qazalbash Waqf v. Chief Land Commissioner reported in PLD 1990 SC 99 is clear in its terms and needs no further discussion. As pointed out in the aforesaid judgment of Qazalbash Waqf supra, the declaration given therein was/is to take effect on 23.3.1990, and such provisions of the Regulation which were self-executory were not to be in any manner affected thereby. However, the aforesaid decision shall not affect those cases in which any decisive step has been or was/is taken in the ordinary course at any stage of proceedings, in implementation of the provisions which would cease to have effect as a result of the Court order, before the date to be fixed therein.

2. For the aforesaid facts and reasons, we have concluded that there is merit in this petition which is allowed; and, subsequent proceedings, adversely affecting their rights, will not come in their way.

(Y.A.) Petition allowed

PLJ 2023 Karachi 61 (DB)

Present: Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ.

MUSHTAQUE and others--Petitioners

versus

FEDERAL GOVERNMENT OF PAKISTAN and others--Respondents

C.P. No D-362, 363 & 427 of 2006, C.P. No. D-53 to D-59, D-61, D-85, D-89, D-134, D-172 of 2008 and D-426 of 2006, decided on 6.10.2022.

Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

----S. 10--Displaced Persons (Compensation and Rehabilitation) Act, (XLVII of 1958), S. 3--Transfer and change of khata--Sale-deeds in favour of petitioners--Issuance of PTD--Cancellation of PTD--Evacuee trust property--Suit property was declared as “panchayat of Hindu/Kalals Charitable Trust”--Reservation for charitable purpose--Challenge to--Under Act, 1958 there was a separate pool of Evacuee Trust Properties which could not be transferred; and, evacuee trust properties do not form part of compensation pool; and, nothing could be done in respect of these properties, without obtaining prior approval of Government which, it is alleged was not detained in present case--‘Hindu Panchayat’ denote, it was not ownership of any particular individual Hindu but was owned by entire Hindu community, and Custodian Department had to take control of same for its proper management--It is well-settled law that any order passed by any authority having no jurisdiction is a nullity in eye of law and can be safely ignored whenever it is being acted upon--There is no question of limitation on part of Chairman ETPB in initiation of subject proceedings for simple reason that evacuee properties attached to charitable, religious, or educational trusts were excluded from jurisdiction of concerned authorities for transfer to beneficiaries--Impugned orders do not suffer from any illegality--Petitions dismissed. [Pp. 66 & 67] B, C & D

1991 SCMR 2006, 2004 MLD 2033, 2009 SCMR 362, 2009 SCMR 375 & 2016 SCMR 679 ref.

Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

----S. 10(1)(b)--Conditions for satisfaction of verified claims--There are two conditions which are required to be satisfied--Firstly P.T.D. must have been issued before June 1968, and secondly, transfer by Settlement Authorities must be bonafide, and question, whether such transfer is bona fide or not is to be decided by Chairman ETPB. [P. 66] A

Mr. Muhammad Arshad S. Pathan, Advocate for Petitioners (in C.P. No. D-172 of 2008).

No one present for Petitioner in rest of petitions, despite specific date/intimation notice.

Mr. Ziauddin Shaikh, Advocate for Respondent-Evacuee Trust Property Board.

Mr.Ghulam Abbas Sangi, Asstt. Attorney General of Pakistan for official Respondents No. 1 & 2.

Date of hearing: 15.9.2022.

Order

Adnan-ul-Karim Memon, J.--In the captioned constitutional petitions, a common question of law is involved; therefore, all are being taken up and heard together for disposal through this common Order.

1. All the petitioners claim ownership of the subject premises i.e (i) C.S.G/4029 admeausuring 448.8 sq. yards, (ii) C.S G/2834, 2835, 2836 admeasuring 193.3 sq. yards, (iii) C.S No. G/3436 admasuring 209.3 sq. yards and (iv) C.S No. G/3433/1 admeasuring 194.3 sq. yards all situated at Phuleli Preetabad Hyderabad (hereinafter referred to as Suit Property in C.Ps No. D-362, 363, 426 & 427 of 2006) as well as property bearing (i) C.S No. B-104 admeasuring 37.5 sq. yards, (ii) C.S No. B-95/1 admeasuring 17.0 sq. yards & B-95/2 admasuring 16.8 sq. yards, (iii) C.S No. B-105 admeasuring No. 37.6 sq yards, (iv) C.S No. B-103 admeausimg 12.8 sq. yards, (v) C.S No. B-93 admeasuring 18.1 sq. yards, (vi) C.S No. B-106 admeasuring 37.7 sq. yards, (vii) C.S No. B-101 admeasuring 34.8 sq. yards, (viii) C.S No. B-94 admeasuring 32.02 sq. yards, (ix) C.S No. B-102 admeasuring 37.3 sq. yards, (x) C.S No. B-93 admeasuring 18.1 sq. yards, (xi) C.S No. B-98 admeasuring 299 sq. feet & (xii) C.S No. B-108 admeasuring 36.7 sq. yards all situated at Station Road Matli Distrit Badin (hereince after refererd to as Suit Proeperty in C.Ps No. D-53, 54, 55, 56, 57, 58, 59, 61, 85, 89, 134 & 172 of 2008) and denied the status of suit property as Evacuee Trust Property; however, their stance was discarded by the Chairman Evacuee Trust Property Board Lahore (‘ETPB’) vide impugned orders disclosed in the memo. of petitions, on the analogy that in the City Survey Record disclosed the suit properties as a Evacuee Trust Property. The petitioners assailed the vires of orders of Chairman ETPB before Secretary concerned, who was pleased to maintain the orders passed by Chairman ETPB.

2. Mr. Muhammad Arshad Pathan advocate for some of the petitioners, argued the matter at length, whereas, the rest of the counsel/parties in person, are called absent, despite the specific date being given in presence of their counsel, as the matter was partly heard on the previous date(s). However, we have gone through their pleadings, their arguments are that the impugned orders passed by learned Chairman, ETPB Lahore, are opposed to facts and law which tender the entire orders as unjustified; that the orders passed by the Secretary, Government of Pakistan, Ministry of Minority Camp at Karachi, is also against the law, justice and equity because he has erred to confirm the wrong orders passed by the Chairman ETPB, Lahore; that respondents 2 & 3 have illegally supported their department by causing loss to the petitioners, who are actual owners of the suit properties; that both the above mentioned authorities have failed to appreciate the documentary evidence showing that the suit property had been subjected to subsequent transfer and change of Khatta on the basis of Registered Sale Deeds and other authentic documents; that City Survey Extract in respect of suit properties do not confer entitlement for property to any person unless it is based and supported by authentic and registered deed; that the observation contained in the impugned orders regarding the period of Limitation as 50 years yet no provision has been quoted in the orders; that respondents have wrongly held “Punchayat of Hindu/Kalala” as Charitable Property, as respondent-ETPB has not produced any document to prove “Panchayat of Hindu/Kalals” as Charitable Trust; that the above mentioned authorities failed to appreciate the purpose, character and nature of above mentioned properties although the alleged Trust, mentioned as Hindu/Kala Punchayat was/is neither based on any Trust Deed, nor the creator of Trust or the Trustees of the said Punchayat are in existence in Pakistan; that the orders of authorities are in violation of law of Trust and the law concerning the Evacuee Trust Properties and Settlement law, otherwise in case the Property is found as Trust Property then also the petitioners are entitled for getting their P.T.D validated as the Chairman and Secretary of concerned department are not empowered to cancel the P.T.D on any ground; that Honourable Supreme Court of Pakistan has observed in the reported case in 1970 SCMR 503 that the property acquired by Punchayat did not by itself prove that Punchayat was a religious or charitable institutions or that any property acquired by the punchayat was a trust property. All the petitioners, through their pleadings, prayed for setting aside impugned orders, by saying that their proprietary rights may not be disturbed.

3. Mr. Zainuddin Shaikh, learned counsel representing respondent-ETPB, has opposed the petitions with the assertion that there is no merit in the contentions of petitioners in connection with the entries in the Record-of-Rights if any, which have been made based on allotment made under the Rehabilitation and Settlement Laws and which orders are a nullity in the eyes of law by purportedly exercising jurisdiction by the Settlement Department that cannot be done which is prohibited by law to dispose of the evacuee property under the garb of Rehabilitation and Settlement Laws. He further submitted that the purported deeds in question if any were executed incompetently and were in violation of the relevant ETPB laws and rules. He further contended that no approval was ever accorded to the transfer by the Federal Government and that the entire process was initiated which had no lawful authority. Learned counsel further submitted that the trust properties are charitable and the same are evacuee trust properties and the entry in the record of rights of the above-said property is sufficient proof to establish the nature of property as evacuee trust, which cannot be transferred to any person. He lastly submitted that the orders passed by Chairman ETPB and Secretary concerned are within the parameters of the law, thus no interference is required by this Court in Constitutional Petitions. In support of his arguments, he relied upon the cases of 1990 SCMR 25 Re-District Evacuee Trust Committee vs. Muhammad Umar and others, 1991 SCMR 2006, Re-Qazi Akbar Jan and others vs. The Chairman, District Evacuee Trust Committee, Peshawar and others, 2004 MLD 2033, Re-Muhammad Bashir through Attorney vs. The Islamic Republic of Pakistan through Secretary Ministry of Religious Affairs, Zakat, Usher and Minorities Affairs, Islamabad and 4 others, 2009 SCMR 362, Re-Fayyazuddin Khan vs. Federal Government of Pakistan through Secretary to the Government of Pakistan, Minorities Affairs Division, Islamabad and others, 2009 SCMR 375, Re-Administrator, Muslim Auqaf Punjab and others vs. Muhammad Mohsin and another and 2016 SCMR 679 Re-Khurshid Ahmed and others vs. Rana Mumtaz Ahmed and others.

4. Mr. Ghulam Abbas Sangi learned Assistant Attorney General has also supported the impugned orders passed by the Secretary, Government of Pakistan, Ministry of Minorities (Minorities Affairs Division) Camp at Karachi. He further submitted that the Displaced Persons (Compensation and Rehabilitation) Act (No. XXVIII) 1958 contemplated Compensation Pool as well as a Trust Pool. While the evacuee properties went to the Trust Pool and the Settlement Authorities could only transfer properties out of Compensation Pool and not the Trust Pool; that disposal of the evacuee property was not contemplated by Section 10 of Evacuee Trust Properties (Management and Disposal) Act (No. XIII), 1975. He lastly prayed for dismissal of the petitions in terms of the ratio of latest decision of the Honourable Supreme Court in the Trust property case.

5. We have heard Mr. Muhammad Arshad Pathan learned counsel for some of the petitioners as well as learned AAG and have gone through the pleadings of remaining petitioners; and, perused the available record, with the assistance of the parties present in Court.

6. The questions involved in the present petitions are whether the transfer of the suit properties in favor of petitioners could be canceled and treated as being Hindu/Kallal Panchayat, and not covered by Section 10 of The Evacuee Trust Properties (Management and Disposal) Act, 1975; and, whether the suit Properties were available for disposal in terms of Section 3 of Displaced Persons (Compensation and Rehabilitation) Act, 1958; and whether the extract from the Record of Rights or City Survey Hyderabad and District Badin show the subject properties being an Evacuee Property and reserved for a charitable purpose; and, could be disposed of by way of sale and purchase; and/transfer by the Deputy Settlement Commissioner in terms of Displaced Persons (Compensation and Rehabilitation) Act (No. XXVIII) 1958 and/or subsequent Act, 1975, repealing the Act, 1958.

7. To appreciate the aforesaid propositions, it is expedient to glance over Section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, which reads as under:-

“(I) An immovable evacuee trust property--

(a) if situated in a rural area and utilized bona fide under any Act prior to June 1964, for allotment against the satisfaction of verified claims; and

(b) if situated in an urban area and utilized bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued before June 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool.”

1. It appears from the aforesaid Section 10 (1) (b) of the Act, 1975, that there are two conditions which were/are required to be satisfied. Firstly the P.T. D. must have been issued before June 1968, and secondly, the transfer by Settlement Authorities must be bonafide, and the question, whether such transfer is bona fide or not is to be decided by the Chairman ETPB.

2. Prima facie, the subject properties were validated by Settlement Authorities under the repealed law; however the Chairman reversed the findings of Settlement Authorities on the analogy that the subject property was not available for transfer being Hindu/Kallal Panchayat, under Section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 with further reasoning that under the Act, 1958 there was a separate pool of Evacuee Trust Properties which could not be transferred; and, evacuee trust properties do not form part of compensation pool; and, nothing could be done in respect of these properties, without obtaining the prior approval of Government which, it is alleged, was not obtained in the present case.

(Sic) ‘Hindu Panchayat’ denote, it was not the ownership of any particular individual Hindu but was owned by the entire Hindu

community, and the Custodian Department had to take control of the same for its proper management, an except whereof is reproduced:

“In the circumstances, the disputed property was not evacuee property and could not be legally transferred to claimants after the enforcement of settlement laws and the allotment thereof by the Settlement authorities vide orders, dated 12-12-1959 and confirmed by Order No. 288, dated 12-4-1962 are coram non judice, without lawful authority and of no legal effect. The subsequent transfers made by the allottees are resultantly, illegal and not binding on the appellant.”

1. It is well-settled law that any order passed by any authority having no jurisdiction is a nullity in the eye of law and can be safely ignored whenever it is being acted upon. Besides, there is no question of limitation on the part of Chairman ETPB in the initiation of the subject proceedings for the simple reason that evacuee properties attached to charitable, religious, or educational trusts were excluded from the jurisdiction of concerned authorities for transfer to the beneficiaries. In such circumstances, we are of the view that the impugned orders do not suffer from any illegality.

2. In the light of what has been discussed above, the orders of competent authority are based on the extract from the property register card, City Survey. Besides these are findings of fact not liable to interference under Article 199 of the Constitution.

3. These Constitutional Petitions are accordingly dismissed but with no order as to costs.

(Y.A.) Petition dismissed

PLJ 2023 Karachi 67 (DB)

Present: Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ.

LAZAR--Petitioner

versus

DIRECTOR GENERAL-HQ PAKISTAN CIVIL AVIATION AUTHORITY and 2 others--Respondents

Const. P. No. D-1759 of 2022, decided on 24.1.2023.

Civil Aviation Authority (Efficiency & Discipline) Regulations, 2014--

----Regln. 7(b)(1)(d)--Show-cause notice--Allegations of breach of discipline & misconduct--Dismissal from service--Departmental appeal--Rejected--Maintainability--Disciplinary proceedings--Constitution of Board of inquiry--Fake employment--Opportunity of personal hearing--Maintainability--Petitioner was charged with breach of discipline, misconduct, corruption--Acting in a manner prejudicial to interest of CAA, and committing an offense, as he was found to be main culprit who obtained an amount of PKR 0.5 Million from innocent citizens as bribe money for providing them employment in CAA, as identified by Board of Inquiry in its report--Competent authority was convinced that petitioner was one of culprits of gang who had trapped innocent citizens and obtained money from them for providing them fake employment in CAA and found him involved in tarnishing image of authority and-caused embarrassment as well, petitioner had been awarded major penalty of “Dismissal From service--Primarily, petitioner has been granted ample time and opportunity to prove his innocence but petitioner failed to do so--We are not inclined to substitute our findings in place of findings of competent authority of CAA, as such disputed questions could not be threshed out under Article 199 of Constitution--Petition dismissed. [P. 71] A, B, C & D

2022 SCMR 1256 ref.

Mr. Qamar Iqbal, Advocate for Petitioner.

Mr. Sanaullah Noor Ghauri, Advocate for Respondents.

Date of hearing: 24.1.2023.

Order

Through the captioned petition, the petitioner has assailed the legality of the appellate order dated 11.2.2022 passed by respondent Civil Aviation Authority (CAA) and the order of Dismissal from Service dated 16.08.2021, passed under Para 7(B)(1)(d) of Civil Aviation Authority (Efficiency and Discipline) Regulations-2014 (Revised Version-2010), was maintained, an excerpt whereof is as under:

“1. Reference Show-Cause Notice of even number dated 26th July, 2021, your reply dated 04th August and Personal Hearing granted to you on 13th August, 2021.

1. The undersigned being Competent Authority has pursued all relevant records, along with your submissions during the course of disciplinary proceedings and personal hearing, whereby facts and evidences prove your involvement as one of the main culprit in fake employment of commoner, Mr. Siraj Ali Bangash and others in CAA, after taking bribe money of more than PKR 0.5 Million from the innocent citizens. Your referred act is a grave offence through which you have tarnished the image of this reputable Authority and has also caused embarrassment to this prestigious institution. Hence, the charges of corruption, misconduct and acting in a manner prejudicial to the Interest of Authority have been proved beyond any iota of doubt.

2. Therefore, in exercise of the power conferred upon the undersigned and after adherence to the laid down rules you are awarded major penalty of “Dismissal from Service” with immediate effect under Para 7(B)(1)(d) of Civil Aviation Authority (Efficiency and Discipline) Regulations, 2014 (Revised Version-2010).”

3. Petitioner claims that he has served as Staff (SG-02) in Civil Aviation Authority, Jinnah International Airport (JIAP) at Karachi and had been doing his job perfectly however, during his tenure of service, he was served with show-cause notice dated 26.07.2021 with the allegations of breach of discipline along with others charges of misconduct, which were denied by him. Per the petitiorter, he was dismissed from service vide office order dated 16.08.2021 without assigning any cogent reason, thereafter, he preferred department appeal, which was too rejectedvide appellate order dated 11.2.2022 as discussed supra.

4. The main argument advanced on behalf of the petitioner is that the impugned order of dismissal from the service of the petitioner was made not in accordance with the terms and conditions of the service of the petitioner, but was made by way of punishment. An inquiry was made as to the character of the petitioner into the allegation that he facilitated someone for the job by obtaining a bribe, without giving the petitioner any opportunity of hearing in the inquiry and without giving him any opportunity to cross-examine the witnesses and the impugned order was made after the completion of the preliminary inquiry on the ground of his misconduct which cast a stigma on his service career. The order in question is, therefore, not sustainable under the law and it is made by way of punishment, the ground being his misconduct as found based on the inquiry of certain allegations behind his back. Learned counsel for the petitioner submitted that issuing a show-cause notice to the petitioner in these circumstances was malafide on the part of Respondent No. 3 who did not consider the fact of the matter and issued Impugned Order Dated 16-08-2021, by dismissing the Petitioner, without any valid cause, which violates the Petitioner’s fundamental and lawful rights to do the job. Learned counsel contended that respondents under the rules have no right to terminate the service of the petitioner without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of the law must be complied with, which factum is missing in the case. He lastly contended that the impugned orders have been made without giving any opportunity to cross-examine the witnesses if any, that is, in other words, the order of dismissal from service has been made in total contravention of the provisions of the Civil Aviation Authority (Efficiency and Discipline) Regulations, 2014. The impugned orders are therefore, liable to be quashed and set aside and a writ of certiorari be issued on the respondents to quash and set aside the impugned orders of his dismissal from service as well as appellate order. He further pleaded that a writ like mandamus and appropriate directions be issued to allow the petitioner to be reinstated in the post from which he has been dismissed.

5. Mr. Sanaullah Noor Ghauri, learned counsel for the respondents, has raised the question of maintainability of the instant petition and supported the disciplinary proceedings initiated against the petitioner and prayed for dismissal of the instant petition. Learned counsel further contended that the petitioner has approached this Court with unclean hands, as such he is not entitled to any kind of discretionary relief from this Court; that the petition filed by the petitioner falls within the doctrine of laches and is liable to be dismissed by this Court; that CAA is an independent authority and having non-statutory Rules of service and remedy available to the employee is that to file Civil Suit for Damages because of reported judgments PLD 2011 SC 132, 2012 SCMR 1681 & 2013 SCMR 1383. Learned counsel for the respondents contended that the Honorable Supreme Court has already held that M/s. CAA has no statutory Rules and Regulations and writ petition against M/s. CAA in this Court is not maintainable.

6. We have heard learned counsel for the parties, and perused the material available on record and case law cited at the bar.

7. That a Board of Inquiry was constituted to ascertain the facts and identify the CAA officials involved in the fake employment of Mr. Siraj Ali Bangash, the issuance of a fake CAA Card, and all other related discrepancies. The DG CAA finalized the BOI report and directed it to initiate strict disciplinary action against accused officials. Accordingly, the petitioner namely Lazar (CAA/S14203) Ex-GSA Staff (SG-02), was served with a Show-Cause Notice dated 26th July 2021. The petitioner was charged with breach of discipline, misconduct, corruption, acting in a manner prejudicial to the interest of CAA, and committing an offense, as he was found to be the main culprit who obtained an amount of PKR 0.5 Million from the innocent citizens as bribe money for providing them employment in CAA, as identified by Board of Inquiry in its report; that petitioner submitted his written reply on 04.08.2021 to the said Show-Cause Notice dated 26.07.2021 wherein, he stated that he had already attended the inquiry proceedings in this regard and had given all answers against the allegations levelled against him. However, the competent authority was convinced that the petitioner was one of the culprits of the gang who had trapped innocent citizens and obtained money from them for providing them fake employment in CAA and found him involved in tarnishing the image of the authority and caused embarrassment as well, therefore, the petitioner had been awarded the major penalty of “Dismissal From servicevide order dated 16.08.2021; that the petitioner had submitted his departmental appeal to the Director General CAA on 02.09.2021 against the award of the major penalty of “Dismissal from Service” vide office order dated 16.08.2021 and had requested for grant of a personal hearing by the appellate authority, according to the prescribed code of conduct. The appeal of the petitioner was considered at the appropriate level and the Director HR being Appellate Authority had provided him an opportunity for Personal Hearing on 01.10.2021 vide letter dated 29.09.2021. After providing a personal hearing to the petitioner as during personal hearing, the petitioner was unable to rebut the charges levelled against him in the show-cause notice dated 26.07.2021 which led further to his dismissal from service on 16.08.2021, the appellate authority thoroughly perused and gone through the relevant record and maintained/upheld the earlier decision of “Dismissal from Service” dated 16.08.2021 and rejected the departmental appeal of the petitioner on 25.10.2021. Primarily, the petitioner has been granted ample time and opportunity to prove his innocence but the petitioner failed to do so.

7. In view of the factual position of the case, we are not inclined to substitute our findings in place of the findings of the competent authority of CAA, as such the disputed questions could not be threshed out under Article 199 of the Constitution. Therefore, this petition is found to be not maintainable under Article 199 of the Constitution and dismissed in terms of ration of the decision of the Hon’ble Supreme Court of Pakistan in the case of Sui Southern

Company Limited and others v. Saeed Ahmed Khoso and others, 2022 SCMR 1256.

(J.K.) Petition dismissed

PLJ 2023 Karachi 72 (DB)

Present: Ahmad Ali M. Shaikh C.J. and Yousuf Ali Sayeed, J.

SHAFIQ AHMAD--Petitioner

versus

IBRAHIM ABID and others--Respondents

C. P. No. D-2523 of 2023, decided on 25.5.2023.

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

----S. 12(2)--Execution proceedings--Application for setting aside ex-parte decree--Dismissal of application--Revision petition--Dismissed--Challenge to--Petitioner had shown his address as Plot No. A-698 & 699, main Road Corner Gate No. 6, Quaid-e-Azam Truck Stand, Hawksbay Road, Karachi, which was one of addresses specified in plaint--On query posed as to what perversity or illegality then afflicted Orders of fora below, no cogent response was forthcoming--Petition dismissed. [Pp. 73 & 74] A

Mr. Muhammad Yaseen Azad, Advocate for Petitioner along with Mr. Muhammad Qasim Iqbal, Advocate.

Date of hearing: 25.5.2023.

Order

Yousuf Ali Sayeed, J.--The Petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution, impugning the Order dated 07.04.2023 made by the learned Vth Additional District and Sessions Judge (MCAC), Karachi, West, dismissing Civil Revision Application No. 03/2023 filed by him against the Order passed by the learned XIV Senior Civil Judge, Karachi, West on 16.2.2023 in Execution Application No. 10/2022 emanating from Civil Suit No. 616/2021, whereby his Application under Section 12(2), CPC was dismissed.

The backdrop to the matter is that the aforementioned Suit had been filed for recovery of amount of Rs. 9,821,770/-, with the Petitioner being arrayed as the sole Defendant and the matter culminating in an ex parte judgment being entered against him on 23.12.2021 and a Decree being drawn up on that date accordingly.

A perusal of the Application under Section 12(2), CPC reflects that it was based on the assertion that an incorrect address had been provided and the Petitioner had not been served. The relevant Paragraph of the Affidavit filed in support of that Application, reads as follows:-

“6. That I say that plaintiff is my relative and he known that correct address of me i.e. Al Al Shafiq Goods and Car Career Services, bearing Plot No. A-698-699, Main Road Corner Gate No. 6, Quaid-e-Azam Truck Stand, Hawksbay Road, Karachi but plaintiff malafidely mentioned wrong residential address i.e. House No. D-18, Block 05 Clifton Karachi and also mentioned wrong business address i.e. Plot No. 697-698 Gate No. 06 New Truck Stand Hawksbay Road, Maripur, Karachi and said house I my father leave from last 15/16 years ago and I did not receive any notice or summon from the Court and after filing the execution I received the notice therefore I appeared before the Court for proceeding the matter.”

The S. 12(2) Application and the Petitioner’s subsequent Revision Application both came to be dismissed, as aforementioned, with it inter alia being observed by the Revisional Court as follows:-

“3. Learned counsel for the Respondent No. 1 pointed out that applicant lodged an FIR No. 115/2021 at PS Maripur on 03.05.2021 in which he has mentioned the same residential and business address which is mentioned in the title of the suit as well as in the title of execution application.

1. In the light of above discussion, I am of the view that learned counsel for applicant failed to satisfy the Court that why he has mentioned the same residential address as well as business address in the FIR which was lodged on 03.05.2021 when he had already left his residential address. Furthermore, it is mentioned in the order passed by learned trial Court that same address is mentioned in the Special Power of Attorney filed by the applicant before learned trial Court, therefore I am not satisfied with the contention raised by the learned counsel for the applicant that summons have not been served upon him and Respondent No. 1 had obtained ex-parte judgment/order from learned trial Court by way of fraud and misrepresentation, it seems that he deliberately and willfully not appeared before the learned trial Court even after service of summons.”

A perusal of the Revision Application also reflects that the Petitioner had shown his address as Plot Nos. A-698 & 699, main Road Corner Gate No. 6, Quaid-e-Azam Truck Stand, Hawksbay Road, Karachi, which was one of the addresses specified in the plaint. On query posed

as to what perversity or illegality then afflicted the Orders of the fora below, no cogent response was forthcoming.

Under the given circumstances, we are of the view that the Petition is misconceived. Hence, while granting the application for urgency, we hereby dismiss the Petition in limine, along with other pending miscellaneous applications.

(Y.A.) Petition dismissed

PLJ 2023 Karachi 74 (DB)

Present: Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J.

ALTAF HABIB JANGDA--Petitioner

versus

OSAMA HASAN MUSTAFVI and others--Respondents

C.P. Nos. D-626 and D-627, of 2023, heard on 10.5.2023.

Consumer Protection Act, 2014 (XVII of 2015)--

----S. 29(1)(3) & 29(4)--Delivery of car--Notice was served--Filing of complaint regarding exchange of car--Application for rejection of complaint by petitioner--Dismissed--Filing of application for condonation of delay--Accepted--Complaint was not filed within specified period--Challenge to--As regards submissions of counsel that notice served upon Petitioner did not contain grievance as agitated in complaint, same requires thorough probe and recording of evidence while under Constitutional Jurisdiction of this Court such exercise cannot be undertaken, rather proper forum for such determination is trial Court--Consumer Court, having jurisdiction in matter, may entertain a claim to be filed after thirty days if it is satisfied that there was sufficient cause for not submitting complaint within specified period--Perusal of record shows, that Respondent No. 1 has annexed certain documents in support of his Application under Section 29(4) of Act, which was considered and allowed after hearing--Submission of counsel for Respondent No. 1 that Act provides right of Appeal against a final order and not against interlocutory orders carries weight and we subscribe to it as well--Petition dismissed. [P. 76] A & B

Mr. Muhammad Saad Siddiqui, Advocate for Petitioner

Respondent in Person.

Date of hearing: 10.5.2023.

Order

Ahmed Ali M. Shaikh, C.J.--By this consolidated order we intend to dispose of the captioned petitions arising out from one and same proceedings viz. Complaint No. 12 of 2022, filed by the Respondent No. 1 against the Petitioner and Respondent No. 2 and another, wherein the Consumer Protection Court Karachi East (the “trial Court”), vide separate orders both dated 15.12.2022 dismissed the Petitioner’s Application under Section 29(1)(3) of the Consumer Protection Act, 2014 (the “Act”) and allowed Application of the Respondent No. 1 made under Section 29(4) of the Act, condoning the delay in filing the claim beyond the prescribed period of limitation of thirty days.

1. Briefly facts of the case are that the Respondent No. 1 booked a Suzuki Alto VXL AGS (the “Car”) and paid the purchase price on 25.8.2021 for its delivery tentatively on 30.10.2021. As the Petitioner delivered the Car on 07.2.2022, the Respondent No. 1 after serving a notice filed the Complaint, inter alia, seeking exchange of the Car with model of 2022, compensation and damages. Before the trial Court, the Petitioner filed an Application under Section 29(1)(3) of the Act seeking dismissal of the complaint as the Respondent No. 1 has served the notice regarding delivery of the Car but filed the Complaint for exchanging it. The Respondent No. 1 also filed an Application in terms of Section 29(4) of the Act seeking condonation of delay. The trial Court after hearing the parties, rejected the Petitioner’s Application and while accepting the other Application condoned the delay vide impugned order dated 15.12.2022.

2. Learned counsel for the Petitioner contended that the trial Court did not take into consideration the factual as well as legal aspects of the proceedings and without applying judicial mind dismissed his Application. He submitted that it was a mandatory requirement that before filing the complaint/claim the consumer ought to have issued a notice to the manufacturer and or service provider for compensation and or damages, etc. Counsel pointed out that the Respondent No. 1 served notice regarding delayed delivery of the Car and not for its exchange/replacement nor for damages as prayed for in the Complaint. He argued that there was no agreement between the Petitioner and Respondent No. 1 regarding the date of delivery but a mere communication about a tentative date.

3. Learned counsel for the Petitioner next contended that under the Act a consumer can file a complaint within thirty days from the date of cause of action but in the instant case complaint was filed after a lapse of 51 days and under the law for seeking condonation of delay the Respondent No. 1 has to explain each day’s delay.

4. Conversely, Respondent No. 1, a practicing lawyer, submitted that under the Act a final order passed by the trial Court could be challenged through an Appeal in terms of Section 34 of the Act and not the interlocutory orders passed under the Act. Per counsel since the legislatures have intentionally did not provide any remedy against the interlocutory orders, the Petitions under the Extra-Constitutional Jurisdiction of this Court cannot be entertained.

5. We have considered the contention of the learned counsel and minutely perused the orders impugned in these proceedings. No doubt a notice under Section 29(1)(3) of the Act is a mandatory requirement for entertaining a claim filed by the consumer. However, as regards the submissions of the learned counsel that the notice served upon the Petitioner did not contain the grievance as agitated in the complaint, the same requires thorough probe and recording of evidence while under the Constitutional Jurisdiction of this Court such exercise cannot be undertaken, rather the proper forum for such determination is the trial Court. With reference to the condonation of delay in submitting the claim before the trial Court is concerned, Section 29(4) of the Act provides that:

“A claim by the consumer or the Authority shall be filed within thirty days of the arising of the cause of action:

Provided that the Consumer Court, having jurisdiction to hear the claim, may allow a claim to be filed after thirty days within such time as it may allow if it is satisfied that there was sufficient cause for not filing the complaint within the specified period:

Provided further that such extension shall not be allowed beyond a period of sixty days from the expiry of the warranty or guarantee period specified by the manufacturer or service provider and if no period is specified one year from the date of purchase of the products or providing of service.”

Bare perusal of the aforesaid provision of law clearly stipulates that the Consumer Court, having jurisdiction in the matter, may entertain a claim to be filed after thirty days if it is satisfied that there was sufficient cause for not submitting the complaint within the specified period. In the instant case, perusal of the record shows, that the Respondent No. 1 has annexed certain documents in support of his Application under Section 29(4) of the Act, which was considered and allowed after hearingvide order impugned herein. Moreover, the submission of the learned counsel for the Respondent No. 1 that the Act provides right of Appeal against a final order and not against interlocutory orders carries weight and we subscribe to it as well.

For the foregoing reasons, we do not find any substance in the captioned petitions and leave all the issues agitated to be looked into by the Appellate Court upon the final outcome of the proceedings, uninfluenced by any observation made herein, the Petitions are dismissed accordingly along with pending misc. applications.

(Y.A.) Petition dismissed

PLJ 2023 Karachi 77 (DB)

Present: Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J.

Khawaja IZHARUL HASAN and others--Petitioners

versus

PROVINCE OF SINDH and others--Respondents

C.P. No. D-3016 of 2019, heard on 11.5.2023.

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

----S. 17--Constitution of Pakistan, 1973, Art. 199--Pakistan Citizenship Rules, 1952, R. 23--Issuance of Pak domicile and P.R.cs--Codal requirements--Alternate remedy--Constitution of committee for fixation of responsibility regarding issuance of domicile certificates--A Committee was constituted to probe into complaints and reports received at various fora regarding issuance of domicile certificates to non-residents of districts, fix responsibility and give its clear recommendations for further action as per law and rules--Said Committee, inter alia, recommended for formation of Divisional Scrutiny Committees--Since Respondent No. 1 has already constituted Divisional Scrutiny Committee and Sindh PRC and Domicile Appellate Committee at Karachi for deciding applications received from aggrieved persons against issuance of PRC and Domicile violating Sindh PRC Rules, 1971, Pakistan Citizenship Act, 1951 and Pakistan Citizenship Rules, 1952, which are also functional--Petition dismissed. [Pp. 80 & 81] A & B

Petitioner No. 1 present in person.

Barrister Sandeep Malani, AAG and Mr. Khaleeq Ahmed DAG.

Ch. Muhammad Farooq, Advocate along with Ms. Samina Maqsood, Advocate for NADRA, Respondent No. 10.

M/s. Muhammad Rafiq Kalwar and Muhammad Yasir, Advocates for intervenor, Sindh Vision.

Mr. Amanullah Shaikh, Advocate for Intervenor Mumtaz Ali

Date of hearing: 11.5.2023.

Order

Ahmad Ali M. Shaikh, CJ.--Petitioners, Members of Sindh Provincial Assembly, invoke the Constitutional Jurisdiction of this Court, seeking following prayers:-

“a. That this Honourable Court may be pleased to direct the Respondents for strict follow up of the procedures/rules for issuance of Domiciles and PRCs to the persons.

b. That this Honourable Court may be pleased to direct the Respondents No. 1 to 7 and to constitute and committee for the for the scrutinizing the domicile and P.R.Cs issued during period of 2008 to till date.

c. That this Honourable Court may be pleased to Direct the Respondent No. 1 to constitute a committee for legal action against delinquent officials who were involved in Malpractice or Issuance of fake domicile and P.R.Cs.

d. That this Honourable Court may be pleased to direct the investigation agencies to conduct a deep investigation for the jobs which were given on the basis of such fake domicile and P.R.Cs which were produced by the petitioner.

e. Any other relief this Honourable Court may deem fit and proper in the circumstances of the case for securing the fundamental rights of public at large of Karachi.”

1. Briefly stated facts as pleaded in the memo. of petition are that Petitioner No. 1, Opposition Leader of the incumbent Provincial Assembly, claimed to have received certain complaints regarding issuance of fake domicile and P.R.Cs from the offices of the Respondents No. 2 to 6, Deputy Commissioners of Districts South, West, Central, East and Malir, Karachi, respectively, to the ineligible non-locals in order to grab the jobs and admissions in the Universities and Medical Colleges, on Urban Quota.

2. After notice, the Respondents filed their comments, inter-alia, maintaining that the certificates of domicile are issued under Section 17 of the Pakistan Citizenship Act, 1951 and Rule 23 of the Pakistan Citizenship Rules, 1952, and the persons aggrieved by the grant of certificate of domicile/PRC may prefer an appeal before the concerned authority for its cancellation as per law. During pendency of the Petition, NADRA was impleaded as Respondent No. 10 while Petitioners filed an Application under Order VI Rule 17, CPC, seeking permission to amend the prayer clause and direction to the Respondents to constitute a Judicial Commission to investigate the cases of fake domicile/PRCs. The Respondents No. 1 to 9 in their objections opposed the Application as the same would change the character of the petition.

3. Petitioner No. 1 present in persons argued that the domicile/ PRCs have been issued to the applicants allegedly without following the codal requirements e.g. without examining the evidence, oral or documentary put forwarded, and verification of the certificate of birth either of the applicant or any of his parents or grand-parents, as the case may be. He further submitted that in terms of Rule 26 of the Pakistan Citizenship Rules, 1952, in case a Provincial Government or the Federal Government received information that a person has obtained his certificate of citizenship, certificate of domicile, etc by fraud, false representation or concealment of any material fact, a competent Magistrate is required to authorize a police officer under Section 155, Cr.P.C. to investigate the truthfulness of the information provided and if it appears that said person has made a statement or furnish information which comes within the mischief of Section 21 of the Act, the Government may direct that the said person be prosecuted under Section 177 of the, PPC. However, since the domicile are issued by the Deputy Commissioners without inviting objection or any public notice, none could furnish information or complaint to the quarter concerned that a person has acquired his certificate of domicile, etc by fraud, false representation or concealment of material fact. According to him, an efficient forum should be provided to redress the complaints of issuance of the domicile certificates or citizenship certificates to the non-residents. He has also filed a written synopsis.

4. Conversely, Mr. Muhammad Rafiq Kalwar, Advocate for Intervenor while opposing the Petition contended that the main purpose or object of filing the instant Petition is formation of a Committee to scrutinize the domiciles and PRCs issued since 2008 till date, while during pendency of the Petition the Government of Sindh vide Notification dated 26.5.2020 has constituted a Committee to probe into the complaints and reports received at various forums regarding issuance of domicile certificates to the non-residents of the districts/province of Sindh. That Committee has submitted its recommendations/finding following which Division Scrutiny Committee at each of the Division of Government of Sindh was constituted to scrutinize all the Domiciles/PRCs issued during the last ten years, etc. Further after the decision of the Provincial Cabinet dated 11.2.2021, the Government of Sindh has constituted Sindh PRC and Domicile Appellate Committee, inter alia, to receive the application/references from aggrieved persons/Divisional Scrutiny Committee constituted vide Notification dated 09.07.2020, hence, the Petition along with pending application has served its purpose and may be disposed of. While challenging the locus standi of the Petitioners, he submitted that they were seeking a sweeping inquiry against all domicile and PRCs issued after 2008 for political point scoring and on the basis of mere assumptions and conjectures and no relief of the sort could be granted by this Court.

5. The learned AAG while adopting the arguments advanced by the learned counsel for the Intervenor submitted that as the alternate remedy is available under the law and the Government of Sindh has already constituted Sindh PRC and Domicile Appellate Committee, the Petition be dismissed.

6. We have heard the Petitioner No. 1 and learned counsel appearing for the parties and perused the material available on record.

7. The Petitioners have filed this Petition, inter alia, seeking direction to the Respondents to follow up the legal course for issuance of Domicile and PRCs and to constitute a Committee for scrutinizing the alleged fake domicile and PRCs issued since 2008 till date.

8. We have doubt as to the locus standi of the Petitioners and whether they satisfy as an aggrieved person for the purpose of Article 199 of the Constitution. Be that it may, during pendency of the Petition, vide Notification dated 26.5.2020, issued by the Chief Secretary, Sindh, a Committee was constituted to probe into the complaints and reports received at various fora regarding issuance of domicile certificates to the non-residents of the districts, fix responsibility and give its clear recommendations for further action as per law and rules. On 03.6.2020, the said Committee, inter alia, recommended for formation of Divisional Scrutiny Committees. Consequently, on 09.07.2020 Divisional Scrutiny Committees were constituted in each Division to, inter alia, scrutinize all the Domiciles/PRCs issued during the past ten years and identify suspicious cases, comprising of:-

Divisional Commissioner Chairman

Additional Commissioner I Member

Officer not below BS-19 Member (to be nominated by Chief Secretary Sindh)

1. During pendency of the Petition, on 23.05.2022, the learned Assistant Advocate General, Sindh, under cover of a statement has placed on record a photocopy of a Notification dated 08.03.2021, issued by the Chief Secretary, Sindh, constituting the Sindh PRC and

Domicile Appellate Committee in terms of Rule 8(2) of Sindh PRC Rules, 1971, empowering it to receive the application/reference from the aggrieved persons/Divisional Scrutiny Committee, call for record and relevant persons to ascertain facts about the residence or otherwise of any person and to decide the matter in accordance with law. In order to demonstrate that the Committee is also functional he has also placed on record photocopies of orders passed by the Appellate Committee, etc.

1. Since the Respondent No. 1 has already constituted the Divisional Scrutiny Committee and the Sindh PRC and Domicile Appellate Committee at Karachi for deciding the applications received from aggrieved persons against issuance of PRC and Domicile violating the Sindh PRC Rules, 1971, Pakistan Citizenship Act, 1951 and Pakistan Citizenship Rules, 1952, which are also functional, we dismiss the Petition along with the pending misc. applications, leaving it open to those persons who may be aggrieved to approach the relevant forum for redressal of their grievances, if so advised.

(Y.A.) Petition dismissed

PLJ 2023 Karachi 81 (DB)

Present: Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, JJ.

HAR LAL--Petitioner

versus

FEDERATION OF PAKISTAN and others--Respondents

C.P. No. D-275 of 2020, heard on 8.3.2023.

National Database and Registration Authority Ordinance, 2000 (VIII of 2000)--

----Ss. 9, 9(3) & 45--National Database and Registration Authority (Application for National Identify Card) Regulations, 2002, Reg. 10(2)--Constitution of Pakistan, 1973, Arts. 14, 41(2), 91(3), 199, 260, 260(3)(a)(b)--Issuance of notification--Declaration regarding mentioning of religion in application for CNIC if he is non-Muslim--Declaration was required for non-Muslim--No discrimination permit by constitution on basis of faith--Direction to--A declaration to be made by a citizen if he mentions his religion in application to be other than Islam or mentions himself to be a non-Muslim--Counsel for Petitioner did not press basic argument that a citizen’s religious belief is a personal matter which bears no relevance to recording of his national identity, and confined himself to alternative submission impugning propriety of particular declaration being sought from non-Muslim citizens--Counsel appearing on behalf of NADRA were at a loss to advance any valid rationale for declaration required from non-Muslims other than to emphasize that same was a measure introduced through an amendment to Regulations in consonance with directions issued in Allah Wasaya’s case same did not amount to a violation of Petitioner’s fundamental rights--Constitution permits no discrimination on basis of faith, whether in matters of employment or otherwise, other than restricting eligibility to posts of President and Prime Minister in terms of Articles 41(2) and 91(3) and prescribing specific oaths in respect of those offices so as to render it unnecessary for reliance to be placed for such purpose on CNIC of entrant--We would direct Ministry of Interior and NADRA to redesign Form set out in Schedule II of Regulations so as to harmonise declaration to be made by all citizens so that they may simply state their own faith without having to disavow an affiliation or association with any other religion--Petition allowed.

[Pp. 83, 84 & 89] A, B, C, D & E

PLD 2014 SC 699, PLD 2022 SC 385 & PLD 2017 Lahore 610 ref.

Mr. Abdullah Nizamani, Advocate, along with Yaser Latif Hamdani, Advocate, for Petitioner.

Kazi Abdul Hameed Siddiqui, D.A.G along with Samina Maqsood, Law Officer, NADRA.

Date of hearing: 8.3.2023.

Order

Yousuf Ali Sayeed, J.--The Petition raises questions as to whether citizens can and ought to be required by the National Database and Registration Authority (“NADRA”) to state their religion in the application form for issuance of a Computerized National Identity Card (“CNIC”), and, if so, whether those who follow a religion other than Islam can be required to thereby make a declaration of their faith in terms extending beyond what is sought from citizens who profess to belong to the Islamic faith.

1. As it stands, whilst the relevant form developed by NADRA requires all citizens to disclose their religion, Clause 33 thereof calls for a Muslim to simply state his or her belief (i.e. that he is a Muslim) but obliges followers of other faiths to firstly make a negative declaration to the effect that they are not Muslims before going on to state their religious affiliation. In the case of the Petitioner, who professes to be a Hindu, the envisaged declaration reads as follows:

I hereby declare on Oath that: I am not Muslim and belong to Hindu Religion.

میں حلفیہ بیان کرتا/کرتی ہوں کہ میں مسلمان نہیں ہوں اور میرا تعلق ہندو مذہب سے ہے۔

1. The comments submitted by NADRA reflect that such measures were introduced in compliance of a judgment rendered by the Islamabad High Court on 04.7.2018 in the case then reported as Mulana Allah Wasaya v. Federation of Pakistan through Ministry of Law and Justice PLD 2019 Islamabad 62, where it had inter alia been directed that in order to get a CNIC “an affidavit must be sworn by the applicant based on the definition of Muslim and Non-Muslim provided by Article 260(3) (a)&(b) of the Constitution”. Hence, vide Notification dated 02.11.2018 issued by the Ministry of Interior, the National Database and Registration Authority (Application for National Identity Card) Regulations, 2002 (the “Regulations”) had been amended in exercise of powers said to have been conferred by Section 45 of the National Database and Registration Authority Ordinance, 2000 (the “Ordinance”) read with Section 9(3) thereof, so as to provide in terms of Regulation 10(2) for such a declaration to be made by a citizen if he mentions his religion in the application to be other than Islam or mentions himself to be a non-Muslim.

2. In the wake of that submission, learned counsel for the Petitioner did not press the basic argument that a citizen’s religious belief is a personal matter which bears no relevance to the recording of his national identity, and confined himself to the alternative submission impugning the propriety of the particular declaration being sought from non-Muslim citizens. Indeed, that realignment is reflected as far back as in the Order dated 06.11.2020, which reads as follows:

“The main contention raised by the petitioner is that in the application form submitted for CNIC, column 15 germane to religion in which it is clearly mentioned that the applicant is Hindu, but in clause 33 there is no justification to further verify by him that he is not Muslim and he is Hindu. This clause has been objected by the petitioner with the contention that when a column is already introduced in the form in relation to the religion of applicant then there is no necessity or logical reason for incorporating any further clause which may create disharmony.”

As such, the scope of our determination stands circumscribed accordingly, and we leave it open for other aspects to be addressed in an appropriate proceeding at a later stage.

1. Proceeding with his submissions, learned counsel for the Petitioner argued that non-Muslim citizens seeking CNICs ought to be extended the Courtesy afforded to Muslims of simply stating their religion, or stating that they did not subscribe to any faith for that matter, if that be the case. He contended that to oblige a non-Muslim to firstly make a statement on oath to the effect that he or she is not a Muslim prior to stating his or her religion forces him or her to identify for religious purposes in negation to the Muslim majority rather than simply as an adherent to an independent and equal faith.

2. He submitted that it ought to suffice for members of other faiths to simply state their own religion, since such a statement itself constituted an unequivocal assertion that they are not Muslims. Thus, in the case of the Petitioner, his declaration that he is a Hindu ought to suffice of itself, and to demand a further declaration from him or indeed from the adherents of other faiths beyond what was otherwise envisaged in the case of a Muslim was unnecessary and superfluous.

3. In response, the learned DAG and learned counsel appearing on behalf of NADRA were at a loss to advance any valid rationale for the declaration required from non-Muslims other than to emphasize that the same was a measure introduced through an amendment to the Regulations in consonance with the directions issued in Allah Wasaya’s case (Supra) and to submit that the same did not amount to a violation of the Petitioner’s fundamental rights.

4. We have heard and considered the arguments advanced for and against the declaration envisaged as per the Regulations.

5. Whilst Islam may be the State religion in terms of Article 2 of the Constitution and whilst Article 260(3) (a)&(b) thereof sets out the definition of a “Muslim” and clarifies that any person who does not fall within that definition is a “non-Muslim” while going on to include persons belonging to certain other faiths forming part of the religious minorities of the country within that fold for further clarity, that is not to say that the Constitution regards other religions to be lesser or non-Muslims to be less than equal citizens. Nor does it presume all citizens to be Muslims and envisage that non-Muslims be required to firstly deny an affiliation to Islam through a declaration that they are not Muslims for purpose of stating their own faith. On the contrary, it is axiomatic that just as people practicing Islam identify as Muslim, people who profess the religion of Hinduism identify themselves as Hindus and people professing the religion of Christianity identify themselves as Christians, and so on, with each separate identification being mutually exclusive of others, and it thus being sufficient for adherents to any particular religion to simply state that they are followers of such faith.

6. Indeed, the subject of minority rights has been viewed from a Constitutional lens in a number of decided cases, including Suo Motu Case No. 1 of 2014 etc. PLD 2014 SC 699, relating to an attack on a Church in Peshawar and regarding threats being given to the Kalash tribe and Ismailies in Chitral, where the Supreme Court of Pakistan observed that:

7. Of all the Articles relating to the minorities’ rights, Article 20 is of prime significance. A close reading of this provision would indicate that the freedom to practice religion and manage religious institutions under this provision is multifaceted because:

(a) The right to religious conscience conferred under this Article does not make any distinction between majority and minority or Muslim and Non-Muslim. It is in the nature of an Equal Religious Protection Clause conferred on every citizen, every religious denomination and every sect thereof. This equal religious protection clause is in the same nature as the equal justice under the law and equal protection under the law clauses conferred under Articles 4 and 25. In other words, every absolute equality and there is no distinction among citizens, religious denominations and sects thereof, as far as the right to religious conscience, is concerned.

(b) The right to religious conscience is a fundamental right. It has not been subjected or subordinated to any other provision of the Constitution because it is only subject to law, public order and morality and not to any religious clauses of the Constitution. The very term law, public order and morality has been used in non-religious terms as the notion of law or public order or morality is not reducible to the Islamic meanings of these terms. Therefore, Article 20 has a certain preeminence in the Constitution being only subject to the general restrictions of law, public order and morality, which three terms cannot be interpreted or used in such a restrictive way as to curtail the basic essence and meaning of the pre-eminent right to religious conscience.

(c) The right to profess and practice is conferred not only on religious communities but also on every citizen. What this means is that every citizen can exercise this right to profess, practice and propagate his religious views even against the prevailing or dominant views of its own religious denomination or sect. In other words, neither the majority religious denominations or sect nor the minority religious denomination or sect can impose its religious will on the citizen. Therefore, not only does it protect religious denominations and sects against each other but protects every citizen against the imposition of religious views by its own fellow co-believers. It needs to be mentioned here that every citizen would necessarily include both males and females (Article 263), which point needs emphasis considering the exclusion or subordination of women in relation to numerous forms of religious practices.

(d) As far as every religious denomination is concerned, even sects within these religious denominations have been conferred the additional right to establish, maintain and manage its religious institutions. Therefore, even sects within these religious denominations have been protected against their own co-religious denominations.

(e) The right of religious conscience conferred on every citizen is a right conferring three distinct rights i.e. Right to Profess, Right to Practice and Right to Propagate. What this means is that Article 20 does not merely confer a private right to profess but confers a right to practice both privately and publicly his or her religion. Moreover, it confers the additional right not only to profess and practice his own religion but to have the right to propagate his or her religion to others. It is important to note that this propagation of religion has not been limited to Muslims having the right to propagate their religion but this right is equally conferred on Non-Muslims to propagate their religion to their own community and to other communities. This should not be seen as a right to encourage conversions but more importantly, should be seen as a right against forced conversions or imposing beliefs on others because if all citizens have the right to propagate then no citizen has the right of forced conversion or imposing beliefs on others.

1. Article 20 must then be interpreted to guarantee the rights of the community as well as the right of the individual against those from his own or other religious communities -the ultimate goal being the eradication of religious intolerance in the society. English political philosopher John Stuart Mill in his treatise ‘On Liberty’ (1859) stated that “the great writers to whom the world owes what religious liberty it possesses, have mostly asserted freedom of conscience as an indefeasible right, and denied absolutely that a human being is accountable to others for his religious belief. Yet so natural to mankind is intolerance in whatever they really care about, that religious freedom has hardly anywhere been practically realized, except where religious indifference, which dislikes to have its peace disturbed by theologically quarrels, has added its weight to the scale.”

2. Subsequently, in the same vein it was affirmed by the Supreme Court in the case reported as Tahir Naqash and others v. The State and others PLD 2022 Supreme Court 385 that:

“10. Article 14 of the Constitution guarantees right to dignity to every person. Human dignity encapsulates the notion that every person has inherent equal worth. This simple but profound concept has three elements: first, every member of the human family has value no one can be dismissed, ignored, mistreated or abused as if their humanity means nothing; second, each person’s worth is equal to every other person and no one’s life is more important than any other person; third, human dignity inheres in the human person and cannot be taken away.7 To deprive a non-Muslim (minority) of our country from holding his religious beliefs, to obstruct him from professing and practicing his religion within the four walls of his place of worship is against the grain of our democratic Constitution and repugnant to the spirit and character of our Islamic Republic. It also deeply bruises and disfigures human dignity and the right to privacy of a non-Muslim minority, who like all other citizens of this country enjoy the same rights and protections under the Constitution. Bigoted behaviour towards our minorities paints the entire nation in poor colour, labelling us as intolerant, dogmatic and rigid. It is time to embrace our constitutional values and live up to our rich Islamic teachings and traditions of equality and tolerance.

1. Article 20(a) of the Constitution provides that every citizen shall have the right to profess, practice and propagate his religion subject to law, public order and morality. Article 20(b) provides that every religious denomination or sect shall have the right to establish, maintain and manage its religious intuitions. Under Article 22, the Constitution provides that no person attending any educational institution shall be required to receive religious instruction or take part in any religious ceremony or attend religious worship if such instruction, ceremony or worship relates to a religion other than his own. Article 22(3)(a) provides that no religious community or denomination shall be prevented from providing religious instruction for pupils of that community in any educational institution maintained wholly by that community or denomination. Article 25 underlines that all citizens are equal before the law and are entitled to equal protection of law.”

2. In the case reported as Ameen Masih v. Federation of Pakistan and others PLD 2017 Lahore 610, an amendment to the Divorce Act, 1869 was struck down as being an affront to minority rights, with it being stated that:

“40. The preamble of the Constitution, as well as, the Objectives Resolution, which forms substantive part of the Constitution under Article 2A of the Constitution, provide that adequate provisions shall be made for the minorities to freely profess and practice their religion and develop their culture. And adequate provision shall be made to safeguard the legitimate interests of the minorities. Article 20 of the Constitution, as a fundamental right, provides that every citizen shall have the right to profess, practice and propagate his religion subject to law, public order and morality. Principle of Policy under Article 36 provides that State shall safeguard the legitimate rights and interest of minorities. Under Article 29 of the Constitution, it is the responsibility of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with those Principles. Members of the minority also enjoy fundamental rights guaranteed to every citizen under the Constitution. Therefore, inter alia, right to life, liberty, dignity and non-discrimination are also available to the minorities of this country being citizen of Pakistan. Minority rights are, therefore, a basket of fundamental rights, constitutional values, State obligations under the Principles of Policy, international conventions like ICCPR (duly ratified by Pakistan) and the rich jurisprudence developed over the years.”

1. As is best discernible from a reading of the judgment in Allah Wasayas case (Supra), the purpose of the direction made therein with reference to Article 260, as aforementioned, was simply to document the religion of citizens from the standpoint of their employment in state institutions. That purpose can be served just as well in the case of a non-Muslim by his or her simply stating their faith

in the relevant form in the same manner as is done by a Muslim. Nothing more is necessary. Even otherwise, the Constitution permits no discrimination on the basis of faith, whether in matters of employment or otherwise, other than restricting eligibility to the posts of President and Prime Minister in terms of Articles 41(2) and 91(3) respectively, and prescribing specific oaths in respect of those offices so as to render it unnecessary for reliance to be placed for such purpose on the CNIC of the entrant.

1. Under the given circumstances, without endorsing or unsettling anything laid down in Allah Wasayas case (Supra), we would direct the Ministry of Interior and NADRA to redesign the Form set out in Schedule II of the Regulations so as to harmonise the declaration to be made by all citizens so that they may simply state their own faith without having to disavow an affiliation or association with any other religion.

2. The Petition thus stands allowed in the foregoing terms.

(Y.A.) Petition allowed

PLJ 2023 Karachi 89 (DB)

Present: Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J.

MEHFOOZ AKHTAR and others--Petitioners

versus

OIL & GAS REGULATORY AUTHORITY and others--Respondents

C.P. No. D-2067 of 2022, heard on 1.6.2023.

Constitution of Pakistan, 1973--

----Art. 199--Petitioners were rendering services as contractors to providing new gas connections--License agreement of petitioners were discontinued by SSGC--Private contractual agreement without any statutory cover--Right to cancellation registration of petitioners--Contractual relationship--Relationship between Petitioners and SSGC was purely contractual, driven apparently through methodology devised by latter for issuing new connections, as set out in CSM, bereft of any statutory imperative for License Agreements and their renewal from time to time--Nature of erstwhile relationship is not denied--Petitioners, as licensees, cannot claim renewal as a matter of right so as to maintain a petition for issuance of a writ under Article 199--The decision made by OGRA in terms of Order also does not serve to advance their cause, as such decision does not require SSGC to renew those License Agreements--Petition dismissed. [Pp. 94 & 95] A

2022 PLC 198 ref. 2007 YLR 3191.

M/s. G.N. Qureshi, Ahsan Hassan Joya and Samiullah, Advocates for Petitioners.

M/s. Ghazi Khan Khalil, Abdul Hakeem Junejo and Abdul Razzak, Advocates and Khaleeque Ahmed, DAG for Respondents No. 1 to 4.

Date of hearing: 1.6.2023.

Order

Yousuf Ali Sayeed, J.--The Petitioners are persons who had apparently been rendering their services as contractors to the Sui Southern Gas Company Limited (“SSGC”) over a protracted period in providing new gas connections to its consumers, until an amendment was brought about in SSGC’s Customer Service Manual (“CSM”) in the year 2019, dispensing with the need for the services. Being aggrieved, they have invoked the jurisdiction of this Court under Article 199 of the Constitution, seeking the renewal/extension of their contracts and the implementation of an Order dated 17.08.2021, made by the Oil and Gas Regulatory Authority (“OGRA”) in Complaint No. 2819/2021.

1. Per learned counsel for the Petitioners, they had been engaged by SSGC on contract for the aforementioned purpose for a period of one year at a time, with their contracts having been renewed from time to time over a period spanning decades. For instance, our attention was drawn to the contract of the Petitioner No. 1, which had been entered into in the year 1990 and been renewed annually until the year 2019. It was submitted that suddenly, without any notice or other intimation, SSGC discontinued the renewals and barred their entry to its premises. It was argued that in rendering their services, the Petitioners had facilitated consumers who would otherwise have had difficulty in obtaining gas connections, thus had served a function in the public interest, yet such services had been discontinued by SSGC, with the action being termed a contravention of the Petitioner’s fundamental rights and the principles of natural justice.

2. It was pointed out that persons similarly placed to the Petitioners had earlier approached this Court challenging the modification of the CSM and discontinuation of their services through Constitutional Petition No. D-6131 of 2020, which was disposed of by a learned Division Bench while observing inter alia that:

“10. Even otherwise, the controversy whether the license or contract awarded to the petitioners allowing them to receive application for gas connection and deposit the same in the Sui Southern Gas Company Office was rightly cancelled or not, this particular aspect cannot be decided in writ jurisdiction but require factual inquiry and in case of any violation of OGRA Laws, the proper forum for redress has already been provided which the petitioner fail to avail.

1. In view of above, the instant Constitution Petition is dismissed along with the listed application(s). However, the petitioner(s) may file a complaint to OGRA for redressal of their grievances. In case, any complaint is filed, the OGRA shall decide the same within a period of 30 days.”

2. Learned counsel further submitted that those petitioners had then approached OGRA accordingly, and invited attention to its Order dated 17.08.2021, the relevant excerpts from which read as follows:

DECISION

Subject: COMPLAINT AGAINST SSGC, IN LIGHT OF JUDGMENT DATED 19/04/2021 PASSED BY LEARNED DIVISION BENCH OF THE HONOURABLE SINDH HIGH COURT IN C.P NO.6131/2020 IN RESPECT OF THE POLICY APPROVED BY OGRA WITH REGARD OF “CONSUMER SERVICE MANUAL” VIDE LETTER DATED 05/10/2011. (Complaint No. 2819/2021).

Mr. Mohsin Ali Khan resident of Federal B. Area Karachi (the Complainant) in line with Judgment passed by the Sindh High Court in C.P No. 6131/2020 filed a complaint in Oil and Gas Regulatory Authority (OGRA), received in office of D.O (Designated Officer) on June 01, 2021, under OGRA’s Complaint Resolution Procedure Regulations, 2003, against SSGCL (the respondent) regarding its impugned circular dated March 02, 2020 whereby Respondent’s registered contractors were advised to discontinue submission of pay orders/RT-1 form. The Complainant challenged the said circular in the light of certain provisions of Consumer Service Manual (CSM) of Respondent, as approved by OGRA, and raised a legal question that whether respondent can unilaterally alter the procedure for provision of gas connection without any amendment in CSM or else. The petitioner requested to set aside the said circular.

…

1. DECISION

6.1. In view of above-mentioned findings, written submissions of the parties and arguments presented during the hearing/meeting conducted on June 18, 2021, following is decided:

a) The Respondent cannot alter/update/modify CSM without prior approval of the Authority.

b) Validity and renewal of Registration of contractors may be dealt as per the terms and condition of relevant Registration and applicable laws.

c) In order to address the grievances and concerns of consumers, Respondent is also directed to take appropriate action, as per terms of Registration, against such contractors who are involved in malpractices.

1. APPEAL TO THE AUTHORITY

7.1. If any party is aggrieved by this decision, the same may file an appeal against this order before the Authority i.e. (Oil and Gas Regulatory Authority) within 30 days of receipt of this order under Section 12 of OGRA Ordinance, 2002.

1. It was pointed out that SSGC had not filed an appeal against the Order, hence had accepted OGRA’s decision. He argued that SSGC was thus bound to implement the same and, as a corollary, restore the Petitioners’ services. He prayed that the Petition be allowed accordingly.

2. On the other hand, learned counsel appearing for SSGC submitted that its relationship with the Petitioners had been governed by the respective License Agreements that had been executed between them inter se, and was a private contractual arrangement without any statutory cover. With reference to one such License Agreement filed with the memo. of the Petition, he pointed out that it was envisaged as per Clause 4 that the registration of the Petitioners would be treated as cancelled if not renewed within the grace period as specified under the agreement. Furthermore, as per clause 55 of the aforesaid License Agreement the Company (i.e. SSGCL) had the right to cancel the registration of the Petitioners at any time without assigning any reasons thereof and in such circumstances the Petitioners had the right to file an appeal in pursuance of Clause 56 of the License Agreement before the competent authority of SSGC, whose decision would be final and binding. He submitted that the License Agreements had been discontinued as per what was contemplated by the terms and conditions agreed by the parties and such discontinuation did not constitute a violation of any of the fundamental rights of the Petitioners under the Constitution, therefore the Petition was liable to be dismissed on that score alone.

3. On the subject of the amendments to the CSM, he invited attention to the previous and amended Section 2.1.1 thereof relating to new connections, which read thus:

| | | | --- | --- | | EXISTING TEXT | REVISED TEXT | | Application For New Domestic Gas Connection 2.1.1 Applications on prescribed form (RT-1) in pink colour for new domestic gas connection will be received at Sales Department through SSGC’s registered Low Pressure Gas Piping Contractors along with the following documents: a) Copy of CNIC of applicant. b) Copy of gas bill of the nearest address/premises. c) Pay order for connection charges in favour of SSGC The receiving Officer will check the validity of pay order, name / address and the documents attached along with application form (RT-I) thoroughly to ensure that all columns are properly filled in and that the applicant’s signature matches with signature on his Computerized National Identity Card. Application on plain paper shall not be accepted. | Application For New Domestic Gas Connection 2.1.1 Application for new domestic gas connection on application form available on SSGC website, Customer Facilitation Centers (CFCs) and SSGC Mobile App will be submitted by prospective customer along with requisite documents as mentioned in the application form in nearest CFC (Sales Helpdesk). The Receiving officer will check form filled by customer thoroughly to ensure that all columns are properly filled in and the applicant’s signature matches with signature on his Computerized National Identity Card. After checking the application form, application acknowledgment will be given to the applicant for future reference. |

1. He pointed out that subsequent to the Decision dated 17.08.2021, OGRA had approved the amendments vide its letter dated 21.10.2021, in the following terms:

“OGRA-9-(87)/LC.23/2006 October 21, 2021

Managing Director,Sui Southern Gas Company Limited, SSGC House, Sir Shah Suleman Road, Gulshan-e-Iqbal, Karachi.

Subject: AMENDMENTS IN CONSUMER SERVICE MANUAL.

Dear Sir, Please refer to your Letter No. RA/275/COND. 23.1 dated 16.2.2021 on the subject matter.

1. It is apprised that the Authority has considered your request for amendments in Consumer Service Manual and approved the same with certain changes/corrections, as per Annexure-I, please.

(Misbah Yaqub) Senior Executive Director (Gas) For & on behalf of Authority”

1. Learned counsel argued that in the wake of OGRA’s approval, there had been no need for SSGC to appeal the Order dated 17.08.2021, which was even otherwise of no avail to the Petitioners as it did not bind SSGC to renew its License Agreement with any particular contractor(s). He submitted that the Petition was misconceived and prayed for its dismissal.

2. We have heard and considered the arguments advanced in light of the pleadings and material on record.

3. On examination of the matter, it is manifest that the relationship between the Petitioners and SSGC was purely contractual, driven apparently through the methodology devised by the latter for issuing new connections, as set out in the CSM, bereft of any statutory imperative for the License Agreements and their renewal from time to time. Indeed, the nature of the erstwhile relationship is not denied. In that backdrop, the Petitioners, as licensees, cannot claim the renewal as a matter of right so as to maintain a petition for issuance of a writ under Article 199. The decision made by OGRA in terms of the Order dated 17.08.2021 also does not serve to advance their cause, as such decision does not require SSGC to renew those License Agreements. The effect of that Order vis-à-vis the CSM is also rendered moot by the subsequent approval accorded to the amendments on 21.10.2021, and the prayer advanced in relation thereto also cannot be countenanced as this Court is even otherwise not the executing forum. If any authority is required in that regard, one need look no further than the judgment of the Supreme Court in the case reported as Faraz Ahmed v. Federation of Pakistan through Secretary, Ministry of Communication, Government of Pakistan, Islamabad and others 2022 PLC 198, where it was observed that:

“It is quite astounding that the petitioner had filed petition for implementation of the Judgment of the Labour Court in the High Court when no such provision is available under Article 199 of the Constitution of 1973 whereby the execution or implementation of Judgment passed by the subordinate Courts may be implemented by the High Court. It was not the case within the premise or confines of Sub-Article (2) of Article 187 of the Constitution in which any decision, order or decree passed by the Supreme Court may be executed by a High Court as if it had been issued by the High Court.”

1. In the same vein, it had earlier been observed by a learned Division Bench of this Court in the case reported as Umer Gul vs. Government of Sindh 2007 YLR 3191 that:

“Even otherwise, from the perusal of the prayer clause, it transpires that the petitioner has approached this Court for implementation/execution of the order of the Chairman Provincial Transport Authority Sindh and the Ombudsman. This Court does not act as an executing Court of any authority/ Court or Tribunal except the Supreme Court in view of the provisions of Article 187 of the Constitution of the Islamic Republic of Pakistan.”

1. In view of the foregoing, the Petition is found to be devoid of force and stands dismissed accordingly.

(Y.A.) Petition dismissed

PLJ 2023 Karachi 96 (DB)

Present: Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J.

MUHAMMAD AZHAR--Petitioner

versus

FEDERATION OF PAKISTAN and others--Respondents

C. P. No. D-3977 of 2021, heard on 30.9.2021.

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

----S. 20--General Clauses Act, (I of 1897), S. 6--Admission in MBBS and BDS course and House Job Internship) Foundation year Regulation, 2013, Reg. 17 & 18--Condition of NLE for obtaining a full license--Mandatory requirement--No vested right in favour of petitioner--Applicability of PMC Act--Benefit of Section 6 of GCA--petitioner was not completed MBBS program and house job--No question of prospective and retrospective effect--Applicability of statue--As is manifest from a plain reading of S.20, same makes it mandatory for every aspirant to a full license to pass NLE--A vested right accrued to petitioner at inception, is fallacious in as much as even under earlier dispensation, prerequisites of a full license were fulfilled only upon successful completion of academic program and house-job--Neither regime admits to any vested right accruing to an aspirant at outset of MBBS program, and it is manifest that even under earlier dispensation right to a full license would at best have crystalized only upon satisfactory completion of House-Job and clearance of assessment exam--It is apparent that Petitioner’s argument is patently flawed and bereft of legal basis--Benefit of Section 6 of GCA does not extend to a student such as Petitioner, who was still in midst of MBBS program at time of enactment of PMCA and had not even embarked upon his one-year house-job--No question of prospective or retrospective application of PMCA is involved in matter at hand, and real issue is merely applicability of statute in force on date that Petitioner completes his medical education, which in this case is PMCA, thus rendering his case liable to application of Section 20 thereof--Petition dismissed.

[Pp. 98, 100, 102, 103 & 104] A, B, C & E

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

----S. 6--Scope of--Benefit of--Section 6 is a right which already stands accrued, whereas mere hope that one would acquire a right or would be at liberty to apply for a right or take benefit of a certain provision does not qualify as such. [P. 103] D

Mr. Shahenshah Hussain, Advocate for Petitioner.

Mr. Khaleeque Ahmed, DAG for Respondent No. 1.

Mr. Zeeshan Abdullah, Advocate for Respondent No. 3.

Date of hearing: 30.9.2021.

Judgment

Yousuf Ali Sayeed, J.--The Petitioner is apparently an aspiring doctor, who was admitted to the Faculty of Medicines & Allied Sciences at Isra University, Hyderabad, Sindh in the Programme of Bachelor of Medicine and Bachelor of Surgery (“MBBS”) in the Academic Years 2015-16. He satisfactorily completed that programme in 2019-2020, with a Provisional Passing Certificate being issued on 11.2.2021, followed by a Degree Certificate on 27.2.2021. A Provisional Registration Certificate was then issued to him on 03.2.2021 by the Pakistan Medical Commission (the “PMC”), in pursuance of which he is said to presently be undertaking his one-year house-job at Liaquat University Hospital Hyderabad.

1. In the given factual backdrop, the Petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution eliciting a declaration that passing the National Licencing Examination (“NLE”), as prescribed under Section 20 of the Pakistan Medical Commission Act, 2020 (the “PMCA”) is not applicable in his case and cannot be a condition imposed on him by the PMC for obtaining a full licence to practice medicine. He claims to be entitled to a full license upon successful completion of his house-job, without further ado.

2. For proper appreciation of the matter, it merits consideration that S.20 of the PMCA stipulates as follows:

“20. National licensing examination (NLE)--(1) The Authority shall at least twice a year as per schedule approved by the Council conduct the NLE. Passing the NLE shall be mandatory for obtaining a full licence. The NLE shall be substantially based on objective computer based multiple choice questions and a practical component if determined by the Council:

Provided that there shall be no limit on the number of times a person may attempt in NLE:

Provided further that Pakistan armed forces cadets who upon successful completion of their under-graduate degree program and pre-requisite military training are commissioned in the Pakistan armed forces shall be granted an armed forces provisional licence and shall qualify their NLE during service as regulated by the service head quarters prior to grant of full licence.

(2) A person, having obtained an under-graduate medical or dental qualification issued by a university in Pakistan or an under-graduate medical or dental qualification issued by a foreign institution duly recognized by the Commission, shall be granted a provisional licence to undertake his house job within fourteen days of verification of their qualification by the granting institution:

Provided that the person to whom a provisional licence is granted shall complete the mandatory requirement of passing the NLE at any time prior to issuance of full licence.

(3) Any medical or dental practitioner who has obtained a licence to practice in any foreign country after having qualified from Pakistan or from a foreign institution recognized by the Commission and does not hold a postgraduate qualification recognized by the Council, shall be required to qualify the NLE for grant of a full licence to practice in Pakistan:

Provided that a medical or dental practitioner who has obtained a licence to practice in a foreign county or qualified from a foreign institution, not cognized by the Commission, but has acquired a postgraduate qualification in Pakistan or from a foreign institution recognized by the Council shall not be required to qualify the NLE and shall be granted a full licence to practice on the basis of the recognized postgraduate qualification.”

1. As is manifest from a plain reading of S.20, the same makes it mandatory for every aspirant to a full license to pass the NLE.

2. Nonetheless, the case set up by the Petitioner and as advanced by learned counsel appearing on his behalf is that the course syllabus given to a medical student when he joins a medical teaching institution, albeit comprised of various phases, is essentially a single transaction that continues to completion according to the terms on which it is commenced. In that vein, it was submitted by counsel that as per the statutory regulatory framework in force when the Petitioner commenced the MBBS programme viz the Pakistan Medical and Dental Council Ordinance, 1962 (the “Ordinance”), he was entitled to the grant of a full licence after successfully completing the five professional examinations and one-year compulsory house job. It was argued that since the mandatory requirement of passing the NLE was introduced subsequently through the PMCA (repealing the Ordinance), it would not operate retrospectively. As such, the imposition of that requirement on the Petitioner went beyond the intendment of the latter enactment and offended Article 4 of the Constitution. It was submitted that the repeal of the Ordinance would not affect any right or privilege acquired or accrued under the Ordinance; it being contended that the Petitioner thus had a vested right to a full licence upon meeting the requirements prescribed under the erstwhile statutory framework, which could not be impaired by imposing a new obligation of having to pass the NLE. As regards the saving of rights and liabilities accrued under the Ordinance, attention was drawn to sub-Sections (1) of Section 50 of the PMCA, specifying that the repeal of the Ordinance was subject to Section 6 of the General Clauses Act, 1897 (the “GCA”), which provides inter alia that the repeal of an enactment shall not “affect any right, privilege, obligation or liability acquired, accrued or incurrent under any enactment so repealed”. It was also emphasised that sub-Sections (2) of Section 50 of the PMCA itself provided as follows:

(2) Notwithstanding the repeal of the repealed Ordinance or anything contrary contained herein, all decisions taken, regulations made or amended and disciplinary actions taken by the Council of the dissolved Pakistan Medical and Dental Council pursuant to the repealed Ordinance and the Pakistan Medical and Dental Council Ordinance, 2019 (II of 2019) and by the Pakistan Medical Commission pursuant the Pakistan Medical Commission Ordinance 2019 (XV of 2019) shall be deemed to have been validly made:

Provided that all regulations made and promulgated pursuant to the repealed Ordinance, or the Pakistan Medical and Dental Council Ordinance, 2019 (II of 2019) stand repealed and shall not be enforceable subject to sub-section (6):

Provided further that Council shall have the exclusive power to review and modify any saved decision taken, regulation made or amended and disciplinary action taken.”

1. Conversely, learned counsel appearing on behalf of the PMC argued that passing the NLE was presently a mandatory requirement for obtaining a fill license in terms of S.20 of the PMCA and no vested right had been created in favour of the Petitioner prior to its promulgation so as to exempt him from that requirement, as he had secured his Provisional Passing Certificate, been awarded his Degree, and been issued his Provisional Registration Certificate after the PMCA came into force on 24.09.2020, hence had clearly only been midstream in so far as completing the requirements for a full license was concerned at the time. As such, no vested right had accrued at the time of enactment of the PMCA, hence Section 6 of the General Clauses Act was of no avail and the dictate of S.20 was fully applicable in the matter.

2. Having considered the arguments advanced at the bar in light of the given facts circumscribing the controversy, it is apparent that the Petitioner’s contention is that the condition of the NLE cannot now be imposed on him as his case is to be treated as per the framework of the Ordinance and Admission in MBBS and BDS Course and House Job/Internship/Foundation Year Regulations-2013 (the “2013 Regulations”) made thereunder by the erstwhile Pakistan Medical and Dental Council (the “PMDC”), as were in force at the time he embarked on his MBBS. That contention is based on the claim that he acquired a vested right to obtain a full license upon fulfillment of the requirements prevailing at such point of inception, and that the PMCA would operate only prospectively and be inapplicable to the Petitioner as regards the subject of his full license.

3. When the Petitioners argument is dissected, it is manifest that the entire construct of the case, as predicated on the hypothesis that a vested right accrued to him at inception, is fallacious in as much as even under the earlier dispensation, the prerequisites of a full license were fulfilled only upon successful completion of the academic program and the house-job. Indeed, this was the scheme envisaged in terms of the 2013 Regulations, with Regulations 14 to 18 falling under Part-III thereof reading as follows:

“14. All rules regarding House job gazatted [sic] in the Pakistan Registration of Medical and Dental Practitioners Regulations 2008 shall continue to apply.

1. A house job is compulsory for full registration with Pakistan Medical and Dental Council. Only provisionally registered Doctors shall be eligible for house job and house job can only commence after provisional registration. Any internship done prior to the provisional registration shall not be acceptable as house job towards attainment of full registration.

2. House job Training shall be carried out in a hospital recognized by the Pakistan Medical & Dental Council for the house job.

3. The institution providing the house job shall ensure that the candidate possesses a valid PM&DC Provisional registration for house job when the house job training slot is being awarded.

4. For full registration as a medical practitioner, the house job/Foundation year shall have following criteria;

For full Registration the medical practitioner shall have the following modules as shown in the two modules;

Modules of Medicine and Allied -----six months. Modules of Surgery and Allied -------six months.

Each module has to be completed separately, and should be in the same hospital or some other institution provided that is recognized by the PM&DC.

Regarding the breakup of the modules there is confusion as nothing is mentioned about other specialties in both the modules (Medical and allied, Surgical and allied), the break shall be left for the candidate choice and the concerned department related with the said modules.

It was informed that the breakup of the columns of the house job modules can be deleted and be replaced by the above mentioned distribution.

BLS course shall be mandatory during house job if not done during final year.

Assessment exam after completion of house job is also a requirement to be fulfilled by the institution and the completion certificate shall be issued to the doctor after fulfillment of these requirements.”

1. The requirement remained essentially the same through the various regulatory legislative changes leading up to the promulgation of the PMCA, which reflect a similar passage to a full license, subject to the further requirement of the NLE, with Sections 27 and 29(1) of the PMCA addressing the subject of the House Job and Licensing as follows:--

“27. House job. (1) Every person having obtained a provisional licence under sub-section (2) of Section 20 shall be required to undergo and successfully complete a mandatory one year house job, internship or foundation year, by whatever name called, at an institution recognized by the Commission or an equivalent of a house job outside Pakistan as may be recognized by the Commission.

(2) Every medical or dental college in Pakistan shall be responsible to provide a paid house job, at its own affiliated teaching hospital to all of its graduates have acquired a provisional licence. Failure to provide a house job shall result in the medical or dental college reimbursing the stipend paid to the graduate by the training hospital where the graduate obtains house job training:

Provided that in the event the graduate opts voluntarily to pursue training in any other teaching hospital, their salary or stipend shall not be the responsibility of the medical or dental college of the graduate:

Provided further that the stipend or salary paid to house officers shall be determined by the Provincial Government or Federal Government as applicable for public colleges and private colleges shall pay a stipend or salary not being less than the amounts applicable to public colleges.

(3) A house job, internship or foundation year shall consist of full time and structured training as specified by the Board and approved by the Council.

(4) The teaching hospital shall issue on the conclusion of the house job a certificate confirming that the provisional licence holder has satisfactorily completed the mandatory house job modules for grant of full licence.”

“29. Licensing.--(1) The Authority shall grant a full licence to practice basic medicine or dentistry as a general practitioner to a person who subsequent to qualifying the NLE has completed his mandatory one year house job or foundation year or internship satisfactorily or has successfully completed a house job, internship or foundation year equivalent to a house job at a foreign teaching hospital or institution recognized under sub-section (3) of Section 28.”

1. When the cited provisions of the 2013 Regulations and the PMCA are viewed in juxtaposition, it is apparent that neither regime admits to any vested right accruing to an aspirant at the outset of the MBBS program, and it is manifest that even under the earlier dispensation the right to a full license would at best have crystalized only upon satisfactory completion of the House-Job and clearance of the assessment exam. As such, it is apparent that the Petitioner’s argument is patently flawed and bereft of legal basis.

2. Indeed, the definition of “vested rights”, as per Black’s Law Dictionary (Sixth Edition) reads thus:-

“Vested rights. In constitutional law, rights which have so completely and definitely accrued to or settled in a person that they are not subject to be defeated or canceled by the act of any other private person, and which it is right and equitable that the Government should recognize and protect, as being lawful in themselves, and settled according to then current rules of law, and of which the individual could not be deprived arbitrarily without injustice, or of which he could not justly be deprived otherwise than by the established methods of procedure and for the public welfare. Such interests as cannot be interfered with by retrospective laws; interests which it is proper for state to recognize and protect and of which individual cannot be deprived arbitrarily without injustice. American States Water Service Co. of California v. Johnson, 31 Cal. App.2d 600, 88 P.2d 770, 774. Immediate or fixed right to present or future enjoyment and one that does not depend on an event that is uncertain. A right complete and consummated, and of such character that it cannot be divested without the consent of the person to whom it belongs, and fixed or established, and no longer open to controversy. State ex Rel. Milligan v. Ritter’s Estate, Ind.App., 46 N.E.2d 736, 743.”

1. Furthermore, as to Section 6 of the GCA, it merits consideration that the scope of that provision was most eruditely explained by the High Court of Punjab and Haryana in the case of Satbir Singh v. State of Haryana and others, where with reference to reported judgments of the Supreme Court of India[1] and those of the Courts of England relating to analogous statutes in that jurisdiction,[2] it was observed that what is preserved by Section 6 is a right which already stands accrued, whereas the mere hope that one would acquire a right or would be at liberty to apply for a right or take benefit of a certain provision does not qualify as such. Needless to say, on that basis of that principle, what would inter alia remain unaffected repeal of the Ordinance is a registration already made thereunder, as indeed stands recognised vide Section 50(6) of the PMCA, stipulating that:

“(6) All registrations, recognitions etc., granted by the dissolved Pakistan Medical and Dental Council under the repealed Ordinance or the Pakistan Medical Commission under the Pakistan Medical Commission Ordinance, 2019 (XV of 2019) shall be deemed to be the registrations, recognitions granted by the Commission subject to not being in conflict with this Act and the provisions of this Act or the same being within the power of the Commission to recognize and register pursuant to this Act.”

1. However, it is manifest that the benefit of Section 6 of the GCA does not extend to a student such as the petitioner, who was still in the midst of the MBBS program at the time of enactment of the PMCA and had not even embarked upon his one-year house-job. No question of prospective or retrospective application of the PMCA is

involved in the matter at hand, and the real issue is merely the applicability of the statute in force on the date that the petitioner completes his medical education, which in this case is the PMCA, thus rendering his case liable to the application of Section 20 thereof. Ergo, the Petitioner cannot be heard to say that his case for a full license should be governed under the erstwhile Ordinance.

1. That being so, the Petition fails and stands dismissed accordingly.

(Y.A.) Petition dismissed

[1]. 1 AIR 1955 SC 84, (1985) 1 SCC 436, (1971) 3 SCR 815, AIR 1989 SC 1614, AIR 1997 SC 412.

[2]. (1895) AC 425, (1969) 1 All ER 121.

PLJ 2023 Karachi 104 (DB)

Present: Muhammad Junaid Ghaffar and Agha Faisal, JJ.

SAKHIB ZAR--Petitioner

versus

K-ELECTRIC LTD. and others--Respondents

C.P. No. D-255 of 2022, decided on 22.11.2022.

Constitution of Pakistan, 1973--

----Art. 199--Disciplinary proceedings--Unsanctioned absence from duty--Dismissal from service--Appeal--Allowed--Petitioner was reinstated without back benefits--Findings of culpability were never challenged by petitioner--Writ jurisdiction--Question of whether full bench NIRC has rightly restored original dismissal order--Challenge to--Petitioner was admittedly absent from duty without sanction--An inquiry was held and upon conclusion thereof findings of culpability led to his termination--The findings of culpability were maintained by Member NIRC and same was never challenged by petitioner-- Full Bench NIRC considered such an order without legal sanction and nothing has been brought on record by petitioner’s counsel for us to consider otherwise--Writ jurisdiction is not yet another forum of appeal and is restricted inter alia to appreciate whether any manifest illegality is apparent from order impugned--It is trite law that where fora had exercised its discretion in one way and that discretion had been judicially exercised on sound principles, interference in such discretion would not be merited unless same was contrary to law or usage having force of law--No manifest illegality has been identified in order impugned and further that no defect has been pointed out in so far as exercise of jurisdiction is concerned--Petition dismissed.

[P. 106] A, B, C & D

2022 SCMR 951, 2022 PLC (CS) 278, 1998 SCMR 1890, 2021 SCMR 425 & 2010 SCMR 105 ref.

Mr. Muhammad Mazan Buladi, Advocate for Petitioner.

Mr. Syed Yasir Ahmed Shah Assistant Attorney Sindh, Mr. Shaukat Ali Chaudhry, Advocate and Syed Asif Ali, Advocate for Respondents.

Date of hearing: 22.11.2022.

Order

Agha Faisal, J.--Briefly stated, post conclusion of disciplinary proceedings[1] the petitioner was dismissed from service on account of unsanctioned absence from duty. In appeal, the learned Member NIRC[2] observed that while the culpability of the petitioner was not in any doubt, however, taking a lenient view varied the punishment and reinstated the petitioner, albeit without back benefits. The petitioner never appealed the aforementioned decision; however, the respondent did and vide order dated 14.10.2021 (“Impugned Order”) the appeal of the respondent was allowed by the Full Bench NIRC and the order of the Member NIRC was set aside, hence, this petition.

1. Petitioner’s counsel admitted that the sustaining of culpability, by the Member NIRC, was never challenged; however, sought to agitate that the restoration of the original punishment could not be maintained. Respondent’s counsel submitted that the culpability of the petitioner was admittedly beyond doubt and the learned Full Bench NIRC had rightly deprecated interference in the consequence while maintaining culpability.

2. Heard and perused. The finding of guilt, maintained by the Member NIRC, has never been challenged by the petitioner. Therefore, the issue to be considered by us was whether the learned Full Bench NIRC had rightly restored the original dismissal order.

3. The august Supreme Court has maintained a strict view with regards to unlawful absence from duty and held that under such circumstances even the requirement of an inquiry could be dispensed with; since there was no factual dispute.[3] In Sarfaraz Ahmed[4] the Supreme Court relied upon Shan Elahi[5] to reiterate that an employer was duly entitled to dismiss, remove or terminate an employee with effect from the date of unauthorized absence and the penalty of dismissal from service would be maintained.

4. In the present facts the petitioner was admittedly absent from duty without sanction. An inquiry was held and upon conclusion thereof findings of culpability led to his termination. The findings of culpability were maintained by the Member NIRC and the same was never challenged by the petitioner. However, while maintaining the findings of culpability the Member NIRC reinstated the petitioner merely by taking a lenient view. The learned Full Bench NIRC considered such an order without legal sanction and nothing has been brought on record by the petitioner’s counsel for us to consider otherwise. In view of the dicta illumined by the august Court, it is apparent that no case for reduction of penalty, while maintaining culpability in the circumstances under consideration, is made out.

5. Article 199 of the Constitution contemplates the discretionary[6] writ jurisdiction of this Court and the said discretion may be exercised in the absence of an adequate remedy. In the present matter admittedly there existed an adequate remedy, however, the same was duly availed/exhausted. The petitioner’s counsel remained unable to articulate before us today as to why the impugned findings could not be rested on the law/record relied upon. It merits no reiteration that writ jurisdiction is not yet another forum of appeal and is restricted inter alia to appreciate whether any manifest illegality is apparent from the order impugned. It is trite law[7] that where the fora had exercised its discretion in one way and that the discretion had been judicially exercised on sound principles, interference in such discretion would not be merited unless the same was contrary to law or usage having the force of law. It is our considered view that no manifest illegality has been identified in the order impugned and further that no defect has been pointed out in so far as the exercise of jurisdiction is concerned.

6. In view hereof, we are constrained to observe that no case has been set forth to entertain this matter in the writ jurisdiction of this Court, hence, this petition, along with pending application/s, was dismissedvide our short order announced in Court earlier today upon conclusion of the hearing. These are the reasons for our short order.

(Y.A.) Petition disposed of

[1]. In respect whereof no cavil has been articulated.

[2]. Vide order dated 10.06.2021.

[3]. Per Ayesha A. Malik J. in Secretary Punjab vs. Syed Zakir Ali reported as 2022 SCMR 951.

[4]. DIGP Lahore vs. Sarfaraz Ahmed reported as 2022 PLC (CS) 278.

[5]. WAPDA vs. Shan Elahi reported as 1998 SCMR 1890.

[6]. Per Ijaz Ul Ahsan J. in Syed Iqbal Hussain Shah Gillani vs. PEC & Others reported as 2021 SCMR 425; Muhammad Fiaz Khan vs. Ajmer Khan & Another reported as 2010 SCMR 105.

[7]. Per Faqir Muhammad Khokhar J. in Naheed Nusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.

PLJ 2023 Karachi 107 (DB)

Present: Aftab Ahmed Gorar and Adnan-ul-Karim Memon, JJ.

ALLIED BANK OF PAKISTAN LIMITED through Attorneys--Petitioner

versus

NATIONAL INDUSTRIAL RELATIONS COMMISSION through Chairman and 3 others--Respondents

C.P. No. D-1469 of 2003, decided on 17.2.2022.

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

----Ss. 6, 7 & 8--Constitution of Pakistan, 1973, Art. 199--Registration of trade union--Trans provincial establishment--Maintainability--Both petitioner-bank has called in question registration of Officers Associations by Registrar of Industry-wise trade unions--Much water has flown under bridge, after change of legal position, now petitioner-bank falls within ambit of Act of 2012 and now to dilate upon subject issue at this stage, would be an academic question only after enactment of IRA-2012--After conditions described under Sections 7 and 8 have been met, Registrar if satisfied, may issue registration certificate--The impugned action of respondent-registrar, which has lost its efficacy--Petition disposed of.

[Pp. 107, 108 & 109] A, B, C & D

Mr. Shaukat Ali Chaudhry, Advocate for Petitioner.

Mr. Muhammad Nishat Warsi, DAG and Mr. Ali Safdar Depar, AAG for Respondents.

Date of hearing: 16.2.2022.

Order

Through the instant petition, both the petitioner-bank has called in question the registration of Officers Associations by the Registrar of Industry-wise trade unions, inter-alia, on the ground that under the old Industrial Relation Ordinance (IRO), 1969 Section 2 (26) defined a trade union to mean a combination of workers or employers, and hence both were liable to be registered under Section 5 of the IRO-1969 which provided that any union may under the signature of the President and Secretary apply for registration of the same; that under the new IRO-2002, the word employer has been dropped from Section 2(xxix) which defines a trade union, whereas under the new IRO 2002 an employers association cannot be registered; that the provision regarding registration is the same in both the IROs viz. Section 5 of the old Ordinance and Section 4 of the new Ordinance as such both impugned orders are not sustainable.

1. None present on behalf of the respondents despite service, therefore we deem it proper to hear this matter with the assistance of the learned counsel representing the petitioner-banks and learned DAG.

2. Mr. Muhammad Nishat Warsi, learned Deputy Attorney General, argued that the instant petition is not maintainable on the ground that the petitioner-bank is a trans-provincial establishment and falls within the ambit of the Act of 2012.

3. We have heard the learned counsel representing the petitioner-bank, learned DAG on the subject issue, and perused the record with their assistance.

4. Foremost questions in the present proceedings are as follows:--

i) Whether an Officer Association of the petitioner-bank can be registered under the Industrial Relation Ordinance 2002, (now repealed).

ii) Whether Petitioner-bank has locus standi to approach this Court as an aggrieved party under Article 199 of the Constitution against the decisions of Registrar Industry-wise Trade Unions?

iii) Whether petitioner-bank is the Trans-Provincial Organizations and fall within the ambit of National Industrial Relations Act, 2012?

iv) Whether or not the registration of industry-wise trade unions is violative of the law; and, liable to be canceled, in view of the mandate of Section 11 of the IRA-2012?

1. Science much water has flown under the bridge, after the change of legal position, now the petitioner-bank falls within the ambit of the Act of 2012 and now to dilate upon the subject issue at this stage, would be an academic question only after enactment of IRA-2012.

2. Primarily, the main object of enactment of the IRA-2012 has been described in its preamble. Section 2 defines expressions “establishment” and “group of establishments” in clauses (x) and (xiii) respectively. An industry-wise trade union has been defined in Section 2(xviii) as a trade union having its membership in more than one

province in a group of establishments owned by one employer. The trade union has been defined in clause (xxxi) of Section 2. Trans-provincial has been defined in clause (xxxii) of Section 2 as any establishment, group of establishment, or industry having its branches in more than one province. Section 5 describes the powers and functions of the Registrar of the NIRC. Clause (a) of Section 5 explicitly provides that the Registrar is empowered to register a “trade union” and to maintain a register for this purpose. The procedure and requirements for registration of a “trade union” are provided under Sections 6, 7, and 8 ibid. Section 9 provides that after the conditions described under Sections 7 and 8 have been met, the Registrar if satisfied, may issue the registration certificate. Section 10 provides that according to registering a “trade union” under Section 9, the Registrar shall issue a certificate of registration. Section 11 provides for the legal framework regarding the cancellation of registration of a “trade union”. Section 54 describes the powers and functions of the NIRC. Clause (b) of Section 54 empowers the NIRC to register a “trade union” or an “industry-wise trade union” or “group of establishments” in the Islamabad Capital Territory; and, the power to register an “industry-wise trade union” under the Act of 2012 is expressly vested in the NIRC.

1. The aforesaid questions could have been determined in time, if the legal position of the case, would not have changed as discussed supra, more particularly the impugned action of respondent-registrar, which has lost its efficacy, because of the protection of the interim order passed by this Court at the first date of hearing on 11.9.2003 passed in CP No. S-629 of 2003, requires an academic exercise.

2. We simply dispose of this petition as having become infructuous in terms of the new enactment of the IRA-2012. The petition stands disposed of along with the pending application(s).

(Y.A.) Petition diposed of

PLJ 2023 Karachi 109 (DB)

Present: Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, J.

PAKISTAN PETROLEUM LTD.--Petitioner

versus

STATE BANK OF PAKISTAN and others--Respondents

C.P. No. D-2531 of 2023, decided on 24.5.2023.

Constitution of Pakistan, 1973--

----Art. 199--Petitioner was obtaining a petrolum exploration licenses--Gas was divert certain contiguous blocks to petitioner’s blocks--Gas was property of petitioner--Allegations of theft and conversion of gas resources--Pendency of various civil litigation between parties--Allegation advanced arise in backdrop of competing claims in a commercial setting and is broader context of Civil proceedings pending inter se parties--Due care and circumspection are required before issuance of a writ for commencing proceedings under the AMLA in motion so as to investigate transactions that are alleged by one of the protagonists to be suspicious--Allegations advanced arise in backdrop of competing claims in a commercial setting and in broader context of civil proceedings pending inter se parties--Allegations turn on a study conducted by an independent consultant, which, as it transpires, is basis for Suit No. 1183/2022, where an ad-interim Order had been made in favour of Petitioner but has since apparently been vacated on appeal, with matter being remanded for adjudication of application for interlocutory relief--Correspondence addressed by Petitioner to Respondent No. 1 calling for its intervention appear to be perfunctory and bereft of any reference to supporting material having been enclosed therewith--A case properly stands made out for intervention of Court in exercise of extraordinary writ jurisdiction under Article 199, especially where it is yet to be ascertained whether Petitioner’s allegations of theft have any substance and where Petitioner has not yet taken any discernible steps for otherwise setting criminal justice system in motion--Petition dismissed. [P. 111] A, B & C

M/s. Muneer A. Malik and Taha Alizai, Advocates for Petitioner.

Date of hearing: 24.5.2023.

Order

Yousuf Ali Sayeed, J.--Learned counsel submits that the Petitioner, a public limited company of which 75% of the shareholding is that of the Government of Pakistan, holds certain petroleum concessions and leases in the Province of Sindh, in respect of which it has been granted Petroleum Exploration Licenses. He submits that the Respondent No. 7, a company incorporated in Mauritius, similarly holds the rights and concessions for certain contiguous blocks, which are being tapped in such a manner as to divert the gas from the Petitioner’s blocks. He submits that such gas is the property of the Petitioner, and the Respondent No. 7 is knowingly and willfully selling the same to SSGCL, which constitutes the offence of theft and cheating under the Pakistan Penal Code, hence the foreign remittances being made from the proceeds constitute the offence under the Anti Money Laundering Act 2010 (“AMLA”), requiring intervention on the part of the State Bank of Pakistan and the Financial Monitoring Unit, being the Respondents Nos. 1 and 2 respectively. He states that the Respondents Nos. 1 and 2 are under a statutory obligation in terms of the AMLA so as to mark the Respondent No. 7’s transactions as suspicious, but have not acted despite a letter dated 07.03.2023 and reminder dated 05.04.2023 having been addressed to them by the Petitioner. He submitted that directions to those respondents are thus elicited in the matter accordingly.

We have considered the submissions advanced and observed that various civil proceedings are admittedly ongoing between the parties, including Suit No. 1183/2022 filed by the Petitioner before this Court on the Original Side on allegations of misappropriation/ conversion of its gas resources, claiming injunction and damages as against the Respondent No. 7 and its principals. Needless to say, where, as in the instant case, the allegations advanced arise in the backdrop of competing claims in a commercial setting and in the broader context of civil proceedings pending inter se the parties, we are of the view that due care and circumspection are required before issuance of a writ for commencing proceedings under the AMLA in motion so as to investigate transactions that are alleged by one of the protagonists to be suspicious. As it stands, from the pleadings and the correspondence addressed by the Petitioner to the Respondent No. 1 calling for its intervention, it appears that the allegations turn on a study conducted by an independent consultant, which, as it transpires, is the basis for Suit No. 1183/2022, where an ad-interim Order had been made in favour of the Petitioner but has since apparently been vacated on appeal, with the matter being remanded for adjudication of the application for interlocutory relief. Even otherwise, the correspondence addressed by the Petitioner to the Respondent No. 1 calling for its intervention appear to be perfunctory and bereft of any reference to supporting material having been enclosed therewith.

Under the circumstances, we are not convinced that a case properly stands made out for intervention of the Court in exercise of the extraordinary writ jurisdiction under Article 199, especially where it is yet to be ascertained whether the petitioner’s allegations of theft have any substance and where the petitioner has not yet taken any discernible steps for otherwise setting the criminal justice system in motion. As such, we dismiss the Petition in limine along with pending miscellaneous applications.

(Y.A.) Petition dismissed

PLJ 2023 Karachi 112 (DB)

Present: Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, JJ.

SAMIRA MAHAMADI--Petitioner

versus

FEDERATION OF PAKISTAN and others--Respondents

C.P. No. D-2377 of 2023, decided on 18.05.2023.

Constitution of Pakistan, 1973--

----Art. 199--Petitioner was seeking audit of DHA--Financial statement--Petitioner was merely fell back on news report--Petitioner was deviated from first prayer--No meaningful foundation-- Petitioner merely fell back on a news report and when called upon to produce a copy of order itself, deviated from first prayer so as to move on to other prayers--A perusal of pleadings reflects that same to be bereft of any meaningful foundation in support of those prayers, which even otherwise appears to be beyond parameters of Article 199--Petition dismissed. [P. 113] A

Petitioner is present in person.

Date of hearing: 18.5.2023.

Order

Yousuf Ali Sayeed, J.--The Petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution praying that this Court be pleased:-

“1. To Direct the Auditor General of Pakistan to Conduct an Audit of DHA Karachi, as Ordered by Supreme Court/ 2015

1. To Direct Chairman Securities and Exchange Commission of Pakistan to register a Complaint with the Audit Oversight Board against KPMG Pakistan for failing to ‘Withdraw’ from the audit or to disclaim its ‘Qualified Opinion’ on the financial statements of DHA/2009, whilst leaving the Audit Report ‘Unsigned’ and for not reporting to the regulatory authorities the major irregularities detected including ‘Tax Evasion’

2. To Direct Chairman FBR to take appropriate action against DHA for ‘Tax Evasion’

3. To Direct Secretary Defence/Chairman Governing Body of DHA, to take appropriate action against Director

Military Lands and Cantonment and Administrator DHA Karachi for permitting sale of Amenity Plots by DHA Karachi and for the Sale Proceeds to be deposited in the Government Treasury as written in the Audit Report of AGP on The Accounts of Defence Services Audit/2018-19.”

On query posed as to the relevant Order of the Supreme Court, the Petitioner merely fell back on a news report and when called upon to produce a copy of the order itself, deviated from the first prayer so as to move on to other prayers. A perusal of pleadings reflects that same to be bereft of any meaningful foundation in support of those prayers, which even otherwise appears to be beyond the parameters of Article 199.

Under the given circumstances, while granting the application for urgency, we dismiss the Petition in limine along with other pending miscellaneous applications.

(Y.A.) Petition dismissed

PLJ 2023 Karachi 113 (DB)

Present: Ahmed Ali M. Shaikh, CJ and Yousuf Ali Sayeed, JJ.

RUSTAM BAIG FAREED and others--Petitioners

versus

XII ADJ (SOUTH) and others--Respondents

C. P. No. D-2586 of 2023, decided on 26.05.2023.

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

----O.VI R. 17--Application for amendment in plaint--Allowed--Civil revision--Dismissed--Pecuniary jurisdiction--Change of name and change of valuation of suit property--Challenge to--Petitioners sought to change name of Defendant No. 1 and valuation of Suit to Rs. 40.54 Million, beyond pecuniary jurisdiction of Court-- Application was partly allowed to extent of change of name of Defendant No. 1, with prayer as to change of valuation being declined--Once those Applications are decided, any party aggrieved would have right to avail appropriate remedy, and propriety of relevant Orders would fall to be tested on their own merit--Petition is misconceived, with no case for interference being made out in exercise of Constitutional jurisdiction of this Court--Petition dismissed. [P. 114 & 115] A, B & C

Mr. Sami Ehsan, Advocate for Petitioners.

Date of hearing: 26.5.2023.

Order

YousufAli Sayeed, J.--The Petitioners have invoked the jurisdiction of this Court under Article 199 of the Constitution, impugning the Order dated 17.2.2023 made by the learned Additional District & Sessions Judge-XII/Model Civil Appellate Court, Karachi, South, dismissing Civil Revision Application No. 53/2022 filed by the Petitioners against the Order passed by the learned XIth Senior Civil Judge, Karachi, South, on 15.1.2022 in Civil Suit No. 663/2018, whereby their Application under Order VI Rule 17 CPC was dismissed.

Through the underlying Application, the petitioners sought to change the name of the Defendant No. 1 from Sajid Ali to Sajjad Ali and the valuation of the Suit to Rs. 40.54 Million, beyond the pecuniary jurisdiction of the Court. That Application was supported by the Affidavits of the Petitioners Nos. 1(1) and 2 (2), wherein as regards the subject of valuation, it was merely stated that:

“In the Paragraph No. 20, of the memo of plaint the Suit properties exceed Rs. 15 Million as Rs. 54,00,000/- for Karachi Property and Rs. 40 Million therefore the suit is valued as Rs. 40.54 million which is more than the pecuniary jurisdiction of this Hon’ble Court. Therefore, necessary amendment may be allowed in the interest of justice.”

The Application was partly allowed to the extent of change of name of the Defendant No. 1, with the prayer as to the change of valuation being declined. The Revisional Court upheld the order of the trial Court, observing, inter alia, that:

“In instant case, Applicants/Plaintiffs have not sought amendment in respect of any left-over property of the deceased, rather, they want to change the valuation of the property with statement that market value of the property is more than the pecuniary jurisdiction of the trial Court. It is gathered from the Record & Proceedings that Applicants/Plaintiff themselves valued the properties @ Rs. 15 million, for the purpose of valuation under Section 3 of the Suits Valuation Act, 1887, Pecuniary Jurisdiction & Court fees and Defendants also did not raise any objection on the pecuniary jurisdiction of the Trial Court, thus, at the time of the valuation of the properties at the time of institution is the determining factor quo pecuniary jurisdiction under Section 6 of the CPC, but not the market value or sale price, obtained by the Commissioner pursuant to Preliminary Decree.”

On query posed as to what perversity or illegality afflicted the Orders of the fora below, learned counsel for the petitioners was found wanting and invited attention to certain paragraphs of the Memo of Petition so as to argue that certain other applications under Order 22 Rules 2 & 3 CPC, Order 22 Rule 4 CPC, Order I Rule 10 CPC and yet another Application under Order VI Rule 17 CPC had been filed in the Suit, the outcome of which would be impacted by the subsistence Orders.

We do not find any force in such submissions. Needless to say, once those Applications are decided, any party aggrieved would have the right to avail the appropriate remedy, and the propriety of the relevant Orders would fall to be tested on their own merit. As such, we are of the view that the Petition is misconceived, with no case for interference being made out in exercise of the Constitutional jurisdiction of this Court. Hence, while granting the application for urgency, we hereby dismiss the Petition in limine, along with the pending miscellaneous application.

(Y.A.) Petition dismissed

PLJ 2023 Karachi 115 (DB)

Present: Ahmed Ali M. Shaikh, CJ, Yousuf Ali Sayeed, J.

M/s. ADAMJEE INSURANCE COMPANY LTD.--Petitioner

versus

PRESIDENT OF PAKISTAN and others--Respondents

C.P. No. D-1688 of 2017, decided on 1.6.2023.

Federal Ombudsman Institutional Reforms Act, 2013--

----S. 14--Constitution of Pakistan, 1973, Art. 199--Facility of agricultural loan against hypothecation of cotton and sugarcan crop--Suit land was flooded by rains--Subject land was not included in notification regarding calamity hit areas--Denial of claim by Respondent No. 3--Hypothecation client--Challenge to--From a plain reading of Agreement and Policy, it is apparent that Petitioner is correct in its contention that purpose thereof was to safeguard security interests of Bank--Indeed, essence of arrangement is manifest from claim tendered by Respondent No. 3 to Petitioner--There was no privity of contract inter se Petitioner and Respondent No. 3--Indeed, record reflects that even premium amount was paid by Bank and then debited to account of Respondent No. 3 as per their internal arrangement in respect of loan availed--It is bank which had entered into agreement with insurance company at time of obtaining policy to protect bank’s interest against such loan exposures--Petitioner’s denial of Respondent No. 3’s claim does not conceivably fall within ambit and purview of maladministration” within meaning ascribed to that term as per Section 127(2) of Ordinance so as to attract jurisdiction of Respondent No. 2, and findings recorded by statutory fora in respect of Claim are wholly unreasonable and cannot sustain--Petition allowed. [Pp. 120 & 121] A, B, C & D

Mr. Abdul Rasheed Rajar, Advocate for Petitioner.

Mr. Khaleeq Ahmed, D.A.G for Respondents.

Respondent No. 3, in Person.

Date of hearing : 1.6.2023.

Order

Yousuf Ali, Sayeed, J.--The Petitioner, an insurance company, has invoked the jurisdiction of this Court under Article 199 of the Constitution so as to impugn the Order dated 03.10.2016 made by the Respondent No. 2, being the Federal Insurance Ombudsman, in Complaint No. 21/2015 (the “Complaint”), directing the Petitioner to settle a claim made by the Respondent No. 3 in the sum of Rs. 500,000/-, as well as the Order subsequently emanating from the President’s Secretariat on 05.1.2017, rejecting the representation made to the President of Pakistan under Section 14 of the Federal Ombudsmen Institutional Reforms Act, 2013.

1. The backdrop to the matter is that the Respondent No. 3 had availed the facility of an agricultural loan of Rs. 500,000/- from Muslim Commercial Bank (MCB), Grain Market Branch, Mirpurkhas (the “Bank”) against the hypothecation of the cotton and sugarcane crop cultivated by him on his land measuring 12.09 acres situated in the area of Taluka Kot Ghulam Muhammad, District Mirpurkhas (the “Subject Land”), with the crop being insured under Policy No. PL-0411-301006-S39-000750 dated 12.04.2011, effective from that date to 11.04.2012 (the “Policy”), issued by the Petitioner under the framework of an Agreement dated 09.10.2008 (the “Agreement”) executed between it and the Bank.

2. Per the Respondent No. 3, the Subject Land was inundated due to heavy rains in the month of August, 2011, with the crop thus being destroyed; prompting him to lodge a claim under the Policy. On denial of the claim, the Respondent No. 3 firstly approached the Banking Mohtasib, but was unsuccessful in being able to obtain any substantial relief as against the Bank. He then subsequently approached the Insurance Tribunal while simultaneously filing the Complaint, but withdrew from the Tribunal so as to maintain the Complaint before the Respondent No. 2, which then culminated in the Order dated 03.10.2016.

3. Learned counsel for the petitioner submitted that it was the Bank which had entered into the Agreement with the petitioner to cover its exposure in respect of the agricultural loans extended by it from time to time in the event that its security interest in the crop(s) hypothecated in its favour by its customer(s) were compromised by the vagaries of weather. Hence the Policy showed the Bank as the Petitioner’s customer and as the party that was insured, whereas the Respondent No. 3 was merely mentioned as a “Hypothecation Client”. He submitted that the Agreement and Policy were thus intended to benefit the Bank and not the Respondent No. 3. He submitted that it was for the Bank to make a claim under any policy issued under the framework of the Agreement, and adjust/offset proceeds against the liability of its customer, but whether or not it shared or passed on the benefit of the insurance claim was not a matter falling within the purview of the Petitioner.

4. He submitted that when the claim of the Respondent No. 3 had been forwarded, the area where the Subject Land was situated was not included in the Notification dated 07.09.2011 issued by the Government of Sindh whereby various rain affected areas, including certain Dehs of District Mirpurkhas, had been declared as “calamity hit areas” with reference to the names of particular towns and villages, and only came to subsequently be so notified on 06.05.2014, by when the maximum limit of liability set in terms of the Agreement had already been exhausted. As such, the claim was rightly repudiated on both occasions. He argued that the Complaint could not have been entertained by the Respondent No. 2, and that the Orders dated 03.10.2016 and 05.1.2017 (collectively, the “Impugned Orders”) suffered from error and were liable to be set aside.

5. Conversely, the learned DAG and the Respondent No. 3, who appeared in person, supported the Impugned Orders while submitting that the Subject Land had been flooded by rains within the validity of the Policy, resulting on destruction of the insured crop. However, on query posed, they conceded that the Policy was tied to the Agreement and governed by the terms and conditions set out therein.

6. We have considered the arguments advanced and examined the Impugned Orders in light of the material on record, particularly the Agreement and Policy on which the fate of the claim underpinning the Complaint hinges.

7. The jurisdiction of the Respondent No. 2 is circumscribed by Section 127 of the Ordinance, which inter alia reads as follows:

“127. Jurisdiction, functions and powers of Insurance Ombudsman.--(1) The Insurance Ombudsman may on a complaint by any aggrieved person undertake any investigation into any allegation of mal-administration on the part of any insurance company:

Provided that the Insurance Ombudsman shall not have any jurisdiction to investigate or inquire into any matters which--

(a) are within the jurisdiction of the Office of the Wafaqi Mohtasib under the Establishment of the Office of Wafaqi ohtasib (Ombudsman) Order, 1983 (P.O. 1 of 1983) ; or

(b) are sub-judice before a Court of competent jurisdiction or tribunal or board in Pakistan on the date of the receipt of a complaint, reference or motion by him.

(2) For the purposes of this section “mal-administration” includes:--

(a) a decision, process, recommendation, act of omission or commission which:

(i) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons; or

(ii) is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory; or

(iii) is based on irrelevant grounds; or

(iv) involves the exercise of powers, or the failure or refusal to do so, for corrupt or improper motives, such as, bribery, jobbery, favouritism, nepotism and administrative excesses; and

(b) corruption, nepotism, neglect, inattention, inordinate delay, incompetence, inefficiency and ineptitude in the administration or discharge of duties and responsibilities.

(3) …

(4)…

(5) …”

1. That being said, a perusal of the Policy shows the Bank to be named as the customer as well as the party insured, and the Respondent No. 3 being identified by name as what is termed a “Hypothecation Client” and the cotton and sugarcane cultivated on the Subject Land being described as the risk covered, with the sum insured being stated as Rs. 500,000/- subject to payment of a premium of Rs. 8750/-. The Policy goes on to narrate that:

“Cover provided under this policy is against unavoidable loss of crop or part thereof resulting directly from the perils such as excessive rains, drought hail storm insects/pest attach, cyclone and fire by lightening.

Period of insurance will commence from the date of sowing of crop(s) or date of this policy whichever is later. Use of two or more crops, sum insured shall be equally divided in all crops if not proportionate by the insured. Coverage terms & conditions, exclusions & provisions stated as per agreement dated 09.10.2008.”

[underlining added for emphasis]

1. In turn, the Agreement reflects the Petitioner and the Bank to be the parties, and records that the Bank is in the business of banking, and provides credit facilities to the farmers under its various Credit Schemes and that the parties intend to make an arrangement through the Agreement for providing insurance cover for those credit schemes so as to define the arrangements of insurance, payment of premium, scope of coverage, responsibilities of both parties and settlement of claims. Towards that end, the Agreement records the rates of premium for the different agricultural schemes, including that of Crop Loan Insurance, with Clause 10 thereof specifying that:

“10. Maximum Extent of Indemnity: Maximum limit of liability of the scheme will be limited to 300% of the total premium collected in a year.”

1. From a plain reading of the Agreement and Policy, it is apparent that the Petitioner is correct in its contention that the purpose thereof was to safeguard the security interests of the Bank. Indeed, the essence of the arrangement is manifest from the claim tendered by the Respondent No. 3 to the Petitioner, which reads thus:

“Mr. Tanveer Ahmed Adamjee Insurance Company Lahore.

Dear Sir, CLAIM OF MY INSURANCE POLICY No. PL-0411-301006-S39-000750.

The undersigned availed agriculture loan from MCB Bank Grain Market Mirpurkhas branch in the year 2011. To secure the loan the aforementioned bank branch insured crop of cotton/sugarcane cultivated on my agriculture land situated in village Mima deh 218 U/C Kot Ghulam Mohammad.

In this context your insurance company issued subject policy of sum insured Rs. 0.500m on 12.04.2011 which was valid up to 11.04.2012. Suddenly in the month of August September of year 2011 my entire crops were ruined out due to heavy rains and flood. The Government of Sindh relief department declared district and taluka wise names of calamity affected dehs of District Mirpurkhas through notification on 07.09.2011 (copy enclosed). My deh was also included in these affected areas.

In this respect I referred the matter to my said branch and requested to lodge claim with your company regarding loss of crops which I sustained therefore is unable to clear my bank dues. In support I submitted the aforesaid copies of declaration.

I regret to note that considerable time has been passed away but sorry to say that neither bank branch nor your company has pay no heed to inform me about the settlement of my claim. I request you to please refer my subject policy and inform me the status of my claim within shortest possible time otherwise I reserve a right to submit my case before competent Court of law for justice.

Regards Abdul Aziz Bhurgari Dated 04.07.2013”

1. The wording of the claim itself demonstrates that there was no privity of contract inter se the Petitioner and Respondent No. 3. Indeed, the record reflects that even the premium amount was paid by the Bank and then debited to the account of the Respondent No. 3 as per their internal arrangement in respect of the loan availed.

2. Furthermore, the Respondent No. 3 had himself stated in the Complaint that “The honorable Banking Mohtasib Pakistan in his letter Bearing No. 2014-340-3921 dated 1.7.2014 which was addressed to Mr. Najeeb Malik, divisional head MCB Bank, Lahore informed him that it is bank which had entered into agreement with insurance company at the time of obtaining policy to protect bank’s interest against such loan exposures” and that “I availed agriculture finance Rs. 0.500M from MCB bank branch Grain Market Mirpurkhas in the month of April, 2011 against security of my agriculture land situated at deh 218 union Council Daghan taluka Kot Ghulam Muhammad District Mirpurkhas, also hypothecated crops of Sugarcane and Cotton cultivated over the land. Further to secure the finance amount, the bank branch insured whole crops on land with Adamjee Insurance Company with sum insured Rs. 0.500M under policy No. PL-0411-301006-S39-000 for the period 12.04.2011 to 11.04.2012. The amount of insurance premium Rs. 8750/- was paid to said insurance company through demand draft Bearing No. 03002992 dated 11.04.2011 by debiting my Account No. 69051 by the said bank branch itself”.

3. However, this fundamental aspect has been completely overlooked by the statutory fora while adjudicating upon the Complaint.

4. Under the given circumstances, it is apparent that the Petitioner’s denial of the Respondent No. 3’s claim does not conceivably fall within the ambit and purview of ‘mal-administration’ within the meaning ascribed to that term as per Section 127(2) of the Ordinance so as to attract the jurisdiction of the Respondent No. 2, and the findings recorded by the statutory fora in respect of the Claim are wholly unreasonable and cannot sustain.

5. That being so, the Petition stands allowed, with the Impugned Orders being set aside.

(Y.A.) Petition allowed

PLJ 2023 Karachi 122 (DB)

Present: Ahmed Ali M. Shaikh, C.J. and Adnan Iqbal Chaudhry J.

MUHAMMAD ASLAM etc.--Petitioners

versus

PROVINCE OF SINDH and others--Respondents

C.P. Nos. D-3738, D-3741, D-3747, D-3750, D-3761, D-3773 of 2023, decided on 16.8.2023.

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

----S. 3(1)--Detention order--Blocking of roads--Organize sit-ins--Law & order situations--Public safety--Legal competence of order of Secretary--Power of Provincial Government to issue prevention order--This Court had allowed identical petitions challenging identical detention orders--Detention orders impugned in the present petitions are in the same series--Comments filed by Focal Person of Home Department Sindh simply state that impugned detention orders were issued on request of IGP Sindh--No attempt has been made to address apparent want of authority-- Home Secretary, Government of Sindh had no lawful authority to issue detention orders under Section 3(1) of MPO Ordinance--Petition allowed. [Pp. 123 & 124] A, B & C

Ref. PLD 1973 Karachi 78, PLD 2016 SC 808.

M/s. Jowhar Abid, Liaquat Ali Hamid Meyo, Muhammad Imran Meo, Advocates for Petitioners.

Mr. Saifullah, Assistant Advocate General Sindh alongwith M/s. Asghar Mahar, Focal Person, Home Department, Government of Sindh, Police Officials namely; Rao Rafiq, SHO, Zaman Town, Syed Mussadiq Amjad, DSP Legal Raza Mian, DSP/Focal Person IGP and DSP Muhammad Yousuf, Central Jail, Karachi, all are present in Court for Respondents.

Date of hearing: 11.8.2023.

Judgment

Adnan Iqbal Chaudhry, J.--By a short order dated 11-08-2023 we had allowed these petitions and had ordered the release of the detenues after declaring their preventive detention unlawful. These are the reasons for that order.

1. The Petitioners are family members of detenues held in preventive detention. The detention orders were issued by the Home Secretary, Government of Sindh to the Inspector General Police, Sindh [IGP] under Section 3(1) of the Maintenance of Public Order Ordinance, 1960 [MPO Ordinance]. Since detention is for 30 days, the role of the Review Board constituted under Article 10 of the Constitution of Pakistan is not triggered. The detention orders were issued on different dates around mid-July 2023. The ground for detention in all is identical viz. that the IGP has informed that each detenu “is instigating and provoking public to block roads, highways and organize sit-ins which may disturb peace and tranquility, and can create serious Law & Order situations and such an act on his part will be highly prejudicial to the Public Safety and Maintenance of Public Order, therefore; Inspector General of Police Sindh, has recommended that he may be detained under MPO-1960”. It is not the case of the Respondents that the grounds of detention were set-out separately in any other document.

2. By reasons dated 01-08-2023 in C.P. No. D-3387/2023, judgment dated 31-07-2023 in C.P. No. D–3601/2023, and judgment dated 07-08-2023 in C.P. No. D–3686/2023 (all including connected petitions), this Court had allowed identical petitions challenging identical detention orders. The detention orders impugned in the present petitions are in the same series.

3. In the aforesaid cases, the legal competence of the Home Secretary to issue orders of preventive detention under Section 3(1) of the MPO Ordinance had also come into question, which was decided as follows:

“Since the power to issue an order for preventive detention under Section 3(1) of the MPO Ordinance vests in the Provincial Government, and since the impugned orders did not signify the decision of the Provincial Government, we had asked the learned AAG Sindh to verify whether the impugned orders had the backing of the Provincial Cabinet. This was of course in view of the case of Mustafa Impex v. Federation of Pakistan (PLD 2016 SC 808) where the Supreme Court held that after the Eighteenth Amendment the word ‘Government’ means the Cabinet, and also keeping in view the dictum that the law on preventive detention has to be strictly construed. In response, the AAG Sindh placed on record a decision of the Provincial Cabinet dated 27-04-2020, followed by notification dated 11-06-2020 whereby it had delegated to the Home Secretary the power to issue detention orders under Section 3(1) of the MPO Ordinance. The AAG Sindh and the Additional Home Secretary submitted that such delegation was permitted, and was so done by the Provincial Cabinet under

Section 26 of the MPO Ordinance, and hence the impugned detention notices by the Home Secretary exercising delegated power. But neither the Provincial Cabinet nor the AAG Sindh seemed to be aware that Section 26 of the MPO Ordinance which had previously enabled delegation of powers, and that too only to the District Magistrate, had been omitted for the Province of Sindh along with sub-section (2) of Section 3 vide Sindh Laws (Amendment) Ordinance, 2001, published in the gazette dated 28-11-2001, and which Ordinance came to be protected legislation under Article 270AA of the Constitution until repealed. We were not informed of any subsequent repeal or amendment. Thus, on 27-04-2020, the Provincial Cabinet could not have invoked Section 26 of the MPO Ordinance to delegate its powers under Section 3(1) to the Home Secretary. In any case, as held by a learned Division Bench of this Court in Liaqat Ali v. Government of Sind (PLD 1973 Karachi 78), the erstwhile Section 26 had envisaged delegation only of the ‘power’ to arrest and detain under Section 3(1), not of the faculty of ‘satisfaction’, which had to be that of the Provincial Government itself. Consequently, the impugned detention orders issued by the Home Secretary were without lawful authority.”

1. The detention orders in these petitions are also afflicted by the same defect. The comments filed by the Focal Person of the Home Department Sindh simply state that the impugned detention orders were issued on the request of the IGP Sindh. No attempt has been made to address the apparent want of authority discussed above.

2. Therefore, this Court having already held that the Home Secretary, Government of Sindh had no lawful authority to issue detention orders under Section 3(1) of the MPO Ordinance, these petitions were also allowed vide short order dated 11-08-2023.

(J.K.) Petition allowed

PLJ 2023 Karachi 124 (DB)

Present: Irfan Saadat Khan, and Zulfiqar Ahmed Khan, JJ.

SEHRISH HANIF and others --Appellants

versus

MUHAMMAD AZIZ and others--Respondents

HCA No. 58 of 2023, decided on 21.8.2023.

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

----O.XX R. 13--Punjab Partition of Immovable Property Act, 2012, S. 4--Specific Relief Act, (I of 1877), S. 54--Suit for administration, partition and permanent injunction--Legal heirs--Partition of property--Appointment of Nazir--Private sale--Public auction—Raising of objections--Valuation of property--Potential buyer--Sale offer--Opportunity to bring prospective buyer--Failed to--Since there were a number of legal heirs left by of late Mst. Ghulam Fatima, it was impossible to partition subject property, which comprises of 235 Sq.Yds only--It is also an admitted fact that a number of legal heirs of Late Muhammad Hanif, other than appellants, have already withdrawn amounts of their respective share from Nazir--It is also an admitted fact that several opportunities were provided by Single Judge, while hearing matter to appellants on their request to bring any prospective buyer interested in purchasing property for an amount Rs. 03 crores or to match price themselves but appellants have utterly failed to do so--Neither any amount was deposited by appellants with Nazir as required under rules nor have matched sale price offered by Respondent No. 1 or have brought any prospective buyer to purchase property, price offered by Respondent No. 1 was accepted and confirmed--Order of Single Judge, impugned in instant HCA does not warrant any interference and is found to be in accordance with law--The instant HCA is found to be bereft of any merit--Petition dismissed. [Pp. 128 & 129] A, B & C

Mr. Fateh Muhammad,for Appellants.

Kh. Saiful Islam, Advocate Respondent No. 1.

Nemo for Respondents No. 2 to 9.

Date of hearing: 15.8.2023.

Judgment

Irfan Saadat Khan, J.--This High Court Appeal (HCA) has been filed impugning the order dated 15.02.2023 passed by the learned Single Judge in Suit No. 1080/2014.

1. Briefly stated the facts of the case are that the Respondent No. 1 filed a suit for administration, partition and permanent injunction in respect of the property bearing House No. A-462, Block-8, Karachi Administration Employee’s Cooperative Housing Society, measuring 235 sq.yds. The said property was in the name of Mst. Ghulam Fatima w/o Muhammad Suleman, who had expired on 29.01.1993. Mst. Ghulam Fatima left the present Respondent No. 1 and Muhammad Hanif, her two sons as her legal heirs at the time of her death. The present Appellants and the Respondents No. 2 to 9 are the legal heirs of Muhammad Hanif (son of late Ghulam Fatima) who also has expired on 27.12.2013. Due to difference amongst the present Respondent No. 1 and the legal heirs of Muhammad Hanif, the above referred suit Bearing No. 1080/2014, was filed. The matter proceeded before the learned Single Judge who vide order dated 22.12.2016 appointed Nazir as Administrator of the property and was also directed to make an attempt for private sale amongst the parties and if not, then sell out the same through public auction. Objections were raised time and again by the parties with regard to the valuation of the property. The Nazir in his report dated 16.09.2021 pointed out that the Respondent No. 1 has agreed to purchase the property at Rs. 3 crore however the appellants have objected to the same. The appellants before the learned Single Judge submitted that the property is worth Rs. 4,25,00,000/-. The learned Single Judge then vide order dated 11.08.2022 directed the Appellant No. 1, (who was Defendant No. 12 in the suit) to prepare a pay-order of Rs. 4,25,00,000/- in the name of the Nazir of this Court to show her keenness to purchase the property and to bring the same on the next date of hearing. Thereafter a number of opportunities were given to the appellants to either deposit the amount of Rs. 4,25,00,000/- or to bring some potential buyer, if they were of the view that the property was worth Rs. 4,25,00,000/- or more, so that the suit with regard to partition could be disposed of and proper and respective share of each legal heir, in accordance with law and shariah, may be distributed accordingly. It is an admitted position that inspite of giving several chances, the present appellants have failed to either abide by the instructions of the Court or to bring any prospective buyer of the suit property in respect of the amount, which according to them would fetch if sold in open market. It is under these circumstances that the learned Single Judge vide impugned order confirmed the sale offer as given by the Respondent No. 1 and dismissed all the listed and pending applications, as having become infructuous, by confirming the sale at Rs. 3 crore offered by the Respondent No. 1.

2. Mr. Fateh Muhammad, attorney of all the Appellants, has appeared and stated that as per Nazir’s report dated 19.5.2022 the property was considered to be between Rs. 3,75,00,000/- to Rs. 4,25,00,000/-, hence confirmation of the sale at Rs. 3 crore by the learned Single Judge was not in accordance with law. He stated that the order may be set aside and the Nazir may be directed to cancel the sale certificate as the value of the property is more than Rs. 3 crore, which was incorrectly accepted by the learned Single Judge and some time may be given to the appellants to bring some prospective buyer for purchase of the property at a higher figure then that of Rs. 3 crore.

3. He next stated that serious monetary prejudice would be caused to the appellants, if respective share of each legal heirs is worked out at Rs. 3 crore. He stated that no doubt the appellants have failed to bring any prospective buyer for above Rs. 3 crore and have not complied with the order dated 11.8.2022, passed by the learned Single Judge, but if some time is granted to them they are willing to bring some prospective buyer of the property, which according to him is worth approximately Rs. 5 crore. He therefore, request that the order of the learned Single Judge may be set aside and some time may be given to the appellants in respect of the prayer made by them in the interest of justice.

4. Khawaja Saif-ul-Islam, Advocate has appeared on behalf of the Respondent No. 1 and vehemently opposed the present appeal. He stated that several opportunities were provided to the appellants to bring a purchaser, who is ready and willing to purchase the property above Rs. 3 crore, but the appellants have miserably failed to do so. He stated that though it has been averred time and again by the appellants that the property is more than Rs. 3 crore and at one stage has shown their willingness either to purchase the same or to match the price but have failed to do so despite the fact that a number of opportunities were given to them by the learned Single Judge, which clearly proves that the appellants were only interested in delaying the process and to linger on the same unnecessarily. Whereas, according to him, the Respondent No. 1 has duly deposited Rs. 83,00,000/- with the Nazir, which has been acknowledged by the Nazir in his report dated 22.10.2022 and a substantial amount deposited by the Respondent No. 1 has already been distributed among a number of legal heirs of late Muhammad Hanif, who are either brothers or sisters of the present appellants.

5. He stated that from the record, it would be seen that despite given several chances to the appellants they have not deposited any amount with the Nazir in respect of the value, which according to them is the true market price of the said property. He stated that it was under these circumstances that the learned Single Judge quite rightly passed the order by confirming the sale in favour of the Respondent No. 1 on the amount offered by him. He therefore, finally prayed that in view of the above facts the instant HCA, alongwith the listed applications, may be dismissed by imposing cost upon the present appellants.

6. Nobody has appeared on behalf of the Respondents No. 2 to 9.

7. We have heard the Attorney of the appellants as well as the learned counsel for Respondent No. 1 at some length and have also perused the record.

8. Perusal of the record reveals that since there were a number of legal heirs left by of late Mst. Ghulam Fatima, it was impossible to partition the subject property, which comprises of 235 Sq.Yds only. When the matter filed by the present Respondent No. 1 proceeded before the learned Single Judge in respect of partition it was agreed between all the contesting parties before the Court that let the property be sold out to a prospective buyer, be that any one of the parties, and to distribute the shares out of the sale proceeds of the property amongst all the legal heirs as per sharia. Though a compromise application was also filed by the parties with the understanding that the property would be sold out and thereafter respective shares would be distributed amongst the legal heirs; however it is an admitted position that since the rates, which were as per the legal heirs would fetch in the open market if the property is sold, could not be obtained in spite of several attempts, the plaintiff as well as the defendants in the suit were given the chance either to purchase the property by themselves, or to bring some prospective buyer in this regard. Record also reveals that the Nazir in his report has also opined that the value of the property ranges between the Rs. 3,75,00,000/- to Rs. 4,25,00,000/-. It is also submitted in the report that despite making hectic efforts and giving advertisement in the newspapers no one approached the Nazir of this Court to show interest in purchasing the said property. Under these circumstances the Respondent No. 1 offered to purchase the property at Rupees 03 crores and to show his bona fides substantial amount was also deposited by him with the Nazir.

9. It may be noted that the present appellants have miserably failed to either purchase the property by themselves or to bring any prospective buyer who could purchase the property for an amount above Rs. 03 crores offered by the Respondent No. 1. It is also an admitted fact that a number of legal heirs of Late Muhammad Hanif, other than the appellants, have already withdrawn the amounts of their respective share from the Nazir. It is also an admitted fact that several opportunities were provided by the learned Single Judge, while hearing the matter to the appellants on their request to bring any prospective buyer interested in purchasing the property for an amount above Rs. 03 crores or to match the price themselves but the appellants have utterly failed to do so.

10. It is in this background that the learned Single Judge came to the conclusion that since neither any amount was deposited by the appellants with the Nazir as required under the rules nor have matched the sale price offered by the Respondent No. 1 or have brought any prospective buyer to purchase the property, the price offered by the Respondent No. 1 was accepted and confirmed. Hence under these facts and circumstances, we are of the view that the order of the learned Single Judge, impugned in the instant HCA does not warrant any interference and is found to be in accordance with law. The instant HCA is found to be bereft of any merit which stands dismissed along with the listed and pending application. No order as to cost.

(J.K.) Petition dismissed

PLJ 2023 Karachi 129 (DB)

Present: Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J.

M/s. OUTDOORSMAN--Petitioner

versus

PROVINCE OF SINDH and others--Respondents

C.P. No. D-2944 of 2020, heard on 12.4.2023.

Sindh Arms Rules, 2018--

----Rr. 3.1 & 14--Sindh Arms Act, (V of 2013), Ss. 2(f), 4 & 6--Petitioner was a arms dealer--Application for manufacturing of small arms and small arms ammunition license--Reports of agencies--Preparation of summary--Handwritten endorsement of C.M.--Direction to--It does not behoove Petitioner to take plea that Impugned Summary is unwarranted as no further approval is required in wake of CM’s handwritten endorsement--We are not convinced that any further policy is required to be formulated by Cabinet and rationale expressed by Home Department in terms of letter addressed to CM’s Secretariat by Respondent No. 3 with reference to performance of Petitioner’s arms dealership under license previously granted has any relevance to aspect of manufacturing or that it presents a valid cause for denial of license sought in that regard, especially in wake of NOCs otherwise forthcoming from relevant quarters--Present subject is not one of prohibited arms or prohibited ammunition otherwise falling under Section 6 of Act, we hereby dispose of Petition under given circumstances with direction that application of Petitioner for grant of a small arms manufacturing license be decided by CM through a speaking order, in accordance with Act and Rules, within a period of 30 days from date of this Order--Disposed of.

[P. 140] A, B & C

Mr. Mohsin Shawani, Advocate for Petitioner.

Mr. Muhammad Jawwad Dero, Additional Advocate General, Sindh, alongwith Ali Asghar Mahar, Focal Person, Home Department, Government of Sindh for Respondents.

Date of hearing: 12.04.2023.

Order

Yousuf Ali Sayeed, J.--The Petitioner is apparently engaged in business as an arms dealer, operating under a license granted in terms of the Sindh Arms Act, 2013 (the ‘Act’) and the Sindh Arms Rules, 2018 (the ‘Rules’) in the name of his proprietary concern -“Outdoorsman”. He now desires to establish a facility for the manufacture of small arms and small arms ammunition in the province, and seeks a further license under the Act and Rules for that specific purpose.

1. The case set up by the Petitioner gravitates around an application for a manufacturing license made by him to the Chief Minister (the ‘CM’) of the Government of Sindh (the ‘GOS’) through a letter dated 06.03.2018, which reads as follows:

“March 6th, 2018

To: The Honourable Chief Minister of Sindh

Subject: Request for permission to set up a plant to manufacture small arms and small arms ammunition.

Dear Sir, I am writing this application to you because I am interested in starting a factory to manufacture small arms (Rifles, shotguns, pistols and revolvers) and small arms ammunition in Karachi. I already own a company by the name of ‘The Outdoorsman’ which is a licensed arms dealership since the year 2016. This license to buy, sell and repair small arms (rifles, pistols, revolvers, and shotguns) and their ammunition was granted to me by the Government of Sindh after I passed the necessary scrutiny process by all the various intelligence agencies (Military Intelligence, Intelligence Bureau, Special Branch, Sindh Police, Local DC etc.).

There are already a number of companies in Pakistan that are privately owned and in the business of manufacturing both small arms and small arms ammunition in Pakistan so there is already a precedent for granting such permission to us.

I would be grateful if you would grant me this permission without any delay.

Thank you for all your time and cooperation. In case you have any questions or concerns you can contact me at the following:

Office Number 218 on 2nd Floor ‘The Plaza’ Plot No. G-7 Block 9 near 2 Talwar Clifton Karachi Tel. (021) 111-256-257 Mobile: (0333) 214-5375 E-mail: fjatoi@yahoo.com

Regards, Farhad Jatoi”

1. As it transpires, on 17.05.2018 the CM was pleased to make a handwritten endorsement on the face of that application, stating that ‘Permission may be granted as per policy’.

2. However, the desired license remained unissued despite repeated requests and reminders, and on the contrary, on 23.10.2019 a summary was prepared for the CM (the ‘Impugned Summary’) where it was proposed that the matter be placed before the Provincial Cabinet (the ‘Cabinet’) in the following terms:

“No. SO (Arms) HD-D/(02)/2018 GOVERNMENT OF SINDH HOME DEPARTMENTKarachi, dated October, 2019

SUMMARY FOR CHIEF MINISTER SINDH

Subject: REQUEST FOR PERMISSION TO SET UP A PLANT TO MANUFACTURE SMALL ARMS AND SMALL ARMS AMMUNITION.

Mr. Farhad Jatoi submitted an application before the Honourable Chief Minister Sindh requesting therein that he might be granted license for manufacturing of arms & ammunition of non-prohibited bore (NPB) at Magnacrete Factory premises Plot # 358 & 359, Deh Kharkaro Gadap Town 41 to 42 KM Main Super Highway, Just Opposite Bahria Town Karachi. The Honourable Chief Minister Sindh has been pleased to record the following directions on the application of Mr. Farhad Jatoi (Annex-I):

‘Permission may be granted as per policy’ -sd- 17-05-2018

1. The Section-4 of the Sindh Arms Act-2013 and Rules-9 & 14 of the Sindh Arms Rules 2018 contain the provision to grant license for manufacture of arms & ammunition. Under the provision of Rules-9 & 14 the clearance reports/NOCs from AIG CTD, DIG Special Branch, SSP Karachi Malir, Deputy Commissioner Malir, Director Civil Defence, Sindh Environment Protection Agency Government of Sindh, and Law Department & Ministry of Commerce of Textile & Ministry of Industries Production have been received in support of the applicant (Annex-II).

2. Since, Act and Rules contain the provision for grant of license to manufacture arms & ammunition but neither a policy in the subject matter has been devised nor such license has been issued so far by the Government of Sindh. However, only four manufacturing licenses were issued in the past with the approval of Federal Government, before the enactment of 18th Constitutional Amendment and out of which only one is functional at present.

3. In view of the above it is proposed that the matter may be placed before the Provincial Cabinet for orders.

4. The Honourable Chief Minister Sindh may like to approve para-04.

(ABDUL KABIR KAZI) Secretary to Government of Sindh”

1. Per the Petitioner, the Impugned Summary and further procedure alluded to therein are unnecessary measures, as the highest authority within the contemplation of the Act and Rules is the CM, with no role of the Cabinet envisaged. Hence, the Petitioner contends that the Impugned Summary seeking to engage the Cabinet is a mala fide step designed to delay and frustrate implementation of a matter that has already been approved by the competent authority.

2. In that backdrop, the Petitioner has invoked the jurisdiction of this Court, arraying the Province of Sindh, the Secretary of the Home Department, GOS, and the Section Officer (Arms), GOS as Respondents in that order, while praying that the Impugned Summary be declared mala fide and unlawful and be set aside, and that the Respondents be directed “to issue the (already approved) license to manufacture small arms and small arms ammunition in favour of the Petitioner”.

3. Proceeding with his submissions, learned counsel for the Petitioner pointed out that an application dated 08.11.2017 had earlier been made to the Secretary Interior, Government of Pakistan, but the same was forwarded to the Home Secretary of the GOS under cover of a letter dated 21.11.2017, and the Petitioner was subsequently intimated vide a letter dated 28.11.2017 that the subject had been devolved to the provinces pursuant to the 18th Amendment to the Constitution and the matter ought to accordingly be pursued with that quarter. As the forwarded application remained unattended, the Petitioner made the further application dated 06.03.2018 directly to the CM, which was granted in the aforementioned terms, following which a detailed process of scrutiny was initiated as to the antecedents of the Petitioner and suitability of the proposed site of the manufacturing facility, viz-Factory Plot No. 358-359, Deh Kharkao, Gadap Town, Main Super Highway, Karachi; with clearance being received in all respects from the concerned departments, including the Deputy Commissioner’s office, the Sindh Police and various intelligence agencies, such as Military Intelligence, the Intelligence Bureau, Special Branch, and the Counter-Terrorism Department, as well as from the Mukhtiarkar, Taluka Murad Memon, District Malir, the Deputy Commissioner Malir and the Sindh Environmental Protection Agency. However, instead of issuing a formal license, the Respondent No. 2 unnecessarily prepared the Impugned Summary with mala fide intent to delay and frustrate the matter. He argued that the Cabinet had no part to play under the Act and Rules, as those statutory instruments did not envisage any role of the GOS and it was the CM who was the foremost authority for the grant of licenses.

4. Learned counsel also pointed out that the Respondent No. 3 had once again written to the Intelligence Bureau, Government of Pakistan on 04.11.2019 for its detailed report, specifically from a defense perspective along with recommendations and comments. It was contended that this was done just to delay and prolong the process as such a report had already been received. Furthermore, he pointed out that the Respondent No. 3 had also written letters dated 04.11.2019 to the Secretaries of the Home Department of the Government of Punjab, Government of KPK and Government of Baluchistan, requesting them to share the guidelines/SOP/Policy notified by their respective Governments for grant of a license to manufacture arms and ammunitions. He argued that this too was a step designed to protract the matter as a policy was not required in terms of the Act and Rules.

5. Conversely, it was argued by the learned AAG that the CM’s handwritten endorsement on the Petitioner’s letter dated 06.03.2018 did not constitute a definitive and final permission per se, but was merely a directive to the Home Department to process the application in accordance with the policy after properly assessing the Petitioner’s credentials and the viability of his proposal from all relevant standpoints. It was argued that the endorsement was contingent on there being a policy and could not be given effect unless and until the same was formulated, hence the referral to the Cabinet on that score. Furthermore, it was submitted that whilst the license for the Petitioner’s arms shop had been granted on 21.12.2016, an inspection conducted on 18.05.2018 by a committee comprising of the Deputy Secretary (Security), Assistant Commissioner Saddar, SDPO Saddar and Section Officer (Arms) revealed that the same was non-functional despite a lapse of two years. It was argued that this reflected a non-serious attitude on the part of the Petitioner, hence the Home Department did not consider it appropriate to grant an arms manufacturing license as it was a far more serious business and also had an impact on public security. It was pointed out that such a concern was communicated by the Respondent No. 3 to the CM vide a letter dated 11.07.2018, which reads as follows:

“SO(Arms)HD-D(2)/2011 GOVERNMENT OF SINDH HOME DEPARTMENT Karachi dated 11.07.2018

To, The Deputy Secretary (Staff) to Chief Minister Sindh Chief Minister Secretariat Karachi.

Subject: REQUEST FOR PERMISSION TO SET UP A PLANT TO MANUFACTURE SMALL ARMS AND SMALL ARMS AMMUNITION.

I am directed to refer to the subject noted above and to state that the then Honorable Chief Minister Sindh had been pleased to desire that Mr. Farhad Jatoi, proprietor of M/s. Outdoorsman Arms & Ammunition Dealer may be allowed permission for (i) repair permit and sale/purchase of prohibited bore (P.B) weapons and (ii) enhanced limit of arms and ammunition on his existing arms dealership license (Form-X & XII) and (iii) allowed license for establishing a factory at Plot No. 358 & 359 Deh Kharkaro Gadap Town Karachi for manufacture of arms & ammunition of non-prohibited bore (NPB) (Annex-I).

1. It is submitted that Mr. Farhad Jatoi proprietor of M/s. Outdoorsman Arms & Ammunition Dealer was allowed arms dealership license (Form-X & XII) for sale, purchase & repair of non-prohibited bore (NPB) weapons in the year 2016 (Annex-II).

2. It is pertinent to mention here that an inspection was curried out of arms & ammunition dealership shop of the applicant and the same was found non-operational. (Inspection report may be perused at Annex-III).

3. Since, the arms dealership shop of the applicant is non-operational therefore, his above said request(s) for grant of sale purchase & repair permit of prohibited bore weapons and enhancement in existing quota of arms & ammunition of non-prohibited bore contains no merits at this stage. Moreover, keeping in view law & order situation of the province and sensitive nature of the matter and apprehension of security risk it seems Plausible that the request for grant of manufacture license may not be considered.

4. It is therefore, requested that the above said and position may kindly be submitted before the Honourable Chief Minister Sindh for the perusal.

(AHMED ALI SHAIKH) SECTION OFFICER (ARMS)”

1. It was submitted that following the letter dated 11.07.2018, no further direction was received from the CM on the subject, but the Petitioner had continually approached the Home Department to issue him the manufacturing license on the basis of the reports that had already been received from various agencies/departments. With reference to the comments submitted by the Respondent No. 3, it was submitted that those reports did not confer any legal right or entitlement on the Petitioner for grant of the license, and it was pointed out that the Home Department had thus informed the Petitioner that the matter was to be decided as per rules and on its merits, including the law and order situation and public security, and that after examination of those reports, especially that of the inspection committee, the Petitioner was not found to be a suitable candidate for the grant of an arms manufacturing license. However, on fresh applications being moved by the Petitioner vide two letters, both dated 02.10.2019, the case was re-examined and reports from other agencies were also called, after which the Impugned Summary was initiated for consideration by the CM in light of the earlier direction from that quarter, however no decision had been forthcoming as yet. It was submitted that the GOS had not issued any manufacturing license to date, and it was argued that as the manufacture of arms and ammunition was a serious and sensitive business, the decision to grant such a license should be made by the highest decision-making body of the province, being the Cabinet, keeping in view the overall security and current law & order situation.

2. We have considered the arguments advanced in light of the pleadings and the material placed on the record.

3. Section 4 of the Act, falling under Chapter II thereof contemplates the licensed manufacture of arms and ammunition, in as much as it provides inter alia that no person shall manufacture any fire-arm or any other arms of specific description or any ammunition, unless he holds a license issued in accordance with the provisions of the Act and the Rules, with Section 6 prescribing in the particular context of prohibited arms or prohibited ammunition that no person shall manufacture the same unless he has been exclusively authorized by the GOS in that behalf.

4. The provisions of the Act relating to licenses are contained in Chapter III, with Sections 12 and 13 providing as follows:--

5. (1) An application for the grant of a licence under Chapter-II shall be made to the licensing authority in such form, containing such particulars and accompanied by such fee, as may be prescribed.

(2) On receipt of an application, the licensing authority, after conducting the requisite antecedent check, shall, by order in writing, either grant or refuse the licence.

1. (1) Notwithstanding anything in Section 12, the licensing authority shall refuse to grant--

(a) a licence under Section 3, if it is required for any prohibited arms or prohibited ammunition;

(b) a licence in any other case under Chapter-II;

(c) where such licence is required by a person whom the licensing authority has reason to believe--

(i) to be prohibited by this Act from acquiring, possessing or carrying arms or ammunition; or

(ii) to be of unsound mind; or

(iii) to be for any reason, unfit for a licence under this Act; or

(d) where the applicant is convicted of any offence punishable under the Pakistan Penal Code;

(e) where the licensing authority deems it necessary for the security of the public peace or safety to refuse to grant such licence;

(f) where the applicant possesses more than one Computerized National Identification Card or multiple passports.

(2) The licensing authority shall not turn down any application for licence merely on the premise that applicant does not own adequate property.

(3) When the licensing authority refuses to grant a licence to any person, it shall record a reasoned decision in writing for such refusal and communicate to the applicant, the reasons of the same, unless the licensing authority holds that such communication is detrimental to the public interest.

1. Section 2(g) of the Act corelates the term “prescribed” with the Rules and Section 2(f) of the Act defines “licensing authority” in the same vein to mean an officer or authority empowered to grant or renew licenses thereunder, with Rule 3.1 designating (i) the CM, (ii) the Home Minister, (iii) the Home Secretary, and (iv) the Deputy Commissioner as the “Authorities” to approve issuance of licenses as per the prescribed quota/category, and Rule 14 going on to provide that:

“14. DETERMINATION OF SUITABILITY OF APPLICANT FOR GRANT OF ARMS MANUFACTURER, DEALERS LICENSES.--(1) For the purpose of determining the suitability of an applicant for the grant of license in a particular category the Home Department may direct holding of an inquiry, as it deems necessary.

(2) The Home Department shall call and assess the reports for purpose of this rule from the following offices;

(a) Additional Inspector General (Counter Terrorism Department), Deputy Inspector General of Police (Special Branch), and head of District Police with respect to an applicant’s previous criminal history, general conduct or linkages with any proscribed organization or involvement in any terrorist activity.

(b) Deputy Commissioner with respect to suitability of the applicant in general, his financial standing and suitability of proposed place of business; and

(c) Civil Defence Officer (in case of manufacturer) with respect to the suitability of place of business.

(d) In addition to above said reports Home Department may also seek reports/NOCs from other departments/ agencies to examine the merits of case and suitability of the applicant.

(e) The following Committee after examining the application and relevant reports shall submit its recommendations to Home Secretary Sindh whether the request for grant of arms dealership license merits consideration or otherwise:

i. Special Home Secretary Sindh.

ii. Additional Secretary Home (concerned).

iii. Deputy Secretary Home (Concerned).”

1. When one examines the issue at hand, what immediately stands out is that no summary appears to have preceded or underpinned the endorsement made by the CM on the Petitioner’s letter dated 06.03.2018. Indeed, we had posed a query in that regard, but no assistance was forthcoming on that score from either side. In our view, a mere handwritten endorsement made on the face of that letter to the effect that “Permission may be granted as per policy” cannot be regarded as a definite approval conferring a right to a license, especially in light of the prescribed procedure, as the various checks and compliances to which our attention was drawn had not even ensued at that point in time, and all took place subsequent to that endorsement. To our mind, the fact that certain similar checks and compliances may already have been made at an earlier point in time in the context of the Petitioner’s arms dealership license does not detract from the importance of such an exercise. Needless to say, neither the CM nor any other public functionary has a carte blanche whilst exercising any discretionary power, which must always be done fairly, justly and reasonably, and for advancing the particular object/purpose for which it was conferred, in accordance with the rules/regulations structuring that discretion.

2. Furthermore, turning to the contention that the need for the impugned summary did not arise in the presence of the CM’s handwritten endorsement, we have examined the further letters both dated 02.10.2019, addressed by the Petitioner to the Home Secretary, as pointed out by the learned AAG, which read as follows:

“2nd October 2019

To: Home Secretary Sindh

Subject: Permission to set up Arms Manufacturing Plant

Dear Sir, I would like to request that you move a summary to the Chief Minister of Sindh for final approval of my request to set up a factory to manufacture small arms ammunition (rifles, shotguns, pistols). I have completed all the necessary formalities as specified by your department and I only am awaiting the issuance of an explosives license from the Ministry of Industries. If you would request the Chief Minister to grant me provisional approval pending the issuance of my explosives license so that I may proceed with ordering my machinery and other formalities it would save me time and a lot of money.

Thank you for all your time and cooperation.

Regards

Farhad Jatoi”

“2nd October 2019

To: Home Secretary Sindh

Subject: Permission to set up Arms Manufacturing Plant

Dear Sir, I would like to request that you move a summary to the Chief Minister of Sindh for final approval of my request to set up a factory to manufacture small arms (rifles, shotguns, pistols). I have completed all the necessary formalities as specified by your department.

Thank you for all your time and cooperation.

Regards

Farhad Jatoi”

1. As such, in light of those letters, it does not behoove the Petitioner to take the plea that the Impugned Summary is unwarranted as no further approval is required in the wake of the CM’s handwritten endorsement.

2. Be that as it may, in light of Rule 14, we are not convinced that any further policy is required to be formulated by the Cabinet. Furthermore, we are also not convinced that the rationale expressed by the Home Department in terms of the letter dated 11.07.2018 addressed to the CM’s Secretariat by the Respondent No. 3 with reference to the performance of the Petitioner’s arms dealership under the license previously granted has any relevance to the aspect of manufacturing or that it presents a valid cause for denial of the license sought in that regard, especially in the wake of the NOCs/clearances otherwise forthcoming from the relevant quarters.

3. In view of the foregoing, and as the highest authority for purpose of the grant of any category of license as per Rule 3.1 is apparently the CM, in as much as we are given to understand that the present subject is not one of prohibited arms or prohibited ammunition otherwise falling under Section 6 of the Act, we hereby dispose of the Petition under the given circumstances with the direction that the case/application of the Petitioner for grant of a small arms manufacturing license be decided by the CM through a speaking order, in accordance with the Act and Rules, within a period of 30 days from the date of this Order.

(Y.A.) Petition disposed of

PLJ 2023 Karachi 140 (DB)

Present: Ahmed Ali M. Shaikh, C.J. and Adnan Iqbal Chaudhry, J.

UNITED BANK LTD.--Petitioner

versus

FEDERATION OF PAKISTAN and others--Respondents

C.P. No. D-6912 of 2022, decided on 17.8.2023.

Banking Company Ordinance, 1962 (LVII of 1962)--

----S. 82-D--Negotiable Instruments Act, (XXVI of 1881), Cl. 29-B--Forged cheques--Pay back--Forged amount debited from account-- Negligence on part of bank--Stolen a signed cheque--Stop payment--FIR lodged forged signature--The Bank committed gross negligence in payment of disputed cheques under law and their own SOP--The Banking Mohtasib was justified in concluding that Bank was negligent in clearing disputed cheques and in not observing its own SOPs to authenticate signatures of Complainant on disputed cheques--Even if Complainant had failed to keep his cheque book in proper care, that does not absolve Bank of its negligence in clearing forged cheques and does not raise exception to section 29B of Negotiable Instruments Act, 1881--The Banking Mohtasib had jurisdiction to decide complaint, that his findings are based on admitted facts, and that order so passed by him is supported by law, no reason to interfere with impugned orders in writ jurisdiction--Petition dismissed. [Pp. 141, 143 & 145] A, B, D & E

Negotiable Instruments Act, 1881--

----S. 29(B)--Forged unauthorized cheque--A cheque that is forged with signature of purported drawer does not operate against him, nor does it give any right to drawee/bank to give a discharge therefor, exception being a case where drawer is precluded from pleading forgery. [P. 144] C

Mr. Shahan Karimi, Advocate for Petitioner.

Date of hearing: 11.8.2023.

Order

Adnan Iqbal Chaudhry, J.--By a short order dated 11-08-2023 we had dismissed the petition. These are the reasons for that dismissal.

1. The Petitioner [Bank] is aggrieved of order dated 15-12-2021 passed by the Banking Mohtasib under Section 82-D of the Banking Companies Ordinance, 1962 [BCO], and the affirming order dated 04-08-2022 passed by the President of Pakistan on the representation of the Bank under Section 14 of the Federal Ombudsmen Institutional Reforms Act, 2013 [FOIRA]. The impugned orders hold the Bank liable to pay back the Respondent No. 3 [Complainant] the amount debited from his account for cheques forged by the employee of the Complainant. The operative part of the Mohtasib’s order is as follows:

‘In view of above observations, it is established that the Bank had paid forged cheques which are a ‘nullity’ in law, confer no title, under clause 29-B of the Negotiable Instruments Act, 1881. Further, the Bank did not comply their own SOPs in case of payment of cheque (Para 9 above). Thus, the Bank committed gross negligence in payment of the disputed cheques under the law and their own SOP. Therefore, I under the power vested in me vide Section 82-D of the Banking Companies Ordinance, 1962 read with Section 9 of the Federal Ombudsmen Institutional Reforms Act, 2013 (XIV of 2013), direct the Bank to make good the loss by crediting the Complainant’s account with a sum of Rs. 5,490,000/-forthwith.”

1. The facts leading to the complaint before the Banking Mohtasib were that on 13-09-2019, the Complainant suspecting that a recently engaged employee namely Jamaluddin, had stolen a signed cheque of Rs. 75,000/-from the Complainant’s office, instructed the Bank to stop payment, which was done by the Bank. On 23-09-2019, the Complainant received a call from the Bank to verify whether he had issued a cheque of Rs. 3,000,000/-, which he denied. An alarm being raised, the Complainant inspected his cheque book to discover that 4 unused leaves were missing therefrom. On 24-09-2019 he lodged an FIR against Jamaluddin, and on 25-09-2019 he instructed the bank to stop payment on those 4 cheques. However, by that time 2 of those cheques had already been cleared by the Bank for transfer to the account of Jamaluddin. The first cheque of Rs. 490,000/-was cleared on 17-09-2019 and the second cheque of Rs. 5,000,000/-was cleared on 19-09-2019 [the disputed cheques].

2. The case of the Complainant was that his signature on the disputed cheques had been forged by Jamaluddin; and that the Bank had never called the Complainant to authenticate the cheques as per its SOP when the amount involved is substantial.

3. On an internal inquiry, the Bank referred the disputed cheques alongwith the recent signatures of the Complainant to a handwriting expert, who opined that the Complainant’s signatures were clearly forged. This report of the handwriting expert was not disputed by the Bank before the Mohtasib, albeit it was submitted that the forgery could not have been detected with the naked eye in the normal course of business while processing hundreds of cheques. Having seen the two sets of signatures ourselves, (appended to the report of the handwriting expert), the variation in signatures was sufficient for a banker to have raised a red flag, the more so when those signatures are now viewed over a computer monitor capable of enlargement and not with the naked eye.

4. Under the circumstances where it was not a disputed fact before the Banking Mohtasib that the disputed cheques were forgeries, we do not see the point in the argument that the Mohtasib did not formally record evidence. In any case, the summary nature of proceedings before the Banking Mohtasib has already been discussed by this Court in Muslim Commercial Bank v. Federation of Pakistan (PLD 2019 Sindh 624). The argument that the matter was in the exclusive domain of a Civil Court does not appreciate sub-section (5) of Section 82-B of the BCO which empowers the Banking Mohtasib to address “fraudulent or unauthorised withdrawals or debit entries in accounts”, also an aspect dealt by the case of Muslim Commercial Bank supra.

5. Before the Banking Mohtasib it was also not disputed by the Bank that its in-house clearing rules envisaged a “Call Back Procedure” to authenticate cheques exceeding a certain amount. These rules exist pursuant to instructions issued by the State Bank of Pakistan as “Guidelines for Clearing Operations”. SOP No. 15 placed on the record stipulates that: “All cheques that are drawn on a UBL account and received at CPU for clearing and are meeting the call back threshold amount, the same must be authenticated by calling the account holder by the respective branches BM/CSOM/CSR.” Per the impugned order, the threshold applicable to the Complainant’s account was Rs. 500,000/-. On the other hand, the case of the Bank was that said SOP was for internal use only, and it was not mandatory to follow it each time lest the underlying transaction of the customer is delayed in the process. But then, at the same time, it was acknowledged by the Bank that it had called the Complainant to authenticate a cheque of Rs. 3,000,000/-and yet the same procedure was not followed for the disputed cheque of Rs. 5,000,000/-. It was not the case of the Bank that it was usual for the Complainant to draw cheques of around Rs. 500,000/-.

6. Given the foregoing facts, the Banking Mohtasib was justified in concluding that the Bank was negligent in clearing the disputed cheques and in not observing its own SOPs to authenticate the signatures of the Complainant on the disputed cheques.

7. The provision on which the Banking Mohtasib relied for holding the Bank liable for the Complainant’s loss is Section 29-B of the Negotiable Instruments Act, 1881, which provides:

“29-B. Forged or unauthorized signature.---Subject to the provisions of this Act, where a signature on a promissory note, bill of exchange or cheque is forged or placed thereon without the authority of the person whose signature it purports to be, the forged, or unauthorized signature is wholly inoperative, and no right to retain the instrument or to give a discharge therefor or to enforce payment thereof against any party thereto can be acquired through or under that signature, unless the party against whom it is sought to retain or enforce payment of the instrument is precluded from setting up the forgery or want of authority:

Provided that nothing in this section shall effect the ratification of an unauthorized signature not amounting to a forgery.”

1. Therefore, in view of Section 29-B, a cheque that is forged with the signature of the purported drawer does not operate against him, nor does it give any right to the drawee/bank to give a discharge therefore, the exception being a case where the drawer is precluded from pleading forgery. On the underlying principle, there is a string of cases that have held the bank liable to pay back the customer the amount paid out on a forged cheque. The first in that series is Province of Sindh v. Imperial Bank of India (PLD 1961 Karachi 185), a judgment prior to the enactment of Section 29-B. After that enactment, the cases that followed were Atlas Battery Limited v. Habib Bank Limited (PLD 1987 Karachi 599); Ansar Ahmed v. Bank of America (PLD 1975 Karachi 252); and Abdur Rehman v. City Bank N.A. (1990 CLC 686). Even in India, where the Negotiable Instruments Act did not contain a provision as specific as Section 29-B, the same principle was applied by the Supreme Court of India in Canara Bank v. Canara Sales Corporation (AIR 1987 SC 1603).

2. The ratio in the aforesaid cases for holding the bank liable is that in the case of a forged cheque there is no mandate with the bank to debit the customer’s account, and the person in possession of such cheque is not a “holder in due course” within the meaning of Section 9 of the Negotiable Instruments Act. In Canada as well, banks are held liable to their customers for making payment on an unauthorized cheque. The underlying principle there was expressed as follows by the Supreme Court of Canada in Teva Canada Ltd. v. TD Canada Trust, 2017 SCC 51 :

“The Bills of Exchange Act should be interpreted in such a way that drawers and banks are exposed to the risks created by the fraudulent use of the system, but the banks are the more significant beneficiaries of the bills of exchange system. It is therefore appropriate, in certain circumstances, for them to bear risks and losses associated with that system. To allocate losses to the drawer for having failed to identify and detect the fraud is inconsistent with the strict liability tort of conversion, which makes any negligence on the part of the drawer or the banks in preventing the fraud irrelevant.”

1. Adverting to the exception in Section 29-B of the Negotiable Instruments Act, the bank can avoid liability if it can demonstrate that the customer is precluded from pleading forgery. In the instant case, the Bank had urged before the Mohtasib that it was the Complainant himself who was negligent in the safe-keeping of his cheque book, which enabled his employee to commit the forgery, and thus the Complainant was precluded from pleading forgery. That exact argument was rejected in Imperial Bank (supra) after holding that negligence of the customer in the safe custody of his cheque book does not avoid liability of a bank that itself acted negligently in making an unauthorized payment; and that, to avoid such liability the conduct of the customer should be such which induced the bank to act upon the purported signature without negligence on its part. A similar view was expressed in Canara Bank, viz. that in support of a plea of estoppel on the ground of negligence, the bank must show that the customer owed a duty to the bank; whereas in such cases there is no duty on a customer to inform the bank of the fraud committed on him of which he was unaware. In Ansar Ahmed it was further observed that if the bank is negligent in making payment on a forged cheque, it is not a “payment in due course” as Section 10 of the Negotiable Instruments Act requires such payment to be one that is in good faith AND without negligence. We find ourselves in agreement with these views, and which apply squarely to the case before us. Accordingly, even if the Complainant had failed to keep his cheque book in proper care, that does not absolve the Bank of its negligence in clearing forged cheques and does not raise the exception to Section 29-B of the Negotiable Instruments Act, 1881.

2. Learned counsel had then attempted to argue that along with the account-opening form the Complainant had signed an undertaking that he shall remain responsible for all transactions, be those unauthorized, until intimation is given to the Bank. The record does not show whether that ground was pleaded or urged by the Bank before the Banking Mohtasib. In any case, we do not see how such an undertaking by the Complainant can be construed as waiving an action for the Bank’s negligence.

3. Having seen that the Banking Mohtasib had jurisdiction to decide the complaint, that his findings are based on admitted facts, and that the order so passed by him is supported by the law, we see no reason to interfere with the impugned orders in writ jurisdiction. The petition was therefore dismissed by a short order.

(J.K.) Petition dismissed

PLJ 2023 Karachi 146 (DB)

Present: Aqeel Ahmed Abbasi and Mrs. Kausar Sultana Hussain, JJ.

AGHA FAHAD AHMED and others--Petitioners

versus

CHIEF SECRETARY, GOVERNMENT OF SINDH and others--Respondents

Const. P. Nos. D-7401, D-7407 to D-7410 of 2021 and D-75 of 2022, decided on 14.12.2022.

Constitution of Pakistan, 1973--

----Art. 199--Petitioner was appointed as chief municipal officer--Joining report--Termination from service--Writ petitions--Dismissed--Filing of CPLA--Allowed--Inquiry committee--Inquiry report--Recommendations for reinstatement in service--No disciplinary proceedings--Enquiry report was not disputed--Petitioners have never been subjected to any kind of disciplinary proceedings or charged with any allegations of corruption or corrupt practices--The only allegation against petitioner is that their names did not appear in list of successful candidates--Counsel for petitioners have filed their respective chronological statements along with relevant documents, whereas, counsel for respondents did not file any objection, nor disputed authenticity of such documents--In view of Enquiry Report and finding recorded therein, very basis of terminating services of petitioners is ill founded as after scrutiny of record of petitioners, prima facie, no illegality is found in process of their appointment on respective posts--Petitions allowed. [Pp. 158 & 169] A, B & C

Mr. Zia-ul-Haq Makhdoom, Advocate for Petitioner (in CP No. D-7401 of 2021) alongwith M/s. Hira Agha, Fatima Ashfaq, Amna Khan, Azhar Mahmood, Noman Khanzada, Advocates.

Agha Haris Khan, Advocate for Petitioner (in CP No. D-7407 to 7410 of 2021).

M/s. Shahab Sarki and Zulfiqar Ali Langah, Advocates for Petitioner (in CP No. D-7407 of 2021 to 7410 of 2021).

Mr. Muhammad Haseeb Jamali, Advocate for Petitioner (in CP No. D-75 of 2022) alongwith M/s. Hidayat Mangrio and Muzammil Hussain Jalbani, Advocates.

For Respondents.

Mr. Ziauddin Junejo, Asst. A.G. Sindh alongwith Saim Imran Khan Administration Officer, SLGB & Ms. Saima Imdad Mangi, AAG. for Respondents.

Dates of hearing: 9 and 14.12.2022.

Judgment

Aqeel Ahmed Abbasi, J.--Above Constitutional Petitions have been filed against identical order(s) dated 22.11.2021 passed by the Chief Secretary, Government of Sindh (Appellate Authority), whereby, pursuant to order dated 06.12.2017 passed in Civil Petitions No. 3440/2017 (and others), while setting aside the judgment passed by the Divisional Bench of this Court in Constitution Petition Nos. 5577/2016 (alongwith other petitions) [Re: Agha Fahad Ahmed Khan v. Province of Sindh & others], such writ petitions of the petitioners were directed to be treated as appeals before the Departmental Authority and sent them for being decided in accordance with law after hearing the appellant(s), the appeals filed by the appellants/petitioners against identical order(s) dated 10.10.2016 passed by the Secretary, Sindh Local Government Board, Local Government Department, Government of Sindh, whereby, officers appointed in the years 2012 and 2013 and afterward working against the post(s) of BPS-16/SCUG (Admin Branch), including petitioners were relieved from their services, have been rejected. Petitioners being aggrieved by such impugned order passed by the Chief Secretary have assailed the same through instant Constitutional Petitions for being perverse, illegal and unconstitutional.

1. The above petitions were taken up jointly for hearing, which are hereby disposed of through a common judgment, as the facts and legal issue involved therein are similar, whereas, the impugned order(s) are also identical, containing same reasons of relieving/ termination of services of the petitioners, therefore, in order to avoid repetition, we would refer to the relevant facts and the documents produced by the petitioners and the respondents in CP No. D-7401/2021 in the case of Agha Fahad Ahmed v. Chief Secretary and others, which reads as follows:--

I. That by way of essential background, most respectfully it is submitted that Respondent No. 2vide publication dated 24.02.2012 and 26.02.2012 published in Daily ‘Kawish’ invited applications for various posts including but not limited to the post of Chief Municipal Officer/Chief Officer. The factum of advertising the post has categorically been admitted by the respondents at all forums.

II. That the petitioner being eligible, applied for the post of Chief Municipal/Chief Officer. It is worth mentioning here that the petitioner successfully qualified all the requisite test and interview. Consequently, vide appointment letter dated 30.11.2012, the petitioner was appointed as Chief Municipal Officer.

III. That the petitioner accordingly accepted the offer and also submitted the documents as required by the Respondent No. 2 vide appointment order dated 30.11.2012.

IV. Although, the petitioner submitted his acceptance on 10.01.2013, yet the Respondent No. 2 took a collusive time in issuing the formal appointment order, which order upon repeated persuasion of the petitioner was issued on 05.08.2013. After being appointed, the petitioner got his first posting with the Deputy Commissioner/Administrator DMC South Karachi. The petitioner on 16.08.2013 submitted his joining report and vide order dated 17.08.2013 the petitioner was allowed to join the duties.

V. Thereafter, the petitioner was posted at various places, although it is regretted to point out that the petitioner was not allowed to complete his formal tenure of posting, which fact is evident form the fact that within a short span of 20 months, the petitioner was posted as Assistant Director (Taxation), Director (Parks), Town Officer and Municipal Commissioner.

VI. That the petitioner was performing his duties to the utmost satisfaction of his superiors. However, vide letter dated 10.10.2016, the Respondent No. 4 relieved the petitioner from his duties. The real meaning, import and impact of the letter dated 10.10.2016 was termination, however, in order to hoodwink upon the petitioner and other employees, the Respondent No. 4 camouflage it as a relieving order. The purported reason for issuing of patently bogus letter dated 10.10.2016 was disclosed as that the petitioner and other employees were not appointed by the Respondent No. 4.

VII. That being aggrieved and dissatisfied with the letter dated 10.10.2016 the petitioner and his other colleagues challenged the same by preferring C.P. No. D-5577/2016 and other petitions. All the petitions were clubbed together and were finally heard and decided vide judgment dated 27.09.2017. The learned Divisional Bench of this Court dismissed all the petitions and upheld the order dated 10.10.2016.

VIII. That the petitioner amongst other challenged the same before the Hon’ble Supreme Court of Pakistan in CPLA No. 3440/2017, after observing all codal formalities the Hon’ble Apex Court vide order dated 06.12.2017, allowed petitions and set aside the order dated 27.09.2017. However, the Hon’ble Apex Court ordered that the petitions filed by the petitioners be treated as an appeal and the same would be decided after affording opportunity of hearing to the petitioners.

IX. In order to sort out pro and contra of the documents, a four members committee was constituted, who in response to the letters dated 08.01.2020 and 08.06.2020 issued by the Respondent No. 2 submitted its report. The committee audited the entire process. The inquiry committee gave its categorical findings with regard to the contentions that were raised especially before this Hon’ble Court. It is pertinent to mention here that after considering the entire material, the committee recommended that the petitioner be reinstated in service.

X. In this backdrop, the petitioner was directed by the Respondent No. 1 to appear in person for personal hearing. It is regretted to point out that the Respondent No. 1 failed to offer any meaningful hearing to the petitioner as also the Respondent No. 1 categorically failed to consider the inquiry report and without applying judicious mind, dismissed the appeals vide order dated 22.11.2021, which is illegal, unlawful, unconstitutional, mala fide and result of perversity of approach, hence the same is liable to be set aside.

1. Before filing above petitions, the petitioners had filed Constitutional Petition No. D-5577/2016 alongwith other connected petitions, whereby, their relieving/termination from services vide order(s) dated 10.10.2016 was challenged before a Divisional Bench of this Court, which petitions were, however, dismissed vide order dated 27.09.2017 in the following terms:

“14. In absence of aforesaid material, the petitioners have failed to make out a case of lawful appointments. The entire case is based upon factual controversy which cannot be gone into by this Court in exercising of its constitutional jurisdiction.”

1. However, such order was assailed by the petitioners before the Hon’ble Supreme Court of Pakistan in CPLA No. 3440/2017 (and others), which were converted into appeals and allowed, while setting aside the impugned judgment passed by the learned Divisional Bench of this Court in the above petitions, with the directions to treat writ petitions of the petitioners as appeals before the Departmental Authority (Appellate Authority) and to be decided in accordance with law after hearing the appellant(s). Thereafter, the Chief Secretary, Government of Sindh through impugned order(s) dated 22.11.2021 has dismissed such appeals of the petitioners, which have been assailed by the petitioners in these petitions.

2. It will be advantageous to reproduce both the orders of relieving and order of termination passed by the Respondent No. 2 on 10.10.2016 and Respondent No. 1 on 22.11.2021 respectively, against the petitioners, which read as follows:

GOVERNMENT OF SINDH LOCAL GOVERNMENT DEPARTMENT (SINDH LOCAL GOVERNMENT BOARD)

No. SLGB/SCUG/AO/Gen/293 & 297 of 2013/2017/1708/ Karachi, dated 10 Oct 2016.

To, The Director local Government Department, Karachi/Hyderabad/Sukkur/Larkana/Shaheed Benazir Abad/Mirpur Khas Division/

Subject: RELIVING OF OFFICER OF BPS-16/ADMIN/SCUG APPOINTED AFTER 2012-13 AND AFTERWARD AND WHOSE NAME IS NOT INCLUDED IN THE LIST OF SUCCESSFUL CANDIDATES SUBMITTED BEFORE HONOURABLE HIGH COURT OF SUKKUR IN CPD-293/2013 FILED BY MR. NADIM AKBER VS POS AND OTHERS.

Whereas, the following officers of BPS-16/SCUG (Admin Branch) were declared successful and appointed in response to the advertisement of the posts of BPS-16 SCUG/Admin Branch published in the year 2011-2012. It is pertinent to mention that the list of successful candidates was also submitted in the year 2013 before the Honorable High Court of Sindh Bench at Sukkur in CPD-293/2013 filed by Mr. Nadim Akber S/o Ali Akber V/s. Province of Sindh and others.

| | | | --- | --- | | Sr. # | NAME WITH FATHER’S NAME | | 1 | Abdul Waseem Jamali S/o Rehmatullah | | 2 | Aneel Gul Juneejo S/O Ghulam Muhammad | | 3 | Sohail Ahmed Khan S/O Sadaruddin Khan | | 4 | Javed Khan S/O Aftab Khan | | 5 | Shafqat Hussain S/O Aftab Khan | | 6 | Kazim Ali Khan S/O Riaz Hussain Mughal | | 7 | Mujeeb Khan Durani S/O Late Haji Attaullah Khan | | 8 | Sher Zaman Khan S/O Haji Yakoob Khan Durrani | | 9 | Sohrab Khan Jakhirani S/O Kher Bux Khan | | 10 | Shakeel Ahmed S/O Pir Bux Khan | | 11 | Muhammad Nawaz S/O Rasool Bux Brohi | | 12 | Zulfiqar Ali Marfani S/O Dhani Bux | | 13 | Musaib Khan S/O Asif Khan | | 14 | Shafeeq Ahmed Bhutto S/O Rahim Bux | | 15 | Ghulam Murtaza Jagirani S/O Muhammad Hassan | | 16 | Aaser Khan Mugrani S/O Amanullah | | 17 | Anwer Leghari S/O Alamgir Leghari | | 18 | Zahoor Hussain Rajpar S/O Niaz Muhammad | | 19 | Muhammad Khan Odho S/O Haji Meeral | | 20 | Ubaidullah S/O Abdul Wahid Soomro | | 21 | Khalid Ahmed Laghari S/O Bashir Ahmed | | 22 | Abdul Waheed S/O Ubaidullah Domki | | 23 | Humayoon S/O Imran Aslam Khan | | 24 | Rasool Bux S/O Ghulam Asghar Chachar | | 25 | Ellahi Bux Bhanbhan S/O Zahid Ali | | 26 | Nadeem Hyder Jalbani S/O Ali Haider | | 27 | Zulfiqar Ali S/O Muhammad Ali Bhutto | | 28 | Gada Hussain S/O Bahwal Khan Zardari | | 29 | Fayaz Hussain Zardari S/O Khadim Hussain Zardari | | 30 | Faisal Hassan S/O Haji Muhammad Hassan Dehri | | 31 | Syed Buland Shah S/O Syed Zulfiqar Ali Shah alias Syed Sajid Shah | | 32 | Shah Jahan Shah S/O Ameer Ali Shah | | 33 | Ghulam Murtaza Shah S/O Syed Mauj Darya Shah | | 34 | Hassan Ayoub S/O Choudhry Muhammad Ayoub | | 35 | Junaid Ahmed Chandio S/O Ali Anwar | | 36 | Irshad Ali Zardari S/O Moula Bux Zardari | | 37 | Shaheed Illahi Bux S/O Shahid Iqbal Siyal | | 38 | Zahid Hussain Jamali S/O Mir Maqbool Jamali | | 39 | Muhammad Rafiq Shaikh S/O Abdul Karim Shaikh | | 40 | Ghulam Muhammad S/O Sharif Mahar | | 41 | Maqsood Ali S/O Abdul Raheem Jatoi | | 42 | Furqan Bhagat S/O Abdul Salam Bhagat | | 43 | Amir Ali S/O Abdul Razzak Bhutto | | 44 | Ali Raza S/O Dost Ali Jessar | | 45 | Adeel Ahmed S/O Arz Muhammad Gopang | | 46 | Zulfiqar Ali S/O Ali Dino Khan Mahar | | 47 | Mir Mumtaz Ali S/O Mir Mehrab Khan Domki | | 48 | Sikandar Ali S/o Amiur Khan Mirani | | 49 | Ahmed Shah S/O Ghulam Shah Jilani | | 50 | Ghulam Hussain S/O Ali Nawaz | | 51 | Pervaiz Ahmed S/O Nafeez Ahmed Umrani | | 52 | Abid Latif S/O Abdul Lateef | | 53 | Aijaz Ali Shaikh S/O Nehal Khan | | 53 | Mohsin Ali S/O Jamaluddin Shaikh | | 55 | Junaid Chandio S/O Ali Anwar Chandio | | 56 | Kashif S/O Fateh Khan | | 57 | Roshan Ali Lolai S/O Parwano Faqeer | | 58 | Faraz Khan Mughal S/O Riaz Khan Mughal | | 59 | Abdul Jabbar Mehar S/O Abdul Karim | | 60 | Malik Mujtaba Ayaz S/O Ayaz Malik | | 61 | Tabish Hussain S/O Aftab Hussain | | 62 | Nisar Ahmed Rahpoto S/O Kher Muhammad | | 63 | Fida Hussain Magsi S/O Bukhsal Khan Magsi | | 64 | Mehfooz Ali Shah S/O Karim Din Shah | | 65 | Sher Ali S/O Abdul Wahab | | 66 | Muhammad Ali S/O Abdul Karim Laghari | | 67 | Pir Bux S/O Muhammad Ibrahim Jamali | | 68 | Muhammad Rafiq S/O Hameedullah Khan Buledi | | 69 | Mir Aslam S/O Ali Gul alias Riyasat Ali Baloch | | 70 | Mushtaq Hussain S/o Ghulam Qadir Mangi | | 71 | Wahab Aziz S/O Abdul Aziz Chacho | | 72 | Agha Sumar Khan S/O Agha Bashir | | 73 | Kashif Imtiaz S/O Imtiaz Ahmed Khan Junejo | | 74 | Abdul Jabbar S/O Muhammad Amin Thaheem | | 75 | Imtiaz Ahmed S/O Abdul Karim Soomro | | 76 | Sajjad Ahmed S/O Gul Baig Samiar | | 77 | Qamar Zaman S/o Ghulam Qadir Indhar | | 78 | Imran Ali Indhar S/o Mian Ashiq Hussain | | 79 | Bagan S/o Farid Khan | | 80 | Jhamandas S/O Shankar Lal | | 81 | Saeed Ahmed S/O Nisar Ahmed | | 82 | Darya Khan Magsi S/o Abdul Ghafoor Magsi | | 83 | Saim Imran S/o Imran Khan | | 84 | Sarfraz Khan S/o Akhtar Ahmed | | 85 | Mohsin Ali S/O Hakim Ali | | 86 | Mr. Mumtaz Ali S/o Muhammaqd Misri Khan |

Therefore, it is required to relieve an officer appointed in the year 2012-13 and afterward and working against the post of BPS-16 of SCUG Service (Admin Branch), if the name of person is not included in the list of successful candidates submitted before the Honorable High Court of Sindh Bench at Sukkur in C.P. No. D-293/2013 filed by Mr. Nadim Akber S/o Ali Akber V/s. Province of Sindh which is reproduced above.

SECRETARY TO GOVERNMENT OF SINDH”

“No. SO (APLS-III) S&GAD/24(454)/2018 GOVERNMENT OF SINDH SERVICES, GENERAL ADMINISTRATION & COORDINATION DEPARTMENT/

Karachi dated the 22nd November 2021

ORDER

WHEREAS, Honorable Supreme Court of Pakistan vide Orders dated 06.12.2017 & 29.01.2018 converted Civil Petitions No. 3440 of 2017, 4780 of 2018 & Other into appeals before the departmental authority and send them for being decided accordance with law after hearing the appellants.

WHEREAS, The recruitment process in Sindh Local Government Board, to fill the vacancies of BS-16 & BS-17 in four Branches i.e (Administration, Accounts, Engineering & Medical Branch) of SCUG Service was initially started in the year 2011 by publishing advertisement in leading newspapers dated 24.11.2011 & 26.12.2011. Later on Local Government Department, in pursuance of order of Honorable High Court dated 22.02.2012 in C.P.No. -D-3406 of 2011 winded the entire process of recruitment and in order to comply with the strict criteria laid down in Rule 4(2) of Sindh Council unified Grade (SCUG) Service, Rules 1982, invited fresh applications by advertising in leading newspapers dated 24.02.2012 & 26.02.2012. All the applicants, who met out the prescribed criteria were called for written test/Interview at 23 designated test centers throughout the province on 11.03.2012. Pursuant to that public notice, candidates possessing prescribed qualification and having domicile of Sindh province were allowed in the written test and those who have passed the written test were called for interview before the selection committee, noticed dated 09.12.2011. The Successful candidates were given offer orders dated 30.11.2012 for appointment in BS-16 & BS-17 in SCUG Service (Administration Branch).

WHEREAS, The above mentioned recruitment process made in the SLGB was challenged in the High Court of Sindh, Circuit Court Sukkur by fling C.P.No. 293/2013 by Mr. Nadeem Akber & another C.P.No D-297/2013 filed by Umair Ahmed Others. The SLGB in the subject petitions submitted its report dated 08.05.2013 containing a list of successful candidates including 103 in (BS-17) & 86 in (BS-16) in the Honorable High Court Sukkur. The Honorable Court vide order dated 31.07.2013 dismissed CP.No. 293/2013 and other allied petitions, consequently all the successful candidates were issued appointment orders on 05.08.2013. Later on other petitions CP.No. D1034/2013 & C.P.No. D-777/2013 were also filed by Sarfraz Ahmed Panhwer & Abdul Sattar in the High Court Larkana. The Local Government Board also submitted the list of successful candidates, appointed for the posts of Town officer (BS-16) & Chief Officer (BS-17) in the Honorable Court.

AND WHEREAS, the Secretary Local Government Board issued two letters dated 10.10.2016, addressed to the Director Local Government Department, Karachi/Hyderabad/ Sukkur/Larkana/Shaheed Benazir Abad/Mirpur Khas Division, Sindh, with advice to relieve the officers of BS-16 & BS-17, SCUG (Admin Branch) in Local Government Board appointed in the year 2012-2013 and afterwards, if the name of the person is not included in the list of successful candidates, submitted before the Honorable High Court of Sindh Bench Sukkur in C.P.No. D-293/2013. Subsequently Mr. Noorullah Abro and others, being aggrieved by the relieving letter/Order dated 10.10.2016, filed C.P.No. D-5542/2016 in the High Court of Sindh Karachi, challenging their relieving order. The Honorable High Court of Sindh in its detailed Judgment dated 27.09.2017 dismissed the said petition along with pending applications. Subsequently SLGB vide order dated 4th October 2017, relieved 37 officers from their posts & vide another intimation dated 4th October, 2017, Other 29 officers were informed that the constitution petitions filed by them have been dismissed by the Honorable High Court. Agha Fahad Khan, Abdullah Palejo and other petitioners filed Civil Petitions No. 3440 of 2017, Civil Petition Nos. 4780 of 2017 & 4860 of 2017, the Honorable Supreme Court of Pakistan vide orders referred above converted all the petitions into departmental appeals.

AND WHEREAS, The appellant, Agha Fahad Ahmed Khan was given opportunity of personal hearing on 26.07.2021. During the Course of personal hearing the applicant failed to produce any substantial record which can prove that he had qualified the written test/Interview, whereas the view point of the representative of the Department was that the name of appellant is not reflected in the list of successful/selected candidates, as already submitted before the Honorable High Court.

NOW THEREFORE, after detailed examination of available record, provided by the Local Government Department and hearing both the parties i.e. appellant and the representative of Local Government Department on 26.07.2021. I, Mumtaz Ali Shah, Chief Secretary, Sindh/ Authority, hereby, reject the appeal of the appellant.

(MUMTAZ ALI SHAH) CHIEF SECRETARY TO GOVT. SINDH/ APPELLATE AUTHORITY

No. SO (APLS-III) S&GAD/24(454)/2018 Karachi, the 22nd November 2021

Copy is forwarded for information & necessary action to:

1. The Secretary to Government of Sindh, Local Government Department, (with the request to convey the Appellate Order to the Appellant).

2. The Appellant Agha Fahad Ahmed Khan.

3. The Office File.”:

4. Learned counsel for the petitioners have argued that the impugned order dated 22.11.2021 passed by the Chief Secretary, Government of Sindh, in the case of petitioners is perverse based on mala fide and does not disclose any valid reasons while rejecting the appeals of the petitioners, whereas, neither the facts have been examined nor the record produced by the petitioners in respect of their appointment after compliance of all the codal formalities have been taken into consideration while passing the impugned order. According to learned counsel for the petitioners, the Chief Secretary, Government of Sindh, being an Appellate Authority was under legal obligation to make scrutiny of the record of each and every case in detail and thereafter providing complete opportunity of being heard to the petitioners and speaking order was required to be passed without being influenced by the decision in the case of Nadeem Akbar vs. Province of Sindh and others in C.P.No. D-293/2013 passed by the Divisional Bench Sukkur of this Court, wherein, petitioners were not the party nor the issues involved in the instant petitions were the subject matter of the petitions. It has been further contended by the learned counsel for petitioners that a detailed inquiry has been carried out in respect of petitioners’ appointments, wherein, all the material facts and scrutiny of the relevant record relating to appointment of the petitioners on their respective posts has been made and thereafter it has been recommended that the proceedings initiated by the Secretary, Sindh Local Government Board against the petitioners without issuing them show-cause notices were without approval of the Sindh Local Government Board and the Ministry of Local Government, whereas, no opportunity of personal hearing was provided, therefore, the relieving order, whereby, the petitioners were relieved from their services was illegal. It has been further contended by the learned counsel for petitioners that the Scrutiny Committee has recommended the reinstatement of the petitioners after scrutiny of personal record, however, Chief Secretary, Government of Sindh, has not taken into consideration the findings of the scrutiny report, which was submitted pursuant to order passed by the Honourable Supreme Court in Civil Appeal Nos.1592 to 1612 of 2017. According to learned counsel for the petitioners, it has now come on record that the order of relieving and termination of the petitioners from the services passed by both the authorities are without lawful authority and based on mala fide, therefore, the same are liable to be set-aside. During the course of hearing of above petitions, and after perusal of the comments filed on behalf of the official respondents, it has been observed that the claim of the petitioners for having been appointed on their respective posts, after complying with all the codal formalities in the year 2012-2013, has not been denied nor could be controverted by the learned counsel for the respondents, on the contrary, learned Additional Advocate General Sindh and the officers of Sindh Local Government Board present in Court, frankly conceded that as per enquiry/scrutiny report submitted by the Sindh Local Government Board, it has come on record that the appointments of the petitioners were made after compliance of all the codal formalities, however, on account of some misrepresentation of facts and the comments filed on behalf of the department in the case of Nadeem Akbar vs. Province of Sindh and others in C.P.No. D-293/2013, in which petition, the petitioners were neither party, nor any scrutiny or enquiry whatsoever was conducted. Such petition was decided by the Divisional Bench Sukkur of this Court vide order dated 22.02.2012 with directions to the Sindh Local Government Board “to comply with Rule 4(2) (ii) of SCUG Rules, 1982 in respect of making recommendations for recruitment against these posts after such examination or test and interview as may be conducted by Selection Committee”. However, it appears that while misinterpreting the aforesaid order, without scrutiny of record or confronting the petitioners with such allegations, their services have been terminated in an abrupt manner without providing any opportunity of being heard.

5. From perusal of the aforesaid identical order(s) passed by the Chief Secretary to Government of Sindh, it has been observed that on similar grounds and identical set of allegations i.e. names of the petitioners did not appear in the list of successful candidates, petitioners were relieved in the first instance pursuant to order(s) dated 10.10.2016, and, thereafter, the services of the petitioners were terminated through impugned order(s) dated 22.11.2021 by the Chief Secretary, Government of Sindh, however, without pointing out any violation of the terms of the service or recording any adverse findings on the eligibility of the petitioners to be appointed on such posts. It has further transpired that the petitioners have never been subjected to any kind of disciplinary proceedings or charged with any allegations of corruption and/or corrupt practices. The only allegation against the petitioner is that their names did not appear in the list of successful candidates, which according to respondents, was produced in C.P. No. D-293/2013, which was filed before the Sukkur Bench of this Court, wherein, petitioners were not impleaded as party.

6. It is pertinent to note that in response to notices issued to the respondents as well as Advocate General Sindh, through statement dated 24.01.2022, AAG Sindh filed para-wise comments on behalf of Secretary, Sindh Local Government Board in C.P.No. D-7401/2021, wherein, except some partial denial to contents of Para-6 of petition relating to delay in issuance of appointment order, the claim of the petitioners and the documents, including copy of advertisement, copy of application of the petitioner, result of written examination showing the petitioner’s name at Serial No. 31, interview call, offer letter, acceptance letter, medical certificate, appointment order of the petitioner in BS-17, joining report, allowed to work report, transfer orders, assumption of charge report, transfer order, relieving report, transfer order, Ex-Pakistan Leave, copy of service book of the petitioner and salary disbursement receipts of the petitioner, produced through statement filed on behalf of the petitioner pursuant to order passed by this Court on 09.12.2022 have neither been disputed or denied. Learned AAG and the officers of SLGB were specifically enquired, as to whether, authenticity of the documentary evidence produced by the petitioners in Court, which was also subjected to detailed scrutiny by a high powered enquiry committee, constituted for the purposes of scrutiny of the record relating to appointment of petitioners, is disputed by the respondents or the report submitted by the Chairman Enquiry Committee, Sindh Local Government alongwith their Findings and Recommendations have been challenged before any forum, in response to such query, they have candidly submitted that since the Enquiry Report is based on the record available in respect of the petitioners’ appointment on their respective posts, therefore, the same could not be disputed. They were also enquired as to whether, the impugned identical order(s) passed by the Secretary, Local Government Board and the Chief Secretary, Government of Sindh, relieving/terminating the petitioners from their services, has any legal basis, in response to such query, learned AAG and the officers from SLGB present in Court, could not support the orders passed by the Secretary, Sindh Local Government Board and the Chief Secretary, Government of Sindh, for the reason that grounds as mentioned in both the orders are prima facie contrary to the record. Moreover, it is an admitted position that the judgment dated 27.09.2017 passed by the Divisional Bench of this Court in the earlier round of proceedings in C.P. No. D-5577/2016 and others, whereby, petitions were dismissed on the ground that since the petitioners could not submit the relevant documents with regard to their lawful appointments, and their names did not appear in the list of candidates selected by the Selection Committee in terms of Rule 4(2) of Sindh Local Council Service Rule, 1982, was challenged by the petitioners before the Honourable Supreme Court through Civil Petition No. 3440 of 2017 and others, which were converted into Civil Appeal, which were allowed by setting aside the judgment passed by the Divisional Bench of this Court vide order dated 06.12.2017, while holding that writ petitions of the petitioners may be treated as appeal before the departmental authority and sent them for being decided in accordance with law after hearing the appellants. It will be advantageous to reproduce the order of the Hon’ble Supreme Court of Pakistan, which reads as under:

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction)

PRESENT:

MR. JUSTICE EJAZ AFZAL KHAN

MR. JUSTICE DOST MUHAMMAD KHAN

MR. JUSTICE IJAZ-UL-AHSAN

CIVIL PETITION NO. 3440 OF 2017, CIVIL PETITION NO. 3523 of 2017, CIVIL PETITION NO. 3524 OF 2017, CIVIL PETITIONS NO. 3657 TO 3660 OF 2017, CIVIL PETITIONS NO. 3664 TO 3669 OF 2017, CIVIL PETITIONS NO. 3674 OF 2017, CIVIL PETITION NO. 3708 OF 2017, CIVIL PETITION NO. 3715 OF 2017, CIVIL PETITIONS NO. 4379 OF 2017, CIVIL PETITION NO. 4380 OF 2017, CIVIL PETITION NO. 4402 OF 2017, CIVIL PETITION NO. 4590 OF 2017 AND CIVIL PETITION NO. 4685 OF 2017

Against judgment dated 27.09.2017 passed by the High Court of Sindh, Karachi in C.Ps.No. D-5577/2016, D-5595/2016, D-6006/2016, D-5542/2016, D-5601/2016, D-5626/2016, D-5542/2016, D-5586/2016, D-5613/2016, D-5660/2016, D-5586/2016, D-5542/2016, D-5626/2016, D-423/2017, D-1102/2017, D-5680/2016 and D-5601/2016.

ORDER

Ejaz Afzal Khan, J--These Civil Petitions for Leave to Appeal have arisen out of judgment dated 27.09.2017, passed by a learned Division Bench of High Court of Sindh at Karachi, whereby Constitution Petitions filed by the Petitioners were dismissed.

2. Learned ASCs for the Petitioners contended that even if it is assumed for a while that appointments of the Petitioners were not made validly, they could not be sent packing without being heard. They next contended that where the Division Bench of the High Court itself came to the conclusion that the matter raised involves factual controversy it could not have expressed view on merits. Learned ASCs lastly argued that whatever the case may be any order passed in violation of the principle of natural justice enshrined in maxim audi alteram partem would be bad in law and that it would be just, fair and equitable if the writ petitions filed by the Petitioners before the High Court are treated as appeals before the departmental authority for being decided in accordance with law their grievance to a great extent will be redressed.

1. Learned Additional Advocate General, Sindh contended that notices were already issued to the Petitioners but they themselves opted not to appear before the competent authority.

2. Be all that as it may, last argument addressed by learned ASCs for the Petitioners has substance. We, therefore, Convert these petitions into appeals; allow them; set aside the impugned judgment; treat the writ petitions of the petitioners as appeals before the departmental authority and send them for being decided in accordance with law after hearing the appellants.

Sd/- Ejaz Afzal Khan, J

Sd/- Dost Muhammad Khan, J

Sd/- Ijaz-ul-Ahsan, J

ISLAMABAD, THE

6th of December, 2017.”

It appears that the Chief Secretary, Government of Sindh, while passing the impugned order(s) dated 22.11.2021 did not make any effort either to conduct an enquiry and scrutiny of the relevant record relating to appointment of the petitioners, nor even examined detailed enquiry report submitted by the Chairman Enquiry Committee constituted under the Court’s directions for such purposes after decision by the Hon’ble Supreme Court of Pakistan in the aforesaid terms, and has, therefore, concurred with the order(s) dated 06.12.2017 passed by the Secretary, Sindh Local Government Board, without proper application of mind.

1. During course of hearing instant petitions, such enquiry report of the High Powered Scrutiny Committee, comprising of Additional Secretary, Local Government Department (Chairman), Administrative Office, Sindh Local Govt. Board (Member), Direction-1, Sindh Local Government (Member), Ex Director II, Sindh Local Govt. Board Karachi (Member) and Director Local Fund Audit, Karachi, relating to entire procedure adopted for the purposes of appointments of the petitioners in BS-16 & BS-17 was examined by this Court, which reflected that the very basis of reliving/termination of the petitioners from their services was totally baseless and contrary to the record. It will be advantageous to reproduce the findings and recommendations of the Scrutiny Committee, which was prepared pursuant to the proceedings in Civil Appeal Nos.1592 to 1612 of 2017 out of Civil Petition No. 3440/2017 and others, which reads as under:

No. PA/AS/SE&LD/MISC//2020

GOVERNMENT OF SINDH SCHOOL EDUCATION & LITERACY DEPARTMENT

Karachi, dated 24th September, 2020

The Additional Chief Secretary (Services), Services, General Administration & Coordination Department Government of Sindh, Karachi.

Subject: SUBMISSION OF ENQUIRY REPORT IN RESPECT OF CIVIL APPEAL NOS.1592 TO 1612 OF 2017 OUT OF CIVIL PETITION NOS.3440, 3523, 3524, 3657, 3660, 3664, 3669/2017, 3674/2017, 3708/2017, 3715/2017, 4379, 4380/2017, 4402/2017 & 4590/2017 & 4685 OF 2017

I am directed to refer to Services, General Administration & Coordination Department’s Letter No. SO(APLS-III)SGA&CD/24 (454)/2018 dated 08.01.2020 and subsequent letter of even number dated 08th June, 2020 on the subject captioned above and to enclose herewith requisite Enquiry Report alongwith relevant annexures containing recommendations of Enquiry Committee for taking further necessary action in the matter as desired.

Encl: As above

Sd/- 24.09.2020.

(ZAHID HUSSAIN KHEMTIO) Chairman, Enquiry Committee/ Former ASLG/Now Addl. Secy. (SELD)

CC:

The Secretary, Local Govt. & Housing Town Planning Department.

FINDINGS

(1) These officers were relieved by Secretary, Sindh Local Government Board without issuing them Show Cause Notice and without approval of the Sindh Local Government Board and the Minister, Local Government and even they were not given opportunity for personal hearing.

(2) Furthermore, during hearing in the Honourable High Court of Sindh, Karachi, the Court was informed that the appellants were failed to confirm that they were paid their salaries to ascertain their genuineness. However, during course of verification, it has been revealed and confirmed by Regional Directors that they were paid their salaries, some of them have served with DDO powers and even in one case, post was created in the schedule of establishment.

(3) According to Rule-17, 18(1)(2) of the Sindh Councils Unified Grades Service Rules, 1982 the appellants have drawn their salary from the councils for the period which they served, the same is reproduced as under (Annexure-XII):-

Rule-17 “A member of the service shall draw his pay and other emoluments from the Council under which he served during the period for which the pay and other emoluments are claimed”.

Rule-18(1) Where a member of the service proceeds on leave he will draw his leave salary from the council concerned, or from the Sindh Councils Unified Grades Fund:

Provided that until the Sindh Councils Unified Grades Fund is constituted the member of the service shall draw his leave salary from the local fund of the Council and the amount so drawn shall be adjustable against the contribution of the council payable by the council to the Sindh Councils Unified Grades Fund when constituted’.

(2) Notwithstanding the provisions of sub-rule-(1) where a member of the service is a civil servant and his services have been borrowed, the leave salary contribution for the period of his duties in a council as calculated by the Accountant General, Sindh shall be paid to Government and the leave salary to such civil servant shall be paid by Government.

(4) According to Rule-4 of the Sindh Councils Unified Grades Service (Pension Fund) Rules, 1985 the appellants have make payments towards the pension contribution from their salaries in the councils for the period which they served (copies of pay slips can be seen at their personal files), the same is reproduced as under (Annexure-XIII):-

Rule-4(1) A council or any other body, where a member of the service is posted, shall, for the period of posting contribute to the fund by way of its share to the pension contribution in respect of such member at such rate as may from time to time, be determined by Government.

(2) The contribution payable by a council under sub-rule-(1) shall be the expenditure charged on the local fund within the meaning of sub-section (1) of Section 71 of the Ordinance.

(3) The contributions payable under sub-rule (1) in respect of any month shall be credited by the council or other body to the accounts of the fund in the first week of the month next following.

(5) According to Rule-21 of the Sindh Civil Servants Act, 1973 the appellants have make payments towards the Provident Fund from their salaries in the councils for the period which they served (copies of pay slips can be seen in personal files), the same is reproduced as under (Annexure-XIV):-

Rule-21(1) Before the Expiry of the third month of every financial year, the Accounts Officer or other officer required to maintain the provident fund accounts shall furnish to every civil servant subscribing to a provident fund the account of which he is required to maintain a statement under his hand showing the subscriptions to, including the interest accruing thereon, if any and withdrawals or advances from his provident fund during the preceding financial year.

(2) Where any subscription made by a civil servant to his provident fund has not been shown or credited in the account by the Accounts or other Officer required to maintain such account, such subscription shall be credited to the account of the civil servant on the basis of such evidence as may be prescribed.

(6) According to Section-129 of the Sindh Local Government Act, 2013 which is reproduced as under, the Sindh Local Government Board shall perform its functions as laid down in the Act (Annexure-XV):

Section-129 (1) The Board shall perform such functions and maintain funds in respect of employees as may be prescribed.

(2) The Board shall, with the approval of Government employee such number of employees as may be necessary, on such terms and conditions and they shall be liable to such disciplinary action and penalties as may be prescribed.

(3) Government may, from time to time, specify that a post in the Board shall be filled by person belonging to the Sindh Council Unified Grades or any other service.

(7) It is finally summarized that the services of appellants were rendered fake on account of so-called list of successful candidates (B-17/B-16) were issued vide Letter No. SLGB/SCUG/AO/Gen/2938297 of 2013/2016/ 1707 dated 10.10.2016 (Annexure-XVI) and No. SLGB/SCUG/AO/Gen /2938297 of 2013/2016/1708 dated 10.10.2016 (Annexure-XVII) of Sindh Council Unified Grades Service (Admin Branch) were submitted in the year 2013 by the Sindh Local Government Board to the Honourable High Court of Sindh Bench at Sukkur in CPD-293/2013 filed by Mr.Nadim Akber S/o Ali Akber V/s Province of Sindh and others but, the seniority lists were not issued till 2017 which is mandatory to be issued in the month of January every year as required under Section-12(1) & (2) of the Sindh Councils Unified Grades Service Rules, 1982 as discussed in the preceding paras. By no means from any stretch of imagination it was a list of successful candidate. Similarly, services of the appellants were remained continued.

(8) As far as conclusion at Para-13 of the Judgment passed by the Honourable High Court of Sindh Karachi is concerned, it is complete responsibility of the Sindh Local Government Board to call the record of the appellants petitioners from the local councils through the Directors Local Government/Deputy Directors Local Government throughout Sindh and to present before the Honourable High Court Sindh Karachi. The record received from the Sindh Local Government Board and from the Regional Directors are the attenuating circumstances for the appellants that their working in the Local Government Department had seen light of the day and onus of administrative lapse (advertent or inadvertent) must not be saddled upon the appellants, through executive orders or otherwise.

(9) The Honorable Supreme Court of Pakistan vide its order dated: 06-12-2017 had also taken into consideration for factual and legal aspects and set aside orders of Honorable High Court of Sindh in this matter.

RECOMMENDATIONS

(1) After going through the relevant record and scrutiny of field report and taking into consideration legal aspects of the case, The committee has formulated its recommendations as under;-Following Appellants/Petitioners are recommended for the reinstatement in service on the basis of the availability of personal record in the Sindh Local Government Board and factual field reports submitted by the Respective Regional Directors Local Government.

| | | | --- | --- | | 1. | Agha Fahad Ahmed s/o Agha Rafique Ahmed Khan B- 17 | | 2. | Ali Raza Khero s/o Sher Muhammad Khero, B-17. | | 3. | Shah Muhammad Noonari s/o Shafi Muhammad Noonari, B-17. | | 4. | Abdul Hameed Suhag s/o Ghulam Mustafa Suhag, B-17 | | 5. | Muhammad Irshad Gill s/o Muhammaddin, B-16 | | 6. | Muhammad Ishaque s/o Gul Hassan Lund, B-17. | | 7. | Amaar Hussain s/o Shoukat Hussain Jokhio, B – 17 | | 8. | Manthar Ali s/o Moula Bux Zardari, B-17. | | 9. | Abdul Hameed Shaikh s/o Allah Dino Shaikh, B – 16 | | 10. | Yaseen Ahmed Abbasi s/o Muhammad Yaqoob, B – 17 | | 11. | Abdul Waheed Panhyar s/o Ghulam Rasool, B-16 | | 12. | Amanullah s/o Hafeezullah Khoso, B-17 | | 13. | Abdul Sattar Solangi s/o Abdul Rasheed, B – 17 | | 14. | Raza Ali s/o Muhammad Soomar Thaheem, B – 16 | | 15. | Imran Khan s/o Muhammad Hassan Sial, B – 16 | | 16. | Mohsin Khan s/o Abdul Nabi Khan, B – 16 | | 17. | Majid Hussain Mahesar s/o Khadim Hussain, B – 16 | | 18. | Noorullah s/o Qalander Bux Abro, B – 17 | | 19. | Ali Akbar Daheri s/o Haji Din Muhammad, B-16. | | 20. | Muhammad Khan Sabhayo s/o Muhammad Usman Sabhayo, B-16. | | 21. | Vickey Kumar s/o Ramesh Lal, B-16. | | 22. | Ayaz Ahmed s/o Moula Bux Abro, B – 17 | | 23. | Abdullah s/o Muhammad Hussain Palijo, B-16. |

(2) Names of following petitioners/appellants whose personal files are available except joining reports in Sindh Local Government Board (SLGB) as well as the factual field reports were also received from the Respective Regional Directors Local Government, may be re-instated, However, there case needs further verification/scrutiny in order to ascertain complete picture due to non-availably of joining reports create doubts.

| | | | --- | --- | | 1. | Abdul Qayoom Massan s/o Muhammad Ramzan Massan, B-16. | | 2. | Hyder Ali Jiskani s/o Qamber Ali Jiskani, B-16. | | 3. | Bilawal Ali s/o Hamdullah Jamro, B-16. | | 4. | Imran s/o Nizamuddin Bhayo, B-16. | | 5. | Waseem Abbas Baloch s/o Ghulam Sarwar Baloch, B -16. | | 6. | Sajid Ali Mangi s/o Imdad Ali , B-17. | | 7. | Vikash s/o Bhagwandas, B-17. | | 8. | Zulfiqar Ali s/o Muhammad Hassan Sial, B – 17. | | 9. | Aijaz Ali Shah s/o Ghulam Muhammad Shah, B – 17. | | 10. | Abdul Hameed s/o Muhammad Murad Mengal, B-17. | | 11. | Adnan Razi s/o Manzoor Ahmed, B-17. | | 12. | Asif Ali Mangi s/o Late Abdul Sattar Mangi, B-16. | | 13. | Shakeel Ahmed Memon s/o Nazir Ahmed, B-16. | | 14. | Sajjad Ali s/o Liaqat Ali Mugheri, B-17. | | 15. | Imran s/o Muhammad Aslam Samo, B-16. | | 16. | Mahboob Ali s/o Moula Bux Zardari, B-17. | | 17. | Irfan Ali S/O Rasool Bux Khoso B-17. |

(3) Following petitioners/appellants whose personal files are not received from Secretary Sindh Local Government Board (SLGB) but their record/factual field report has been received from respective Regional Directors Local Government, therefore their case may also be re-examined for further verification.

| | | | --- | --- | | 1. | Mumtaz Ali Phulpoto, B-17. | | 2. | Shahzad Mangrio, B-16. | | 3. | Asghar Ali Mirani, B-17. | | 4. | Moeenuddin Abro, B-17. | | 5. | Manzoor Ahmed Memon, B-17. |

(4) The Names of following petitioners/appellants whose neither personal files are received from Secretary Sindh Local Government Board (SLGB) nor record is available submitted by the Regional Director Local Government, therefore they are not recommended for re-instatement.

| | | | --- | --- | | 1. | Anus, B-16. | | 2. | Sarmad Ali, B-16. | | 3. | Abdul Rasheed Malik B-17 |

S/d- Sd/- 1. Administrative Officer 2. Director Sindh Local Sindh Local Government Government (Member) Board (Member)

Sd/- Sd/- 3. Mr. Nadir Khan 4. Director Local Fund Ex Director II SLGB Karachi Audit Karachi (Member) (Member)

Sd/- 5. Additional Secretary Local Govt. Department (Chairman)

1. In order to further verify the factual position with regard to claim of the petitioners to the effect that they have been appointed on their respective posts in BS-16 and BS-17 during 2012-2013 after complying with all the codal formalities, learned counsel for the petitioners were directed to file chronological statement with regard to appointments of the petitioners along with relevant documents. Pursuant to such order, learned counsel for the petitioners have filed their respective chronological statements along with relevant documents, whereas, learned counsel for the respondents did not file any objection, nor disputed the authenticity of such documents. Moreover, the learned counsel for the respondents has candidly conceded that in view of the Enquiry Report and the finding recorded therein, the very basis of terminating the services of petitioners is ill founded as after scrutiny of record of the petitioners, prima facie, no illegality is found in the process of their appointment on respective posts.

2. Keeping in view above factual and legal position, vide our short order dated 14.12.2022, instant petitions were allowed in the following terms:

“14.12.2022

M/s. Ziaul Haq Makhdoom a/w Hira Agha, Fatima Ashfaq, Amna Khan, Azhar Mahmood, Noman Khanzada, Advocates for Petitioner in CPD 7401/21.

Agha Haris Khan, Advocate for Petitioner in CPD 7407 to 7410/21.

Mr. Muhammad Haseeb Jamali, Barrister Hidayat Magrio, Muzammil Hussain Jalbani, Advocates for Petitioner in CPD 75/22.

M/s. Shahab Sarki & Zulfiqar Ali Langah, Advocates for Petitioner.

Mr. Ziauddin Junejo, AAG a/w Saim Imran Khan Administration Officer SLGB.

Pursuant to Court’s order dated 09.12.2022, all learned counsel for the petitioners have filed their respective chronological statements along with relevant documents in the aforesaid petitions, which are taken on record, copies supplied to learned AAG, who do not dispute the process adopted for the purposes of appointments/ recruitment of the petitioners in Sindh Local Government, nor disputed the Inquiry Report dated 24.09.2020 and the recommendation made thereunder. Heard the counsel for the petitioners and the learned AAG duly assisted by the concerned office of SLGB present in Court.

For the reasons to be recorded later on, the aforesaid petitions are allowed in terms of recommendations as contained in Inquiry Report No. PA/AS/SE&LD/MISC/2020 dated 24.09.2020 (available at page-689 in C.P.No. D-75/2022), consequently, all identical impugned order(s) No. SO(APLS-III)S&GAD/24(454)/2018 dated 22.11.2021 issued by Chief Secretary to Government of Sindh/Appellate Authority (available at Page-43 in C.P.No. D-75/2022) as well as the identical Relieving Order(s) No. SLGB/SCUG/AO/Gen/293 & 297 of 2013/2016/1707 and No. SLGB/SCUG/AO/Gen/293 & 297 of 2013/2016/1708 both dated 10.10.2016 (available at Page-567 in C.P. No. D-75/2022) and subsequent identical Termination Order No. SLGB/SCUG/AO Gen/293 & 297/2013/ 2017/1888 dated 04.10.2017 (page-659 in C.P. No. D-75/2022) in respect of petitioners in above petitions are hereby set aside.”

1. Above are the reasons for such short order.

2. Before parting with the judgment, we may observe that the salaries and other service benefits, if not paid to the petitioners during this period, shall be paid immediately, however, not later than two (02) months from the date of receipt of detailed reasons.

(Y.A.) Petitions allowed

PLJ 2023 Karachi 171

Present:Agha Faisal, J.

GHULAM SHABIR--Petitioner

versus

2ND ADJ TANDO ALLAHYAR & others Sindh High Court--Respondents

Const. P. No. S-196 of 2023, decided on 20.10.2023.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Constitution of Pakistan, 1973, Art. 199--Concurrent judgments--Dismissal of family appeal--Jurisdiction--Exercising of discretion--Challenge to--Where fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having force of law--The impugned judgments are well reasoned and counsel has been unable to demonstrate any manifest infirmity therein--Petition dismissed. [P. 172] B

PLD 2006 SC 1124 & PLD 2013 SC 323 ref.

Constitution of Pakistan, 1973--

----Art. 199--Writ petition--Ambit of a writ petition is not that of a forum of appeal, nor does it automatically become such a forum in instances where no further appeal is provided, and is restricted inter alia to appreciate whether any manifest illegality is apparent from order impugned. [P. 172] A

PLD 2021 SC 391.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--In family matters High Court does not ordinarily appraise, re-examine evidence or disturb findings of fact; cannot permit constitutional jurisdiction to be substituted for appellate/revisionary jurisdiction; ought not to lightly interfere with conclusiveness ascribed to final stage of proceedings in statutory hierarchy as same could be construed as defeating manifest legislative intent; and Court may remain concerned primarily with any jurisdictional defect. [P. 173] C

2016 CLC 1, 2015 PLC 45, 2015 CLD 257, 2011 SCMR 1990, 2001 SCMR 574 & PLD 2001 SC 45 ref.

Ms. Tasleem Pasha, Advocate for Petitioner.

Mr. Muhammad Yousif Rahpoto, AAG. for Respondent.

Date of hearing: 20.10.2023.

Order

This is a writ petition assailing concurrent judgments rendered in the family jurisdiction. Family Suit 21 of 2022 was decreed vide judgment dated 23.02.2023 passed by the Court of Family Judge, Tando Allahyar after a demonstratively detailed appreciation of evidence. Family Appeal 06 of 2023, filed there against, was dismissed vide judgment dated 13.05.2023 rendered by the Additional District Judge-II, Tando Allahyar. The case articulated before the Court by the petitioner’s counsel is that the evidence has not been appreciated in its proper perspective by the respective fora, hence, the exercise may be conducted de novo in this writ petition.

It is settled law that the ambit of a writ petition is not that of a forum of appeal, nor does it automatically become such a forum in instances where no further appeal is provided,[1] and is restricted inter alia to appreciate whether any manifest illegality is apparent from the order impugned. It is trite law[2] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law. The impugned judgments are well reasoned and the learned counsel has been unable to demonstrate any manifest infirmity therein or that they could not have been rested upon the rationale relied upon.

In so far as the plea for de novo appreciation of evidence is concerned, it would suffice to observe that writ jurisdiction is not an amenable forum in such regard.[3]

The Supreme Court has recently had occasion to revisit the issue of family matters being escalated in writ petitions, post exhaustion of the entire statutory remedial hierarchy, in Hamad Hasan[4] and has deprecated such a tendency in no uncertain words. It

has inter alia been illumined that in such matters the High Court does not ordinarily appraise, re-examine evidence or disturb findings of fact; cannot permit constitutional jurisdiction to be substituted for appellate/revisionary jurisdiction; ought not to lightly interfere with the conclusiveness ascribed to the final stage of proceedings in the statutory hierarchy as the same could be construed as defeating manifest legislative intent; and the Court may remain concerned primarily with any jurisdictional defect. It is the deliberated view of this Court that the present petition does not qualify on the anvil of Hamad Hasan. Therefore, in mutatis mutandis application of the ratio illumined, coupled with the rationale delineated supra, this petition is found to be misconceived, hence, hereby dismissed along with listed application.

(Y.A.) Petition dismissed.

[1]. Per Ijaz ul Ahsan J in Gul Taiz Khan Marwat vs. Registrar Peshawar High Court reported as PLD 2021 Supreme Court 391.

[2]. Per Faqir Muhammad Khokhar J. in Naheed Nusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.

[3]. 2016 CLC 1; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574; PLD 2001 Supreme Court 415.

[4]. Per Ayesha A. Malik J in yet to be reported judgment dated 17.07.2023 delivered in M. Hamad Hassan v. Mst. Isma Bukhari & Others (Civil Petition No. 1418 of 2023).

PLJ 2023 Karachi 173

Present: Muhammad Junaid Ghaffar, J.

ALI TASLEEM--Petitioner

versus

COURT OF IXTH ADJ, KARACHI-EAST and others--Respondent

Const. P. No. S-985 of 2023, decided on 20.10.2023.

Sindh Rented Premises Ordinance, 1979--

----S. 13--Ejectment petition--Allowed--Dismissed of appeal--Delay in payment of rent--Constitutional jurisdiction--Both Courts below have given a finding of fact as to delay in payment/deposit of rent in question; whereas, Petitioner before Appellate Court has admitted such delay by taking a plea that due to economic conditions it was beyond his control--Delay is admitted, and therefore, no exception can be drawn to such admission in this Constitutional jurisdiction, which otherwise has a very limited scope--Finding of facts so recorded by two Courts below, High Court under its limited Constitutional jurisdiction in matter in hand, cannot go any further to reappraise evidence. [Pp. 174, 175 & 176] A, C & D

2016 CLC 1, 2015 PLC 45, 2015 CLD 257, 2011 SCMR 1990, 2001 SCMR 574, PLD 2001 SC 415 & 2023 SCP 197 ref.

Constitution of Pakistan, 1973--

----Art. 199--Writ petition--Ambit of a writ petition is not that of a forum of appeal, nor does it automatically become such a forum in instances where no further appeal is provided, and is restricted inter alia to appreciate whether any manifest illegality is apparent from order impugned. [P. 175] B

PLD 2021 SC 391.

Mr. Ammar H. Quazi, Advocate for Petitioner.

Date of hearing: 20.10.2023.

Order

1. Granted.

2. Deferred.

3. Granted subject to all just exceptions.

4-5. Through this Petition, the Petitioner has impugned Judgment dated 06.09.2023 passed by IXth Additional District Jude, Karachi East in First Rent Appeal No. 81 of 2023; whereby, while dismissing the Appeal, the Judgment of the IIIrd Senior Civil Judge/ Rent Controller Karachi East passed in Rent Case No. 138 of 2022 has been maintained, through which ejectment Application filed by Respondent had been allowed.

Learned Counsel for the Petitioner submits that both the Courts below have erred in law and facts by allowing the ejectment application of the Respondent as there was no delay on the part of the present Petitioner and after passing of a tentative rent order under Section 16(1) of the Sindh Rent Premises Ordinance, 1979, the payments were made and in support thereof he has referred to Page-101, which is a Ledger of MRC No. 61/2022. According to him, in view of such position, no further order could have been passed under Section 16(2) ibid, and the Petitioner was entitled to lead evidence instead of debarring him. He has prayed for ordering notices and passing a restraining order against execution proceedings.

Heard. On perusal of the record, it appears that both the Courts below have given a finding of fact as to delay in payment/ deposit of the rent in question; whereas, the Petitioner before the Appellate Court has admitted such delay by taking a plea that due to economic conditions it was beyond his control. The finding of learned Appellate Court in this regard, whereby a finding of fact in respect of delay in payment of rent has been recorded is as under;

8- It appears from the record thatvide tentative rent order dated 12-11-2022, Rent Controller had directed the appellant/opponent to deposit in rent case arrears of rent of demised premises at Rs.60,000/-from the month of April, 2022 within a month and further deposit its future rent at the same rate on or before 05th day of every calendar month. Record further shows that appellant/opponent had deposited Rs. 120000/-on 19-10-2022 and Rs.60,000/ on 10-12-2022 in MRC No. 61/2022 although then he was in rent arrears of Rs.420,000/-till then as such appellant/opponent had committed willful default in clearing arrears of rent. Subsequently, he had paid arrears of two months together with rent of January 2023 as such he was still in arrears of past rent of premises. Record further shows that appellant/opponent deposited future rent of premises for the month of November 2022 on 13-12-2022 after the delay of seven days. Likewise, appellant/opponent had deposited the rent for the month of December, 2022 on 14-01-2023 after the delay of eight days. Thereafter, he submitted the rent for the month of January, 2023 on 06-02-2023 after the delay of one day and he deposited rent for the month of February, 2023 on 22-03-2023 after the delay of sixteen days. This manifests that appellant/opponent had repeatedly violated the tentative rent order of Rent Controller.

In fact, in Para 6 of the grounds taken in this petition again it has been admitted that “some delay in submission of rent which has happened due to the current economic conditions was pointed out by the counsel of the appellant at the time of hearing, but the same was not taken into consideration”. To this it may be observed that it could hardly be a ground to entertain this petition, whereas, if it is so, it equally applies in favor of the Respondent; hence, liable to be discarded. It is settled law that the ambit of a writ petition is not that of a forum of appeal, nor does it automatically become such a forum in instances where no further appeal is provided,[1] and is restricted inter alia to appreciate whether any manifest illegality is apparent from the order impugned. As noted hereinabove, delay is admitted, and therefore, no exception can be drawn to such admission in this Constitutional jurisdiction, which otherwise has a very limited scope. Insofar as the plea for de novo appreciation of evidence is concerned, it would suffice to observe that writ jurisdiction is not an amenable forum in such regard.[2] In cases wherein the legislature has provided only one Appeal as a remedy, like family and rent cases, it has been the consistent view of the Apex Court, that invoking of Constitutional jurisdiction in such matters as a matter of right or further appeal is not a correct approach. In Hamad Hasan[3] the Supreme Court has once again deprecated such a tendency and has held that that in such matters the High Court does not ordinarily appraise, re-examine evidence or disturb findings of fact, whereas, constitutional jurisdiction is not a substitute of appellate/revisionary jurisdiction.

In view of hereinabove facts and circumstances of this case and the finding of facts so recorded by the two Courts below, this Court under its limited Constitutional jurisdiction in the matter in hand, cannot go any further to reappraise the evidence; hence this petition being misconceived is hereby dismissed in limine with pending application.

(Y.A.)

[1]. Gul Taiz Khan Marwat vs. Registrar Peshawar High Court PLD 2021 SC 391.

[2]. 2016 CLC 1; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574; PLD 2001 SC 415.

[3]. Judgment dated 17.07.2023 in M. Hamid Hassan v. Mst. Isma Bukhari & Others (Civil Petition No. 1418 of 2023-SC citation 2023 SCP 197).

PLJ 2023 Lahore 1

Present: Muzamil Akhtar Shabir, J.

MUHAMMAD SIBTAIN KHAN--Petitioner

versus

DEPUTY SPEAKER, PROVINCIAL ASSEMBLY FOR THE PROVINCE OF PUNJAB through Secretary Punjab Assembly and others--Respondents

W.P. No. 45456 of 2022, decided on 22.7.2022.

Rules of Procedure of Provincial Assembly of Punjab, 1997--

----Rr. 210(5) & 212--Constitution of Pakistan, 1973, Arts. 53(3) & 199--Election of Chief Minister--Order of Deputy Speaker Punjab for deployment of police in Punjab Assembly-Violent activity--Validity of order--Jurisdiction of High Court--Both parties have been approaching Courts time & again and raising various issues relating to membership of Punjab Assembly and election of Chief Minister and have been called in question proceedings of Assembly before Courts on grounds of law and order situation and other situations of deadlock between members were mention as ground requiring interference by Courts and as this petition is in continuation of earlier order passed by Hon’ble Supreme Court of Pakistan and different Benches of High Court--Provision of Rule 210(5) authorizes Speaker to be assisted by Sergeant at Arms in conducting of proceedings of Assembly as Assembly has its own internal security system and said sub-Rule further authorizes concerned authority to seek help of any other authority to assist Sergeant at Arms in carrying out orders of Speaker for purpose of maintaining law and order situation and Rule 212 authorizes authority to remove any stranger who misconducts himself in Assembly or infringes directions of Speaker--Whole staff of Assembly shall be bound to perform their duties and assist conduct of election in terms of Rules of Procedure of Provincial Assembly, 1997 and orders passed by Hon’ble Supreme Court of Pakistan which shall be implemented in letter and spirit--Petitions disposed of. [Pp. 8, 12 & 13] A, B & D

Constitution of Pakistan, 1973--

----Art. 199--Election of Chief Minister Punjab--Order for deployment of police in Punjab Assembly--Direction to--Proceedings of Assembly for election of Chief Minister are to be conducted in terms of orders passed by Hon’ble Supreme Court and other directions issued by High Court through various orders which are consistent with orders of Hon’ble Supreme Court--The internal security of Punjab Assembly and Sergeant at Arms shall remain within premises of Assembly and shall make effort that no law and order situation shall arise--The police authority shall not enter Assembly premises and shall remain outside premises of Assembly and shall ensure that no member is prevented from entering Assembly premises for participating in election process--Internal security of Assembly shall be responsible for security during proceedings of Assembly for conducting of election and shall ensure that same is not disturbed by any person--This arrangement shall continue during whole process of election unless law and order situation arises whereby it is deemed appropriate by Presiding Officer and Assembly Authorities to require help of police to resolve same and in said case, their help may be requisitioned to control situation, however, said help shall not be called unnecessarily so that apprehension in mind of any member that election is not being conducted in a fair manner, is avoided. [Pp. 12 & 13] C

Mr. Amir Saeed Rawn, Advocate for Petitioner associated by Barrister Umair Niazi, Rai Muhammad Ali, Mr. Safdar Pirzada, Rana Nasir Mushtaq, Mr. Irfan Mehmood Ranjha and Mr. Adnan Anwar Dhuddi, Advocates.

Mr. Mukhtar Ahmad Ranjha, Advocate for Respondent No. 4 (Secretary, Punjab Assembly, Lahore).

Mr. Muhammad Azhar Siddique, Mr. Arshad Azhar, Ms. Salma Riaz and Amna Liaqat Advocates for Petitioner (in W.P. No. 45516 of 2022).

Barrister Hassan Khalid Ranjha, A.A.G. and Mr. Jawad Yaqoob, A.A.G.

Date of hearing: 22.7.2022.

Order

This order shall decide the Writ Petitions Nos. 45456, 45516 & 45515 of 2022, which have been received by this Court in marking today after 02:00 p.m.

1. Through W.P. No. 45456 of 2022 Muhammad Sibtain Khan M.P.A./opposition leader Punjab Assembly and through W.P. No. 44516 of 2022, Mrs. Zainab Umair, M.P.A. Punjab Assembly, both have called in question the order dated 22.07.2022 passed by Deputy Speaker/Presiding Officer of Punjab Assembly Respondent No. 4, who has to conduct the election for the post of Chief Minister to be held at 04:00 p.m. today, whereby he has issued D.O. No. SO/Dy:Speaker/2022 addressed to Chief Secretary Punjab and Inspector General of Punjab stating therein that during proceedings of house, some elements are disrupting the process of house for conducting proceedings of the house and in terms they are hampering the process of election of Chief Minister through violent activity. It is claimed that life of Deputy Speaker, M.P.As. as well as assembly staff is at stake and has requested to deploy requisite security force in the house as well as within the precincts of Punjab Assembly building in terms of Rule 210 of Rules of Procedure of Provincial Assembly, 1997. Through W.P. No. 45515 of 2022 Muhammad Khan Bhatti Secretary Punjab Assembly, Lahore had challenged the notification issued by Inspector General of Punjab Police/Respondent No. 3 in the said petition whereby police force has been deployed in Punjab Assembly premises at different places and also prayed that action of the Deputy Speaker Respondent No. 2 in the said petition to appoint Respondent No. 4/Amir Habib, Special Secretary-II of Punjab Assembly, Lahore, the Secretary of Assembly is devoid of any lawful authority as he has no authority under the law of appointment of Secretary when the Secretary is existing and functioning under the law.

2. Learned counsel for the petitioners have argued in support of their petitions and learned A.A.Gs. have defended the same through their respective arguments which shall be dealt with while dealing the issues raised by them in subsequent paragraphs.

3. Main contention of the petitioners raised through these petitions is that Deputy Speaker has been appointed only for today as Presiding Officer for the purpose of conducting elections to the post of Chief Minister, Punjab under specific directions issued by Hon’ble Supreme Court of Pakistan, therefore, he had no authority to pass any orders beyond the scope of framework provided by Hon’ble Supreme Court of Pakistan, hence, impugned order dated 22.07.2022 and order of Deputy Speaker appointing Amir Habib Assistant Secretary for conducting election are not sustainable.

4. On the other hand, both the learned A.A.Gs. have defended the impugned order by claiming the same to have been passed in consonance with the orders of Hon’ble Supreme Court of Pakistan as well as various orders passed by learned Benches of this Court. For the purpose of further proceedings with this matter order of Hon’ble Supreme Court of Pakistan has been relied upon by the parties, operative part of order of Hon’ble Supreme Court of Pakistan is reproduced as under:

“10. Based on the unqualified consent of all parties before this Court and the assurances obtained by the Court from Mr. Sharif, the following order is passed which would amend and modify and to that extent override the impugned order of the Lahore High Court dated 30.06.2022:

(i) The second poll for election of the Chief Minister, Punjab in terms of the proviso to Article 130(4) of the Constitution shall be held on Friday, 22.07.2022 at 4:00 pm in the Punjab Assembly Building as suggested by Mr. Ellahi, the Speaker, Punjab Assembly and consented to by Mr. Sharif as well as Mr. Babar Awan, learned ASC representing the Leader of the Opposition in the Punjab Provincial Assembly. The session in which such poll takes place will be chaired by the Deputy Speaker of the Assembly. The Speaker/ Deputy Speaker shall issue a formal notification convening the session in this regard after fulfilling all legal and procedural formalities within one week from today;

(ii) Till such time that the poll as directed above is held in accordance with the Constitution, Mr. Sharif has undertaken before the Court that he and his Cabinet shall exercise the powers and function their offices strictly in fiduciary capacity as envisaged by the Constitution and the law to support the process of bye-election in the Province to be conducted in a free, fair and transparent manner by the Election Commission of Pakistan. That such commitment to act as trustees is meant to fulfill the duty of care towards citizens of Punjab so that they are not deprived of due representation and governance and to avoid any constitutional vacuum, anomaly or complication. However, such entrustment shall continue only till 22.07.2022 when a second poll takes place in terms of Article 130(4) of the Constitution;

(iii) The Lahore High Court shall issue its detailed reasons for the order dated 27.05.2022 passed in W.P.No. 34654 of 2022 in this regard within one week from today which shall be implemented by ECP forthwith by issuing the notification of the names of the candidates against reserved seats in accordance with the directions issued by the Lahore High Court. If any person is aggrieved of any such notification, he/she shall have the right to agitate such grievance before the appropriate forum in accordance with law;

(iv) Bye-election (due to be held on 17.07.2022) against the seats which had become vacant on account of defection of members of PTI shall be held in a free, fair and transparent manner. The process shall be completed as per the schedule already announced by the ECP. The final result(s) and notification(s) shall also be issued accordingly. Any and all disputes arising out of or relating to such bye-election shall be dealt with by the relevant fora, in accordance with law;

(v) The ECP as well as all relevant State functionaries including members of the Parliament and the Provincial Assemblies, Ministers, Advisors, etc. shall ensure that all parties follow the election laws as well as the Code of Conduct issued by the ECP in their letter and spirit and refrain from any interference, inducement or influence in the affairs of the executive, the local administration, the ECP, etc. or indulge in corrupt and illegal practices, the use of State machinery in the process of bye-elections, harassment, intimidation or use of law enforcement agencies against opponents/ candidates or their supporters, etc. except to restore law and order;

(vi) No transfers or postings of officials of the local administration, police, Provincial Election Commission, etc. shall be undertaken in order to ensure fairness and transparency of the election except in accordance with specific provisions of the Election Act, 2017 and the Code of Conduct to meet emergency situations. Further, no fresh development schemes and/or financial allocations shall be made in the constituencies where the bye-election is to be held till finalization of the bye-election. In the event of violation of the provisions of the Election Act, relevant rules framed thereunder or the Code of Conduct, the ECP shall take appropriate action in accordance with law;

(vii) The Speaker, Punjab Assembly has given a categoric assurance that all matters relating to the business of the Assembly shall be handled and dealt with peacefully, impartially and transparently within the Assembly Chambers and its relevant offices in accordance with the Constitution, the law and the rules. In addition, all parties including Mr. Sharif have categorically assured and stated that a peaceful and congenial atmosphere will be maintained not only during the poll but also in the proceedings in the Provincial Assembly held thereafter until announcement of the result. We expect that such undertakings and assurances shall be honored and implemented; and

(viii) It is unreservedly and categorically agreed and undertaken by all parties before us that it is the constitutional, legal and moral responsibility of all political parties and their members/candidates involved in bye-elections and the subsequent voting in the Provincial Assembly to abide by the ECP Code of Conduct and the Rules of Procedure of the Provincial Assembly and the norms/ conventions of the parliamentary conduct.”

1. Petitioners have relied upon Paragraph No. (v) & (vii) of Paragraph No. 10 and have stated that the order of Deputy Speaker is not in consonance with the afore-referred direction of Hon’ble Supreme Court of Pakistan. For further clarification the order of Deputy Speaker dated 22.07.2022 is reproduced as under:

“D.O.No. SO/Dy:Spkr/2022

PROVINCIAL ASSEMBLY OF THE PUNJAB

22nd July 2022

Subject: DEPLOYMENT OF THE REQUISITE SECURITY FORCES

In pursuance of the Order of the Hon’ble Supreme Court of Pakistan dated 01.07.2022, passed in Civil Petition No. 2242 of 2022, and the Order of the Hon’ble Lahore High Court, Lahore dated 30.06.2022 passed in Writ Petition No. 30456 of 2022 and other connected cases, I, Sardar Dust Muhammad Mazari, Deputy Speaker, am presiding the sitting of the Assembly today on 22.07.2022 for conducting the second poll in the election of the Chief Minister Punjab in terms of Article 130 of the Constitution of the Islamic Republic of Pakistan read with Rule 20 of the Rules of Procedure of Provincial Assembly of the Punjab 1997.

1. During the proceedings of the House, some elements are disrupting the proceedings of the House and are preventing me from conducting the proceedings of the House, and in turn, they are hampering the process of election of the Chief Minister. The said violent activity may put in danger not only life but also lives of the innocent MPAs and the Assembly staff.

2. In view of the above situation, I am constrained to request you to deploy the requisite security forces within the House as well as within the precincts of the Assembly building in terms of the Rule 210 of the Rules ibid to enable me to discharge my Constitutional obligations and lawful mandate in respect of conducting the election of the Chief Minister under the foregoing legal provisions and directions of the Honourable Supreme Court of Pakistan.

S/d (Sardar Dost Muhammad Mazari) Deputy Speaker Provincial Assembly of the Punjab

Chief Secretary, Punjab Inspector General of Police, Punjab”

1. Learned A.A.Gs. have relied upon following provision of law i.e. Articles 69 and 53 of the Constitution of the Islamic Republic of Pakistan, 1973 “the Constitution” to state that election to the post of Chief Minister are being conducted by Deputy Speaker as Presiding Officer under Article 53(3) of the Constitution and this Court in terms of Article 69 of the Constitution has no jurisdiction to interfere in the proceedings of Assembly, therefore, validity of the order dated 22.07.2022 cannot be called in question at this stage. Needless to mention here that both the parties have been approaching the Courts time and again and raising various issues relating to membership of Punjab Assembly and election of Chief Minister and have been called in question the proceedings of Assembly before the Courts on grounds of law and order situation and other situations of deadlock between members were mention as ground requiring interference by the Courts and as this petition is in continuation of the earlier order passed by Hon’ble Supreme Court of Pakistan and different learned Benches of this Court out of which, some orders are reproduced below; therefore, question about jurisdiction of this Court to interfere in the dispute at this stage has lost its efficacy and cannot be treated as a hindrance to hear and decide the dispute being raised before this Court. During proceedings earlier order dated 12.04.2022 was passed in ICA No. 21710 of 2022 by learned Division Bench of this Court in which relevant Paragraph Nos. 23, 24 & 25 are reproduced below:

“23. Since the learned counsel representing Appellants repeatedly referred to unruly incidents in the House, to eliminate their apprehension that it would be repeated again the Inspector General of Police, Punjab, Lahore present before the Court, states that all possible measures have been taken for safe and smooth arrival of the members of the Provincial Assembly to the Assembly have been taken whereas the internal security is to be catered for by the Secretary of the Provincial Assembly in coordination with the Security Staff. He adds that Police is ever ready to deal with any untoward situation for smooth election for the Leader of the House.

1. The Chief Secretary, Govt. of the Punjab, present before the Court, states that all the departments have already been directed to facilitate the election for the Leader of the House of the Provincial Assembly. In the event of any complaint by any side, rapid action shall be taken against the delinquent(s).

25. As a necessary corollary to the discussion made in the foregoing paragraphs we have no hesitation to hold that Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab has the right to preside over the Session of the House scheduled to be held on 16.04.2022, irrespective of any observation by the learned Judge in Chambers in the Impugned order/judgment. Consequently, all these appeals are disposed with the direction to Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab to abide by his oath and to ensure conduct of elections for the portfolio of the Chief Minister in a fair, transparent and impartial manner, strictly under the Constitution and the Rules, 1997, specifically Second Schedule thereof (Procedure for Recording of Votes in the Case of Chief Minister), without being influenced by any proceedings before this Court. He is further directed to facilitate the National/International Observers, media persons, representatives of PILDAT, FAFEN and other national/ international organizations etc. during the election for the portfolio of Chief Minister. No orders as to cost.”

1. Even this Court was approached by the parties by filing W.Ps. No. 45028 and 45311 of 2022 in which following order was passed:

“3. On the other hand, learned law officer in compliance of order dated 20.07.2022 passed by this Court has placed on the record report/parawise comments on behalf of Inspector General of Police, Punjab Lahore from which it reveals that neither any harassment has been caused nor will be caused to the petitioner or any other member of the Punjab Assembly. Moreover, no threat has been extended to the petitioner or any other member of the Provincial Assembly by the police.

4. Considering the submissions of the learned counsel for the petitioners as well as learned law officer, these petitions stand disposed of with the direction to the Chief Secretary of Punjab, Lahore and the Inspector General of Police, Punjab, Lahore (Respondents No. 4 & 6 in W.P. No. 45028 of 2022 and Respondents No. 1 & 2 in W.P. No. 454311 of 2022) to ensure that the members of Provincial Assembly Punjab from both sides may cast their votes safely as per their wishes in the Election of Chief Minister of Punjab, which is scheduled to be held on 22.07.2022. Learned law officer is directed to intimate this order to the above said respondents for compliance.”

1. The Rule 20 of Rules of Procedure of Provincial Assembly, 1997 relates to conduct of elections and Rules 210 and 212 relating to proceedings of Assembly which are reproduced below:

“20. 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 that majority, all proceedings for the election, including nomination of the candidates, shall commence afresh.

(3) If no candidate secures 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 candidate 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 is 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.

1. Power to order withdrawal of members or suspend sitting.– (1) The Speaker shall preserve order and shall have all powers necessary for the purpose of enforcing his orders.

(2) The Speaker may direct any member whose conduct is, in his opinion, grossly disorderly, to withdraw immediately from the Assembly, and any member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the sitting.

(3) If any member is ordered to withdraw a second or subsequent time in the same session, the Speaker may direct the member to absent himself from the sittings of the Assembly for any period not exceeding fifteen days and the member so directed shall absent himself accordingly.

(4) The Speaker may, in the case of grave disorder in the Assembly, suspend a sitting for a time to be named by him or adjourn the Assembly.

(5) The Speaker or, before his election, the outgoing Speaker or, in his absence, the Secretary may appoint a Sergeant-at-Arms and such other officers as he may consider necessary to assist the Sergeant-at-Arms in carrying out the orders of the Speaker.

(6) If a member who has been ordered by the Speaker to withdraw from the Assembly refuses to do so, the Sergeant-at-Arms shall himself or with the assistance of such other officers as are appointed under sub-rule (5) carryout such orders as he may receive from the Speaker.

1. Removal of strangers.– An officer authorised in this behalf by the Speaker shall remove from the precincts of the Assembly any stranger whom he may see, or who may be reported to him to be in any portion of the precincts of the Assembly reserved for the exclusive use of members, or who having been admitted into any portion of the precincts of the Assembly, misconducts himself or wilfully infringes the directions given by the Speaker under sub-rule (1) of Rule 211 or does not withdraw when directed under sub-rule (2) of rule 211 and may also remove a stranger who had previously misbehaved and apprehension of his doing so again exists.”

2. It is claimed by the petitioners that as per sub-rule (5) of Rule 210 Speaker/Presiding Officer can seek assistance of Sergeant at Arms and cannot directly invoke the jurisdiction to summon the police to enter into the Assembly premises on the basis of surmises and conjectures as according to learned counsel for the petitioner impugned notice dated 22.07.2022, it is stated that proceedings for election have commenced and law and order situation has arisen which is the reason requiring summoning of police to prevent the threat of life of Deputy Speaker and members of assembly as well as its staff whereas this Court is hearing the petition at 02:00 p.m. and election process has not yet been commenced, therefore, impugned order according to them has been issued with predetermined mind to interfere in process of election which they state amounts to rigging the election process with mala fide intention.

3. Both the learned A.A.Gs. have referred to previous election of Chief Minister, Punjab held on 16.04.2022 wherein law and order situation had arisen requiring interference of police in that scenario, they claim that impugned order has been passed with bona fide intention just to prevent any untoward incident from happening in the election to be conducted today. Provision of Rule 210(5) authorizes the Speaker/Presiding Officer to be assisted by the Sergeant at Arms in conducting of proceedings of Assembly as the Assembly has its own internal security system and the said sub-Rule further authorizes the concerned authority to seek help of any other authority to assist the Sergeant at Arms in carrying out the orders of the Speaker for the purpose of maintaining the law and order situation and Rule 212 thereof authorizes the authority to remove any stranger who misconducts himself in the Assembly or infringes the directions of the Speaker. However, as police could not be called directly in place of internal security/Sergeant at Arms without any law and order situation under the said Rule, there is great apprehension in the minds of the petitioners that said rule has been misinterpreted and has been misused by misinterpreting the judgments passed by Hon’ble Supreme Court of Pakistan as well as this Court and they apprehend that the election shall not be conducted in a fair manner, therefore, they have prayed that police should not be allowed to enter in the premises unless there is law and order situation. In this case, on the one hand, one party seeks to avoid an untoward situation from arising and the other party apprehends that said measure has been taken to conduct the election in an unfair manner.

4. In view thereof, in the interest of justice, these petitions are disposed of with directions that:--

(i) proceedings of Assembly for election of Chief Minister are to be conducted in terms of the orders passed by the Hon’ble Supreme Court and other directions issued by this Court through various orders which are consistent with orders of the Hon’ble Supreme Court;

(ii) the internal security of the Punjab Assembly and Sergeant at Arms shall remain within the premises of the Assembly and shall make effort that no law and order situation shall arise;

(iii) the police authority shall not enter the Assembly premises and shall remain outside the premises of Assembly and shall ensure that no member is prevented from entering the Assembly premises for participating in the election process;

(iv) internal security of the Assembly shall be responsible for the security during the proceedings of Assembly for conducting of election and shall ensure that same is not

disturbed by any person. This arrangement shall continue during whole process of election unless law and order situation arises whereby it is deemed appropriate by the Presiding Officer and Assembly Authorities to require help of the police to resolve the same and in the said case, their help may be requisitioned to control the situation, however, the said help shall not be called unnecessarily so that the apprehension in the mind of any member that election is not being conducted in a fair manner, is avoided.

1. As it is claimed that both the Secretary of the Assembly and Amir Habib, Assistant Secretary, have been suspended and the dispute relating to their suspension cannot be decided in such short time, hence, it is directed that the whole staff of the Assembly shall be bound to perform their duties and assist the conduct of election in terms of Rules of Procedure of Provincial Assembly, 1997 and orders passed by Hon’ble Supreme Court of Pakistan which shall be implemented in letter and spirit.

2. As these petitions have been decided and there is a very short span of time between oral announcement of this order and conduct of election at 4:00 p.m. and order may not reach the Assembly in time, the learned counsel for the parties, especially the learned Law Officers are directed to convey this order to the concerned authorities for information and compliance.

(Y.A.) Petitions disposed of

PLJ 2023 Lahore 13 [Rawalpindi Bench, Rawalpindi]

Present: Ch. Muhammad Masood Jahangir, J.

MUHAMMAD AYUB (deceased) through L.Rs.--Petitioners

versus

HASHIM KHAN (deceased) through L.Rs. and others--Respondents

C.R. No. 180 of 2006, heard on 12.1.2022.

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

----Ss. 12 & 39--Civil Procedure Code, 1908, S. 115--Suit for specific performance and cancellation of mutation--Decreed--Concurrent judgments--Oral sale mutation--Transfer of land--Earlier suit for possession by petitioner was decreed--Marginal witnesses of sale contract were died prior to trial of suit--PW-2 and PW-3 were not signatory of sale contract--Subsequent transferee also brought Civil Suit for possession against former on basis of his title matured through Exh:P5--Suit of subsequent transferee was decreed--Plaintiff failed to discharge onus of issues No. 1 & 2, but both Courts below erroneously returned its positive findings, which being tainted with misreading & non-reading of evidence besides violative to law--Institution of suit in hand beyond three years of withdrawal of earlier one was again time barred--It is settled principle of law that compliance of statutory period within which a right has to be exercised or enforced is mandatory and Court cannot ignore period stipulated in referred enactment even if no objection was raised by opposite party in this regard--The law of limitation imposes some embargo in filing suits--Impugned judgments and decrees, which are found to be illegal, unlawful and surely suffered from excess of jurisdiction exercised by Courts below, which is exceptionable by Court in exercise of revisional jurisdiction--Learned fora below had not only misread the evidence on suit file, but also escaped notice of law on subject while equipping plaintiff with desired decree--Petition was allowed.

[Pp. 18, 19, 20 & 21] A, C, D, G & H

PLD 2012 SC 247 ref.

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

----S. 8--Entitlement for possession--In suit u/S. 8 of Specific Relief Act, 1877, declaration of ownership was an inbuilt relief granted to decree-holder--Once he is found to be entitled to possession, it means that he has been declared to be titleholder. [P. 18] B

PLD 2014 SC 380 ref.

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

----S. 115--Concurrent findings--Scope of interference with concurrent findings of fact is limited, but same can be interfered with by High Court under said provision, if Courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on issue involved--No Court in country has jurisdiction to decide about rights of parties wrongly or in violation of law and Revisional Court has no exception to this rule.

[Pp. 20 & 21] E & F

1997 SCMR 1139 and PLD 2013 SC 255 ref.

Mr. Zaheer Ahmed Qadri, Advocate for Petitioners.

Malik Amjad Ali, Advocate for Respondent No. 1.

Date of hearing: 12.1.2022.

Judgment

The concurrent judgments and decrees dated 04.01.2003 and 09.03.2006, whereby suit for specific performance of sale contract dated 14.12.1967 besides cancellation of Mutation No. 6411 of 06.12.1990 instituted by late Respondent No. 1 (now represented through LRs) against the present petitioners as well as other respondents was decreed and appeal of the petitioners dismissed, are the subject of petition in hand.

1. Undisputedly, the subject land exclusively vested to late Muhammad Yaqoob/predecessor of Respondents No. 2 to 10 (original vendor), which vide oral sale Mutation No. 6411 dated 06.12.1990 was transferred to Muhammad Ayub/ascendant of present petitioners (subsequent transferee). Muhammad Hashim/Respondent No. 1 (Plaintiff) earlier instituted declaratory Suit No. 342 on 01.06.1991 for confirmation of his sale reflected in agreement to sell dated 14.12.1967 and cancellation of oral sale Mutation No. 6411 of subsequent transferee, whereas in contra, the latter on 10.06.1991 filed Civil Suit No. 366 for recovery of possession through ejectment against former. These two suits though tried independently, yet by one and the same Judicial Officer. After due trial, the one instituted by plaintiff was finally dismissed on 24.09.1992, whereas that of subsequent transferee decreed via judgment of even date (Exh:D1). Although plaintiff preferred two appeals against dismissal of his earlier suit and the decree for possession pronounced in favour of subsequent transferee, yet he withdrew his suit through order dated 15.12.1994 (Exh:P9) with liberty to file fresh one, whereas the next appeal was dismissed on merit vide decision dated 20.12.1997 (Exh.D3) by the Appellate/District Court. Though said concurrent decrees for possession in favour of subsequent transferee were assailed by means of W.P. No. 2364 of 2000 before this Court, yet it was dismissed being not maintainable via order dated 04.11.2003, thus the unanimous decrees of possession made against the plaintiff having not been assailed any further stood final. The plaintiff per spirt of order dated 15.12.1994 (Exh.P9) instituted second suit in hand on 03.03.1998, but after more than three years of such permission, which was resisted by the subsequent transferee and learned Trial Court framed following issues:--

2. Whether plaintiff purchased suit land from Muhammad Yaqoob (deceased) the predecessor in interest of the Defendants No. 1 to 9 under a written agreement dated 14.02.1967? OPP

3. If Issue No. 1 is proved whether plaintiff is entitled for the specific performance of the said contract? OPP

4. Whether Mutation No. 6411 dated 06.12.1990 executed by Defendants No. 1 to 9 in favour of Defendant No. 10 is illegal, against facts and liable to be cancelled? OPP

5. Whether the suit is time barred? OPD.

6. Whether this suit is not maintainable? OPD

7. Whether this suit is improperly valued for the purposes of Court fee? OPD

8. Whether this suit is false and frivolous and defendants are entitled for the special costs under Section 35-A CPC? OPD

9. Relief.

It was a hard fact that prior to trial of suit in hand, the Marginal Witnesses of sale contract (Exh.P1), had already died and the plaintiff though examined Naimat Khan (PW-2) and Abdul Rauf (PW-3), yet they admittedly were not signatory thereof. Anyways, the suit lastly was decreed by learned Trial Court, which further sustained before the Appellate Court through judgments cited in preceding para and this caused subsequent transferee to file Civil Revision in hand.

1. Mr. Zaheer Ahmed Qadri, ASC, learned counsel for the subsequent transferee emphasized with great vehemence that the alleged agreement to sell was executed on 14.12.1967 in favour of the plaintiff, whereas via oral sale Mutation No. 6411 of 06.12.1990, the subject property was alienated to the subsequent transferee, thus at the most cause of action stood accrued to the plaintiff immediately on its attestation; that although earlier suit for cancellation was filed promptly on the basis of alleged sale contract (Exh:P1), yet it was dismissed via judgment dated 24.09.1992; that in appeal on 15.12.1994 indeed said suit was withdrawn subject to filing of fresh one, but the subsequent lis in hand was instituted on 03.03.1998 after more than three decades of the execution of Exh:P1 as well as beyond more than three years of the withdrawal of earlier lis, thus in any event, suit in hand was hopelessly time barred and intended decree could not ensue, whereas both the Courts below without considering said vital aspect erred in law to pass impugned judgments. Mr. Qadri, further added that decree for possession had already been granted to the subsequent transferee and declaration of title was its inbuilt, therefore without reversal thereof, which attained finality, subsequent decree could not be passed in favour of the plaintiff. He also submitted that not an iota of direct affirmative evidence was brought on suit file so as to prove the sale transaction detailed in agreement (Exh.P1) and the Courts below committed material irregularity/patent illegality while relying upon copies of statements of PWs smuggled from file of earlier suit, which even remained unsuccessful.

2. On the other hand, Malik Amjad Ali, learned counsel for the plaintiff supported impugned decrees while adding that concurrent findings of facts returned by Courts below could not be interfered with, thus prayed for dismissal of petition in hand.

3. Arguments heard and record scanned.

4. The basic onus to prove agreement dated 14.12.1967 (Exh.P1) was upon the plaintiff. The perusal of said hub document reveals that it was attested by Sher Afzal and Waris Khan being marginal witnesses. It was a hard fact that in this round of litigation, both of them having already passed away were not available to be produced. No doubt, plaintiff (PW-1) in his support examined Naimat Khan (PW-2) and Abdul Rauf (PW-3), but admittedly both of them were not signatory of Exh.P1. Although PW2 deposed that sale was effected in his presence, yet he could not give essential detail viz year, month or date when Exh.P1 was scribed, which being relevant is given below:-

سال کا بھی علم نہ ہے مہینہ بھی یاد نہ ہے۔ مجھے تاریخ تحریر بھی یاد نہ ہے۔

Thus his statement so as to prove Exh.P1 was of no help to plaintiff. Moreover, Abdul Rauf (PW3) in his statement-in-chief candidly admitted as under:-

رقم کا لین دین میرے سامنے نہ ہوا تھا۔

whose evidence was also not sufficient to hold that alleged sale transaction had ever struck before him. It was a hard fact that the Courts below while passing impugned decrees relied upon copies of statements (Exh.P2 & Exh.P3) made in earlier suit on behalf of Waris Khan and Sher Afzal, the alleged marginal witnesses of Exh:P1, which was initially dismissed by the Civil Court, but subsequently withdrawn from the Court of learned Addl. District Judge. The Exh:P2 & 3 even were tendered in statement of counsel for the plaintiff. The latter before exhibiting these documents neither made any request to lead secondary evidence nor these earlier statements could be relied upon until and unless those were confronted to its maker. The argument of learned counsel for the plaintiff that the marginal witnesses, who recorded these statements, had already died, thus could not be confronted therewith was not enough to dispense with such legal/ requisite formality. The appropriate course for the plaintiff was to make request for examination of persons familiar with signatures/ handwriting of late marginal witnesses for proof of Exh.P1 via said mode, which was never followed, thus Exh:P2 & 3 neither could be taken as admissible evidence nor by itself were sufficient to prove its execution, therefore it remained unproved. Moreover, in earlier declaratory suit, the said statements of Sher Afzal and Waris Khan were disbelieved as the said lis regretted by the Civil Court via judgment dated 24.09.1992. No doubt, thereafter at appellate stage, the suit was withdrawn, but the evidence once discarded by Court of competent jurisdiction cannot be made basis for success of a subsequent lis instituted by a bootless party. The contention of Malik Amjad Ali, ASC learned counsel for plaintiff that suit, if allowed to be withdrawn with liberty to bring fresh one, it should be regarded as never brought and avails to no purpose is not correct. The Civil Court after scanning of entire evidence had rejected claim of the plaintiff in earlier suit and thereafter simple withdrawal thereof in appeal would not frustrate/wash away the well-reasoned determination made by Court of law. Had the earlier suit been dismissed as withdrawn by showing inherent and formal defects so found therein prior to final decision thereof, in such situation it can be assumed that same would have never been instituted, but the moment it was decided, then the effect of final culmination could not be disregarded in the days to come.

1. The admitted position of fact was that original vendor via mutation dated 06.12.1990 (Exh:P5) had transferred the subject property to the plaintiff. Not only earlier suit for cancellation of said mutation was filed by the plaintiff on the basis of his alleged sale contract dated 14.12.1967, rather subsequent transferee also brought Civil Suit No. 366/91 for possession against the former on the basis of his title matured through Exh:P5. As a matter of record, the suit of subsequent transferee was decreed vide judgment dated 24.09.1992 (Exh.D1) by learned Civil Court, which despite being assailed in appeal was sustained on 20.12.1997 (Exh.D3), whereas WP No. 2364 of 2000 filed there-against (Exh:D1 & 3) by the plaintiff being incompetent was dismissed on 04.11.2003, thus decree for possession in favour of subsequent vendee stood final. The apex Court in judgment reported as Hazratullah and othrs vs. Rahim Gul and others (PLD 2014 SC 380) already held that in suit under Section 8 of the Specific Relief Act, 1877, the declaration of ownership was an inbuilt relief granted to the decree-holder. Once he is found to be entitled to the possession, it means that he has been declared to be titleholder, thus subsequent vendee having already been granted decree for possession in terms of Section 8 (supra), undoubtedly the alleged sale agreement dated 24.12.1967 in favour of the plaintiff would render it as nugatory and redundant because the title of subsequent vendee shall be valued on the basis of the judicial verdict i.e. the decree (Exh.D1) and the alleged agreement shall not be a hindrance in his way. For these reasons, the plaintiff failed to discharge onus of Issues No. 1 & 2, but both the Courts below erroneously returned its positive findings, which being tainted with misreading and non-reading of evidence besides violative to the law on subject cannot be sustained, thus are reversed and answered in negative.

2. So far as Issue No. 3 is concerned, Mutation No. 6411 dated 06.12.1990 (Exh.P5) despite its assail via earlier suit was not only approved, rather on its basis decree for possession entailing declaration of ownership was already passed in favour of subsequent vendee, thus the onus was successfully discharged that said mutation was validly executed, therefore findings of two Courts below on this issue being erroneous are set aside and answered in favour of the latter.

3. Now comes the vital issue, viz Issue No. 4 with regard to limitation. The alleged agreement to sell (Exh.P1) was executed on 14.12.1967. No doubt, it contained clause that title of property would be transferred after the finalization of consolidation operation, but statement of Abdul Rauf (PW3) examined by the plaintiff was relevant to this effect, who admitted that the consolidation was conducted in 1970 and sanction of mutation dated 06.12.1990 in favour of the subsequent transferee was otherwise reflective of the fact that on said day, the suit area was free for alienation in any manner. The plaintiff to call in question said mutation while asserting his sale via agreement to sell (Exh.P1) promptly instituted earlier suit on 10.06.1991, thus the moment in violation of alleged sale contract, the property was transferred to the subsequent transferee, the cause of action definitely accrued to the former, who in terms of Article 113 of the Limitation Act, 1908 instituted suit within three years, which proceeded till 15.12.1994, but was withdrawn on said day. No doubt, the plaintiff was granted leave to bring fresh suit, which was filed on the same cause of action and limitation was to be reckoned from the date of commencement of earlier proceedings as once limitation started on same cause of action, then it could not stop running. The first suit might be filed within time, but the subsequent was instituted on 03.03.1998 even after three years of the withdrawal of first suit, which definitely was beyond the prescribed period of limitation. The time span consumed in proceedings of the earlier suit cannot be condoned per spirt of Section 14 of the Limitation Act, as it is not fulfilling the essential conditions laid down therein. Even the institution of suit in hand beyond three years of the withdrawal of earlier one was again time barred. It is settled principle of law that the compliance of statutory period within which a right has to be exercised or enforced is mandatory and the Court cannot ignore period stipulated in the above referred enactment even if no objection was raised by the opposite party in this regard. The law of limitation imposes some embargo in filing the suits, appeals as well as other remedies to save the parties from endless litigation. The said embargo can only be condoned, if the circumstances so detailed in this behalf are found to be beyond control of litigant(s) and some plausible reason has been assigned, but the evidence to this effect, on the face of it, is otherwise, thus both the Courts below committed material irregularity/ illegality while deciding issue under discussion against the subsequent transferee. See Haji Abdul Karim and others vs. Messers Florida Builders (Pvt) Limited (PLD 2012 SC 247) and for ready reference relevant para-7 of the said judgment is reproduced hereunder:

“7. Before proceeding further in the matter and being still on the subject of limitation (Article 113 ibid), we would also like to dilate upon another submission of the learned counsel for the petitioners that in view of the general principle and on account of the peculiar circumstances of this case the time was not the essence of the contract, therefore, the period of limitation shall be covered as per Paragraph No. 18 of the plaint attracting second part of the Article. In this regard, in our candid view the noted rule has nothing to do with the proposition of limitation of the specific performance cases. The said rule is not an enunciation of any statutory instrument, but has emerged as the principle of equity for the exercise of discretion by the Courts in specific performance cases. It only touches on the right to enforce the contract and has relevance and nexus in respect of the judicial consideration, whether the agreement/contract should be enforced or not by the court in the set of facts of a given case, by resorting to the said rule and nothing more. Whereas, the limitation is a command of law, prescribing the statutory period within which the right has to be exercised and enforced.”

Thus findings on this issue are also reversed and decided in favour of subsequent transferee.

1. At the fag end of his arguments, learned counsel for the plaintiff has argued that concurrent findings recorded by both the Courts below cannot be interfered with by this Court while exercising jurisdiction under Section 115 of the Code, 1908 is without any force. Although, the scope of interference with concurrent findings of fact is limited, but same can be interfered with by this Court under the said provision, if Courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on the issue involved. In arriving at such view, this Court is fortified by the dictum laid down in the judgment reported as Abdul Hakeem vs. Abdullah and 11 others (1997 SCMR 1139) and the relevant portion thereof is reproduced as under:

“6. Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under Section 115, C.P.C is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under Section 115, C.P.C cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under Section 115, C.P.C if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record.”

This question has also been dealt with by the august Supreme Court of Pakistan in the judgment reported as Muhammad Anwar and others vs. Mst. Ilyas Begum and others (PLD 2013 SC 255) while holding that it is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly or in violation of law and the Revisional Court has no exception to this rule. It has also been held therein that Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it was bound and obligated to render decisions in accordance with law and the law alone. So, this Court can decide in which cases the interference is warranted. The impugned judgments and decrees, which are found to be illegal, unlawful and perverse being the result of misreading and non-reading of the evidence on the record and surely suffered from excess of jurisdiction exercised by the learned Courts below, which is exceptionable by this Court in the exercise of revisional jurisdiction.

1. Consequent to afore discussion based upon appreciation of available material, this Court does find that learned fora below had not only misread the evidence on suit file, but also escaped notice of the law on subject while equipping the plaintiff with the desired decree, therefore this Petition merits acceptance, which accordingly is allowed, the impugned decrees are hereby set aside and the suit instituted on his behalf is dismissed with costs throughout.

(Y.A.) Petition allowed

PLJ 2023 Lahore 22

Present: Muhammad Shan Gul, J.

NISAR AHMAD AFZAL--Petitioner

versus

D.G. ANTI-CORRUPTION, etc.--Respondents

W.P. No. 43868 of 2022, heard on 15.7.2022.

Punjab Anti-Corruption Establishment Rules, 2014--

----R. 15(2)--Powers of D.G. Anti-Corruption--Rule-15(2) of Rules 2014, empowers DG Anti-Corruption Establishment to peruse record of any pending investigation and issue any direction to ensure fair and speedy investigation. [Pp. 25, 26] A

Speaking Order--

----An order without reasons is not a speaking order and cannot possibly withstand test of judicial scrutiny--A speaking order means an order that speaks for itself and order can only speak through reasons rendered in support thereof. [Pp. 27] B & C

Investigation--

----There is no mention of investigation to be conducted by a Joint Investigation Team in either Ordinance, 1961 or Rules. [P. 28] D

Constitution of Pakistan, 1973--

----Arts. 184(3) & 199--Powers of Apex Court to Constitution of JIT-- Apex Court is empowered in terms of Article 184(3) read with Article 187 to constitute a Joint Investigation Team, jurisdiction and judicial power of this Court is controlled by Article 199 of Constitution. [P. 30] E

Punjab Anti-Corruption Establishment Rules, 2014--

----R. 15(2)--Powers of DG Anti-Corruption for conducting of investigation by team of experts--If facts of case require assistance of a team in addition to investigation officer, DG can, by using powers under Rule-15(2), order investigation to be conducted by a team of experts, equipped with relevant expertise to evaluate facts and allegations in a matter. [P. 30] F

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 409, 420, 468 & 471--Prevention of Corruption Act, (II of 1947), Ss. 5, 2 & 47--Transfer of investigation--Constitution of joint investigation team--Jurisdiction of DG in ordering for Constitution of JIT--Binding of findings during investigation process--Findings recorded during course of an investigative process are not binding on any Court--These do not qualify as adverse action so as to attract principles of natural justice--It is not necessary for DG, Anti-Corruption Establishment to hear either complainant or accused in a crime report registered under Anti-Corruption legal regime before ordering a change in investigation--Only sine qua non being that an order for change in investigation has to be based on cogent reasons and should be a speaking order--DG, Anti-Corruption Establishment having volunteered that no Joint Investigation Team has been constituted and also he having himself admitted lack of reasons in impugned order--Petition allowed.

[P. 34] G, H & I

Mr. Imran Sulehria, Advocate for Petitioner.

Mr. Waheed Ashraf Bhatti, Advocate, Mr. Mohammad Osman Khan, AAG and Ms. Sumaira Hussain, AAG with Rana Abdul Jabbar, Director General, Anti-Corruption Establishment for Respondents No. 5 and 6.

M/s. Barrister Bushra Saqib and Obaid Ullah, Advocates as Amicus Curiae.

Date of hearing: 15.7.2022.

Judgment

Through this judgment the titled constitutional petition is sought to be decided.

1. The following two questions have been raised in this constitutional petition:--

a) Whether there is any provision in the Anti-Corruption legal regime entitling the Director General to constitute a Joint Investigation Team for the purpose of investigating a crime report registered under the Anti-Corruption Establishment legal regime?

b) Whether before ordering change in investigation in a crime report it is necessary to hear the complainant or an accused?

1. Facts in brief are that the petitioner is complainant in case FIR No. 13/22 P.S. Anti-Corruption Establishment, Rawalpindi under Sections 409, 420, 468 and 471, PPC and 5/2/47 Prevention of Corruption Act, 1947. On an application filed by Respondents No. 5 and 6 i.e. accused persons in the said crime report, the Director General, Anti-Corruption Establishment transferred the investigation of the instant crime report and entrusted the same apparently to a Joint Investigation Team comprising Deputy Director (General), Directorate of Anti-Corruption Establishment, Headquarters, Punjab, Deputy Director (Admn.), Directorate of Anti-Corruption Establishment, Headquarters, Punjab and Circle Officer, Anti-Corruption Establishment, Rawalpindi. This was done by means of an order dated 27.5.2022 which has been brought under challenge through the present constitutional petition.

2. Learned counsel for the petitioner submits that there is no provision for the constitution of a Joint Investigation Team in either the Punjab Anti-Corruption Establishment Ordinance, 1961 or for that matter the Punjab Anti- Corruption Establishment Rules, 2014 and that, therefore, the Director General has exceeded his jurisdiction in ordering for the constitution of a Joint Investigation Team. He also submits that the petitioner being the complainant in the instant crime report should have been heard in the matter before any change in investigation was ordered and that since the petitioner has been condemned unheard the order dated 27.5.2022 should be declared to be of no legal effect.

3. M/s. Barrister Bushra Saqib and Obaid Ullah, Advocates were asked to assist the Court as friends of the Court. Both of them submit in unison that while the Anti-Corruption Establishment can Court and follow the Police Rules, 1934 for the purpose of conduct of investigation since there is no provision for transfer or change in investigation in the Anti-Corruption legal regime, constitution of a Joint Investigating Team is indeed questionable. They add that in so far as the contention of the petitioner about being heard in the matter is concerned the same is misconceived on account of the law laid down by the Indian Supreme Court in “Central Bureau of Investigation and another v. Rajesh Gandhi and another” (1996) 11 SCC 253 at Paragraph No. 8 as also “Union of India and another v. W.N. Chadha” 1993 Supplementary (4) SCC 260 at paragraph No. 90.

4. Learned AAG is present along with Rana Abdul Jabbar, Director General, Anti-Corruption Establishment and submits that Rule 15(2) of Rules, 2014 empowers the Director General, Anti-Corruption Establishment to issue directions to ensure fair investigation. Adds that while the Director General has employed Rule 15(2) for ordering change in investigation it is equally true that there is no provision for the constitution of a Joint Investigation Team in the Rules of 2014.

5. The Director General, Anti-Corruption Establishment submits that vide order dated 27.5.2022 he has only constituted an investigation team comprising of three officers and he has not constituted a Joint Investigation Team as such. Submits that previously the investigation in the instant matter was being conducted by a team of two officers of Anti-Corruption Establishment, Rawalpindi and the only difference, this time round, is that instead of two officers three officers are now investigating the crime report in question and it is not as if a Joint Investigation Team, as envisaged by Section 19 of the Anti-Terrorism Act, 1997, has been constituted.

6. The Director General, Anti-Corruption Establishment, however, fairly acknowledges that order dated 27.5.2022 is not a speaking order inasmuch as it does not contain any reasons and that on this count the said order is indefensible even though reasons did exist and which reasons have been noted in the paper work leading up to the passage of order dated 27.5.2022. Submits that he realizes that for an order to be sustained it has to be reasoned and speaking and that he would not hesitate to withdraw order dated 27.5.2022 and issue it afresh after recording reasons.

7. Learned counsel representing Respondents No. 5 and 6 (accused persons) has also been heard. He submits that reasons did exist for ordering change in investigation but which reasons have not been mentioned in the impugned order.

8. Heard. Record perused.

CHANGE IN INVESTIGATION:

1. Unlike the Police Order, 2002, neither the Punjab Anti-Corruption Establishment Ordinance, 1961 (“the Ord., 1961”) nor the Punjab Anti-Corruption Establishment Rules, 2014 (“the Rules, 2014”) contain any provision specifically prescribing any mode or procedure for transfer or change of investigation to an officer other than the one conducting investigation. Rule-15(2) of Rules 2014, however, empowers the Director General Anti-Corruption Establishment to peruse the record of any pending investigation and issue any direction to ensure fair and speedy investigation. Any such order passed by the Director General can be assailed before the Chief Secretary [Rule-15(3)] or the Chief Minister [Rules-15(4)].

THE PUNJAB ANTI-CORRUPTION ESTABLISHMENT RULES, 2014

“15. Suo moto powers.-- (1) The Director may, on his own motion or otherwise, call for the record of any case or enquiry, pending in any District of the Region, examine it and give such directions as may be necessary for the speedy, fair and just disposal of the case.

(2) The Director General may, on his own motion or otherwise:

(a) call for the record of any case or enquiry pending investigation with the Establishment, examine it and give such directions as may be necessary for speedy, fair and just disposal of the case;

(b) call for the record of any case or enquiry for purposes of satisfying himself as to the correctness or the propriety of any decision taken by Director, ex- officio Director or ex-officio Deputy Director under these rules, and may pass such orders as may be deemed fit.

(3) The Chief Secretary may, on his own motion or otherwise, call for the record of any case or enquiry, for purposes of satisfying himself as to the correctness or propriety of any decision taken by the Director General under these rules, and may pass such order as deemed fit.

(4) The Chief Minister may, on his own motion or otherwise, call for the record of any case or enquiry, pending or finalized, for purposes of satisfying himself as to the correctness or propriety of any decision taken by any authority under these rules and may pass such orders as deemed fit.”

1. In “Liaquat Ali vs. Director General Anti-corruption establishment Punjab, Lahore and 7 others” (2009 MLD 337), it has been held as follows:-

“4. I have minutely gone through the Punjab Anti- Corruption Establishment Rules, 1985 in order to resolve the controversy. Rule 19 ibid deals with the point in issue and is, therefore, re-produced in verbatim for ready reference:-- ………………

It is manifest from a bare perusal of the above said Rule that the Governor, the Chief Secretary and the Director may suo motu or otherwise call for the record of any case pending investigation with the establishment and give such direction as may be necessary for the speedy, fair and just disposal of the same. In this case, the Governor has not passed any order or direction. The Chief Secretary also neither summoned nor examined the record. The Additional Chief Secretary also did not call for the record and simply sought a report from the Investigating Agency. Now adverting to the order of the Director General, Anti-Corruption Establishment under challenge, I could not understand as to why he opened the chapter of investigation, which had already been closed by him with a direction to the investigation to submit challan in Court.

1. What this precedent case clearly implies is that short of legally recognized reasons warranting interference no order for change in investigation should be passed.

2. The order dated 27.5.2022 contains no reasons whatsoever! Hence, the order is bad on this count as well. An order without reasons is not a speaking order and cannot possibly withstand the test of judicial scrutiny. This also casts doubts on the soundness of the order because no reference whatsoever has been made as to how the members of the Investigation Team qualify as technical experts so as to attract Rule 25.14 of Police Rules, 1934.

3. It is trite that an order has to contain reasons so as to allow the reader to understand and comprehend the grounds prevailing with an authority in arriving at a conclusion. The reasons given for a decision explain the justification or logic for such a decision. Such reasons give satisfaction to the person against whom a decision has been given about the decision not being purely arbitrary or whimsical. Reasons take a matter out of the realm of subjectivity. The requirement of giving reasons, therefore, operates as an important check on abuse of powers.

4. Reasons can be said to be the heartbeat of every conclusion since reasons introduce clarity, regularity and rationality in a decision without which a decision is lifeless. It is equally established that a speaking order means an order that speaks for itself and order can only speak through the reasons rendered in support thereof. It is only when a decision reveals a rational nexus between facts considered and the conclusion drawn that such decision can be held to be just and reasonable. The chain between conclusion and fact in a decision is broken if there are no reasons provided to support the conclusion. In (1994) 1 ALL ER 651 Regina v. Higher Education Funding Council, ex-parte Institute of Dental Surgery, it has been held, “The giving of reasons may among other things concentrate the decision maker’s mind on the right questions.”

FORMATION OF JOINT INVESTIGATION TEAM

1. There is no mention of investigation to be conducted by a Joint Investigation Team in either Ordinance, 1961 or Rules, 2014. However, Rule-14 states that during investigation, Anti- Corruption Establishment shall follow the procedure laid down in Police Rules, 1934:

“14. Application of the Punjab Police Rules.– The Establishment shall, as far as may be, follow the provisions of the Punjab Police Rules for the time being in force for purposes of inquiry and investigation of offences specified in the Schedule.”

THE PUNJAB ANTI-CORRUPTION ESTABLISHMENT ORDINANCE, 1961

“3. Constitution and powers of the Anti-Corruption Establishment.--

(4) Subject to any orders or rules which Government may make in this behalf, the Director General, officers and members of the Establishment shall, for the purpose of any preliminary enquiry or investigation under this Ordinance have throughout the province of the Punjab all the powers of search, arrest of persons and seizure of property and all other powers, duties, privileges and liabilities which a police officer has or is subject to in connection with the investigation of offences under the Code of Criminal Procedure, 1898.”

Rule-25.14 falling in Chapter-25 (Investigations), Volume-3 of Police Rules, 1934 provides for the instances when an investigation of an offence requires assistance of other experts.

“25.14. Technical assistance in investigation.--(1) Investigating Officers are expected to take steps to secure expert technical assistance and advice, whenever such appears desirable in the course of an investigation for purposes of evidence or for demonstration in Court.

(2) The Criminal Investigation Department is able to obtain expert technical assistance on many subjects and should be freely consulted in that connection by Investigating Officers through their Superintendents of Police. When such assistance is required a full report shall be sent to the Assistant Inspector General, Crime and Criminal Tribes, so that he may be in a position to decide whether it is essential to send an expert to the scene of the crime or whether the material to be dealt with should be sent to the expert. In making such reports use should be made of telegraphic and telephonic facilities.

(3) The Criminal Investigation Department, in conjunction with the Finger Print Bureau, undertakes photographic and some other varieties of technical work. In addition it is in contact with technical experts on may subjects, whose services can frequently be obtained for work in connection with criminal investigation. In respect of the examination of handwriting, Investigating Officers can obtain the services of the Examiner of Questioned Documents with the Government of India, through the Criminal Investigation Department. That department is also the channel for obtaining the services of the Inspector of Explosives for Northern India who, as well as advising on explosives generally, can give expert opinion as to whether a weapon has been recently fired, whether certain matter is gunpowder or not, and all questions generally savouring of chemical analysis.

1. In “Human Rights Case No. 39216-G of 2018 (in the matter of Slackness in the progress of pending enquiries relating to fake bank accounts, etc.” (2018 SCMR 1851), it has been held as follows:-

“2. We have been informed by Director General, FIA that as investigation progresses more accounts and information is being discovered by the investigators.……..He, therefore, maintains that despite bona fide efforts on the part of FIA, progress is slow on account of huge quantity of electronic data that requires unravelling and interpretation. For this exercise FIA is facing lack of specialized investigators. In order to conduct effective, in-depth and incisive investigations to discover the truth, cut through multiple layers of transactions, fake accounts, movement of funds, and establish the real identity of persons who are actual but hidden beneficiaries, a broad based, multidimensional and technically skilled team of experts is required which at present is not available with ……

1. Learned counsel for some of the accused persons while making their submissions have frankly conceded that this Court has ample powers and jurisdiction in terms of Article 184(3) of the Constitution to appoint and nominate such JITs. The concession by the learned counsel for the suspects that a JIT can be constituted by the investigating agency under the Anti-Money Laundering Act, 2010 renders their objection to such action by the Court to be academic. In fact an order passed by the Court in this behalf is a valid exercise of jurisdiction in aid of a lawful object. We are of the view that in appropriate cases, technical inability to undertake a complicated modern day investigation furnishes a reasonable basis and justification to constitute a JIT. We are in no manner of doubt that in the present case formation of a JIT is imperative and necessary.”

2. However, while the Apex Court is empowered in terms of Article 184(3) read with Article 187 to constitute a Joint Investigation Team, the jurisdiction and judicial power of this Court is controlled by Article 199 of the Constitution!

3. Although no specific mechanism is provided under Anti- Corruption Establishment Ordinance, 1961 or Rules, 2014, it seems that if the facts of the case require assistance of a team in addition to the Investigation Officer, the Director General can, by using the powers under Rule-15(2), order the investigation to be conducted by a team of experts, equipped with the relevant expertise to evaluate the facts and allegations in a matter.

4. However, in the matter in issue no technical experts have been co-opted and rather an investigation team of regular officers of Anti-Corruption Establishment has been constituted. This is not the same as constituting a team of technical experts and hence Rule 25.14 of the Police Rules, 1934 does not aid the Director General.

5. At the same time since the Director General, Anti- Corruption Establishment has volunteered that he has not constituted a Joint Investigation Team of experts but has rather only transferred the investigation from a team of two officers to a team of three officers the objection about a Joint Investigation Team loses its meat. In fact, the statement of the Director General puts to rest the misgivings of the petitioner about executive authority having been exercised in a vacuum. Previously, the crime report in question was being investigated by a team of two officers and now the same is being sought to be investigated by a team of three officers. There is no bar in the governing law in this respect and the statement of the Director General, Anti-Corruption Establishment has in any case put the fears of the petitioner to rest.

OPPORTUNITY OF HEARING

1. In “Mst. Uzma Bibi vs. Additional Sessions Judge/Justice of Peace, Vehari & 7 others” (2005 MLD 1618), it has been held as follows:

“2. Learned counsel for the petitioner submits that the impugned order has been passed without summoning the accused persons so they have been condemned unheard and the impugned order is violative of principle of natural justice….. Further submits that the impugned order is not sustainable in the eye of law and is violative of provisions of Police Order, 2002.

3. ……. A bare perusal of impugned order shows that Respondent No. 3 namely Shahzad Maseh filed petition before the learned Sessions Judge, Vehari for, transfer of investigation alleging therein that Shaukat Ali A.S.-I. was biased against him prior to the registration of case and he had submitted false report and that such type of occurrence had not taken place whereupon the learned Additional Sessions Judge, Vehari changed the investigation of the case and entrusted the same to D.S.P. (Investigation), observing that it was proper for. Shaukat Ali A.S.-I. that investigation of this case should not be conducted by him as the Court disagreeing with his enquiry report had ordered for registration of case yet even then he himself investigated the matter and recommended for cancellation of case.

4. Findings of fact have been recorded by the learned Additional Sessions Judge and he has passed a speaking order and no interference is needed in the impugned order.”

1. In “Union of India and another v. W.N. Chadha” 1993 Supplementary (4) SCC 260 it has been held as follows:

“90. In State of Haryana v. Bhajan Lal [1992] Supp. 1 SCC 335 at 359, this Court to which both of us (Ratnavel Pandian and K. Jayachandra Reddy, JJ.) were parties after making reference to the decision of the Privy Council in Emperor v. Khwaja Nazir Ahmad and the decision of this Court in State of Bihar v. J.A.C. Saldanha has pointed out that”...the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation....”…….

1. In “Central Bureau of Investigation and another v. Rajesh Gandhi and another” (1996) 11 SCC 253 it has been held as follows:

“There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision of the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. The notification dated 2.6.1994 is issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act, 1946, Governor of Bihar was pleased to consent and extend the powers and Jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station, on case No. 159 of 9.3.1993 in the District of Dhanbad, under Sections 457, 436, 427, 201 and 120-B, Indian Penal Code and conspiracy arising out of the same and any other offence committed in course of the same. The notification of 26.10.1994 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by sub-section (l) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2.6.1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Section 457, 436, 427/120-8 and 201 I.P.C. and Section 4 of the Prevention of Damages to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 dated 9.3.1933 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the C.B.I. has been directed to further investigate the offences registered under the said F.I.R. with the consent of the State Government and in accordance with law. Under Section 173 (8) of the Cr.P.C. 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate.”

1. As held by the Gujrat High Court in Diyvesh vs. State Cr. M 13950/12 decided on 09.8.2012, an accused has no right of hearing at the stage of investigation as regards the aspects related to or arising from the process of investigation, including the issue as to the agency which would conduct the investigation or the manner of conducting the investigation. The accused does not come in the picture and he has no right to claim that he is a necessary party at the stage of investigation and that he should be impleaded as a necessary party and should be joined as respondent and/or to claim a right of being heard:

“It is only the investigation agency which can explain by placing relevant and sufficient material on record, as to how the process and progress of investigation is proceeding. The accused cannot explain the said aspects and he would not be able to render any assistance in determining as to whether the investigation is being carried out in unbiased, impartial, fair and satisfactory manner and in accordance with prescribed procedure or not. The relevant material also would be available only with the investigation agency. Assuming that for any reason such request (either by the complainant or by any other person) is to be opposed, then also, that can be done by investigation agency since it is only the said agency which would possess relevant material and details. For the said and such other reasons, the accused person/s is not and cannot be considered necessary party in petition seeking transfer of investigation.

Therefore, the accused cannot claim that they may be impleaded in such proceedings as necessary party and/or that they should be joined in the proceedings as party respondent. Consequently, the accused also cannot claim, at the stage of investigation and/or in the matters related to investigation i.e. manner and method of investigation, right of being heard. At the stage of investigation, the principle of audi alteram partem is not applicable, to and the said principle cannot be invoked, for claiming right of hearing at the stage of, investigation process.

1. The facts of the case and the discussion would show that whether investigation should be transferred or not and whether investigation should be carried out by a particular agency or not are issues between the Court and an investigating agency and the complainant or an accused is not and/or cannot be considered a necessary party in such proceedings.

2. Besides what has been noted above it is also equally true that findings recorded during the course of an investigative process are not binding on any Court. These do not qualify as adverse action so as to attract principles of natural justice.

3. In this view of the matter, it is not necessary for the Director General, Anti-Corruption Establishment to hear either the complainant or the accused in a crime report registered under the Anti-Corruption legal regime before ordering a change in investigation. The only sine qua non being that an order for change in investigation has to be based on cogent reasons and should be a speaking order.

4. With the Director General, Anti-Corruption Establishment having volunteered that no Joint Investigation Team has been constituted and also he having himself admitted lack of reasons in the impugned order, the order dated 27.5.2022 is hereby set aside and declared to be of no legal effect. The application filed by Respondents No. 5 and 6 shall be deemed to be pending before the Director General, Anti-Corruption Establishment and shall be decided afresh by means of a fresh order that contains clear and rational reasons.

5. Allowed in the above terms.

(Y.A.) Petition allowed

PLJ 2023 Lahore 34

Present:Muhammad Sajid Mehmood Sethi, J.

ASAD ABBAS--Petitioner

versus

GOVERNMENT OF THE PUNJAB through Secretary Co-operative Societies Department, Lahore and others--Respondents

W.P. No. 55270 of 2020, decided on 20.9.2021.

Constitution of Pakistan, 1973--

----Arts. 25 & 199--Application for appointment was turned down--Petitioner was next in list of waiting candidates--Recommended Candidates were not joined duties--Issuance of revised recommendations by PPSC--Substitute candidates were recommended--Discrimination--Laps on part of PPSC--Petitioner was not at fault and he made requests for his appointment as per law but needful was not done by the department due to which petitioner is still suffering--Petitioner cannot be penalized for a wrong--Lapse or ignorance on part of department--Petitioner’s name was apparent in the merit list at Sr. No. 8 and in the waiting list at Sr. No. 4, he could have been appointed as recommended candidates did not join the duty. Non-inclusion of petitioner’s name in the recommendation of PPSC of waiting candidates is not understandable and is a lapse on part of PPSC--Material aspects of the matter and real facts of the case were not appreciated by Respondent No. 3 while deciding the matter, impugned order is unsustainable in the eye of law--Department itself requested for provision of substitute candidates for more than one time and one of the waiting candidate was also issued appointment letter and did not opt to publish any fresh advertisement--Petition allowed.

[Pp. 37 & 38] A, B, C & D

2018 PLC (CS) (N) 2, 2019 PLC (CS) 1348, 2021 YLR 1313 2009 SCMR 382 ref.

Mr. Saif-ur-Rehman Jasra, Advocate for Petitioner.

Barrister Ameer Abbas Ali Khan, A.A.G. along with Usman Umar, District Officer Co-operative, Khushab and Muhammad Ilyas, Superintendent for Respondents.

Barrister Ameer Abbas Ali Khan, Assistant Advocate General on Court’s call.

Mr. Muhammad Imran Sh., Addl. District Judge/Senior Research Officer, LHCRC., Mr. Ahmad Zia Ch., Civil Judge/Research Officer, LHCRC for Research.

Date of hearing: 20.9.2021.

Judgment

Through instant petition, petitioner has challenged order dated 06.02.2020, passed by Deputy Registrar (Admn.), Co-operative Societies, Punjab, Lahore/Respondent No. 3, whereby petitioner’s application for his appointment as Sub-Inspector (BS-11), being next in merit, was turned down.

1. Learned counsel for petitioner submits that petitioner being next in the list of waiting candidates is entitled to be appointed in place of the person who did not join service. He adds that petitioner’s case is at par with Muhammad Naeem Akhtar, who has already been appointed, but he has been subjected to gross discrimination in the matter. He further submits that directions of this Court vide order dated 28.11.2019, passed in W.P. No. 33726 of 2019, which had attained finality, have also been violated. He argues that petitioner requested the department as well as Punjab Public Service Commission (“PPSC”) well within expiry of the merit list, therefore, petitioner cannot be penalized for the fault of the competent authority. He maintains that seat in question is still vacant and as per law laid down by the Hon’ble Apex Court in Dr. Sumera Tabassum v. F.P.S.C. etc. [2016 PLC (C.S.) 596], petitioner is entitled to be considered for appointment against the post in question, but there is inaction on the part of respondent-authorities to do the needful, which is unjustified. In the end, he submits that impugned order is unsustainable in the eye of law. He also relied upon Shabana Akhtar v. District Coordination Officer, Bhakkar and 2 others [2012 PLC (C.S.) 366].

2. Whereas learned Law Officer defends the impugned order and contends that respondent-department i.e. Cooperative Societies Department is not a competent forum to recommend a substitute candidate rather it is the PPSC who can recommend a substitute candidate. He adds that petitioner’s name is not included in the final merit list and recommendation received from respondent-PPSC through Administrative Department as substitute candidate. In support, he referred to The Secretary Punjab Public Service Commission, Lahore and others v. Aamir Hayat and others (2019 SCMR 124).

3. Arguments heard. Available record perused.

4. The facts of the case, as portrayed by respondents in the report and parawise comments, are that PPSC invited applications for recruitment against 04-posts of Sub-Inspector (BS-11) and petitioner was placed at Sr.No. 8 of the merit list. The candidates appearing at Sr. No. 1 to 4 were recommended for appointment. Later on, the department requested PPSC to provide substitute candidates as already recommended candidates did not join the duties. Thereafter, PPSC issued revised recommendations by substituting one candidate namely Muhammad Naeem Akhtar, appearing at Sr. No. 5 of the merit list. Later on, the department again requested for two substitute candidates in place of candidates appearing at Sr. Nos. 1 & 3 of the merit list. In response, PPSC recommended substitute candidates appearing at Sr. Nos. 6 & 7 of the merit list, as they did not join the duty, in this way all the four seats filled due to which petitioner could not be appointed.

5. The incidents presented by respondents though happened in the above sequence, however, there are lapses on part of the department as well as PPSC. The merit list was prepared on 24.09.2017 and the department, for the first time vide letter dated 20.03.2018, requested PPSC to provide substitute candidates by clearly mentioning that no one out of four recommended candidates joined the duty. In this view of the matter, petitioner came at Sr.No. 4 of the waiting candidates, thus, his right to be considered for appointment being next in merit list accrued well within the validity of the merit list. In response, PPSC, vide letter dated 16.04.2018, only provided one substitute candidate and already recommended three candidates were again included. The admitted position of the matter is that the recommended candidates did not join duties and the department was willing to make appointment from waiting candidates then why four candidates in the waiting list, in which petitioner was at Sr.No. 4, were not appointed simultaneously. It is also an established fact that three candidates from the waiting list were recommended as substitute candidates by the PPSC and two of them also decided not to join the department. In this scenario, what was the hurdle to consider petitioner for appointment as substitute candidate as he was very next in the waiting list and seats were also vacant. It is clear from the above that the department was at fault in not actively completing the recruitment process and lingered on the matter without any legal justification. It is also notable that Muhammad Naeem Akhtar, a waiting candidate, had already been appointed but the petitioner has been subjected to discrimination in violation of equality clause contained in Article 25 of the Constitution of the Islamic Republic of Pakistan.

6. Admittedly, petitioner was not at fault and he made requests for his appointment as per law but needful was not done by the department due to which petitioner is still suffering. Needless to say that petitioner cannot be penalized for a wrong, lapse or ignorance on part of the department. Reference can be made to Collector of Customs, Lahore and others v. Messrs S. Fazal Ilahi and Sons through Proprietor (2015 SCMR 1488), Dr. Farhat Naz v. Chairman Selection / Promotion Board, Ayub Teaching Hospital, Abbottabad and others (2017 MLD 1842), Muhammad Arshad v. Province of Sindh through Chief Secretary, Government of Sindh and 9 others [2018 PLC (C.S.) Note 2], Managing Director, Public Procurement Regulatory Authority (PPRA) and another v. Muhammad Zubair and 6 others [2019 PLC (C.S.) 1348] and Kh. Aamir Ahmed v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 6 others (2021 YLR 1313).

7. The grounds prevailed upon Respondent No. 3 in dismissing petitioner’s application are that petitioner’s name is not included in the final merit list as well as recommendations of substitute candidates, and that validity of the merit list has expired. It is evidently clear from above discussion that petitioner’s name was apparent in the merit list at Sr. No. 8 and in the waiting list at Sr.No. 4, therefore, he could have been appointed as recommended candidates did not join the duty. Non-inclusion of petitioner’s name in the recommendation of PPSC of waiting candidates is not understandable and is a lapse on part of PPSC. At the cost of repetition, it is again observed that petitioner agitated his grievance when the merit list was valid and it is the department who waited for expiry of the merit list. In earlier round of litigation, this Court vide order dated 28.11.2019, passed in W.P.No. 33726 of 2019, clearly directed Respondent No. 3 to look into grievance of petitioner and if his case is at par with the person who has already been appointed from the waiting list, extend same relief to petitioner but direction of this Court has not been kept in view while rejecting petitioner’s application. The material aspects of the matter and real facts of the case were not appreciated by Respondent No. 3 while deciding the matter, hence, impugned order is unsustainable in the eye of law.

8. Admittedly, the superior Courts of the country, in a plethora of judgments, have held that when any of the selected candidates does not join the service, the department should consider the next candidate in the merit list for appointment against said post. The Hon’ble Supreme Court in case reported as Government of N.-W.F.P. through Secretary, Education Department, Peshawar and others v. Qasim Shah (2009 SCMR 382) ruled as under:

“4. Having consider the matter from all angles, we are of the view that when some of the selected candidates do not join the service, such posts remain vacant and it was imperative for the department to have considered the remaining candidates for appointment against said posts. Such posts cannot be kept vacant till the next process of recruitment, if some selected candidates were still available on the waiting list.”

1. So far as reference to the case of Aamir Hayat supra, by learned Law Officer is concerned, suffice it to say that said case is based on quite distinguishable facts. In the said case, the department had not exercised the discretion of asking for an alternate candidate instead a large number of vacant seats were filled through fresh advertisement. However, in the instant case, the department itself requested for provision of substitute candidates for more than one time and one of the waiting candidate was also issued appointment

letter and did not opt to publish any fresh advertisement. In the given circumstances, dictum of law laid down in the case of Aamir Hayat supra is not applicable in the instant case.

1. In view of the above, this writ petition is allowed. Consequently, impugned order is declared to be illegal and without lawful authority, therefore, same is set aside. Respondent No. 3 is directed to redress petitioner’s grievance strictly in accordance with law and applicable case law, by taking all necessary steps in liaison with respondent-PPSC, preferably within a period of thirty days from the date of receipt of certified copy of this order. Compliance report shall be furnished to this Court through Deputy Registrar (Judicial).

(Y.A.) Petition allowed

PLJ 2023 Lahore 39 [Multan Bench, Multan]

Present: Ahmad Nadeem Arshad, J.

MUHAMMAD ASHRAF (deceased) through L.Rs., and etc.--Petitioners

versus

MUHAMMAD YOUSAF, etc.--Respondents

C.R. No. 225-D of 2002, decided on 29.6.2022.

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

----S. 12--Civil Procedure Code 1908, S. 115--Suit for specific performance--Decreed--Concurrent findings--Agreement to sell--General power of attorney--Exect whereabout of suit property were not mentioned in GPA--Doubtful transaction--Producing of photocopy of GPA--Plaintiff was failed to cross-examine witness on this particular deposition wherein he specifically stated that his father did not give any authority to defendants to for execution of agreement to sell--Where a portion of statement of a witness was not cross-examined then failure to cross-examine would amount to admission of said facts--Neither exact whereabout of suit property owned by Abdullah were specifically mentioned in GPA nor any authority for execution of agreement to sell was given to agent--This fact alone makes transaction doubtful--It is settled principal of law that there must not be any uncertainty or vagueness in power-of-attorney--Plaintiff produced copy of power-of-attorney as Exh.P-7 without proving non-availability of original and seeking permission for producing of secondary evidence--Defendant No. 1 has no authority to execute agreement to sell in favour of plaintiff on strength of power-of-attorney--Courts below have acted with material irregularity in exercise of their jurisdiction--Civil revision allowed. [Pp. 53, 55 & 62] A, B, C, D, E, F

PLD 1985 SC 341, 1992 SCMR 1488, 2001 SCMR 1700, PLD 2002 SC 71 and PLD 2005 SC 418 ref.

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

----S. 115--Revisional jurisdiction--If Courts below acted with material irregularity and legal infirmity, High Court while exercising revisional jurisdiction conferred under Section 115 of Code of Civil Procedure, 1908, can take cognizance of matter. [P. 63] G

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

----S. 115--Exercising of jurisdiction--Revisional jurisdiction of High is invoked only in cases of exercise of jurisdiction by lower Courts not vested in them by law or Court had failed to exercise Jurisdiction so vested or jurisdiction was exercised in an illegal manner or that some material irregularity was committed--High Court must interfere in the matter in its revisional jurisdiction and correct the illegality committed by the subordinate Courts. [P. 63] H & I

1994 SCMR 818 and 2014 SCMR 914 ref.

Syed Tajamal Hussain Bukhari, Advocate for Petitioners.

Mr. Muhammad Iqbal Gabol, Advocate for Respondents.

Date of hearing: 29.6.2022.

Judgment

Through this Civil Revision, petitioners/legal heirs of Muhammad Ashraf son of Abdullah assailed the judgments and decrees dated 05.02.1989 and 15.01.2002 whereby suit for specific performance of agreement to sell instituted by Respondent No. 1/plaintiff namely Muhammad Yousaf was decreed, concurrently, by the learned Courts below.

1. Inessential details apart, Respondent No. 1/plaintiff namely Muhammad Yousaf son of Muhammad Ismail (hereinafter referred to as plaintiff) instituted a suit for specific performance of an agreement to sell dated 10.01.1979 against Abdullah (hereinafter referred to as Abdullah), Muhammad Ali (hereinafter referred to as Defendant No. 1) and Muhammad Ashraf predecessor of the petitioners (hereinafter referred to as Defendant No. 2) on 01.09.1979 with the contention that suit property measuring 32 kanals belonged to Abdullah, who appointed Defendant No. 1 as his general attorney via registered general power-of-attorney dated 01.08.1962, whereby, he gave him full authority to transfer the suit property; that the suit property was already mortgaged with him through registered mortgaged deed No. 1992 dated 30.06.1977; that Defendant No. 1 being general attorney of Abdullah made contract with him regarding sale of the suit property for a total consideration of Rs. 112,000/- vide agreement to sell dated 10.01.1979 whereby it was settled that after deducting Rs. 40,000/- as mortgage money remaining consideration amount of Rs. 72,000/- was to be paid; that Rs. 60,000/- were paid in presence of the witnesses through receipt dated 10.01.1979 and remaining consideration amount Rs. 12,000/- was agreed to be paid at the time of attestation of sale deed; that date for performance of the agreement to sell was settled as 05.08.1979; that plaintiff remained ready to fulfill the settled conditions of agreement to sell and he also gave a notice in this regard on 01.08.1979 to Abdullah Defendants No. 1; that the defendants have conspired with each other to damage his rights and Abdullah allegedly transferred the suit property through Tamleek in the name of Defendant No. 2; that the said Tamleek is against facts and law, result of fraud and mis-representation liable to be cancelled; that the plaintiff always remained ready to perform his part of contract but defendants failed to abide by their commitment which constrained him to institute the suit in hand. Abdullah son of Kalo (Defendant No. 1 in the initial plaint) and Defendant No. 2 (Muhammad Ashraf son of Abdullah) filed joint contesting written statement on 21.11.1979 whereby they raised preliminary objections that suit had been instituted by the plaintiff on the instigation of Defendant No. 1 (Muhammad Ali) with mutual collusiveness; that plaintiff has no locus standi to institute the suit as Abdullah transferred the suit property through registered Tamleek deed dated 07.07.1979 in favour of his sons and daughters i.e. Defendant No. 2, Ghulam Nabi and Karim Khatoon; that plaintiff with connivance of Defendant No. 1 got prepared the said agreement to sell after 07.07.1979 which is ante-dated and stamp paper used for this purpose was also obtained after execution of the Tamleek deed which is also ante-dated; that suit is bad for non-joinder of Ghulam Nabi and Karim Khatoon. While giving reply to the facts, maintained that Abdullah, who was owner of the suit property, transferred the same through Tamleek in favour of Defendant No. 2, Ghulam Nabi and Mst. Karim Khatoon; that Abdullah appointed Defendant No. 1 as his attorney in the year 1962 for allotment of land and recovery of share produce and he was not given any authority for alienation of the suit property; that he cancelled the said general power-of-attorney through cancellation deed (Abtal nama); that agreement to sell is forged, fictitious, without authority, result of collusiveness, therefore, has no force; that all receipts of money are forged and fictitious and no consideration amount was passed on/paid to Abdullah and prayed for dismissal of the suit. After submission of said written statement Mst. Karim Khatoon moved an application on 26.11.1979 for her impleadment as a party in the suit, whereas, plaintiff also moved an application for impleading of Ghulam Nabi and Mst. Karim Khatoon as a party. Learned trial Court allowed said application on 20.01.1980. Plaintiff with the leave of Court impleaded Ghulam Nabi and Mst. Karim Khatoon as party in the array of defendants and filed amended plaint on 04.02.1980. Meanwhile, Abdullah (Defendant No. 1 in the original plaint and amended plaint dated 04.02.1980) was died and fresh amended plaint was filed on 15.09.1980 by impleading all his legal heirs i.e. Muhammad Ali as Defendant No. 1, Muhammad Ashraf as Defendant No. 2, Ghulam Nabi as Defendant No. 3, Haider Ali as Defendant No. 4 and Mst. Karim Khatoon as Defendant No. 5 in the plaint as a party. Through this amended plaint confusion ensued as number allocated to the defendants were changed by plaintiff. To avoid any further confusion, Abdullah (Defendant No. 1 in the initial plaint) was referred by his name and rest of defendants were referred to as numbered in the last amended plaint dated 15.09.1980. Defendant No. 1 (Muhammad Ali), Defendant No. 4 (Haider Ali) and Defendant No. 5 (Mst. Karim Khatoon) filed contesting written statement on 25.11.1980 with a preliminary objection that plaintiff is estopped to institute the suit by his own words and conduct, however admitted the execution of agreement to sell with the assertion that the plaintiff himself violated the terms and conditions of the same and he himself cancelled it, and maintained that Abdullah transferred the suit property to Defendants No. 2, 3 & 5 through Tamleek, prayed for dismissal of the suit. Defendant No. 2 (Muhammad Ashraf) and Defendant No. 3 (Ghulam Nabi), beneficiary of the Tamleek filed contesting amended written statement on 25.11.1980 whereby they reiterated the same averments as pleaded by Abdullah and Defendant No. 2 in their earlier joint written statement dated 21.11.1979. The learned trial Court keeping in view the divergent pleadings of the parties framed necessary issues as follows: -

ISSUES:

1. Whether the suit is collusive and is filed at the instance of Defendant No. 2? If so, its effect? OPD.

2. Whether the plaintiff has no locus standi in view of the preliminary objection No. 2? OPD.

3. Whether the suit is bad for non-joinder of necessary parties? OPD.

4. Whether the Defendant No. 2 was a general attorney of Defendant No. 1? OPP.

5. If issue No. 4 is proved whether Defendant No. 2 has power to alienate the suit land?OPP.

6. Whether Defendant No. 2 as “Mukhtar Aam” of Defendant No. 1 has validly executed an agreement to sell dated 10.1.79 in favour of plaintiff by receiving Rs. 60,000/-? OPP.

6-A Whether plaintiff is estopped to sue due to his acts and conduct? OPD.

6-B. Whether the plaintiff is entitled to a decree for Specific Performance? OPP.

1. Relief.

Parties were invited to produce their respective evidence. Plaintiff got examined Ghulam Nazak son of Mian Azeem Bukhsh scriber of agreement to sell (Exh.P.1) as PW-1, Ghulam Farid one of the attesting witness as PW-2 and Muhammad Yousaf plaintiff examined himself as PW-3. He also produced agreement to sell dated 10.01.1979 as Exh.P-1, receipt dated 10.01.1979 as Exh.P-2, copy of record of right for the year 1971-72 as Exh.P-3, copy of Khatoni as Exh.P-4, copy of cancellation deed (Abtal Nama) as Exh.P-5 and copy of registered Tamleek deed as Exh.P-6 and in rebuttal evidence, produced copy of khasra girdwari from Kharif 1983 to Rabi 1987 as Exh.P-6 (wrongly allocated the same number of Exh.P-6 as it was already allocated to copy of registered Tamleek deed), and copy of general power-of-attorney from Abdullah in favour of his son Defendant No. 1 dated 02.08.1962 as Exh.P-7. On the other hand, the defendants got examined Qasim Hussain Casher/Treasurer as DW-1, Muhammad Ashraf (Siah Navees/Moharrir) as DW-2. Thereafter, learned Trial Court recorded evidence of Riaz Hussain son of Muhammad Ramzan and Muhammad Ashraf Defendant No. 2 but inadvertently numbered them as D.W.1 & D.W.2 respectively instead of D.W.3 & D.W.4, Defendant No. 1 got recorded his statement on 16.09.1987 (inadvertently shown as Defendant No. 3 whereas he was Defendant No. 1, without assigning him any number as DW). Defendants No. 2 & 3 moved an application for summoning of Azeem Bakhsh alleged stamp vendor as Court witness (CW) on 15.09.1982 which was allowed on 22.01.1983. The Court summoned him and recorded his statement as CW-1. After conclusion of trial, the learned trial Court vide judgment and decree dated 05.02.1989 partially decreed the suit after deducting 03 kanals 08 4/7 marlas from the total suit property measuring 32 kanals. Feeling aggrieved, Defendant No. 2 preferred an appeal whereas plaintiff also filed cross-objections. The learned appellate Court vide order dated 19.10.1991 concluded that mortgage deed No. 1992 dated 30.06.1977 is a material document which is available on record in original but it should be brought on record through proper procedure and after framing of additional issue in this regard (Whether Muhammad Ali as general attorney of Abdullah deceased defendant validly mortgaged the land belonging to Abdullah in favour of Muhammad Yousaf plaintiff after receiving Rs. 40,000/-, if so, its effect?), set-aside the impugned judgment and decree and remanded the matter to the learned trial Court for decision afresh after recording further evidence on the newly framed issue. Feeling distressed, plaintiff filed first appeal against order (F.O.A. No. 56 of 1999) which was allowed by this Court vide judgment dated 13.04.2000 and set-aside the order dated 19.10.1991, resultantly appeal as well as cross-objection deemed to be pending before the Appellate Court who shall be directed to decide the same afresh in accordance with law. The learned appellate Court vide judgment and decree dated 15.01.2002 dismissed the appeal of the Defendant No. 2, whereas allowed the cross-objection of plaintiff and decreed his suit in toto. Feeling dissatisfied, the petitioners-legal heirs of Muhammad Ashraf Defendant No. 2 filed instant revision petition by challenging the aforementioned judgments and decrees.

1. This Court vide order dated 18.05.2015 proceeded ex-parte against the respondents except Respondents No. 2(h), 4 & 6. Through C.M. No. 2217-C/2021 a permission was sought to bring on record legal heirs of Respondents No. 1, 2-H, 3,4 & 6 which was allowed on 20.09.2021. Notices were issued to the newly added legal heirs of above referred respondents. Mr. Muhammad Iqbal Gabol, Advocate submitted power-of-attorney on behalf of Respondents No. 1(a) to 1(i)/legal heirs of plaintiff, however, no one appeared on behalf of rest of the respondents despite their due service, therefore, ex-parte proceedings are going to be initiated against rest of respondents. The suit of the plaintiff was decreed in his favour and after his demise his legal heirs were brought on record, duly represented through their counsel, who are the main contestants, therefore absence of the rest of respondents and ex-parte proceedings does not effect the merit of the case and there is no bar to hear the revision petition on merit which is pending since 2002.

2. I have heard the learned counsel for the parties at full length and perused the record with their able assistance.

3. The plaintiff and Defendant No. 1 are not at issue with regard to execution of the agreement to sell, therefore, it is well entrenched proposition of law that admitted facts need not to be proved. The controversy is that whether said agreement to sell is free from any collusion, executed on the date shown upon it and the Defendant No. 1 has authority to execute the said agreement to sell in favour of plaintiff. Now I discuss both the controversies one by one.

4. Abdullah and his son Defendant No. 2 in their written statement raised a preliminary objection to the effect that plaintiff and Defendant No. 1 by conniving with each other prepared the agreement to sell after 07.07.1979 which is ante-dated. Stamp paper used for writing of said agreement to sell was also obtained after 07.07.1979, wrongly shown its ante-dated purchase and alleged that said agreement to sell is result of collusion, prepared ante-dated and suit was instituted collusively at the instance of Defendant No. 1. The exact wording of the written statement is as under:

" یہ کہ دعوی ہذا مدعی نے مد عاعلیہ نمبر 2 کے ایما پر دائر کیا ہوا ہے۔ کیونکہ مد عاعلیہ نمبر 2 نے آپس میں ساز باز کی ہوئی ہے ۔"

" یہ کہ مدعی اور مدعا علیہ نمبر 2 نے آپس میں ساز بار کر کے معاہدہ بیع متد عویہ مورخہ 7.7.79 کے بعد تحریر کرایا ہے اور معاہدہ مذ کور پر پہلے کی تاریخ ڈالی گئی ہے ۔ نیز معاہد ہ مذکور کی تحریر کیلئے جو اسٹامپ حاصل کیا گیا وہ بھی در حقیقت مورخہ 7.7.79 کے بعد حاصل کیا گیا تھا۔ اور اس پر خلاف حقائق پہلے کی تاریخ ڈالی گئی ہے ۔"

Whereas the plaintiff asserted that agreement to sell was rightly executed by Defendant No. 1 on 10.01.1979. The learned trial Court in the light of said controversy framed Issue No. 1 (Whether the suit is collusive and is filed at the instance of Defendant No. 2? If so, its effect? OPD) and placed its onus of proof upon defendants. Although, learned Trial Court failed to frame any issue with regard to the said agreement to sell, whether it is ante dated or not but as the parties were well aware in respect of the controversy present between them and produced their entire evidence in support of their version, so, no need to frame any additional issue at this stage and put the parties to a denovo trial by remanding the matter as Issue No. 1 covers the controversy to some extent. The learned trial Court decided issue No. 1 against the defendants which finding was upheld by the learned appellate Court.

1. The stamp paper used for writing of agreement to sell was shown to be purchased from Azeem Bakhsh stamp-vendor on 10.01.1979, whereas Defendant No. 2 claimed that said stamp paper was obtained from Jamal Khan stamp-vendor as Azeem Bakhsh was not stamp-vendor at that time. Qasim Hussain, Treasure Ali Pur appeared as DW-1 who deposed that according to their record Azeem Bakhsh stamp-vendor did not purchase stamps since 10.09.1977. During cross-examination he deposed that the stamp-vendor can keep stock of already purchased stamps and has shown possibility that stamp paper dated 10.01.1979 may be already purchased stamp with the stamp vendor, however, on Court’s question he deposed that there is neither any record of stamp paper of Exh.P-1 nor any entry is present in this regard in the register. Muhammad Ashraf (Siah Navees/Moharrir) appeared as DW-2 and deposed that no money/amount was deposited in the treasury by Azeem Bakhsh stamp vendor for obtaining or purchase of stamp papers since 10.09.1977. On Court query he clarified that the stamp vendor’s register can tell that when he lastly purchased the stamp paper and when his purchased stock was finished. He further clarified on Court’s question that Azeem Bakhsh left the profession of stamp vending in the year 1977 due to ailment. Stamp vendor Azeem Bakhsh got recorded his statement as CW-1 and deposed that he remained stamp vendor for few days, then voluntarily said, for eight to nine months. He also maintained that when his license was finished he immediately deposited his register. Voluntarily said that his license was not finished but he himself resigned. He also deposed that in the year 1966 he got the license and resigned in 1967 and after 02/03 days of resignation he deposited the register. He deposed that he did not made any entry of stamp paper in the register with his own hand-writing, and it was entered by his agent. He clarified that after completion of register, the same was submitted in the office. During cross-examination, he denied the suggestion as incorrect that he was stamp vendor in the year 1979 and used to sell stamp paper. While answering to a question he deposed that after resignation he deposited all the un-used stamp papers and no stamp paper was left with him. He admitted that his son Nazak works as deed writer in Alipur Courts. He said that as on Exh.P-1 signature of Nazak is present, therefore, it may be in his hand-writing. He showed his ignorance that any other person can prepare stamp or not. He said that he had no need to keep the stamp after resignation. He also deposed that Nazak resided with him in his house. He also suggested it incorrect that he used to sell the stamps after resignation. He deposed that he did not remember, whether his agent had deposited any remaining stamp paper after his resignation or not. Voluntarily said what was the point of keeping it by him. He also deposed that the date of Exh.P-1/G, shown to him as 1979, cannot be in his hand-writing. He also said that it is correct that when his approved agent asked him to make signatures, he put his signatures. The exact deposition in verbatim is as under:

" میں اشٹام فروش بھی رہا ہوں کچھ دن رہا ہوں۔ پھر کہا 8 ، 9 ماہ اشٹام فروشی کا کام کیا تھا۔۔۔۔۔۔ میں اشٹام خود اپنے ہاتھ سے رجسٹر میں درج نہ کر تا تھا بلکہ میر اکار ندہ محبوب الحسن درج کر تا تھا جو کہ منظور شدہ تھا۔ میں نہیں بلکہ میر اکار ندہ ہی رجسٹر میں فروختگی اشٹام کا اندراج کیا کر تا تھا۔ رجسٹر ختم ہونے پر داخل دفتر کر ادیا کر تا تھا۔ جب میرا لائسینس ختم ہوا تو اپنار جسٹر فوری طور پر داخل کرادیا تھا۔ درست ہے کہ لائسینس ختم ہونے کے بعد میں رجسٹر میں کسی قسم کا اندراج بعد میں نہ کر سکتا تھا۔ از خود کہا کہ میرا لائسینس ختم تو نہیں ہوا تھا۔ میں نے خود استعفے دیا تھا۔ میں نے 1966 کے درمیان میں لائسینس لیا تھا۔ 1967 کے درمیان میں استعفے دے دیا۔ استعفے دینے کے دو، تین دن کے اندر اندر رجسٹر جمع کرادیا تھا۔ استعفے ضعیف العمری کی وجہ سے دیا تھا۔ میں وہ رجسٹر ساتھ نہ لایا ھوں وہ تو 1967 سے داخل دفتر ھے۔ 1967 سے میں گھر میں رہتا ہوں۔۔۔۔۔۔۔۔۔۔ (گواہ کی حالت ایسی ھے کہ اسے لوگوں نے اور بیلف نے پکڑ کر عدالت میں کھڑا کر رکھا ھے اور اب وہ کھڑا بھی نہ ھو سکتا ہے اور مجبوراً کرسی پر بٹھا دیا گیا ھے)۔۔۔۔۔۔۔۔۔۔ درست ہے کہ جو اشٹام بیچتا تھا اسکا اندراج رجسٹر میں کیا جا تا تھا۔۔ درست ھے کہ میں دستخط انگریزی میں کرتا تھا۔ یہ درست ہے کہ مجھے جو دستخط دکھائے گئے ہیں وہ دستاویز 1 .Exh.P پر Exh.P.1/D اور Exh.P. 1/E میرے دستخط ہیں۔ ۔۔۔۔۔۔ غلط ھے کہ 1979 میں میں اشٹام فروش کر تا تھا اور میں اشٹام بیچتا تھا۔۔ ۔۔۔۔۔۔ درست ھے کہ مجھے منظور شدہ کارندہ جو کہتا تھا کہ دستخط کر دو میں دستخط کر دیتا تھا۔۔ ۔ استعفے کے بعد تمام اشٹام داخل دفتر کر دیے تھے میرے پاس کچھ نہ بچے تھے۔ پھر از خود کہا کہ مجھے علم نہ ھے شاید ایک آدھ بچ گیا ھو۔ میں نے 1982 میں آپریشن کرایا اس وقت سے میری بصارت کم ھے ۔۔۔۔۔۔۔۔۔۔ میں یہ بھی نہ بتا سکتا ہوں کہ اشٹام کے سامنے اور پشت کی تحریر ایک ہی ہاتھ کی لکھی ھے یا مختلف ہیں۔ درست ھے کہ نازک میر اپسر ھے۔ درست ھے کہ وہ کچہری علی پور میں وثیقہ نویسی کا کام کر تا ھے۔ 1 .Exh. P پر دستخط چونکہ نازک کے ہیں اسلئے اس کی تحریر ہے ۔ مہر بھی داخل دفتر ہو چکی تھی۔ جب استعفے دیا تھا۔ علم نہ ھے کہ اس نام کی مہر کوئی دوسرا بھی بنا سکتا ھے یانہ ۔ مجھے کیا ضرورت تھی کہ میں استعفے کے بعد اپنی مہر پھر استعمال کر تا از خود کہا کہ فراڈ کسی نے کیا ھو تو علم نہ ہے۔ نازک میرا بڑا لڑکا ھے اور میرے ساتھ ایک ہی مکان میں رہتا ھے ۔۔۔۔۔۔۔۔۔۔ یاد نہ ھے کہ میرے کارندہ نےاشٹام اگر کوئی بچ گیا ھو تو جمع کرادیا تھا یا نہ۔از خود کہا اسے رکھنے کا کیا فائدہ تھا۔ غلط ھے کہ 80-1979 تک میرے کارندہ نے اشٹام داخل نہ کئے اور اپنے پاس رکھے تھے ۔ مجھے جو تاریخ Exh. P.1/G دکھائی گئی ھے وہ 1979 کی ھے اور میری تحریر کر دو نہ ھو سکتی ھے ۔ یہ 12/11 سال کی بات ھے واللہ علم اب صحیح یاد نہ ھے کہ اشٹام کارندہ کے پاس تھے یا نہ۔ اس وقت مجھے ہوش ھے اور میں حلفا "بات کہہ رہا ھوں۔"

The learned Courts below were much impressed on his admission whereby on a suggestion he said that it is correct that the signatures shown to him on Exh.P-1 as Exh.P-1/D and Exh.P-1/E are his own signatures, but failed to consider his age who was 87 years old at the time of said cross-examination and his deposition that in the year 1982 he got operated his eyes and since that time his eye-sight is weak.

1. Riaz Hussain (DW-1) deposed that he knew Mureed Hussain deed writer as he works with him. He deposed that he knew Muhammad Ali and Muhammad Yousaf who came before Mureed Hussain in his presence and asked him for writing of an agreement to sell. Murred Hussain, who was patient of asthma said that since he was not free, so, to get it write from any one else and then they went to Nazak. It was month of July. During cross-examination, he clarified that it was last week of July and date was 25. Stamp paper was obtained from Jamal Khan. He answered to a question that Jamal Khan is alive. He was not put any suggestion that stamp paper was not purchased from Jamal Khan and it was not month of July. During cross-examination he deposed that agreement was written by Nazak as he saw them in his chamber. He admitted it correct that father of Nazak was remained stamp vendor at one time. Defendant No. 2 (DW-2) deposed that after cancellation of power-of-attorney agreement to sell was got written antedated fraudulently. Stamp was purchased from Jamal Khan and made entry of antedate on it. He specifically deposed that said agreement to sell was prepared antedated. He also deposed that Azeem Bakhsh alleged stamp vendor while recording his statement admitted that he did not issue the stamp paper for writing of agreement to sell and he resigned from stamp-vendoring in the year 1966. During cross-examination deposed, it was told by plaintiff that Defendant No. 1 purchased stamp paper from Jamal Khan. Ghulam Farid one of the attesting witnesses of agreement to sell appeared as PW-2. During cross-examination he deposed that stamp was purchased from Siah Navees. Plaintiff (PW-3), during cross-examination deposed that he and Muhammad Ali both had gone to Siah Navees for obtaining the stamp paper. He himself gave stamp paper to them and said stamp paper was not obtained from treasury. Then he inquired who is called Siah Navees, and subsequently replied that stamp paper was obtained from stamp vendor. He admitted that stamp paper was purchased from Jamal stamp vendor. He deposed that he is knowing and watching Jamal Khan for last 02/3 years in the Tehsil. After purchase of stamp paper, they came to Nazak for writing of agreement to sell. His exact deposition in verbatim is as under:

"میں اور محمد علی دونوں اشٹام لینے گئے تھے۔ سیاہ نولیس کے پاس گئے تھے۔ اس نے اشٹام پاس سے ہی نہ کہ خزانہ سے نکلوا کر دیا تھا۔ مکرر گواہ نے دریافت کیا کہ سیاہ نو لیس کیا ہو تا ہے مکر رکہا اشٹام فروش سے لیا تھا۔ "

"جمال اشٹام فروش سے اشٹام لیا تھا۔ جو برادر اسحاق پٹواری ہے۔ علم نہ ہے کہ وہ پسر چاند خان ہے ۔ اشٹام کے حصول کے بعد نازک کے پاس آگئے تھے جمال کو دو تین سال سے تحصیل میں دیکھ رہا ہوں۔"

Ghulam Nazak deed writer (PW-1) did not say anything that from whom stamp paper was purchased. However, he denied the suggestion that he had got written the stamp paper Exh.P-1 after getting his father’s signature ante dated. He denied the suggestion incorrect that eight and half month before 10.01.1979 his father left stamp vendoring. Defendant No. 1 during cross-examination deposed that Nazak (deed writer) sent his son for bringing the stamp paper from home and his son brought it from his grandfather because he was ill and present at home at that time. He further said that he also accompany him for bringing the stamp paper and he put his thumb impression upon the register. Further deposed that he got stamp paper valuing Rs. 30/- whereas stamp papers of agreement to sell are value of Rs. 20/- and Rs. 10/- and on the back side of it showed value of Rs. 15/- and Rs. 15/- usual stamp paper valuing Rs. 4/- was used for writing of an agreement to sell. Exact deposition in verbatim is as under:

"اشٹام سٹھ بیع نازک کا والد بیمار تھا۔ نازک نے اپنے لڑکے کو بھیجا کہ گھر سے اشٹام لے آیا۔ نازک کالڑ کا اشٹام اپنے دادا سے لے آیا کیونکہ دادا بیمار تھا۔ اشٹام لینے میں ساتھ گیا۔ میرا انگو ٹھار جسٹر پر بھی لگوایا نازک کا لڑکا بھی تھا ساتھ۔ گھر پر اشٹام دیئے ۔ پھر میں تحصیل آگیا۔ نازک کے پاس میں نے تحریر کر وایا۔ تیس روپے کا اشٹام لیا۔"

Plaintiff (P.W.3) stated that he along with Defendant No. 1 purchased stamp paper from Jamal Khan whereas Defendant No. 1 deposed that stamp paper was purchased from Azeem Baksh. Plaintiff stated that he paid price of stamp paper whereas Defendant No. 1 claimed that he paid the price. Plaintiff stated that he and Defendant No. 1 went together for purchase of stamp paper whereas Defendant No. 1 said that he and son of Nazik had gone to purchase the stamp paper. Alleged stamp vendor Azeem Baksh denied issuance of stamp paper but also maintained that he was not stamp vendor in the year 1979. The story narrated by Defendant No. 1 was not corroborated by the witnesses appeared on behalf of the plaintiff which suggest that he concocted a false story regarding purchase of stamp paper which seems to be an afterthought and it proved his collusiveness with plaintiff. Register of stamp vendor was neither tried to be summoned nor produced in evidence, which established that stamp paper was not entered in any register. Said depositions of the witnesses clearly suggests that a blank stamp paper was used for preparing the agreement to sell which was purchased from Jamal Khan and for making it ante-dated name and stamp of Azeem Bakhsh was used who was not stamp vendor in the year 1979. The learned Courts below ignored the fact that when Azeem Bakhsh was not stamp vendor in the year 1979 how can he issued stamp paper for execution of an agreement to sell and how his admission with regard to his signatures upon the stamp paper made it a validly issued stamp paper. The learned Courts below mis-read and non-read the evidence of both parties and had drawn a wrong conclusion.

1. Abdullah gifted the suit property to Muhammad Ashraf, Ghulam Nabi and Mst. Karim by excluding Muhammad Ali and Haider Ali. From scanning the whole record, it appears that due to this grudge Muhammad Ali joined hands in gloves with Muhammad Yousaf plaintiff for preparing an ante-dated agreement to sell to deprive the donees from the fruit of gift made by their father. The suit was not contested by Muhammad Ali, Haider Ali and Mst. Karim rather they admitted the execution of agreement to sell in their written statement.

Displeasure and angriness came on the surface during cross-examination, when Defendant No. 1 deposed that Defendant No. 2 brought his father to Tehsil and got transferred the suit property in his name through Tamleek. Further deposed that he and his brother Haider Ali were also entitled but they had not given their share. This deposition clearly suggests that he was not happy with the Tamleek of the suit property to Defendants No. 2, 3 & 5 wherein he and his brother Haider Ali were deprived from the suit property. The exact deposition is as under:

"اشرف تحصیل میں میرے والد کو لے آئے اور اس سے تملیک کرائی تھی۔ میرا حق بھی بنتا تھا اورمیرے دوسرے بھائی حیدر علی کا حق بھی بنتا تھا۔"

"مجھے اور حیدر علی کو حصہ نہ دیا گیا۔"

"اس میں میرے اور بھائی کا حق بھی تھا۔"

Now question arises, Muhammad Ali and Haider Ali were angry being deprived from the suit property by their father Abdullah but why Mst. Karim Khatoon admitted the claim of plaintiff and he made admission against her interest by conceding execution of the agreement to sell. This question was answered during the pendency of appeal when Defendant No. 2 moved an application for impleading Mst. Noor Bibi daughter of Muhammad Shahzad wife of Muhammad Yousaf as party in the appeal. In the said application, he maintained that during the proceedings of suit, Mst. Karim Khatoon alienated the properties which she obtained through tamleek Mutation No. 3004 and inheritance Mutation No. 3007 via agreement to sell dated 19.06.1980 to Mst. Noor Bibi and thereafter got executed sale deed No. 1392 on 08.06.1981. On the basis of said sale deed Mutation No. 306 was sanctioned on 28.06.1984. Meaning thereby, Mst. Karim Khatoon Defendant No. 5 agreed to alienate the properties obtained through tamleek and inheritance to the wife of plaintiff Muhammad Yousaf before filing of her written statement. This transaction of sale from Defendant No. 5 in favour of plaintiff’s wife showed that plaintiff not only accepted/admitted the execution of tamleek in favour of Mst. Karim Khatoon, Muhammad Ashraf and Nabi Bakhsh but he himself negated the factum of agreement to sell allegedly executed in his favour by purchasing the same property from Defendant No. 5 in the name of his wife. If any agreement to sell (Exh.P-1) with regard to suit property was genuinely existed in his favour, then why he again purchased it from Mst. Karim Khatoon Defendant No. 5 through his wife Mst. Noor Bibi. The facts and circumstances as well as evidence discussed supra make the agreement to sell doubtful and seems to be result of collusiveness. The findings of Courts below upon Issue No. 1 are not sustainable.

1. Plaintiff claimed that Defendant No. 1 was valid attorney of Abdullah and he has authority to alienate the suit property and on the strength of said authority he got executed the agreement to sell whereas the defendants (Abdullah and Muhammad Ashraf) denied this fact by alleging that the said attorney was appointed only for allotment of lands and recovery of share produce and he was not given any authority to further alienate the suit property. The controversy emerged was covered by the learned Trial Court through formulating Issue No. 5 (If Issue No. 4 is proved whether Defendant No. 2 has power to alienate the suit land? OPP) and decided the same in favour of plaintiff which was upheld by the learned appellate Court.

2. Abdullah and Defendant No. 2 pleaded in their written statement while giving reply to Para No. 2 of the plaint that Abdullah appointed Defendant No. 1 as his attorney in the year 1962 for the allotment of lands and recovery of share produce and he was not given any authority to alienate the suit property. Exact wording are as under:

ضمن نمبر2غلط ہے مد علیہ نمبر1نے سال 1962 میں مد علیہ نمبر 2 کو مختار عام براۓ الا ٹمنٹ اراضیات و حصول پیدوار مقرر کیا تھا مد علیہ نمبر 2 اراضی متد عویہ منتقل کرنے کا اختیار نہیں تھا مگر مد علیہ نمبر 1 نے مختار نامہ مذکور حسب ضابطہ بذریعہ ابطال نامہ منسوخ کر دیا تھا۔"

The contents of written statement were verified on oath by Abdullah on 21.11.1979 and said verification also contained his thumb impression. The exact wording of verification is as under:

"میں حلفاً بیان کر تا ہوں کہ ضمن نمبر 1 تا4 عذرات ابتدائی و ضمن نمبر 1 تا 10 میرے علم سے وضمن نمبر 11 تا 13 میرے یقین سے صحیح و درست ہیں۔"

Said Abdullah was died during proceedings of the suit before recording his testimony. Defendant No. 2 got recorded his statement as DW-2 whereby while maintaining that his father submitted written statement categorically deposed that his father did not give any authority to Muhammad Ali for execution of agreement to sell of the suit property. His exact deposition is as under: -

"بیان کیا کہ میرے والد کا نام محمد عبد اللہ ہے ۔ وہ76 / 75 سال کی عمر میں فوت ہوئے ۔ پہلے دعویٰ ہذا یوسف نے دائر کیا تھا ہمارے والد کے خلاف۔ میر ا والد حاضر بھی آیا۔ جو اب دعوی میرے والد نے دیا۔ دعویٰ کے دوران فوت ہو گئے۔ مختار نامہ جو محمد علی کو میرے والد نے لکھ کر دیا تھا وہ منسوخ کرا دیا تھا۔ ابطال نامہ لکھا گیا تھا۔ آراضی متد عویہ کا مالک میر اوالد ہے۔ میرے والد نے محمد علی کو اس زمین کا سٹھ بیع لکھ دینے کا اختیار نہ دیا تھا۔"

(Underline was supplied for emphasis)

1. The plaintiff failed to cross-examine the witness on this particular deposition wherein he specifically stated that his father did not give any authority to Muhammad Ali for execution of the agreement to sell. It is settled proposition of law that where a portion of statement of a witness was not cross-examined then failure to cross-examine would amount to admission of said facts. Defendant No. 1 while recording his statement did not utter a single word that through said power-of-attorney his father gave him authority to execute the agreement to sell. Although, during cross-examination from plaintiff’s side he deposed that being attorney he has every right of sale, purchase and gift but that deposition did not give him authority to execute agreement to sell. Similarly, plaintiff while recording his statement as PW-3 did not narrate that Defendant No. 1 was given authority by his father for execution of the agreement to sell and in this way he failed to negate the version of Abdullah and Defendant No. 2. Before further discussion it is better to see the contents of power-of-attorney, which reads as under:

منکہ عبد اللہ ولد کالو قوم ارائیں بعمر ... سال سکنہ موضع بیٹ نبی شاہ تحصیل علی پور کاہوں۔ اقرار کر تا ہوں۔ اور لکھد یتا ہوں۔ برضاور غبت خود بلا جبر و ترغیب کے دوسرے شخص کے اس بات پر جو کہ مظہر کی جائداد زرعی و سکنی وغیرہ اندرون تحصیل علی پور ۔ ضلع مظفر گڑھ ھے ۔ اور اس کا انتظام ہر قسم مجھے کرنا پڑتا ھے ۔ مظہر عمر رسیدہ ھے اور بوجہ تقاضا عمر تمام کاروبار بذات خود سر انجام دینے سے معذور ہوں۔ اس لئے اپنے طرف محمد علی ولد عبد اللہ قوم ارائیں سکنہ موضع بیٹ نبی شاہ تحصیل علی پور پسر خود کو مختیار عام مقرر کر کے اقرار کر تا ہوں۔ کہ مختیار مذکور ہر محکمہ اور عدالت میں میری طرف سے حاضر ہو کر مقدمات ہر قسم جو میری طرف سے دائر ہوں۔ یا میرے خلاف دائر ہوں ۔ پیروی و جو ابد ہی کرے۔ تقر ر و بر طرفی مزارعان وصولی پید اوار و تقسیم اراضیات ۔ حد براری بطور خود یا بذریعہ عدالت کر اسکیگا۔ میری طرف سے دعوی شفع ۔ استقرار حق ۔ د خلیابی۔ بید خلی۔ کنکوت وغیرہ بھی دائر کر کے پیروی و جوابدہی کر سکیگا۔ جملہ عدالت ہائے مال۔ دیوانی۔ فوجداری۔ ریلوے۔ پولیس۔ ڈاک خانہ جات ۔ کیلہ بندی۔ اشتمال۔ بند وبست میں از عدالت ابتدائی تا عدالت اپیل ( ہائی کورٹ مغربی پاکستان و فنانشل کمشنر صاحب ) جملہ دعوی ہائے جو میری طرف سے یا میرے خلاف دائر ہوں۔ حاضر ہو کر پیروی و جو ابد ہی کر سکیگا۔ جملہ دعوی ہاۓ پیداوار ۔ بید خلی۔ د خلیابی۔ استقرار حق۔ شفع میں ڈگری حاصل کرے اور اجرا کر اکر دخل لے سکیگا۔ اور خرچہ بذریعہ قرقی و نیلامی جائداد مدیونان سے وصول کر سکیگا۔ اگر کسی جگہ بولی دینی پڑے تو با اجزت عدالت بولی دے کر میرے نام پر اراضی کر اسکیگا۔ اور انتقالات اراضی ہر قسم جو میرے حق میں یا میری طرف سے دوسرے کے حق میں ہوں۔ بیان دے کر داخلخارج منظور یا نامنظور جیسی صورت ہو۔ کر اسکیگا۔ دوران مقد مہ اگر کسی قسم کی درخواست انتقال مقد مہ بیان یا بیان حلفی دینا پڑے یا درخواست متسقلہ مقد مہ یا التوا حکم دینے پڑے تو دے سکیگا۔ نیز کاروائی مقد مہ میں ثالث یا سر پنچ مقرر کرنا پڑے تو کر سکیگا۔ راضی نامہ بھی کر سکیگا۔ وکیل ۔ بیرسٹر یا مختیار خاص بھی مقرر کر سکیگا۔ محکمہ بحالیات میں ہر قسم کی درخواست ہائے۔ بیان حلفی ۔ بیان تحریری یا زبانی اقرار نامہ وغیرہ بھی کرنے کا اختیار ہو گا۔ اگر کسی قسم الاٹ وغیرہ ہو۔ تو محکمہ متعلقہ میں حاضر ہو کر ہر قسم کی کاروائی بمثل میرے کر سکیگا۔ میرے معاوضہ بک سے یا کسی دوسرے کے معاوضہ بک سے رقم لینی یادینی پڑی۔ تو ہر قسم لین دین وغیر ہ کا نامز دہ کو حق ہو گا۔ اگر کلیم یا دیگر رقبہ سکنی و زرعی میں ردوبدل وغیرہ کرنا پڑے تو کر سکیگا۔ نیز تبادلہ ۔ تملیک ۔ ہبہ ۔ بیع۔ مستاجری۔ رہن غرضیکہ ہر قسم کا انتقال عارضی و دوامی کامیری طرف سے میرے ہر قسم کی جائیداد کا کر دینے کا نامزدہ کو اختیار ہو گا۔ اور اس کے متعلق جس قسم کی تحریر۔ رجسٹری کر دینے اور زبانی انتقال کی صورت میں بیان دینے اور زر بیع و غیر ہ وصول کرنے کا نامز دو کو بمثل میرے کلہم اختیار ہونگی۔ غرضیکہ مختیار مذکور کومیری کلہم جائیداد ہر قسم واقعہ اند رون۔ تحصیل علی پور کے متعلق ہر قسم کا انتظام اور اس کی منتقلی ہر قسم کا جیسا کہ مجھے اختیار وحق ھے ۔ اور جسکی وضاحت او پر بھی کر دی گئی ھے۔ کر نیکا بمثل میرے کلہم اختیار ہو گا۔ اور اس کا کر دہ مجھے بمثل کر دو ذات خود منظور و قبول ہو گا۔ لہذ امختیار عام تحریر کر دیا ھے ۔ کہ سند رہے ۔ یکم اگست ۱۹۶۲۔ گواہ شد غلام نبی ولد غلام حسین خان قوم بلوچ گوپانگ سکنہ علی والی بقلم خود۔ العبد عبد اللہ مقر مذکور و نقش انگوٹھا۔ گواه شد الہی بخش ولد اللہ وسایامکول سکنہ مکول ہڑیر و نقش انگوٹھا ۔ بقلم رحیم بخش عرضی نویس علی پور۔ نمبر رجسٹر ۱۳۲۴ و مہر عرائض نویس۔"

1. Having a glance on the contents of general power-of-attorney (Exh.P-7) it appears that neither exact whereabout of the suit property owned by Abdullah were specifically mentioned in it nor any authority for execution of agreement to sell was given to the agent (Muhammad Ali). This fact alone makes the transaction doubtful. It is settled principal of law that there must not be any uncertainty or vagueness in the power-of-attorney. Power of attorney should be construed strictly and only such powers qua the explicit object which were expressly and specifically mentioned in the power-of-attorney should be exercised by the agent as conceded to have been dedicated to him. The august Supreme Court of Pakistan in its esteem judgment titled “Fida Muhammad versus Pir Muhammad Khan (Deceased) Through Legal Heirs And Others” (PLD 1985 Supreme Court 341) held as under:

“It is wrong to assume that every “general” Power-of-Attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object The draftsman must pay particular attention to such a clause if intended to be included in the Power-of-Attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deduceable from words spoken or written which do not clearly convey the principal’s knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and or misrepresentation.

The second aspect which needs caution on question of validity of acts under a Power-of-Attorney is that notwithstanding an authority to alienate principal’s property, the Attorney is not absolved from his two essential obligations, amongst others firstly in cases of difficulty (and it will be a case of difficulty if the Power-of-Attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction.”

The august Supreme Court of Pakistan in a case titled “Malik Riaz Ahmad and others versus Mian Inayat Ullah and others” (1992 SCMR 1488) where power of agreement to sell was not specifically given despite the fact that he was given authority to deal with the properties and also to sell them held that agreement to sell executed on behalf of principal was not duly authorized and proper in the facts and circumstances of the case and observed that “we are persuaded to hold that although the power-of-attorney was executed by Appellants No. 2 to 6 in favour of Respondent No. 2, as he had never acted upon the power to sell the property for a very long period and prior to executing agreement to sell he did not bring it to the knowledge of Appellants No. 2 to 6 the same could not have been validly made”. Further held as under:

“9. Section 214 of the Contract Act, 1872 provides that it is the duty of an agent, in cases of difficulty, to use all reasonable methods in communicating with his principal and in seeking to obtain his instructions. It, therefore, makes it obligatory on an agent to communicate with his principal and obtain his instructions in cases of difficulty. The determination whether a particular case will be covered by the expression `cases of difficulty’ depends upon the facts and circumstances of each case. However, as the power-of-attorney has to be construed strictly and in cases of doubt and ambiguity, for the benefit of the executant, in the facts of this case it seems that Respondent No. 2 ought to have sought instructions and communicated with his principals. The facts that Appellants Nos. 3 to 6 are Pardahnashin ladies, the interest Respondent No. 2 has in the property, since the execution of the power-of-attorney Respondent No. 2 had only been managing and had not sold a single property and further that the power-of-attorney was executed about 7 years back and the executants have been disputing that it was acted upon which only reflects the reluctant attitude of the principals, the case was of difficulty and it was obligatory for Respondent No. 2 to have sought instructions from his principals.”

By following the said dictum, the Hon’ble Supreme Court of Pakistan in a case titled as “Muhammad Akhtar versus Mst. Manna and 3 others” (2001 SCMR 1700) observed as under:

“It is well settled by now that the power-of-attorney must be strictly construed and it is necessary to show that on a fair construction of the whole instrument the authority in question may be found within the four corners of the instrument either in express terms or by necessary implication.”

The Hon’ble Supreme Court of Pakistan endorsed said dictum in “Muhammad Yasin and another versus Dost Muhammad through Legal Heirs and another” (PLD 2002 SC 71) in following terms:

“It is also well known principle of law that all such instruments of power-of-attorney in pursuance whereof attorney is authorized to act on behalf of principal are to be construed strictly.”

Keeping in view the above well settled principles the august Supreme Court of Pakistan in its judgment reported as “Imam Din and 4 others versus Bashir Ahmed and 10 others” (PLD 2005 SC 418) did not validate the oral sale on behalf of attorney despite the fact he was given authority to sell the property through registered sale deed and held that attorney was specifically authorized to sell the property through registered sale deed and in the light of strict construction of power-of-attorney, implied authority of oral sale could not be presumed and also observed as under:

“The power-of-attorney is a written authorization by virtue of which the principal assigns to a person as his agent and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of this nature is to assign the authority of the principal to another person as his agent. The main object of such type of agency is that the agent has to act in the name of principal and the principal also purports to rectify all the acts and deeds of his agent done by him under the authority conferred through the instrument. In view of nature of authority, the power-of-attorney must be strictly construed and proved and further the object and scope of the power-of-attorney must be seen in the light of its recital to ascertain the manner of the exercise of the authority in relation to the terms and conditions specified in the instrument. The rule of construction of such a document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act. The general words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution. This is settled rule that before an act purported to be done under the power-of-attorney is challenged as being in excess of the powers, it is necessary to show on fair construction, that the authority was not exercised within the four corners of the instrument”.

“Even if a presumption of existence of the power of attorney is raised, the transaction would still be not considered genuine and within authority of agent for want of explicit power of oral sale. The attorney was specifically authorized to sell the property through registered sale-deed and in the light of strict rule of construction of power-of-attorney, the implied authority of oral sale could not be presumed. The attorney was not given general authorization for disposal of property in any manner rather his authority of sale was restricted by registered deed and consequently, his failure to act in the manner as provided in the document would render the transaction invalid”.

“The perusal of the attested copy of the power-of-attorney would show that various acts relating to the management of property, litigation and all other matters concerning the property, including the power of selling through registered sale-deed were mentioned therein in explicit terms and the attorney was bound to act strictly in the manner as specified in the power-of-attorney to ensure that the transaction was transparent and free of fraud and misrepresentation”.

“The property in respect of which the power-of-attorney was executed, was allotted to the vendor by the Rehabilitation Department and the powers given therein in the power-of-attorney were in respect of the litigation of property with the departments, including the power of filing of suits, written statements, appeals, revisions in the Civil Court. High Court and the Supreme Court, the management of property, the ejectment of tenant, receipt of produce and rent from the tenants to pursue litigation, civil and criminal to file affidavits and applications in the suits as well as in execution proceedings and let out property on lease. In addition, the attorney was also empowered to sell the property on receipt of the sale price through registered sale-deed and appoint the Advocate for his assistance. The perusal of this document would show that the power of sale of land was given to the attorney specifically by means of a registered sale-deed and probably the purpose of restricting the power of sale only by registered sale-deed was to avoid any misuse of the said power and to ensure that the sale was with the consent and knowledge of the principal, therefore, in the light of rule of strict construction of such instrument, it could be visualized that the oral sale was not within the authority of agent under the instrument”.

This Court in the light of dictums led down by Hon’ble Supreme Court of Pakistan observed that the power-of-attorney must be construed strictly and the attorney cannot go beyond the scope of the terms of power-of-attorney. In a case titled as “Bashir Begum versus Ch. Muhammad Anwar and others” (PLD 2003 Lahore 522) where principal did not authorize his agent to entered into any arbitration agreement declared that such an agreement would not bind the principal in the following manner:

“Attending to the argument raised by the learned counsel for the appellant that the powers of attorney Exh.R-13, did not authorize Muhammad Nazir to enter into any arbitration agreement and thus the agreement and the award based thereupon are invalid; it is fundamental rule of law that the power-of-attorney must be strictly construed. If any reference in this behalf is required, reliance can be placed on the case reported as Muhammad Yasin and others v. Dost Muhammad and others (PLD 2002 SC 71). Applying this principal, I have gone through the power-of-attorney and I find that though there are general powers conferred upon the attorney, to conduct the cases before the Courts and also to alienate the property, but there is no specific power given to him to enter into any arbitration agreement on behalf of ladies, for the reference of the matter to the arbitrator. The general powers mentioned above cannot in any manner be construed, the intention of the ladies to authorize their agent to seek the resolution of the dispute through arbitration. If the ladies intended to confer such power, nothing prevented them to have specifically empowered the authority, in this behalf. This conspicuous omission of authority in the power-of-attorney clearly indicates that Muhammad Nazir was never authorized to enter into the arbitration agreement, therefore, notwithstanding whether Muhammad Nazir factually executed the arbitration agreement on behalf of the daughters of Muhammad Bakhsh with the respondents and had agreed for the appointment of Muhammad Asghar; even on the principle of acquiescence on his part such an agreement, would not bind the appellant and the other ladies.”

In a similar situation this Court in a case “Abdul Majeed and another versus Mst. Irshad Begum and 10 others” (2016 CLC 248) held that:

“As regard the transfer of the suit land by the attorney in result of so called arbitration in favour of his own brother it is also settled principle of law that the general attorney in this situation had to obtain the permission from the principal i.e. predecessor of the petitioner which is missing in this case.”

This Court in another case titled as “Muhammad Iqbal through L.Rs versus Mehmood Hasan and others” (2016 MLD 1243) held as under:

“The power-of-attorney is a creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of the grantor which when executed will be binding on the grantor as if done by him. It is revocable or terminable at any time. Each recital in the power-of-attorney constitutes a separate power and thus the power-of-attorney must be strictly construed and limited to the exact words contained therein. In the above said general power-of-attorney (Ex.D3) Muhammad Mansha was, inter alia, authorized to sell, gift, exchange, mortgage and waqf the suit land. He was further authorized to accept earnest money in respect of sale of the suit land. There was no clause of a comprehensive character which would show that the principal, Mehmood Hassan, intended to confer plenary powers on his attorney, Muhammad Mansha, to deal with the suit land. Through the above said general power-of-attorney (Ex.D3) the incidental power of sale, that is, to execute deed of sale and to admit execution thereof before the Registering Officer were not given to the attorney. This power-of-attorney authorized the attorney, Muhammad Mansha, to sell the property owned by, the principal, Mehmood Hassan. Clearly agreement for the sale of property and the execution of conveyance after the agreement of sale are entirely different things. Consequently the power-of-attorney (Ex.D3) is of no assistance to the present petitioner/appellant. In this regard guidance may be had from the case of “Janki Parshad Singh and others v. Syed Yahia Hossain and others” (13 IC 637), “Chottey Lal v. The Collector of Moradabad” (AIR 1922 PC 279), “Ziauddain Siddiqui v. Mrs. Rana Sultana and another” (1990 CLC 645), “Journalist Publication (Pvt.) Ltd. through Chief Executive v. Mst. Mumtaz Begum alias Mustari Begum through her duly constituted Attorney and others” (2004 SCMR 1773). Thus, the sale-deed (Ex.P1) executed in favour of the Passban Co-operative Finance Corporation Ltd. (Respondent No. 2) was illegal and without authority.” (Underline provided for emphasis)

In case titled as “Ghulam Bari versus Haji Bashir Ahmad through L.Rs & others” (PLJ 2016 Lahore 118) this Court where an agreement to sell which was based upon a power-of-attorney by the principal in favour of agent whereby power to execute agreement to sell was not specifically given held that:

“There are no powers to enter into an agreement to sell with regard to the suit property. When the powers to entering into the agreement to sell of suit property and not given in this alleged power-of-attorney, therefore, I am clear in my mind that the Agent cannot enter into an agreement to sell with regard to the property, as in an agreement there are conditions imposed upon both the parties. In case of default by the party there is ever a penalty clause in the agreement to sell. When a person has given powers to sell his property, that does not automatically give the powers to the Agent to enter into an agreement to sell the property of Principal. As I have earlier observed that an agreement to sell both the parties are bound to the conditions mentioned therein. In this view of the matter, I am of the considered view that in the power-of-attorney when the powers are not given to an Agent to enter into an agreement to sell, then he cannot do so.”

Similar view was expressed by this Court in a case titled as “Nawab and another versus Pehlwan Khan (Deceased) through L.Rs and others” (2019 CLC 811) wherein despite the fact that attorney was given the authority to sell, gift, exchange, mortgage the property did not acknowledge the transaction made through agreement to sell by holding that it was the duty of the plaintiff to prove that original owner was not available at the place where the parties were entering into agreement to sell and the attorney was having full power to enter into agreement to sell the suit property and observed as under: -

“In my view the powers to sell the property do not give power to enter into an agreement to sell because in the powers of sale the consideration amount is received and property is sold out, whereas the agreement to sell binds both the parties in accordance with the terms of agreement to perform their part in future. If in the power-of-attorney specific power of entering into agreement to sell of suit property is not provide, an attorney cannot enter into agreement to sell of the property of the principal/owner. In case of sale a transaction is completed, rights and liabilities of the parties are determined through an instrument of sale and with the registration and completion of same no further liability of parties remains against each other but in case of agreement to sell both the parties are bound to perform the terms of agreement in future, therefore, unless an attorney is given specific powers to bind the principal for performance of terms of the agreement in future, the attorney cannot bind the principal and enter into agreement to sell of property owned by the principal, therefore, this agreement is bad on the basis of having no powers with the attorney to enter into agreement to sell of suit property.”

1. It is also evident from the record that plaintiff produced copy of power-of-attorney as Exh.P-7 without proving non-availability of original and seeking permission for producing of secondary evidence. It is settled principle of law that when existence or validity of the document is disputed then its certified copy is admissible in evidence only, if non-availability of the original document is proved, sought and obtained permission for production of secondary evidence. Guidance sought from “Imam Din’s case supra where august Supreme Court of Pakistan observed as under:

“This is settled law that in absence of original document, its certified copy if not admissible evidence and notwithstanding the presumption of correctness being attached with certified copy of a document pertaining to the official record, if the validity or the existence of the document is disputed and original is not produced, its certified copy would not be admissible in evidence without proving the non availability of the original. There was neither anything on record to show that original power-of-attorney was not available to be produced before the Court nor an explanation was given for non-production of original power-of-attorney”.

1. From the above discussion inference can easily be drawn that Defendant No. 1 (Muhammad Ali) has no authority to execute agreement to sell in favour of plaintiff on the strength of power-of-attorney (Exh.P-7). Therefore, the suit instituted on the basis of said agreement to sell dated 10.01.1979 was not proceed-able and liable to be dismissed. The learned Courts below have acted with material irregularity in the exercise of their jurisdiction.

2. It is very strange, as appears from the findings of the learned Courts below that both the learned Courts have not even bothered to peruse the record and particularly the power-of-attorney which is in fact the basis of all the subsequent misdeeds and frauds. The learned appellate Court being the first Court of appeal instead of appreciating and evaluating the record in a very summery and slipshod manner had dismissed the appeal, which in any case, is not warranted by law. The learned Courts below and specially the learned appellate Court is always expected that the appellate Court will correct and set at right the irregularities and illegalities committed by the Court of first instance.

3. Although, both the learned Courts below recorded concurrent findings but the Hon’ble Supreme Court of Pakistan has observed that if the Courts below acted with material irregularity and legal infirmity, the High Court while exercising the revisional jurisdiction conferred under Section 115 of Code of Civil Procedure, 1908, can take the cognizance of the matter.

4. There is no cavil to the proposition that the revisional jurisdiction of the High Court under Section 115, C.P.C. is invoked only in the cases of exercise of jurisdiction by the lower Courts not vested in them by law or the Court had failed to exercise the Jurisdiction so vested or jurisdiction was exercised in an illegal manner or that some material irregularity was committed but this is the settled law that in case in which it is found that the findings of the subordinate Courts were suffering from misreading, non-reading of evidence or that the inference drawn was in utter disregard, to the law and facts of the case, this Court must interfere in the matter in its revisional jurisdiction and correct the illegality committed by the subordinate Courts.

The Hon’ble Supreme Court of Pakistan in the judgment titled “Nasir Abbas v. Manzoor Haider Shah” (PLD 1989 Supreme Court 568), has observed that this type of the concurrent findings can be interfered. The relevant portion is reproduced as under:

“11. It is settled that if the lower Court, misread the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court. See. Dwarika v. Bagawati (AIR 1939 Rangoon 413) and Fut Chong v. Maung Po Cho (AIR 1929 Rangoon 145)”

The august Supreme Court has laid down guidelines for exercise of revisional jurisdiction in “Shumal Begum v Gulzar Begum” (1994 SCMR 818) as under:-

“The revisional jurisdiction under Section 115,C.P.C. exercised by the High Court is attracted only in cases where the lower Court has exercised a jurisdiction not vested, in ‘it by law or it has failed to exercise jurisdiction so vested in it or while exercising jurisdiction the Courts below have acted illegally or with material irregularity. It is, therefore, quite clear that the High Court while exercising revisional jurisdiction cannot disturb the finding of fact arrived at by the lower Court in proper exercise of the jurisdiction vested in the Court and upon consideration of the relevant evidence on record. The finding of fact by the lower Court could only be disturbed in revisional jurisdiction by the High Court, if it is found to be fanciful, perverse or it has been arrived at by a process which had rendered the exercise of the jurisdiction vested in the Court defective. In case of misreading of evidence or non consideration of legal evidence on record, the exercise of jurisdiction and power possessed by the Court is rendered defective, justifying interference by the High Court in exercise of its revisional jurisdiction. The fact that the High Court on reappraisal of the evidence, find that the finding of fact recorded by, the trial Court is preferable to the finding of fact recorded by the first appellate Court cannot justify interference with such finding in exercise of revisional jurisdiction by the High Court. The first appellate Court is the final Court in so far the findings of facts are concerned and such finding can only be disturbed in revisional jurisdiction by the High Court if it is arrived at by the first appellate Court either by misreading the evidence or through perverse appreciation of evidence on record, or due non-consideration of legal evidence on record. From the above quoted passage of the impugned judgment, it is quite clear that the findings of facts recorded by the first appellate Court, was reversed by the High Court on reappraisal of the evidence and by substituting its own opinion for that of the first appellate Court without referring to any defect in the process of reasoning adopted by the first appellate Court. This, in our opinion, was not permissible with the scope of the revisional jurisdiction exercised by the High Court in the case.”

In another esteemed judgment cited as “Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others” (2014 SCMR 914), the Hon’ble Supreme Court of Pakistan has observed as under:

“The argument that when all the for a functioning in the revenue hierarchy concurrently held that the appellants were occupying the land in dispute in their capacity as tenants, such finding being one of fact could not have been interfered with by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, has not impressed us as a finding does not become sacrosanct because it is concurrent. It becomes sacrosanct only if it is based on proper appraisal of evidence. The finding of the for a functioning in the revenue hierarchy despite being concurrent was not based on proper appraisal of evidence and due application of law therefore, the High Court was well within its jurisdiction to interfere therewith. For the very condition for conferment of jurisdiction on a Court of law is to render a finding on proper appraisal of evidence and due application of law. If and when it would do otherwise, it would go outside its jurisdiction. Such order can well be quashed in exercise of Constitutional jurisdiction of the High Court. An order thus passed cannot be protected because the repository of such jurisdiction has the jurisdiction to pass it. Lord Denning of his well-known book ‘the Discipline of law”, while commenting on orders of this nature at page 74 observed as under:

“This brings me to the latest case. In it I ventured to suggest that whenever a tribunal goes wrong in law, it goes outside the jurisdiction conferred on it and its decision is void, because parliament only conferred jurisdiction on the tribunal on condition that it decided in accordance with law.”Another paragraph of this book at page 76 also merits a keen look which reads as under:

“I would suggest that this distinction should now be discarded. The High Court has, and should have, jurisdiction to control the proceedings of inferior Courts and tribunals by way of judicial review. When they go wrong in law, the High Court should have power to put them right. Not only in the instant case to do justice to the complainant. But also so as to secure that all Courts and tribunals, when faced with the same point of law, should decide it in the same way. It is intolerable that a citizen’s rights in point of law should depend on which judge tries his case, or in what Court it is heard. The way to get things right is to hold thus: No Court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it.”

1. Epitome of above discussion is that instant Civil Revision is allowed and both impugned judgments and decrees of learned Courts below dated 05.02.1989 and 15.01.2002, respectively are set-aside and reversed. Resultantly, suit of Respondent No. 1/plaintiff for specific performance of agreement to sell dated 01.01.1979 stands dismissed. Parties are left to bear their own costs.

(Y.A.) Civil revision allowed

PLJ 2023 Lahore 66 (DB)

Present: Muhammad Sajid Mehmood Sethi and Asim Hafeez, JJ.

COMMISSIONER INLAND REVENUE--Petitioner

versus

M/s. NIAGRA MILLS (PVT.) LTD.--Respondent

ITR No. 34199 of 2019, decided on 24.1.2022.

Income Tax Ordinance, 2001--

----Ss. 114, 115(4), 120, 122(5)A & 169(3)--Furnishing of final tax statement--Deemed assessment order--Tax liability--Powers of commissioner--Exercising of jurisdiction--Challenge to--Question of whether--Commissioner can lawfully invoke Section 122(1) R/W S. 122(5A) of Ordinance, 2001 for purposes of amending assessment order, in context of facts of this case where taxpayer claimed income subject to final tax regime (FTR)--Consolidated order--Assessment made by taxpayer regarding income, subject to final taxation, furnished through statement shall be treated as deemed assessment order under Ordinance--No bar has been placed upon power of Commissioner to proceed to amend deemed assessment order--This exercise of jurisdiction, under Ordinance, 2001, cannot be construed to offend protections and privileges otherwise extended to income--Appellate Tribunal’s decision to deny jurisdiction, otherwise conferred on Commissioner under Section 122 of Ordinance with respect to ascertainment of character of income, is illegal and contrary to mandate of provisions under reference--Appellate Tribunal erred in law while holding that proceedings under Section 122(5A) of Ordinance, 2001 cannot be initiated against taxpayer, which furnished assessment by way of statement under Section 115(4) of Ordinance, 2001--Reference allowed. [Pp. 67, 68 & 69] A, B, C, D & E

Mr. Liaquat Ali Ch., Advocate for Applicant-department.

Mr. Muhammad Aamer Nawaz Bhatti, Advocate for Respondent.

Date of hearing: 24.1.2022.

Order

This Reference Application and ITR No. 34207/2019 are directed against single consolidated order of 29.01.2019, by Appellate Tribunal Inland Revenue, Lahore Bench, Lahore (“Appellate Tribunal”), relating to Tax years 2014 and 2015. Commonly, three questions of law are proposed, claimed to have arisen out of order under reference, however, following question is pressed for determination, which reads as:-

“Whether on the facts and circumstances of the case, the learned Appellate Tribunal Inland Revenue was justified in holding that proceedings under Section 122(5A) cannot be initiated against taxpayer who has filed only statement of final taxation u/s 115(4) because no assessment in that case is in the field?”

1. Learned counsel for applicant department submits that Appellate Tribunal erred in law while holding that Section 122(5A) of the Income Tax Ordinance, 2001 (‘Ordinance, 2001’) was not attracted in the absence of tax return furnished under Section 114 of the Ordinance, when taxpayer had simply submitted statement of final tax in terms of Section 115(4) of the Ordinance, 2001. Submits that statement filed under Section 115(4), declaring tax due in terms of assessment furnished under sub-section (3) of Section 169 of the Ordinance is classified and treated as deemed assessment order under Section 120 of the Ordinance, which assessment order could by subjected to revision/amendment by invoking jurisdiction extended in terms of Section 122 of the Ordinance, 2001, be it under sub-section (5) or (5A) of Section 122 ibid.

2. Conversely, learned counsel appearing for taxpayer submits that Appellate Tribunal made no error of law while construing relevant provisions of the Ordinance, 2001 and taxpayer stood discharged of any tax liability with respect to the income declared under Final Tax Regime, in terms of sub-section (2) of Section 169 of the Ordinance, 2001.

3. There is no controversy to the extent that in terms of sub-section (3) of Section 169 of the Ordinance, 2001, the taxpayer’s, with respect to such income as subjected to final taxation under the Ordinance, 2001, is not required to furnish a return of income under Section 114 of the Ordinance, 2001 but, in the alternative, shall furnish statement of final tax in terms of Section 115(4) of the Ordinance, 2001, declaring tax due. The assessment made by the taxpayer regarding income, subject to final taxation, furnished through the statement shall be treated as deemed assessment order under Section 120 of the Ordinance, 2001. The learned counsels do not dispute this position.

4. The heart of the controversy is whether Commissioner can lawfully invoke Section 122(1) read with Section 122(5A) of the Ordinance, 2001 for the purposes of amending the assessment order, in the context of facts of this case where taxpayer claimed income subject to final tax regime (FTR). It is expedient to examine Section 122(1) of the Ordinance, 2001, which reads as:

“Subject to this section, the Commissioner may amend an assessment order treated as issued under Section 120 or issued under Section 121 or issued under Section 122C, by making such alterations or additions as the Commissioner considers necessary”

[Emphasis supplied].

1. Section 122(1) of the Ordinance, 2001 makes no distinction between deemed assessment order(s), either with respect to the return of income furnished under Section 114 or statement of final tax submitted under Section 115(4) – both through the legal fiat, are deemed assessment orders under Section 120 of the Ordinance. Appellate Tribunal committed error of law while confusing factum of final discharge regarding tax liability, covered under FTR, with the authority of the Commissioner to review the deemed assessment order – in the instant case powers under Section 122(5A) were invoked and exercised. No bar has been placed upon the power of the Commissioner to proceed to amend deemed assessment order, be it a return of income tax filed under Section 114 or a statement under Section 115(4) of the Ordinance, 2001. Learned Appellate Tribunal failed to appreciate and contextualize the facts of the case at hand, where deemed assessment order – in lieu of statement of final tax – was examined and component of the income, classifiable under normal tax regime (NTR), was identified and tax liability determined accordingly, which was confronted to the taxpayer -which exercise of jurisdiction implies that component of normal tax was erroneously treated as part of the FTR. Commissioner is competent and eligible to examine, consider and review the deemed assessment order and to determine the real character/status of the income and classify its identity, either falling under the FTR or NTR. It is pertinent to mention that deemed assessment order, based on statement of income furnished under Section 115(4) of the Ordinance, can be altered/amended by the Commissioner under Section 122 of the Ordinance, 2001. This exercise

of jurisdiction, under Section 122 of the Ordinance, 2001, cannot be construed to offend the protections and privileges otherwise extended to the income, subject to final tax under the provisions of the Ordinance, 2001. Appellate Tribunal’s decision to deny jurisdiction, otherwise conferred on the Commissioner under Section 122 of the Ordinance with respect to ascertainment of the identity/character of the income, is illegal and contrary to the mandate of the provisions under reference.

1. In view of aforesaid, the question proposed is answered in negative. Appellate Tribunal erred in law while holding that proceedings under Section 122(5A) of the Ordinance, 2001 cannot be initiated against taxpayer, which furnished assessment by way of statement under Section 115(4) of the Ordinance, 2001. This Reference Application of the department is allowed, order passed by the Appellate Tribunal is set-aside and matter is remanded to the Appellate Tribunal for decision afresh on the appeal filed by the taxpayer, which shall be deemed pending, after hearing the parties.

2. Office shall send a copy of this order, under seal of the Court, to learned Appellate Tribunal, in terms of sub-section (5) of Section 133 of the Ordinance, 2001.

(Y.A.) Reference allowed

PLJ 2023 Lahore 69 [Multan Bench, Multan]

Present: Ahmad Nadeem Arshad, J.

AKHTAR ALI--Petitioner

versus

POST MASTER GENERAL--Respondent

W.P. No. 2738 of 2018, decided on 23.6.2022.

Constitution of Pakistan, 1973--

----Art. 199--Conviction and sentence--Imprisonment for life--Petitioner was retired army person--Withholding of pension--Application for releasing of pension was dismissed--Condition for grant of pension--Entitlement for pension--Question of--Whether petitioner would be entitled to get pensionary benefits or not--In order to qualify for pension, pensioner has to maintain his good conduct which is an implied condition for grant of pension--When Postmaster becomes aware of any case in which a pensioner is sentenced to imprisonment, he should forthwith suspend pension and report this fact to Controller Military Accounts (Pension)--Petitioner would be entitled with regard to restoration of his pension only if his criminal appeal is succeeded and as a consequence of which, he is acquitted of charge by Court--Petitioner is not acquitted from charge rather he was simply released on bail by this Court while suspending his sentence--He is not entitled to get pensionary benefits till acceptance of his appeal--Petition dismissed. [Pp. 71, 75 & 76] A, D, E & F

General Conditions Governing Pension (CSR 35)--

----R. 2307--Powers of Government to withdrawal of pension--There are two conditions provided under Rule 2307 of General Conditions Governing Pension (C.S.R. 351) which empowered Government to withhold or withdraw pension or any part of it, where pensioner is convicted in a serious crime or be guilty of a grave misconduct.

[Pp. 71 & 72] B

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

----S. 176-A--Stoppage of pension--If a pensioner is sentenced to imprisonment for a criminal offence, his pension shall be stopped from date of his imprisonment and case shall be reported to pay Disbursing Authority. [P. 74] C

Mr. Qasim Ali, Advocate for Petitioner.

Khan Ehtisham-ul-Haq Khan, Assistant Attorney General along with Muhammad Akbar, Deputy Senior Postmaster, Layyah for Respondent.

Date of hearing: 23.6.2022.

Judgment

Petitioner is aggrieved from the action of respondent whereby his pension was stopped on account of awarding him sentence to ‘Imprisonment for life’ as T’azeer’ by the learned Additional Sessions Judge, Karor, District Layyah vide judgment dated 01.09.2016 in murder case vide FIR No. 370 dated 15.09.2013 registered under Section 302/34, PPC. He was also held liable to pay Rs. 200,000/- as compensation to the legal heirs of deceased in terms of Section 544-A, Cr.P.C. and in default of payment thereof to undergo further simple imprisonment for six months. Benefit of Section 382-B, Cr.P.C. was however, extended to the petitioner/convict. In the instant writ petition his prayer was--

“…..that this petition may kindly be accepted and respondent may kindly be summoned in person and directed to do in accordance with law as in envisaged in constitution, and immediately release the petitioner’s pension.”

1. Inessential details apart, petitioner being retired army personnel served Pakistan Armed Forces till 2008 in the capacity as Subdedar. After retirement, he started receiving pension with effect from 01.11.2011. Unfortunately, on earning sentence for imprisonment for life from the Court of Sessions, as mentioned above, his pensionary benefits were withheld by the respondent authority. Record reveals that petitioner challenged his sentence and conviction by filing an appeal before this Court vide Criminal Appeal No. 712 of 2016. During the pendency of appeal, petitioner/convict moved application under Section 426, Cr.P.C. for suspension of his sentence and release on bail till the final decision of the above said criminal appeal. This Court vide order dated 17.05.2019 suspended the sentence of the petitioner/convict and directed him to release on bail subject to furnishing bail bonds in the sum of Rs. 200,000/- with one surety in the like amount to satisfaction of Deputy Registrar (Judicial) of this Court.

2. After release on bail petitioner/convict moved an application to the respondent to release his pension, however, the same was dismissed by the respondent in terms of Section 25 of the Hand Book of Instructions dealing with payment of Military Pension through Post Offices and Rule 40(1) & (5) of Pension Regulations Volume-II (Army 1986) vide order dated 19.05.2017. Feeling aggrieved by that order petitioner/convict filed the instant writ petition.

3. Learned counsel for the petitioner argued that respondent has wrongly withheld pension of the petitioner as he was booked in a false and frivolous case; further adds that sentence of the petitioner has been suspended by this Court and petitioner has been set at liberty, hence there is no justification for stoppage of his pension and prayed that the same be released while allowing this writ petition.

4. On the other hand, learned Assistant Attorney General for Pakistan has vehemently opposed this petition and prayed for its dismissal.

5. It is settled law that a Government servant, who retires from service qualifying for retirement benefits, pension being a material part of it, does not get the same as bounty of the State but as a right acquired after earning satisfied record of service. However, in order to qualify for pension, the pensioner has to maintain his good conduct which is an implied condition for grant of pension. The grant of pension cannot be refused arbitrarily and if refused, it has to be in accordance with the relevant Rules. There are two conditions provided under Rule 2307 of General Conditions Governing Pension (C.S.R. 351) which empowered the Government to withhold or withdraw the pension or any part of it, where the pensioner is convicted in a serious crime or be guilty of a grave misconduct. For facility of reference, the relevant portion of the Rule is reproduced as under:

“2307. Right to withhold or withdraw pension.--Future good conduct is an implied condition of every grant of pension. The Governor General reserves to himself the right of withholding or withdrawing a pension or any part of it, if the pensioner be convicted for serious crime or be guilty of grave misconduct.

The decision of the Governor General on any question of withholding or withdrawing the whole or any part of a pension under this Rule shall be final and conclusive.”

1. In Pension Regulations Volume II (Army 1986) the Federal Government in exercise of the powers conferred by Section 176-A of the Pakistan Army Act, 1952 (XXXIX of 1952) introduced following amendments after Chapter V, with regard to reduction or forfeiture of pensions if a military pensioner is convicted in a serious crime by Court of law and guilty of grave misconduct in the following terms:-

“ CHAPTER VI-REDUCTION OR FORFEITURE OF PENSION

1. Reduction or forfeiture of Pension of military pensioner who is convicted of a serious crime or is guilty of misconduct:-

a. Crime or misconduct not of a political nature. If a military pensioner is convicted of a serious crime by Court of law or is guilty of grave misconduct, which is not of a political nature the following procedure shall be followed:-

(1) If a pensioner is sentenced to imprisonment for a criminal offence, his pension shall be suspended from the date of his imprisonment and the case shall be reported at once by the pay disbursing office to Audit Office. The later shall take up the case for the orders of the sanctioning authority.

(2) In case where a pensioner is kept in police or jail custody as an under-trial prisoner and is eventually sentenced to a term of imprisonment for criminal offence, the suspension of pension shall take effect from the date of imprisonment only.

(3) The sanctioning authority, shall decide the case in consultation with the Audit Officer, and if necessary, with the civil authorities also, whether the offence is a serious one and if so, he shall order the removal of the pensioners name from the pension list, from the date of the commencement of his imprisonment Pension.

(4) If the sanctioning authority decides that the offence is not so serious as to justify the removal of the pensioner’s name from the pension list, it shall not be removed; the payment of arrears of pension due from date of last payment before imprisonment shall be made on release from prison.

(5) If pensioner is sentenced to imprisonment for criminal offence by a lower Court but is acquitted, on appeal, by a higher Court, the pension withheld shall be restored.

(6) If a pensioner is imprisoned for debt, pension shall continue to be paid.

(7) If a pensioner is guilty of grave misconduct not falling under the preceding clauses, it shall at once be reported to the sanctioning authority which may, if it considers it justifiable, order, he suspension of his pension from a date to be specified. The sanctioning authority shall subsequently investigate the case in consultation with the Audit Office and the civil authorities, if necessary, and may withhold, reduce or continue the pension in full from a date to be specified by it not earlier than the date of original suspension.

b. Crime or misconduct of a political nature. If a pensioner is convicted of a crime or is guilty of misconduct, of a political nature his case shall forthwith be reported by the Audit Office to the sanctioning authority, which on the administration concerned, may order the forfeiture of his pension (service and disability pension, family pension drawn by adult males only, and children’s allowance) from a date to be specified. In a case in which the pensioner is sentenced to imprisonment, pension shall pending the order of the sanctioning authority, be suspended from the date of his imprisonment.”

Such amendment also provides a procedure for restoration of pension forfeited under the preceding rule, which reads as under:-

“41. Restoration of pension forfeited under the preceding Rule.

A pension reduced, withheld or forfeited under rule 40 or 21 A and 78 of Volume-I of these regulations, may be restored in full or in part by the sanctioning authority in consultation with the local Government or administration concerned in political cases and with Controller of Military Pension and the civil authorities, if necessary, in other cases. In the case of a pensioner undergoing imprisonment any action under this rule shall only be taken on his application after release, but, in no case, shall pension be sanctioned for the period of imprisonment in jail for a serious crime.”

1. Perusal of said provisions it appears that if a pensioner is sentenced to imprisonment for a criminal offence, his pension shall be stopped from the date of his imprisonment and the case shall be reported to the pay Disbursing Authority. The latter shall take up the case for orders of sanctioning authority. In case where a pensioner is kept in police or jail custody as an under-trial prisoner and is eventually sentenced, the suspension of pension shall take effect from the date of conviction. If a pensioner is sentenced to imprisonment by a lower Court but is acquitted on appeal by a higher Court, the pension withheld shall be restored forthwith. However, in case a pensioner undergoing imprisonment in any criminal case his pension shall be sanctioned for the period of imprisonment in jail till the final decision of case either it may be ended on his conviction or acquittal. Moreover, for suspension of a pension or release/restoration of a pension, the sanctioning authority shall decide the case in consultation with the Audit Officer, Controller of Military Pension and the civil authorities, if necessary.

2. Rule 25 of Hand Book of instructions regarding payment of military pension through Post Offices provides that future good conduct shall be an implied condition of every grant of pensions or allowances, which reads as under:-

“25. Reduction or forfeiture of pensions.---Future good conduct shall be an implied condition of every grant of pension or allowance. Should the Postmaster become aware of any case in which a pensioner is sentenced to imprisonment, he should forthwith suspend the payment of his pension and report the fact to the C. M. A. (P.) Lahore Cantt. for keeping a note in his records. On release of the pensioner from imprisonment, the Postmaster will obtain an application from the pensioner for restoration of pension and submit it to the C. M. A. (P.) Lahore Cantt., with a report on P.A.F.A. 401 together with the following documents:-

(1) A copy of judgment of the Court by which the pensioner was tried and convicted and if an appeal was made, a copy also of the judgment of the appellate Court.

(2) A memo, showing the dates from and to which the pensioner was actually in prison to be obtained from the Superintendent of the Jail from which the prisoner was released.

(3) A list giving particulars of previous convictions if any, against the pensioner to be obtained from the Deputy Commissioner or Collector of the District.

(4) A memo, showing the character on discharge from service, length of service and the date from which pensioned as well as the regimental Number of the pensioner as shown in the Descriptive Roll.

(5) A memo, showing the date of arrest and the period the pensioner was under Police custody as an under trial prisoner prior to the date of conviction.”

1. Admittedly, petitioner was convicted/sentenced to ‘Imprisonment for life’ in a criminal case, as detailed in para-1 of this judgment. The pension regulations contemplated that if a pensioner is convicted/sentenced his pension is to be forthwith stopped/withheld. Now the question arises if sentence of the pensioner was suspended and released on bail during pendency of his criminal appeal whether he would be entitled to get pensionary benefits or not? The answer of this question is contained under Rule 25 of Hand Book of instructions as discussed supra which provides that when the Postmaster becomes aware of any case in which a pensioner/convict is sentenced to imprisonment, he should forthwith suspend the pension and report this fact to the Controller Military Accounts (Pension) Lahore Cantt. Similarly on release/acquittal of the pensioner from imprisonment, the Postmaster will obtain an application from the pensioner for restoration of pension and submit to the Controller Military Accounts (Pension), Lahore Cantt along with required documents. The Controller Military Accounts (Pension) will further take up the matter for release of pension with Sanctioning Authority.

2. In the case in hand, petitioner’s pension was stopped due to sentence awarded by the learned competent Court of law whereby he was convicted/sentenced to Imprisonment for life in a murder case. From perusal of above quoted provision of law, it appears that

petitioner would be entitled with regard to restoration of his pension only if his criminal appeal is succeeded and as a consequence of which, he is acquitted of the charge by the Court. In this case petitioner is not acquitted from the charge rather he was simply released on bail by this Court while suspending his sentence whereas his Criminal Appeal No. 712 of 2016 against conviction and sentence vide judgment dated 01.09.2016 is still pending before this Court. Even otherwise murder is a serious crime which act itself circumvents good conduct of the petitioner as envisaged under Rule 25 of Hand Book of Instructions. Therefore, he is not entitled to get pensionary benefits till the acceptance of his appeal, as mentioned above.

1. Keeping in view the peculiar facts and circumstances of the case, I am of the considered view that respondent was justified to withhold the pension of the petitioner. Learned counsel for the petitioner failed to point out any illegality or irregularity on the part of respondent. Resultantly, this writ petition has no force, the same is accordingly dismissed. No order as to costs.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 76

Present: Safdar Saleem Shahid, J.

SURIYA NAFEES--Petitioner

versus

MUHAMMAD RAMZAN SHAHID etc.--Respondents

W.P. No. 9545 of 2016, heard on 18.1.2022.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 7(2)--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of personal belongings--Dismissal of suit and appeal--Jurisdiction-- Maintainability--Question of whether a suit filed by lady regarding personal belongings or personal property which have been allegedly purchased by her after marriage while residing with her husband comes within jurisdiction of Family Court--Family Court Act, 1964, clearly empowers Family Court to hear such suits but those are also subject to prove--On this legal point, both Courts below have erred in law and committed illegality--Petitioner cannot be ousted on point of jurisdiction by Family Court (concerned)--Both Courts below have not rightly passed impugned order and judgment--Petition accepted. [P. 79] A

M/s. Khalil Ahmad Maan, Rana Naveed Khalil and Ch. Saif Ullah Khata Advocates for Petitioner.

Proceeded against ex-parte for Respondent No. 1 vide order dated 31.5.2018.

Date of hearing: 18.1.2022.

Judgment

Through instant petition, petitioner has called in question the legality of order dated 09.01.2014 passed by learned Judge Family Court and judgment dated 18.02.20216 passed by learned Additional District Judge, whereby claim of the petitioner for recovery of personal belongings valuing Rs. 21,19,000/- was dismissed.

1. Brief facts necessary for decision of instant writ petition are that Suriya Nafees petitioner was married with Respondent No. 1 in consideration of 10-tolas gold as dower but no issue was born out of this wedlock. Petitioner was serving as Nurse and she after her marriage purchased one kanal land and constructed Maternity Home over it along with necessary equipment/articles valuing Rs. 21,19,000/-. Thereafter, the petitioner was ousted from her aforesaid property and the same is in possession of Respondent No. 2. The petitioner filed a suit for recovery of her personal belongings before Judge Family Court (concerned) which was contested by Respondent No. 1 by filing written statement and raising many factual objections. After hearing the parties, learned Judge Family Court dismissed the aforesaid suit vide order dated 09.01.2014 by holding that the suit is not family suit in nature and same is not maintainable in its present form. Feeling aggrieved, petitioner preferred an appeal before learned Addl: District Judge which was also dismissed by the said Court vide judgment dated 18.02.2016. Hence, this writ petition.

2. Learned counsel for the petitioner contended that impugned order and judgment have been passed by both the Courts below while ignoring the relevant law and facts of the case, therefore, same are not sustainable in the eyes of law; claim of the petitioner needs to be proved after recording of evidence of the parties but suit of the petitioner has illegally been dismissed by the learned Judge Family Court being not maintainable; as per amended Schedule of Family Courts Act, 1964, suit for recovery of personal property and belongings of a wife falls within the category of family suit which is maintainable before Judge Family Court (concerned).

3. Notice was issued to Respondent No. 1 but no one has turned up on his behalf despite service effected upon him, therefore, he was proceeded against ex-parte vide order dated 31.05.2018.

4. Arguments heard. Record perused.

5. It has been noticed that claim of the petitioner is that she was serving as Nurse and after her marriage she purchased one kanal land and constructed Maternity Home over it along with necessary equipment/articles valuing Rs. 21,19,000/- which was in possession of Respondent No. 1. The question before this Court is that whether Family Court has jurisdiction to entertain the suit where contention of the lady is that these articles/belongings were purchased by the lady herself after the marriage which were in possession of the husband at the time of separation between the parties. Section 5 of the Family Court Act, 1964, says that the following matters fall within the jurisdiction of Family Court:-

6. Dissolution of marriage [including Khula].

7. Dower.

8. Maintenance.

9. Restitution of conjugal rights.

10. Custody of children [and the visitation rights of parents to meet them]

11. Guardianship.

12. Jactitation of marriage.

13. Dowry.

14. Personal property and belongings of a wife.

Rule 6 of the Act ibid deals with the jurisdiction of the Court to try the suit under the Act. Learned Judge Family Court straight away refused to entertain the suit with the observation that the subject matter of the instant suit is not mentioned in the Family Court Act, 1964, as the property alleged to have been purchased or made after the marriage and most of the articles mentioned in the list are relating to the health center. The order passed by learned Judge Family Court when assailed before learned Addl: District Judge, he maintained the same by mentioning some different reasons that in the earlier suits filed by the petitioner and her mother mostly the same articles were mentioned in the list and said suits have already been decided by the competent Courts. This was particularly not the question before the 1st appellate Court because in-fact said learned Court was bound to decide the matter regarding jurisdiction of the Family Court (concerned) to the effect that whether a suit filed by the lady regarding personal belongings or personal property which have been allegedly purchased by her after marriage while residing with her husband comes

within the jurisdiction of the Family Court or not. As per Schedule mentioned above, the Family Court Act, 1964, clearly empowers the Family Court to hear such suits but those are also subject to prove. On this legal point, both the Courts below have erred in law and committed illegality. Primarily petitioner cannot be ousted on the point of jurisdiction by the Family Court (concerned). Both the Courts below have not rightly passed the impugned order and judgment.

1. In view of what has been discussed above, instant writ petition is accepted, impugned order and judgment passed by both the Courts below are set aside and the case is remanded to the learned District Judge, Faisalabad, for its entrustment to the Court of competent jurisdiction for trial afresh. However, as this writ petition was filed in the year 2016 whereas the matter in hand pertains to the year 2012, therefore, learned Judge Family Court seized with the matter shall decide the same expeditiously.

(Y.A.) Petition accepted

PLJ 2023 Lahore 79

Present: Muhammad Sajid Mehmood Sethi, J.

MUHAMMAD TARIQ--Petitioner

versus

CONTROLLER GENERAL OF ACCOUNTS, ISLAMABAD and 3 others--Respondents

W.P. No. 66323 of 2020, heard on 6.6.2022.

Constitution of Pakistan, 1973--

----Art. 199--Contractual appointment after death of petitioner’s father--Assistance package for families of deceased who died during service--Appointment as a Junior Auditor--Change in requisite qualification--Direction to--Joining as Naib-Qasid instead of regularization of service--Retrospective effect--Petitioner was appointed as Junior Auditor as back as in year 2013 and refusal to regularize and continue his services at this belated stage on ground of change of requisite qualification, in pursuance of revised policy introduced does not appeal to prudence--Regularization of services does not create a new job, it only removes lurking fear of sudden severance of services of an employee and would make his employment status equal to his contemporaries appointed on regular basis on same day--Right accrued to a person cannot be taken away on strength of a subsequent notification and any notification which purports to impair an existing or vested right, always applies prospectively in absence of any legal sanction--It is well-settled that effect of a notification taking away certain rights would start from date of its issuance and only beneficial notification can operate retrospectively--Extraordinary constitutional jurisdiction of this Court is always exercised with compassion and this Court cannot disregard fact that non-regularization and discontinuation of petitioner’s services are acts violative of right to livelihood--Petition allowed. [Pp. 82] A, B, C & D

2012 PLC (CS) 602, 2018 SCMR 1792, 2018 PLC (CS) 152 and 2003 SCMR 291 ref.

M/s. Muhammad Iqbal Mohal and Kamran Bashir Mughal, Advocates for Petitioner.

Mr. Aftab Rahim, Deputy Attorney General and Barrister Ameer Abbas Ali Khan, Assistant Advocate General for Respondents.

M/s. Mazhar Khurshid, Accounts Officer and Hafiz Ayaz Ahmad, Assistant Accounts Officer.

Date of hearing: 6.6.2022.

Judgment

Through instant petition, petitioner has challenged the vires of order dated 11.12.2020, passed by Respondent No. 3/Accounts Officer (Admn.), Lahore, whereby petitioner’s services as Junior Auditor (BPS-11) were not regularized on account of not having minimum prescribed qualification of 2nd Class Bachelor Degree in Commerce, rather he was offered the post of Naib Qasid (BPS-01) on contract basis. Petitioner has sought following relief from this Court:-

“In view of the facts and submissions made above, it is, therefore, most respectfully prayed that while accepting the instant writ petition, the impugned order dated 11.12.2020, passed by Respondent No. 3 whereby the petitioner is being demoted from the post of Junior Auditor (BS-11) to Naib Qasid (BPS-01) and impugned policy whereby the qualification for the post of Junior Auditor has been enhanced from C-Grade Diploma in Commerce to 2nd Class Bachelor Degree in Commerce may kindly be set aside to the extent of petitioner and petitioner may kindly be allowed to perform his duty as Junior Auditor (BPS-11) in the light of first appointment order dated 19.06.2013 and recruitment policy for the year 2006 in the interest of justice, equity and fair play.

It is further prayed that the petitioner may kindly be regularized from the date of his initial appointment as Junior Auditor i.e. 19.06.2013.”

1. Learned counsel for petitioner submits that petitioner, being eligible in all respects, was appointed as Junior Auditor (BS-11) on 19.06.2013 by the respondent-department while observing all the codal formalities, therefore, he could not have been chunked from the service with direction to join as Naib Qasid (BS-01) on the pretext of revision in eligibility criteria. He adds that impugned order is absolutely illegal and without any legal justification being violative of Articles 4 & 9 of the Constitution of the Islamic Republic of Pakistan, 1973. He contends that impugned revised policy/notification must be given prospective effect and petitioner’s vested right cannot be taken away by dint of subsequent notification while giving it retrospective effect. In support, he has referred to Mst. Farhana Naz and others v. Government of Punjab and others [2014 PLC (C.S.) 1270], Mir Hassan v. Province of Sindh through Secretary and 3 others [2017 PLC (C.S.) 864] and Malik Muhammad Hashim Awan and another v. Chief Secretary Government of Punjab, Lahore and 3 others [2017 PLC (C.S.) 1085].

2. On the other hand, learned Law Officer defends the impugned order.

3. Arguments heard. Available record perused.

4. Perusal of record shows that after death of petitioner’s father on 29.04.2013, while serving as Divisional Accounts Officer (BS-17), he applied for appointment under the Prime Minister’s Assistance Package for the families of government employees who die in service. Under the scheme, petitioner was entitled to be offered appointment on regular basis as per his eligibility. However, he was appointed on contract basis as Junior Auditor (BS-11) vide office order dated 19.06.2013, which was kept on extending upto 09.06.2022, thus, contractual employment of petitioner is expanding over a period of almost 09-years creating expectancy of regularization of his services. However, petitioner was encountered with an unexpected anomaly, whereby the competent authority, instead of regularization, discontinued his services as Junior Auditor (BS-11), on the basis of subsequent change in qualification and experience criteria. Respondent-authority erred in law to appreciate that regularization is not the de novo appointment on regular basis of a contract employee subject to possession of newly stipulated/added educational qualification rather it is in fact confirmation of an existing employment. The prescribed qualification for the purpose of regularization of services of a contract employee should be that which was prevalent at the time of his appointment. There is no denial to the fact that petitioner was appointed as Junior Auditor as back as in the year 2013 and refusal to regularize and continue his services at this belated stage on the ground of change of requisite qualification, in pursuance of revised policy/rules introduced in the year 2014, does not appeal to prudence. The regularization of services does not create a new job, it only removes the lurking fear of sudden severance of services of an employee and would make his employment status equal to his contemporaries appointed on regular basis on the same day. Reliance is placed upon Aftab Ahmad and others v. Government of Punjab and others [2012 PLC (C.S.) 602] and Dr. Kh. Khurshid Ahmad v. Government of Punjab and others [2014 PLC (C.S.) 1068].

5. Needless to say that right accrued to a person cannot be taken away on the strength of a subsequent notification/policy and any notification which purports to impair an existing or vested right, always applies prospectively in absence of any legal sanction. It is well-settled that effect of a notification/policy taking away certain rights would start from the date of its issuance and only beneficial notification can operate retrospectively. Reference is made to Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong (PLD 1970 SC 439), Jawaria Maqsood v. Joint Admission Committee for Medical Colleges through Chairman and 3 others (2017 YLR 1571), Al-Noor Sugar Mills Limited and another v. Federation of Pakistan and others (2018 SCMR 1792), Malik Muhammad Hashim Awan and another v. Chief Secretary Government of Punjab, Lahore and 3 others [2017 PLC (C.S.) 1085], Mst. Ameeran Mai v. I.-G. Punjab Police, Lahore and 2 others [2015 PLC (C.S.) 289], Province of Punjab through Secretary to the Government v. Dr. Muhammad Zafar Iqbal and 10 others [2018 PLC (C.S.) 152] and Kanwal Rasheed v. Accountant General, Punjab and others [2019 PLC (C.S.) 783].

6. The extraordinary constitutional jurisdiction of this Court is always exercised with compassion and this Court cannot disregard the fact that non-regularization and discontinuation of petitioner’s services are the acts violative of right to livelihood. Reliance is placed upon Naveeda Tufail and 72 others v. Government of Punjab and others (2003 SCMR 291) and the case of Mst.Farhana Naz supra.

In Naveeda Tufail’s case supra, the Hon’ble Apex Court, while discussing right of livelihood, has ruled as under:-

“Employment for a common person is a source of livelihood and a right of livelihood is an undeniable right to a person. If work is sole source of livelihood of a person, then right to work is not less than a fundamental right which has to be given protection.”

1. In view of the above discussion, instant petition is allowed to the extent that impugned order is declared to be illegal and without lawful authority, thus, same is set aside.

(Y.A.) Petition allowed

PLJ 2023 Lahore 83

Present: Shahid Bilal Hassan, J.

AFZAAL AHMAD BUTTAR and another--Petitioners

versus

MUHAMMAD YOUSAF--Respondent

C.R. No. 520 of 2022, decided on 11.1.2022.

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

----S. 12--Guardian and Wards Act, 1890, S. 29--Suit for specific performance--Dismissal of suit--Concurrent findings--Agreement to sell--Suit property was owned by minor--Mother of minor was appointed as guardian--Sale agreement without prior approval of Guardian Court--Challenge to--Mother of minor did not obtain any permission of Court concerned, because she was not allowed to alienate, transfer, gift or mortgage property owned by minor--Mother of minor was not competent to enter into any agreement to sell with regards to disputed property--Alleged agreement to sell executed by mother of minor in favour of present petitioners is void and petitioners cannot seek its performance with aid of Court by filing civil suit--Courts below while construing law on subject and appreciating evidence on record have reached to a just conclusion and have rightly non-suited petitioners; concurrent findings recorded on facts, when do not suffer from any misreading and non-reading of evidence--Civil revision dismissed.

[Pp. 84, 85 & 86] A, B, C & D

2008 SCMR 1031, 2014 SCMR 1469, 2014 SCMR 161 and 2017 SCMR 679 ref.

Mr. Khalid Pervaiz Warraich, Advocate for Petitioners.

Date of hearing: 11.1.2022.

Order

Tersely, the petitioners instituted a suit for specific performance against the respondent/minor (Muhammad Yousaf) through his real mother Azra Tehsin, on the basis of an agreement to sell dated 05.12.2003, with respect to the suit property measuring 49-Kanals 09-Marlas falling in Khewat No. 388, situated in Mauza Ferozwala, detailed in Paragraph No. 1 of the plaint. It was maintained by the petitioners that suit property was owned by respondent/minor; that mother of the respondent namely Mst. Azra Tehsin was appointed guardian by Guardian Court at Gujranwala vide order dated 24.05.2003; that mother/guardian of the respondent entered into an agreement to sell dated 05.12.2003 germane to the suit property for a consideration of Rs. 20,00,000/-, out of which Rs. 15,00,000/- were paid in presence of the marginal witnesses and possession of the suit property was delivered to the petitioners; that as per terms, the mother/guardian of the minor/respondent within 15-days of issuance of guardian certificate was bound to execute registered sale deed in favour of the petitioners after receiving the remaining sale consideration Rs. 500,000/- but later on she procrastinated and ultimately refused; hence, the suit. The respondent/defendant was proceeded against ex-parte on 26.03.2007 after observing all legal and codal formalities for procuring attendance.

Ex-parte evidence of the petitioners, oral as well as documentary, was recorded and thereafter the learned trial Court vide impugned judgment and decree dated 28.02.2018 dismissed suit of the petitioners for specific performance, however, entitled the petitioners to recover Rs. 15,00,000/- from the respondent/defendant. The petitioners being aggrieved of the same preferred an appeal but remained unsuccessful vide impugned judgment and decree dated 01.11.2021; hence, the instant revision petition under Section 115 of the Code of Civil Procedure, 1908.

1. Heard.

2. There is no denial to the fact that the suit property is owned by minor and the same remained situation at the time of alleged agreement to sell (Ex.P1) dated 05.12.2003, which was entered into between the petitioners and the mother of the minor who was admittedly appointed as guardian of the minor on 24.05.2003 and guardianship certificate (Ex.P3) was issued in her favour on 17.07.2003. However, before entering into any such transaction with the petitioners, the mother of the minor did not obtain any permission of the Court concerned, because she was not allowed to alienate, transfer, gift or mortgage the property owned by the minor, rather an impediment was put on such right of the guardian towards the property of the minor as is evident from the guardianship certificate (Ex.P3). When the position was as such the mother of the minor was not competent to enter into any agreement to sell with regards to the disputed property, owned by the minor, because Section 29 of the Guardian and Wards Act, 1890 puts a clog in the manner:-

‘29. Limitation of powers of guardian of property appointed or declared by the Court. Where a person other than a Collector or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court.

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or

(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be minor.’

Thus, as stated above, the alleged agreement to sell (Ex.P1) was entered into by mother of the minor without seeking prior permission of the Court concerned, therefore, the same is void ab initio, which does not create any legal rights or liabilities in favour of the petitioners/vendees and the same cannot be enforced against the minor/respondent. In such scenario, this Court observes that the alleged agreement to sell (Ex.P1) executed by mother of the minor in favour of the present petitioners is void and the petitioners cannot seek its performance with the aid of the Court by filing civil suit. In Muhammad Ali through L.Rs. and another v. Manzoor Ahmed (2008 SCMR 1031), the Apex Court of the country, while referring the ratio, rendered in case of Chairman, District Screening Committee, Lahore, has held:

‘In the case of the Chairman, District Screening Committee, Lahore v. Sharif Ahmad Hashmi PLD 1976 SC 258 it was laid down that an agreement by person under a legal disability e.g. a minor was void ab inito and was incapable of rectification or confirmation. Law forbids such a transaction even if the minors were to ratify after attaining the age of majority. Therefore, the suit of the respondent against the petitioners for specific

performance of the alleged agreement of transfer of 5 Killas of land could not be decreed. Needless to observe that Sultan, the Petitioner No. 2, was not even a party to the alleged agreement. The impugned judgment is not sustainable at law.’

1. In view of the above, it can safely be observed that the learned Courts below while construing law on the subject and appreciating evidence on record have reached to a just conclusion and have rightly non-suited the petitioners; therefore, the concurrent findings recorded on facts, when do not suffer from any misreading and non-reading of evidence, howsoever erroneous, cannot be interfered with in exercise of revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. Reliance is placed on Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161) and Muhammad Farid Khan v. Muhammad Ibrahim, etc. (2017 SCMR 679).

2. In view of the above, the learned Courts below have rightly exercised vested jurisdiction and have not committed any illegality and irregularity while passing the impugned judgments and decrees, warranting interference by this Court in exercise of revisional jurisdiction. Resultantly, while placing reliance on the judgments supra, the civil revision in hand, having no force and substance, stands dismissed, in limine.

(Y.A.) Civil revision dismissed

PLJ 2023 Lahore 86

Present: Tariq Saleem Sheikh, J.

SALMA KARAMAT--Petitioner

versus

DISTRICT EDUCATION OFFICER (M-EE), NAROWAL, etc.--Respondents

W.P. No. 20794 of 2021, heard on 13.5.2022.

Constitution of Pakistan, 1973--

----Art. 199--Contractual appointment--Refusal for regularization--Termination of contract--Third division--Violation of fundamental right--Eligibility criteria--Petitioner did not fulfil eligibility criterion but it is also a fact that she neither played fraud nor made any misrepresentation while applying for job--District Recruitment Committee scrutinized record, called her for interview and finally recommended her appointment--Respondent are now estopped from claiming that her recruitment was illegal--If there is any deviation from Recruitment Policy, it will not impact Petitioner though officers responsible would be liable to disciplinary action--She acquired requisite qualification within period stipulated in her Letter of Appointment--There was no occasion for Respondent No. 1 to terminate her contract--Petition accepted.

[P. 90] C, D & E

2013 PLC (CS) 295, 2016 PLC (CS) 190, 2015 PLC (CS) 953 ref.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--A contractual employee has no right to invoke constitutional jurisdiction of High Court but present case has another limb. [P. 88] A

Constitution of Pakistan, 1973--

----Arts. 9 & 18--Violation of constitution--Candidates having any third division in their academic career are not eligible to apply for a particular post--Such condition is not only unreasonable but also harsh and irrational and violative of Articles 9 & 18 of Constitution.

[P. 88] B

2019 PLC (CS) 699 ref.

M/s. Hafiz Tariq Naseem, Muhammad Iqbal Mohal, Advocates for Petitioner.

Mr. Mukhtar Ahmad Ranjha, Assistant Advocate General, with Khalid Mahmood Ahmad, AD (Law) for Respondents.

Date of hearing: 13.5.2022.

Judgment

The Petitioner was recruited as Elementary School Educator (ESE : Science-Math) at Jalilpur, Tehsil Zafarwal, on contract for a period of five years (extendable for further five years subject to good performance) under the Recruitment Policy, 2014. She joined her duty on 24.8.2015. In the year 2020 Respondent No. 1 referred her case to the Scrutiny Committee for regularization under the provisions of the Punjab Regularization of Service Act, 2018. During the course of its proceedings the said Committee found that the Petitioner did not have the prescribed academic qualifications at the time of her appointment. Consequent thereupon it refused to recommend her regularization and Respondent No. 1 terminated her contractvide Order No. 825 dated 9.7.2020. The Petitioner filed an appeal before Respondent No. 2 which was dismissed vide Order dated 8.3.2021. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”), she lays challenge to Orders dated 9.7.2020 and 8.3.2021 and the Scrutiny Committee’s refusal.

1. The counsel for the Petitioner contends that the Petitioner was B.Sc. (Math A-Course and Math B-Course) in third division. She applied for the post of ESE (Science-Math) in due course and qualified the NTS with 55/100 marks. The District Recruitment Committee, Narowal, headed by the District Coordination Officer scrutinized her record and interviewed her and on its recommendations she was appointed on merit. She did not play foul at any point of time and has served the Government for five long years honestly and efficiently. During this period she also got the B.Ed and M.Sc. (Physics) degrees. The counsel argues that the Respondents cannot be permitted to take an objection at this stage that Petitioner did not fulfil the academic qualification prescribed by the Recruitment Policy, 2014 which required that the ESE (Science-Math) should be a graduate in second division at least.

2. The Assistant Advocate General contends that this petition is not maintainable inasmuch as the Petitioner was a contractual employee and is governed by the principle of master and servant. She has no right to seek reinstatement even in the event of arbitrary dismissal. Her remedy, if any, is a suit for damages before the Civil Court. On merits he submits that Respondent No. 1 has dismissed her from service on a valid charge after due process so no exception can be taken thereto.

Determination

1. The Assistant Advocate General’s objection relating to maintainability of this petition deserves a short shrift. It is true that a contractual employee has no right to invoke the constitutional jurisdiction of the High Court[1] but the present case has another limb. The Petitioner has been declined regularization in terms of the Punjab Regularization of Service Act, 2018, which gives her an independent cause of action. This Court is competent to examine whether this has been rightly done.

2. The Courts in our country strongly disapprove the condition in the Recruitment Policy which stipulates that the candidates having any third division in their academic career are not eligible to apply for a particular post. In Muhammad Rafique and others v. Secretary Schools, Government of Punjab, Lahore and others [2019 PLC (CS) 699] this Court ruled that such condition is not only unreasonable but also harsh and irrational and violative of Articles 9 & 18 of the Constitution. The Government of the Punjab challenged this judgment through ICA Nos. 246371/2018 and 246373/2018 which were dismissed by a learned Division Bench of this Court vide consolidated order dated 20.11.2018.[2] Relevant excerpt is reproduced below:

“On the face of it this clause[3] appears to be harsh, unreasonable and violative of the fundamental rights of citizens as it not only prohibits the applicants possessing 3rd division in his/her entire academic career to apply for a job in the Education Department despite having 2nd or even 1st division in subsequent academic career but also it is against the fundamental rights as guaranteed under Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973. Even otherwise, the above condition has not been prescribed by any law, rather it has been prescribed through a policy formulated by the administrative department which is not permissible under the Constitution. It has rightly been observed by the learned Judge in Chambers that restricting an applicant having 3rd division in his/her entire academic career to apply for a post in the Education Department means that it is presumed that a candidate who has secured 3rd division once in his/her lifetime can never improve his/her educational career in future. It is very ironical that on the one hand the Education Department allows the candidates having 3rd division to get admission in their institutions for further education but on the other hand the same department is denying them to apply for the jobs in their own department. Learned counsel for the appellant has failed to cite any law disentitling a person who obtains 3rd division that he/she cannot apply for the job.

“The clause impugned in writ petition is denial of right of livelihood and to compete for job in government department which is a vested right for persons and this right cannot be denied by framing such policy.”

1. In ICA Nos. 246371/2018 and 246373/2018, supra, the learned Division Bench also considered the question as to whether the above holding amounts to interference in policy matters and ruled that the Court could lawfully intervene if the policy violated the fundamental rights guaranteed by the Constitution or was otherwise in conflict with any provision of law.

2. The above-mentioned views were reaffirmed by another Division Bench of this Court in ICA No. 246372/2018 (titled: “Government of the Punjab v. Mst. Razia Sultana and others”) decided on 17.4.2019.[4]

3. The Recruitment Policy, 2014 provided that the candidate for the post of ESE (Science-Math) should have at least second division in B.Ed./M.S.Ed./M.Ed./M.A. (Edu). Admittedly, the Petitioner did not fulfil the eligibility criterion but it is also a fact that she neither played fraud nor made any misrepresentation while applying for the aforesaid job. The District Recruitment Committee (headed by the District Coordination Officer, Narowal) scrutinized the record, called her for interview and finally recommended her appointment. Interestingly, Letter of Appointment dated 25.5.2015 issued to her contained complete detail of her academic record, including the marks she obtained in B.Sc.

4. The Petitioner’s Letter of Appointment expressly stated that the selected candidates who did not possess the requisite qualification must acquire it within three years from GCET otherwise their contract would be terminated. This constitutes an acknowledgment on the part of the Respondents that she was being hired despite her ineligibility-- albeit subject to certain condition. They are now estopped from claiming that her recruitment was illegal. If there is any deviation from the Recruitment Policy, 2014, it will not impact the Petitioner though the officers responsible therefor would be liable to disciplinary action. Reliance is placed on Muhammad Zahid and 29 others v. Azad Government of the State of Jammu and Kashmir and 6 others [2013 PLC (CS) 295]; Abdul Jabbar and 180 others v. Secretary, Health Department, Government of Balochistan and others [2015 PLC (CS) 953]; and Muhammad Ghazi v. Additional Secretary Health, Punjab, Lahore and others [2016 PLC (CS) 190].

5. The Petitioner has submitted documents which reflect that in the year 2015-2016 she did B.Ed. securing 845/1250 marks (First Division) and in 2017-2019 passed M.Sc. (Physics) with 707/1200 marks and GPA 2.7 (B-Grade). Thus, she acquired the requisite qualification within the period stipulated in her Letter of Appointment. In the circumstances, there was no occasion for Respondent No. 1 to terminate her contract.

6. The Petitioner has a right to be considered for regularization in terms of the Punjab Regularization of Service Act, 2018. There is no impediment thereto. Accordingly, Respondent No. 1 is directed to place her case before the Scrutiny Committee forthwith which shall formulate its recommendations in the light of this judgment. Respondent No. 1 shall then take further steps in accordance with law.

7. This petition stands accepted with the above directions.

(Y.A.) Petition accepted

[1]. See: Aurangzeb v. Messrs Gool Bano Dr. Burjor Ankalseria and others (2001 SCMR 909); Federation of Pakistan, Chamber of Commerce and Industry, Karachi v. Ali Ahmed Qureshi (2001 SCMR 1733); and Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others (PLD 2011 SC 132).

[2]. Unreported case.

[3]. Clause 4(a)(iii) of the Recruitment Policy 2017-18 reads as under:

“(iii) Applicant having any 3rd division in his/her entire career will not be eligible to apply against the posts advertised under the policy, ibid.”

[4]. Unreported case.

PLJ 2023 Lahore 91 [Multan Bench, Multan]

Present: Abid Hussain Chattha, J.

MUHAMMAD FAHEEM ZAFAR--Petitioner

versus

GOVERNMENT OF THE PUNJAB and 3 others--Respondents

W. P. No. 17603 of 2021, heard on 18.1.2022.

Punjab Civil Servants Act, 1974 (VIII of 1974)--

----S. 12--Punjab Civil Services Pension Rules, 1963, Rr. 3.5 & 5.2--Voluntary retirement--Issuance of retirement order prior to commencement of amended Section--With holding of pension--Application of amendment on case of petitioner--Retrospective effect--Retirement order was lawfully sanctioned and issued by competent authority--Principle of locus poenitentiae--Question of whether pension is payable with respect to retirement order lawfully issue by competent authority prior to date of commencement of amended Section 12 of Act which order is to take effect after availing of LPR on a date after commencement of amended Section 12 of Act--A statute or a provision thereof does not apply retrospectively unless it is expressly stipulated in statute itself--Clarification Notification issued by Finance Department, Government of Punjab has no lawful basis for reason that administrative officials are not vested with any constitutional or legal authority to interpret, extend, curtail, modify, add or subtract a provision of law--The principle of locus poenitentiae is fully attracted in this case as accrued right vested with Petitioner on 19.08.2020, date of his retirement order, which was lawfully passed on said date by competent authority in accordance with prevailing law. [Pp. 98, 100, 101 & 102] B, C, D, F & G

2021 PLC (CS) 560, 2020 PLC (C)S 1378, 2019 PLC (CS) 893 ref.

Punjab Civil Services Pension Rules, 1963--

----R. 5.2--Responsibility for completion of pension papers--Responsibility for initiation and completion of pension papers is that of Head of Department in case of Government servants holding posts in BPS-16 and above and of Head of Office concerned in case of Government servants in BPS-1 to 15. [P. 96] A

Voluntary retirement--

----Voluntary retirement is a right conferred by law--The right to retiring pension is not a bounty but an earned right of a civil servant which is sacrosanct, recognized and enforceable forthwith in accordance with applicable law and rules. [P. 101] E

Mr. Tariq Mahmood Dogar, Advocate for Petitioner.

Mr. Khush Bakht Khan, Asstt. Advocate General, Punjab along with Muhammad Kamran Ashraf, Assistant Accounts Officer, Lodhran for State.

Date of hearing: 18.1.2022.

Judgment

This Judgment shall decide the titled and connected Writ Petition No. 17602 of 2021 since identical questions of law and facts are involved.

1. The brief facts of the titled Petition are that the Petitioner was appointed as CDC Supervisor vide order dated 24.05.1993 who applied for his voluntary retirement from service and was ultimately retired in BPS-12 vide retirement order dated 19.08.2020 w.e.f. 31.08.2021 after the expiry of leave preparatory to retirement (the “LPR”) issued by Respondent No. 2, Chief Executive Officer, District Health Authority, Lodhran as competent authority. Respondent No. 4 vide letter dated 04.09.2021 forwarded the pension case to Respondent No. 3 for further processing. However, Respondent No. 3 vide impugned order dated 20.10.2021 returned the case of the Petitioner on the ground that since the Petitioner retired after completing 28 years of service and after attaining the age of 47 years, the retirement order is unlawful being in violation of Section 12 of the Punjab Civil Servants Act, 1974 (the “Act”) as amended through the Punjab Civil Servants (Amendment) Ordinance, 2001 published in the Punjab Gazette vide Notification No. 13-20/2002(P-1) dated 03.05.2021 and later approved by the Provincial Assembly of the Punjab as notified vide Notification No. PAP/Legis-2(119)/2021/2669 dated 29.10.2021 (hereinafter referred to as the “Amended Section 12”). The Amended Section 12 mandates that voluntarily retirement is permissible on completion of 25 years of service or on attaining fifty five years of age, whichever is later.

2. Learned counsel for the Petitioner contended that the Amended Section 12 of the Act did not apply to the case of the Petitioner as his retirement order dated 19.08.2020 was issued prior to the date of commencement of the Amended Section 12 of the Act on 03.05.2021. As such, the Amended Section 12 of the Act could not have been applied with retrospective effect. He claimed that the retirement order lawfully passed by the competent authority cannot be recalled. He emphasized that LPR is an earned right and date of retirement is to be reckoned from the date of retirement order which merely takes effect on a future date due to the sanctioned period of LPR. He asserted that withholding of pension is against the fundamental right of the Petitioner and in blatant disregard to the law propounded by the Superior Courts of Pakistan. As such, the pension case of the Petitioner ought to be decided on the basis of prevailing law on the date of his retirement order. Reliance was placed on cases tilted, “Manzoor Ali and 39 others v. United Bank Limited through President” (2005 SCMR 1785); “Government of Khyber Pakhtunkhwa through Secretary Public Health Engineering, Peshawar and others v. Abdul Manan and others” (2021 SCMR 1871); “Mst. Sarwar Jan and others v. Mukhtar Ahmad and others” (PLD 2012 SC 217); “The Province of Punjab through Secretary Finance Department, Government of the Punjab, Lahore and others v. Kanwal Rashid and others” (2021 SCMR 730); and “Muhammad Ijaz v. Government of the Punjab through Director General Fisheries, Punjab, Lahore and 3 others” (2021 PLC (C.S.) 1154).

3. Conversely, Learned Law Officer relying upon the para-wise comments submitted by Respondent No. 3 defended the impugned order. He submitted that the Finance Department, Government of the Punjab has issued clarification letter dated 03.01.2022 in response to the question raised in this Petition regarding retirement order of civil servants in the light of Amended Section 12 of the Act. The Finance Department has opined that all retirement orders issued before the date of coming into force of Amended Section 12 of the Act, in derogation to the mandatory conditions of voluntary retirement stipulated therein, with the date of retirement following the date of commencement of Amended Section 12 of the Act due to availing of LPR are unlawful and as such, cannot be given effect. In order to cure the illegality, it has been recommended that such officers/officials shall have to rejoin their Administrative Department in the light of Section 20 of the Punjab General Clauses Act, 1956 (the “Act of 1956”). The intervening period shall be treated as leave of kind due. The provisions of the Act are to be read in conjunction with each other and cannot be taken in isolation. Hence, qualifying service of 25 years or attaining 55 years of age, whichever is later, is prerequisite for voluntary retirement. It was further clarified that withdrawal of retirement orders issued under Rule 3.5 (Note-1) of the Punjab Civil Services Pension Rules, 1963 (the “Rules of 1963”) by the competent authority in normal conditions require relaxation of the Rules of 1963 by the competent authority i.e. the Chief Minister, Punjab in terms of Para 1(b) of Finance Department’s Letter bearing No. FD.SR.III-4-151/2011 dated 29.02.2012. However, since the retirement orders are in violation of the Amended Section 12 of the Act, therefore, the same will be processed in the light of Section 20 of the Act of 1956 which provides that an Authority who passes an order is empowered to add to, amend, vary or rescind that order. It is not a principle of law that an order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal, perpetual rights cannot be gained on the basis of that illegal order. Based on the aforesaid interpretation of the Finance Department, the pension case of the Petitioner has been returned to the competent authority who may recall the retirement order under Section 20 of the Act of 1956.

4. Considering the above pro and contra contentions of the parties, the precise question posed for determination by this Court is as to whether pension is payable with respect to retirement order lawfully issued by the competent authority prior to the date of commencement of Amended Section 12 of the Act which order is to take effect after availing of LPR on a date after the commencement of Amended Section 12 of the Act.

5. Before examining the proposition of law involved in this case, it would be beneficial to analyze and examine the relevant provisions of applicable law in the instant case. Section 12 of the Act before the amendment dated 03.05.2021 read as follows:-

“12. Retirement from service.--(1) Civil servant shall retire from service-

i) on such date after he has completed twenty years of service qualifying for pension or other retirement benefits as the competent authority may, in public interest direct; or

ii) where no direction is given under clause (i), on the completion of the sixtieth year of his age.

(2) No direction under clause (i) of sub-section (1) shall be made until the civil servant has been informed in writing of the grounds on which it is proposed to make the direction and has been given a reasonable opportunity of showing cause against the said direction.

Explanation--In this section, “competent authority” means the appointing authority prescribed in Rule 6 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974.”

After the amendment dated 03.05.2021, the Amended Section 12 of the Act reads as follows:-

“12. Retirement from service--(1) Civil Servant shall retire from service--

(i) on such date after he has completed twenty years of service qualifying for pension or other retirement benefits as the competent authority may, in public interest, direct; or

(ii) where no direction is given under clause (i):

(a) on completion of the sixtieth year of his age; or

(b) voluntarily, on completion of twenty five years of service or on attaining fifty five years of age, whichever is later.

(2) No direction under clause (i) of sub-section (1) shall be made until the Civil Servant has been informed in writing of the grounds on which it is proposed to make the direction and has been given a reasonable opportunity of showing cause against the said direction.

Explanation.--In this section, “competent authority” means the appointing authority prescribed in Rule 6 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974.”

(Underlining is mine)

Rule 3.5 of the Rules of 1963 relates to retiring pension and is reproduced as follows:-

“3.5. Retiring Pension.--A retiring pension is granted to a Government servant, who not being eligible for superannuation pension-

(i) Opts to retire after 25 years qualifying service or such less time as may for any special class of Government servant be prescribed; or

(i-a) is compulsorily retired, by the competent authority, after 20 years qualifying service;

(ii) is compulsorily retired from service by the authority competent to remove him from service on grounds of inefficiency, misconduct or corruption.

Note: (1) Subject to the provisions of the Essential Services Maintenance Act, all Government servants shall have the right to retire on a retiring pension after completing 25 years qualifying service; provided that a Government servant, who intends to retire before attaining the age of superannuation, shall, at least three months before the date on which he intends to retire, submit a written intimation to the authority which appointed him, indicating the date on which he intends to retire. Such an intimation, once submitted, shall be final; provided that if a Government servant withdraws his application for voluntary retirement, or modifies the date of such retirement, before its acceptance by the competent authority, the application or the date of retirement shall be deemed to have been withdrawn or modified, as the case may be.

Note: (2) The right given under Note (1) shall not be available to a Government servant against whom departmental or judicial proceedings are pending.

Note: (3) A Government servant can ask for retirement only after completion of 25 years qualifying service. A Government servant proceeding on retiring pension shall, unless he has been retired under the Efficiency and Discipline Rules, has the right to avail of such leave preparatory to retirement as may be admissible to him. However, the LPR shall not be allowed to him until he has completed 25 years service qualifying for pension. If a Government servant proceeds on LPR before actually completing 25 years of qualifying service, he may be deemed to have proceeded on retirement with effect from the date he completes 25 years of qualifying service, and the leave enjoyed by him before completing 25 years of service may be treated as leave of the kind due to him.”

(Underlining is mine)

Rule 5.2 of the Rules of 1963 provides that the responsibility for initiation and completion of pension papers is that of the Head of Department/Attached Department concerned in the case of Government servants holding posts in BPS-16 and above and of the Head of Office concerned in the case of Government servants in BPS-1 to 15. The action should be initiated one year before a Government servant is due to retire and pension papers, complete in all respects, should be sent to the Audit Officer six months before the date of retirement, so that pension may be sanctioned a month before the date of his retirement. Proviso (i) of Rule 5.2 of the Rules of 1963 further states that in a case where the date of retirement cannot be foreseen six months in advance, the Government servant may be asked to submit his pension application immediately after the date of his retirement is known. Proviso (ii) of Rule 5.2 of the Rules of 1963 importantly stipulates that a civil servant proceeding on LPR in excess of 6 months may be asked to submit his application at the time of proceeding on such leave. Rule 5.8 of the Rules of 1963 provides that apart from special orders, an ordinary pension is payable from the date on which the pensioner ceases to be in Government service. Rule 16 of the Punjab Revised Leave Rules, 1981 (the “Rules of 1981”) provides that the maximum period for which a civil servant may be granted LPR shall be three hundred and sixty five days. Such leave may be taken, subject to availability, either on full pay or partly on full pay and partly on half pay, or entirely on half pay, at the discretion of the civil servant. Rule 17 of the Rules of 1981 stipulates that if, in case of retirement on superannuation or voluntary retirement on completion of twenty six years qualifying service, a civil servant cannot, for reasons of public service be granted LPR duly applied for insufficient time, he will in lieu thereof, be granted lump sum leave pay for the leave refused to him subject to a maximum of three hundred and sixty five days leave on full pay. Such leave can be refused partly and sanctioned partly but the cash compensation shall be admissible for the actual period of such leave so refused not exceeding three hundred and sixty five days. The payment of leave pay in lieu of such refused LPR may be granted to the civil servant either in lump sum at the time of retirement or may, at his option be drawn by him month-wise for the period of leave so refused. Further, Rule 18 of the Rules of 1981 provides that ordinarily LPR on superannuation shall not be refused. All orders refusing LPR to a civil servant and recalling him from LPR shall be passed only by the Chief Secretary personally for civil servants in Grade 17 and above and by the Secretary of the Administrative Department concerned personally with respect to civil servants of Grade 16 and below.

1. It follows from the analysis of the applicable law cited above that voluntary retirement is regulated under Section 12 of the Act read with Rule 3.5 of the Rules of 1963. The Amended Section 12 of the Act came into force on 03.05.2021 and substituted the initial sole requirement of twenty five years of service qualifying for pension with an additional condition of attaining fifty five years of age, whichever is later. Rule 3.5 of the Rules of 1963 has not been amended so far in line with the Amended Section 12 of the Act. Notwithstanding the same, it is settled proposition of law that provisions of the statute preempt the rules in the event of inconsistency between the two. Hence, there is no ambiguity that a retirement order issued after the date of commencement of the Amended Section 12 of the Act would be subject to its provisions. However, it is equally sacrosanct that a statute or a provision thereof does not apply retrospectively unless it is expressly stipulated in the statute itself. In Manzoor Ali, Abdul Manan and Mst. Sarwar Jan cases (supra), the Honorable Supreme Court of Pakistan has elaborated and reaffirmed that the statute or a provision thereof, forming part of substantive law, if created or extinguished or affected rights of persons, would ordinarily have a prospective effect unless the same was made applicable retrospectively by clear command of law. Similarly, in case titled, “Muhammad Mansha v. Industrial Development Bank of Pakistan and others” (2020 SCMR 1069), the Apex Court held that when the legislator alters the right of action of any party, its enactments, unless in express terms are made applicable to pending actions, do not affect such actions. It is general rule of common law that the statute changing the law ought not to apply, unless the intention appears with reasonable certainty to be understood as applied to facts, to events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined with references to past events. Hence, it can safely be concluded that the Amended Section 12 of the Act shall apply prospectively and would not affect the retirement orders lawfully passed by a competent authority before the date of its commencement.

2. It is also equally well established that the clarification Notification issued by the Finance Department, Government of the Punjab has no lawful basis for the reason that administrative officials are not vested with any constitutional or legal authority to interpret, extend, curtail, modify, add or subtract a provision of law. Interpretation of law is purely and exclusively a judicial function under the scheme of trichotomy of power enshrined in the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) and jurisprudentially entrenched in our legal system through consistent and exhaustive pronouncements of the Apex Court in this regard that need not be reiterated for the sake of brevity. Suffice is to mention that in the case of Kanwal Rashid (supra), it was expressly held by the Honorable Supreme Court of Pakistan that the clarification Notification issued by the Finance Department with regard to family pension is unlawful since the Finance Department has no authority under the law to clarify, interpret, abridge or extend the right of family pension provided under Section 18(2) of the Act and further regulated by the Rules of 1963. Hence, it is established that administrative instructions or notifications which do not even fall in the category of delegated legislation cannot be allowed to apply retrospectively or in derogation of law to take away vested and accrued rights or benefits.

3. The conjunctive examination and discerning of the applicable law before the commencement of Amended Section 12 of the Act reveals that a civil servant was allowed to opt for voluntary retirement on retiring pension as a matter of right under Section 12 of the Act read with Rule 3.5 of the Rules of 1963 subject to the provisions of the Essential Services Maintenance Act after completing twenty five years of qualifying service. The civil servant is required to submit a written intimation in this behalf to the competent authority at least three months before the date on which he intends to retire. As such, the civil servant was conferred with the right to determine his date of retirement. It is unequivocally provided that such an intimation, once submitted, is regarded as final. The right to withdraw or modify the date of retirement is permissible only before acceptance of application of retirement by the competent authority. As such, Rule 3.5 of the Rules of 1963 does not permit to withdraw the retirement order once issued. Neither the competent authority nor the civil servant has any right or power to withdraw or modify the date of retirement after the issuance of final lawful order of retirement by the competent authority. In case titled, “I.G. Punjab, Lahore and others v. Iqbal Mehmood” (2012 SCMR 745), the Apex Court while interpreting Rule 3.5 of the Rules of 1963 held that an employee is not allowed to withdraw his request for retirement if it had been acted upon since the rule mandates that a Government servant is only entitled to withdraw his application for voluntary retirement or modify the date of his retirement before its acceptance by the competent authority. Further reliance is placed on cases titled, “Fazal Haq Shah v. Deputy Commissioner, Lahore etc.” (1980 PLC (C.S.) 637); and “Secretary, Government of Punjab, Food and Co-Operation Department v. Shamoon Bahadur” (PLD 1979 Supreme Court 835).

4. Similarly, a civil servant proceeding on retiring pension barring retirement under the Efficiency and Discipline Rules is also bestowed with the right to avail such LPR as may be admissible to him, provided he has completed 25 years of qualifying service for pension. It is only if a civil servant proceeds on LPR before actually completing 25 years of qualifying service that he may be deemed to have proceeded on retirement with effect from the date he completes 25 years of qualifying service and the leave enjoyed by him before completing 25 years of service is allowed to be treated as leave of the kind due to him. As such, LPR is also an earned right against services rendered. It is only admissible in the manner and to the extent provided by law. In other words, LPR is nothing but a kind of service benefit. It is provided either in the form of leave or cash in lieu of leave if leave is not possible. Hence, if LPR is not admissible to a civil servant, the date of retirement takes effect immediately for the purposes of retiring pension. Conversely, if it is admissible, the retiring pension takes effect after the last date of LPR merely in order to extend the benefit of LPR to the civil servant. As such, the start of pension is postponed to a future date in order to allow the civil servant to reap the earned service benefit by availing the LPR. Only under exceptional circumstances, the LPR can be recalled in terms of Rule 18 of the Rules of 1981 by the designated official therein but power so conferred is limited to the period of LPR. It cannot be employed to revoke the retirement order itself. In case titled, “Shaukat Ali Khan v. Federation of Pakistan through Secretary and 5 others” (2019 PLC (C.S.) 1527), this Court has held that encashment in lieu of LPR is a monitory benefit which the law bestows on a civil servant who prefers to perform duty instead of proceeding on LPR and such fiscal benefit cannot be withheld by the authority without any valid and cogent reason. It was further held that rule of interpretation in the matter of fiscal legislation, statutes, memos, letters and circulars was that the same were required to be interpreted in a manner so as to grant more benefits to the employees vis-à-vis the Government because those were persons who were hard hit by financial worries and problems and cannot be made to suffer for no fault of their own. Reliance was placed therein upon cases titled, “Mst. Riffat Naheed, Lady Medical Technician v. District Health Officer, Bahawalpur and 2 others” (2004 PLC (C.S.) 1081); and “Noor Wali Khan and others v. Federation of Pakistan and another” (2017 PLC (C.S.) 1113).

5. The purpose and object of retirement is that a civil servant ceases to remain civil servant and is no more required to serve after the date of retirement. As such, the date of retirement order is actually the date of retirement as the right to retire and receive pension matures on the said date. It is merely the initiation of pension which is given effect from the last date of LPR. The principle of locus poenitentiae is fully attracted in this case as accrued right vested with the Petitioner on 19.08.2020, the date of his retirement order, which was lawfully passed on the said date by the competent authority in accordance with prevailing law. The principle of locus poenitentiae has been consistently interpreted by the Honorable Supreme Court of Pakistan in a number of pronouncements to mean that locus poenitentiae is a power of receding till a decisive step is taken. It is not a principle of law that an order once passed is irrevocable or is categorized as a past and closed transaction. Rather, if the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. As such, the authority who is empowered to pass an order and take an action is also empowered to set aside, modify and vary such order or action subject to an exception, that is, if by such an order an action has been acted upon, thereby, creating a right in favor of the beneficiary of that order and in such event, such an order or action cannot be set aside or modified so as to deprive the person of the said right to his disadvantage. However, no valid and vested right can be founded upon an illegal order. For reference, see case titled, “Shakeel Ahmad Zaidi and others v. Secretary, Higher Education, Government of Punjab, Lahore and others” (2021 PLC (C.S.) 560). This Court in case titled, “Syed Farooq Ahmad Shah v. Government of the Punjab through Home Secretary Punjab, Lahore and others” (2020 PLC (C.S.) 1378), while allowing the disbursement of full pay and allowances to the son of Shaheed father and relying upon cases titled, “Federation of Pakistan through Secretary Capital Administration and Development Division, Islamabad and others v. Nusrat Tahir and others” (2018 PLC (C.S.) 669); and “Muhammad Saeed and others v. Secretary Finance and others” (2019 PLC (C.S.) 893) held that once a right is created by extending benefit after complying with all codal formalities, the same cannot be destroyed or withdrawn as legal bar would come into play under the principle of locus poenitentiae. Accordingly, it is importantly concluded that in the instant case, since the impugned retirement order was lawfully passed by the competent authority under Section 12 of the Act read with Rule 3.5 of the Rules of 1963 at the relevant time and as the latter specifically prohibited the withdrawal of retirement order once lawfully passed, therefore, the accrued vested right to retire and receive pension was fully protected under the doctrine of locus poenitentiae.

6. Hence, it is manifestly evident from the scheme of law read as a whole that voluntary retirement is a right conferred by law. The right to retiring pension is not a bounty but an earned right of a civil servant which is sacrosanct, recognized and enforceable forthwith in accordance with the applicable law and rules. LPR is also an earned leave recognized in law on account of services rendered by a civil servant. Before the Amended Section 12 of the Act, the Petitioner was permitted to seek voluntary retirement on retiring pension with a caveat of 25 years of qualifying service. He was permitted to avail admissible LPR under the law having more than 25 years of qualifying service for pension. He exercised his right in accordance with the applicable law at the relevant time by following the prescribed procedure and was duly granted retirement along with the benefit of availing of LPR as depicted from the retirement order. As such, he effectively retired on the date of retirement order which preceded the date of Amended Section 12 of the Act. The future date regarding initiation of pension after availing of LPR which was subsequent to the date of commencement of Amended Section 12 of the Act was, therefore, irrelevant for the application of the provisions of Amended Section 12 of the Act as the right to retire and receive pension matured on the date of retirement which preceded the Amended Section 12 of the Act.

7. The upshot of the above discussion is that when the retirement order is lawfully sanctioned and issued by the competent authority, it becomes final and conclusive for all practical purposes subject to the availing of LPR, if admissible. It means that the civil servant stood retired on the date of retirement order which would take effect after the completion of his duly sanctioned LPR. The retirement, as such, becomes final and merely the retiring pension would start from the date mentioned in the retirement order after the availing of LPR. As such, the retirement must be reckoned and given effect from the date of retirement order in accordance with prevailing law on that date. Hence, the Amended Section 12 of the Act does not apply retrospectively to the case of the Petitioner since the retirement order of the Petitioner was issued prior to the date of promulgation of the Amended Section 12 of the Act.

8. Accordingly, the titled as well as the connected Writ Petition is accepted; the impugned Order dated 20.10.2021 is set aside; Respondent No. 4 is directed to resend the pension case of the Petitioner to Respondent No. 3 who is directed to process the same in accordance with law in the light of observations contained herein within a period of thirty (30) days from the date of this Order.

(Y.A.) Petition accepted

PLJ 2023 Lahore 102 [Rawalpindi Bench, Rawalpindi]

Present: Jawad Hassan, J.

Lt. Gen. (Retd.) MAHMUD AHMAD AKHTAR and another--Petitioners

versus

M/s. ALLIED DEVELOPERS (PRIVATE) LIMITED and others--Respondents

C.O. No. 14 of 2009, heard on 25.1.2022.

Companies Ordinance, 1984 (XLVII of 1984)--

----Ss. 7, 76, 152 & 156--Death of Chief Executive of company--Illegal transfer of shares of deceased to respondent No. 3--Petition for rectification of register of shareholders--Power for rectification of register--Entitlement of petitioners--Court is empowered to order for rectification of register and may make such orders as its discretion thinks fit--Shares of deceased have illegal and fraudulently been transferred in favour of Respondent No. 3--Petitioners are entitled to receive same being his legal heirs Pursuant to Form-A i.e. Annual Return of Company filed with SECP in terms of Section 156 deceased had 1400 shares in his name, whereas, his shareholding till that date was not in dispute as is evident from report and parawise comments submitted by SECP--Record is silent about mode of transfer or instrument through which 1400 shares were transferred in accordance with Section 76 of Ordinance requiring a duly stamped transfer deed executed by deceased along with original share stamps--No such transfer deed or any original script of copies have been filed with this petition at any later stage--Requirement of Section 76 of Ordinance has not been complied with, which is mandatory in nature and in absence of such compliance no transfer of shares in law stand effected--Petition allowed.

[Pp. 111, 112, 113 & 114] E, F, G, H & I

Companies Act, 2017 (XIX of 2017)--

----Preamble--Expeditious resolution of corporate disputes--Preamble of Act protects interests of shareholders, creditors, other stakeholders and general public and provides an alternate mechanism for expeditious resolution of corporate disputes.

[P. 105] A

Companies Act, 2017 (XIX of 2017)--

----Ss. 6(7) & 6(11)--Limitation--Company matters have to be decided within a period of 120 days and Court concerned shall fix date and Section 6(7) of Act speaks about allocation of time for hearing case.

[P. 105] B

Companies Ordinance, 1984 (XLVII of 1984)--

----Ss. 7 & 152--Right of application--Literal study of Section 152 read with Section 7 of Ordinance provides a right of an aggrieved person to make an application before High Court for purposes of rectification of register of members or register of debenture holders of a company in a case where name of a person is fraudulently or without sufficient cause was entered in or omitted from said registers. [P. 108] C

Companies Ordinance, 1984 (XLVII of 1984)--

----S. 152--Original jurisdiction--Section 152 of Ordinance has provided a special remedy to resolve disputes erupting between Company and members under Ordinance, High Court being Court of "original jurisdiction" under Ordinance is empowered to entertain application for rectification of register of members. [P. 108] D

2017 CLD 1165, 2016 CLD 393, AIR 1994 Delhi 51 & AIR 1998 SC 3153 ref.

M/s. Malik Qamar Afzal, ASC with Malik Shehryar Afzal, Raja Asjad Iqbal Satti and Malik Sabir Hussain, Advocates for Petitioners.

Malik Ahtesham Saleem, Assistant Attorney General for Respondents.

Respondents No. 1 to 3 ex-parte.

Mr. Adeel Peter, Advocate for Respondent No. 4 (SECP).

Date of hearing: 25.1.2022.

Judgment

“The delay of justice is a denial of justice. Magna Carta will have none of it. “... To no one will we deny or delay right or justice” (Magna Carta: Ch. 40). All through the years men have protested at the law’s delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time (Hamlet, Act 3, Sc. 1). Dickens tells how it exhausts finances, patience, courage, hope (Bleak House, c.1). To put right this wrong, we will in this Court do all in our power to enforce expedition”.

Lord Denning in Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 1 All E.R. 543 (C.A.) at p. 547

This judgment will decide thirteen (13) years old controversy between the parties and their alleged dispute of rectification of register of Allied Developers (Private) Limited (the “Respondent Company”), pending from the year 2009. Succinctly, the Petitioners seek the original jurisdiction of this Court being a Company Judge under Section 152 of the Companies Ordinance, 1984 (the “Ordinance”) for the rectification of register of shareholders of the Respondent Company in connection thereto transfer of 1400 shares in their names.

A. CONTEXT

1. The Petitioners being parents of Late Dr. Khalid Mahmud Akhtar (the “deceased”) brought the matter before this Court under the Company Jurisdiction for rectification of register which had to be decided in a summary manner pending since 24.11.2009. The Court on the first date of hearing noted that the Petitioners being the legal heirs of the deceased are entitled to have 1400 shares transmitted in their favour. The Court in order to protect rights of the Petitioners granted status-quo by observing that he shares of the deceased shall not be transferred to any third party. The case in hand was adjourned from time to time, the Respondents appeared before the Court however, they were proceeded ex-parte. Before passing this judgment, the Court on 20.01.2022 recalled ex-parte order to give them a chance to appear and argue the case. It is to be noted that company matters have to be decided expeditiously under the Ordinance now the Companies Act, 2017 (the “Act”) under which the matter was brought before this Court. The Preamble of the Act protects the interests of shareholders, creditors, other stakeholders and general public and provides an alternate mechanism for expeditious resolution of corporate disputes. However, Section 6(11) of the Act clearly states that the company matters have to be decided within a period of 120 days and the Court concerned shall fix the date and Section 6(7) of the Act speaks about allocation of time for hearing the case and this Court on 20.01.2022 allocated the time for hearing and fixed the date, in order to decide thirteen years old matter.

B. FACTUAL BACKGROUND

1. It all started in year 1993 when the deceased became Chief Executive and majority shareholder of the Respondent Company. Initially, the Respondent Company was engaged in development of real estate business and subsequently it went on to launch real estate development projects and for this purpose, the deceased joined hands with Dr. Shafiq-ur-Rehman/ Respondent No. 2 and Dr. Waqar Aftab, as Co-Directors with 35% shareholding in the name of deceased while 32.5% shareholding between the Respondent No. 2 and Dr. Waqar Aftab. Due to multifarious litigation with regard to area namely “Saleem Hayat Land” situated at Mauza Kotha Kalan, Rawalpindi and to resolve the said issue, an agreement was signed between the parties to the effect that the deceased resigned as Chief Executive and paid Rs.90,000,000/-to the Respondent No. 2 and Rs.70,00,000/-to Dr. Waqar Aftab. Thereafter, the deceased was brutally murdered on 21.07.2007 and that time he was holding 1400 shares of the Respondent Company. As per version of the Petitioners, they approached the SECP for transfer of shares where they fell in knowledge about illegal transfer of 1400 shares in favour of the Respondent No. 3. Hence this petition.

C. ARGUMENTS OF THE PETITIONERS

1. Malik Qamar Afzal, ASC inter-alia contended that the deceased was the Chief Executive and shareholder of the Respondent Company who breathed his last on 21.07.2007 and at that time, he was holding 1400 shares; that the Petitioners, being legal heirs, are entitled to receive aforesaid shares which the Respondents have illegally transferred in the name of the Respondent No. 3 as is evident from annual return filed by the Respondent No. 2 for the year 2007-08; that the said transfer of shares is violation of Section 76 of the Ordinance; that name of the deceased was shown as member/ shareholder in the year 2006 holding 1400 shares, however, unauthorized transfer of shares has been brought by the Respondents for the following years.

D. ARGUMENTS OF THE RESPONDENTS-SECP

1. Mr. Adeel Peter, learned counsel for SECP submitted report and parwaise comments and submitted that as per Form-A submitted by the Respondents for the year 2006, 1400 shares remained intact in favour of the deceased but as per Form-A made up to 31.10.2007 filed on 25.03.2009, the name of deceased was replaced with Rabia Shafiq in list of shareholdings. He further stated that till 31.10.2007 neither any transfer of share was reported by the deceased nor any transfer deed has been filed in this regard.

2. I have respectively taken into consideration arguments advanced by learned counsel for the parties and perused the record.

E. DETERMINATION OF THE COURT

1. It is noted that the Respondents No. 1 to 3 were proceeded ex-parte in terms of order dated 21.10.2019 and the said Respondents filed C.M. No. 03 of 2021 for recalling of ex-parte order. However, the Court, without touching the merits, allowed that application in order to avoid further delay in the matter vide order dated 20.01.2022 but even then, the Respondents No. 1 to 3 have not turned up therefore, they are proceeded ex-parte.

2. In view of the arguments of the parties, the question that boils down for determination before this Court is that:

“Whether the Petitioners should have approached the Civil Court or they have rightly resorted to the jurisdiction of the High Court under Section 152 of the Ordinance for rectification of register of the Respondent Company”?

1. Before deciding this point of determination, it is expedient here to reproduce Sections 7 and 152 of the Ordinance for ready reference:

“7. Jurisdiction of the Court.--(1) The Court having jurisdiction under this Ordinance shall be the High Court having jurisdiction in the place at which the registered office of the company is situate:

Provided that the Federal Government may, by notification in the official Gazette and subject to such restrictions and conditions as it thinks fit, empower any civil Court to exercise all or any of the jurisdiction by this Ordinance conferred upon the Court, and in that case such Court shall, as regards the jurisdiction so conferred, be the Court in respect of companies having their registered office within the territorial jurisdiction of such Court.

(2) For the purposes of jurisdiction to wind up companies, the expression "registered office" means the place which has longest been the registered office of the company during the six months immediately preceding the presentation of the petition for winding up.

(3) Nothing in this section shall invalidate a proceeding by reason of its being taken in a Court other than the High Court or a Court empowered under sub-section (1).”

“152. Power of Court to rectify register. –

(1) If,--

(a) the name of any person is fraudulently or without sufficient cause entered in or omitted from the register of members or register of debenture-holders of a company; or

(b) default is made or unnecessary delay takes place in entering on the register of members or register of debenture-holders the fact of the person having become or ceased to be a member or debenture holder;

theperson aggrieved, or any member of debenture-holder of the company, or the company, may apply to the Court for rectification of the register.

(2) The Court may either refuse the application or may order rectification of the register on payment by the company of any damages sustained by any party aggrieved, and may make such order as to costs as it in its discretion thinks fit.

(3) On any application under sub-section (1) the Court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or debenture-holders or alleged members or debenture-holders, or between members or alleged members, or debenture-holders or alleged debenture-holders, on the one hand and the company on the other hand; and generally may decide any question which it is necessary or expedient to decide for rectification of the register.”

F. PATHOLOGY OF SECTION 152

1. Literal study of Section 152 read with Section 7 of the Ordinance provides a right of an aggrieved person to make an application before the High Court for the purposes of rectification of register of members or register of debenture holders of a company in a case where name of a person is fraudulently or without sufficient cause was entered in or omitted from said registers. On such application, the High Court is also empowered to decide any question relating to the title of any person who is party to the application to have his name entered in or omitted from the registers and generally may decide any question which is necessary or expedient to decide for rectification of the registers. Accordingly, the High Court has power to either refuse the application or order rectification of registers on payment of any damages to be paid by the company to the aggrieved person and may make order as to the costs in its discretion.

2. On the other hand, Section 9 of the Ordinance has provided procedure to dispose of all matter agitated before the High Court. So far as taking the cognizance of the matter is concerned, it is provided in the Ordinance that an application shall be preferred before the High Court by the aggrieved person or any member of the Company for "rectification" of the register. Though Section 152 of the Ordinance gives wide power to the High Court to rectify the register of members, yet the jurisdiction of the High Court is summary in nature, as emerges in section 9(3) of the Ordinance, which reads as under:

"In the exercise of its jurisdiction as aforesaid, the Court shall, in all matters before it, follow the summary procedure."

1. A careful examination of Section 9 of the Ordinance would show that the intention of the legislature is to introduce new provision in the Ordinance to provide a very expeditious and summary procedure. By virtue of Section 152 of the Ordinance, the Court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or debenture-holders or alleged members or debenture-holders, or between members or alleged members, or debenture-holders or alleged debenture-holders, on the one hand and the company on the other hand; and generally may decide any question which it is necessary or expedient to decide for rectification of the register. Since Section 152 of the Ordinance has provided a special remedy to resolve disputes erupting between the Company and the members under the said Ordinance, the High Court being the Court of "original jurisdiction" under the Ordinance is empowered to entertain the application for correction/ rectification of the register of members.

G. JURISPRUDENCE DEVELOPED UNDER SECTION 152

1. It has been held by the Division Bench of this Court in the case of “Mehran Ginning Industries and 2 others versus Sajid Shafique and 12 others” (2017 CLD 1165 Lahore) that jurisdiction exercised by the High Court under the Ordinance is original jurisdiction, in the sense that the petitions or applications under the various provisions of the Ordinance were entertainable by the High Court as the Court of first instance. Similarly, the honorable Supreme Court has clarified this question in the case of “Mian Javed Amir and others versus United Foam Industries (Pvt.) Ltd., Lahore and others” (2016 CLD 393 Supreme Court) and has held as follows:

“17. …. Since the Ordinance was promulgated with an intent to amend the law relating to companies and certain other associations for the purpose of healthy growth of the corporate enterprises, protection of investors and creditors, promotion of investment and development of economy and matters arising out of or connected therewith, therefore, all matters relating to companies irrespective of the fact whether factual controversy involved or not are required to be tried by a Court having jurisdiction is under the Ordinance of 1984. Mere insertion of the term "summary procedure" does not debar the Company Judge from receiving evidence in cases where factual controversy is involved. The Court having jurisdiction under this Ordinance can receive evidence in cases it thinks appropriate in the circumstances of the case.

1. In order to carry out the purposes of the above Section and the Ordinance itself and to determine the factual controversy between the parties, a Court having jurisdiction under the Ordinance has ample power to record evidence in cases it deems fit. The object of Section 152 of the Ordinance, which relates to factual controversy, cannot be achieved without entering into in-depth investigation and recording of evidence. Therefore, we hold that there is no legal bar for a Company Court to enter into factual inquiry, framing of issues for determination and recording of oral as well as documentary evidence in coming to the just conclusion of the case.

…..

21. The dictionary meaning of the term "Summary Proceedings" referred to in Section 9 of the Ordinance of 1984, is "to be disposed promptly in simple manner out of regular course of the common law". This term by itself does not impose any restriction on the forum from recording evidence to reach a final conclusion. Section 9 of the Ordinance of 1984 does not exclude the jurisdiction of the Court to decide the controversial facts.

1. We, for the aforesaid reasons, are of the considered view that a Court having jurisdiction under the Ordinance of 1984 can record oral as well as documentary evidence in any dispute brought before it for adjudication and the learned Division Bench of the High Court fell in error in holding that the Civil Court would be the appropriate forum for resolving the controversy between the parties.”

2. The question of jurisdiction of rectification of name in the Register of Members has also been dealt with by a Full Bench of Delhi High Court in the case of “Messrs Ammonia Supplies Corporation Private Ltd. versus Messrs Modern Plastic Containers (Pvt.) Ltd. (AIR 1994 Delhi 51) wherein it was observed that the jurisdiction of the Court is discretionary and summary in nature. The Delhi High Court in that case took into consideration different views rendered by the Indian High Courts. The judgment of the Delhi High Court was challenged before the Supreme Court of India in the case of “Messrs Ammonia Supplies Corporation Ltd. versus Messrs Modern Plastic Containers Ltd .” (AIR 1998 SC 3153) and the Court keeping in view its powers to rectify Register of Member of the Company under Section 38 of the Indian Companies Act, 1913, observed that "rectification of Register of Member, jurisdiction of the Company Court is summary in nature and Civil Court's jurisdiction is impliedly barred."

3. In view of above, it is unequivocal that Section 38 of the Indian Companies Act, 1913 dealing with powers of the Court to rectify the Register corresponds with Section 152 of the Ordinance. To elaborate further, this Section empowers the Court to decide any question relating to "rectification" of the Register including the law. There can be no doubt that any question raised within the peripheral field of rectification, it is the High Court under Section 152 alone which has the exclusive jurisdiction. A plain reading of the word "rectification" itself connotes some error, which has crept in requiring correction. Error would only mean everything as required under the law has been done yet by some mistake the name is either omitted or wrongly recorded in register of the Company. Reference may be made to "Lahore Race Club versus Raja Khushbakht-ur-Rehman" (PLD 2008 Supreme Court 707).

4. The Honorable Supreme Court in “M. Imam-ud-Din Janjua versus The Thal Development Authority” (PLD 1972 Supreme Court 123) candidly observed that “it can be seen that an aggrieved person may apply to the Court for the rectification of the Register of Members if the conditions mentioned in section 152 are fulfilled.” Therefore, the Petitioner must satisfy the Court with following two pre-requisites before claiming relief under the said provision:

i. The name of any person is fraudulently or without sufficient cause entered in or omitted from the register of members or register of debenture-holders of a Company.

ii. The default is made or unnecessary delay takes place in entering on the register of members or registers of debenture-holders the fact of the person having become or ceased to be a member or debenture holder.

1. In “Muhammad Hussain versus Dawood Flour Mill” (2003 CLD 1429) a Division Bench of the High Court of Sindh observed that if the name of any person is fraudulently or without "sufficient cause" entered in or omitted from the Register of Members, the aggrieved person can apply to the Court for rectification of Register and the Court after enquiring into the matter may order rectification of Register if it is satisfied that the aggrieved person is entitled to such relief.

H. CONCLUSION

1. In view of language used under Section 152 of the Ordinance and jurisprudence developed thereto, the Court is empowered to order for rectification of register and may make such orders as its discretion thinks fit. From the perusal of report filed by the SECP and the contents made by the Petitioners makes it clear that the shares of the deceased have illegal and fraudulently been transferred in favour of the Respondent No. 3 because the whole case of the Petitioners is that the deceased, at the time of his death, was holder of 1400 shares in the Respondent Company which they have illegally and fraudulently transferred in favour of the Respondent No. 3 and thus the Petitioners are entitled to receive the same being his legal heirs. It transpired from the record that the Respondent Company was incorporated on 29.11.1988 with an authorized capital at the time of its incorporation was Rs.4,000,000/-divided into 40,000 shares of Rs.100/-each. As per Memorandum of Association, the Respondent Company was engaged in development of real estate business which and afterwards went on to launch real estate development projects. It was notified by the Respondent Company to SECP regarding particulars of management, shares and shareholding position which reads as follows:-

| | | | | --- | --- | --- | | Sr.# | Name of Director | Number of Shares | | 1 | Syed Zil Ali Shah Naqvi | 1000 | | 2 | Syed Mahmood Hussain Gardezi | 1000 | | 3 | Mohammad Ali Shah | 1000 | | 4 | Tariq Rasheed | 1000 | | TOTAL | | 4000 |

1. As per From-29 dated 19.03.1991, the deceased was co-opted as Director on 12.03.1991 in place of Syed Mahmood Hussain Gardezi. As per Form-A made upto 31.12.1991, the said person transferred his 800 shares to the deceased while remaining 200 shares were transferred to Syed Zil Ali Shah Naqvi. As per Form-29 dated 19.04.1992, a change in management was notified by notifying resignations of Syed Zil Ali Shah Naqvi, Mohammad Ali Shah and Mr. Tariq Rasheed on 07.04.1992 and appointment of Mr. Shafiq-ur-Rehman and Dr. Waqar A Malik as Directors of the Company while the deceased was also appointed and notified as Chief Executive on the aforesaid date. In year 1993, Form-A filed by the Respondent Company up to 31.12.1991 reflected transfer of shares by Syed Zil Ali Shah and shareholding position of the deceased holding 1400 becomes as under:

| | | | | | | --- | --- | --- | --- | --- | | Sr.# | Name of Transferor | Name of Transferee | Name of Shares Transferred | Date of Transfer | | 1 | Syed Zil Ali Shah | Dr. Waqar A. Malik | 300 | 07.04.1992 | | 2 | Syed Zil Ali Shah | Shafiq-ur-Rehman | 300 | 07.04.1992 | | 3 | Syed Zil Ali Shah | Dr.KhalidMahmood (deceased) | 600 | 07.04.1992 | | 4 | Syed Zil Ali Shah | Shafiq-ur-Rehman | 1000 | 07.04.1992 | | 5 | Tariq Rasheed | Dr. Waqar A. Malik | 1000 | 07.04.1992 |

1. As per Form-A made upto 30.12.1993, the Respondent Company notified the following shareholders with their shareholding position which is as under:

| | | | | --- | --- | --- | | Sr.# | Name of Director | Number of Shares | | 1 | Mr. Khalid Mehmood Akhtar (deceased) | 1400 | | 2 | Mr. Shafiq-ur-Rehman | 1300 | | 3 | Mr. Waqar A Malik | 1300 | | Total | | 4000 |

1. As to the facts of this Petition it may be noted that it is not in dispute that pursuant to Form-A i.e. the Annual Return of the Company filed with SECP in terms of Section 156 ibid on 31.10.2007, the deceased had 1400 shares in his name, whereas, his shareholding till that date was not in dispute as is evident from the report and parawise comments submitted by the SECP.

2. It is agitated by the Petitioners that the Respondents No. 1 to 3 have transferred 1400 shares without complying with requirement of Section 76 of the Ordinance. It is evident that 1400 shares vested in the name of the deceased, as evident from Form-A filed by the Company up to 31.10.2007. Further, the deceased, during his life time, has neither transferred 1400 shares to any person nor share transfer deeds, in this respect, were filed by the Respondents No. 1 to 3 before the SECP in violation of the requirement of Section 76 of the Ordinance. Therefore, the deceased’s title with regard to 1400 shares is quite clear and well established from the report of SECP. Moreover, the record is silent about the mode of transfer or instrument through which 1400 shares were transferred in accordance with Section 76 of the Ordinance requiring a duly stamped transfer deed executed by the deceased along with the original share stamps. No such transfer deed or any original script of copies thereof have been filed with this petition at any later stage. It is clear and obvious that requirement of Section 76 of the Ordinance has not been complied with, which is mandatory in nature and in absence of such compliance no transfer of shares in law stand effected.

3. In view of facts and circumstances of this case, the Petition is hereby allowed. The Register of the Respondent Company stands rectified by cancellation of Form-A for the year of 2007 accepted by SECP on 25.03.2009 to the extent of showing transfer of deceased’s shares in the name of Respondent No. 3. SECP to act accordingly and correct its record by restoring to the shareholding of the deceased under the applicable laws.

(Y.A.) Petition allowed

PLJ 2023 Lahore 114 [Rawalpindi Bench, Rawalpindi]

Present: Jawad Hassan, J.

UME JAMEELA--Petitioner

versus

PROVINCE OF PUNJAB and others--Respondents

W.P. No. 2538 of 2021, heard on 19.1.2022.

Constitution of Pakistan, 1973--

----Art. 199--Contractual appointment--Extension for one year--Criteria for regularization--Applicability of principle of laches--Inordinate delay--Recruitment policy--Petitioners have not brought on record any document to show that they are still in service or further extension has been granted to them--Petitioners, at time of joining, have accepted all terms and conditions of their contract employment, cannot resile from same at a belated stage--It was for Department to decide how and in what manner reservations should be made and such a policy decision normally would not be open to challenge subject to its passing test of reasonableness--Petitioners have challenged Impugned order after lapse of one year two months and twelve days without explaining any convincing reasonable cause of inordinate delay, as such principle of laches is also applicable upon this case as three months’ time is considered reasonable for a party to assail an adverse order in writ jurisdiction of High Court--Petitioners, in spite of having 3rd Division in academic qualification, were duly appointed for a period of five years who performed their duties and tenure of further extension of one year was also expired--Petitions dismissed.

[Pp. 117, 120 & 121] A, B, D, E & F

2020 SCMR 1625, 2019 SCMR 124 & 2016 SCMR 183 ref.

Domain of Court--

----It is not in the domain of the Courts to embark upon an inquiry as to whether a particular policy is wise and acceptable or whether better policy could be drafted. [P. 120] C

Mr. Muhammad Ahmad Fiaz, Advocate for Petitioner.

Mr. Mujeeb-ur-Rehman Kiyani, Additional Advocate General for Respondents.

Malik Malik Ihtisham Saleem, Assistant Attorney General for Pakistan.

Date of hearing: 19.1.2022.

Judgment

Through this single judgment, I intend to decide this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) as well as connected Writ Petition No. 3085 of 2021 involving same question of law and facts.

A. BRIEF FACTS

1. Transitory facts as per petition are that Petitioner of this petition and of connected petition (the “Petitioners”) applied for the post of ESE (Sci-Math) in response to advertisement dated 17.11.2014 flashed by the Respondents under the Recruitment Policy, 2014 (the “Policy”). They were appointed as ESE (Science-Math) vide letter of agreements dated 08.05.2015 on contract basis for a period of five years. The said period of contract was further extended for one year in terms of order dated 01.04.2020. The Respondents in terms of order dated 05.06.2020 (the “impugned order”) regularized the services of persons appointed along with the Petitioners in year 2015 but the Petitioners were denied regularization and were only granted one-year extension. Hence this petition.

B. PETITIONERS’ SUBMISSIONS

1. Learned counsel for the Petitioners inter alia contended that the impugned order has been passed without taking into consideration true facts of the case; that the Respondents have granted benefit of regularization to certain persons appointed along with the Petitioners but discriminatory treatment has meted out with them; that the Petitioners had acquired vested right for appointment on regular basis for the post of ESE (Sci-Math) but their names have been removed merely on the ground of having 3rd Division in B.Sc.; that the Petitioners possess professional qualification having 2nd Division in Master Degree which has not been considered for the purposes of educational requirements. The counsel for the Petitioners has relied on order dated 01.03.2018 passed in W.P.No. 2170 of 2017 whereby similar petition was allowed. He has also relied on judgment dated 04.03.2019 passed in ICA No. 83 of 2018 whereby appeal of the Respondents was dismissed and CPLA No. 1858 of 2019 filed thereagainst before the Supreme Court of Pakistan met with the same fate vide order dated 01.06.2020.

C. RESPONDENTS SUBMISSIONS

1. Learned Law Officer, on the other hand, filed report and parawise comments, vehemently opposed the arguments advanced by the learned counsel for the Petitioners and prayed for dismissal of the petition on the ground that the Petitioners were appointed purely on contract basis and after expiry of contracts they were no more the employee of the Respondents and their salaries for the work done have also been paid to them. He further stated that the Respondents have regularized the services of such persons who fulfilled the requisite requirement of advertainment and the Policy where 2nd Division in academic qualification was prescribed but the Petitioners do not possess 2nd Division in academic qualification therefore, they were rightly refused for regularization. He argued that the issue involved in this case relates to policy decision of the Government in public interest which is the sole domain of the Government and the Courts usually refrain from interfering into such matters.

2. I have heard the arguments of counsel for the parties and perused the record.

D. DETERMINATION BY THE COURT

1. Admittedly, the services of the Petitioners were engaged by the Respondents purely on contract basis in terms of Clause-4 of Letters of Agreements dated 08.05.2015 and initial tenure of contracts was only for five years. The said period of contracts was extended for further one year in terms of order dated 01.04.2020 which has also expired and the Petitioners have not brought on record any document to show that they are still in service or further extension has been granted to them. The Petitioners after accepting the terms and conditions of their contract employment submitted their joining reports. The specific terms in the employment offer, containing certain terms and conditions, are inserted which explicitly reveal that initially this offer of appointment was only for a period of five years. I am of the considered view that the Petitioners, at the time of joining, have accepted all the terms and conditions of their contract employment, cannot resile from the same at a belated stage. I fortified my view seeking guidance from the judgment passed by Hon’ble Supreme Court of Pakistan in “Miss Naureen Naz Butt versus Pakistan International Airlines through Chairman, PIA and others” (2020 SCMR 1625) by upholding the judgment of Division Bench of this Court “Pakistan International Airlines versus Naureen Butt” (2017 PLC (C.S.) 923) holding that “the established law is that a contract employee, whose period of contract employment expires by afflux of time, carry no vested right to remain in employment of the employer and the Courts cannot force the employer to reinstate or extend the contract of the employee”.

2. Now the heart of controversy involved in this petition is the grant of benefit of regularization to certain persons appointed with the Petitioners. The counsel for the Petitioners has persistently put much emphasis that the Petitioners are entitled to regularization of their services as the Respondents have regularized similarly placed person who were appointed with them on contract basis. The fact of appointment of the Petitioners as ESE (Sci-Math) for a period of five years and one-time extension is not disputed by all hands. The only grievance agitated by the Petitioners is that the Respondents have regularized the services of similarly placed persons while they have been refused merely on the ground of having 3rd Division in B.Sc. While on the other hand, the stance of the Respondents is that the Petitioners are not entitled to regularization as this benefit was extended only to those who fulfilled the requisite requirement stipulated in the advertisement and the Policy after scrutinizing each and every case while the Petitioners do not fulfil the aforesaid requirement. It would be advantageous to reproduce the criteria referred to in the advertisement as well as in the Policy

ACADEMIC & PROFESSIONAL QUALIFICATION

| | | | | --- | --- | --- | | Nomenclature of Post | Academic Qualification (at least 2nd Division) | Professional Qualification (at least 2nd Division) | | ESE (Sci-Math) | B.Sc with at least two subjects out of Chemistry, Zoology, Botany, Physics, Math-A Course, Math-B Course and Math OR DVM, Animal Husbandry, D-Pharmacy, MCS & BCS OR MSc/BS (Hons-4 years) in Physics /Chemistry/Botany/ Zoology/Math/Biochemistry / Biotechnology/ Environmental Sciences/all branches of Chemistry, Biology, IT/Computer Science OR BSc (4-years) in Agriculture/ all branches of Engineering OR BSc/BA with FSc OR MSEd/BSEd with at least two subjects out of Chemistry, Zoology, Botany, Physics, Math-A Course, Math-B Course & Math | B.Ed/MSEd/ M.Ed/MA (Edu) |

1. From the above it is quite clear that 2nd Division in academic qualification for the aforesaid post has been set up by the Respondents and services of those were regularized under the Punjab Regularization of Services Act, 2018 who fulfilled the above said criteria of having 2nd Division in B.Sc but unfortunately the Petitioners do not met with criterion for the regularization of their service having 3rd Division in B.Sc hence it cannot be said that the Respondents have treated them indifferently or given discriminatory treatment to them. The Hon’ble Supreme Court of Pakistan in “Government of Khyber Pakhtunkhwa through Chief Secretary and others versus Syed Sadiq Shah and others” (2021 SCMR 747) has dilated upon the issue of discrimination by holding that:

“Article 25 of the Constitution, guarantees to every person the right to equality before the law and the equal protection of the laws. The expression "equal before law" is a declaration of equality of all persons irrespective of gender, race, religion, colour, caste, creed, status and language etc, implying thereby the absence of any privilege in favour of any individual. The guiding principle of Article 25 is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges conferred and liabilities imposed. Equality before law means that amongst equals should be equal and equally administered and that like should be treated alike. Hence what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. However, Article 25 does not forbid different treatment of un-equals. The rule is rather that alike should be treated equally and that unlike should be treated differently. As a matter of fact all persons are not alike or equal in all respects. Application of the same laws or yardstick uniformly to all of them will, therefore, be inconsistent with the principal of equality. To avoid that situation laws must distinguish between those who are equals and to whom they must apply and those who are different and to whom they should not apply. In fact identical treatment in unequal circumstances would amount to inequality. So a reasonable classification or sub-classification is only not permitted but is necessary if society is to progress. It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the authority.

Persons may be classified or further sub-classified into entities and such entities may be treated differently if there is a reasonable basis for such difference. Article 25 forbids class legislation but it does not forbid classification or differentiation which rests upon reasonable grounds of distinction. The classification however must not be arbitrary, artificial or evasive but must be based on some real and substantial bearing, a just ad reasonable relation to the object sought to be achieved by the legislation.

Principle of equality does not mean that every law, policy matter, notification, administrative or executive order etc must have universal application to all the persons who by nature, attainment or circumstances are not in the same position”.

1. In assessment of suitability of a particular nature of job and its scope in the context of particular employer the Courts cannot prescribe the eligibility or experience qualifications and work experience as these are matters of policy and best be left to the department. As setting the criteria of 2nd Division of academic qualification in the Policy as well as advertisement relates to the policy matter of the government/department, therefore, Court cannot interfere into it. It is not in the domain of the Courts to embark upon an inquiry as to whether a particular policy is wise and acceptable or whether better policy could be drafted. The Court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of the Constitution. It was for the Department to decide how and in what manner the reservations should be made and such a policy decision normally would not be open to challenge subject to its passing the test of reasonableness. The Hon’ble Supreme Court of Pakistan in “The Secretary Punjab Public Service Commission, Lahore and others versus Aamir Hayat and others” (2019 SCMR 124) has held that “Courts could not interfere in lawful exercise of discretion by the concerned departments and substitute lawful decisions of the departments, by their own”. In the case in hand, the Respondents formulated the Policy by setting up criteria of 2nd Division of academic qualification for the purpose of finding the suitable persons to perform their jobs pursuant to which an advertisement was made in year 2014 and ultimately, the Respondents regularized the persons who met with aforesaid criteria. In case of “M. Nazir Ahmad versus Muhammad Aslam and others” (2013 SCMR 363) it was held that “An employer has the discretion to formulate appropriate policy viz.a.viz job qualification and criteria for various positions in line with its peculiar requirements and organizational structure hence no person had a vested right to be appointed on a post rather the authorities made a selection for the post as per criteria set out in Rules/policy and had to find the most suitable candidate for the job who could capably discharge the duties”.

2. Pertinently, the Petitioners have called in question the impugned order which was passed on 05.06.2020 but interestingly they have challenged the same on 17.08.2021 after lapse of one year two months and twelve days without explaining any convincing reasonable cause of the inordinate delay, as such principle of laches is also applicable upon this case as three months’ time is considered

reasonable for a party to assail an adverse order in writ jurisdiction of this Court. Reliance is placed on “Civil Aviation Authority through Director General and 3 others versus Mir Zulfiqar Ali and another” (2016 SCMR 183), “State Bank of Pakistan through Governor and another versus Imtiaz Ali Khan and others” (2012 SCMR 280) and “Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another versus Syed Ashfaque Ali and others” (PLD 2003 Supreme Court 132). More importantly, when initial period of Petitioners’ contracts was expired, they were given one-year extension on 01.04.2020 and that extension also came to an end. The Petitioners, instead of challenging the impugned order at the relevant time, themselves opted to continue with newly extended contract by accepting terms and conditions which even otherwise has already expired.

1. Moreover, the order and judgment referred to by learned counsel for the Petitioners cannot be relied upon being distinguishable from the facts and circumstances of the case as each and every case has its own merits. It is quite evident that order dated 03.04.2018 relates to the process of recruitment where certain persons were initially allowed to participate in recruitment process but thereafter at the time of scrutiny, their candidature was cancelled due to having 3rd Division in academic qualification. While in the case in hand, the Petitioners, in spite of having 3rd Division in academic qualification, were duly appointed for a period of five years who performed their duties and tenure of further extension of one year was also expired so it cannot be said that the order and judgment referred to by learned counsel for the Petitioners is applicable to the case in hand.

2. In view of above discussion, I am not inclined to interfere with the impugned order which otherwise has been passed aptly. Resultantly, the instant petition stands dismissed.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 121 (DB) [Multan Bench, Multan]

Present: Ahmad Nadeem Arshad and Sohail Nasir, JJ.

SHAGUFTA SARWAR, ADPP and another--Petitioners

versus

SPECIAL JUDGE ANTI-TERRORISM COURT and others--Respondents

W.P. No. 17809 & Crl. Rev. No. 311 of 2021, decided on 15.11.2021.

Punjab Criminal Prosecution Services (Constitution, Functions and Powers) Act, 2006 (III of 2006)--

----S. 9/10/12--Criminal Procedure Code, (V of 1898), S. 435--Constitution of Pakistan, 1973, Art. 199--Role of prosecution in criminal case--Direction to--There are two parts of impugned order--In first portion, Judge made serious observations directly or indirectly relating to entire Prosecution Service whereas, in second part, he is of view that prosecution has no role whatsoever in process of investigation--Both areas of impugned order cannot sustain--Independent Prosecution Serving Agency is not ceremonial or role of Prosecutor is not of a post office but to have a check on working of investigating officers at right time and right place--Powers lie with court to agree or disagree with opinion but under no circumstance it is within domain of court to sit over powers of Prosecutors. [Pp. 125 & 126] A, D & E

Punjab Criminal Prosecution Services (Constitution, Functions and Powers) Act, 2006 (III of 2006)--

----S. 10--Powers of Prosecutor General--Section 10 of Act empowers Prosecutor General to issue general guidelines to Prosecutors or Officers responsible for effective and efficient prosecution.

[P. 126] B

Punjab Criminal Prosecution Services (Constitution, Functions and Powers) Act, 2006 (III of 2006)--

----S. 10(2)--Powers of DPP-- In terms of Section 10(2) of Act they can refer to authority, competent to initiate disciplinary of proceedings under any law for time being in force to take disciplinary action against any public servant working in connection with investigation or prosecution for any act committed by him and is prejudicial to prosecution. [P. 126] C

2012 PCr.LJ 1823 ref.

Mr. Mehroze Aziz Niazi, Advocate for Petitioners.

Mr. Shahid Aleem, Additional Prosecutor General for Respondents.

Date of hearing: 15.11.2021.

Order

While commenting upon judicial restraint,[1] this Court had observed that:-

i. The Courts can interpret the provisions of law but cannot change or substitute such provisions and also cannot go beyond the wisdom of law.

ii. When spoken about judicial review, it is also necessary to be alive to the concept of judicial restraint.

iii. The principle of judicial restraint requires that Judges ought to decide cases while being within their defined limits of powers.

iv. Judges are expected to interpret any law as per the limits laid down in the law.

v. 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.

1. We are confronted with the same question again as it appears, that the learned Judge Anti-Terrorism Court (ATC) Dera Ghazi Khan by exceeding his jurisdiction has encroached upon the powers of the Prosecution’s Department.

2. Muhammad Ajmal is an accused of First Information Report (FIR) No. 659 recorded on 17.09.2021 under Sections 387/506, PPC at Police Station City Muzaffargarh on the complaint of Dr. Muhammad Iqbal. On 20.09.2021, he was produced before the learned Duty Magistrate Muzaffargarh with a written request for his physical remand. On that day the concerned Prosecutor formed the following opinion:

“Forwarded with the opinion that above mentioned Section 387, PPC stated under Section 6(2)(k) under the definition of “Terrorism” of the Anti-Terrorism Act, 1997. However, forwarded for appropriate order”

1. As evident from the order, the learned Duty Magistrate did not take notice of above said opinion and regulated the custody of accused (physical remand) with police for one day.

2. Again, on 23.09.2021, accused was produced before the learned Area Magistrate Muzaffargarh for obtaining his physical remand. Even at this occasion the concerned Assistant District Public Prosecutor (ADPP) forwarded the request with the following opinion:

“Thresh hold Test.

Forwarded with the opinion that offence under Section 387, PPC fall under the definition of Section 6(2)(k) of Anti-Terrorism Act, 1997. With this observation forwarded to Court for appropriate order”

1. This time the learned Magistrate while taking into consideration the said opinion, granted one day physical remand with direction to the Investigating Officer to produce the accused before the learned ATC Dera Ghazi Khan.

2. Finally on 28.09.2021 accused was produced before the learned ATC with a request of physical remand of ten days. The learned Judge while showing his disagreement with the opinions of the learned Prosecutors (ibid) turned down the request of the Investigating Officer and directed him to produce the accused before the learned Area Magistrate. To this extent there was nothing wrong, but the subsequent paragraph of the order dated 28.09.2021 was shocking and reproduced as under:

“Before parting with this order, I am constrained to observe that virus of corruption and omission or deletion of offence without any legal reason and referring the matter to this Court has increased to cancerous magnitude, therefore, the direction are being issued to Secretary Prosecution to take strict disciplinary action against the learned ADPP Muzaffargarh who misinterpreted the provisions of law due to reasons best known to him. It is further directed that in future if any wrong opinion and wrong interpretation made by any ADPPs, DDPPs or District Prosecutors will be formed to interfere in the investigation, the proceedings shall not only be initiated against the concerned prosecutors but also strict action shall be taken against the Secretary Prosecution Punjab who has supervisory role on all the prosecution who is indirectly contributory factor for promoting this dishonest practice. Ahlmad of this Court is directed to transmit the copy of this order to Secretary Prosecution Punjab, all the district public prosecutors, all the DPOs of D.G Khan Division for their guidance in future with the warning that in future if such like defective investigation and wrong interpretation of law is made by any prosecutor or District prosecutor, the proceedings shall be conducted against the not only ADPPS, DDPPs. IOs but all the heads of police department of D.G Khan Division and all the District Public Prosecutors of D.G Khan Division”

1. Even in the second paragraph of the order the learned Judge criticized the working of Prosecution department in the following manners:

“The learned ADPP who gave the opinion even does not know that Section 387, PPC is not scheduled offence of this Court and also wrong interpretation of Section 6(2)(k) of the Anti- Terrorism Court the learned ADPP has jumped in blind well, perhaps due to monitory gains. The circumstances demands that strict action should be taken against such prosecutor working in Dera Ghazi Khan Division and District Public Prosecutors of Dera Ghazi Khan Division have failed to play the role to discourage such practice resulting into miscarriage of justice due to ignorance of law of the prosecutor of Dera Ghazi Khan Division”

1. Shagufta Sarwar the Assistant District Public Prosecutor through writ petition (17809 of 2021) and the State on the strength of Criminal Revision (311 of 2021) have assailed the said order. As both the matters are against one and the same decision so being decided together by way of this single order. It is important to add here that as issue was between the Court and petitioners therefore, no notices are required to be issued to any other person. It is also relevant to add here that according to learned law officers in both the cases, they are aggrieved to the extent of remarks and recommendations recorded by the learned Judge ATC about the Prosecutors and Prosecution department.

2. All concerned have been heard.

3. We have observed that there are two parts of the impugned order. In first portion, the learned Judge made serious observations directly or indirectly relating to entire Prosecution Service whereas, in the second part, he is of the view that prosecution has no role whatsoever in the process of investigation.

4. We feel no reservation to say that both the areas of the impugned order cannot sustain. There was no material at all available with the learned Judge to make such derogatory, insulting and offensive remarks against any Prosecutor or the Prosecution department. It appears that the learned Judge was not cognizant of the fact that the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006) {Act} is still holding the field giving various powers to the Prosecutors to be used from day one when FIR is recorded in police station. Its’ preamble is much relevant and reproduced as under:

“Whereas it is expedient to establish an independent, effective and efficient service for prosecution of criminal cases, to ensure prosecutorial independence, for better coordination in the criminal justice system of the Province and matters incidental thereto”

1. Plain reading of the preamble makes it clear that prosecution department is enjoying independent status with an aim of efficient prosecution in criminal cases. Its’ Chapter 3 deals with the powers and functions of the Prosecutors. Under Section 12(a) of the Act an officer incharge of a police station or the Investigation Officer shall immediately report to the District Public Prosecutor,[2] the registration of each criminal case by sending a copy of the first information report. This obligation on the part of police officer is not a formality but with an objective that the Public Prosecutor having the supervisory role has to be on board from day one. Section 10 of the Act empowers the Prosecutor General to issue general guidelines to the Prosecutors or Officers responsible for effective and efficient prosecution. The powers of the Prosecutor General or the District Public Prosecutor are so vast that in terms of Section 10(2) of the Act they can refer to the authority, competent to initiate disciplinary proceedings under any law for the time being in force to take disciplinary action against any public servant working in connection with investigation or prosecution for any act committed by him and is prejudicial to the prosecution. All the powers referred to under Section 9 of the Act, can also be exercised by a Prosecutor under sub-section (3) of Section 10 the Act. It must not be lost sight also that Public prosecutors perform a crucial role as they are the ‘gate keepers’ of criminal justice, insofar as without their initiative there cannot be the prosecution and repression of crimes.

2. The question, therefore, before us is that while forwarding the accused with a request for physical remand, whether it was within the domain of the concerned Prosecutor to give his/her opinion about the application of any of the provisions of law? The intervention of independent Prosecution Serving agency is not ceremonial or the role of the Prosecutor is not of a post office but to have a check on the working of the Investigating Officers at the right time and right place for the reason that the ultimate responsibility of the Prosecutors is to ensure effective prosecution. However, this cannot be disputed that finally the powers lie with the Court to agree or disagree with the said opinion (in accordance with law) but under no circumstance it is within the domain of the Court to sit over the powers of the Prosecutors in a way as evident from the impugned order passed by the learned Judge ATC who without applying judicial mind and closing his eyes observed that any wrong opinion amounts to interference in the investigation. The learned Judge, it appears, skipped the provision of Section 18 of the Act that no suit, prosecution or other legal proceedings shall lie against the Prosecutor in respect of anything done or attempted to be done by him in good faith. We cannot restrain ourselves to hold that in fact the learned Judge ATC has impinged upon the authority of the Prosecutors and crossed its’ limits while giving unethical, biased and prejudiced observations in particular when there was no material at all in support of these remarks. We also find that the learned Judge was vested with no authority to restrain or restrict the statutory powers available to the Prosecutors. This Court[3] while taking into considerations the provisions of the Act had observed that:

“The judicial system of country always suggests an implied motivation to its other ally units to excel their performance for better assistance of Judiciary in imparting fair and passable justice to the litigants. There was a time when the representatives of the Attorney-General and the Advocate-General Offices joined hands with the judiciary and contributed to a great deal in dispensing justice among the masses. They always remained vigilant while accepting assignments from the Courts of law and put their full strength to defuse the pressure of criminal litigation but with the passage of time the flood of criminal litigation increased gradually and became unbridled which constrained the think tank to unify their heads together and explore predictability of a new viable system to overpower the massive criminal litigation pending in the Courts of law. After analyzing this austere issue with all care and caution the sagacious persons cravingly felt it imperative to establish an independent, effective and efficient institution for prosecution of criminal cases in the Courts to ensure prosecutorial independence for better coordination in the criminal justice system of the country whose prime chore was to save the innocent persons from prosecution and leave no culprit to go scot-free. The said efforts matured into reality with the enactment of The Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006). As the human being is fallible and the legislature being from amongst the human being have no exception and the room of improvement in any enactment is always available. The said cumbersome exercise falls on the shoulder of the judiciary inasmuch as while defining any law the Courts point out any flaw, in the said legislation. Likewise, in case of any ambiguity in any provision of the law the Courts also suggest its real meaning and the intention of the legislature. The Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 came into force about five years ago, surfacing of certain questions for determination by this Court as well as by the Hon’ble Supreme Court are natural. The point involved in the instant matter is defining the powers of Prosecutors working under the aforesaid Act as certain provisions, though not ambiguous but entail different meanings”

“The criminal jurists know it very well that the criminal proceedings always take start as and when the arrow of criminal law is thrown in the air by lodging an FIR. After registration of a criminal case the law-enforcing agency comes into motion at once for investigating the matter so as to find out the truth or otherwise of the allegations set forth therein. The basic responsibility imposed upon an Investigating Officer is to ascertain the commission of offence, collection of the substantiating material in support of the allegations and identifying the persons who perpetrate the offence in question to bring their guilt at home. A past analysis of the procedure adopted by the police while conducting investigation in criminal cases shows that the outcome of their efforts in that regard always found shorn of legal justifications. The Hon’ble Judges of higher judiciary have always been expressing anxiety in their judgments and uninterruptedly realizing the police that the sole purpose of investigation is to only collect evidence in support of the allegations levelled against an accused person in the F.I.R. as is evident from Section 4, Cr.P.C.. and opinion of an Investigating Officer would not make any accused person guilty or innocent of the offence but on all occasions the police is seen in utilizing its skill towards declaring the accused innocent or guilty. Although it has not happened in each and every case yet, in most of cases, this practice is being adopted either due to unfamiliarity of the Investigating Officers from law or it happened due to their corrupt practices. I shall also like to say here that the conducive behaviour of the people towards the police to achieve result in their favour also promote/expand the practice of the police in declaring an accused guilty or innocent. In any case the lack of legal knowledge always remained a lame excuse to hamper application of canons of safe administration of justice in criminal cases for which the prosecution only suffer and face consequence. To avoid from such a wretch condition the public exchequer has been burdened to achieve for reaching public welfare aims and objects of improving investigation anti removing difficulties of Investigating Officers through

appropriate legal guidance at apt time, who are normally expected to be unaware of legal intricacies, interpretations, as well as guidelines given by the Superior Courts in various ruling about the standards and required strengths of proof, in order to resist defense attacks, successfully. Now on the eve of establishment of Prosecution Agency, the Prosecutors are expected to prove worth of prosecution institution in the minimum possible time by attaining the target of improving standard of investigation in all cases and especially in the cases like the one in hand by motivating launching and promoting endeavors through District Public Prosecutors, with a well-oriented check and balance system, so that the cases may successfully face all kinds of scrutinizing on the dissection table of qualified and experienced laws experts, in Courts of law”

“The intention of the legislation to step in the services of Prosecution agency in between the police and the Courts of law was to explore some worthwhile ambience so as to outset a trial in a criminal case in such a manner which will prove inspiring enough to the Courts to reach to a just conclusion”

1. As the order before us has been impugned to the extent of structure/remarks and recommendations recorded by the learned Judge, so by allowing both the writ and criminal revision, we set aside the impugned order to that extent and direct that those remarks/observations and recommendations will be deemed to be expunged.

2. A copy of this order shall be sent to the learned Judge ATC Dera Ghazi Khan for his guidance with an advice that the philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution and that the three organs of the State, the legislature, the executive, and the judiciary must respect each other and must not ordinarily encroach into each other’s domain.

(K.Q.B.) Criminal Revision and Petition allowed

[1]. Writ Petition No. 15433 of 2021 (Syed Riaz Hussain Shah vs. Government of Punjab and 2 others) decided on 21.10.2021 and approved for reporting https://sys.lhc.gov.pk/appjudgments/2021LHC5807.pdf.

[2]. Section 2(L).

[3]. Nadeem alias Deema versus District Public Prosecutor, Sialkot and 7 others 2012 PCr.LJ 1823.

PLJ 2023 Lahore 129

Present: Tariq Saleem Sheikh, J.

SHAHZAD--Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE etc.--Respondents

W.P. No. 80439 of 2021, heard on 30.3.2022.

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

----S. 22-A/22-B/25--Second marriage without divorce to petitioner--Dismissal of petition--Independent statutory remedy--Petitioner previously moved an application before Ex-officio Justice of Peace, Faisalabad, u/S. 22-A, Cr.P.C. for registration of FIR against Respondents No. 3 & 4 on same facts which was dismissed--principle of res-judicata postulates that when parties have litigated a claim before a Court of competent jurisdiction and it has finally decided controversy, interests of State and of parties require that validity of claim and matters directly and substantially in issue in action shall not be litigated again--Ex-officio Justice of Peace exercises quasi-judicial functions u/S. 22-A(6), Cr.P.C.--Principle of res-judicata applies to applications made to him seeking direction to officer in-charge of a police station to register FIR under Section 154, Cr.P.C.--Nevertheless, it does not bar institution of a private complaint as it is an independent statutory remedy--Petition dismissed. [Pp. 133 & 135] A, B, D & E

PLD 2016 SC 581 ref.

Principle of Res-judicata--

----S. 22-A/22-B/25--Res-judicata--Doctrine of res-judicata is based on public policy and applies to all judicial proceedings. [P. 134] C

AIR 1994 SC 152 ref.

Mr. Mahboob Saeed Khokhar, Advocate for Petitioner.

Mr. Mukhtar Ahmad Ranjha, Assistant Advocate General for Respondent No. 2.

Mr. Kashif Alexander Rajpoot, Advocate, assisted Ms. Nadia Hameed, Advocate for Respondent No. 3.

In person Respondent No. 4.

Date of hearing: 30.3.2022.

Judgment

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”), is directed against order dated 29.11.2021 passed by the Ex-officio Justice of Peace, Toba Tek Singh.

The factual background

1. The Petitioner and Respondents No. 3 & 4 are Christian by faith. On 09.10.2021 the Petitioner moved an application under Section 22-A, Cr.P.C. stating that in the year 2011 he married Respondent No. 3 and two children were born to them. In 2015 the lady left him and went to her parents’ house alongwith the siblings and refused to come back despite his best efforts. Lately he learnt that Respondent No. 3 had contracted second marriage with Respondent No. 4 without getting divorce from him. The Petitioner contended that Respondents No. 3 & 4 had committed a cognizable offence and prayed that a direction be issued to the Respondent SHO for registration of FIR against them. The Ex-officio Justice of Peace dismissed the said application vide order dated 29.11.2021 on the ground that it was not maintainable as his earlier application on the same facts had been dismissed by the Ex-officio Justice of Peace, Faisalabad. Hence, this petition.

The submissions

1. The Petitioner contends that Respondents No. 3 & 4 have committed a cognizable offence so the Respondent SHO is obligated to register FIR against them forthwith. He further contends that he cannot be non-suited for the mere reason that he moved an application under Section 22-A, Cr.P.C. on the same facts earlier. He argues that the impugned order dated 29.11.2021 is perverse and not sustainable.

2. The Assistant Advocate General contends that the Petitioner’s first application under Section 22-A, Cr.P.C. was dismissed on merits. He did not challenge the dismissal order before any forum so it has attained finality and he is precluded from filing new application.

3. Respondent No. 3 has supported the impugned order and argues that the Petitioner has filed the above-mentioned application under Section 22-A, Cr.P.C. to harass her as she has obtained a decree for maintenance against him. She further alleges that he has committed polygamy himself which is forbidden in Christianity and an offence under the laws of Pakistan. Hence, he is liable to be prosecuted.

4. Respondent No. 4 has also termed the proceedings initiated by the Petitioner as malafide and vexatious.

Discussion

1. In the Indo-Pak sub-continent the original role of the Justice of Peace under the Code of Criminal Procedure, 1898 (the “Code” or “Cr.P.C.”), was primarily to assist the police in maintaining public order and peace and, in the event of infarction of law, to help apprehend the culprit and investigate the crime.[1] However, his role was subsequently enlarged and made more comprehensive through various amendments in the Code. On 21.11.2002, the Criminal Procedure (Third Amendment) Ordinance, 2002 (Federal Ordinance No. CXXXI of 2002)[2] added sub-section (6) in Section 22-A, Cr.P.C. and conferred additional powers on the Ex-officio Justices of Peace. The said provision reads as under:

(6) An Ex-officio Justice of Peace may issue appropriate directions to the police authorities concerned on a complaint regarding:

(i) non-registration of criminal case;

(ii) transfer of investigation from one police officer to another; and

(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties.

Section 25, Cr.P.C. defines Ex-officio Justice of Peace as follows:

1. Ex-officio Justice of the Peace.– By virtue of their respective offices, the Sessions Judges and on nomination by them, the Additional sessions Judges, are Justices of the Peace within and for whole of the District of the Province in which they are serving.

2. In Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581) a larger Bench of the Hon’ble Supreme Court of Pakistan considered Sections 22-A and 25, Cr.P.C. and ruled as under:

(i) Sections 22-A(6) and 25, Cr.P.C. are not ultra vires the Constitution.

(ii) The functions of the Justice of Peace under sub- Sections (1) to (5) of Section 22-A and Section 22-B, Cr.P.C. are executive, administrative, preventive and ministerial. However, those of the Ex-officio Justice of Peace under Section 22-A(6), 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.

(iii) Traditionally it is the prerogative of the High Court to issue a writ. Our Constitution of 1973 also recognizes it but the legislature has lately conferred some powers on the Ex-officio Justice of Peace to provide remedy to the aggrieved people at their doorstep. The parameters laid down for the High Court for the exercise of that jurisdiction would apply to the Ex-officio Justice of Peace with the same force.

1. Admittedly, the Petitioner previously moved an application before the Ex-officio Justice of Peace, Faisalabad, under Section 22-A, Cr.P.C. for registration of FIR against Respondents No. 3 & 4 on the same facts which was dismissed vide order dated 22.09.2020 after hearing both the sides. The foremost question that requires consideration is whether second application is maintainable. In other words, whether the principle of res-judicata applies to the proceedings under Section 22-A(6), Cr.P.C.

2. The principle of res-judicata is based on two legal maxims – “interest reipublicae ut sit finis litium”,[3] and “nemo debet bis vexari pro eadem causa”.[4] Corpus Juris Secundum, Volume 50 (Edition 2009) states: “The term ‘res-judicata’ is sometimes used in a broad or generic sense to encompass or describe a group of related concepts concerning the conclusive effect of a final judgment. Used thusly, the term has been stated to encompass merger, bar and collateral estoppel, or claim and issue preclusion. So as to exclude issue preclusion, or collateral estoppel, res-judicata is sometimes used in a narrow sense. In this context, res-judicata is sometimes defined as, considered to be synonymous with, claim preclusion, and many Courts treat the two concepts as interchangeable, as by using the phrase ‘res-judicata’ or ‘claim preclusion’.”[5]

3. The principle of res-judicata postulates that when the parties have litigated a claim before a Court of competent jurisdiction and it has finally decided the controversy, the interests of the State and of the parties require that the validity of the claim and the matters directly and substantially in issue in the action shall not be litigated again by them or their representatives. In Commissioner v. Sunnen, 33 U.S. 591 (1948), the U.S. Supreme Court stated:

“The general rule of res-judicata applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a Court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound ‘not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ Cromwell v. County of Sac, 94 U.S. 351, 352. The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. See Von Moschzisker, ‘Res Judicata,’ 38 Yale L.J. 299; Restatement of the Law of Judgments, § § 47, 48.”

1. The question as to whether the doctrine of res-judicata is applicable to administrative determinations is quite contentious. Some authorities hold that it is completely inapplicable because the administrative procedures are often summary in nature, the parties are sometimes unrepresented and the dealing officers lack the training that the judges have for adjudication of disputes. The other set of legal experts opine that it depends on the legislative policy. However, the more recent view is that the applicability of the doctrine depends on the nature of the administrative tribunal involved, generally being applied where the function of the administrative agency is judicial or quasi-judicial.[6] Halsbury’s Laws of India explains:

“Although the Code of Civil Procedure 1908 does not apply to proceedings other than suits, the general principles of res-judicata govern not only the findings of Courts, stricto sensu, but also the findings of administrative tribunals and quasi-judicial authorities which are acting in judicial or quasi-judicial capacity. Thus, the plea of res-judicata is available in respect of decisions of Courts of exclusive jurisdiction as also decisions rendered by other adjudicating authorities. The rule, however, does not apply to administrative decisions, for example the policy matters of the government. The power to change, adjust or readjust policy is untrammelled.”[7]

1. In Sulochana Amma v. Narayanan Nair (AIR 1994 SC 152) the Supreme Court of India held that the doctrine of res-judicata is based on public policy and applies to all judicial proceedings, whether civil or otherwise, and to the quasi-judicial proceedings of the tribunals other than the civil Courts. Accordingly, in A.K. Muthuswamy v. Securities Exchange Board of India[8] the Madras High Court held that the Board was not competent to entertain second complaint on the same cause of action as it exercises quasi-judicial functions. Further, it could not treat that complaint even as a review petition because the statute did not confer such power on it.

2. The principle of res-judicata is applied to quasi-judicial proceedings in other jurisdictions as well. In The State Ex Rel.

Schachter v. Ohio Public Employees Retirement Board et. al., 121 Ohio St.3d 526 (2009), the Supreme Court of Ohio held:

“Res judicata, whether claim preclusion or issue preclusion, applies to quasi-judicial administrative proceedings … An administrative proceeding is quasi-judicial for purposes of res-judicata if the parties have had an ample opportunity to litigate the issue involved in the proceedings.”

Further reference may be made to Ralph Freddolino v. Village of Warwick Zoning Board of Appeals et. at., 192 A.D.2d 839 (1993); Hilltop Terrace Homeowner’s Association et. al. v. Island County et. al., 126 Wn.2d 22 (1995); County of Wayne v. City of Detroit, 590 N.W.2d 619 (1998); and James A. Bagnola v. Smithkline Beecham Clinical Laboratories and City of Chicago, a Municipal Corporation, 776 N.E.2d 730 (2002).

1. In view of the fact that the Ex-officio Justice of Peace exercises quasi-judicial functions under Section 22-A(6), Cr.P.C., in my opinion, the principle of res-judicata applies to the applications made to him seeking direction to the officer in-charge of a police station to register FIR under Section 154, Cr.P.C. Nevertheless, it does not bar institution of a private complaint as it is an independent statutory remedy.

2. The impugned order dated 29.11.2021 is based on correct application of law and does not call for interference by this Court. This petition is accordingly dismissed. The Petitioner may, if so advised, file a private complaint.

(K.Q.B.) Petition dismissed

[1]. Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470).

[2]. PLJ 2003 Fed. St. 281.

[3]. “It is a public concern that there should be an end to litigation”.

[4]. “No one ought to be twice vexed for the same cause”.

[5]. Internal citations omitted.

[6]. 6 (1967) 69 W Va L Rev 244.

[7]. Halsbury’s Laws of India (2014), Vol. 7, p. 105.

[8]. https://indiankanoon.org/doc/3546452/.

PLJ 2023 Lahore 135 [Rawalpindi Bench Rawalpindi]

Present: Sohail Nasir, J.

SHAMIM HAIDER and 6 others--Petitioners

versus

ADDITIONAL CHIEF SECRETARY (HOME) and 5 others--Respondents

W.P. No. 1915 of 2022, heard on 19.7.2022.

Constitution of Pakistan, 1973--

----Art. 199--Kinds of processions--There are two kinds of processions called as ‘Traditional Procession’ and ‘Licensed Procession’--‘Licensed Procession’ usually relates to procession of ‘Tazia and Zuljinnah’ for 10th Muharram whereas ‘Traditional Procession’ is other than ‘Licensed Procession’. [P. 137] A

Police Act, 1861 (V of 1861)--

----S. 30--Issuance of permission for religious processions--Before, promulgation of ‘PO’ subject of issuance of permission and license for religious processions was regulated under Sections 30 of Police Act, 1861 (V of 1861). [P. 139] C

Punjab Civil Administration Act, 2017--

----Preamble--Preamble of ‘PCAA’ shows that its purpose is to institute a comprehensive system of civil administration in Punjab for efficient administration, improved service delivery, better coordination, supervision and regulatory enforcement and for ancillary matters thereto. [P. 141] D

Police Act, 1861 (V of 1861)--

----S. 30(1)--Police Order, (10 of 2002), Art. 120(1)--Requirement of occasion--A Police officer may as occasion require, direct conduct of assemblies and processions on public roads, or in public streets or thoroughfares and prescribe routes by which and times at which, such processions may pass. [P. 141] E

Powers of Deputy Commissioner--

----After promulgation of ‘PCAA’ ultimate powers are vested with Deputy Commissioner who while considering request for any public meeting, procession, assembly or gathering has to consult with head of District Police and heads of respective local government.

[P. 142] F

Punjab Civil Administration Act, 2017 (III of 2017)--

----S. 16--Permission for procession--For any kind of gathering or procession a permission from Deputy Commissioner is required and rationale behind it is obvious that it will not only facilitate participants to perform their religious obligations in a protected environment but it will also ensure that no untoward incident takes place or there may not be disturbance of peace and public tranquility and that law and order must not be compromised--By adopting this lawful procedure district administration will too be in a position to make proper security arrangements. [P. 142] G

Constitution of Pakistan, 1973--

----Art. 20--Constitutional guarantee--In case of discharge of religious obligations, as there is a constitutional guarantee under Article 20 of ‘the Constitution’ moving an application undoubtedly appears to be a formality Authority concerned must give it positive consideration unless there are compelling circumstances to hold otherwise. [P. 142] H

Constitution of Pakistan, 1973--

----Art. 199--Punjab Civil Administration Act, (III of 2017), S. 16--Religious obligations--Version of petitioners--Undu influence--Version of petitioners is that in upcoming month of ‘Muharram’ as petitioners have to take out ‘Traditional Procession’ and SHO Police Station Mangla is adamant to make interference a direction be issued to restrain him for issuance of threats or undue influence to stop procession of ‘Shahbeeh-e-Alam Mubarak’--P etitioners shall be at liberty to submit an application to Deputy Commissioner, Jhelum seeking permission under Section 16 of ‘PCAA’ for taking out ‘Traditional Procession’. [Pp. 138 & 143] B & I

Mr. Muhammad Zahid Aman, Advocate for Petitioners.

Mr. Razzaq A Mirza, Additional Advocate General and Sardar Tariq Anees Assistant Advocate General for Respondents.

Mr. Fazal-ur-Rehman, Special Secretary (Home) Department Punjab.

Mr. Hakim Ullah, Assistant Commissioner Jhelum

Mr. Khalid Mehmood Malik, DSP Sadar Jhelum.

Date of hearing: 19.7.2022.

Judgment

For the purpose of observing religious obligations during the month of ‘Muharram-ul-Haram’[1] by Shia Muslims apparently there are two kinds of processions called as ‘Traditional Procession’ and ‘Licensed Procession’. ‘Licensed Procession’ usually relates to the procession of ‘Tazia[2] and Zuljinnah[3]’ for 10th Muharram whereas the ‘Traditional Procession’ is other than the ‘Licensed Procession’.

1. Case of Shamim Haider and six others (petitioners) on the strength of instant Writ Petition is that from the ‘Haveli’ of Chan Shah the ‘Traditional Procession’ named ‘Shahbeeh-e-Alam Mubarak’[4] is to be taken out since long in between 4th and 5th of ‘Muharram-ul-Haram’ so as to reach and participate ‘Azadari’[5] at ‘Imambargah Jageer Shahzadah Ali Akbar, Dhanyala’ at a distance of 500 meters from ‘Haveli’. According to them in the year 2020 SHO[6] Mangla Cantt Jhelum asked them to stop the procession and when no importance was given to the said directions being derogatory and injurious to the religious sentiments of petitioners, FIR[7] No. 126 on 24.08.2020 at Police Station Mangla Cantt under Sections 341/188/153/143/149 PPC[8] read with Section 16 of MPO[9] was registered against Syed Naseer Hussain Shah (late) and petitioners No. 2 to 7 however all they were acquitted from the case by the learned trial Court. Petitioners further maintained that again in 2021 on a report of SHO to Deputy Commissioner, Jhelum, late Syed Naseer Hussain Shah was detained for a period of 30 days under Section 3(1) of the MPO however after three days said detention order was recalled. The ultimate version of petitioners is that in the upcoming month of ‘Muharram’ as petitioners have to take out the ‘Traditional Procession’ and the SHO Police Station Mangla is adamant to make interference therefore a direction be issued to restrain him for issuance of threats or undue influence to stop the said procession of ‘Shahbeeh-e-Alam Mubarak’.

2. In the comments filed by SHO and Deputy Commissioner it has been maintained that FIR was recorded for the reason that earlier procession was without any permission. It was further added that no application whatsoever on behalf of Shamim Haider/petitioner No. 1 has been received seeking permission for ‘Traditional Procession’.

3. At the very outset learned Law Officers for respondents have jointly stated that if petitioners move an application seeking permission for taking out ‘Traditional Procession’ that shall be considered sympathetically as the petitioners have a right to profess, practice and propagate their religion.

4. Taking serious exception to above offer, learned counsel for petitioners has argued that for the purpose of ‘Traditional Procession’ petitioners are under no obligation to submit any application seeking permission therefore the action of respondents is illegal and against the constitutional guarantees provided under Articles 4, 16 and 20 of The Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). He further adds that if there is any apprehension of breach of peace and law and order situation, only in that eventuality any condition can be imposed on processions whereas in the case in hand no such position is in existence. Learned counsel finally maintains that Article 120 of the Police Order, (22 of 2002) [PO] has been wrongly interpreted and even none of the provisions of The Punjab Civil Administration Act, 2017 (XXX of 2017) [PCAA] is applicable in case of ‘Traditional Procession’. In support of his contentions he has relied upon: -

Ø Hakim Sher Ahmad Chishti vs. Syed Abbas & 2 others PLD 1976 Lahore 85

Ø Sharafat Hussain vs. Deputy Commissioner, Kasur and another 1983 PCRLJ 1485

Ø Syed Sarfraz Hussain Bokhari vs. District Magistrate Kasur, & others PLD 1983 SC 172 and

Ø Mst. Faiz Mai vs. Home Secretary & others PLD 2017 Lahore 896.

1. On the other hand, learned Additional Advocate General and learned Assistant Advocate General contend that the Constitutional guarantees with regard to rights to the citizens are subject to law that means if any law is holding the field on the relevant subject that has to be followed in its letter and spirit. They further maintain that after the promulgation of the ‘PCAA’, no public meeting, procession or assembly etc. can take place without a prior permission in writing of the Deputy Commissioner.

2. HEARD.

3. Before, the promulgation of ‘PO’ the subject of issuance of permission and license for religious processions was regulated under Sections 30 of the Police Act, 1861 (V of 1861) [PA] and that is as under:

“30. Regulation of public assemblies and processions and licensing of same. (1) The District Superintendent or Assistant District Superintendent of Police may, as occasion requires, direct the conduct of all assemblies and processions on the public roads, or in the public streets or thoroughfares, and prescribe the routes by which, and the times at which, such processions may pass.

(2) He may also, on being satisfied that it is intended by any persons or class of persons to convene or collect an assembly in any such road, street or thoroughfare, or to form a procession which would, in this judgment, if uncontrolled, be likely to cause a breach of the peace, require by general or special notice that the persons convening or collecting such assembly or directing or promoting such procession shall apply for a license.

(3) On such application being made, he may issue a license specifying the names of the licensees and defining the conditions on which alone such assembly or such procession is to be permitted to take place and otherwise giving effect to this section: Provided that no fee shall be charged on the application for, or grant of, any such license.

Music in the streets. (4) He may also regulate the extent to which music may be used in the streets on the occasion of festivals and ceremonies.”

1. On coming into force the ‘PO’ in 2002 the ‘PA’ was repealed under Article 185 and controversy herein was brought under the Umbrella of Article 120 that is as under:

“120. Regulation of public assemblies and processions and licensing of same.--(1) Head of District Police or Assistant or Deputy Superintendent of Police may as occasion require, direct the conduct of assemblies and processions on public roads, or in public streets or thoroughfares and prescribe the routes by which and the times at which, such processions may pass.

(2) He may also, on being satisfied that it is intended by any persons or class of persons to convene or collect any assembly in any such road, street or thoroughfare, or to form a procession which would, in his judgment, if uncontrolled, be likely to cause a breach of the peace, require by general or special notice that the persons convening or collecting such assembly or directing or promoting such processions shall apply for a license.

(3) On such application being made, he may issue a license specifying the names of the licensees and defining the conditions on which alone such assembly or such procession is to be permitted to take place and otherwise giving effect to this Article:

Provided that no fee shall be charged on the application for or grant of any such license.”

1. Then it was 2016 when the Punjab Civil Administration Ordinance, (XX of 2016) was promulgated and finally the ‘PCAA’ was enforced on 08.02.2017. The preamble of the ‘PCAA’ shows that its purpose is to institute a comprehensive system of civil administration in the Punjab for efficient administration, improved service delivery, better coordination, supervision and regulatory enforcement and for ancillary matters thereto. Its Section 16 keeping in view the controversy before this Court is quite relevant and is as under: -

“16. Public processions etc.--(1) No public meeting, procession, assembly or gathering shall take place without prior permission in writing of the Deputy Commissioner.

(2) On receipt of an application for the purpose, the Deputy Commissioner, in consultation with the head of District Police, may grant permission subject to such terms and conditions as he deems fit or reject the application after recording reasons.

(3) The Deputy Commissioner may, in consultation with the head of the respective local government requisition such assistance of the local government as may be necessary in the circumstances.”

1. A careful study of Section 30(1) of ‘PA’ (since repealed) and Article 120(1) of the ‘PO’ a makes it clear that a Police officer may as occasion require, direct the conduct of assemblies and processions on public roads, or in public streets or thoroughfares and prescribe the routes by which and the times at which, such processions may pass. (Emphasized).

2. It makes no difficulty to understand that the directions to conduct the assembly by prescribing the routes can be only when there is an application by the person concerned. The question of issuance of license shall arise only when a procession in the judgment of police officer, if uncontrolled, be likely to cause a breach of the peace, and in that eventuality the application for issuance of a license and not simple permission shall be made under Section 30(3) of the ‘PA’ and Article 120 (3) of the ‘PO’.

3. Coming to Section 16 of the ‘PCAA’ learned counsel for petitioners contends that the said provisions do not cover the ‘Traditional Procession’ or ‘Licensed Procession’ but I am not impressed with this argument for the reason that in both the provisions only the word ‘Procession’ has been used without any further classification as ‘Traditional Procession’ or ‘Licensed Procession’. In Mst. Faiz Mai’s case (ibid) where the similar question of ‘Licensed Procession’ was involved, a Division Bench of this Court making reliance on Oxford Dictionary posted the meanings of the word ‘Procession’ as under:

“The action of moving forward in an orderly way, or the fully robed civic dignitaries walk in procession’

It also means a line of people or vehicles that move along slowly, especially as part of a ceremony; the act of moving in this way is funeral procession a torchlight procession. Groups of unemployed people from all over the country marched in procession to the capital. In Oxford Collocations Dictionary, it may be a number of people who come one after the other like a procession of waiters appeared bearing trays of food.”

1. In my view after promulgation of the ‘PCAA’ the ultimate powers are vested with the Deputy Commissioner who while considering the request for any public meeting, procession, assembly or gathering has to consult with head of the District Police and the heads of the respective local government. Therefore I do not find any difficulty to declare that Section 16 of the ‘PCAA’ in the given circumstance has an overriding effect to the provisions of Article 120 of the ‘PO’.

2. Under Section 16 of the ‘PCAA’ for any kind of gathering or procession a permission from the Deputy Commissioner is required and the rationale behind it is obvious that it will not only facilitate the participants to perform their religious obligations in a protected environment but it will also ensure that no untoward incident takes place or there may not be disturbance of peace and public tranquility and that the law and order must not be compromised. By adopting this lawful procedure the district administration will too be in a position to make proper security arrangements.

3. However, in case of discharge of religious obligations, as there is a constitutional guarantee under Article 20 of ‘the Constitution’ moving an application undoubtedly appears to be a formality therefore the Authority concerned must give it positive consideration unless there are compelling circumstances to hold otherwise.

4. In Hakim Sher Ahmad Chishti’ case although it was held that that organizers of a procession have no obligation to submit

any application for permission or license and police officer is required to be in finding out the programme of processions being taken out but the said principle cannot be applied here for a simple reason that the ‘PCAA’ was promulgated in 2017 whereas in 1976 only the prevailing provision was Section 30 of the ‘PA’.

1. In Sharafat Hussain’s and Syed Sarfraz Hussain Bokhari’s cases the question with regard to refusal of issue of licenses for ‘Licensed Processions’ was involved so these precedents are having different features not relevant to the facts and circumstances of the case in hand.

2. A careful study of Faiz Mai’s case shows that the controversy was started in 2013 when the license issued in favour of predecessor in interest of Faiz Mai was cancelled. At the relevant time the dispute was governed under Article 120 of the ‘PO’ as the ‘PCAA’ was not in the field. Even while deciding the appeal in favour of Faiz Mai the ultimate decision was that she may file an application for issuance of license before the District Police Officer, Vehari afresh and if such an application is made, the same will be decided in accordance with law. In that case even by imaginations any question was raised that for ‘Traditional Procession’ no permission was required.

3. In view of above circumstances, this Writ Petition having no force is hereby dismissed. However, the petitioners shall be at liberty to submit an application to the Deputy Commissioner, Jhelum seeking permission under Section 16 of the ‘PCAA’ for taking out the ‘Traditional Procession’ and if such move is made by them, of course considering the sensitivity of the matter and the fundamental rights of petitioners to discharge their religious obligations, the same shall be decided with kind heart by the Deputy Commissioner, Jhelum and certainly in accordance with law after giving a proper right of hearing to them.

(Y.A.) Petition dismissed

[1]. The first month of the Islamic calendar. It is also referred to as the Islamic New Year.

[2]. The word Tazia comes from the Arabic word AZA which translates to commemorating the dead; thus, Tazia means paying condolences, homage and respect to the deceased. In a sense, Tazia is a symbol around which the practice of Azadari (mourning rituals and cultural depiction of the tragedy of Karbala) in Muharram revolves.

(https://www.news18.com/news/lifestyle/muharram-the-importance-of-tazia-a-symbol-of-mourning-rituals-and-cultural-depictionof-the-tragedy-of-karbala-4099226.html)

[3]. Zuljinnah (ذوالجناح) was a grey Arabian Stallion that belonged to Hazrat Imam Hussain (A.S). Zuljinnah was known to be very loyal and was famous for his strength, endurance and devotion. It is said that he shielded Hussain Ibn-e-Ali with his body and was injured taking an arrow meant for his master during the Battle of Karbala (https://en.wikipedia.org/wiki/Zuljanah#:~:text=Zuljanah%20(Arabic%3A%20%D8%B0%D9%88%20%D8%A7%D9%84%D8%A C%D9%86%D8%A7%D8%AD),his%20strength%2C%20endurance%20and%20devotion)

[4]. The flag that was given by Hazrat Imam Hussain (A.S) to Hazrat Abbas Alamdar during the battle of Karbala.

[5]. Azadari (Persian: عزاداری) means mourning and lamentation; and Majalis-e-Aza have been exclusively used in connection with the remembrance ceremonies for the martyrdom of Hazrat Imam Hussain (A.S).

(https://en.wikipedia.org/wiki/Mourning_of_Muharram#:~:text=The%20words%20Azadari%20(Persian%3A%20%D8%B9%D8%B 2%D8%A7%D8%AF%D8%A7%D8%B1%DB%8C,of%20Imam%20Hussain%20(A.S).

[6]. Station House Officer۔

[7]. First Information Report۔

[8]. Pakistan Penal Code (XLV of 1860)۔

[9]. The West Pakistan Maintenance of Public Order, Ordinance, 1960۔

PLJ 2023 Lahore 143 [Rawalpindi Bench, Rawalpindi]

Present:Jawad Hassan, J.

ZIA HUSSAIN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE and others--Respondents

W.P. No. 2832 of 2018, heard on 25.1.2022.

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----Ss. 8 & 9--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage and recovery of maintenance allowance--Decreed--Held: Entitlement for lump sum for iddat period--Appeal of respondent was partially accepted--Modification in judgment--Financial status--Petitioner was not attached any document with written statement regarding his financial status--Petitioner had ample opportunity to prove his financial status even at documentary stage and till decision of suit but not only he, rather his witness, failed to do so--Petitioner has deliberately hidden his source of income from Court just to avoid payment of maintenance allowance to minors--Appellate Court, while considering evidence and needs of minors, enhanced maintenance allowance as no documentary proof was produced by Petitioner before it--Respondent No.3 has failed to bring on record any document to prove income of Petitioner as alleged--Both parties have failed to make out their case in any manner for interference in findings of fact of Courts below which is based on oral as well as documentary evidence produced by parties--Petition dismissed.

[Pp. 147, 148 & 149] B, C, F, G & H

Constitution of Pakistan, 1973--

----Art. 199--Exercising of lawful jurisdiction--Maintenance--Findings on fact recorded by a competent court in exercise of lawful jurisdiction cannot be agitated by invoking writ jurisdiction under Article 199 of Constitution unless same suffer from any legal infirmity, jurisdictional error or perversity causing serious miscarriage of justice. [P. 146] A

PLD 2013 SC 557 ref.

Words and Phrases--

----“Maintenance” means and includes food, clothing, and lodging which is responsibility of father to pay to his children and wife.

[P. 147] D

Words and Phrases--

----“Legal obligation”--Minors are entitled to be maintained by father in manner befitting status and financial condition of father and for this reason Family Court is under an obligation while granting maintenance allowance, to keep in mind financial condition and status of father--Courts are under legal obligation to make an inquiry in this regard. [P. 148] E

Mr. Majid Ali Butt, Advocate for Petitioner.

Ms. Shahida Tanveer, Advocate for Respondents.

Date of hearing: 25.1.2022.

Judgment

Through this single judgment, this Court intends to decide the titled petition as well as Writ Petition No.2682 of 2018 filed by the Respondents as both the petitions have been filed against the same judgments and decrees.

1. For the sake of clarity, Zia Hussain is to be referred as (the “Petitioner”, whereas, Mst. Asma Saleem and others are to be referred as (the “Respondents”).

2. The Petitioner has called in question judgments and decrees of the Family Court as well as Appellate Court, dated 25.04.2018 and 01.09.2018, respectively, whereby maintenance allowance in favour of the Respondents has been fixed on higher side. Writ Petition No.2832 of 2018 has been filed by the Petitioner for reduction of the maintenance allowance. On the contrary, the Respondents through W.P.No.2682 of 2018 have assailed the judgments and decrees of the Courts below for enhancement of their maintenance allowance.

3. The facts of the case are that the marriage of Petitioner and the Respondent No.3 was solemnized on 27.11.2003 and they were blessed with two children namely Muhammad Moazam Zia and Abdul Rafay (hereinafter to be referred as “minors”). Due to strained relations between the spouses, the Respondents filed a suit for dissolution of marriage on the basis of khulla, recovery of maintenance allowance and dowry articles. The said suit was contested by the Petitioner by filing written statement, however, the suit was decreed to the tune of Rs.10,000/- per month for each minor from January, 2016 along with 10% annual increase till their age of majority. Mst. Asma Saleem, was held entitled to recover Rs.30,000/- lumpsum only for iddat period while she was also granted dowry articles as per list Ex.P3 except articles mentioned at Sr. Nos. 9, 12 to 14, 17, 18, 23 to 28, 30, 33, 35 and 36 or alternate price Rs.2,00,000/-. Feeling aggrieved thereof, both the parties preferred their respective appeals, however, appeal of the Respondents was partially accepted with modification while that of the Petitioner was dismissed in the following manner:

“In the light of above discussion, appeal of the appellants is accepted partially whereas appeal of the Respondents dismissed and the impugned judgment and decree is modified to the effect that plaintiffs No.2 and 3 shall be entitled to maintenance allowance at the rate of Rs.15,000/- per month from February, 2015 with 10% increase per annum till their legal entitlement whereas impugned judgment and decree to the extent of maintenance allowance of plaintiff No.1 and dowry articles is upheld”.

1. Learned counsel for the Petitioner inter alia contends that impugned judgments and decrees are the result of mis-reading and non-reading of material available on record; that the learned Trial Court wrongly assumed the financial status of the parties and prices of the dowry articles, therefore, confirmation, as well as, enhancement by the learned Appellate Court has been made under a wrong impression; that the maintenance allowance fixed by the Courts below is also exaggerative and has been awarded without looking into financial status of the Petitioner; that no proof of income of the Petitioner was tendered by Respondents and in absence thereof, fixation of maintenance allowance by the learned Courts below is against the norms of justice.

2. Conversely, learned counsel for Respondents contended that though the learned Appellate Court has modified the judgment and decree passed by the learned trial Court and increased the amount of maintenance allowance yet it is not sufficient to cater with daily needs of minors; that the lower Appellate Court has failed to consider the fact that one minor is serious patient of knee joints who needs proper medication and treatment for which monthly expenses at higher rate are required while the other minor is studying in PAF College, he, too, is in dire need of his educational expenses; that the Petitioner belongs to a rich family and he can easily pay more maintenance to his children.

3. I have heard the arguments of learned counsel for the parties and perused the record.

4. It is an established principle that findings on fact recorded by a competent court in exercise of lawful jurisdiction cannot be agitated by invoking writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 unless the same suffer from any legal infirmity, jurisdictional error or perversity causing serious miscarriage of justice.

5. Plea of the Petitioner is that the Courts below have awarded maintenance allowance at exorbitant rate which he is unable to pay. While the stance of the Respondents is that the Petitioner has strong financial status, who earns handsome income and can easily pay maintenance allowance as prayed for.

6. Admittedly a suit for dissolution of marriage on the basis of khulla and maintenance allowance was filed by the Respondents on 17.12.2016. The Petitioner entered appearance and filed written statement on 27.01.2017. The Family Court keeping in view the evidence of the parties, decreed the suit vide judgment and decree dated 25.04.2018 by awarding maintenance allowance to the minors @ Rs.10,000/- per month with 10% increase till their age of majority while the claim of the Respondents with regard to dowry articles to the tune of Rs.2,00,000/- as alternate price was allowed. The said Respondent was also held entitled to recover maintenance allowance @ Rs.30,000/- lumpsum for her iddate period only. The aforesaid judgment and decree was challenged by both the parties through separate appeals which was decided through consolidated judgment and decree dated 01.09.2018 whereby quantum of maintenance allowance was enhanced from Rs.10,000/- per month to Rs.15,000/- per month while remaining findings of the Family Court were upheld.

7. So far as the ground of the Petitioner with regard to fixation of maintenance allowance at higher side is concerned, it is an admitted position that the Petitioner is a MBBS doctor by profession and during cross examination he admitted that he has not annexed any document with regard to his income with written statement. It is noted that the Petitioner had ample opportunity to prove his financial status even at documentary stage and till decision of the suit but not only he, rather his witness, failed to do so which is clear violation of Section 9 of the Act. Evidence produced by the Petitioner depicts that he had concealed his sources of income from the stage of filing written statement till decision of lower appellate Court and there existed contradictions in the statements on behalf of Petitioner and his father, who was a witness, regarding source of income. The Petitioner appeared as DW-1 and admitted in his affidavit Ex.D1 that he earns Rs.30,000/- per month, for which he has not brought any salary slip to controvert the stance of the Respondents while on the other hand the father of the Petitioner appeared as DW-2 and deposed that the Petitioner pays maintenance allowance after lending money from his brothers and sisters. These contradictions on behalf of the Petitioner and his father clearly reflect the fact that the Petitioner has deliberately hidden his source of income from the Court just to avoid the payment of maintenance allowance to the minors. The Hon’ble Supreme Court of Pakistan in the case reported as "Muhammad Asim versus Mst. Samro Begum and others" (PLD 2018 SC 819) has held that “if the husband/father fails to disclose his salary or financial earnings, adverse inference would be drawn against him”. ‘Maintenance’ means and includes food, clothing, and lodging which is the responsibility of the father to pay to his children and wife. In this regard, it is noted that Section 17(A) of the Act specifically provides in sub-section to fix maintenance. The Honorable Supreme Court of Pakistan has considered the aforesaid issue in the case of “Humayun Hassan versus Arslan Humayun and another” (PLD 2013 SC 557) and held as under:

“Again in interpreting the word “maintenance” some reasonable standard must be adopted. Whilst it is not confined merely to food, clothing, and lodging, it cannot, by any stretch of the imagination, be extended to incorporate within its education at higher levels ad infinitum. What is necessary to decide in this connection is to find out as to what amount of education has to be attained by the child concerned, having regard to the status and other circumstances of his family, to enable it to earn a complete livelihood by honest and decent means. Thus it may not be sufficient to say that the child of a tradesman can maintain itself by working as coolly or by thieving. What is required is that the child must be maintained until it is in a position to earn its livelihood, in an honest ad decent manner in keeping with its family status.

1. Under the law, a father is bound to maintain his children until they have attained the age of majority. The intent and purpose of the maintenance allowance to a minor child is to enable her/him to continue living at least in the same state of affairs as the child was used to live prior to separation/divorce amongst the parents and it would be quite unjust and against the norms of proprietary if due to separation amongst the parents the child has to relegate to a lower level of living standard or he/she is declined the level or standard of education which was achieved by him/her prior to such happening i.e. separation of parents which admittedly has already taken place between the parties. At the same time, there is no escape from the fact that financial status of the father is also to be taken into consideration while awarding maintenance. 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. The Courts are under legal obligation to make an inquiry in this regard. It cannot act arbitrarily or whimsically. But in this case, the Petitioner has deliberately concealed his financial status regardless of admitted fact that he is MBBS doctor by profession and runs a clinic.

2. The learned lower Appellate Court, while considering the evidence and needs of the minors, enhanced the maintenance allowance as no documentary proof was produced by the Petitioner before it, therefore, keeping in view the evidence and basic needs of minors, monthly maintenance allowance for minors was enhanced to

Rs.15,000/- per month with 10% annual increase. As far as the question of recovery of dowry articles is concerned, after taking into consideration the oral, as well as, documentary evidence of the parties, and while applying the concept of wear and tear, learned Family Court held that the Respondent No.1 is entitled to receive her dowry articles as per list provided as Ex.P3 except articles mentioned at Sr. Nos. 9, 12 to 14, 17, 18, 23 to 28, 30, 33, 35 and 36 and in the alternate, the price of the same was fixed as Rs.2,00,000/- which finding was upheld by the lower Appellate Court.

1. So far as the stance of the Respondents with regard to enhancement of maintenance allowance of minors is concerned, it evinces from the record that the Respondent No.3 has failed to bring on record any document to prove income of the Petitioner as alleged. Resultantly, the Family Court keeping in view the basic necessities of life of minors and in view of the available record, granted maintenance allowance to them @ Rs.10,000/- per month which was further enhanced by the lower Appellate Court @ Rs.15000/- per month with 10% annual increase till their age of majority.

2. In view of above reasons, both the parties have failed to make out their case in any manner for interference in the findings of fact of the Courts below which is based on oral as well as documentary evidence produced by the parties. Resultantly, both the captioned writ petitions having no merits are hereby dismissed.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 149

Present: Sardar Muhammad Sarfraz Dogar, J.

NASREEN AKHTAR SIDDIQUI--Petitioner

versus

GOVERNMENT OF THE PUNJAB, etc.--Respondents

W.P. No. 69955 of 2021, heard on 22.11.2022.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Prison Rules, 1978, R. 35--Remission during bail granted period--Petitioner has sought grant of remission to her son--Claim of petitioner that her son is entitled to deduct period during which he was on bail--Period which is not to be counted as sentence served is period which an accused spends out of prison and is not again committed to prison--Petitioner’s son was admitted in jail and was released on bail while co-convict was admitted in jail and he had served his sentence without getting any bail--Petitioner’s son was again admitted in jail serve out remaining sentence--Petitioner’s son was on bail and not confined in jail, he is not eligible for these remissions, nor he is entitled to remissions of period during which he was on bail--He is not entitled to remissions of period during which he was on bail--Petiition dismissed.

[Pp. 150, 152, 153 & 154] A, B, C, D, E, F & G

Syed Qamar Ali Rizvi and Mian Muhammad Salman Idrees, Advocates for Petitioner.

Mr. Muhammad Ajmal Adil, Assistant Advocate General with Naveed Manj, Dy. Superintendent Kot Lakhpat Jail, Lahore for Respondent.

Mr. Ikram Ullah Niazi, DPG.

Date of hearing: 22.11.2022.

Judgment

By way of filing instant petition under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 (“The Constitution”) the petitioner has sought grant of remissions to her son namely, Muhammad Hanif while canvassing the following prayer:

“Under the circumstances, it is, therefore, respectfully prayed that by accepting this writ petition, the remissions granted to the Respondent No. 4 by the Respondents No. 1, 2 & 3 may kindly be granted to the petitioner son in the interest of justice, equity and fair play and he may be released forthwith.

Any other relief in the circumstances of the case, which is deemed fit may be granted to the petitioner.”

1. Before proceeding further to examine the crux of controversy involved, it will be appropriate to summarize the facts of the instant case are as under:

“Muhammad Hanif son of the petitioner along with his co-accused Sohail Masih was indicted to face trial in case F.I.R. No. 48 dated 17.05.2006, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station ANF, Lahore. The learned trial Court, after a full-fledged trial, vide judgment dated 5.7.2011 convicted Muhammad Hanif son of the petitioner and his co-convict Sohail Masih under Section 9(c) of the Act ibid and both were sentenced to undergo imprisonment for life and to pay a fine of Rs. 50,000/- each or in default of payment thereof to further undergo simple imprisonment for six months each. Benefit of Section 382-B, Code of Criminal Procedure was extended to them. Both the convicts namely Muhammad Hanif (petitioner’s son) and Sohail Masih challenged their convictions and sentences before this Court by way of filing separate appeals bearing Crl. Appeals No. 1488 and 1403 of 2011, respectively, but the same were dismissed by this Court through consolidated judgment dated 07.12.2015. Feeling aggrieved, petitioner’s son Muhammad Hanif and co-convict Sohail Masih assailed their convictions before the Hon'ble Supreme Court of Pakistan through Crl. Petition No. 106-L and 107-L of 2016, respectively and the same were also dismissed vide judgment dated 21.06.2018.”

1. Learned counsel for the petitioner in aid of this petition submits that co-convict Sohail Masih, has been released from jail on 07.04.2021 after serving out his sentence and earning fruits of certain remissions available under the law/rules, whereas, son of the petitioner is in incarceration as the respondents are not inclined to grant remissions to him as have been given to said Sohail Masih in spite of the fact that both Sohail Masih and Muhammad Hanif were tried together and the same sentence was inflicted upon them by the learned trial Court and they both were admitted in jail on the same date, i.e. 20.5.2006. Requests for issuance of direction to the respondents to release son of the petitioner after granting remissions as have been given to his co-convict Sohail Masih.

2. On the other hand, learned Law Officers have unanimously opposes this petition while submitting that the petitioner’s son Muhammad Hanif was admitted in jail on 20.05.2006 and was released on bail on 21.07.2009, while his co-convict Sohail Masih was admitted in jail on the same date, i.e. 20.05.2006, whereas, he was released from jail on 7.4.2021 after serving his sentence as he remained in jail without getting any bail till 03.04.2021. On the other hand, the petitioner’s son Muhammad Hanif was again admitted in jail on 05.07.2011 to serve out the remaining sentence awarded to him by the learned trial Court. The petitioner’s son Muhammad Hanif remained on bail w.e.f 21.07.2009 to 05.07.2011, whereas, co-convict Sohail Masih remained confined in jail since the date of his arrest i.e. 20.05.2006 and he had earned 03 Special Remissions (79 months) on the eve of 18th amendments alongwith two other remissions awarded by President of Pakistan vide Notification No. 8/2/2010-Ptns dated 09.04.2010 and Notification No. 8/12/9- Ptns dated 16.04.2009 and Notification No. 8/12/2008-Ptns dated 01.12.2009 (annexures attached with the parawise comments) received through Inspectorate of Prisons Punjab, Lahore, but at that time, petitioner’s son Muhammad Hanif was on bail and not confined in jail, thus, he is not eligible for these remissions.

3. I have heard the learned counsel for the petitioner, the learned Law Officers appearing on behalf of the State and perused the record of the case as well as report/parawise comments submitted on behalf of the respondents with their able assistance.

4. From the facts and circumstances as well as the contentions raised before this Court, the controversy involved in this case can be divided into following twofold:

(i) Whether the period during which son of the petitioner remained on bail after being released from jail until he is again placed in confinement can be considered as the sentence served by him?

(ii) Whether a convicted prisoner undergoing sentence of imprisonment is entitled to remissions of the period during which he was on bail?

1. So far as the claim of the petitioner that her son is entitled to deduct the period during which he was on bail is concerned, before moving further, it would be advantageous to reproduce the relevant Rule 35 of the Pakistan Prisons Rules, 1978. Rule 35 of the Pakistan Prisons Rules 1978 reads as under:

“Periods to be included for sentence. Rule 35. If any prisoner is released on bail pending appeal or revision or his sentence of imprisonment is suspended for some time, for any reason, and such a prisoner is subsequently again committed to prison, the period during which the prisoner was out of prison or on bail or the sentence was suspended shall not count as sentence served, unless the warrant or the order of recommitment otherwise directs:

Provided that--

(a) a prisoner who is released on bail on the day on which the sentence of imprisonment is passed, shall not be deemed to have undergone any part of his sentence until he is again placed in confinement; and that

(b) this rule shall not be deemed to apply to persons undergoing imprisonment under the provision of Section 123 of the Code of Criminal Procedure.”

A bare reading of the Rule 35 of the Pakistan Prisons Rules, 1978 makes it clear that the period which is not to be counted as sentence served is the period which an accused spends out of prison and is not again committed to prison.

1. Coming to the second question as to whether a convicted prisoner undergoing sentence of imprisonment is entitled to remissions of the period during which he was on bail, the clear fallacy of the approach made by the learned counsel for the petitioner can be demonstrated through an illustration. “An accused was tried for an offence under Section 380 PPC. During trial period, he was allowed to remain on bail and the trial prolonged up to, say 3 years. Finally the Court convicted him and sentenced him to imprisonment for three years. Should not the convicted person go to jail at all on the premise that he was on bail for three years and is hence entitled to remission of that period”?

2. Yet another illustration can be shown by stretching the above illustration a little further. If the aforesaid convicted person filed an appeal and got his sentence suspended by the appellate Court and the appellate Court confirmed the conviction and sentence after a period of three years, is he entitled to claim that he need not go to jail at all as he was on bail for more than three years during the post-conviction stage also? If it is to be held that he is entitled to such remission, I am afraid; the criminal justice system would be reduced to a mockery. The absurdity of the claim of the petitioner can thus be demonstrated.

3. Adverting to the merits of the case, the petitioner’s son Muhammad Hanif is seeking remissions which were granted to his co-convict Sohail Masih, who had been released from jail on 07.04.2021 after serving his sentence and earning fruits of remissions available under the law/rules. I have given my anxious considerations to the arguments advanced by learned counsel for the petitioner and found that no convincing or persuasive reason whatsoever has been brought on surface through any material to prove malafide or malice on the part of the jail authorities with regard to non-granting remissions at par of co-convict Sohail Masih. The petitioner’s son Muhammad Hanif was admitted in jail on 20.05.2006 and was released on bail on 21.07.2009, while co-convict Sohail Masih was admitted in jail on 20.05.2006 and he had served his sentence without getting any bail till 03.04.2021. The petitioner’s son Muhammad Hanif was again admitted in jail on 05.07.2011 to serve out the remaining sentence awarded to him by the learned trial Court. The petitioner’s son Muhammad Hanif remained on bail w.e.f 21.07.2009 to 05.07.2011. Co-convict Sohail Masih remained confined in jail since the date of his arrest i.e. 20.05.2006 and he had earned 03 Special Remissions (79 months) on the eve of 18th amendments alongwith two other remissions awarded by President of Pakistan vide Notification No. 8/2/2010-Ptns dated 09.04.2010 and Notification No. 8/12/9-Ptns dated 16.04.2009 and

Notification No. 8/12/2008-Ptns dated 01.12.2009(annexures attached with the parawise comments) received through Inspectorate of Prisons Punjab, Lahore, but at that time, petitioner’s son Muhammad Hanif was on bail and not confined in jail, thus, he is not eligible for these remissions and the bald contention in this regard remained unable to find support from any substance. Thus, it can safely been gathered from the record that the prayer of the petitioner to the extent of granting remissions to her son Muhammad Hanif for the period which he remained on bail is totally misconceived as the plea of the petitioner is inconsistent with the remissions so availed by the co-convict Sohail Masih.

1. For the foregoing reasons, there is no doubt left in my mind that neither the period during which son of the petitioner Muhammad Hanif convict remained on bail after being released from jail can be considered as the sentence served by him nor he is entitled to remissions of the period during which he was on bail, therefore, the instant petition having no merits is hereby dismissed.

(K.Q.B.) Petition dismissed

PLJ 2023 Lahore 154

Present: Safdar Saleem Shahid, J.

Mst. FARIDA BIBI etc.--Petitioners

versus

JUDGE FAMILY COURT etc.--Respondents

W.P. No. 18625 of 2016, heard on 13.1.2022.

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 9--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of maintenance allowance--Decreed--Deprivation from previous maintenance allowance--Suckling baby--Modification in judgment--Entitlement of petitioner for maintenance allowance for period of feeding of minor--Enhancement in maintenance allowance--Challenge to--After separation, lady can live in house of her ex-husband for purpose of feeding in case she had a suckling baby, within limits prescribed by Almighty Allah--Maintenance of mother who had been feeding a child cannot be stopped in any way--Neither child nor lady can be deprived from maintenance allowance in any away--Judgment and decree passed by Judge Family Court, is modified to extent that Plaintiff No. 1 is held entitled for maintenance allowance for period in which she had been feeding minor--Plaintiff had been feeding minor till 13.07.2014 and for that period Respondent No. 2 is duty bound to pay maintenance allowance to plaintiff--Judge Family Court has rightly fixed maintenance allowance of plaintiffs--Petition partially allowed.

[Pp. 159 & 160] A, B, C, D & E

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

----S. 151--Jurisdiction of Family Court--Family Court has exclusive jurisdiction to pass an order on application for enhancement of maintenance allowance even after passing final judgment and decree. [P. 160] F

2016 SCMR 1821 ref.

Miss Kashwar Naheed, Advocate for Petitioners.

Ex-parte for Respondent.

Date of hearing: 13.1.2022.

Judgment

Through instant constitutional petition, the petitioners seek enhancement of maintenance allowance, partly decreed by learned Judge Family Court, Sheikhupura, vide judgment and decree dated 15.09.2015.

1. The brief facts of the family litigation are that Mst. Farida Bibi Petitioner No. 1 and Muhammad Shahid Respondent No. 2 were married on 24.03.2011, Out of this wedlock Ammara Shahid Petitioner No. 2 was born. Differences between the parties arose and ultimately the petitioner filed the suit for past and future maintenance allowance at the rate of Rs. 30,000/- per head per month. The respondent appeared before the Court and submitted his contesting written statement. Consequently, learned trial Court vide judgment and decree dated 15.09.2015 partly decreed the suit for recovery of maintenance allowance and Petitioner No. 1 was held entitled to maintenance allowance at the rate of Rs. 15000/- only for the period of “Iddat” whereas Petitioner No. 2/minor was held entitled to maintenance allowance at the rate of Rs. 5,000/- per month from the date of effectiveness of divorce between the spouses till marriage of Respondent No. 2 (minor) with 10% annual increase. Against the said judgment and decree the petitioners preferred instant writ petition before this Court for enhancement of maintenance partly decreed by learned Judge Family Court Sheikhupura. Hence instant writ petition.

2. The issues No. 1 & 2 were relating to maintenance allowance of the minor and the lady regarding the past as well as future period which were inter-related and inter-connected, hence the same were decided by learned trial Court simultaneously. The learned trial Court discussed the evidence of the parties and apprised that since the lady had left the house of the respondent alongwith minor out of her own will, therefore, she was not entitled to recover the past maintenance allowance. It was further held by the learned trial Court that the petitioner/lady has neither mentioned any specific ground nor mentioned specific date or month when she was expelled and the respondent had not been giving the monthly allowance to her. Relying on these observations, the lady was deprived from her previous maintenance allowance however, she was held entitled the maintenance allowance only for the period of “Iddat” as she was divorced by the respondent and divorce was effected between the spouses on 30.06.2014 vide Exh.D-4. The learned trial Court fixed the maintenance allowance of the minor at the rate of 5000/- per month from the date of divorce between the spouses till the marriage of Respondent No. 2 (minor) with 10% annual increase. The petitioner/plaintiff agitated the judgment and decree in question through instant writ petition as no other remedy was available to the petitioner with the version that the learned Judge Family Court has not decided the issues in accordance with law. It was argued by learned counsel for the petitioner/plaintiff that non-mentioning of exact date of desertion would not disentitle the petitioner from her past maintenance allowance as well as of the minor daughter of the petitioner. It was further argued by learned counsel that maintenance allowance of the minor has not been fixed by the learned trial Court in view of financial status of the respondent as the respondent was serving in Saudi Arabia and he was earning more than Rs. One lac and in this regard the petitioner produced cogent evidence regarding his source of income. It was further contended that the minor is now grown up and studying in a school and her average monthly expenditure on account of school fees, uniform, Qari Sahib fee, transport, foods and other necessities etc are higher than the maintenance allowance due to rise in inflation.

3. The respondent was summoned through summons in accordance with law but inspite of the same he did not appear; consequently he was proceeded against ex-parte.

4. Arguments heard. Record perused.

5. It has been noticed that there are many legal as well as Shari questions before this Court which are being discussed as under:-

6. Whether the lady/plaintiff having a suckling baby with her can be deprived from the maintenance allowance?

7. Whether the maintenance allowance of the minor can be waived by the mother or any of the blood relative?

Since very important Shari questions were involved in the instant case, therefore, learned Assistant Advocate-General was appointed as amicus curiae in order to assist this Court.

1. Perusal of record reveals document Exh. D-I is available on file which shows that an agreement/Punchayat Nama was entered into between the parties where the father of the Petitioner No. 1 had signed the said document in view of its correctness. The contents of said agreement/Punchayatnama is reproduced as under:

یہ کہ میں مسماۃ فریدہ بی بی دختر شاہ محمد حلفیہ بیان کرتی ہوں کہ میں بچی عمارہ دختر محمد شاہد کے کسی قسم کے خرچہ کا مطالبہ نہ کروںگی۔ عمارہ کو رو برو گواہان محمد شاہد کی والدہ سے حاصل کر لی ہے ۔مورخہ 16.03.2004

The aforesaid document was written on 16.03.2015 which was signed and thumb marked by the father of the petitioner namely Shah Muhammad. The petitioner/plaintiff in her statement while appearing as PW-1 has specifically refused that she had ever signed any such document.. During cross-examination she deposed that she had no knowledge regarding execution of Exh. D-1 however, she had signed and thumb marked a blank paper. She further deposed that her father Shah Muhammad had signed the document Exh. D-1 and also thumb marked. The right of the minor cannot be waived by the mother or any of the blood relative. Allah has specifically fixed the responsibility of the minor (suckling baby) to the father. The mother has been given responsibility of feeding the child, whereas the father, if the father is not alive or in a position not to pay the maintenance, then the responsibility will be shifted to mother, if can bear it or to the other family members as given in Section 370 of Muhammadan Law which is reproduced as under:

1. Maintenance of Children and Grand Children.--(1) A Father is bound to maintain his sons until they have attain the age of majority. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (Section 352 ) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.

(2) If the father is poor, and incapable of earing by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.

(3) If the petitioner is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances.

Even this particular document Exh. D-1 will not disentitle the minor from her Shari right of maintenance allowance. Here I will quote the Verse 233 of Surah Al-Baqara:

اور مائیں دودھ پلائیں اپنے بچوں کو (ف۴۶۶) پورے دو برس اس کے لئے جو دودھ کی مدت پوری کرنی چاہئے (ف۴۶۷) اور جس کا بچہ ہے (ف۲۲۸) اس پر عورتوں کا کھانا پہننا ہے حسب دستور (ف۴۶۹) کسی جان پر بوجھ نہ رکھا جائے گا مگر اس کے مقدور بھر ماں کو ضر ر نہ دیا جاۓ اس کے بچہ سے (ف۴۷۰) اور نہ اولاد والے کو اس کی اولاد سے (ف۴۷۱) یاماں ضرر نہ دے اپنے بچہ کو اور نہ اولاد والا اپنی اولاد کو (ف۴۷۲) اور جو باپ کا قائم مقام ہے اس پر بھی ایساہی واجب ہے پھر اگر ماں باپ دونوں آپس کی رضا اور مشورے سے دودھ چھڑانا چاہیں توان پر گناہ نہیں اور اگر تم چاہو کہ دائیوں سے اپنے بچوں کو دودھ پلواؤ تو بھی تم پر مضائقہ نہیں جب کہ جو دینا ٹھہرا تھا بھلائی کے ساتھ انہیں ادا کر دو ،اور اللہ سے ڈرتے رہو اور جان رکھو کہ الله تمہارے کام دیکھ الله رہا۔ (233)

The wisdom mentioned in the aforesaid Verse of Surah Al-Baqara is that father is solely responsible to maintain the minor as well as the lady who is feeding his child. The document Exh. D-1 could be used for any other purpose but not to deprive the minor from her maintenance allowance and the lady who had been feeding the minor. It is legal as well as moral right of every minor/child that he be brought up in healthy atmosphere and be brought up with the feelings of self-respect alongwith educational necessities and it is duty of the father to bring up his children as per his financial status. Although learned Judge Family Court has not relied upon the document Exh. D-I but on the other hand, the learned Judge Family Court had deprived the lady/ mother of the minor from the maintenance allowance regarding the period of feeding of the minor. It is settled principle of law that nobody/parents or any blood relative can waive the right of any minor regarding his maintenance allowance which has been given by ‘Shariah’. So the document Exh. D-I has no legal value in the eyes of law and same is against the spirit of Islamic Rules, therefore, it would not create a hurdle for the fixation of maintenance allowance for the past and future of the minor as well as to the lady. Admittedly the marriage between the parties was solemnized on 24.03.2011 whereas minor daughter was born on 13.01.2012. According to the version of the petitioner/lady taken by her in plaint, she left the house of the respondent one year prior to the institution of the suit. The suit was filed on 24.07.2014, meaning thereby the lady left the house of the respondent on 24.07.2013. Mark DB dated 24.03.2014 is an important document (Talaq Nama) which was tendered by the respondent wherein it was admitted by the respondent that six months prior the lady had gone to her parents house, if said period is calculated, it means that the petitioner/lady had left the house of the respondent on 24.09.2013 whereas the petitioner/lady has claimed that she had left the house of her husband on 24.07.2013. So there is no a big difference in the dates regarding the leaving of the house of the petitioner from her husband’s house/respondent. It is clear indicative of the fact that she was residing with her parents after the aforesaid dates and during the said period neither she was paid the maintenance allowance nor the minor. The question before this Court is that a disobedient lady living separately without any reason should be refused to pay the maintenance allowance for that period she had not performed her matrimonial obligations but here this is a different situation. She had been feeding the minor during the said period. In these circumstances, the father of the minor was under obligation to provide the maintenance to the lady who was feeding his child as per Holly Verse 233 of Surah Al-Baqara: So the learned Judge Family Court has not kept in view the entitlement of the lady for having the previous maintenance allowance on this score which was very important. In all circumstances, the welfare of the miner is the supreme, though she had left the house herself or she was expelled from the house as she had been feeding the minor and maintaining his suckling baby. As per ‘Sharia’ the father is duty bound to maintain his wife who was feeding his child. This principle is established from the traditions of Arabic societies where the children were handed over to the ladies (foster mothers) for feeding and they were paid penny/reward for feeding purpose. It is also a principle that even after separation, the lady can live in the house of her ex-husband for the purpose of feeding in case she had a suckling baby, within the limits prescribed by Almighty Allah. Meaning thereby, the maintenance of the mother who had been feeding a child cannot be stopped in any way, however, after that period the Court can assess the evidence adduced by the parties and then can pass the appropriate order regarding the maintenance allowance. In the instant case, the lady had been feeding the child, therefore, neither the child nor the lady can be deprived from the maintenance allowance in any away. This Court has reason to believe that the learned Judge Family Court has not taken into consideration this aspect of the matter. The judgment and decree dated 15.09.2015 passed by learned Judge Family Court, Sheikhupura is modified to the extent that the Plaintiff No. 1 Mst. Farida Bibi/lady is held entitled for maintenance allowance for the period in which she had been feeding the minor. Under the Islamic Rules, the feeding period has been fixed by the Fiqa as 2½ years. Prima facie, the Plaintiff No.1/lady had been feeding the minor for the period of 2½-years. Ammara Shahid minor was born on 13.01.2012 and if the aforesaid period is calculated, then it comes on record that the plaintiff/lady had been feeding the minor till 13.07.2014 and for that period the Respondent No. 2 is duty bound to pay the maintenance allowance to the plaintiff/lady. As discussed above the admitted dates of desertion of plaintiff-lady from the house of the respondent was noted as 24.07.2013 & 24.09.2013, therefore, the plaintiff-lady is held entitled for the past maintenance allowance at the rate of Rs. 5,000/- per month (which was fixed by learned Judge Family Court for minor) w.e.f 24.07.2013 to 13.07.2014 with 10 % annual increase. The maintenance allowance of the plaintiff-lady for the period of Iddat fixed by learned Judge Family Court is upheld. So far as contention of learned counsel for the petitioners that maintenance allowance of the plaintiffs/petitioners was not fixed by the learned trial Court keeping in view the financial status of the respondent is concerned, I have gone through the whole evidence which shows that no such reliable document regarding the monthly income of the respondent was produced before the learned trial Court. Keeping in view the evidence available on record, the learned Judge Family Court has rightly fixed the maintenance allowance of the plaintiffs. As far as the contention of learned counsel for the petitioners for enhancement of maintenance allowance on the ground of daily growing requirement of the minor is concerned, suffice it to say that the Family Court has exclusive jurisdiction to pass an order on the application for enhancement of the maintenance allowance even after the passing the final judgment and decree. Reliance in this regard can be placed on the case titled Lt. Col. Nasir Malik vs Additional District Judge Lahore (2016 SCMR 1821) in which the Hon’ble Supreme Court of Pakistan held as follows:

“Family Court had exclusive jurisdiction relating to maintenance allowance and the matters connected therewith.

Once a decree by the Family Court in a suit for maintenance (for minors) was granted, thereafter, if the granted rate for monthly allowance was insufficient and inadequate, in that case, institution of fresh suit was not necessary rather the Family Court may entertain any such application (under S.151,C.P.C) and if necessary make alteration in the rate of maintenance allowance”

In these circumstances, the petitioners may move the application for enhancement of maintenance allowance of the minor before the Court of competent jurisdiction.

1. For what has been discussed above, instant petition is partly accepted and impugned judgment and decree dated 15.09.2015 passed by learned Judge Family Court is modified to the extent that the plaintiff-lady is held entitled for the past maintenance allowance at the rate of Rs. 5,000/- per month (which was fixed by learned Judge Family Court for minor) w.e.f 24.07.2013 to 13.07.2014 with 10% annual increase. The maintenance allowance of the minor and the plaintiff-lady for the period of Iddat fixed by learned Judge Family Court is upheld. There is no order as to costs.

(Y.A.) Petition partially allowed

PLJ 2023 Lahore 161

Present: Sardar Muhammad Sarfraz Dogar, J.

MEHMOOD AHMAD--Petitioner

versus

ASJ, etc.--Respondents

W.P. No. 73916 of 2022, decided on 23.11.2022.

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

----S. 22-A & 22-B--Registration of criminal case--Civil suit--Civil nature proceedings--Agreement to sell--Dismissal of--Ex-Officio Justice of Peace after hearing counsel for parties, declined prayer of petitioner with regard to lodging FIR--Genuineness or otherwise of agreement to sell would be validly determined by Civil Court, after adducing evidence of parties. [Pp. 162, 163, 164] A, B, C & D

2021 SCMR 468 ref.

Constitution of Pakistan, 1973--

----Art. 199--Invoking of writ jurisdiction in presence of adequate remedy being available is not desirement of law. [P. 164] C

2003 YLR 2168; PLD 1992 Lahore 178 ref.

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

----S. 22-A/22-B--Civil and criminal liability--Where ultimate criminal liability depends on fate of civil lis, criminal proceedings or, by operation of law, required to be stopped. [P. 164] D

2010 SCMR 1835 ref.

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

----S. 22-A/22-B/195 & 476--Provision of section 476 Cr.P.C is enacted with an object to ensure that course of justice must not become polluted with impurities. Through this provision, a procedure is provided to check certain offences, affecting administration of justice. [Pp. 164 & 165] E

1970 SCMR 10 ref.

Barrister Muhammad Imran Ch., Advocate for Petitioner.

Mr. Muhammad Ajmal Adil, A.A.G on Court’s call.

Date of hearing: 23.11.2022.

Order

This petition is voiced against the order dated 11.11.2022 whereby the learned Addl. Sessions Judge/ex-Officio Justice of Peace, Narowal dismissed the application filed under Section 22-A & 22-B Cr.P.C, by the petitioner for registration of case against the proposed accused.

1. Precisely, the petitioner had moved an application under Section 22-A & 22-B Cr.P.C. for registration of criminal case against Respondents No. 3 to 6 before the learned ex-Officio Justice of Peace, Narowal, contending therein that proposed accused in collusion with each other have prepared a bogus power of attorney on behalf of the petitioner and agreement to sell on stamp paper by putting the fake signature/thumb impression of the petitioner to usurp his property. Incident was immediately reported to the concerned Police Station by moving written application for registration of the FIR, but no action was taken, however, no fruitful result could be achieved.

2. The petitioner then approached the Ex-Officio Justice of Peace/Additional Sessions Judge, Narowal by filing petition under Sections 22-A and 22-B, Cr.P.C for issuance of direction to the concerned SHO to lodge FIR against the private respondents. The learned Ex-Officio Justice of Peace/Additional Sessions Judge, Narowal, after hearing learned counsel for the parties, declined the prayer of the petitioner with regard to lodging the FIR.

3. The learned counsel for the petitioner, inter alia contends that with regard to criminal offence, Station House Officer (SHO) of concerned police station is bound to record the statement of the petitioner. He has further contended that documentary evidence is available with Ex-Officio Peace of Justice but the learned Ex-Officio Justice of Peace erroneously declined prayer of the petitioner for lodgment of the FIR on the premise that the matter is of civil nature which is hardly a ground to refuse the relief sought by the petitioner, even otherwise; it was a good case for issuance of direction to the concerned SHO for recording the statement of the petitioner. He has further contended that the order of learned Ex-Officio Justice of Peace is illegal and without legal justification. He further argued that the learned ex-Officio Justice of Peace has failed to appreciate that the provisions of Section 195(1)(c) Cr.P.C. are not applicable to the subject case because the cause of action for proceeding against the forger arose immediately when the offence of forgery as defined under Section 463 PPC was committed. He has lastly contended that the petitioner has prima facie made out a case of cognizable offence, as such; the SHO concerned cannot refuse to register FIR who is duty bound under Section 154, Cr.P.C. to record the statement of the petitioner.

4. Learned AAG, on Court’s call, accepts notice and has opposed the instant application and contended that petitioner has alternate remedy available under the law i.e. the Private Complaint to be filed before the competent Court of law.

5. Heard and perused the record.

6. It has been gathered from the record that proposed accused/Respondent No. 3 had instituted a civil suit for specific performance of agreement to sell titled Aftab Ahmad vs. Khushi Muhammad, etc. on the basis of agreement to sell which is subject matter of instant petition and the said suit was decreedvide judgment and decree dated 02.04.2022 and sultani bainama on the basis of said judgment and decree has been executed in favour of the decree holder/ Respondent No. 3. Though the petitioner has challenged the aforesaid judgment and decree dated 02.04.2022 by way of filing application under Section 12(2) CPC before the concerned civil Court but the said judgment and decree is still holds field, thus, genuineness or otherwise of the said document/agreement to sell would be validly determined by the learned civil Court, after adducing evidence of the parties. Admittedly, it seems that the matter between the parties is of civil nature. In the case reported as Jamal Khan vs. Secretary Home Department (2021 SCMR 468), the Honourable Supreme Court, in a matter involving civil dispute, refused to interfere in the findings whereby registration of a criminal case was declined.

7. Needless to mention here that when the FIR is refused to be registered by the police then other remedies are available for the aggrieved party; firstly, by approaching the Sessions Judge/Ex-Officio Justice of Peace, for exercising of power U/s 22-A (6) Cr.P.C.; secondly, by approaching the Magistrate for exercising of power under Section 156 (3) Cr.P.C.; and lastly, by filing a direct complaint U/S 200 Cr.P.C.. Allegedly, the petitioner in the first instance approached the concerned SHO for registration of the FIR but he was refused, thereafter the petitioner has availed the second remedy of filing application U/S 22-A & 22-B Cr.P.C. before Ex-Officio Justice of Peace/Sessions Judge, where his application was dismissed. Thereafter the petitioner has not availed two other remedies available for him for redressal of his grievance. In such circumstances, invoking of writ jurisdiction in the presence of adequate remedy being available is not desirement of law. Reliance can be placed on the Case of GhulamAli alias Sadoro and others v. S.H.O., Police Station Veehar, District Larkana and others (2003 YLR 2168).

8. It has been held in “Muhammad Shafi vs. Deputy Superintendent of Police etc” (PLD 1992 Lahore 178) that provisions of S. 195 (1)(c), Cr. P.C, as regards offences described in S. 463, PPC or offences punishable under S. 475, PPC or S. 476 PPC, apply to a document which is produced or given in evidence in a suit or in any other proceedings in a Court but not those documents which had been forged before the institution of the suit or proceedings. In the case in hand, alleged forged agreement to sell was used by the proposed accused in a civil suit for specific performance of agreement to sell, which was admittedly decreed vide judgment and decree dated 02.04.2022, against which application under Section 12(2) CPC of the petitioner is pending but the operation of the judgment and decree has not been suspended. Moreover, criminal Court is barred to take cognizable of the matter relating to civil agreement which is already under challenge before the civil Court. It is well settled law that where the ultimate criminal liability depends on the fate of civil lis, the criminal proceedings or, by operation of law, required to be stopped; reliance is placed upon case reported as Akhlaq Hussain Kayani vs. Zafar Iqbal Kayani and others (2010 SCMR 1835).

9. I am of the view that if the controversy between the parties is decided solely on the grounds mentioned above, it is likely to give rise to multiplicity of the litigation. So in this view of the matter, it would be appropriate to settle the dispute finally. The provision of

Section 476 Cr.P.C. is enacted with an object to ensure that the course of justice must not become polluted with impurities. Through this provision, a procedure is provided to check certain offences, affecting the administration of justice. To be more precise, it provides a procedure of trial relating to certain classes of offences mentioned in Section 195 (1) Clause (b) or (c) of Cr.P.C., if committed in relation to a proceeding in any Civil, Revenue or Criminal Court. However, before proceeding under Section 476 Cr.P.C, the Courts are obliged to see that from the contents of the complaint, if presented, some offence mentioned in Section 195(1)(b)(c) of Cr.P.C. is made out. Proceedings under Section 476 Cr.P.C ought not to be used by the litigants as a tool to wreak private vengeance, to satisfy personal grudge or for settling the personal score. Similarly, a process is not to be issued under Section 476 Cr.P.C. as a matter of routine on each and every application moved by a litigant. The Court concerned is required to examine the material which is being placed before him and then to see that whether it gives rise to any of the offences, mentioned in the relevant clauses of Section 195(1) of Cr.P.C. or not. While observing so, this Court is guided by the judgment of Hon’ble Supreme Court of Pakistan reported as Ch. Feroze Din v. Dr. K.M Munir and another (1970 SCMR 10).

1. In view of above, I found no legal infirmity, irregularity or jurisdictional error in the order dated 11.11.2022. Therefore, this petition, having no force, is dismissed in limine. However, the petitioner is at liberty to avail alternate remedy, available under the law, if so desires.

(K.Q.B.) Petition dismissed.

PLJ 2023 Lahore 165 (DB) [Bahawalpur Bench, Bahawalpur]

Present: Muzamil Akhtar Shabir and Sultan Tanvir Ahmad, JJ.

Mst. ALIA SHAMEEM--Appellant

versus

NATIONAL BANK OF PAKISTAN etc.--Respondents

E.F.A. No. 5 of 2016/BWP, heard on 26.1.2022.

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

----Ss. 9 & 22--Civil Procedure Code, (V of 1908), O.XXI, Rr. 54(2), 66 & 67--Suit for recovery--Decreed--Auction of suit property--Execution proceedings--Filing of objection petition--Dismissed--Appeal case was remanded--Objection petition was dismissed after post remand proceedings--Ex-parte decree--Change of address of petitioner--Change of date and venue for auction without permission of Court--Delegation of powers--Illegalities and irregularities were committed-- Entire venue of auction has been changed without intimation to Banking Court or taking appellant into confidence--If venue was required to be changed under any compelling circumstances it was imperative to make adequate circulation of such change, to ensure transparency of proceedings--Gross illegalities and infirmities have rendered in entire auction nullity--Findings of Banking Court regarding purported delay in filing this objection petition are devoid of cogent reasons and contrary to law--Banking Court has overlooked contentions and material available on record--When auction is challenged on ground of fraud in publication and conduct of sale, time can only run against victim upon gaining a clear and definite knowledge of facts which constitutes fraud--Plea of bona fide is adopted on behalf of subsequent purchasers, who have opted to purchase Property during pendency of objections and disputes, they shall sink or swim with auction-purchaser of Property--Appeal allowed.

[Pp. 169, 171 & 172] A, C, D, E, F & H

2011 CLD 1517, 2018 CLD 233, PLD 1996 SC 375, PLD 1961 Dacca 589 and PLD 1993 Lahore 706 ref.

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

----O.XXI, R. 66--Duty of Court--Order XXI, Rule 66 of the, CPC imposes duty upon Court to ensure that proclamation of sale is in language of Court, when Property is to be sold by public auction, which at same time should be drawn after notice to concerned Judgment Debtor and provision of Order XXI, Rule 66 of the, CPC have been held mandatory in nature--Unbridled delegation of such powers to Court-auctioneer is not permissible in law. [P. 169] B

Mr. Muhammad Tayyab Zameer Khan, Advocate for Appellant.

Syed Waseem Ahmad, Advocate for Respondent No. 1/Bank and Mr. Nadeem Iqbal Ch. Advocate for Respondents No. 8 to 11.

Respondents No. 3,4,7 Ex-parte.

Date of hearing: 26.1.2022.

Judgment

Sultan Tanvir Ahmad, J.--Present Execution First Appeal, filed under Section 22 of Financial Institution (Recovery of Finance) Ordinance, 2001 (‘FIO, 2001’) is directed against Judgment dated 05.04.2016 passed by learned Banking Court, Bahawalpur.

1. Facts, necessary for the disposal of the present Appeal are, that on 26.06.1999 property No. 1065-A, measuring 14 Kanals 10 Marlas, situated in Mouza Hakra, Tehsil Khanpur District Rahim Yar Khan, as further detailed in the pleadings (hereinafter called as the ‘Property’) was auctioned in execution of Judgment and Decree dated 30.07.1995 passed against M/s. Roshan Din Textile Mills and others. The auction/sale was set aside on 25.11.2009 as a result of the instant objection petition, however, the case was remanded by this Court vide Judgment dated 17.11.2015 passed in appeals bearing E.F.A. No. 01 of 2010 titled “Muhammad Arshad etc. vs. National Bank of Pakistan, E.F.A. No. 02 of 2010 titled “Mst. Maria Javed etc. vs. National Bank of Pakistan and E.F.A. No. 03 of 2010 titled “Muhammad Azhar etc. vs. National Bank of Pakistan”. Upon aforesaid remand order, the learned Banking Court dismissed the objection petition of the appellant vide Judgment dated 05.04.2016.

2. Aggrieved from the same, present Appeal has been filed.

3. Mr. Muhammad Tayyab Zameer Khan, learned counsel for the appellant has submitted that whole proceedings, right from inception to the end, are replete with gross irregularities which are coupled with element of fraud staged by auction-purchaser and the learned Court-auctioneer; later this stage of fraud was joined by Respondents No. 8 & 9 etc. (the ‘subsequent purchasers’), who have opted to purchase the Property despite knowledge of the dispute, to deprive the appellant-lady from her lawful rights. It is further contended by the learned counsel that a bungalow built on more than 14-Kanals, located in the heart of the City, which was worth more than Rs. 15 million in the year 1999, has been thrown away at paltry amount of Rs. 850,000/-, without any survey or assessment of fair value or forced sale value of the Property; that Order 21 Rules 66, 67 & 54(2) of the Code of Civil Procedure, 1908 (the ‘Code’) as well as several others substantive provisions of law have been violated; that the decree-holder bank was fully aware of the fact that the appellate-lady shifted to her residence at Mohan Pura, Tehsil and District Rawalpindi due to her disputes with Shamim-ud-Din (husband of appellant), as reflected from the pleadings; that the knowledge of the decree-holder Bank regarding change of address is abundantly evident from the execution petition which only has the address of appellant at Rawalpindi but without disclosing the correct house number and other particulars; that no valid service was ever effected at the aforesaid address; that appellant-lady remained unaware of the Judgment and Decree dated 30.07.1995 (which is ex-parte to her extent) and she was deliberately kept in dark about the proceedings in execution and auction in question, which came to her knowledge 2 to 3 days prior to filing of the objections, in the manners that are narrated in paragraphs No. 8 & 9 of the objections Petition.

4. Conversely, Mr. Nadeem Iqbal Ch., learned advocate has submitted that the delay in filing of objection is fatal in this case and subsequent purchasers being bona-fide buyers for the value of the Property cannot be deprived of their rights. It is further argued that the interest of the auction-purchaser as well as the subsequent purchaser are required to be protected; that earlier a petition, filed by the husband of the appellant was dismissed, hence the present objection petition is not maintainable, which even otherwise is result of afterthought to frustrate the order dated 01.09.1999; that the grounds taken by the appellant-lady are flimsy in nature. Syed Waseem Ahmad, learned counsel for National Bank has also opposed the Appeal and adopted the arguments of Mr. Nadeem Iqbal Ch., Advocate.

5. We have heard the arguments of the learned counsel for the parties and with their able assistance, record has been perused carefully.

6. Order sheet pertaining to the year 1997 to 1999 reflects that instead of settling down the terms and conditions of the auction in the language of the Court or granting specific approval regarding the same, as required under Order 21 Rule 66(1) of the Code, the same was left at the complete discretion of the learned Court-auctioneer leading to manifold and major mistakes. The proclamation was published in newspapers “Daily Rehber” and “Daily Maghrabi-Pakistan” on 30.04.1999, without fixing any reserved price of the Property. The said publication reflects the date of auction as 19.06.1999 at 10:00 a.m. and stipulates the venue of auction at the site. However, the report of auction shows that the auction was adjourned to 26-06-1999, when instead of holding the auction at site the venue was abruptly changed to the office of the decree-holder without fresh publication or proper circulation of change of date and venue. The learned auctioneer has not even bothered to take any permission in this regard from the learned Banking Court. Though, the adjournment is not for the period longer than seven days but the learned counsel for the respondents have failed to show us from the record that change of venue and date was sufficiently brought in the knowledge of the possible and prospective bidders.

7. It is not the case where merely an adjournment, for less than a period of seven days, has been granted in terms of Order XXI Rule 69(2) of the Code rather the entire venue of the auction has been changed without intimation to the learned Banking Court or taking the appellant into confidence, who is concerned judgment-debtor and owner of the Property.

8. The position of law, prior to the amendment through Notification No. 237/Legis/XI-Y-26 dated 15th August, 2018 (published in the Punjab Gazette No. 08 on 22nd August, 2018), is amply clarified by this Court in cases titled “Brig. (Retd.) Mazhar-ul-Haq and another vs. M/s. Muslim Commercial Bank Limited, Islamabad and another” (PLD 1993 Lahore 706) and “Muhammad Hassan vs. Messers Muslim Commercial Bank Ltd. Through Branch Manager and 3 others” (2003 CLD 1693 Lahore). It has been settled that Order XXI, Rule 66 of the, CPC imposes the duty upon the Court to ensure that the proclamation of sale is in the language of the Court, when the Property is to be sold by the public auction, which at the same time should be drawn after notice to the concerned Judgment Debtor and the provision of Order XXI, Rule 66 of the, CPC have been held mandatory in nature. The unbridled delegation of such powers to the learned Court-auctioneer is not permissible in law.

9. There is hardly any explanation given for change of venue of the auction. If the venue was required to be changed under any compelling circumstances it was imperative to make adequate circulation of such change, to ensure transparency of the proceedings. Such change of venue is in utter disregard of the law laid down by the Honourable Supreme Court of Pakistan in case titled “Mst. Nadia Malik vs. Messers Makki Chemical Industries Pvt. Ltd. through Chief Executive and others (2011 CLD 1517) and case titled “Siraj Ahmad through L.Rs vs. Faysal Bank Limited and others” (2018 CLD 233), which by itself makes the impugned proceedings highly suspicious.

10. These violations are further added by the absolute failure of fixation of reserved price. The situation could have been little different, had it been plainly a case of fixing reserve price at lower side and provided the remaining proceedings were in accordance with law as well as if from record it could have been reflected that people interested in auction and prospective or potential buyer of the Property were attracted through suitable circulation of the invitation to treat. In the present case, nothing appears to have taken place in regular and normal course, hence, failure to give reserved price in proclamation is significant, rather this omission is fatal in the given circumstances. We are fortified in our view by the law laid down by Honourable Supreme Court of Pakistan in case titled “National Bank of Pakistan and 117 others vs. SAF Textile Mills Ltd. and another” (PLD 2014 SC 283) and case titled “Zakaria Ghani and 4 others vs. Muhammad Ikhlaq Memon and 8 others” (PLD 2016 SC 229).

11. In National Bank of Pakistan and 117 others (Supra), the Honourable Supreme Court of Pakistan while dealing with the then Section 15(4) of FIO, 2001 observed the absence of stipulation as to reserve price is fatal for the entire provision of law. We would like to reproduce here the following observations of the Honourable Supreme Court:--

“40. As a supplement to the aforesaid, it may be noted that no doubt, some rudimentary procedure for conducting such sales is provided in sub-section (4) of Section 15 of the Ordinance of 2001 but yet again the time honoured and well entrenched principle of fixation of a “reserve price” is conspicuous by its absence. It is now well settled law that even where the sale is conducted by the Court a “reserve price” is essential and the absence thereof may be fatal. In this behalf, it may be advantageous to refer to the majority judgment in the case reported as Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No. 2, Karachi and others (2013 SCMR 1419), the relevant observations thereof are reproduced hereunder:

“Agreed that the expression “reserve price” does not find mention in the relevant rule but the words used in the rule pointedly hint thereto. A sale, in its absence, is apt to give walkover to maneuvers to fix any price of their choice. A sale thus effected is no sale in the eye of law especially when the number of bidders is meager, which, indeed is close to nill. A superstructure of sale built on such a shaky infrastructure cannot sustain itself. Neither the buttress of limitation nor the ministerial nature of the rule can prevent it from a fall.”

1. The conscious exclusion of remedies and deliberate omissions provide for a due process of conduct of sale including the absence of the necessity to fix a reserve price becomes even more significant, as the Financial Institution has been clothed with the right to purchase the property put by it to public auction at the highest bid. No permission, in this behalf, is required from any Court, as is in the normal course in terms of C.P.C. Thus, in fact, it is a Financial Institution, which is the seller, buyer, the auctioneer and the beneficiary, hence enabled to take full advantage of the misfortune of the mortgagor/debtor thereby facilitating predatory and exploitative behaviour which perhaps would not sit well with Article 3 of the Constitution”.

(Emphasis Supplied)

1. The Honourable Supreme Court of Pakistan in the case of “Zakaria Ghani and 4 others (Supra) stressed upon the need to reaffirm the sanctity of judicial sales, authoritatively and definitively, to preserve the interest of decree-holders, judgment debtors, purchasers and public in general by avoiding setting aside the sales merely on the basis of technicalities or mere irregularity, at the same time observed that such sales are to be set-aside in the cases of clearly established frauds to protect this sanctity of judicial sales. The following extract of the said the Judgment is highly relevant:-

“…The sanctity of judicial sales needs to be reaffirmed authoritatively and definitively in the public interest as well as in the interest of decree holders and judgment debtors. This can only be done if judicial sales are only set aside if it is clearly established that there has been fraud. A mere irregularity, even if material, should not suffice unless it can be shown that material loss has been caused. It is also important to note that where the irregularity consists of errors by the Court, or by Court officials such as the Nazir, no party should be made to suffer by reason thereof…”

1. Material irregularities are committed at every step of the proceedings and fraud in publication as well as conduct of auction is leaping out of the record of at hand case. There is nothing showing that one fourth of the auction price was deposited on the date of the sale which is though written in the report but the draft is prepared on subsequent dates. In our opinion, the gross illegalities and infirmities have rendered in the entire auction nullity.

2. We have also noticed that the findings of the learned Banking Court regarding purported delay in filing this objection petition are devoid of cogent reasons and contrary to the law laid down in cases titled “Mst. Manzoor Jahan Begum and others vs. Haji Hussain Bakhsh” (PLD 1966 Supreme Court 375), “Nur Ahmed Chowdhury vs. Ruhul Amin Chowdhury” (PLD 1961 Dacca 589) and “Brig. (Retd.) Mazhar-ul-Haq and another vs. M/s. Muslim Commercial Bank Limited, Islamabad and another” (PLD 1993 Lahore 706). There is nothing suggestive from record or persuasively argued before us that appellant-lady, who has been subjected to a fraud, caused any delay in contacting the learned Court upon gaining specific knowledge of the facts which constituted the fraud. It appears that the learned Banking Court has presumed the knowledge of the appellant from the fact that her husband remained involved in the litigation and his objections were already dismissed by the Court.

While presuming the same, learned Banking Court has overlooked the contentions and material available on record clearly establishing that both of them (appellant and her husband) separated much prior to the impugned auction. It is settled preposition of law that when auction is challenged on the ground of fraud in publication and the conduct of sale, the time can only run against the victim upon gaining a clear and definite knowledge of the facts which constitutes the fraud. The following extracts of the Judgment in case titled Nur Ahmed Chowdhury (Supra) is highly relevant:-

“In a case to have the sale set aside under Order XXI, rule 90 of the Civil Procedure Code on the ground of fraud in the publication and conduct of the sale, the judgment-debtor must have knowledge not merely of the fact of sale but a clear and definite knowledge of the facts which constitute the fraud before time can run against him. It is not sufficient to know about some hints and clues which, if vigorously and actively followed up, might have led to a complete knowledge of the fraud. This is supported by the case of Bhusan Mani Dasi v. Profullo Kristo Deb and the case of Biman Chandra Datta v. Promotha Nath Ghose”.

1. As a last resort, plea of bona fide is adopted on behalf of the subsequent purchasers, who have opted to purchase the Property during the pendency of the objections and disputes, hence they shall sink or swim with the auction-purchaser of Property.

2. For what have been discussed above, the objection petition of the appellant is accepted and impugned auction as well as the sale certificate are declared illegal. This execution appeal is allowed and impugned Judgment passed by learned Judge Banking Court is set aside. No order as to costs.

(Y.A.) Appeal allowed

PLJ 2023 Lahore 172 [Multan Bench Multan]

Present: Sultan Tanvir Ahmad, J.

Mst. KANEEZA BIBI and 4 others--Petitioners

versus

SABIR HUSSAIN and 3 others--Respondents

C.R. No. 296-D of 2012, heard on 4.10.2022.

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

----S. 42--Civil Procedure Code, 1908, S. 115--Suit for declaration--Decreed--Appeal--Allowed--Agreement to sell and sale consideration was not proved by respondents--Revenue officials, lambardar and member of union council were not appeared in favour of mutation--Balance of probabilities--Ingredient of contract--There is no explanation available on record as to why lumberdar or members of union council, being preferred witnesses have not appeared to identify and sign mutation--Tehsildar has never appeared to depose in favour of mutation or face cross-examination--Mere entry in diary or relevant page of diary is not a primary evidence, especially when revenue officer effecting entry has not himself produced daily diary before Court and he has not faced cross-examination of rival party--One of most important ingredient of contract is consideration and in present case, payment of alleged amount from respondent’s side to revision-petitioners--Respondent’s side produced numerous witnesses but, besides contradictory statements noted none of them have deposed that they have seen respondent’s side making payment to Hashim deceased--It was imperative for respondents to independently prove element of consideration, which is one of most essential ingredients of contract, by producing direct evidence--Both parties led their respective evidence, Court has to evaluate evidence on balance of probabilities and case is to be decided in favour of one party, unless evidence of rival arises to same degree of cogency as is required to discharge burden in civil matters--Evidence of revision-petitioners is not very coherent and contains inconsistency but more probable than evidence of other side--It appears that it escaped view of Appellate Court and Court has relied upon statements of DWs, who were numerous in number, but none deposed as to consideration by giving direct trustworthy evidence and declared mutation in accordance with law, thus, fell to an error--Petition was allowed. [Pp. 177, 178. 180, 181, 182 & 183] A, B, C, D, E & F

2022 SCMR 1231, 2007 SCMR 957, 2003 SCMR 1008, 2022 SCMR 1009, 1991 SCMR 1508 and PLD 2007 SC 582 ref.

Mr. Muhammad Faisal Bashir Chaudhary, Advocate for Petitioner.

Malik Muhammad Zafar Iqbal, Advocate for Respondents.

Date of hearing 4.10.2022.

Judgment

Through the present Civil Revision, filed under Section 115 of the Code of Civil Procedure, 1908 (the “Code”), the revision-petitioners have assailed the judgment and decree dated 02.03.2012 passed by learned Additional District Judge, Khanewal, whereby, while accepting civil appeal No. 121-13 of 2010, the learned Appellate Court has set-aside the judgment and decree dated 03.04.2010 passed by learned Civil Court, Khanewal.

1. Facts, necessary for the disposal of the present revision petition, are that the revision-petitioners filed declaratory suit dated 25.02.2006 with the averments that they are owners in possession of the property measuring 32-Kanals in Killa No. 16/2, 17/2, 18/1, 23/2, 24, 25 in Muraba No. 57, Khatooni No. 199, Khewat No. 104 according to register haqdaran-e-zamin for the year 1996-1997 situated in chak No. 45/10-R Tehsil and District Khanewal (the “suit property’), which was allotted to the revision-petitioners by the cooperative farming society and one Bashir Ahmad, father of the respondents, who was cultivating the suit property being its lessee, has got recorded Mutation No. 526 dated 29.08.1999(the “mutation’) in the revenue record, while obtaining thumb impression of the predecessor of the revision-petitioners on the blank paper, by committing fraud and forgery. The revision-petitioners particularly challenged the consideration of the agreement on the strength of which aforesaid mutation was passed. The suit was contested by filing written statement by maintaining that father of the revision-petitioners Hashim deceased has sold the suit property to the respondents and received Rs. 430,000/- as earnest money. Out of the divergent pleadings of the parties, following seven (07) issues were framed:

2. Whether the plaintiff has no cause of action and locus standi to file the suit? OPD

3. Whether the suit is not maintainable as per preliminary objection No. 4? OPD

4. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? If so what is its correct valuation for the purpose of Court fee and jurisdiction? OPD

5. Whether the plaintiff has filed the suit in order to harass the defendants and defendants are entitled to get special cost u/s 35-A CPC? If so to what extent? OPD

6. Whether the impugned Mutation No. 526 dated 29.08.1999 was validly executed in favour of defendants? OPD

7. Whether the impugned Mutation No. 526 dated 29.08.1999 regarding disputed property is false, against law and facts, without consideration, liable to be cancelled and based on fraud? OPP

8. Relief.

9. Both the parties led their respective evidence. Hashim, predecessor of the revision-petitioners, appeared as PW-1. Mushtaq Hussain and Muhammad Arif appeared as PW-2 and PW-3. As documentary evidence, copy of jamabandi, copy of khasra gardawari, copy of register haqdaran-e-zamin and sale deed in favour of the predecessor of the revision-petitioners were brought on record as Exh.P1 to Exh.P3. On the other hand, Mushtaq Ahmad, Shoaib Ahmad patwari halqa Chak No. 45/10-R, Iqbal Hussain, Manzoor Hussain, Syed Faqir Hussain, Muhammad Shafique, Rab Nawaz and Sabar Hussain appeared as DW-1 to DW-8. Agreement to sell dated 14.04.1999, attested copy of Mutation No. 526, copy of rapt roznamcha waqiati, register haqdaran-e-zamin for the year 2004-2005, copy of khasra gardawari, copy of register haqdaran-e-zamin for the year 1996-1997, copy of khasra gardawri are placed on record as Mark-A and Exh. D-1 to Exh. D-8.

10. The learned trial Court gave issue-wise findings and videjudgment and decree dated 03.04.2010, decreed the suit and declared that the mutation is outcome of fraud and cancelled the same. The respondents assailed the judgment and decree of the learned trial Court through civil appeal No. 121-13 of 2010 on 22.04.2010, which was allowed by the learned Appellate Court vide judgment and decree dated 02.03.2012 and while setting aside the judgment and decree dated 03.04.2010, the suit of the revision-petitioners was dismissed. Aggrieved from the same, present revision petition has been filed.

11. Mr. Muhammad Faisal Bashir Ch., learned counsel for the revision-petitioners has submitted that the learned Appellate Court has failed to apply the judicial mind while reaching to the conclusion that the learned trial Court has failed to properly evaluate the material on record; that the concerned tehsildar / Revenue Officer was never produced by the respondents-defendants, therefore, they have miserably failed to prove the mutation in terms of Section 42 of the Land Revenue Act, 1967 (the “Revenue Act’) and rule 34 of the West Pakistan Land Revenue Rules, 1968 (the ‘Revenue Rules’). It is further submitted by the learned counsel for the revision-petitioners that the evidence of the tehsildar, being the best person to depose as to the authenticity of the fact that the same was passed by him and in the presence of the concerned, has deliberately been withheld to avoid the consequences. The learned counsel has further submitted that agreement dated 14.04.1999(Mark-A / Exh. D1) (hereinafter called as the “agreement to sell”) could not be proved as per Section 17 read with Section 79 of Qanoon-e-Shahadat Order, 1984 (the “Q.S.O, 1984”). It is added by the learned counsel for the revision-petitioners that the respondents have miserably failed to prove the consideration involved in the agreement to sell by producing any direct evidence, hence the learned Appellate Court has wrongly arrived to conclusion that the respondents have successfully discharge their burden of proof. During the course of arguments, learned counsel for the revision-petitioners has relied upon the cases titled “Amjad Ikram v. Mst. Asiya Kausar & 2 others” (2015 SCMR 1), “Muhammad Nazir v. Khurshid Begum” (2005 SCMR 941), “Abdul Sattar and others v. Muhammad Ashraf and others” (2008 SCMR 1318), “Phul Peer Shah v. Hafeez Fatima” (2016 SCMR 1225) and “Muhammad Akram and another v. Altaf Ahmad” (PLD 2003 Supreme Court 688).

12. Conversely, Malik Muhammad Zaffar Iqbal, learned counsel for the respondents-defendants has submitted that producing tehsildar / Revenue Officer in view of statement of halqa patwari, who has identified the signature of the tehsildar, was not fatal for the case. It is further submitted by learned counsel for the respondents that the substantial portion of evidence produced by the revision-petitioners is based on hearsay evidence which has rightly been discarded by the learned Appellate Court. Learned counsel has read various parts of evidence to show that the balance of probability lies in favour of the respondents-defendants.

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

14. Both parties have, essentially, asserted as to the failure to discharge burden to prove by rival side(s), pointing out the deficiencies in the evidence and credibility of the witnesses to prove or disprove the authenticity and validity of the following two documents:

i) the mutation, and

ii) the agreement to sell.

1. To prove the mutation, learned counsel for the respondents-defendants have relied upon evidence of Iqbal Hussain (DW-3) and Manzoor Hussain (DW-4). Both of them claimed to be the witnesses of mutation, however, there is no denial of the fact that consideration was not paid in front of them. The said witnesses have also admitted during their cross-examination that the preferred witnesses as per Section 42 of the Revenue Act i.e. the lumberdar or the members of union councils were not present at the time when concerned revenue officer allegedly obtained signatures of the parties. There is no explanation available on record as to why the lumberdar or members of union council, being preferred witnesses as per the Revenue Act, have not appeared to identify and sign the mutation. It is also admitted position that revenue officer / tehsildar has never appeared to depose in favour of the mutation or face the cross-examination. It will be advantageous to see the relevant part of Section 42 of the Revenue Act, which reads as follows:

(1) xxx

(2) xxx

(3) xxx

(4) xxx

(5) xxx

(6) xxx

(7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court the Revenue Officer shall make the order under sub-section (6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or member of Zila Council, Tehsil Council or Town council concerned, whose signatures or thumb impressions shall be obtained by the Revenue Officer on the register of mutations.

(8) xxx

(9) xxx

(10) xxx

(11) xxx

The relevant part of rule 34 of the Revenue Rules is as under:-

(1) xxx

(2) xxx

(3) xxx

(4) xxx

(5) The signature or thumb-impression of the headman or member of the Union Committee, Town Committee or Union Council concerned, shall also be obtained at the time of making entries, relating to changes in revenue records.

(6) xxx.

(Emphasis supplied)

1. The aforesaid provisions of law clearly reflect that unless the mutation is of inheritance or it is followed by a registered deed or it is being incorporated on an order of the Court, the same is required to be caused in presence of the person whose right has been acquired and it is necessary that such person is identified by two respectable persons preferably Lambardar, Member Union Committee, Union Council or Town Committee. In the absence of fulfillment of the said requirement of law, the factum of entry in the record cannot carry any presumption of truth. Mere entry in the diary or the relevant page of the diary is not a primary evidence, especially when the revenue officer effecting the entry has not himself produced the daily diary before the Court and he has not faced the cross-examination of the rival party.

2. The Honourable Supreme Court of Pakistan in case titled Zulfiqar and others versus Shahdat Khan (PLD 2007 Supreme Court 582) held that although roznamcha waqiati is required to be maintained under the West Pakistan Land Rules, 1968 and that it is maintained during the course of performance of the official duty is admissible, yet if the report contains statement of private individual, its correctness is required to be proved. In case titled Khalil Ahmad versus Abdul Jabbar Khan and others (2005 SCMR 911), the Honourable Supreme Court of Pakistan decided that entering a mutation or reporting the fact of acquisition of any right in an estate by the patwari is merely ministerial act which does not confer or extinguish any right in any property. In the absence of fulfillment of the requirement of law and failure to produce the revenue officer the entry in the record / mutation cannot carry any presumption of truth, leaving the parties to prove their respective contentions.

3. The second document relied by the respondents to establish sale in their favour is the agreement to sell which was initially marked as “mark-A” and then after confrontation, the same was brought on record as Exh. D-1. In order to prove the agreement to sell as well as consideration of Rs. 4,40,000/- , the revision-petitioners produced Mushtaq Ahmad son of Abdul Haq as DW-1 and Rab Nawaz son of Shahadat Ali as DW-7. Mushtaq Ahmad / DW-1 claimed that he is witness of the agreement to sell, however, throughout in his statement, examination-in-chief as well as cross-examination, I have not found that he ever deposed that the consideration, all or in parts, was paid in his presence. Rather the following part of his cross-examination suggests contrary:

میں نے Mark-A پر اپنا عہدہ بطور پٹواری تحریر نہ کروایا تھا ۔ مجھے دونوں فرقین کچہری میں ملے تھے اور تحریر Mark-A پر صابر حسین نے دستخط کیے تھے۔ Mark-A کی تحریر کے وقت صرف صابر موجود تھا۔ میں Mark-Aپر اپنی گواہی ڈال کر چلا گیا تھا تصدیق کی بابت مجھے علم نہ ہے۔ یہ غلط ہے کہ مدعا علیہم کے والد بشیر کے ساتھ مل کر یہ دستاویز Mark-Aتیار کی ہے رپٹ پر ہاشم کے دستخط وغیرہ موجود نہ ہیں۔

Rab Nawaz (DW-7), with respect to consideration, has deposed that Hashim deceased told him regarding this payment. During his examination, he deposed as under:

4,40,000/- روپے کا سودا ہوتا تھا 4,30,000/-روپے مسمی ہاشم نے وصول کرنا تسلیم کیے اور باقی 10,000/-روپے بوقت انتقال وصول کیا جانے کا اقرار کیا۔

The following part of cross-examination of Rab Nawaz (DW-7) is also very relevant:

ہاشم نے رقم کچہری میں وصول کی عرضی نویس موجود نہ تھے پھر ہم عرضی نویس کے پاس آ گئے۔ میں نہ بتا سکتا ہوں کہ نوٹ 1000/- کے کتنے تھے اور 500, 500 کے کتنے تھے۔ مشتاق گواہ Mark-Aکچہری میں پہلے سے موجود تھا۔ اچانک وہ یہاں موجود تھا اور اس کی گواہی ڈال دی گئی۔

13. The above part of the statement is negating presence of Mushtaq Ahmad (DW-1) at the time of payment of consideration. It is apparently stated by DW-7 that payment was made prior to visiting deed-writer and Mustaq Ahmad (DW-1) by chance reached when the agreement to sell was written and signed. It is evident from the above statements that the alleged witnesses of agreement to sell have never seen Hashim deceased receiving any payment from Bashir Ahmad. The two witnesses have not merely contradicted each other but apparently relied upon confirmation made by Hashim deceased as far as considerations are concerned.

1. The respondents also attempted to prove the consideration through the witnesses of mutation but their evidence, to this extent, is also indirect evidence. Iqbal Hussain son of Manzoor Hussain (DW-3), during his examination-in-chief, has very frankly conceded that the consideration was never paid in his presence:-

اقرار نامہ ماہ اپریل میں لکھا گیا تھا لیکن مجھے تاریخ یاد نہ ہے۔ رقم کی ادائیگی میرے سامنے نہ ہوئی ہے بلکہ اس نے میرے سامنے اقرار کیا تھا۔

Same is the position of Manzoor Hussain (DW-4) and when he was asked specific question in this regard, he deposed:

میں بوقت ادائیگی رقم موجود نہ تھا۔بلکہ رقم کی وصولی کا اقرار میرے سامنے ہوا تھا ۔

Syed Faqeer Hussain Shah (DW-5), deed writer, was produced by the respondent’s side, who also admitted that he is not witness of payment of consideration, rather Hashim deceased told him the same. The following part of his cross-examination is relevant:

یہ درست ہے کہ Mark-A کی تحریر اور میرا اصل رجسٹر نمبر 248پر اس دستاویز کے کوائف تحریر ہیں ہر دو تحریروں میں اختلاف ہے ۔ یہ درست ہے کہ ہر دو تحریر مختلف اشخاص کی ہیں۔ میں فریقین کو نہ جانتا تھا ۔ میں گواہان کو بھی نہ جانتا تھا۔ میرے سامنے کوئی رقم کے بارے میں لین دین نہ ہوا تھا بلکہ میرے سامنے مسمی ہاشم نے رقم کی وصولی کا اقبال کیا تھا۔

15. One of the most important ingredient of contract is consideration and in the present case, the payment of alleged amount of Rs. 4,40,000/- from the respondent’s side to the revision-petitioners. In this regard, the respondent’s side produced numerous witnesses but, besides contradictory statements noted above, none of them have deposed that they have seen the respondent’s side making payment to Hashim deceased (predecessor of the revision-petitioners) and as a matter of fact, all the witnesses, may that be appearing in support of mutation or the agreement to sell relied upon others statements or confirmations.

1. Article 71 of the Q.S.O. 1984 requires oral evidence to be direct, which reads as follows:

“Oral evidence must be direct.---Oral evidence must, in all cases whatever be direct, that is to say---

If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead, or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:

Provided further that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection:

Provided further that, if a witness is dead, or cannot be found or has become incapable of giving evidence, or his attendance cannot, be procured without an amount of delay of expense which under the circumstances of the case the Court regards as unreasonable, a party shall have the right to produce شھادہ علٰی الا شھادہ shahada ala al-shahadah by which a witness can appoint two witnesses to depose on his behalf, except in the case of Hudood.”

(Emphasis supplied)

Payment of consideration is something that can be seen, therefore, there should have been some reliable statement(s) of the witnesses who can confirm that he has seen payment being made by the purchaser to the seller. For this proposition of law, reference can be made to the law settled by the Honourable Supreme Court in cases titled “Farid Ullah Khan v. Irfan Ullah Khan” (2022 SCMR 1231), “Abdul Qayyum v. Muhammad Sadiq” (2007 SCMR 957) and “Gulzar Ahmad and others v. Muhammad Anwar and others” (2003 SCMR 1008).

1. The claim of the revision-petitioners is that the respondent side, being tenant (mustajir) and close to Hashim deceased who was illiterate person and was facing charges of murder, subjected him to fraud and the documents in question lack consideration. This stance is denied by respondents by claiming that the mutation and agreement to sell is backed up with lawful consideration. In the circumstances of present case, it was imperative for the respondents to independently prove the element of consideration, which is one of the most essential ingredients of contract, by producing direct evidence, as already observed by the Honourable Supreme Court of Pakistan in cases titled “Mst. Rabia Gula and others v. Muhammad Janan and others” (2022 SCMR 1009), “Ghulam Qadir v. Kalay Khan and others” (2007 SCMR 1184) and “Muhammad Ilyas v. Mst. Ijazan and another” (1991 SCMR 1508). It will be beneficial to reproduce the following extract of “Mst. Rabia Gula and others” case (supra):

“….Accordingly, we find the High Court is correct in its findings as to the inconsistencies and clear contradictions in the testimony of her two witnesses, namely, Sultan-ul-Mulk (DW-1) and Wali-ur-Rehman (DW-2) on material particulars of the sale transaction and of the sale mutation recording the same in the revenue record. No independent witnesses, in particular, the patwari who entered, and the revenue officer who sanctioned the sale mutation were examined in evidence. In fact, no cogent, reliable evidence was produced by Mst. Khursheed Begum (appellant No. 3) to prove payment of the sale-consideration, the most essential ingredient of a valid sale, to the respondent. This being so, the High Court has correctly recorded its finding in the impugned judgment, as to invalidity of the alleged sale of the Suit Property No. 2 and also of the sale mutation.”

(Emphasis supplied)

1. Learned counsel for the parties have also raised dispute as to burden and standard of proof. They have read the evidence of rival sides pointing out the discrepancies with the contentions that the said discrepancies should lead to adverse conclusion. There are no two views about the proposition that onus is normally on the one who asserts. The person seeking relief fails when he has not led evidence in his support. In the present case, both parties led their respective evidence, thus, the Court has to evaluate evidence on the balance of probabilities and the case is to be decided in favour of one party, unless the evidence of rival arises to the same degree of cogency as is required to discharge the burden in civil matters. Reliance, in this regard, can be placed on case titled “Miller v. Minister of Pensions” (1947 All England Law Reports, Vol-2, Page 372). The relevant extract is as follows:

“… This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that tribunal can say: “We think it more probable than not” the burden is discharged, but, if the probabilities are equal, it is not.”

(underlining added)

The Honourable Supreme Court of Pakistan in case titled “Khalid Hussain and others v. Nazir Ahmad and others” (2021 SCMR 1986) has observed, regarding the point in hand, as follows:

“6. There is no cavil to the proposition that the onus to prove the claim is ordinarily on the person moving the Court to seek his relief, as he is the one who is to fail if no evidence at all is given on either side. However, when the contesting party takes up a defence and desires the Court to pronounce judgment as to his legal right dependent on the existence of facts which he asserts, then the onus to prove those facts lies on him. It is after the

parties have produced their respective evidence that, the Court is to consider and evaluate the evidence, in civil cases, on the touchstone of preponderance of evidence. It is on whose side the scale of evidence tilts would emerge as the victor, and be awarded the positive verdict.”

(Emphasis supplied)

1. There are passages of evidence given by PWs, which are read by learned counsel for the respondents in isolation, which can set a reasonable prudent person to think that perhaps learned trial Court was not properly directing itself, as it appeared to the learned Appellate Court as well, however, when the evidence of two sides as a whole is read, balance tilts towards the revision-petitioners, especially when I see hearsay aspect of evidence as to the consideration.

2. Hashim deceased appeared as PW-1 and deposed as per his claim in the suit that the respondent's side was in possession of suit property as tenant (mustajir); took Hashim to revenue authority, and in order to effect entry in his favour from cooperative farming society and in the garb of the same obtained his signature on the blank papers, which were used for preparing the documents relied by the respondents. His statement is supported by PW-2 and PW-3. Undoubtedly, the evidence of the revision-petitioners is not very coherent and contains inconsistency but more probable than the evidence of other side. It appears that it escaped view of the learned Appellate Court and the learned Court has relied upon the statements of DWs, who were numerous in number, but none deposed as to the consideration by giving direct and/or trustworthy evidence and declared mutation in accordance with law, thus, fell to an error.

3. For what has been discussed above, the judgment and decree dated 02.03.2012 passed by the learned Appellate Court is set-aside and present revision petition is allowed. Resultantly, the decree of the learned trial Court shall hold the field. No order as to costs.

(Y.A.) Petition allowed

PLJ 2023 Lahore 183 [Rawalpindi Bench, Rawalpindi]

Present: Jawad Hassan, J.

Syed FAISAL MEHBOOB--Petitioner

versus

FEDERATION OF PAKISTAN etc.--Respondents

W.P. No. 145 of 2022, decided on 20.1.2022.

Civil Aviation Rules, 1994--

----R. 68--Civil Aviation Ordinance, (XXXII of 1960), S. 6-A--Constitution of Pakistan, 1973, Art. 199 & 199(4)--Establishment of structure free zone--Unconstitutional act of respondents--Obligation of petitioner--Judicial restraint--Oral assertion of petitioner--Issuance of notification--Security threats--Construction fase of new airport--Ingredients of interim relief--Petitioner has failed to point out or bring forth any unconstitutional act committed by Respondents, any interference by High Court within purview of Article 199 of Constitution, will badly hamper initiatives being taken by Respondents for security purposes and will also put an embargo on such like security based activities in future--For grant of interim relief, it was obligatory upon Petitioner to establish that all three ingredients (i) prima facie arguable case; (ii) irreparable loss; and (iii) balance of inconvenience were in favor of his claim, which he failed to establish for grant of injunction in his favor--Petitioner has attached with this petition only impugned Notification and other irrelevant documents not about any action taken by Respondents under Ordinance or Rules and merely on oral assertion of Petitioner, no interim relief can be granted-- It is settled law that for grant of interim injunction, all three ingredients must co-exist and if one ingredient is missing, injunction cannot be granted. [Pp. 188] B, C & D

Judicial Restraint--

----In absence of any glaring illegality or violation of fundamental rights, it is imperative that Courts should exercise judicial restraint for passing any adverse order, which can potentially hinder or nullify any government initiative, particularly, taken for security enhancement because judicial restraint encourages judges to exercise their powers with restraint and wisdom and to limit exercise of their own powers to intervene in matters relating to policy of Government having financial perspective, outcome and exercise. [P. 187] A

Constitution of Pakistan, 1973--

----Art. 199(4)--An interim relief can only be granted as per mandate of Article 199(4) of the Constitution where it has been clearly stated that under writ jurisdiction, before making an interim order, Court has to look into the public interest which should not be harmed/ hampered in any manner. [P. 189] E

2004 SCMR 1092, 2000 CLC 1094, 2019 CLC 1486 & 2017 MLD 1493 ref.

Barrister Haroon Dugal, ASC for Petitioner alongwith Mr. Waheed Alam, Advocate.

Mr. Rashid Hanif, Deputy Attorney General and Malik Ahtesham Saleem, Assistant Attorney General for Federation of Pakistan (on Court call).

Mr. Mujeeb-ur-Rehman Kiayani, Additional Advocate General Punjab (on Court call).

Date of hearing: 20.1.2022.

Order

The Petitioner has filed this writ of prohibition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) to restrain the Respondents from (a) interfering into his peaceful possession over the land mentioned in prayer clause (i) of this petition; and (b) demolishing any constructions raised thereupon under the garb of notification dated 08.06.2015 (the “Impugned Notification”) issued by Respondent No. 1.

1. Barrister Haroon Dugal, ASC submits that the Petitioner is aggrieved against the Impugned Notification permitting establishment of a structure free zone (the “Zone”) within the limits of the New Islamabad International Airport (the “Airport”) because it was issued for a limited period, on temporary basis, for a specific purpose to cater for the security threats apprehended during the construction phase of the Airport and since the said purpose has been fulfilled, it is no longer enforceable, being lapsed with the afflux of time. He further submits that the Impugned Notification itself states that the Zone shall remain in force till the security environment of the area is improved, therefore, now the provisions of Rule 68 of the Civil Aviation Rules, 1994 (the “Rules”) will be applicable. He maintains that the Respondents cannot interfere into the peaceful possession of the Petitioner over his land, description of which is given in Paragraph-3 of this petition, under the garb of a lapsed notification unless a new notification under Section 6-A of the Civil Aviation Ordinance, 1960 (the “Ordinance”) is issued by the competent authority. He next contends that the Respondents have usurped lawfully owned land of the Petitioner by classifying the same to be falling within the Zone and also restrained him from raising construction of any kind over it. Barrister Haroon Dugal, ASC also clarifies that even otherwise the Impugned Notification has neither been approved by the Federal Cabinet nor published in the official gazette in terms of Article 91 of the Constitution. He states that if a collective glance is taken on the provisions of Sub-Articles (1) and (6) of Article 91 of the Constitution, it would be clear that the Impugned Notification had to be approved by the Federal Government but this procedure was not adopted at the relevant time. He claims that the land of the Petitioner does not fall within any structure fee zone declared under the law and he had been enjoying its peaceful possession for the past several years without interruption from any corner but now the Respondents are trying to dispossess him from the same under the garb of the Impugned Notification and without any legal instrument/backing. He submits that since the Impugned Notification had lapsed for all intents and purposes, the Petitioner entered into an agreement with some persons/purchasers who were desirous to establish a housing scheme in the name & style of “NOVA City” but Respondents have also started extending threats to the said purchasers with the implementation of the Impugned Notification. He contends that if the Respondents are not restrained from making illegal interference into the Petitioner’s land, he will suffer from an irreparable loss and injury. Reliance is placed on the judgments reported as Government of Sindh through Secretary Agriculture and Livestock Department and others versus Messrs Khan Ginners (Private) Limited and 57 others (PLD 2011 SC 347), Karachi Metropolitan Corporation, Karachi versus Messrs. S.N.H. Industries (Pvt.) Limited, Karachi and 2 others (1997 SCMR 1228), Metropolitan Corporation, Islamabad through Mayor versus Chairman C.D.A. (Capital Development Authority), Islamabad and another (PLD 2021 Islamabad 144), Muhammad Iqbal versus Government of the Punjab through Secretary Education Schools, Punjab, Lahore and 4 others [2020 PLC (C.S.) 747], Mst. Sumaira versus District Coordination Officer/Chairman, District Recruitment Committee, Sargodha and 2 others [2013 PLC (C.S.) 274] and Ch. Muhammad Nazir Cheema versus Mujahid Sher Dil, DCO/Chairman, District Task Force, Sialkot and 3 others (2012 CLC 764).

2. Learned Law Officer has objected to the maintainability of this petition by stating that the Petitioner has no locus standi to file this petition because he has sold the land in question.

3. In response Barrister Haroon Dugal, ASC submits that the Petitioner has only entered into an agreement with some purchaser of the land which has not yet been transferred in their names. He further submits that the Petitioner’s fundamental right of property as enshrined under Articles 23 and 24 of the Constitution are involved and he is before this Court for protection of the said rights.

4. Notice be issued to the Respondents for 16.02.2022. Learned Law Officer shall seek instructions from the relevant quarter(s) and also ensure submission of report and parawise comments by the answering Respondents within a fortnight. A senior officer of the office of Respondent No. 1, well conversant with the facts of the case, will also appear on the next date to explain the position.

C.M.No. 01/2022

1. Dispensation sought for is allowed subject to all just and legal exceptions. C.M. stands disposed of.

C.M.No. 02/2022

1. This is an application under Section 151 of CPC for grant of an interim relief in the titled writ petition.

2. Suffice it to mention here that the Impugned Notification was issued by Federal Government to protect the aviation industry of Pakistan in order to curtail the tendency of incidents about aeroplane crashing, as happened last year in Karachi. Any restraining order, if issued by this Court, while exercising powers under Article 199 of the Constitution, can possibly put a complete halt and hiatus to the initiatives taken by the Government for encouraging security plans/activities in country by enhancing security environment through the aviation industry to avoid any incident. In the absence of any glaring illegality or violation of fundamental rights, it is imperative that the Courts should exercise judicial restraint for passing any adverse order, which can potentially hinder or nullify any government initiative, particularly, taken for the security enhancement because judicial restraint encourages the judges to exercise their powers with restraint and wisdom and to limit the exercise of their own powers to intervene in the matters relating to policy of the Government having financial perspective, outcome and exercise. The scope, purpose and limit of the concept of judicial restraint has been vastly elaborated by the Hon’ble Supreme Court of Pakistan in the case of Dossani Travels Pvt. Ltd. and others versus Messrs Travels Shop (Pvt) Ltd. and others (PLD 2014 SC 1), relevant portion of which is reproduced hereunder for ease of the matter:-

“27. In contemporary age, there has been a significant growth in the judicial review of administrative actions and the grounds on which the Courts interfere have been expanded. This expansion, however, “has taken place in the shadow of competing concerns of ‘vigilance’ and, ‘restraint’ and it is faithfulness to these dual concerns of vigilance and restraint which produces the unique supervisory jurisdiction which is the hallmark of judicial review.” If the Courts fail to maintain this delicate balance, none else but people’s confidence in the judiciary would be the worst victim. As aptly observed by Radford:

One of the principal aims of a system of judicial review must be to maintain a high level of public confidence in the administrative decision making process and this must also be borne in mind in assessing the level of judicial intervention which is desirable. It can be argued that the Courts’ desire to achieve a fair and just result in an individual case must be tampered with a commitment not to interfere unduly with the achievement of policy objectives.”

In another judgment, reported as Human Rights Case No. 14392 of 2013 (2014 SCMR 220), the Hon’ble Supreme Court of Pakistan has held that “the Court exercises judicial restraint in matters of government policy except where fundamental rights are violated. In his treatise “Judicial Review of Public Actions” (second Edition p. 639), Justice Fazal Karim has quoted the passage from the book “Taking Rights Seriously” by Ronald Dworkin (p. 137-149) wherein he described that the term “Judicial Restraint argues that the Court should allow the decisions of other branches of government to stand, even when they offend the judge’s own sense of the principles required by the broad constitutional doctrines, except when those decisions are so offensive to political morality that they should violate the provisions on any plausible interpretation, or, perhaps, when a contrary decision is required by clear precedent”. Judicial Restraint asserts and advocates that the judges should hesitate to strike down laws unless they are obviously unconstitutional but in this case, the Petitioner has failed to point out or bring forth any unconstitutional act committed by the Respondents, therefore, any interference by this Court within the purview of Article 199 of the Constitution, will badly hamper the initiatives being taken by the Respondents for security purposes and will also put an embargo on such like security based activities in the future. Even otherwise, for grant of interim relief, it was obligatory upon the Petitioner to establish that all three ingredients (i) prima facie arguable case; (ii) irreparable loss; and (iii) balance of inconvenience were in favor of his claim, which he failed to establish for grant of injunction in his favor. In this case, when confronted with the facts how the Respondents are implementing the Impugned Notification and whether there is any written letter or further instructions issued by them against the Petitioner, Barrister Haroon Dugal, ASC fails to satisfy the Court. The Petitioner has attached with this petition only the Impugned Notification and other irrelevant documents not about any action taken by the Respondents under the Ordinance or the Rules and merely on oral assertion of the Petitioner, no interim relief can be granted. It is settled law that for grant of interim injunction, all three ingredients must co-exist and if one ingredient is missing, injunction cannot be granted. This view is

fortified from the judgment of Hon’ble Supreme Court of Pakistan in the case of Puri Terminal Ltd. versus Government of Pakistan through Secretary, Ministry of Communications and Railways, Islamabad and 2 others (2004 SCMR 1092) by holding as under:

“21. No doubt an injunction is a form of equitable relief and is to be issued in aid of equity and justice, but not to add injustice. For grant of such, relief, it is mandatory to establish that in order to obtain an interim injunction, the applicant has not only to establish that he has a prima facia case, but he has also to show that the balance of convenience is on his side and that he would suffer irreparable injury/loss unless he is protected during the pendency of suit.”

Further reliance can also be placed on the judgments reported as Saleem Mahmood Akhtar and 2 others versus Assistant District Officer and 5 others (2020 CLC 1094), Dewan Petroleum (Pvt.) Ltd. versus Oil and Gas Investment Ltd. (2019 CLC 1486), Mst. Rukayya Parveen and another versus Province of Punjab through D.O. (R) Pakpattan Sharif and 4 others (2017 MLD 1493), Mst. Azra Parvez and 3 others versus Sheikh Ashfaq Hussain and 7 others (2015 CLC 1695) and Gulzar Begum versus Ehboob Hussain alias Mehboob Khan (2012 YLR 809). Moreover, in a writ petition, an interim relief can only be granted as per mandate of Article 199(4) of the Constitution where it has been clearly stated that under writ jurisdiction, before making an interim order, the Court has to look into the public interest which should not be harmed/hampered in any manner, therefore, keeping in view the fact that the Petitioner has failed to make out a prima-facie case in his favour and balance of convenience is not tilted in his favour for grant of interim relief, this application is dismissed.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 189

Present: Shahid Jamil Khan, J.

Rao TARIQ ISLAM, etc.--Petitioners

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. No. 228757 of 2018, decided on 11.11.2022.

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

----S. 236(d)--Federal Board of Revenue Act, (IV of 2007), S. 7--Constitution of Pakistan, 1973, Art. 199--Collection of advance tax--Minimum slab for collection of advance tax--Amendment in Section 236-D of Ordinance, 2001--Adverse impact--Unreasonable irrational burden--Question of--Whether, unadjustable advance tax being recovered from a widow using mobile service and other similarly placed persons, not liable to pay tax or file return is justified and with competence of legislator--Advance tax--Challenge to--Absence of a person in active taxpayer list and a person not required to file income tax return cannot be equated--How would a person, having marriage hall business at a lower level, would verify wether person booking or managing a function is on active taxpayer’s list--Burden is imposed, in an unusual manner upon a person, who is recipient of money against services or supply, is confiscatory for having adverse impact on business--This procedure, being impracticable and casting an unreasonable irrational burden is, declared void-- It is globally settled principle of taxation law that a tax cannot be expropriatory or confiscatory, which takes away a citizen’s property without compensation or destroys business of a taxpayer--Nevertheless, as it appears from representation from respondents’ side, Government is adamant to charge advance tax, ignoring its expropriatory and confiscatory character from persons not liable to pay tax--Imposing an obligation of tax collection on private persons ignoring reasonability and prejudice to their business, cannot be ignored by Courts, in judicial review--Collection of an unadjustable advance income tax from a person not liable to pay income tax or file income tax return, is without lawful authority and unconstitutional--Petitions were dismissed.

[Pp. 194, 197 & 198] A, B, C, E, H & I

1963 AIR (SC) 1667, AIR 1971 Kar 65 & 1967 AIR (MP) 268 ref.

Advance tax--

----Advance Tax was meant, originally, to facilitate taxpayer as well as department to pay tax in advance based on tax determined and paid in last tax year, which facilitates taxpayer for payment of tax in installments, besides timely recovery of tax. [P. 194] C

Withholding tax--

----Withholding tax is easiest way of collecting tax, by avoiding orthodox procedure of taxing a person’s income, at end of tax year, by allowing expenses, allowances, credits etc. for arriving at net taxable income. [Pp. 194 & 195] D

1997 SC 582 ref.

Constitution of Pakistan, 1973--

----Arts. 7, 18 & 77--Authority of parliament--Fundamental rights--A tax can be levied by or under authority of Parliament under Article 77--Act of Parliament, levying a tax, should not offend any of fundamental rights guaranteed by Constitution--An unreasonable taxing procedure, if destroys business, offends right under Article 18 and an income tax taking away property without compensation offends Article 23 and 24. [P. 197] F

Unadjustable advance income tax--

----Income tax is meant to be charged from citizens, who are earning income and citizen, who are not earning any income, deserves to be compensated by State to meet their basic and essential requirement for living--Unfortunately, later class of citizens is being already subjected to indirect taxes, is now taxed through unadjustable advance income tax, which can only be termed as expropriatory and confiscatory. [P. 197] G

M/s. Abdullah Dogar, Shahbaz Butt, Abad-ur-Rehman, Farhan Shahzad, Muhammad Mohsin Virk, Raja Hassam Kayani, Nawab Saeed Ullah Khan, Asad Abbas Raza, Muhammad Ahsan Mahmood, Shamail Arif, Muhammad Usman Zia, Ibrahim Hassan, Javed Iqbal Bhatti, Muhaammad Shahid Baig, Ahtisham-ud-Din Khan, Muhammad Nouman Sarwar, Usman Khalil, Zulfiqar Ali Khan, Farrukh Gulzar Awan, Chaudhary Hasham Hayat Wathra, Mian Talat Mahmood, Sardar Azeem Afrasiab, Kashif Akbar Bandesha, Mirza Mubashir Baig, Ch. Zulfiqar Ali, Wasif Javed Sipra, Afzal Hussain, Mazhar Elahi and Muhammad Bilal Parvez, Advocates for Petitioners.

Federation:

Mirza Nasar Ahmad, Additional Attorney General and Syed Sajjad Haider Rizvi, Assistant Attorney General for Pakistan for Respondents.

Province:

Barrister Shehryar Riaz, Assistant Advocate General Punjab.

Department:

M/s. Adeel Shahid Karim, Shahzad Ahmad Cheema, Malik Abdullah Raza, Syed Zain-ul-Abidien Bukhari, Ibrar Ahmad, Ijaz Mehmood Chaudhary, Kausar Parveen and Foziya Bukhsh, Advocates for Respondent.

Date of hearing: 11.11.2022.

Judgment

The petitioners, in this and connected petitions (Schedule-A), have assailed the amendment in Section 236D of the Income Tax Ordinance, 2001 (“Ordinance of 2001”), brought through Finance Act, 2018, whereby minimum slab for collection of the advance tax was fixed at Rs. 20,000/- , which was to be collected of a person receiving services of or holding/arranging function in a marriage hall, irrespective of the fact, whether the person was liable to file income tax return.

In one of the connected petitions (W. P. No. 57197 of 2019), a widow has challenged tax under Section 236 of the Ordinance of 2001, against cellular phone services, being not liable to pay income tax or file return under the Section 114.

1. The petitioners’ case, in first set of petitions, is that collection of tax under the amended provisions is confiscatory because there is no payable tax against which the withheld tax could be adjusted or credited. Some petitioners contended that it offends the fundamental rights guaranteed under Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”) for causing an adverse effect on the business of marriage halls working at lower scale.

Mr. Shahbaz Butt, Advocate, arguing for petitioners’ side, submitted that Section 236D of the Ordinance of 2001 is not executable in present form without specifying the manner and time, unambiguously, for collection of advance tax. He compared the impugned provisions with Sections 148, 149 and 153 of the Ordinance of 2001, to show the ambiguity caused for departing from the normal manner and time of withholding and deduction of advance tax by the payer, in ordinary business transactions. He also referred to following Item 2 of Circular No. 10 of 2013 dated 17.09.2013 in support:-

| | | | | --- | --- | --- | | Sr. No. | Queries | Clarification | | 2. | At what time should the tax be withheld? i) At time of final payment Or ii) At each stage of payment. | As tax is to be collected on the total amount of bill, tax is to be withheld at the time of issuance of bill on the day the function is held. |

It is contended that use of word withheld changed complexion of the provision. Under the impugned provisions, the person receiving payment is obliged to collect an additional amount, independent of the amount due under bill for Marriage Hall Services. He reiterated that the manner of payment is not provided, therefore, this provision is not executable.

1. Learned Assistant Attorney General for Federation of Pakistan, in response to notice under Order XXVII-A of C.P.C. and representing Federal Government as well as FBR, apprised that procedure had been rationalized by inserting Tenth Schedule in the Ordinance of 2001 read with Section 100BA.

2. Heard, record perused.

3. The Tenth Schedule is examined, insertion of which is admission of legal position that a person not required to file return and pay tax, cannot be subjected to advance tax. The procedure in its Rule 2 is impracticable and unreasonable, whereby the person receiving the bill (withholding agent) or the person from whom the tax is to be collected, is burdened to issue notice to the Commissioner for knowing whether a person is liable to file return and wait for thirty days before finalizing the bill, with or without collection of advance tax. The Rule 2 is reproduced:

“2. Persons not required to file return or statement.--(1) Where the withholding agent or the person from whom tax is required to be collected or deducted is satisfied that a person not appearing in the active taxpayers’ list was not required to file a return of income under Section 114, as the case may be, he shall before collecting or deducting tax under this Ordinance, furnish to the Commissioner a notice in writing electronically setting out--

(a) the name, CNIC or NTN and address of the person not appearing in the active taxpayers’ list;

(b) the nature and amount of the transaction on which tax is required to be collected or deducted; and

(c) reason on the basis of which it is considered that the person was not required to file return or statement, as the case may be.

(2) The Commissioner, on receipt of a notice under sub-rule (1), shall within thirty days pass an order accepting the contention or making the order under sub-rule(3).

(3) Where the withholding agent or the person from whom tax is required to be collected or deducted has notified the Commissioner under sub-rule (1) and the Commissioner has reasonable grounds to believe that the person not appearing in the active taxpayers’ list was required to file return or statement, as the case may be, the Commissioner may, by an order in writing, direct the withholding agent to deduct or collect tax under Rule 1:

Provided that in case the Commissioner does not pass any order within thirty days or receipt of notice under sub-rule (1), the Commissioner shall be deemed to have accepted the contention under sub-rule (2) and approval shall be treated to have been granted.”

(emphasis supplied)

Absence of a person in active taxpayer list and a person not required to file income tax return cannot be equated, because a person filing return may be deleted from active taxpayer’s list by any tax authority for a noncompliance under the Ordinance of 2001. How would a person, having marriage hall business at a lower level, would verify wether person booking or managing a function is on active taxpayer’s list or would wait for thirty days for Commissioner’s response and finalize bill thereafter. Imposition of statutory duty to withhold another person’s tax and deposit in the exchequer may be justified on transaction in usual course of business. Under the impugned provisions, the burden is imposed, in an unusual manner upon a person, who is recipient of money against services or supply, therefore, is confiscatory for having adverse impact on the business. This procedure, being impracticable and casting an unreasonable irrational burden is, hence, declared void.

1. Advance Tax was meant, originally, to facilitate the taxpayer as well as department to pay tax in advance based on the tax determined and paid in last tax year, which facilitates the taxpayer for payment of tax in installments, besides timely recovery of tax. Later, withholding tax was introduced on transaction with the rational of collecting data of the transactions with minimal tax collection. The tax so withheld was adjustable against final tax liability. Eventually, the tax withheld on business transactions was brought into Presumptive Tax Regime (“PTR”) by treating the same as final liability. It is important to observe here that for collection of data of business transactions, at various stages of value addition, Sales Tax Act, 1990 (“Act of 1990”) is serving the purpose. By introducing this concept in the Income Tax Law, and allowing it to be a final tax, under PTR, practically, it has become an indirect tax, burden of which passes on to end consumer.

For FBR, withholding tax is the easiest way of collecting tax, by avoiding the orthodox procedure of taxing a person’s income, at the end of tax year, by allowing expenses, allowances, credits etc. for arriving at net taxable income. In this Court’s opinion, the judgment in Messrs Elahi Cotton Mills Ltd. and others v. Federation Of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 Supreme Court 582) is being misconstrued and its enunciations are being exploited, for easy tax collection, irrespective of the fact that the tax, under PTR, has changed its character from direct to indirect tax, which should not be levied and charged under the Ordinance of 2001, meant to levy and charge direct tax on a person’s income.

1. Another alarming aspect is the increasing trend of indiscriminate withholding, ignoring whether a person being burdened with the tax is liable to pay income tax, which should necessarily be proportionate to earning capacity. A person, below the taxable slab or not earning being jobless, is already paying indirect taxes, even on items, essential for living, at same ratio, as is being paid by the richest person. In pursuit of collecting advance tax on transactions, if the essential aspect of its adjustment against a payable tax is not ensured, the tax so imposed is confiscatory and expropriatory.

2. In connected W. P. No. 57197 of 2019, the petitioner is widow drawing pension of Rs. 5000/- . Admittedly, her income is not taxable and she is not liable to file return under Section 114 the Ordinance of 2001. It is argued that she does not fall in the definition of taxpayer under the Section 2(64) read with Section 168. Nevertheless, she is being subjected to tax under the Section 236 on payments made to cellular company against mobile phone services. Charging of tax in an indiscriminated way was examined by the august Supreme Court of Pakistan in Human Rights Case No. 18877 of 2018 (PLD 2019 Supreme Court 645). The cellular companies were restrained from charging this tax initially, however, the restraining order was lifted through final judgment consisting of two different views. In one of the views, putting a person, not liable to pay tax, into the process of obtaining exemption certificate or claiming refund by filing return was held to be a cumbersome and unnecessary burden. The charging of such tax was held confiscatory, however, final verdict was left for decision by lower fora first.

3. Court’s concern, in this and connected cases, is whether, unadjustable advance tax being recovered from a widow using mobile service and other similarly placed persons, not liable to pay tax or file return is justified and within the competence of the legislature. The income tax is meant to be charged on income proportionality but cannot allow to be charged in absence or without determining the income. A tax which diminishes the original property, moveable or immoveable, is expropriatory and a tax withhold/deducted and not adjusted against any income tax liability is confiscatory. Following judgments, from Indian jurisdiction, have declared the confiscatory and expropriatory taxation as without lawful authority and unconstitutional, relevant excerpts are reproduced:-

Rai Ramkrishna and others, etc versus State of Bihar (1963 AIR (SC) 1667):

“Where for instance it appears that the taxing statute is plainly discriminatory, or provides no procedural machinery for assessment and levy of the tax, or that it is confiscatory, Courts would be justified in striking down the impugned statute as unconstitutional. In such cases, the character of the material provisions of the impugned statute is such that the Court would feel justified in taking the view that, in substance the taxing statute is a cloak adopted by the Legislature for achieving its confiscatory purposes.”

[emphasis supplied]

Manattillath Krishnan Thangal v. The State of Kerala (AIR 1971 Ker 65).

“11. We are of the opinion that the provisions of a taxing statute can be referred to a confiscatory or expropriatory only if it offends Article 19(1) (f) or Article 31(1) and perhaps also Article 14. Kochunni’s case, AIR 1960 SC 1080 affords an instance of an Act the Madras Marumakkathayam Removal of Doubts Act 32/1955 having been condemned as expropriatory as it violated Article 19(1)(f). The Court expressed itself thus:

“The impugned Act is only a legislative device to take the property of one and vest it in another without compensation, and, therefore, on its face stamped with un-reasonableness. In short, the impugned Act is expropriatory in character and is directly hit by Article 19(1)(f) and is not saved by Clause (5) of Article 10”

[emphasis supplied]

Devkumarsinghji Kasturchandji v. State of M.P. and others (1967 AIR (M.P.) 268).

“14. There are no doubt limits to taxation. If those limits are crossed, then apart from the evils flowing in the field of economics and public finance, a tax may become invalid in law because of its confiscatory character and effect. If the magnitude of the tax is such as to eliminate the owner or to compel him to part with the taxed property for the payment of the tax assessed on him, or if it destroys the businesses of the persons taxed, then such a tax would be confiscatory in character and invalid – see A.G. Of Alberta v. A.G. of Canada, A.I.R. 1939 PC 53; Srinivasamurthy v. State of Mysore A.I.R. 1959 Supreme Court 894, and Kunnathat Thathunni Moopil Nair. State of Kerala, A.I.R. 1961 Supreme Court 552.”

[emphasis supplied]

It is globally settled principle of taxation law that a tax cannot be expropriatory or confiscatory, which takes away a citizen’s property without compensation or destroys the business of a taxpayer. The State is meant to serve the citizen and for running its affairs, attribute of charging tax is bestowed by Article 7 of the Constitution but a tax can be levied by or under the authority of Parliament under Article 77. The act of the Parliament, levying a tax, should not offend any of the fundamental rights guaranteed by the Constitution. An unreasonable taxing procedure, if destroys business, offends the right under Article 18 and an income tax taking away property without compensation offends Article 23 and 24.

Income tax is meant to be charged from citizens, who are earning income and citizen, who are not earning any income, deserves to be compensated by the State to meet their basic and essential requirement for living. Unfortunately, the later class of citizens is being already subjected to indirect taxes, is now taxed through unadjustable advance income tax, which can only be termed as expropriatory and confiscatory. The Constitutional Courts have been observing judicial restraint from declaring such laws as ultra vires, for avoiding an impediment against the State’s tax collection system. Nevertheless, as it appears from the representation from respondents’ side, Government is adamant to charge advance tax, ignoring its expropriatory and confiscatory character from the persons not liable to pay tax. Imposing an obligation of tax collection on private persons ignoring reasonability and prejudice to their business, cannot be ignored by Courts, in judicial review. The citizens in tax net, who are burdened with the obligation to withhold tax by declaring them an agent, are also required to be treated rationally and equitably. Putting an extra burden of compliance which is not in normal course of business and that too without remuneration or concession in tax liability, needs to be revisited by the Government as well as tax administrators.

It is, therefore, held that collection of an unadjustable advance income tax from a person not liable to pay income tax or file income tax return, is without lawful authority and unconstitutional. Nevertheless, observing restraint again, the matter is referred to the Attorney General and FBR for suitable amendments within 90-days.

1. For addressing the grievances of the petitioners, this and connected petitions are converted into representations under Section 7 of the Federal Board of Revenue Act, 2007 (“Act of 2007”) and sent to the Chairman, FBR, who shall forthwith consult, the Attorney General of Pakistan on the concerns and legal position. On so consulting, the Attorney General shall advise FBR through its Chairman on the legality of procedure and manner impugned in these petitions with an advice for suitable amendment in the Ordinance of 2001.

Needful be done within 90-days from the date of judgment. Compliance report shall be submitted before the Deputy Registrar (Judl.) of this Court.

Till decision, as directed, interim relief already granted, in this and connected petitions, shall continue.

This and connected petitions are allowed to the extent and in the manner noted above.

SCHEDULE-A

| | | | | --- | --- | --- | | Sr. No. | Case No. | | | 1. | W. P. | 39835 of 2016. | | 2. | W. P. | 228304 of 2018. | | 3. | W. P. | 229383 of 2018. | | 4. | W. P. | 229614 of 2018. | | 5. | W. P. | 229648 of 2018. | | 6. | W. P. | 236177 of 2018. | | 7. | W. P. | 237390 of 2018. | | 8. | W. P. | 244925 of 2018. | | 9. | W. P. | 244934 of 2018. | | 10. | W. P. | 245413 of 2018. | | 11. | W. P. | 248485 of 2018. | | 12. | W. P. | 251403 of 2018. |

| | | | | --- | --- | --- | | 13. | W. P. | 1129 of 2019. | | 14. | W. P. | 24530 of 2019. | | 15. | W. P. | 53926 of 2019. | | 16. | W. P. | 55966 of 2019. | | 17. | W. P. | 57197 of 2019. | | 18. | W. P. | 64408 of 2019. | | 19. | W. P. | 73163 of 2019. | | 20. | W. P. | 4096 of 2020. | | 21. | W. P. | 6418 of 2020. | | 22. | W. P. | 6419 of 2020. |

(Y.A.) Petitions allowed

PLJ 2023 Lahore 199 [Multan Bench Multan]

Present: Anwaar Hussain, J.

DOUD KHAN--Petitioner

versus

MUHAMMAD RASHID, etc.--Respondents

C.R. No. 884 of 2021, heard on 20.1.2022.

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

----O.XXXIII Rr. 1 & 2--Specific Relief Act, (I of 1877), S. 39--Suit for recovery before ADSJ Mailsi and suit for cancellation of pronote at Civil Judge Mailsi--Application for consolidation of suits--Accepted--Challenge to--Both suits are tried together, this engenders another question as to stage at which such suits are to be consolidated and tried together--Withdrawal of suit for cancellation instituted by respondent and its entrustment to Court of an ADJ where suit under Order XXXVII, CPC, of petitioner falls within power of District Judge--Once this power vests with District Judge, through Impugned Order both suits have been rightly clubbed together and it would eliminate possibility of a conflicting judgment qua same subject matter, Impugned Order does not suffer from any infirmity--Revision petition dismissed. [Pp. 206 & 207] E & F

Punjab Civil Courts Ordinance, 1962 (II of 1962)--

----Ss. 7 & 12(2)--Jurisdiction of District Judge--District Judge has original jurisdiction over civil disputes without any limit as regards value involved thereof and also has power to withdraw proceedings from a Civil Judge and either dispose of himself or entrust it to any other judge subordinate to him--District Judge is Court of principal civil jurisdiction and is competent to hear and adjudicate any civil claim. [Pp. 201, 202 & 203] A & B

PLD 2016 SC 409 ref.

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

----O.XXXVII--Object of summary procedure--Object of summary procedure envisaged under Order XXXVII to provide efficacious remedy and avoid prolongation of commercial litigation needs to be kept in juxtaposition with object and purpose of consolidation of suits, which aims at avoiding conflicting judgments. [P. 206] C

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

----O.XXXVII--Consolidation of suits--If a suit under Order XXXVII on basis of negotiable instrument is decreed by an Additional District Judge and very negotiable instrument is subsequently cancelled by Civil Court although decision in former suit ought to operate as res judicata in suit under Section 39 of Act, 1877 for cancellation of said instrument. [P. 206] D

Mr. Muhammad Qadir Asif Toor, Advocate for Petitioner.

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

Date of hearing: 20.1.2022.

Judgment

Brief facts of the case are that the petitioner instituted a suit for recovery on the basis of pro-note, under Order XXXVII of the Code of Civil Procedure, 1908 (“the, CPC”), before the learned Additional District Judge, Mailsi, against the respondent, wherein admittedly leave has been granted in favour of the respondent. The respondent also instituted suit for cancellation of the same pro-note, before the learned Civil Judge 1st class, Mailsi, District Vehari, against the petitioner. Thereafter, the respondent filed an application before the learned District Judge, Vehari, for consolidation of above referred suits, so that the same be tried together by one Court to avoid conflicting judgments, which application has been accepted vide impugned order 17.07.2021, whereby the suit from the Court of learned Civil Judge has been withdrawn and entrusted for adjudication to the Court of learned Additional District Judge, Mailsi, where suit under Order XXXVII, of the CPC was pending. Hence, this civil revision has been filed.

1. Learned counsel for the petitioner submits that the suit instituted under Order XXXVII, Rules 1 & 2 of the CPC on the basis of an instrument executed under the Negotiable Instruments Act, 1881 (“the Act, 1881”) cannot be clubbed with a suit instituted before the Court of plenary jurisdiction for cancellation of the same instrument since the nature, procedure and jurisdiction of both the Courts is different and the District Judge has no power to withdraw the latter suit. Places reliance on “A.B.L. v. Khalid Mahmood” (2009 CLC 308) and “Amanat Ali v. Khalid Nawaz” (2016 YLR Note 96) to support his contentions.

2. Conversely, learned counsel for Respondent No. 1 submits that in order to avoid conflicting judgments, the impugned order has rightly been passed and places reliance on “Sahibzada Azhar Saleem v. Muhammad Hanif” (2002 MLD 696); “M.L. Traders through Proprietor and others v. Judge Banking Court No. IV, Lahore and 2 others” (2007 CLD 634); and “Khalid Pervez Bhatti v. Mst. Madiha Rafiq” (2017 MLD 323) to support his contention.

3. The only legal question which requires adjudication through the present civil revision is to examine whether a District Judge can withdraw a suit of cancellation of a negotiable instrument, filed under Section 39 of Specific Relief Act, 1877 (hereinafter “the Act 1877”), from the Civil Court and entrust the same for adjudication to the Court of an Additional District Judge where recovery suit on the basis of same negotiable instrument is pending adjudication in terms of Order XXXVII, CPC and if so, under what circumstances?

4. In order to render the opinion of this Court, it is imperative to have a glance through the relevant law on the subject in respect of the nature, procedure and jurisdiction of both the Courts on one hand and the object of the summary procedure envisaged for decision in suit instituted under Order XXXVII, CPC, on the other hand.

5. The CPC read with provisions of the Punjab Civil Courts Ordinance, 1962, (hereinafter “the Ordinance”), contemplates the relevant law regarding subject matter of the instant lis. Under Section 7 read with Section 12(2) of Ordinance, the District Judge has original jurisdiction over civil disputes without any limit as regards the value involved thereof and also has the power to withdraw proceedings from a Civil Judge and either dispose of himself or entrust it to any other judge subordinate to him. Section 12(2) of the Ordinance contemplates as under:

“The District Judge may withdraw any such proceedings taken cognizance of by or transferred to a Civil Judge, and may either himself dispose of them or transfer them to a Court under his control competent to dispose of them.”

Similarly, under Section 24 of the CPC, general power of the transfer and withdrawal of the cases, upon the District Court has been also conferred in the following manner:

“24. General power of transfer and withdrawal.

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage.

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this Section, Courts of Additional and Assistant Judges shall be deemed to subordinate to the District Court.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.”

(Emphasis provided)

A conjunctive reading of the above two provisions of law shows that the District Judge is the Court of principal civil jurisdiction and is competent to hear and adjudicate any civil claim. Decision in case reported as “Sheikh Iqbal Hussain v. Anwar Hussain” (2005 YLR 181) is referred in this regard. Law also confers the power on the District Judge to withdraw a suit from one subordinate Court and entrust the same to another. In case of Khalid Pervez Bhatti supra, the learned Islamabad High Court in a case allowed the consolidation of the two suits pending in two different Courts, which relief was disallowed by the learned District Judge, Islamabad on the ground that the jurisdiction of the two Courts is different and the District Court does not have the jurisdiction and power to hear and decide a case for cancellation of the negotiable instrument while holding that under Section 7 of the Ordinance, the District Judge has unlimited jurisdiction with respect to the Civil Suits/claims. The learned Islamabad High Court referred Section 12(2) of the Ordinance to hold that the District Judge may withdraw any proceedings from a Civil Judge and may either himself dispose them of or transfer them to a Court under his control competent to dispose them of.

7. As regards consolidation of the cases, the Hon’ble Supreme Court of Pakistan in case titled “Zahid Zaman Khan and others v. Khan Afsar and others” (PLD 2016 SC 409) laid down the principles for consolidation of the suits and it was observed as follows:

“7. ... it is settled law that it is the inherent power of the Court to consolidate suits and the purpose behind it is to avoid multiplicity of litigation and to prevent abuse of the process of law and Court and to avoid conflicting judgements. No hard and fast rule forming the basis of consolidation can be definitive and it depends upon the facts and the points of law involved in each and every case, obviously where the Court is persuaded that the interests of justice so demand, consolidation can be ordered, provided no prejudice is caused to any litigant and there is no bar in the way of the Courts to consolidate the suits ……”

Somewhat similar observation was made by the Hon’ble Apex Court in case titled “Muhammad Yaqoob v. Behram Khan” (2006 SCMR 1262). Thus, it has become well-coalesced principle that no hard and definitive formulation of principles could be made for regulating the consolidation of suit. The fundamental considerations of avoidance of multiplicity of litigation, obviation of any possibility of conflicting judgment as a matter of public policy and prevention of abuse of process of the Court should be guiding principles for the consolidation of suits by the Court. It is well settled principle of law that common issues should be resolved together instead of unnecessarily keeping one suit pending while the other is decided particularly when both the suits involve the same subject matter and the decision in one would have substantial bearing on the other if not rendering the other suit infructuous at all.

1. Having held as above, it is in fitness of things to examine the difference in procedure governing an ordinary suit under Section 39 of the Act 1877 and the summary suit under Order XXXVII, CPC. In this regard, at the outset, it would be instrumental and useful to state for the purposes of present lis that it has become an unexceptionable and hard-etched principle that procedural law is a tool to achieve the substantive justice which is the ultimate end sought to be achieved through any procedural law. One would readily agree if it is stated that means i.e., procedural law should not be so contrived and/or construed as to make the achievement of the end an unrealizable dream. This principle underlies and underscores the settled law that the Court ought to act on the principle and assumption that every procedure is to be taken as prohibited unless it is expressly provided for rather the assumption and presumption prevailing with the Court should be that every procedure is permissible which furthers and advances the administration of justice even if there is no provision permitting and/or prescribing such procedure. Thus, it lies with the Court to adopt any procedure which works in furtherance of administration of justice unless it is considered that such procedure is harmful and detrimental to the said cause. I am fortified by the law laid down in “Zahid Zaman Khan and others v. Khan Afsar and others” (PLD 2016 SC 409) and “H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another” (PLD 1969 SC 65). Learned counsel for the petitioner has heavily relied on decision rendered in case of ‘ABL’ supra, wherein the learned Division Bench of this Court has disallowed consolidation on the ground that the “nature, procedure and jurisdiction” of the two Courts are different, and the decision has been followed by the learned single Bench of this Court by way of reported judgment dated 13.09.2021 rendered in Civil Revision No. 300/2017 titled “Hadeed Dawood v. Muhammad Ramzan”, however, the above ratio of law is not applicable in a situation where leave to defend is allowed in the suit instituted under Order XXXVII, CPC as in such situation, the suit for cancellation of a negotiable instrument may be transferred to the Court of an Additional District Judge hearing the suit under Order XXXVII, as the procedure to be adopted in the suit for recovery under Order XXXVII after granting of leave to appear and defend is that of a regular suit, which was not the situation in “ABL” supra. This view is fortified from the reading of the language of Order XXXVII, Rule 7, CPC, which states as under:

“7. Procedure in suits.--Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.”

Cases reported as “Abdul Sattar v. Mudassar Ali” (2014 YLR 2087), “Hamid Ghani v. Muhammad Basit Siddiqui” (PLD 2010 Lahore. 487), “Irfan Afzal v. Zahid Iqbal” (2004 CLC 384) and “Sahibzada Azhar Saleem v. Muhammad Hanif” (2002 MLD 696) are referred in this regard. This Court is also fortified by the decision of the Hon’ble Supreme Court in case reported as “First Women Bank Limited v. High Court of Sindh, Karachi and 4 others” (2004 SCMR 108) where the petitioner therein sought leave to appeal against the order, dated 04.12.2000 passed by learned Chief Justice of the Sindh High Court in Transfer Application No. 17 of 2000 whereby learned High Court transferred Suit No. 7 of 1997 filed by the petitioner-Bank therein against Respondents Nos. 2 to 5 for recovery of Rs. 79,64,375 of 1988 from Banking Court No. 1, Karachi to the Sindh High Court for proceeding along with Suit No. 83 of 1997 filed by Malik Jehangir Khan Respondent No. 1 against the petitioner-Bank, Respondents Nos. 3 to 5 and others, for declaration, injunction, cancellation of documents and damages in the sum of Rs. 20 million for loss of reputation and Rs. 5,00,000 per month from December, 1996 till the delivery of WAPDA Bonds pledged with the petitioner-Bank and after examining the material on record and going through the impugned judgment, the Hon’ble Supreme Court of Pakistan was pleased to hold that the order passed by the High Court is just, fair and equitable on the face of it and it does not suffer from any inherent defect or error of jurisdiction. Their Lordships were pleased to hold as under:

“…… We are of the view that the trial of both the suits would not only be expedient in the interest or justice but also in the interest of both the parties as joint trial of both the suits would certainly obviate the possibility of a conflict of judgment. In our view apprehensions expressed by the petitioner-Bank’s counsel are without any basis and no finding can be given on mere surmises. Precedent case does not appear to have any bearing on the facts of t his case.”

The upshot of the above mentioned dicta of the Hon’ble Supreme Court is that consolidation of the suits is to be ordered in order to avoid contradictory judgements and for better administration of justice and merely that the procedure of the two Courts are different is not an impediment in this regard. Moreover, perusal of Rule 1 of Order XXXVII reveals that this Order shall apply to the High Court, District Court and to any other Civil Court specially notified in this behalf by the High Court. Thus, it is evident that Order XXXVII does not deal with the jurisdiction only rather provides a procedure to be adopted for trial of certain suits and once leave to defend is granted in suit instituted under Order XXXVII, its procedure becomes that of a regular suit. “Sh. Abdul Majid v. Syed Akhtar Hussain Zaidi” (PLD 1988 SC 124) is referred in this regard.

1. Before concluding the discussion, it is also imperative to note that the object of summary procedure envisaged under Order XXXVII to provide efficacious remedy and avoid prolongation of commercial litigation needs to be kept in juxtaposition with the object and purpose of consolidation of suits, which aims at avoiding conflicting judgments. If the suit instituted under Order XXXVII on the basis of negotiable instruments and pending in the Court of Additional District Judge and the suit pending before Civil Court for cancellation of same negotiable instrument are not clubbed and consolidated, the judgment in one would have the effect of frustrating the other. It would be anomalous situation if a suit under Order XXXVII on the basis of negotiable instrument is decreed by an Additional District Judge and the very negotiable instrument is subsequently cancelled by the Civil Court although the decision in the former suit ought to operate as res judicata in the suit under Section 39 of Act, 1877 for cancellation of the said instrument, which is yet another reason for consolidating both the suits, therefore, it would be in consonance with the principles of administration of justice and public policy that both the suits are tried together, however, this engenders another question as to the stage at which such suits are to be consolidated and tried together. Special summary procedure provided under Order XXXVII whereby a defendant is precluded from presenting his defence unless leave to appear and defend is granted would be frustrated if leave is granted in every case where cancellation has been sought by institution of a civil suit. In view of the above discussion, it is considered opinion of this Court that no definitive and straight-jacket formula could be laid down for consolidation of two suits and the same is to be decided on case to case basis because a blanket permission to consolidate every suit for cancellation of instruments with the suit for recovery under Order XXXVII would nullify and frustrate the very object of summary procedure envisaged under Order XXXVII. The consolidation ought not to be effected in such a way that it defeats the very purpose and intent of Order XXXVII. For instance, if the two suits are clubbed and/or consolidated in one Court, before the leave is granted in the Order XXXVII suit, this would render the summary procedure envisaged under Order XXXVII

redundant, since leave would have to be granted in any event so that common issues can be framed. Similarly, consolidation of suits should not be a rule but should be ordered keeping in view the facts of each case. Several considerations, inter alia, including the stage of proceedings, the parties involved and whether the subject matter of both suits is identical could weigh with the Court when deciding the question of consolidation.

1. Keeping in view the above discussion qua the nature of the suits, the procedure to be followed and the jurisdiction of the two Courts, in the instant case where the leave to defend has been granted in the suit instituted by the petitioner under Order XXXVII, the withdrawal of the suit for cancellation instituted by the respondent and its entrustment to the Court of an Additional District Judge where the suit under Order XXXVII, CPC, of the petitioner falls within the power of the District Judge. Once this power vests with the District Judge, through the Impugned Order both the suits have been rightly clubbed together and it would eliminate the possibility of a conflicting judgment qua the same subject matter, hence, the Impugned Order does not suffer from any infirmity.

2. In the sequel, this civil revision, being bereft of any merit is dismissed with no order as to costs.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 207

Present: Shujaat Ali Khan, J.

MUSTAFA MASOOD--Petitioner

versus

DEFENCE HOUSING AUTHORITY, LAHORE, etc.--Respondents

W.P. No. 45771 of 2022, heard on 14.11.2022.

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

----O.XXXVII--Constitution of Pakistan, 1973, Art. 199--Suit for recovery--Decreed--Execution proceedings--Submission of list of inventory--Appointment of local commission for auction--Submission of report--Transfer of decree to District Ghotki on application of petitioner--Application for incorporation of names of legal heirs by petitioner was allowed--Incorporation of names as owners--Refusal to issuance of NDC by DHA--Caution was marked against subject plot--Bounden responsibility of DHA authorities--At time of filing of execution petition, judgment-debtor had no concern with subject plot rather Court ordered its auction just due to mentioning same in list of inventory by decree-holder--There was no justification for DHA to continue with Caution marked pursuant to order passed by Executing Court as after transfer of decree out of province of Punjab, no Caution could continue--Once a Caution or injunctive order is incorporated in record of a statutory body, like DHA, same is not removed despite knowing fact that said Caution or order has already lost its efficacy and present case is classical example of such practice--DHA authority were under bounden responsibility to remove Caution and issue NDC to petitioner upon fulfillment of other codal formalities but lingering on matter till date--Continuation of Caution marked by respondents pursuant to an order passed by Executing Court after transfer of decree to province of Sindh is not justified--Request of petitioner for issuance of NDC could not be declined--Petition accepteds.

[Pp. 210, 211 & 212] A, B, C, D & E

Rana Tahir Mahmood, Advocate for Petitioner.

Mr. Ahmad Parvez Advocate assisted by Ms. Scheherezade Shaharyar, Advocate for Respondents.

Date of hearing: 14.11.2022.

Judgment

Briefly put, plot bearing No. 121, measuring 1-Kanal, Sector D, Phase-V, Defence Housing Authority (“DHA”), Lahore was originally owned by one Jam Naveed Ahmad Dahir who transferred the same to one Allah Ditta, who further alienated the same in the name of Brigadier Masood Salam. One Sheikh Tariq Mahmood filed suit for recovery of Rs. 1,10,000/- against Jam Naveed Ahmed Dahir which was decreed through judgment and decree dated 20.03.2004. During execution proceedings, the decree-holder submitted list of inventory by mentioning the subject plot as ownership of the judgment-debtor. As a result, auction plan was carved out by the Executing Court but the local commission, appointed for the said purpose, submitted report dated 28.03.2006 inter alia with the averments that the plot mentioned in the list of inventory, being not in the name of the judgment-debtor, could not be auctioned towards satisfaction of the decree. Further, on 08.02.2011 an employee of the DHA appeared before the Executing Court and clarified that the subject plot was in the name of father of the petitioner since 20.05.2003. In view of the said clarification, on 28.06.2012 the decree-holder submitted an application to the Executing Court for transfer of decree to District Ghotki, Province Sindh for its satisfaction as the judgment-debtor had some landed property there which was allowed and the decree was transferred to the District & Sessions Judge, Ghotki, Province Sindh for its onward marking to the Court of competent jurisdiction. After death of Brigadier Masood Salam, father of the petitioner, the petitioner and other legal heirs moved an application for incorporation their names as owners, which was allowed and the names of the petitioner and other legal heirs of late Brigadier Masood Salam were incorporated as owners on 30.09.2021. After incorporation of his name alongwith other legal heirs as owners, the petitioner filed an application before the Secretary, DHA for issuance of No Demand Certificate (“NDC”) which was refused on the ground that since Court Caution was marked against the subject plot, the requisite NDC could not be issued during pendency of litigation. Again the petitioner filed an application before the Director (Legal), DHA clarifying that the judgment-debtor had nothing to do with the subject plot and request for NDC could not be refused but said prayer of the petitioner was also declined and factum thereof was conveyed to him through letter dated 23.06.2022 issued by the Deputy Director (Legal), DHA, Lahore (Respondent No. 3). Being aggrieved of non-issuance of NDC by the DHA authorities, the petitioner has filed instant petition.

1. Learned counsel for the petitioner submits that when it was established from the report of Local Commission, appointed for auction of the subject plot towards satisfaction of the decree passed in favour of one Sheikh Tariq Mehmood, that judgment-debtor had nothing to do with it, the DHA authorities were bound to remove Caution if any; that when the employee of DHA appeared before the executing Court and clarified that subject plot was in the name of father of the petitioner since 20.05.2003 it was incumbent upon the DHA authorities to remove lien marked pursuant to any order passed by the Executing Court; that when the decree passed against Jam Naveed Ahmad Dahir was transferred to District Ghotki, Province Sindh, the DHA authorities were not justified to refuse issuance of NDC to the petitioner and other legal heirs and that though in the report and parawise comments the respondents have admitted the ownership of the petitioner and other legal heirs of late Brigadier Masood Salam but non-issuance of NDC speaks volume about their incompetence and indifferent attitude.

2. Learned counsel appearing on behalf of respondent-DHA, while admitting that the DHA has no qualm about the fact that the petitioner alongwith other legal heirs of Brigadier Masood Salam are recorded owners but when all the legal heirs have not been arrayed as party in this petition the same is not maintainable. Adds that Courts orders are strictly adhered to by the DHA authorities just to avoid any legal complication and to safeguard the rights of the parties to the litigation. When confronted with the fact as to how request of the petitioner for issuance of NDC could be declined especially when no Court proceedings regarding the subject plot were in field, learned counsel for respondent-DHA has no persuasive answer.

3. I have heard learned counsel for the parties and have also gone through the documents appended with this petition as well those forming part of report and parawise comments submitted on behalf of the respondents.

4. Admittedly, Caution was marked by the DHA against the subject plot pursuant to order passed by the Executing Court due to the fact that the decree-holder mentioned subject plot in the list of inventory for satisfaction of decree. It has also not been denied by the DHA that Local Commission appointed by the Executing Court for auction of the subject plot reported that since it did not belong to judgment-debtor, the auction could not be held. Moreover, one Abdul Shakoor, Lower Division Clerk (bearing employee No. 2088) DHA appeared before the Executing Court on 08.02.2011 and clarified that the subject plot was transferred in the name of father of the petitioner on 20.05.2003 and thereafter judgment-debtor had nothing to do with the said plot. The foregoing chain of facts leaves no doubt that at the time of filing of execution petition, the judgment-debtor had no concern with the subject plot rather the Court ordered its auction just due to mentioning the same in the list of inventory by the decree-holder.

5. It is important to observe over here that admittedly on the request of the decree-holder, the decree passed against Jam Naveed Ahmed Dahir was transferred to District Ghotki, Province Sindh for its satisfaction as judgment-debtor had some landed property there. There was no justification for DHA to continue with the Caution marked pursuant to order passed by the Executing Court as after transfer of the decree out of the province of Punjab, no Caution could continue which was marked on the basis of order passed by the Executing Court towards satisfaction of the decree.

6. It is of common knowledge that once a Caution or injunctive order is incorporated in the record of a statutory body, like DHA, the same is not removed despite knowing the fact that said Caution or order has already lost its efficacy and the present case is classical example of such practice. It is very ironical that on the one hand above named official of the DHA appeared before the Executing Court and apprised it that the judgment-debtor had nothing to do with the subject plot which fact was earlier vouched by the Local Commission in its report submitted on 28.03.2006 but DHA authorities did not bother to remove the Caution despite the fact that the entire episode was narrated by the petitioner in his applications for issuance of NDC.

7. Another important facet of the instant case is that when the Local Commission submitted its report on 28.03.2006 with the averments that subject plot had nothing to do with the judgment-debtor so its auction was not possible towards satisfaction of decree passed against a person, who was not recorded as owner in the DHA, but the DHA took more than five years to depute its employee to affirm the said fact before the Executing Court.

8. There is no cavil with the fact that efforts of DHA authorities to protect the rights of allottees/residents should be lauded but undue restrictions/impediments against issuance of requisite documents on the basis of untenable grounds cannot be approved of rather deserves to be deprecated. When it was brought to the notice of DHA that after transfer of decree out of province of Punjab, the execution proceedings became redundant and requisite order of transfer of decree was also placed before the DHA authorities, they were under bounden responsibility to remove Caution and issue NDC to the petitioner upon fulfillment of other codal formalities but lingering on the matter till date speaks volume about the fact that DHA authorities, instead of facilitating its residents, are creating hurdles in their way to deal with their property according to their own whims.

9. It is not out of place to mention here that DHA being statutory body is bound to fulfill its obligation as per its mandate and when it fails to do so it exposes itself to the Court proceedings. A cursory glance over letter issued by Respondent No. 3, refusing request of the petitioner regarding issuance of NDC, shows that instead of declining the request of the petitioner on the basis of tangible grounds they dealt with the matter in a casual manner which cannot be approved of rather deserves to be deprecated with full vigor. It goes without saying that in case of any ambiguity, the DHA authorities can require the party concerned to provide order(s) of the Court justifying the removal of caution marked in the DHA record. In the alternative, DHA authorities can directly verify from the Court concerned as to whether the Court proceedings on the basis of which caution was marked in the DHA record are still live or not but DHA authorities cannot be allowed to continue a caution marked on the basis of a Court order which otherwise was no more operative.

10. As a necessary corollary to the above discussion, I have no hesitation to hold that continuation of Caution marked by the respondents pursuant to an order passed by the Executing Court at Lahore even after transfer of decree to the province of Sindh is not justified. Likewise, the request of the petitioner for issuance of NDC could not be declined. Consequently, this petition is accepted and the impugned letter issued by Respondent No. 3 is declared illegal and is accordingly set aside. Further Respondent No. 1 is directed to ensure issuance of NDC in favour of the petitioner and other legal heirs of Brigadier Masood Salam upon fulfillment of requisite formalities. There shall be no order as to costs.

(Y.A.) Petition accepted

PLJ 2023 Lahore 212 [Multan Bench Multan]

Present: Anwaar Hussain, J.

Mst. SEEMA YOUSAF etc.--Petitioners

versus

DISTRICT JUDGE etc.--Respondents

W.P. No. 20144 of 2021, decided on 19.1.2022.

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

----S. 94, O.XXXVIII Rr. 1 to 5--Specific Relief Act, (I of 1877), S. 42--Constitution of Pakistan, 1973, Art. 199--Suit for declaration--Application for arrest and attachment of property of Respondent No. 4--Dismissal of application--Concurrent findings--Jurisdiction--Doctrine of limine control--Challenge to--Petitioners are not plaintiffs but defendants are claiming ownership of possession of suit property on basis of sale deeds impugned in suit--No jurisdiction is vested in civil Court to refer any civil matter qua determination of rights in an immovable property pending before it to Anti-Corruption Establishment, same has also been rightly refused by trial Court and said findings have been upheld by revisional Court below--Court is inclined to apply doctrine of limine control in instant case as counsel for petitioners has failed to point out any infirmity in concurrent findings of Courts below which can form legal or factual basis of proceeding further in constitutional jurisdiction of High Court. [Pp. 215, 216 & 220] A, D & E

PLD 1992 SC 62.

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

----O.XXXVIII R. 5--Object of--Object of Order XXXVIII Rule 5 of the, CPC was to prevent any defendant from defeating realization of decree that may be ultimately passed in favour of plaintiff by either disposing of or removing assets from jurisdiction of Court.

[P. 219] C

(2008) 2 SCC 302 ref.

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

----O. XXXVIII R. 1--Arrest of a person--Power under Order XXXVIII, Rule 1 seeking arrest of a person is a drastic and extraordinary power and such power should not be exercised mechanically--It should be used sparingly and strictly in accordance with Rule.

[P. 216] B

Mr. Muhammad Asif Manzoor, Advocate for Petitioners.

Date of hearing: 19.1.2022.

Order

Precisely, following legal questions arises out of the factual canvas of the case for adjudication by this Court, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter “the Constitution”):

i. Whether a defendant in a suit for declaration instituted against him and others can invoke provisions of Order XXXVIII, Rules 1 to 5, Code of Civil Procedure 1908, (hereinafter “CPC”) against a co-defendant?

ii. Whether civil Court is vested with the jurisdiction to refer any matter out of pending lis qua determination of civil rights to any other forum or Court such as Anti-Corruption Establishment?

1. Brief facts of the case are that on 13.01.2020, Respondents No. 6 to 8/plaintiffs instituted a suit for declaration titled “Sh. Muhammad Sarfraz etc. v. Province of Punjab etc.” against the petitioners as well as Respondent No. 9 and proforma respondents whereby they challenged the legality of registered sale deeds bearing No. 583 dated 10.03.2007, 965 dated 16.04.2007 and order dated 08.01.2020 passed by the ADCR, Layyah claiming themselves as legal heirs of one Mst. Hafeez Begum daughter of Aziz Bakhsh. During the pendency of the suit, the petitioners filed an application under Order XXXVIII Rules 1 to 5, CPC read with Section 94 thereof, for arrest and attachment of property of Respondent No. 9/Defendant No. 4 namely, Muhammad Sarwar as well as for ensuring his appearance before the Court alleging that he had committed fraud with them. It has been further prayed in the application that the matter also be referred to the Anti-Corruption Establishment and till then the suit instituted by Respondents No. 6 to 8 be sine die adjourned. It is the case of the petitioners that said Respondent No. 9 who is Defendant No. 4 before the learned trial Court, sold the suit property through the above referred sale deeds, and now is avoiding his appearance before the learned trial Court in connivance with Respondents No. 6 to 8 who are the plaintiffs in the suit just to linger on the matter and defeat the rights of the petitioners qua the suit property, therefore, his arrest will be in the interest of justice. Similarly, it is the assertion of the petitioners that the matter once referred to and decided by the Anti-Corruption Court, any decision passed therein will be a valuable piece of evidence in favour of the petitioners.

2. The learned trial Court dismissed the application of the petitioners, vide order dated 05.10.2021. Feeling aggrieved, the petitioners filed civil revision, which was also dismissed by learned District Judge, Layyah vide judgment dated 22.11.2021. Hence, this writ petition has been filed.

3. Learned counsel for the petitioners submits that since Respondent No. 9 has committed forgery and is now avoiding service and appearance as co-defendant along with the petitioners, therefore, either coercive measures in terms of Order XXXVIII, Rules 1 to 5, CPC be adopted to ensure his presence before the Court or the matter must be referred to the Anti-Corruption Establishment and the learned trial Court must wait for outcome of the matter after its reference to Anti-Corruption Establishment.

4. Arguments heard. Record perused.

5. Before answering legal questions formulated above qua scope of Order XXXVIII Rules 1 to 5, CPC, it is pertinent to mention here that the prayer of the petitioner contained in application under Order XXXIII, CPC when perused reveals that it is more like a lengthy narration of opinion of the petitioners qua their grievance than a precise prayer for the redressal thereof. Some of the salient points are reproduced for facility of reference:

استدعا (PRAY)

بحالات بالا معزز عدالت سے استدعا کی جاتی ہے که مدعاعلیہ نمبر 4 محمد سرور ولد واحد بخش کو گرفتار کر کے اس سے بیان لیا جاوےاگر مدعاعلیہ نمبر 4 یہ بیان دیتا ہے کہ اس نے اپنے تمام بہن بھائیوں کی باہمی مشاورت اور رضامندی سے خانگی ونڈ کر نے کے بعد اپنے حصہ میں آنے والی اپنی وراثتی جائید اد میں سے مکان ہذا اور زرعی زمین بحق مدعاعلیہ نمبر 5 سیما یوسف دختر یوسف علی فروخت کی ہے تو پھر یہ کیس (case) ختم کیا جاوے جو کہ قرین انصاف ہو گا اور مدعیان کو جھوٹے دعوی میں معزز عدالت کا قیمتی وقت ضائع/ بر باد کرنے پر بھاری جرمانہ کیا جاوے۔ اگر مدعاعلیہ نمبر 4 مدعیان اور ترتیبی مدعاعلیہان کے کہنے کے مطابق غلط بیان دیتا ہے یعنی یہ کہتا ہے کہ اس نے جعلسازی فراڈ کیا ہے تو پھر مدعاعلیہ نمبر 4 اور مدعا علیہ نمبر 8 محمد شریف دونوں کو جیل بھیج دیا جاوے کیونکہ محمد شریف مکان ہذا کی رجسٹری کرانے میں گواہ ہے اور سب سے بڑا ملزم ہے کیونکہ محمد شریف نے خود دونوں رجسٹریاں کرائی ہیں۔۔۔۔۔۔ معزز عدالت سے استدعا کی جاتی ہے کہ کیس (case) اینٹی کر پشن کے حوالے کیا جاوے تاکہ وہ تفتیش کرنے کے بعد اس بات کا تعین کرے کہ اس سازش میں بڑا کر دار کس کا ہے۔ میرے خیال کے مطابق سازش ، جعلسازی اور فراڈ میں مرکزی کردار میں یہ لوگ شامل ہیں۔

۔۔۔۔۔۔

معزز عدالت سے استدعا کی جاتی ہے کہ اینٹی کر پشن کے فیصلے تک کیس (case) ہذا کو Adjourned Sine Die کیا جاوے اور اینٹی کر پشن کے فیصلے کی روشنی میں معز ز جج صاحب فیصلہ فرمائیں کیونکہ اینٹی کر پشن (کریمینل عدالت) کا فیصلہ سول عدالت کے لیےقابل قدر شہادت ہوگا۔

۔۔۔۔۔۔۔۔۔۔۔۔

دیگر دادرسی بمطابق قانون دلوائی جاوے۔“

(Emphasis supplied)

1. Having observed that the prayer clause of the petitioner is more like an opinion, it is pertinent to mention that in a suit instituted by a plaintiff, no doubt coercive measures under the provisions of Order XXXVIII, CPC can be adopted for ensuring presence of the defendant(s) when the plaintiff in a suit has an apprehension that any ultimate decree in his favour is likely to be frustrated by absence of the defendant. In the instant case, the petitioners are not the plaintiffs but the defendants and are claiming ownership of the possession of the suit property on the basis of sale deeds impugned in the suit. While the petitioners have quoted Rules 1 to 5 of Order XXXVII, CPC in their application, however, it is the import of Rules 1 and 5, CPC, which requires examination and at this juncture, it deems imperative to reproduce Rule 1, for facility of reference:

“1. Where a defendant may be called upon to furnish security for appearance.--Whether at any stage of a suit, other than a suit of the nature referred to in Section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise, (a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him,--

(i) has absconded or left the local limits of the jurisdiction of the Court, or

(ii) is about to abscond or leave the local limits of the jurisdiction of the Court, or

(iii) has disposed of or removed from the limits of the jurisdiction of the Court his property or any part thereof, or

(b) that the defendant is about to leave Pakistan under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for appearance:

Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.”

(Emphasis supplied)

Perusal of Order XXXVIII in general and Rule 1 thereof in particular dawns upon the reader in crystal-clear manner the object and scope of these provisions. These provisions being preemptory in nature aim at ensuring that an ultimate decree may not be defeated by the defendant. The main objective is to ensure the protection of the plaintiff and not a co-defendant in whose favour no decree is sought and/or prayed as is the position in the instant manner. It is pertinent to mention that power under Order XXXVIII, Rule 1 seeking arrest of a person is a drastic and extraordinary power and such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The said provisions cannot be handed over as a sword in the hands of a litigant to achieve oblique motives rather the same has been incorporated for the help of the Court to ensure that unscrupulous defendant does not render the decree of Court as toothless piece of paper. It is clear that the trial Court has been cloaked with the power to call upon the defendant to furnish security for production of property, even before the judgment, in case the Court is satisfied that the defendant, with an intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. In the matter in hand, it is not the case of the petitioners that any property is likely to be disposed of or removed by their co-defendant i.e., Respondent No. 9 before this Court since the matter relates to immovable property which as per their own contention is in their possession. Moreover, these provisions vest the Court with the preemptive powers to forestall any ill-motivated attempt of defendant to frustrate an ultimate decree and defeat the ends of justice. This is further fortified by embargo and curtailment placed by the legislature itself on the exercise of this power in certain suits provided in Clauses (a) to (d) of Section 16, CPC. In order to further ascertain the intention and object, it may be of some enlightenment to have a glance over the nature of suits provided in Clauses (a) to (d) of Section 16, CPC. For facility of reference, Clauses (a) to (d) of Section 16, CPC are reproduced hereunder:

“16. Suits to be instituted where subject matter situate. --Subject to the pecuniary or other limitations prescribed by any law, suits--

(a) for the recovery of immovable property with or without rent or profits, (b) for the partition of immovable property, (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or interest in immovable property, (e) .…, (f) …., Shall be instituted in the Court within the local limits of whose jurisdiction the property is situate, or in the case of suits referred to in clause (c) at the place where the cause of action has wholly or partly arisen.”

1. A run-through the clauses of Section 16 reveals that these kinds of suits can be filed only before the Court within whose territorial jurisdiction such immovable property lies. This has been obligated so with the object that any decree passed with respect to such immovable property is got executed by the same Court and the decree is not frustrated. The applicability of provisions of Order XXXVIII Rule 1, CPC has been excluded with respect to suits in the nature provided in Clauses (a) to (d) of Section 16, CPC because those suits are to be filed within the territorial jurisdiction of Courts where such property is situated, which rules out any possibility of avoidance of the execution of decree if and when it is ultimately passed. As the suit before the trial Court is a suit for declaration qua rights in immovable property, which clearly falls under the purview of clause (d) of Section 16, CPC and has been filed in the Court within whose territorial jurisdiction the immovable property is situate, the mechanism under Order XXXVIII, CPC cannot be invoked at the instance of the petitioners who are not the plaintiffs in the case.

2. The above discussion makes it amply clear that the power of the Court under Order XXXVIII, CPC can be invoked for the favour of a plaintiff, having a prima facie case, and not in favour of a defendant against the co-defendant in a suit. When confronted in this regard, learned counsel for the petitioners argues that in Order XXXVIII, Rule 1, CPC, it is also envisaged that order of arrest can be passed if the trial Court is satisfied, by affidavit or otherwise, that the defendant is avoiding any process of the Court and hence, the said rule is squarely applicable in the instant case. In this regard, suffice to mention that admittedly, Petitioner No. 1 is daughter of Petitioner No. 2 and wife of Respondent No. 9, who is Defendant No. 4 before the learned trial Court. Respondents No. 6 to 8 instituted a suit in which Respondent No. 9 has been proceeded against ex-parte and it is the title of the petitioners qua the suit property, which is in question in the suit and the petitioners have every right and all the opportunities, in accordance with law, to defend sale deeds executed in their favour, by producing its marginal witnesses, as well as any other evidence in their favour, hence, the discretion exercised by the learned trial Court in not issuing warrant of arrest of Respondent No. 9 to ensure his presence and upheld by the learned revisional Court below is neither arbitrary nor unreasonable and hence, no interference is required.

3. Similarly, Order XXXVIII, Rule 5, CPC can be invoked when there is apprehension that a defendant will obstruct a decree which is likely to be passed against him and in favour of the plaintiff, which is not the case and there is nothing to establish as to which property as a result of such decree is likely to be removed or disposed of by Respondent No. 9. Similarly, the petitioners have not mentioned description of any property of Respondent No. 9, which is required to be attached in terms of Rule 5(2) of Order XXXVIII, CPC. For reference, Rule 5 of Order XXXVIII, CPC is reproduced below:

“5. Where a defendant may be called upon to furnish security for production of property.---(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him--

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.”

While spelling out the object of Order XXXVIII, Rule 5, CPC, the Indian Supreme Court in case reported as “Raman Tech. & Process Engg. Co. & others v. Solanki Traders” [(2008) 2 SCC 302], held that the object of Order XXXVIII Rule 5 of the CPC was to prevent any defendant from defeating the realization of the decree that may be ultimately passed in favour of the plaintiff by either disposing of or removing assets from the jurisdiction of the Court. The relevant extract of the said decision is reproduced below:

“4. The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of Order 38 Rule 5, CPC in particular, is to prevent any defendant from defeating the realization of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the Court, his movables. …………………. This would mean that the Court should be satisfied that the plaintiff has a prima facie case….. his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case.

(Emphasis supplied)

In view of the above discussion, the petitioners have failed to bring their case within the purview of Order XXXVIII, Rule 5, CPC as well.

1. In so far as the contention of learned counsel for the petitioners that since serious allegation of forgery has been alleged by Respondents No. 6 to 8 against Respondent No. 9, therefore, the matter be referred to the Anti-Corruption Establishment and the suit before the trial Court be adjourned sine die till then is concerned, suffice to say that such jurisdiction does not vests with the civil Court and the learned trial Court and revisional Court below have rightly discarded such wishful prayer of the petitioners. In Federal Government Employees Housing Foundation (FGEHF), Islamabad and another v. Malik Ghulam Mustafa & others (2021 SCMR 201), in para 133, it was held by the august Supreme Court of Pakistan that:

“…. It is a settled position in law that jurisdiction on Court cannot be conferred even by consent; unless it is so conferred by or under Constitution and or law.”

Hence, it is clear that for the purpose of a Court or Tribunal, such Court or Tribunal has to derive such jurisdiction from or under the Constitution or by or under any law. As no jurisdiction is vested in the learned civil Court to refer any civil matter qua determination of rights in an immovable property pending before it to the Anti-Corruption Establishment, the same has also been rightly refused by the learned trial Court and said findings have been upheld by the learned revisional Court below.

1. Both the learned Courts below have given sound reasons for dismissing application of the petitioners under Order XXXVIII, CPC and have rightly held that Respondent No. 9 namely, Muhammad Sarwar has already been proceeded against ex-parte after due process of law and at this stage, there is no apprehension of causing of loss to the property or its removal from the jurisdiction of the trial Court. This Court is inclined to apply doctrine of limine control in the instant case as learned counsel for the petitioners has failed to point out any infirmity in the concurrent findings of the Courts below which can form legal or factual basis of proceeding further in the constitutional jurisdiction of this Court and in this regard fortified by the law laid down by the august Supreme Court of Pakistan in “Muhammad

Mustafa v. Excise and Taxation Officer Lahore and another” (PLD 1992 SC 62).

1. For what has been discussed above, the present constitutional petition is dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 221 (DB)

Present: Ch. Muhammad Iqbal and Muzamil Akhtar Shabir, JJ.

HAMID MUKHTAR--Appellant

versus

FEDERAL MINISTRY OF ENERGY, etc.--Respondents

ICA No. 71303 of 2022, decided on 14.11.2022.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3(2)--Dismissal of constitutional petition--Termination of contractual service--Application for reinstatement and regularization in service--Opportunity of hearing--Contract was not completed--Maintainability--Although counsel for appellant had not entered appearance before Single Judge and matter was decided in his absence, yet fact of matter is that said Court properly appreciated real controversy in issue and decided that appellant being a contract employee, whose services had been terminated, could not seek reinstatement and regularization in service--If petition is held to be maintainable against NESPAK, High Court has already concluded that Writ Petition by appellant, who was a contract employee seeking reinstatement in service is not maintainable--Where main ground on which petition has been dismissed is upheld by appellate Court, then impugned order cannot be reversed merely for reason that any additional ground provided to dismiss Writ Petition, which even otherwise was subsidiary in nature, was not sustainable rather appellant has to show that impugned decision would not be sustainable--Appellant has failed to point out any illegality, jurisdictional defect, misreading and non-reading of record by Single Judge while passing impugned order for this Court to warrant interference in well-reasoned impugned order passed by Single Judge--Appeal dismissed. [Pp. 222, 223 & 224] A, B, C & D

2022 SCMR 1680, 2013 SCMR 120, 2019 SCMR 648, 2015 CLC (CS) 1385 (Pesh.), 1984 CLC 2002 ref.

M/s. Safdar Shaheen Pirzada, M.M. Qasim Gabhar, Mehar Ali Shahzad, Nasir Mahmood Ch., and Nabila Tariq, Advocates for Appellant.

Date of hearing: 14.11.2022.

Order

Muzamil Akhtar Shabir, J.--Through this Intra Court Appeal, filed under Section 3 (2) of the Law Reforms Ordinance, 1972, the appellant has challenged the order of dismissal of his constitutional petition dated 05.10.2022 passed by learned Single Judge in Chambers. Through the constitutional petition, the appellant had prayed that he be allowed to join service as he had been restrained illegally and unlawfully by the respondents to mark his attendance and continue his service; further direction was sought to regularize his services in the interest of justice, which relief has been declined by dismissal of the constitutional petition.

1. It is contended by learned counsel for the appellant that the learned Single Judge has passed the impugned order without providing opportunity of hearing to the appellant as the counsel for the appellant was not available in the Court for the reason that no information relating to fixation of the Writ Petition was received by him, hence, it is prayed that by setting-aside the impugned order, the matter be remanded to learned Single Judge for re-hearing and decision on merit.

2. We have gone through the record of the case and the impugned order passed by learned Single Judge in Chamber. The appellant in the garb of afore-referred prayer made in the constitutional petition in fact seeks setting-aside of order of termination of his contractual service. Although learned counsel for the appellant had not entered appearance before the learned Single Judge and the matter was decided in his absence, yet the fact of the matter is that the said Court properly appreciated the real controversy in issue and decided the same by observing that the appellant being a contract employee, whose services had been terminated, could not seek reinstatement and regularization in service in view of principles laid down in judgment reported as 2022 SCMR 1680 (Faraz Ahmed versus Federation of Pakistan through Secretary Ministry of Communication, Government of Pakistan, Islamabad and others). The afore-referred reason given in the decision of the learned Single Judge is also supported by the principles laid down by the Hon’ble Supreme Court of Pakistan in 2013 SCMR 120 (Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs versus Muhammad Azam Chattha), wherein it is laid down that where services of contract employee were terminated before expiry of contract period, at best such employee could claim damages for his wrongful dismissal/ termination and could not claim reinstatement in service. Same principle has been laid down in judgments reported as 2019 SCMR 648 (Qazi Munir Ahmed versus Rawalpindi Medical College and Allied Hospital through Principal and others) and 2015 PLC (CS) 1385 (Peshawar) (Lt. Col. (Retd.) Sultan Zeb Khan versus Board of Governors, Fazle Haq College, Mardan through Chairman and 5 others), hence, in view of the afore-referred principles, the Writ Petition filed by the appellant seeking reinstatement and regularization in service was not maintainable.

3. The ground raised by the appellant that second portion of the impugned order which mentions that Writ Petition is not competent against NESPAK in view of principles laid down in W.P.No. 110187 of 2017 is not sustainable for the reason that Intra Court Appeal has been filed against the said judgment where the matter is sub judice and the said principle has not attained finality. The said ground is of no avail to the appellant for setting-aside the impugned order for the reason that even if petition is held to be maintainable against NESPAK, this Court has already concluded that Writ Petition by the appellant, who was a contract employee seeking reinstatement in service is not maintainable, which observation shall hold the field regardless of who the respondents in the Writ Petition are. It is pertinent to mention here that where the main ground on which the petition has been dismissed is upheld by the appellate Court, then the impugned order cannot be reversed merely for the reason that any additional ground provided to dismiss Writ Petition, which even otherwise was subsidiary in nature, was not sustainable rather the appellant has to show that the impugned decision would not be sustainable due to reversal of the finding on said additional ground provided in the impugned order. In the present case, the reversal of the second ground relating to petition not being maintainable against NESPAK given in the impugned order would not be sufficient to set-aside order of dismissal of petition on the ground that a contract employee cannot seek reinstatement. Moreover, it is settled law that where a decision is passed on a certain ground, the same can be sustained/upheld on the basis of another ground even if the ground on which the decision had been made does not find favour with the appellate Court. Reliance in this regard may be placed on PLD 2007 Supreme Court 133 (Federation of Pakistan through Secretary, Ministry of Finance and others versus Haji Muhammad Sadiq and others).

4. Another ground raised by the appellant that he was not provided an opportunity of hearing as his counsel had not received the cause list is also of no help to the appellant for the reasons that the impugned order is based on correct application of law and the defect, if any, in the order for not providing opportunity of hearing to the appellant before the learned Single Judge stands cured by hearing provided by Division Bench of this Court while passing the instant order. Reliance in this regard may be placed on PLD 1983 Supreme Court 358 (Zaibtun Textile Mills Ltd versus Central Board of Revenue And Others), the relevant portion of which is reproduced below:

“The question whether the lack of hearing at the initial stage would vitiate the order even if there is subsequent hearing afforded to the affected party at the appellate or review stage, depends upon the question whether the rule of natural justice is incorporated in the governing statute or is being merely imported on the basis of the common law rule. It is well established that if the law under which action is taken by an authority expressly provides for the notice then non-compliance with such provision would render the action taken or order passed in pursuance of the powers conferred by such law as void, but if there is no express provision to that effect, then the requirement of the rule of natural justice would be sufficiently fulfilled and the defect resulting from not hearing the affected party would stand cured by the subsequent hearing.”

The same principle has been followed by the Learned Sindh High Court in the judgment reported as 1984 CLC 2002 (Rashidullah Khan versus Government of Sind And 3 others).

1. In view of what has been discussed above, the appellant has failed to point out any illegality, jurisdictional defect, misreading and non-reading of record by the learned Single Judge while passing the impugned order for this Court to warrant interference in the well-reasoned impugned order passed by the learned Single Judge.

2. For what has been discussed above, this Intra Court Appeal being devoid of any merit is dismissed.

(Y.A.) Appeal dismissed

PLJ 2023 Lahore 225

Present: Ahmad Nadeem Arshad, J.

SHABBIR AHMAD--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MULTAN etc.--Respondents

W.P. No. 3227 of 2022, decided on 19.1.2023.

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

----S. 152--Specific Relief Act, (I of 1877), Ss. 42 & 54--Suit for declaration and perpetual injunction--Decreed--Application for correction of order and decree--Dismissed--Revision petition--Concurrent findings--Relief for declaration was only granted but relief to specific performance and perpetual injunction was not granted by trial Court--Jurisdiction of Court--Question of whether omission in decree to expressly contains reliefs of perpetual injunction and specific performance of agreement to sell could be supplemented in exercise of authority under Section 152 CPC--Challenge to--Trial Court only granted relief for declaration but failed to give any findings with regard to other reliefs of perpetual injunction and specific performance of agreements to sell--Law favours adjudication on merits. Technicalities should not be allowed to defeat justice--An act of Court should not prejudice any party--Petitioner specifically pleaded in his plaint that Respondents No. 2 to 8 agreed to sell their shares to him and after receipt of consideration amount executed agreements to sell in his favour--Petitioner produced said agreements in his documentary evidence--Reliefs of specific performance and perpetual injunction were basic reliefs, which required determination from Court--Trial Court did not expressly refuse to grant said reliefs--Said omission is not a deliberate one and seems to be an inadvertent accidental slip, which squarely falls within ambit of Section 152, C.P.C.--Petition allowed.

[Pp. 229 & 233] A, C, D, E & F

2004 SCMR 1161, AIR 1930 Lahore 201, AIR 1942 Oudh 226, 1990 MLD 130 & PLD 1983 SC 220 ref.

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

----S. 152--Jurisdiction--Court under Section 152, C.P.C. is not only competent to correct clerical or arithmetical mistake in judgment, decree or order but may correct accidental slip or omission as well.

[Pp. 229 & 230] B

Mr. Muhammad Asghar Bhutta, Advocate for Petitioner.

Mr. Muhammad Jawad Asghar Bhutta, Advocate with Respondent No. 4.

Mr. Muhammad Mehmood Ashraf Khan, Advocate for Respondents No. 5(i) & (vi).

Date of hearing: 19.1.2023.

Judgment

Through this Constitutional Petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner assailed the vires of orders/judgments dated 09.07.2021 and 11.02.2022, whereby the learned Courts below dismissed his application for correction of order and decree dated 29.03.2019 concurrently.

1. Facts in brevity are that petitioner instituted a suit for declaration along with perpetual injunction and specific performance titled “Shabbir Ahmad vs. Public at Large, etc., with the contention that suit property consisting upon a shop measuring 42 ½ square yards bearing property No. 189 and 189-A situated at Ward No. 3, Circular Road, Hussain Agahi, Multan was belonged to Muhammad Shafi deceased predecessor of petitioner and Respondents No. 2 to 8 and after his demise they became owner of the said shop according to their legal shares; that Respondents No. 2 to 8 through written agreements to sell as well as oral agreement to sell transferred their shares in his name and prayed as under:-

i) A declaration may kindly be granted to the effect that the plaintiff and Defendants No. 2 to 8 are legal heirs of deceased Muhammad Shafi son of Abdullah and except them there is no other legal heirs and being legal heirs they are owners of the movable and immovable properties of the deceased

ii) that the Defendants No. 2 to 8 have transferred their shares through agreements to sell in his favour and decree for specific performance of said oral as well as written agreements to sell be granted; &

iii) that Defendant No. 1-A has been asked time and again to accept the plaintiff and Defendants No. 2 to 8 as legal heirs of deceased and enter their names in the record as legal heirs of deceased but he refused to do so, therefore, perpetual injunction may be issued to the effect that he entered the name of plaintiff as owner in the record.

No one appeared on behalf of Defendant No. 1 and 1-A despite proclamation in the newspaper therefore they were proceeded against ex-parte vide order 28.11.2018 whereas, Defendants No. 2 to 8 entered appearance on 31.07.2018 and submitted their conceding written statement. The learned trial Court after recording ex-parte evidence of the petitioner decreed the suit on 29.03.2019 in the following terms:

“Keeping in view the scenario portrayed above, suit of the plaintiff for declaration is hereby ex-parte decree. Plaintiff No. 1 and 2 to 8 are declared as legal heirs of deceased Muhammad Shafi. Decree sheet be prepared accordingly. There is no order as to costs. File be consigned to the record room after its due completion and compilation.”

Thereafter petitioner moved an application on 03.09.2020 for correction of order and decree dated 29.03.2019. The learned trial Court vide order dated 09.07.2021 dismissed the same by holding that the scope of review is very limited as only some patent errors could be rectified in review and the petitioner should have filed an appeal against refusal of the reliefs before the learned appellate Court but he failed to do so. Feeling aggrieved, petitioner preferred a revision petition which also met the same fate and dismissed by the learned revisional Court vide order dated 11.02.2022. Being dissatisfied he approached this Court through instant constitutional petition.

1. Learned counsel appearing on behalf of the petitioner maintains that the petitioner specifically pleaded in his plaint that the other legal heirs of deceased Muhammad Shafi transferred their share in his favour through written agreements to sell as well as oral agreements to sell, also executed registered general power of attorney in his favour; that the said defendants filed conceding written statement in his favour but the learned trial Court while deciding the suit failed to consider said aspect of the case and omitted to grant relief of specific performance and perpetual injunction; that petitioner sought correction of the order and the decree but the learned Courts below dismissed his application considering it a review application and prayed for acceptance of the writ petition as well as his application and setting aside of impugned orders. To augment his arguments, he placed reliance upon “Syed Saadi Jafri Zainabi vs. Land Acquisition Collector and Assistant Commissioner” (PLD 1992 Supreme Court 472) “Muhammad Akram v. DDCO, Rahim Yar Khan and others” (2017 SCMR 56) “Bank Of Credit and Credit and Commerce Internatioal (Overseas) Ltd vs. Messrs Ali Asbestos Industries Ltd. and 5 others” (1990 MLD 130), “Mst. Forosha v. Fazal Gul and others” (PLD 1983 Supreme Court 220) and “Amjad Butt vs. Amjad Ali” (2017 CLC Note 45).

2. Conversely, learned counsel appearing on behalf of the respondents maintained that petitioner did not implead Mehfooz-ur- Rehman as party in the revision petition who is a proper and necessary party; that the petitioner did not implead defendants in his application as a party; that the Courts below without giving notice passed the said orders; that the application of the petitioner did not come with the ambit of Section 152 CPC and while relying upon “Baqar versus Muhammad Rafique and others ” (2003 SCMR 1401), “Muhammad Aslam Lone vs. Additional District Judge Gujranwala and 10 others” (PLD 2008 Lahore 373), “Habib Bank Limited versus 1st Additional District Judge and others” (2005 MLD 1525), “Ansar Mahmood versus Jamshed Ahmed Mustafa Zuberi and 6 others” (PLD 2015 Islamabad-1), “Iftikhar Ahmad and 7 others vs. Habib Bank Limited, Karachi and another” (1993 CLC 101) and “Muhamamd Yaqoob vs. Bawar and 2 others” (1998 CLC 456) prayed for dismissal of the writ petition.

3. I have heard learned counsel for the parties at length and perused the record with their able assistance.

4. Perusal of record it appears that in para No. 3 of the plaint petitioner specifically pleaded that through agreement deed No. 152 dated 10.10.2014, agreement deed No. 54 dated 04.09.2014, agreement deed No. 667 dated 14.03.2015 and power of attorney No. 1013 dated 23.04.2015 defendants received consideration of their shares in cash and if any defendants did not execute any writing, he received his share orally. Therefore, the said defendants have no concerned with the suit property and they are bound through their oral as well as written agreements to execute registered deed in his favour. The exact wording is as under:

یہ کہ بروئے اقرار نامہ نمبری 152 محرره مورخہ 2014-10-10 و بروئے اقرار نامہ نمبری 54 محرره مورخہ 14-09-04 واقرار نامہ نمبر ی 667 محرره مورخہ15-03-14 و مختار نامہ نمبری 1013 محررہ مورخہ 15-04-23 کی رو سے مدعی سے مدعا علیم نے اپنا حصہ زر نقد کی صورت میں وصول کر چکے ہیں۔ اور اگر کسی مدعا علیہم نے کوئی تحریر لکھ کر نہ دی ہے تو اعتماد کی بنیاد پر اپنا حصہ وصول کر چکے ہیں۔ اسی طرح ان کا اس جائیداد متدعویہ سے کسی قسم کا تعلق یا واسطہ نہ ہے بروئے معاہد ہ پابند ہیں جو کہ زبانی و تحریری ہے۔ اسی کی روسے رجسٹری بحق مدعی کرا کر دینے کے پابند ہیں۔ "

Defendants No. 2 to 8 in their conceding written statement admitted the said para as “correct” and also admitted the execution of agreements as well as power of attorney. The exact wording is as under:

یہ کہ مدعی و مدعا علیہم نمبران 2 تا 8 ہی متوفی کے قانونی و شرعی وارثان ہیں کوئی دیگر وارث نہ ہے۔ اور فقرہ نمبر 3 درست تسلیم ہے۔ اقرار نامہ متدعویہ نمبران 54،152، 667 و مختار نامہ عام نمبری 1013 محرره 15-4-23 درست تسلیم ہیں۔ کسی قسم کا عذر واعتراض نہ ہے۔"

Plaint further reveals that petitioner prayed for specific performance of said oral as well as written agreements and grant of perpetual injunction.

In support of his version, petitioner appeared as PW-1 and got examined Khizar Hayat as PW-2. He produced sale deed No. 2035 dated 13.06.1967 as Exh.P-1, whereby, his father and Muhammad Usman jointly purchased the suit property measuring 42¼ squares yards from Makhdoom Shahab-ud-Deen, copy of registered power of attorney No. 1013 dated 23.04.2015 as Exh.P-2, copy of PT-1 as Exh.P-3, copy of death certificate of Muhammad Shafi as Exh.P-4, copy of death certificate of Muhammad Bashir son of Muhammad Shafi as Exh.P-5, original agreement No. 54 dated 04.09.2014 as Exh.P-6, original agreement No. 667 dated 14.03.2015 as Exh.P-7 and original agreement No. 152 dated 10.10.2014 as Exh.P-8.

In this way he proved through evidence that suit property was belonged to their predecessor namely Muhammad Shafi and after his demise inherited to his legal heirs and Defendants No. 2 to 8 through different agreements to sell agreed to transfer their share in his favour and also executed a registered general power of attorney in this behalf. Petitioner’s evidence remained unrebutted. The learned trial Court only granted relief for declaration by declaring that plaintiff and Defendants No. 2 to 8 are legal heirs of deceased Muhammad Shafi but failed to give any findings with regard to the other reliefs of perpetual injunction and specific performance of the agreements to sell. In this scenario petitioner moved the application for correction of the order/ decree.

1. Now the question whether the omission in the decree to expressly contains reliefs of perpetual injunction and specific performance of the agreements to sell could be supplemented in exercise of the authority under Section 152, C.P.C., it would be beneficial to reproduce the section which empowers the Courts for correction of judgment and decree which is reproduced as under:

“152. Amendment of judgments, decrees or orders.--Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.”

1. Learned counsel for the respondents raised objection that, only the clerical or arithmetical mistakes in judgment and decree or order could be corrected in the context of Section 152, C.P.C.

2. Plain reading of said Section it appears that the Court under Section 152, C.P.C. is not only competent to correct clerical or arithmetical mistake in the judgment, decree or order but may correct accidental slip or omission as well. Section 152, C.P.C. can be conveniently divided into two parts. First half of the section provides authority to correct “clerical or arithmetical mistake in the judgment, decree or order”, other half after or provides authority to correct error arising thereon from any accidental slip or omission. Use of word “or” indicates that, such powers to correct are not conjunctive but disjunctive and qualified. To correct clerical or arithmetical mistake, it means when some mistake either in calculation or numerical figures creeps in, which figures could be verified from the record, or where any party, property or fact has been incorrectly described or where some typographical error has crept in. Second half of the Section 152 (ibid) contemplates “error arising thereon from any accidental slip or omission”. Catchword in phrase “accidental slip or omission” as used in Section 152, C.P.C. is “accidental”, it qualifies “slip” and “omissions”. Thus it could be said that “accidental slip or omission” as used in Section 152 C.P.C. means “to leave out or failure to mention something unintentionally”. Thus, it could be safely said that it is only where the slip or omission is accidental or unintentional it could be supplemented or added in exercise of jurisdiction conferred under Section 152 C.P.C. Such course is provided to foster cause of justice, to suppress mischief and to avoid multiplicity of proceedings.

10. In the light of above discussion, it can be concluded that the Court has jurisdiction to correct the clerical or arithmetical mistakes or errors caused due to accidental slip or omission in a judgment, decree or order. Such power can be exercised at any time. The aim of the procedural provisions is to safeguard the interest of justice instead of defeating the same. It is the basic principle of administration of justice that the Courts are sanctuaries of justice and in exercise of authority to do exdebito justitiae, i.e. to say wrong and to suppress a mischief to which a litigant is entitled.

1. In “Ram Singh v. Sant Singh and others” (AIR 1930 Lahore 210), where the trial Court had decreed the suit but inadvertently omitted to mention in the judgment that possession of the property be also given to the petitioner. When he applied for possession it was objected that as in the decree possession has not been awarded it cannot be granted. The petitioner filed an application under Section 152, C.P.C. for amendment of the judgment and it was observed as under:

“The learned counsel says that if a relief is claimed in the plaint but has not been granted by the Court then it must be assumed that it has been refused. I do not think this argument applies to a case like the present where there is no express refusal but only an omission to grant the prayer and the omission not a deliberate one. I hold, therefore, that the application of the petitioner was competent under Section 152, Civil Procedure Code and should have been granted by the Court below. In any case if it had been necessary for me to do so, I would have revised the order passed on the application of the petitioner to be granted possession of the property which was adjudged to be his by the declaratory decree granted to him by the Court below in spite of the fact that an appeal was open to the petitioner against the order refusing possession, but he did not file one.”

In re: “Raj Raj Bahadur Singh v. Shatranjai” (AIR 1942 Oudh 226) application under Section 152, C.P.C. was made for amendment of the judgment and decree and it was observed as follow:

“We are of opinion that it was only by an oversight that the latter portion of the order was not ordered to be deleted. It was held in (10) 13 O.C.114:61 C.979, Ashik Husain v. Mahdi Hasan that the test is whether the order as it stands represents the intention of the Judge at the time he made it and if it does then a mistake in it cannot be treated as an accidental slip or omission which may be corrected under Section 152. In this case we are of opinion that the intention of the learned Judges was not to make any decision as regards the plaintiff’s right to ten villages and it was only by an accidental slip that they omitted to order the deleting of the second portion of the order. Section 152 corresponds to O.28, R.11 of the Rules of the Supreme Court of Ireland. It was held in 1892 A.C. 547: 62 L.J.P.C.24: IR 1.67 L.T. 722, Henry William Hatton v. Huga Harris on an interpretation of those rules that the Court has jurisdiction to correct the errors arising out of an accidental slip or omission. It was held in AIR 1924 Cal.895: 80 I.C. 55:28 C.W.No. 873, Chandra Kumar v. Sundhansu Badani Debi that the word “may” in Section 152 does not make it discretionary with the Court to order the correction but merely enlarges the power of the Court by providing that such correction can be done at any time or in other words the section simply emphasizes that no lapse of time would disentitle the Court to make the correction. It is also observed in this case that the intention of the law is to make it obligatory on the Court whenever such a mistake is discovered to correct it and Section 152 merely emphasizes the duty of the Court by saying that it may be done at any time without limitation.”

In a case titled as Bank Of Credit and Credit and Commerce International (Overseas) Ltd vs. Messrs Ali Asbestos Industries Ltd and 5 others” (1990 MLD 130), the Court while granting preliminary decree inadvertently did not grant relief against the mortgaged property although prayer for decree against it had been made. Subsequently on plaintiff’s application under Section 152, C.P.C., said relief was granted, while interpreting Section 152 C.P.C., as under:

“These observations clearly lay down the principles involved in Section 152 C.P.C. Where the Court has not passed any order unintentionally but due to oversight or omission, although in the facts and circumstances of the case the party was entitled to such relief, the Court is empowered to correct that mistake so that no party should suffer due to unintentional omission of the Court. In this suit plaintiff was entitled to a decree under Order 34 C.P.C. in the normal course. The omission to grant this relief was not intentional. The contention of Mr. S.A, Samad Khan that the plaintiff should file a separate suit for the sale of the mortgaged properties clearly demonstrates the inconvenience and hardships which shall be caused to a party in such circumstances. I, therefore, allow the application, amend the judgment that the plaintiff would be entitled to preliminary decree under Order 34, C.P.C. in respect of the mortgaged properties. The decree should also accordingly be amended.”

Such powers can be exercised at any stage. The Hon’ble Supreme Court of Pakistan in its full bench judgment reported as “Mst. Forosha v. Fazal Gul and others” (PLD 1983 Supreme Court 220) held as under:

“The plane reading of the section, leaves no doubt whatsoever that the powers confer on the Courts if the case falls within the purview of its provisions, can be exercised at any time and it has accordingly been held that there is no time limit for entertaining an application in that behalf”.

The august Supreme Court of Pakistan in its full bench judgment reported as “Syed Saadi Jafri Zainabi versus Land Acquisition Collector and Assistant Commissioner” (PLD 1992 SC 472) held as under:

“Section 152 enables a Court to correct the mistakes, omissions, or error in the judgments, decree or order which has crept into it inadvertently and un-intentionally. Such mistakes are mostly caused due to inadvertent mistakes of the Court. The rules of procedure as provided by C.P.C. or intended to foster justice, therefore, no one should be allowed to suffer due to the mistake of the Court.

The Court has jurisdiction to correct the clerical or arithmetical mistakes or errors caused due to accidental slip or omissions in a judgment, decree, or order. Depending on facts, it confers a wild discretion on the Court to correct, (I) clerical, or arithmetical mistake, (II) errors caused due to accidental slips or omissions in the judgment, decree or order. Such power can be exercised at any time. Where the Court is bound to grant a relief which the party seeks, or where the Court is bound to grant relief even without it being sought by a party and if unintentionally or inadvertently the Court does not grant such relief, it would be justified at any time to correct such accidental omission or errors by exercising power under Section 152 C.P.C.”

1. The law favours adjudication on merits. Technicalities should not be allowed to defeat justice. An act of the Court should not prejudice any party. Technical objection should not come in the way of dispensation of complete and substantial justice. In this regard, reference can be sought from case titled “Muhammad Shafi and others v. Muhammad Boota and others” (2004 SCMR 1611).

2. Learned counsel for the respondents maintained that if a relief claimed in the plaint but has not been granted by the Court then it must be assumed that it has been refused. While relying upon “Baqar versus Muhammad Rafique and others” (2003 SCMR 1401) argued that omission made by Court by positive application of mind could never be dubbed as accidental or a mistake apparent on the face of record.

3. Petitioner specifically pleaded in his plaint that Respondents No. 2 to 8 agreed to sell their shares to him and after receipt of consideration amount executed agreements to sell in his favour. Petitioner produced said agreements in his documentary evidence. Respondents No. 2 to 8 conceded his stance in their written statement. In this scenario reliefs of specific performance and perpetual injunction were the basic reliefs, which required determination from the Court. Failure on the part of the Court to give any findings on said reliefs and to decide in either way did not suggest that said omissions were made by the Court through positive application of mind intentionally. The learned trial Court did not expressly refuse to grant said reliefs. Said omission is not a deliberate one and seems to be an inadvertent accidental slip, which squarely falls within the ambit of Section 152, C.P.C.

4. The case law referred to by the learned counsel for the respondents are not relevant to the facts and circumstance of the case, hence, not applicable.

5. For what has been discussed above, the instant constitutional petition is allowed. Impugned orders/judgments dated 09.07.2021 and 11.02.2022 are set-aside. Resultantly, the application filed by the petitioner for correction of order and decree dated 29.03.2019 is allowed and learned trial Court is directed to make necessary correction in the order and decree dated 29.03.2019, keeping in view plaint and evidence of the petitioner by incorporating reliefs of specific performance and perpetual injunction. No order as to costs.

(Y.A.) Petition allowed

PLJ 2023 Lahore 234 (DB)

Present:Ch. Muhammad Iqbal and Muzamil Akhtar Shabir, JJ.

MANZOOR AHMAD, etc.--Appellants

versus

KHALID HASSAN KHAN, etc.--Respondents

R.F.A. No. 7238 of 2022, heard on 10.1.2023.

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

----S. 96 & O.XVII R. 3--Specific Relief Act, (I of 1877), S. 12--Suit for specific performance--Dismissed due to non-availability of evidence--Contradictory order--Challenge to--Order is contradictory to that extent as on one hand evidence of appellants was shown to be present whereas on other hand it was mentioned that evidence was not available and adjournment has been sought on behalf of appellants, where-after on next date, due to non-availability of evidence, their right to produce evidence was closed--Court was required to pass a clear order as to what proceedings had actually taken place--It is settled principle of safe administration of justice that an act of Court shall prejudice no one--Once it is established that initial error was committed by Civil Judge then blame cannot be shifted to party in view of well embedded principle that an act of Court shall prejudice none--Order was not passed in clear and unambiguous terms and it is not clear as to whether evidence was available in Court or not and whether adjournment was actually sought by appellants--Appellants have claimed to have paid entire amount of consideration against agreement to respondents and nothing is outstanding, it would be in interest of justice that matter is decided on its merits and not on technical grounds besides nothing terrible would happen if another opportunity is allowed to appellants to lead evidence rather same would advance cause of justice--Appeal allowed. [Pp. 237, 238 & 239] A, B, C, D, E & F

2022 SMR 1546, PLD 2020 SC 559, 2022 SCP 352 & 2016 SCMR 40 ref.

Ch. Muhammad Shakeel, Advocate for Appellants.

Mian Abdul Rasheed, Advocate for Respondents.

Date of hearing: 10.1.2023.

Judgment

Muzamil Akhtar Shabir, J.--Through this Regular First Appeal, the appellants have called in question order dated 17.12.2021 passed by learned Civil Judge, Sheikhupura, whereby suit for specific performance of agreement to sell filed by the appellants under Section 12 of the Specific Relief Act, 1877, has been dismissed for failure to produce evidence.

1. Learned counsel for the appellants states that on one hand, in order dated 13.12.2021, the learned trial Court observed that evidence of plaintiffs/ appellants (‘appellants’) was present in the Court yet adjourned the matter on the ground that request for adjournment had been made as evidence was not available and on next date i.e. 17.12.2021 went on to dismiss the appellants’ suit due to non- availability of evidence and such a contradictory order was not sustainable. Besides sufficient opportunities were not provided to the appellants to lead evidence as on various dates the matter was fixed for decision of certain applications and not for recording of evidence of the appellants, hence, said adjournments could not be attributed to the appellants to close their evidence.

2. On the other hand, learned counsel for the respondents has defended the impugned order dated 17.12.2021 by stating that various opportunities were provided to the appellants to lead evidence and on their failure to do the same, their right to lead evidence was rightly closed under Order XVII Rule 3 of the C.P.C.

3. Heard. Record perused.

4. The appellants on 10.07.2017 filed suit for specific performance of agreement to sell dated 14.08.2010 against the respondents, which was contested by the respondents and issues were framed on 07.10.2018, where-after on 16.10.2018, fresh power of attorney was filed on behalf of the respondents, whereas Ahmad Raza/Plaintiff No. 2 appeared in the Court and got recorded his statement. After that the matter was adjourned to 25.10.2018 and although evidence was not available on next some dates, however, on 19.01.2019 when evidence was available in the Court for the purpose of recording of the same an application was moved by the respondents under Order VII Rule 11 of the C.P.C, which was kept pending till 25.02.2019 when the same was dismissed as being devoid of merits and matter was fixed on 12.03.2019 for recording of appellants’ evidence when adjournment was sought by the appellants. The witnesses were again available on next date fixed for hearing on 22.03.2019, however, their evidence could not be recorded as respondents were not available for cross- examination. Two witnesses were again available on 30.09.2019 and matter was adjourned for 20.04.2019, however, on 20.04.2019 when witnesses were not available, matter was adjourned to 20.05.2019 for recording of evidence and on the said date, the learned trial Court was informed that the order of dismissal of application under Order VII Rule 11 of the C.P.C has been challenged by the respondents before the learned revisional Court, where-after matter was adjourned by trial Court on various dates for awaiting decision of the same till 14.10.2019, when application was filed on behalf of the respondents to amend their written statement, which matter was adjourned on various dates for proceedings on said application, where-after on 21.03.2020 another application for clarification of order dated 05.09.2018 was filed which was disposed of and matter was listed for hearing on 18.04.2020 for arguments on application for amendment of written statement, which was kept on pending till 18.11.2020 when it was noticed that revisional Court on revision against the dismissal of application under Order VII Rule 11 of the C.P.C had passed order to stay the proceedings of the trial Court, where-after the matter again kept on lingering for quite some time during which period the case was once transferred from one Court to another. On 08.11.2021 the application for amendment of written statement was disposed of and matter was listed for hearing on 25.11.2021, when evidence of the appellants was not available and matter was adjourned for 01.12.2021 when copy of order of the High Court was tendered, whereby direction had been issued for expeditious disposal of the matter; on both the said dates the matter was adjourned for recording of evidence with costs of Rs. 500/-. On 08.12.2021 the counsel for the appellants sought adjournment as the plaintiff/appellant had seriously fallen ill. The matter where-after was adjourned to 13.12.2021 when evidence was available in the Court as per attendance marked by the Court, however, in the body of the order it was mentioned that evidence was not available and matter was adjourned for recording of evidence at the appellants’ request subject to payment of costs of Rs. 500/- for 17.12.2021. For clarity, the order dated 13.12.2021 is reproduced below:

“13.12.2021

ORDER

Present:

Ø Muhammad Shakeel Advocate on behalf of plaintiff.

Ø Mian Abdul Rasheed Advocate for the defendants

Ø Evidence of plaintiff is present

Today suit taken up for production/recording entire evidence on behalf of the plaintiffs, with warning of last, final, absolute opportunity, evidence is not present but learned counsel on behalf of plaintiffs again requested for an adjournment without mentioning any plausible reason, for which learned counsel for defendants raised strict objection, which is much plausible, but on request of learned counsel for plaintiffs in the interest of justice, only one last, final, absolute opportunity is hereby granted for production/recording entire evidence of plaintiffs for 17.12.2021 subject to payment of cost Rs. 500/-, in case of failure, right of plaintiffs for production/ recording of entire evidence shall be closed under Order XVII Rule 3 of the CPC and no no further opportunity shall be granted on any eventuality.”

(Emphasis supplied)

1. On 17.12.2021, the evidence of the appellants was closed and suit was dismissed for want of evidence under Order XVII Rule 3 of the C.P.C. The claim of the appellants is that as their evidence was available in the Court on 13.12.2021, therefore, there was no occasion for them to request for an adjournment for recording of evidence and the said aspect of the matter has wrongly been noted by the learned trial Court to adjourn the matter and the same could not be used against the appellants to close their evidence on the next date of hearing fixed on 17.12.2021, whereas claim of the respondents is that it had wrongly been noted that evidence was available on 13.12.2021. Perusal of order dated 13.12.2021 shows that although it is mentioned that adjournment was sought by the appellants due to non-availability of evidence yet attendance marked on that date shows that evidence of plaintiff was present. The afore-referred order is contradictory to that extent as on one hand evidence of the appellants was shown to be present whereas on the other hand it was mentioned that evidence was not available and adjournment has been sought on behalf of the appellants, where-after on the next date, due to non-availability of evidence, their right to produce evidence was closed. From the above noted contradiction in order dated 13.12.2021 it cannot be concluded with certainty that request for adjournment had been made by the appellants. The Court was required to pass a clear order as to what proceedings had actually taken place on 13.12.2021, however, as the previous order dated 13.12.2021 was contradictory order and from the facts narrated above, it could not be concluded with precision as to what actually transpired in the Court on the said date and it is settled principle of safe administration of justice that an act of Court shall prejudice no one. Reliance in this regard is placed on judgment reported as 2022 SCMR 1546 (Homoeo Dr. Asma Noreen Syed vs. Government of the Punjab through its Secretary Health, Department & others) and PLD 2020 Supreme Court 559 (Sikandar Hayat and another versus the State and others). Reliance in this regard may be placed on very recent judgment of the Hon’ble Supreme Court of Pakistan passed in C.P.No. 2021/2019 titled as Abdul Qudoos v. Commandant Frontier Constabulary, Khyber Pakhtunkhwa, Peshawar & another (2022 SCP 352) announced on 04.10.2022, the relevant portion of the same is reproduced below:

“11. It is the foremost duty of the Court and Tribunal to do complete justice. A patent and obvious error or oversight on the part of Court in any order or decision may be reviewed sanguine to the renowned legal maxim “actus curiae neminem gravabit”, which is a well-settled enunciation and articulation of law expressing that no man should suffer because of the fault of the Court or an act of the Court shall prejudice no one and this principle also denotes the extensive pathway for the safe administration of justice. It is interrelated and intertwined with the state of affairs where the Court is under an obligation to reverse the wrong done to a party by the act of Court which is an elementary doctrine and tenet to the system of administration of justice beyond doubt that no person should suffer because of a delay in procedure or the fault of the Court. This is a de rigueur sense of duty in the administration of justice that the Court and Tribunal should become conscious and cognizant that as a consequence of their mistake, nobody should become a victim of injustice and, in the event of any injustice or harm suffered by mistake of the Court, it should be remedied by making necessary correction forthwith. If the Court is satisfied that it has committed a mistake, then such person should be restored to the position which he would have acquired if the mistake did not happen. This expression is established on the astuteness and clear-sightedness that a wrong order should not be perpetuated by preserving it full of life or stand in the way under the guiding principle of justice and good conscience. So in all fairness, it is an inescapable and inevitable duty that if any such patent error on the face of it committed as in this case, the same must be undone without shifting blame to the parties and without further ado being solemn duty of the Court to rectify the mistake. Ref: Homoeo Dr. Asma Noreen Syed vs. Government of the Punjab through its Secretary Health, Department & others (2022 SCMR 1546 = 2022 PLC (C.S) 1390)”

(Emphasis supplied)

1. Moreover, in case reported as 2016 SCMR 40 (Wasal Khan and others versus Dr. Niaz Ali Khan) it has been held that Courts are under obligation to facilitate the litigants to a maximum extent by passing a clear order, giving direction without any ambiguity to the litigant to act in a certain way and in a particular manner and the litigant should not be pushed into realm of guess work, where in an uncertain situation, he is unable how to proceed and is left guessing as to in what manner to comply with the order of the Court. Once it is established that initial error was committed by the learned Civil Judge then the blame cannot be shifted to the party in view of well embedded principle that an act of Court shall prejudice none.

2. In the present case, the order dated 13.12.2021 was not passed in clear and unambiguous terms and it is not clear as to whether on 13.12.2021 evidence was available in the Court or not and whether adjournment was actually sought by the appellants and if yes under what scenario and in these circumstances coupled with the fact that simultaneously various applications also remained pending before the trial Court, the conduct of the appellants could not be declared to be contumacious, therefore, penal action should not have been taken on 17.12.2021 against the plaintiffs/appellants for the reason that right to produce evidence could only be closed under Order XVII Rule 3 of the C.P.C when on the pen ultimate date request for adjournment had been made by the appellants in clear terms. Resultantly, the impugned order is not sustainable in view of the principle laid down by the Hon’ble Supreme Court of Pakistan in the afore-referred judgments. Furthermore, as the appellants have claimed to have paid the entire amount of consideration against the agreement to the respondents and nothing is outstanding, hence, it would be in the interest of justice that matter is decided on its merits and not on technical grounds besides nothing terrible would happen if another opportunity is allowed to the appellants to lead evidence rather the same would advance the cause of justice.

3. Consequently, we allow this Regular First Appeal, set aside the impugned order dated 17.12.2021 and remand the matter to the learned trial Court to provide another opportunity to the appellants to bring their evidence in the Court and get the same recorded.

(Y.A.) Appeal allowed

PLJ 2023 Lahore 240

Present:Ch. Muhammad Iqbal, J.

MCB BANK LIMITED--Petitioner

versus

FEDERATION OF PAKISTAN etc.--Respondents

W.P. No. 77994 of 2021, decided on 10.1.2023.

Banking Companies Ordinance, 1962 (LVII of 1962)--

----S. 82-D--Federal Ombudsmen Institutional Reforms Act, 2013 (XIV of 2013), S. 9--Opining of personal account and obtaining of safe deposit locker--Missing of gold jewellery from locker--Complaint was declined--Complaint before banking mohtasib--Turned down--Representation before President of Pakistan--Accepted--No departmental inquiry was conduct--No counter affidavit was filed by petitioner--It is settled law that in absence of any counter-affidavit contents of sworn affidavit are deemed to be admitted--Respondent No. 3 informed petitioner about missing of her valuable articles from locker, petitioner instead of making its best efforts to redress her grievance, not only declined her application but also went one step further and contested her case--This conduct of petitioner is not appreciable at all--Material facts and law have not been considered by Banking Mohtasib Pakistan while dismissing her complaint whereas Respondent No. 1 has rightly allowed representation of Respondent No. 3--Counsel for petitioner has not been able to point out any illegality or material irregularity in impugned order passed by President of Pakistan and has also not identified any jurisdictional defect--Petition dismissed.

[Pp. 242, 244 & 245] A, B, C & D

2014 PLC (CS) 999, 2016 MLD 1553, 2016 CLD 1741 & 2019 CLC (N) 51 ref.

Mr. M. Zaheer Asghar Bhatti, Mr. Aamir Aziz Khan & Mr. Maaz Sajjad, Advocates for Petitioner.

Mr. Ijaz Rehmat Basra, Assistant Attorney General for Respondent No. 1.

Ch. Muhammad Aslam, Advocate for Respondent No. 3.

Date of hearing: 10.1.2023.

Judgment

Through this writ petition, the petitioner has challenged the validity of order dated 28.10.2021 passed by the President’s Secretariat (Public), Aiwan-e-Sadr whereby representation of Respondent No. 3 was accepted directing the petitioner-bank to compensate her forthwith as per instructions of the State Bank of Pakistan.

1. Brief facts of the case are that Respondent No. 3 Dr. Farida Sharif has opened a personal account with the petitioner-bank and obtained safe deposit locker from it. On 05.05.2009, Respondent No. 3 was assigned a Locker No. 434 and accordingly Key No. 395 was handed over to her on the same date. Respondent No. 3 operated her locker eight times since opening date and lastly used the locker on 08.03.2016. After about 4 years, Respondent No. 3 went to the Bank branch on 14.01.2020 to operate her locker and found her gold jewellery weighing 16.50 Tolas missing from the locker whereupon she accordingly informed the Bank authority (Manager) in this regard. She filed an application/ complaint on the same day i.e. 14.01.2020 before the Manger of the petitioner-bank regarding missing of her gold jewellery but her complaint was declined by the petitioner-bank.

Respondent No. 3 filed a complaint under Section 82-D of the Banking Companies Ordinance, 1962 read with Section 9 of the Federal Ombudsman Institutional Reforms Act, 2013 and the Banking Mohtasib, Pakistan turned down the said complaint vide order dated 29.01.2021. Feeling aggrieved with the above said order, Respondent No. 3 filed a representation before the Worthy President of Pakistan who accepted the same vide order dated 28.10.2021 directing the petitioner-bank to compensate Respondent No. 3 /complainant forthwith as per instructions of the State Bank of Pakistan. Hence, this writ petition.

1. I have heard the arguments advanced by the learned counsels for the parties at full length and gone through the entire record with their able assistance.

2. The learned Banking Mohtasib entertained a complaint of Respondent No. 3 under Section 82-D of the Banking Companies Ordinance, 1962 read with Section 9 of the Federal Ombudsman Institutional Reforms Act, 2013 but failed to discharge his duty as per Sections 82-A, 82-B, 82-D, 82-E and 82-F of the Banking Companies Ordinance, 1962, as the complainant who is a doctor by profession filed her an affidavit alongwith the complaint regarding loss of gold ornaments from the locker, whereas neither any departmental inquiry was held nor any counter affidavit was filed by the petitioner-bank to controvert her solemn deposition. It is settled law that in absence of any counter-affidavit the contents of the sworn affidavit are deemed to be admitted. Reliance is placed on a case titled as Abida Parveen vs. District Education Officer, Schools Elementary (Female) Mirpur & 4 Others (2014 PLC (C.S) 999) wherein it has been held as under:

“8. ... It is a settled principle of law that when some fact is alleged and supported by an affidavit, if, there is no rebuttal from the other side by filing counter affidavit, the same shall be deemed admitted ...”

Reliance is placed on the case title Muhammad Nawaz vs. Mohsin Saleem (2016 MLD 1553) wherein, this Court held as under:

“5 ... It is well established that any application supported by an affidavit, if not controverted by filing counter affidavit along with the written reply should be taken as correct statement of fact.”

In a case titled as Iyaz-ul-Haq Chaudhary vs. Nib Bank Limited through Authorized Attorney & 4 Others (2016 CLD 1741), a learned Division Bench of this Court held as under:

“6. ... Even otherwise, Respondent No. 1 has neither filed any reply to application under Section 24 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 read with section 5 of the Limitation Act, 1908 (C.M.No. 1/C/2015) nor counter affidavit to controvert the narration of facts and the grounds raised in this application, which means an admission on the part of Respondent No. 1 ……”

Reliance is also placed on the case cited as Muhammad Bachal vs. IXTH Additional District Judge, Hyderabad & Another (2019 CLC Note 51) wherein it is held as under:

“17. ... and that the Affidavit of the applicant has not been controverted by the respondent/plaintiff by filing counter affidavit, which amounts to admission of the averments made in the affidavit application.”

Reliance is also placed on the cases cited as President of Pakistan through Chairman, P.W.R., Lahore vs. Sarfraz Khan (1980 CLC 541), Muhammad Farooq M. Memon Advocate vs. Government of Sind through its Chief Secretary, Karachi (1986 CLC 1408), Messrs Holy Family Hospital through Administrator vs. Government of Sindh & Another (2009 PLC (C.S) 824) & Quaid-e-Azam Medical College, Bahawalpur through Principal vs Muhammad Aslam & another (2009 YLR 1508).

1. The State Bank of Pakistan, the governing body of the banking sector of the country, issued Circular No. 5 dated 5th June, 2007 stating the SOPs for security of the lockers and as per clause 2(v) of the said circular all the lockers shall be insured. For ready reference, Circular No. 05/2007 is as under:

“MASTER CIRCULAR ON SECURITY STANDARDS FOR ENHANCEMENT OF SECURITY OF THE LOCKERS.

Please refer to BPD Circular No. 27 read with BPD Circular Letter No. 48 of 2004 on the above subject.

1. It has been brought to the knowledge of State Bank of Pakistan that some banks are reluctant to honour the claims with regard to vandalism of lockers by the security guards or by their employees. This is being attributed to a clause in their agreement with the insurance companies, which restrict them to honour such claims. This position has been reviewed and it has been decided to issue following instructions on the subject:-

i) The banks/DFIs shall ensure that safe deposit locker rooms in their respective branches are adequately secured from all sides, and the security arrangements in place are fool-proof and meet the security standards developed by each bank/DFI. The banks/DFIs may review their existing security arrangements to outsource the same to a security agency enlisted on the approved panel of Pakistan Banks Association (PBA). The banks may decide at their own to obtain or otherwise, any undertaking from the head of the security company for recovery of losses incurred on breakage of lockers by the security guards.

ii) In case the bank branches are providing safe deposit locker facility in areas where security agency on the PBA approved panel is not available, the bank/DFI shall carry out due diligence at the branch for the appointment of their own security guard(s).

iii) The banks/DFIs shall review their existing insurance agreements and shall obtain comprehensive insurance with clear cut “Cap Limits” on various sizes of lockers at competitive rates from the insurance companies ready to cover the act of vandalism of lockers both by the security guards and employees of the banks/DFIs.

iv) The banks/DFIs shall properly convey the terms & conditions (including size, rent/p.a, insurance ceiling etc) to the existing locker holders/new locker holders. Consent of all existing/new locker holders shall be obtained for the insurance ceiling etc.

v) In case of breakage /damage to the locker by any means, the locker holder shall be compensated by the bank/DFI immediately as per the insurance ceiling of the locker.

1. The banks/DFIs are free to take further measures in addition to above for safety & security of lockers.

2. Apart from strengthening security arrangements, the banks/DFIs should also bolster/reinforce their internal controls for smooth operation of lockers.

3. This circular supersedes all previous instructions on the subject.”

4. The relationship of a Bank and its customer is based on trust on the basis of which the Respondent No. 3 had put her valuable articles i.e. gold ornaments in the locker but it is noted with great concern that when the Respondent No. 3 informed the petitioner- Bank about missing of her valuable articles from the locker, the petitioner-Bank instead of making its best efforts to redress her grievance, not only declined her application but also went one step further and contested her case before Respondents No. 1 & 2. This conduct of the petitioner-Bank is not appreciable at all. The public opt to put their valuable articles in bank lockers for security purpose and if their articles are misplaced from there and the banks will not redress their grievance in such case of loss, the very foundation of the banking system would collapse.

All the above material facts and law have not been considered by the Banking Mohtasib Pakistan while dismissing her complaint whereas Respondent No. 1 has rightly allowed the representation of the Respondent No. 3 and directed the petitioner-bank to compensate Respondent No. 3/ complainant forthwith as per instruction of the State Bank of Pakistan contained in Circular No. 5 dated 5th June, 2007.

1. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned order passed by the President of Pakistan and has also not identified any jurisdictional defect.

2. In the wake of above discussion, this writ petition is dismissed being devoid of any merits. This Court while granting interim relief directed the petitioner-Bank to initiate the process of recovery of sum of insured amount of locker from the insurance company and upon receiving it, deposit the same in some profit bearing scheme and shall not disburse to Respondent No. 3 till decision of this lis. The petitioner-bank submitted report on 08.11.2022 while stating therein that the insured amount of locker has been deposited in the account of Respondent No. 3. As instant writ petition is being dismissed, as such the amount lying in the account of Respondent No. 3 be released to her.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 245 (FB)

Present:Abid Aziz Sheikh, Ch. Muhammad Iqbal, Tariq Saleem Sheikh, Muzamil Akhtar Shabir and Asim Hafeez, JJ.

ChaudharyPARVEZ ELAHI--Petitioner

versus

GOVERNOR PUNJAB etc.--Respondents

W.P. No. 82603 of 2022, decided on 12.1.2023.

Constitution of Pakistan, 1973--

----Arts. 130(7), 133 & 199--Rules of Procedure of Provincial Assembly of Punjab Rules, 1997, R. 22(7)--Session of Provincial Assembly was summoned--Petitioner was required to take vote of confidence--Exercising of powers by Respondent No. 1--Issuance of order by respondent No. 1--Petitioner was ceased to hold office of Chief Minister and cabinet was also dissolved--Grant of interim relief--Petitioner was obtained vote of confidence during pendency of writ petition--Order regarding taking vote of confidence was withdrawn--Impugned order stood complied with by petitioner and Governor Punjab affirmed his pleasure, who is not proceeding against petitioner under Article 130(7) of Constitution and whereas other impugned order dated 22.12.2022, being consequence of allegedly not taking vote of confidence in terms of order dated 19.12.2022, is also withdrawn in view of statement, when petitioner had taken vote of confidence--We do not need to adjudicate upon justiciability of reasons stated in order of Governor Punjab for reaching satisfaction in terms of Article 130(7) of Constitution and merits of order of Speaker of Assembly--Petition disposed of. [P. 248] A & B

PLD 1994 SC 738 ref.

M/s. Barrister Syed Ali Zafar, Zahid Nawaz Cheema, Advocate, Barrister Ahmad Asfand Yar Waheed, Ms. Fareeha Arif Advocate, Ms. Asna Ahsan Advocate, Ms. Sara Majeed, Advocate, Abdullah Arif, Advocate, Barrister Asfandyar Lodhi and Sikandar Sultan Chaudhry, Advocate for Petitioner.

M/s. Amir Saeed Rawn, Imdad Hussain Chandio, Adam Saeed Rawn, Advocates for Petitioner.

M/s Ch. Adnan Faiz Kalaar, Advocate, Ch. Rizwan Kashif Kalaar, Advocate for Petitioner.

Ms. Shamim Akhtar, Advocate.

Mr. Sheikh Zaheer Ahmad, Advocate for Petitioner.

M/s. Ashhad Ali Azhar, Advocate, Dr. Ali Qazil Bash, Advocate, Ahmad Imran Ghazi, Advocate, Munir Ahmad, Advocate, Mian Shabir Asmail, Advocate, Ms. Salma Riaz, Advocate, Ms. Amna Liaqat, Advocate and Barrister Nudra B Majeed for Petitioner.

Mr. Saqib Haroon Chishti, Advocate for Petitioner.

Mr. Adnan Ramay, Advocate for Petitioner.

Mr. Yasir Islam Chaudhary, Advocate for Petitioner.

Hafiz Arslan Gujjar, Advocate for Petitioner.

M/s. Mansoor Usman Awan, Khalid Ishaq, Ch. M. Jawad Yaqub, Barrister Hamza Shehram Sarwar, Haris Irfan, Faizan Ahmad, Ahmad Saeed, Abid Sial, Usman Nasir Awan, M. Zikria Sheikh, Khalil Tahir Sindhu, Mian Shahzaib Quddous, Asad Zaman Tarar, Kamal Ali Khan, Advocates for Respondent No. 1.

M/s. Mirza Nasar Ahmad, Addl. Attorney General, Muhammad Javed Awan, Addl. Attorney General, Syed Tanvir Ahmad Hashmi, Dy. Attorney General, Ch. Badar Munir Malik, Dy. Attorney General, Tahir Mehmood Khokhar, Dy. AG, Ahmad Raza Chattha, AAG- Pk, Mr. M. Mansoor Ali Sial, AAG-PK, M. Hassam Kayani, AAG-PK and Mr. Usman Ghani, AAG-PK for Federation of Pakistan.

M/s. Ahmad Awais, Advocate General Punjab, Javed Awan, Addl. A.G-I, Tipu Salman, Addl. A.G., Zafar Zulqarnain Sahi, Addl. A.G., Hamid Shabir Azar, Addl. A.G, S.N. Khawar Khan, Addl. A.G., Fayyaz Ahmad Mehr, Addl. A.G, Mukhtar Ahmad Ranjha, Addl. A.G, Mr. Saqib Akram Gondal, Addl. AG, Muhammad Barjees Tahir, AAG, Sardar Aqeel Ahmad Bhatti, AAG, Rai Shahid Saleem Khan, AAG, Muhammad Akbar Baba, AAG, Irfan Kalaar, AAG, Ch. Shahid Mahmood, AAG, Ch. Usman Ghani, AAG, Ch. Naseer Ahmad Gujjar, AAG, Ch. Muhammad Zain Qazi, AAG, Muhammad Anwar Khan, AAG, Mian Mian Swad Hanif, AAG Punjab. Hanif, AAG, Ch. Muhammad Jehanzaib, AAG, Safdar Hayat Bosal, AAG, Mustafa Shaukat Imran Pasha, AAG, Kashif Bashir, AAG, Awais Ahsan Joyia, AAG, Rana Zain Tahir, AAG, Ch. Attique Zaman Wains, AAG, Barrister Tayeeb Jan, AAG, Barrister Shahayar Riaz, AAG and Zakarya Yousaf Toor, AAG, for Respondent No. 2.

Mr. Bilal Awais and Ms. Sidra Kanwal, Advocates.

M/s. Haider Rasul Mirza and Syed Atir Raza Abdi, Advocates for Respondent No. 3.

Date of hearing: 12.1.2023.

Order

Through this constitutional petition, the petitioner has challenged the orders dated 19.12.2022 and 22.12.2022 (impugned orders) passed by Respondent No. 1 (Governor Punjab), whereby while exercising powers under Article 130(7) of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution), Session of Provincial Assembly was summoned and petitioner was required to take vote of confidence, however, the former order was not effectuated in view of the Ruling Order passed by Respondent No. 3 (Speaker) on 20.12.2022. Eventually, vide impugned order dated 22.12.2022, while exercising the powers under Article 130(7) of the Constitution read with Rule 22(7) of the Rules of Procedure of the Provincial Assembly of the Punjab, 1997 (Rules), it was held that petitioner has ceased to hold the office of the Chief Minister and the Cabinet was also dissolved, however, the petitioner was allowed to continue to perform functions under Article 133 of the Constitution, till the next Chief Minister takes the charge of the office. This Court in this petition, vide order dated 23.12.2022, recorded the contentions of the petitioner and issued notices to the respondents. As an interim relief, the impugned orders were also held in abeyance. The relevant Para of the said order is reproduced hereunder:

“In view of above submissions and undertaking given by the petitioner, the operation of impugned orders dated 19.12.2022 and 22.12.2022 shall be held in abeyance till the next date of hearing, however, this order will not preclude the petitioner from taking vote of confidence on his own accord.”

1. The writ petition was being argued by learned counsel for the petitioner, when during the pendency of this Writ Petition, on 12.01.2023, the petitioner obtained vote of confidence in terms of the Article 130(7) of the constitution from the Provincial Assembly in its sitting held on 12.01.2023. In pursuance thereto, the Notification has been issued by the Speaker on 12.01.2023 and same has also been communicated to the Governor Punjab on the same date.

2. Learned counsel for the Respondent No. 1 (Mr. Mansoor Usman Awan, Advocate) in view of above developments made following statement in Court:

“The Governor has received the report from the Speaker dated 12.01.2023 confirming that Chief Minister has obtained vote of confidence in terms of Clause (7) of the Article 130 of the Constitution while complying with the order dated 19.12.2022 of the Governor. As consequence of compliance, the Governor has withdrawn the order dated 22.12.2022.”

1. In view of the statement made by the learned counsel for the Respondent No. 1, it is evident that impugned order dated 19.12.2022 stood complied with by the petitioner and the Governor Punjab affirmed his pleasure, who is not proceeding against the petitioner under Article 130(7) of the Constitution and whereas the other impugned order dated 22.12.2022, being the consequence of allegedly not taking vote of confidence in terms of order dated 19.12.2022, is also withdrawn in view of above statement, when petitioner had taken vote of confidence on 12.01.2023 successfully, passing the floor test, which is required under Article 130(7) of the Constitution.

2. In view of above, we do not need to adjudicate upon the justiciability of the reasons/grounds stated in order dated 19.12.2022 of the Governor Punjab for reaching satisfaction in terms of Article 130(7) of the Constitution and merits of the order of the Speaker of the Assembly in the context of the ratio settled in the case of “Pir Sabir Shah versus Federation of Pakistan and others” (PLD 1994 SC 738), which questions are left open for determination in any other case. Furthermore, in the light of the statement of the Governor Punjab, this petition has borne fruit, consequently the Notification dated 22.12.2022 issued by the Chief Secretary Punjab is set-aside. This petition is disposed of accordingly.

(Y.A.) Petition disposed of

PLJ 2023 Lahore 249 (DB) [Bahawalpur Bench Bahawalpur]

Present: Muzamil Akhtar Shabir and Sultan Tanvir Ahmad, JJ.

ADAM SUGAR MILLS LTD.--Applicant/Appellant

versus

CANE COMMISSIONER PUNJAB, etc.--Respondents

C.M. No. 10910 of 2021/BWP in ICA No. 4 of 2019-BWP, decided on 13.1.2022.

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

----Ss. 12(2) & 151--Filing of intra Court appeal--Dismissed as withdrawn on statement of council--Vakalatnama--Death of executant of power-of-attorney--Power of attorney was not withdraw by company--Challenge to--Restoration application was filed by applicant through Respondent No. 7 and claim regarding difference of signature is also without any substance especially when executant in his life time did not take said stance--Death of executant of power-of-attorney would not take away authority vested in Respondent No. 7 to represent company in ICA pending before this Court--Power-of-attorney was executed on behalf of company to represent it in Court and same would remain in field unless it is withdrawn by either applicant-company or counsel by leave of Court--When an Advocate is duly engaged by a party, it is bound by statement recorded by said Advocate in Court even if same is for withdrawal of suit or appeal as ICA in this case--Application dismissed. [Pp. 252 & 255] A, B, C & E

2018 SCMR 443, 2015 SCMR 642, 2004 YLR 392, 2009 SCMR 652 and 1998 CLC 179 ref.

Duty of Party--

----It is duty of party as well as advocate to revoke or terminate power-of-attorney through notice if it is to be terminated otherwise same remains in field and both parties are bound by same. [P. 252] D

2004 YLR 392 and 2006 YLR 2881 ref.

Execution of Wakalatnama--

----Where power-of-attorney/vakalatnama was duly executed, a lawyer has authority to bind a party in compromise and such compromise decree could not be set aside on an application u/S. 12(2), CPC.

[P. 255] F

2001 MLD 321.

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

----S. 12(2)--Withdrawal of appeal--Lawyer was not authorized to withdraw appeal is not sufficient for recall of order through application under Section 12(2) of, CPC because for that purpose Applicant was required to establish grounds of fraud, misrepresentation or lack of jurisdiction provided under Section 12(2), CPC. [P. 255] G

PLD 2008 SC 591 ref.

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

----S. 12(2)--Dismissal of application--Where no case of fraud or misrepresentation was made out and ground for setting aside decree was not at all such a ground as envisaged by Section 12(2), CPC but pertained to merits of case, application u/S. 12(2), CPC.

[P. 256] H

Rana Rizwan, Advocate for Applicant.

Ch. Shahid Mehmood, A.A.G. for Respondents.

Date of hearing: 13.1.2022.

Order

Muzamil Akhtar Shabir, J.--Through this application filed under Section 12(2) read with Section 151 of C.P.C., the applicant/Appellant Company seeks recall/setting aside of order dated 10.11.2021 passed by this Court whereby the Intra Court Appeal No. 4/2019 filed by the applicant was dismissed as withdrawn on the statement of Respondent No. 7 who had appeared as counsel on behalf of the applicant.

1. It is contended by learned counsel for the applicant that the applicant had not given any authority to Respondent No. 7 to withdraw the titled ICA which is evident from the contents of Vakalatnama/power-of-attorney submitted in Court by the said respondent which does not include authority for withdrawal of the case. Moreover, it is claimed that the signatures of executant on power-of-attorney filed by Respondent No. 7 with C.M. No. 468/2021 were entirely different from the signatures of the person who had filed the ICA on behalf of the applicant-Company. Furthermore, Respondent No. 7 put her appearance in ICA on the basis of power-of-attorney allegedly signed by Hazoor Bukhsh Shahid s/o Muhammad Mittha, Admin Officer of the applicant-Company, whereas the said person had died on 20.11.2020 and authorization on his behalf, if any, was no more in existence on 10.11.2021 when the ICA was withdrawn. Furthermore, it is claimed that the applicant had no reason to withdraw the ICA particularly when the applicant has deposited huge amount of Rs. 67,57,742/- as condition imposed by the Court vide order dated 14.01.2019 in ICA for allowing interim relief to the applicant against impugned demand raised by Cane Commissioner and as a consequence of withdrawing of ICA, Deputy Commissioner and Assistant Commissioner concerned on the instruction of Cane Commissioner, have started proceeding against the applicant to effect recovery of disputed amount. Further adds that the ICA has been withdrawn through fraudulent means, hence, the said order may be recalled and after restoring the ICA to its original number, the same be decided on merit.

2. On the other hand, learned A.A.G. has defended the impugned order by controverting the arguments of counsel for the applicant.

3. The first ground raised by the applicant is that the Respondent No. 7, who appeared as counsel was not duly authorized to represent the applicant in the ICA as the signature on power of Attorney in her favour differed from the signatures of person who had filed the ICA. Suffice, it to observe that the said objection was without any substance for the reason that the applicant-Company through its duly authorized officer namely Hazoor Bukhsh Shahid, Admin Officer of the applicant-Company (‘Admin officer’), had filed the ICA which had been dismissed for non-prosecution on 13.01.2021 and the same Admin Officer filed restoration application C.M. No. 468/2021 through the Respondent No. 7 and not through the previous counsel who had filed the ICA. The perusal of Power of Attorney shows that the admin officer, signatory of power of Attorney in favour of Respondent No. 7, had executed the same for the purpose of conducting proceedings in the ICA and not for limited purpose of the C.M. only, wherein she had been authorized to act on behalf of the company in the said appeal, which also included the implied authority to compromise/withdraw the matter if circumstances of the case so required. Besides had the Admin Officer not filed the restoration application, the status of appeal would still be ‘dismissed for non-prosecution’ and would not have been taken up before the Court for further proceedings as the case was already decided and nothing would be pending before this Court.

4. Even otherwise, no one during the pendency of the restoration application, which was filed on 01.02.2021 and allowed on 02.03.2021 or after its restoration till withdrawal of ICA on 10.11.2021 called in question the authority of Respondent No. 7 to represent the applicant-Company and no one else appeared on the said date on behalf of the company to argue the matter despite the fact that the case was listed out in the cause list for hearing on the said date after due notice to the parties. In view of the afore-referred position, it cannot be disputed that the restoration application was filed by the applicant through the Respondent No. 7 and the claim regarding difference of signature is also without any substance especially when the executant in his life time did not take the said stance.

5. The claim that Hazoor Bukhsh Admin Officer of the Applicant, who executed the power-of-attorney, died on 20.11.2020 and authorization on his behalf, if any, was no more in the field on 10.11.2021 i.e. the date when case was withdrawn is also without any substance as he had engaged the services of Respondent No. 7 to represent applicant-Company and not for himself in his personal capacity. It is pertinent to mention here that a company is a separate legal entity from its directors and shareholders and its separate existence continues regardless of who represents it before the Court or any other authority, hence, the death of executant of power of attorney would not take away the authority vested in the Respondent No. 7 to represent the company in the ICA pending before this Court. We are fortified in our view by the dictum laid down by the Honourable Supreme Court in cases reported as State Life Insurance Corporation of Pakistan versus Sami-ur-Rehman and others (2018 SCMR 443), Messrs Uzma Construction Co. versus Naveed H. Malik (2015 SCMR 642) and Najam Aziz Sethi versus Muhammad Azeem Butt (2009 SCMR 652). Hence for all intents and purposes the power of attorney was executed on behalf of the company to represent it in the Court and the same would remain in field unless it is withdrawn by either the applicant-company or the counsel by the leave of the Court, in view of provision of Order III Rule 4(2), CPC. Reliance is placed on Pakistan through General Manager, Pakistan Railways versus Messrs Q.M.R. Expert Consultant (PLD 1990 SC 800), United Bank Limited versus Mian Tajammal Hussain (PLJ 1998 Kar 747 = 1998 CLC 179 (Kar)), Messrs Aziz Flour Mills and 2 others versus The Industrial Development Bank of Pakistan (1990 CLC 1473 (Lah)).

6. It is important to mention here that Power of Attorney signed by a party in favour of advocate is a contract between the client and his counsel and it is the duty of party as well as the advocate to revoke or terminate the power of attorney through notice if it is to be terminated otherwise the same remains in the field and both parties are bound by the same. Reliance is placed on Mukhtar Ahmad versus Mushtaq Ahmad and 2 others (2004 YLR 392 (Lah)). Where power of attorney is not withdrawn, the counsel engaged in the matter by a party, were under legal obligation to represent their client as long as they had not sought discharge of the vakalatnama in accordance with law. Reliance is placed on Muhammad Aslam versus Messrs Pacific Textile Industries 2006 YLR 2881 (Kar)).

In the present case the applicant company did not withdraw the Power of Attorney executed in favour of the Respondent No. 7 till the date the ICA was withdrawn, hence till then the Respondent No. 7 had the authority to represent the applicant-company.

1. In order to further appreciate the contentions of both the parties, reference is required to be made to the order dated 10.11.2021 passed by this Court, whereby, the ICA was withdrawn which is reproduced as under:

“10.11.2021. Miss Imbesat Mehar, Advocate for the appellant.

Jam Muhammad Afzal Gasoora, Assistant Advocate General. Syed Ghulam Shabbir, Advocate for Respondent No. 4.

After arguing the matter at some length, learned counsel for the appellant seeks permission to withdraw this appeal.

1. Dismissed as withdrawn.”

2. Perusal of the afore-referred order shows that learned counsel/Respondent No. 7 had not withdrawn the ICA at the outset rather had argued the appeal on merits and subsequently, after arguing the matter at some length had sought to withdraw the same. The reason for the same may have been manifold, i.e., the Bench may have not agreed with the contentions raised by the applicant on merits or may have not agreed to condone the delay in filing the ICA, which was barred by limitation for 10 days or may have not agreed with the maintainability of the ICA due to availability of remedy of appeal against the order in original passed by the Cane Commissioner.

3. To elaborate the above, it is noted that in fact, the ICA had been filed on 10.01.2019, i.e., after 35 days from the dismissal of Constitution Petition No. 7477-2017/BWP on 6.12.2018, which after deduction of 5 days required for obtaining copy of order and 20 days limitation was still barred by 10 days.

4. Furthermore, the dismissed constitution petition had been filed by the applicant challenging the demand raised by the Cane Commissioner under Section 13-A of the Punjab Sugar Factories Control Act, 1950 through order dated 22.08.2017 for the payment of Rs. 74,15,871/- (i.e. Rs. 67,57,742/- principal amount due + Rs. 6,58,129/- as amount for illegal deductions) with 11% mark-up per annum for crushing season 2016/17, which was directed to be paid within seven days. The said order of the Cane Commissioner was appealable before the Secretary Food in terms of Section 13-A(5) of the Act which is reproduced as under:

“13-A. Powers of the Cane Commissioner to determine the liability of an occupier of a factory.--(1) The Cane Commissioner shall determine the liability of the occupier of a factory for payment of cane price to a cane-grower or the cane-growers, as the case may be, not later than forty five days of the end of the crushing season.

(2) When the Cane Commissioner makes a determination under sub-section (1) and the amount so determined is not paid within the stipulated time period of fifteen days, the amount shall be recoverable as arrears of land revenue under the Punjab Land Revenue Act, 1967 (XVII of 1967).

(3) An amount recoverable as arrears of land revenue under sub-section (2) shall be recovered by the Additional Cane Commissioner of the concerned District from an occupier of the factory and the recovered amount shall be paid to the cane-grower in question.

(4) The powers granted under sub-sections (1), (2) and (3) shall be deemed to have always been vested in the Cane Commissioner and the Additional Cane Commissioner, as the case may be.”

(5) An appeal shall lie to the Secretary Food against an order passed by the Cane Commissioner or Additional Cane Commissioner under this Section.

(emphasis supplied)

Hence, one of the reasons to withdraw the ICA may have been availability of appeal against original order, which prior to insertion of newly inserted Section 13-A, was also previously available under Section 13-A(2) of the said Act.

1. Moreover, presumption of authenticity is attached to the judicial proceedings, which cannot be set-aside merely because a party challenges the same through an application supported by an affidavit of that party, when the circumstances of the case available on the record do not support the assertion of the said party. For this we are fortified in our view, by the dictum laid down by the Honourable Supreme Court of Pakistan in case titled “Fayyaz Hussain versus Akbar Hussain and Others” (2004 SCMR 964) the relevant portion of the same is reproduced below:

“Learned counsel attempted to persuade us, to accept the affidavit of Ch. Muhammad Afzal Kahloon Advocate over the judicial proceedings recorded in the Court of Additional District Judge in view of unfair reputation of the Presiding Officer but we are not inclined to adopt this course of action which may lead to a large number of legal complications. In any event this being an essentially a disputed question of fact could neither be resolved by the High Court nor by this Court in the exercise of extraordinary Constitutional Jurisdiction. There is always a presumption of correctness in favour of judicial proceedings and credibility is attached to the proceedings before a judicial forum. Strong and unimpeachable evidence is required to rebut the presumption, which is badly lacking in the case. We are fortified in our view, by the dictum laid down by this Court in Ghulam Muhammad versus Malik Abdul Qadir Khan PLD 1983 SC 68 which is on all fours and attracted in the facts and circumstances of this case.

1. Resultantly, we find not merit in this petition which is devoid of any substance and id accordingly dismissed.”

2. It is important to note here that when an Advocate is duly engaged by a party, it is bound by the statement recorded by the said Advocate in the Court even if the same is for withdrawal of the suit or appeal as ICA in this case. Reliance in this behalf is placed on Siraj Din versus Muhammad Yousaf and others (1982 SCMR 539) wherein the counsel made statement in Court binding petitioner as a result of which the suit of petitioner was dismissed and decree was passed against him in accordance with statement of parties. The Court held that same amounts to a consent order and the petitioner in circumstances could not claim that Advocate engaged by him was not competent to make statement.

3. Moreover, where power-of-attorney/vakalatnama was duly executed, a lawyer has the authority to bind a party in compromise and such compromise decree could not be set aside on an application u/s 12(2), CPC. Reliance is placed on Mst. Sanober Jan versus Shaukat Ali and others (2001 MLD 321).

4. Be that as it may, whatever the reason for the withdrawal of the ICA may have been, mere assertion that lawyer was not authorized to withdraw appeal is not sufficient for recall of said order through application under Section 12(2) of CPC because for that purpose the Applicant in addition to above was also required to establish grounds of fraud, misrepresentation or lack of jurisdiction provided under Section 12(2), CPC, which has not been done. As no fraud or misrepresentation on behalf of the Respondent No. 7 has been pointed out from the record of this case, therefore, there is no ground

for this Court to exercise its jurisdiction under Section 12(2), CPC to recall the order of withdrawal of ICA, hence the application merits to be dismissed. Reliance in this behalf is placed on case titled Subedar Sardar Khan through Legal Heirs and another versus Muhammad Idrees through General Attorney and another (PLD 2008 SC 591), where in it has been held that decree could be set aside only on the grounds stated in Section 12(2), CPC. Where no case of fraud or misrepresentation was made out and ground for setting aside the decree was not at all such a ground as envisaged by Section 12(2), CPC but pertained to merits of the case, application under Section 12(2), CPC was liable to be dismissed.

1. Hence, this Court is not inclined to recall the earlier order of withdrawal of ICA.

2. For what has been discussed above, this application being devoid of merits is dismissed.

(Y.A.) Application dismissed

PLJ 2023 Lahore 256

Present: Muzamil Akhtar Shabir, J.

MUHAMMAD RAFIQUE--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, JHANG etc.--Respondents

W.P. No. 71147 of 2022, decided on 14.11.2022.

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

----O.XXXIX Rr. 1 & 2--Specific Relief Act, (I of 1877), S. 12--Suit for specific performance--Dismissal of application for grant of interim relief--Concurrent findings--Agreement to sell was not written on stamp paper--Evidentiary value of agreement to sell--Conceding statement of respondent--Part payment of sale consideration was not proved--Principle of lis pendens--Non-availability of ingredients of temporary injunction--Petitioner has placed on record photocopy of agreement to sell in his favour, which is not written on a stamp paper rather on plain paper--Evidentiary value of agreement to sell and conceding statement recorded by Respondent No. 4 are yet to be determined after fair trial of case--Petitioner has yet to establish agreement to sell by recording of evidence, prima-facie case cannot be assumed in his favour--Part payment of sale consideration is also yet to be established by leading evidence and petitioner has to prove how such huge amount of money was transferred in name of Respondent No. 4 without any corresponding supporting document except agreement to sell written on a plain paper in his favour--Ingredients for grant of temporary injunction that are prima-facie case, balance of convenience, suffering of irreparable loss are not available in case for allowing application for interim relief, which was rightly dismissed by Courts below--Petition dismissed.

[Pp. 258 & 259] A, B, C, D & E

2004 SCMR 111 and 2018 MLD 959 ref.

Ch. Akbar Ali Tahir, Advocate for Petitioner.

Date of hearing: 14.11.2022.

Order

Through this constitutional petition, Muhammad Rafique, the petitioner has called in question the orders dated 28.09.2022 and 02.11.2022 passed by both the Courts below, whereby in a suit for specific performance of agreement to sell dated 23.07.2020, stay application filed by the petitioner has concurrently been dismissed.

1. It is contended by learned counsel for the petitioner that the petitioner had got strong prima-facie case in his favour; that the petitioner vide agreement to sell dated 23.07.2020 purchased the suit property from Respondent No. 4/Muhammad Sharif, who is his real brother and paid an amount of Rs. 58,50,000/- out of total sale consideration of Rs. 60,00,000/- and obtained possession of the same; that Respondent No. 3/Mst. Safia Bibi, who is wife of Respondent No. 4 deceitfully got transferred the suit property from Respondent No. 4 to her name, which aspect of the matter has not been given due consideration by the Courts below while dismissing the application filed by the petitioner for interim relief.

2. Heard. Record perused.

3. It is noticed that the petitioner has filed his suit on the basis of agreement to sell dated 23.07.2020 by claiming his possession over the suit property in terms thereof. Admittedly, both the defendants/Respondents No. 3 and 4 are husband and wife, whereas the petitioner and Respondent No. 4 are real brothers inter se. The claim of the petitioner is that vide agreement to sell dated 23.07.2020, he purchased the suit property from the Respondent No. 4 in consideration of Rs. 60,00,000/- , out of which, Rs. 58,50,000/- were paid by the petitioner and possession of the suit property was obtained in terms thereof. The stance taken by Respondent No. 3 is that through gift Mutation No. 1983 dated 10.09.2021, Respondent No. 4 got the suit property transferred in her name and possession of the suit property was handed over to her. It is noticed that the petitioner has placed on the record photocopy of the agreement to sell in his favour, which is not written on a stamp paper rather on plain paper. Although, Respondent No. 4 conceded petitioner’s claim and recorded statement in his favour yet both the Courts below have concluded that the factum of recording of conceding statement by Respondent No. 4 in favour of the petitioner prima facie seems to be result of collusiveness which cannot be treated as conclusive proof in terms of Article 113 of the Qanun-e-Shahadat Order, 1984 and may only be treated as estopple against Respondent No. 4 in terms of Articles 45 thereof and the same could not be used against Respondent No. 3 who claims to hold property under valid mutation recorded in her favour; besides, the evidentiary value of the agreement to sell dated 23.07.2020 and conceding statement recorded by Respondent No. 4 are yet to be determined after fair trial of the case keeping the same in juxta position with gift Mutation No. 1983 dated 10.09.2021 in favour of Respondent No. 3 especially when claim of both, the petitioner and Respondent No. 3, is that the other party is trying to deprive them from the suit property in connivance with Respondent No. 4. The claim of the petitioner is based on an agreement to sell whereas Respondent No. 3 has a mutation recorded in revenue record in her favour. In view thereof, as the petitioner has yet to establish the afore-referred agreement to sell by recording of evidence, therefore, prima-facie case cannot be assumed in his favour. Besides merely being in possession of the suit property could not be made a basis to equip the petitioner with injunction for an indefinite period, unless the right to continue to hold the said possession under some legal right is established on the record. Reliance is placed on 2004 SCMR 1111 (Muhammad Ali vs. Mahnga Khan) and 2018 MLD 959(Muhammad Ahmad Farooq and another vs. Province of Punjab through Member Judicial-VII, BOR, Punjab Lahore through DCO/Collector District Sahiwal and 12 others).

4. Furthermore, the part payment of sale consideration is also yet to be established by leading evidence and the petitioner has to prove how such huge amount of money was transferred in the name of the Respondent No. 4 without any corresponding supporting document except agreement to sell written on a plain paper in his favour. Moreover, the petitioner has yet to establish that how he would suffer an irreparable loss if interim relief is not granted especially in view of the circumstances that his rights are already protected under the principle of lis pendens.

In view of the above, this Court has reached the conclusion that ingredients for grant of temporary injunction that are prima-facie case, balance of convenience, suffering of irreparable loss are not

available in the case for allowing application for interim relief, which was rightly dismissed by the Courts below, which findings being based on proper appreciation of record and in accordance with law are well founded and do not warrant any inference by this Court.

1. For what has been discussed above, this constitutional petition being devoid of any merit stands dismissed in limine. However, the learned trial Court shall decide the main case without being influenced by any of the afore-referred observation.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 259 [Multan Bench, Multan]

Present: Abid Hussain Chattha, J.

Mst. ANAYATAN BIBI and another--Petitioners

versus

MAQSOOD AHMAD and others--Respondents

C.R. No. 1358 of 2017, W. P. No. 9055 of 2019 & 483 of 2020, decided on 18.1.2022.

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

----Ss. 12 & 54--Suit for specific performance and permanent injunction was decreed--Concurrent findings--Agreement to sell--Earnest money was paid--Possession was handed over--Issuance of conveyance deed--Truthfulness of witnesses was not questioned--Dismissal of application u/S. 12(2) of CPC by Respondent No. 2--Direction to--There is no evidence that there was any separate pending cause of Petitioners regarding which Respondent No. 1 acted as their counsel since Agreement itself conferred specific rights and powers to Respondent No. 1 to pursue matter of allotment with Governmental authorities regarding grant of proprietary rights in favor of Petitioners--Most of witnesses were Advocates does not by itself lead to any adverse inference as Advocates are not barred to witness a transaction--Rather, it was quite natural as Agreement was executed in vicinity of District Courts--Credit worthiness or truthfulness of witnesses was not questioned during their testimonies--There is also evidence on record to suggest that Petitioner No. 1 was accompanied by brother of her husband and her son in whose presence Agreement was attested by notary public--Petitioner No. 1 did not claim herself to be a Parda Nashi lady yet even if she was to be so regarded, she had trustworthy and reliable independent advice with respect to contents of Agreement--Act of registering Agreement also establishes that there was no intention to keep Agreement as secret or confidential--Conveyance Deed regarding Property was duly exhibited--Petitioners had no other Property in concerned revenue estate except Property--Respondent No. 1 is directed to pay an additional amount of Rs. 1,500,000/- as compensation for delayed payment and continued possession to Petitioners--Application under Section 12(2) of the, CPC clearly establish that Application was collusive in concert with Petitioners in an attempt to frustrate concurrent Judgments and Decrees passed by Courts below in favor of Respondent No. 1--Revision petition partially accepted.

[Pp. 271, 272, 273, 275 & 277] A, B, C, D, H & I

1999 SCMR 958, 2021 SCMR 1270 and 2017 SCMR 902 ref.

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

----S. 21(c)--Performance of contract--A contract cannot be specifically performed whose terms Court cannot find with reasonable certainty. [P. 273] E

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

----S. 12(b)(c)--Specific performance--Specific performance of a contract is a discretionary relief--Relief is permissible in terms of its Clauses (b) and (c), when there exists no standard for ascertaining actual damage caused by non-performance of act agreed to be done or when act agreed is such that pecuniary compensation caused by non-performance would not be considered as an adequate relief.

[P. 273] F

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

----S. 22--Discretion of Court--Discretion of Court should not be exercised arbitrary but judiciously based on sound and reasonable principles in a manner that it is capable of correction by a Court of appeal. [P. 273] G

Constitution of Pakistan, 1973--

----Art. 150--Absence of evidence--Mandate of--In absence of any evidence to contrary, mandate of Article 150 of Constitution in giving full faith and credit to public record and judicial pronouncements must prevail. [P. 279] J

Syed Tajammal Hussain Bukhari, Advocate and Syed Liaqat Ali Shah, Advocate for Petitioners.

Ch. Muhammad Malik, Advocate for Respondent No. 1.

Mr. Javed Ahmad Khan, Advocate and Ch. Muhammad Hasnaat Diyal, Advocate for Respondent No. 2.

Date of hearing: 18.1.2022.

Judgment

This consolidated Judgment shall decide the titled Civil Revision and connected Writ Petitions No. 9055/2019 and 483/2020. The parties in all the Petitions are referred with reference to their description in the titled Civil Revision throughout this Judgment.

1. The Petitioners preferred this Revision against the Judgments and Decrees dated 31.05.2016 and 12.09.2017 passed by Civil Judge, Sahiwal and Additional District Judge, Sahiwal respectively, whereby, the suit for specific performance with permanent injunction instituted by Respondent No. 1 against the Petitioners was concurrently decreed.

2. Respondent No. 1 instituted the suit on 29.04.2006 based on an agreement to sell dated 06.07.2002 (the “Agreement”) averring therein that the predecessor-in-interest of the Petitioners, namely, Ghulam Muhammad alias Goma was allotted land measuring 100 Kanals situated in Chak No. 156/9-L, Tehsil & District Sahiwal fully described in paragraph No. 1 of the plaint (the “Property”) under five years cultivation scheme by the Provincial Government. After death of the allottee, the leasehold rights regarding the Property devolved upon the Petitioners by way of inheritance. The Petitioners executed the Agreement (Ex. P-1) regarding sale of proprietary rights with respect to the Property in favor of Respondent No. 1 for total consideration of Rs. 300,000/- out of which Rs. 50,000/- was paid as earnest money at the time of execution of the Agreement and remaining amount of Rs. 250,000/- was agreed to be paid at the time of transfer of the Property to Respondent No. 1 after the issuance of Conveyance Deed in favor of the Petitioners by the Government of the Punjab. The Agreement was duly registered and possession was handed over to Respondent No. 1. Sale Receipt (Ex. P-2) regarding payment of earnest money was separately recorded. Respondent No. 1 on behalf of the Petitioners was responsible to carry out the entire proceedings before the revenue hierarchy till the issuance and registration of Conveyance Deed including payment of all installments, dues and expenses. Such obligations were duly performed by Respondent No. 1. Eventually, the Conveyance Deed dated 31.03.2004 (Ex.P-6) was issued and duly registered in the name of the Petitioners on 09.04.2004, whereafter, Mutation No. 353 dated 09.08.2004 (Ex. P-4) was also attested and incorporated in revenue record. Respondent No. 1 invoked the terms of the Agreement and required the Petitioners to perform their remaining part of the Agreement after receiving the balance sale consideration. It was specifically proclaimed that Respondent No. 1 performed his part of the Agreement and was always ready and willing to completely perform the Agreement in terms of remaining sale price. However, the Petitioners first delayed and later refused the performance of the Agreement. Hence, Respondent No. 1 was constrained to institute the suit.

3. The Petitioners resisted the suit by filing written statement. It was alleged therein that the Petitioners did not execute the Agreement or sale receipt regarding the sale of ownership rights of the Property. No stamp paper was purchased for the purposes of the Agreement and they did not sign and thumb marked the Agreement. Setting up a counter story, it was asserted that the Petitioners actually installed a tube-well in Qila No. 8/2 of the Property in order to make it cultivable. However, as the underground water was unfit for agricultural purposes, they sold the tube-well and its related articles to Respondent No. 1 for consideration of Rs. 87,000/- out of which Rs. 50,000/- was paid to them and remaining Rs. 37,000/- was promised to be paid later which is still payable. Execution of Receipt of Rs. 50,000 in this behalf was admitted. Claiming that Respondent No. 1 is an Advocate and was their counsel, the transaction regarding sale of ownership rights of the Property was denied. It was stated that the Petitioners did not have any title over the Property at the relevant time and even rules of the Revenue Department prohibited the sale of ownership rights of the Property. The price of the Property was around Rs. 200,000/- per Acre and the Petitioners were not that naive to have sold it for Rs. 300,000/- (Rs. 24,000/- per Acre approximately). The Petitioners deposited all the public dues in the Government exchequer themselves. As such, the Agreement is fake and based on fraud.

4. Respondent No. 1 was directed on 18.12.2006 to deposit the remaining sale consideration in the Court which was complied with on 09.01.2007 as depicted from Ex. P-7. Keeping in view the divergent pleadings of the parties, the trial Court framed the following issues:-

5. Whether the suit is not maintainable? OPD

6. Whether the Agreement is false and frivolous? OPD

7. Whether the plaintiff has not come to the Court with clean hands? OPD

8. Whether this Court lacks jurisdiction to try this suit? OPD

9. Whether the defendants entered into the Agreement with the plaintiff in consideration of Rs. 300,000/- and executed the Agreement on receipt of Rs. 50,000/- as earnest money? OPP

10. Whether the plaintiff is entitled to get the decree for specific performance of the Agreement along with permanent injunction as prayed for? OPP

11. Relief.

12. In order to prove the case, Respondent No. 1 himself appeared as PW-1. The scribe of the Agreement, Ch. Muhammad Yousaf Ferozpuri was produced as PW-2. Two marginal witnesses, namely, Rana Muhammad Ali Khan and Ch. Muhammad Aslam appeared as PW-4 and PW-7, respectively. PW-3, Ahsan Rasheed appeared as son of Ch. Rasheed Anwar, Advocate who was the third marginal witness. Stamp vendor, Syed Ashiq Hussain Gilani appeared as PW-5. Muhammad Zafar Iqbal, Record Keeper appeared as PW-6 and verified the stamp license of the stamp vendor. Muhammad Shakeel Ahmad appeared as PW-8 in his capacity as identifier of the parties before the registration of the Agreement. The official witnesses were also produced, namely, Shahzad Saeed, Sub Registrar as PW-9 and Maqbool Ahmad, Registry Moharrar as PW-10. In documentary evidence, Respondent No. 1 produced the Agreement (Ex. P-1, P-5); Receipt of Earnest Money (Ex. P-2); Register of record of rights for the year 2002-2003 & 2006-2007 (Ex. P-3, P-4); Conveyance Deed (Ex. P-6); Receipt of payment of balance consideration (Ex. P-7); Khasra Girdawari from Kharif 2004 to Rabi 2007 (Ex. P-8); Application for entries of Khasra Girdawari and Rapt Roznamcha as Mark A; Application for correction of entries of Khasra Girdawari as Mark B; Applications to stop the proceedings regarding sanctioning of loan against the Property as Marks C, D & E).

13. In rebuttal, Petitioner No. 1 appeared as DW-1 and in documentary evidence, produced copy of Khasra Girdawari as Ex. D-1.

14. After hearing arguments of the parties, the Trial Court dismissed the suit of Respondent No. 1 on 17.03.2010. Feeling aggrieved, Respondent No. 1 preferred an Appeal on 02.04.2010 before the Appellate Court. During pendency of the Appeal, Respondent No. 1 filed two different applications for recording of additional evidence which were accepted and in consequence thereof, the Appellate Court vide Judgment dated 31.10.2013 set aside the Judgment and Decree dated 17.03.2010 and remanded the suit to the Trial Court for its decision afresh after recording additional evidence. The Petitioners preferred Civil Revision No. 81/2014 before this Court against the aforesaid remand order which was dismissed vide Judgment dated 25.01.2016. Accordingly, additional evidence was recorded by the Trial Court.

15. Respondent No. 1 produced Shaukat Ali, Teacher as PW-11, Altaf Hussain, Patwari as PW-12 and Muhammad Akhtar Sabir, Teacher, as PW-13. Jamabandi for the year 2010 & 2011 and documents regarding school record of Petitioner No. 2 were also tendered in documentary evidence as Ex. P-9 to P-14. However, despite having numerous opportunities, the Petitioners did not produce any evidence in rebuttal and their right to this effect was closed on 18.05.2016. As an abundant caution, Respondent No. 1 moved an application for summoning the Petitioners in person to record their evidence but they failed to avail the opportunity. Eventually, the suit was decreed by the Trial Court. The Petitioners instituted an Appeal and during its pendency, Petitioner No. 1 (Mst. Inayatan Bibi) died and Petitioner No. 2 (Rasheed Ahmad) was allowed to continue as sole legal heir of the former vide order dated 27.10.2016. The Appeal was dismissed on 12.09.2017. Hence, the instant Civil Revision.

16. Learned counsel for the Petitioners submitted that the impugned Judgments and Decrees are against the law and facts and are result of misreading and non-reading of evidence on record. He contended that strangely five witnesses including Respondent No. 1 and marginal witnesses were all Advocates. As such, Respondent No. 1 successfully but fraudulently got executed the Agreement within the precinct or vicinity of District Court and the Petitioners vis-à-vis lawyers could not bring the real evidence on record. Hence, this case ought to be decided on the basis of circumstantial evidence since Respondent No. 1 as lawyer of the Petitioners misused the privilege of professional advice by committing breach of fiduciary duty. He asserted that fraud is evident from the fact that the total sale consideration mentioned in the Agreement was grossly inadequate and disproportionate to prevailing market value in 2002. Petitioner No. 1 was a Parda Nashin lady and no independent advice was available to her since independent advice was that of her lawyer who himself compromised the cause by fraudulently entering into the Agreement. It was also claimed that the description of the Property listed in the Agreement and the plaint is not identical which demonstrates that not only Respondent No. 1 was unaware of exact location and description of the Property but also the Agreement could not be specifically enforced. Without prejudice to the same, he emphasized that specific performance of the Agreement is a discretionary relief under the Specific Relief Act, 1877 (the “SRA”) and the facts, nature and circumstances of the case do not allow specific enforcement of the Agreement in view of the provisions of Sections 17, 21 and 22 of the SRA. Citing reasons, he stated that the Agreement was not enforceable in its entirety as the description of the Property in the plaint and the Agreement is inconsistent; the terms of the Agreement are not ascertainable with reasonable certainty; the Agreement in its nature is revocable; its performance involves performance of a duty extended over a longer period than three years; and the circumstances leading to its execution confer an unfair advantage to Respondent No. 1 over the Petitioners. To support his contentions, he placed reliance on cases titled, “Malik Tanveer Ali and another v. Sardar Ali Imam and 2 others” (2010 YLR 1799); “Mian Muhammad Saleem and others v. Mst. Hameeda Begum and others” (1987 SCMR 624); “Fida Hussain v. Jalal Khan” (NLR 2002 Civil 82); “Mst. Sajeda Mushtaq v. Federation of Pakistan through Secretary Ministry of Interior and 3 others” (2019 YLR 2364); “Rajasthan Breweries Ltd. v. The Stroh Brewery Company” (AIR 2000 Delhi 450); “Classic Motors Ltd. v. Maruti Udyog Ltd.” (1997 IAD Delhi 190); “Jamahir Sao and another v. Satrughna Sonar and another” (AIR 1961 PATNA 482); and “Hameedullah and 9 others v. Headmistress, Government Girls School, Chokara, District Karak and 5 others” (1997 SCMR 855).

17. It was vehemently asserted that relationship of counsel and client was established in this case and this relationship being fiduciary in nature could not be allowed to betray the cause of the Petitioners as it gives rise to a special presumption that a person is deemed to be in a position to dominate the will of another where he holds the real or apparent authority over the other. The relationship of lawyer and client is unequal and the personal ascendancy of lawyer over client is a factor which cannot be ignored. Hence, the Agreement even if proved cannot be ordered to be performed. Reliance was placed on cases titled, “Director of Intelligence and Investigation v. Aslam Hashim Butt” (2016 CLC 1884); “Gouri Shankar Misra and Anr. v. Fakir Mohan Dash and Ors.” (AIR 1989 Ori 201); “Ladli Parshad Jaiswal v. The Karnal Distillery Co., Ltd. Karnal and others” (AIR 1963 Supreme Court 1279); and “Amrit Lal C. Shah v. Ram Kumar, Advocate” (1962 AIR (Punjab) 325).

18. Learned counsel for the Petitioners while placing reliance on case titled, “Muhammad Bashir v. Gohar Naseem” (2016 YLR 565) contended that where a contract was not scribed by a licensed Deed Writer rather drafted by an Advocate, the latter could not be treated at par with the former and his deposition would have no evidentiary value for not having produced his register for examination of Court. This is specially so when the seller was illiterate person and in such an eventuality, the beneficiary of the said document was bound to establish through strong evidence that not only the document had been executed by the said person but also that such person had fully understood the contents of the document under execution. Reliance was also placed on case titled, “Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others” (2007 SCMR 1884) to assert that in order to prove due execution of a document, mere signature or thumb impression on the document is not enough but more solid and cogent evidence must be brought on record to prove its due execution. Case titled, “Abdul Hameed v. Mst. Aisha Bibi and another” (2007 SCMR 1808) was also relied upon to assert that where a signature or thumb impression was not denied regarding a contract but its contents were denied on the basis that the signature and thumb impression were obtained on a blank paper, then mere admission of the seller regarding his thumb impression or signature on the contract is not sufficient to prove its execution and contents. Similarly, it was stated that in case titled, “Nazar Muhammad and 4 others v. Mst. Rabia Bibi and another” (2006 CLC 1444), a contract was declared to be result of fraud because it was not proved that the document was ever read over and explained to the lady prior to its execution. Learned counsel further contended that the maxim, Consensus ad idem, is squarely applicable to the facts and circumstances of the case as there was no meeting or consensus of minds between the Petitioners and Respondent No. 1 with respect to the Agreement. Reliance in this behalf was placed on cases titled, “Farzand Ali and another v. Khuda Bakhsh and others” (PLD 2015 Supreme Court 187); and “Syed Adnan Ashraf v. Syed Azhar-ud-Din through Attorney” (2014 MLD 342). He further relied upon case titled, “Nanjegowda and another v. Gangamma and others” (2012 SCMR 1246) to submit that benefit of part performance is not available without conclusive prove of possession which was never proved accordingly in the instant case and even today, it is not with Respondent No. 1. Learned counsel added that testimonies of the witnesses of Respondent No. 1 were not consistent with regard to the venue where the transaction was settled and as such, evidence available on record was not sufficient to prove the due execution and contents of the Agreement. Reliance was placed on the case of Muhammad Bashir (supra). As such, the transaction was not proved and even if the same is found by this Court to be proved, the specific performance of the Agreement cannot be granted.

19. Finally, it was argued that even otherwise the suit was not maintainable without deposit of the remaining consideration on the date of first appearance before the Court. It is admitted on record that a mere amount of Rs. 50,000/- was paid against Rs. 300,000/- from the alleged total sale consideration of the Property. Even this inadequate and inconceivable sale price was not paid as ordained by law. The remaining amount was not paid to demonstrate the readiness and willingness of Respondent No. 1 to perform his part of the contract. Reliance was placed upon case titled, “Hamood Mehmood v. Mst. Shabana Ishaque and others” (2017 SCMR 2022) to add that where a party sought enforcement of a contract under the SRA, it was mandatory for such party that on first appearance before the Court or on the date of institution of the suit, it must apply to deposit the balance amount and any omission in this regard would entail to dismissal or decree of the suit. Further, in case titled, “Mst. Rehmat and others v. Mst. Zubaida Begum and others” (2021 SCMR 1534), it was held that if balance consideration was not offered or paid earlier, best time to demonstrate such readiness and willingness to perform was offering balance sale consideration at the time of filing of the suit for specific performance. In this behalf, learned counsel also relied upon cases titled, “Mst. Murshida Khatoon v. Ch. Abdul Rehman Sahi and another” (2021 MLD 15); and “Muhammad Yousaf v. Allah Ditta and others” (2021 SCMR 1241). As such, the failure on the part of Respondent No. 1 to deposit the balance sale consideration in the Court on the date of first appearance shows his inability and lack of readiness to make payment. Hence, there was no justification for the Courts below to decree the suit.

20. In rebuttal, learned counsel for Respondent No. 1 argued that there are concurrent findings of facts recorded by the Courts below and there is no occasion to interfere in such findings by this Court in exercise of revisional jurisdiction unless the same are proved to be result of misreading and non-reading of evidence on record. The scope of Revision is limited and a Revisional Court may not investigate the facts or exercise its jurisdiction on the basis of facts never disclosed or relied upon before the subordinate Courts to substitute the concurrent decisions merely because another view is possible. Reliance was placed on cases titled, “Muhammad Fareed Khan v. Muhammad Ibrahim etc.” (2017 SCMR 679); “Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others” (PLD 1970 Lahore 412); and “Malik Muhammad Hussain v. Saadullah Khan” (2014 CLC 311).

21. He stated that the claim of Respondent No. 1 is simple and straightforward based on a registered Agreement regarding the Property. The Petitioners did not plead in the written statement that Respondent No. 1 as an Advocate procured their signatures on blank papers and used the same for execution of the Agreement. Rather, in paragraph No. 3 of the written statement, the Petitioners claimed that they sold a tube-well to Respondent No. 1 through the Agreement and executed a receipt of Rs. 50,000/- which means that the Agreement, the contractual relationship and engagement of the Petitioners with Respondent No. 1 was admitted along with the receipt of consideration. Respondent No. 1 specifically alleged in paragraph No. 3 of the plaint that possession has been transferred to him which fact was not denied by the Petitioners in their written statement. As per Article 103 of the Qanoon-e-Shahadat Order, 1984 (the “QSO”), Respondent No. 1 as plaintiff was under a legal obligation to prove execution of the Agreement only with respect to his suit for specific performance. As such, Respondent No. 1 duly discharged his onus to prove the Agreement and receipt of sale consideration. According to Articles 117, 118 and 103 of the QSO, the onus to prove fraud, intimidation, undue influence, illegality, want of due execution, want of capacity, mistake or any separate oral agreement is on the person alleging the same but the Petitioners did not discharge such onus.

22. Respondent No. 1 took possession of the Property in terms of Section 53-A of the Transfer of Property Act, 1882. The Agreement was attested by marginal witnesses as required under Article 79 of the QSO. Respondent No. 1, scribe, three marginal witnesses, stamp vendor and official witnesses consistently deposed regarding various aspects of the transaction including the execution of the Agreement, the date, time and place of its execution, payment of part consideration in their presence to the Petitioners and transfer of possession of the Property to Respondent No. 1. These facts were not controverted even in cross-examination since no suggestion was put to the witnesses in this regard. A registered contract also carries a presumption of payment of consideration under Section 25 of the Contract Act, 1872. Reliance was placed on case titled, “Munawar Hussain etc. v. Amanat Ali etc.” (NLR 2007 Civil 395). It was submitted that Respondent No. 1 firstly claimed possession through the Agreement and secondly, through the contents of the plaint, whereafter, the fact of possession in his favour was proved through witnesses, Khasra Girdawari and Jamabandi. The fact of possession was finally proved when Patwari (PW-12) appeared along with record and confirmed the possession of Respondent No. 1 over the Property, thereby, disproving the sole document, that is Khasra Girdawari (Ex. D-1) produced by the Petitioners.

23. Learned counsel for Respondent No. 1 added that there is no bar in the law for an Advocate to be a witness to the transaction or the Agreement. The terms, “related witness” and “interested witness” are two different concepts. A witness may be related but should not be an interested witness. In the instant case, there is no evidence on record to show that witnesses of Respondent No. 1 were interested witnesses. There is no suggestion to the effect that the Advocates were interested witnesses or they acted fraudulently or with any mala fide intention or were otherwise not trustworthy. Reliance was placed on case titled, “Abdul Rahim v. Mukhtar Ahmad and 6 others” (2001 SCMR 1488). Learned counsel also submitted that Petitioner No. 1 was not a Parda Nashin lady. He stated that Petitioners No. 1 & 2 were related to each other as mother and son, respectively. The mother had 1/8th share and son had 7/8th share in the Property. The mother was accompanied by her educated son who was matriculate which fact was proved through production of additional evidence regarding school record and teachers of Petitioner No. 2. As such, Petitioner No. 1 had advice of her son and even brother of her husband was present when the Agreement was attested by Notary Public. Hence, the plea of Parda Nashi lady was not relevant in view of law enunciated in cases titled, “Mst. Zeeshan Zehra v. Muhammad Abdul Salam and 5 others.” (2012 CLC 612); “Mst. Rahat Begum v. Syed Hashmat Ali Shah through Legal Representatives and others” (2004 CLC 1459); and “Sughran Bibi v. Mst. Aziz Begum and 4 others” (1996 SCMR 137).

24. Repelling the argument of wrong or misdescription of the Property as stated in the Agreement vis-à-vis the plaint, learned counsel for Respondent No. 1 stated that the plea is belated and frivolous. In the instant case, the description of the Property is in line with that of the plaint, the Agreement, the revenue record and oral evidence on record in terms of Khewat number, Khatooni number, Lot number, Square number and Chak number. The minor discrepancies pointed out by the Petitioners are on account of the fact that due to Regulations of the Colony Department, the access land was slashed from the allotment and retained up to the subsistence holding, i.e. 100 Kanals and Conveyance Deed was executed, accordingly. Respondent No. 1 had purchased the total allotted land measuring 100 Kanals and there was never any ambiguity regarding the identity of the Property. Responding to the allegation of inadequacy of sale consideration, he submitted that the consideration of the Property as agreed between the parties was not inadequate and consent to the Agreement was freely given. The Property at the time of the Agreement was banjar and underground water was unfit for agricultural use. The Petitioners did not produce any proof of inadequacy of sale consideration and failed to discharge the onus of proof in this regard. He provided certified copies of mutation No. 459 dated 06.01.1999 and mutations No. 326 & 328 for the year 2002 & 2003 to demonstrate that land in the concerned revenue estate was sold for Rs. 24,860/- per Acre at the relevant time. As such, he pleaded that the impugned Judgments and Decrees are well reasoned and based on correct and true appreciation of evidence and law.

25. Arguments were heard and evidence on record was duly scrutinized with the able assistance of learned counsels for the parties in light of referred case law. Their due assistance is candidly acknowledged and highly appreciated by this Court.

26. The main controversy is encapsulated in issues No. 5 & 6. The former pertains to due execution of the Agreement for total consideration of Rs. 300,000/- against earnest money of Rs. 50,000/-, whereas, the latter is regarding entitlement of Respondent No. 1 to the decree for specific performance of the Agreement.

27. Respondent No. 1 while appearing as PW-1 reiterated the contents of the plaint. He stated that the entire transaction was undertaken in presence of the witnesses including payment of the earnest money which fact was admitted by the Petitioners before the Sub-Registrar. He also confirmed that possession of the Property was handed over to him. He deposed that all expenses for securing ownership rights regarding the Property were borne by him. After the grant of proprietary rights regarding the Property, the Petitioners were specifically contacted for payment of remaining sale consideration which was denied. During cross-examination, Respondent No. 1 admitted that he is an Advocate working in the chamber of Ch. Yousaf Ferozpuri, Advocate and had pursued the matter of grant of proprietary rights of the Property. He deposed that a tube-well was installed at the Property but it was dismantled and removed by the Petitioners. PW-2 as scribe of the Agreement confirmed that the Agreement was drafted by him on the instructions of the parties and they as well as the witnesses executed the Agreement in his presence. Earnest money was paid in presence of the marginal witnesses. Stamp paper was duly purchased for this purpose and he identified the parties. PW-4 and PW-7 also testified in favor of Respondent No. 1 in their capacity as marginal witnesses. They categorically confirmed the execution and contents of the Agreement which was stated to have been executed by the parties in their presence and they witnessed the same. PW-3 entered the witness box as son of the third marginal witness, namely, Rasheed Anwar, Advocate. He acknowledged and recognized the signatures of his father on the Agreement. Similarly, the testimony of Stamp Vendor also favored Respondent No. 1 who deposed that at the back of stamp paper, Petitioners No. 1 and 2 affixed their thumb impression and signature, respectively who were identified by Ch. Muhammad Yousaf who also affixed his signature on the back of the Stamp Paper. Sub-Registrar appeared as PW-9 and Registry Moharrar as PW-10. They also testified the validity and authenticity of the Agreement. The Agreement (Ex. P-1) and receipt (Ex. P-2) regarding payment of earnest money were duly exhibited.

28. Respondent No. 1 had specifically claimed in the plaint that possession of the Property was handed over at the time of execution of the Agreement. The contents of the Agreement itself recorded the said fact. The Petitioners never denied this fact in their written statement. Petitioner No. 1 in her deposition conceded that Respondent No. 1 was in possession of the Property for the last 7 to 8 years. Additional evidence tendered by Respondent No. 1 confirmed his possession on the basis of oral testimony of Patwari and production of Khasra Girdawari. As such, Respondent No. 1 successfully proved his possession qua the Property.

29. Petitioner No. 1 appeared as DW-1 and submitted that after the death of her husband, she engaged Respondent No. 1 for preparation of Conveyance Deed. She denied execution of the Agreement regarding the Property and reiterated her version taken in the written statement that she sold a tube-well to Respondent No. 1 against consideration of Rs. 87,000/- and admitted receipt of Rs. 50,000/-. She claimed that balance amount of Rs. 37,000/- is still pending towards Respondent No. 1. As such, the receipt of Rs. 50,000/- from Respondent No. 1 was admitted by the Petitioners in the written statement as well as in her deposition regarding sale of tube-well. She importantly stated that the agreement of sale of tube-well took place in the presence of Mashkoor Wattoo and Sharif Wattoo. As such, she admitted the Agreement but claimed exception that it was for the sale of tube-well. Hence, the onus to prove the receipt of Rs. 50,000 on account of sale of tube-well rested upon the Petitioners which was not discharged. The witnesses regarding transaction of sale of tube-well were cited by Petitioner No. 1 herself yet such witnesses were not produced. Even Petitioner No. 2 as owner to the extent of 7/8th share in the Property did not enter the witness box without any plausible explanation regarding his absence. As such, the best evidence was withheld by the Petitioners to prove their counter stance in terms of Article 129(g) of the QSO. For reference see case titled, “Dilshad Begum v. Mst. Nisar Akhtar” (2012 SCMR 1106). Further, no action for recovery of remaining amount of Rs. 37,000/- for the alleged sale of tube-well was initiated by the Petitioners against Respondent No. 1.

30. There is no doubt that the relationship between a counsel and client is privileged and sacred but the existence, nature, scope, time of initiation and termination of such relationship was neither particularly pleaded nor conclusively proved by the Petitioners. No power of attorney was exhibited in this behalf. There is no evidence that there was any separate pending cause of the Petitioners regarding which Respondent No. 1 acted as their counsel since the Agreement itself conferred specific rights and powers to Respondent No. 1 to pursue the matter of allotment with the Governmental authorities regarding grant of proprietary rights in favor of the Petitioners. Later, through C.M. No. 2167-C/2021, a photocopy of power-of-attorney was placed on record which though has no evidentiary value, is even otherwise dated 25.03.2003 i.e. after the date of execution of the Agreement. More so, when it was acceptable to the Petitioners to have entered into a transaction for sale of tube-well with Respondent No. 1, they were estopped to question the transaction regarding sale of proprietary rights of the Property. Further, the mere fact that most of the witnesses were Advocates does not by itself lead to any adverse inference as Advocates are not barred to witness a transaction. Rather, it was quite natural as the Agreement was executed in the vicinity of the District Courts. The credit worthiness or truthfulness of the witnesses was not questioned during their testimonies. In case titled, “Muhammad Ilyas v. Ghulam Muhammad and another” (1999 SCMR 958), it was held that “it is settled law that a witness who comes in the witness-box is presumed to be truthful unless this presumption is rebutted in the cross-examination by showing the features in his testimony rendering him untruthful”. Hence, it was not proved that Respondent No. 1 as Advocate had defrauded the Petitioners by executing the Agreement.

31. Petitioner No. 1 further testified that she did not know regarding affixation of her thumb impression on the Agreement and that Respondent No. 1 as counsel took her thumb impressions on different blank papers. She also stated that Petitioner No. 2 is her son who is illiterate and did not affix signature or thumb impression on the Agreement. In this context, it was attempted to argue that Petitioner No. 1 was a Parda Nashin lady and Petitioner No. 2 was illiterate, and as such, have been defrauded through the execution of the Agreement which was actually made for the sale of tube-well. The deposition to this extent was beyond pleadings. Such averments were never taken in the written statement and no particulars of fraud were specified. There is no independent evidence on record to corroborate and substantiate the statement. Moreover, additional oral evidence produced by Respondent No. 1 proved that Petitioner No. 2 was not an illiterate person and as such, independent advice was available to Petitioner No. 1. There is also evidence on record to suggest that Petitioner No. 1 was accompanied by brother of her husband and her son in whose presence the Agreement was attested by notary public. Accordingly, though Petitioner No. 1 did not claim herself to be a Parda Nashi lady yet even if she was to be so regarded, she had trustworthy and reliable independent advice with respect to the contents of the Agreement. The act of registering the Agreement also establishes that there was no intention to keep the Agreement as secret or confidential.

32. The description of the Property was compared as provided in the Agreement and in the plaint. There were only minor discrepancies regarding Killa numbers. However, the Property was sufficiently described in terms of Khewat number, Khatooni number, Lot number, Square number and Chak number. There was never any ambiguity in the identity of the Property throughout the lis. Such a plea was never taken in the written statement or in the deposition of Petitioner No. 1. The Conveyance Deed regarding the Property was duly exhibited. The Petitioners had no other Property in the concerned revenue estate except the Property. Even the Agreement carried the word “Kam-o-Baish” meaning more or less 100 Kanals. As such, the Property was fully identifiable with reasonable certainty. Hence, the objection to this effect is immaterial and the Agreement did not fall under Section 21(c) of the SRA which stipulates that a contract cannot be specifically performed whose terms the Court cannot find with reasonable certainty.

33. The argument that the Agreement scribed by a lawyer instead of a licensed Deed Writer is not worthy of evidentiary value, is misconceived. In the instant case, the Agreement was duly proved through marginal witnesses and other witnesses including the scribe of the Agreement, stamp vendor, Sub-Registrar and Registry Moharrar. The case law cited by the learned counsel of the Petitioners is clearly distinguishable for the reason that solid, reliable and cogent evidence was brought on record to establish the due execution of the Agreement and its contents. The requirements of Article 79 of the QSO were fulfilled in the instant case.

34. Section 12 of the SRA stipulates that specific performance of a contract is a discretionary relief. The relief is permissible in terms of its Clauses (b) and (c), when there exists no standard for ascertaining the actual damage caused by non-performance of the act agreed to be done or when the act agreed is such that pecuniary compensation caused by non-performance would not be considered as an adequate relief. An explanation thereto proclaims that unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. Section 22 of the SRA provides that the discretion of the Court should not be exercised arbitrary but judiciously based on sound and reasonable principles in a manner that it is capable of correction by a Court of appeal. In this behalf, it was urged that this Court should reverse the grant of specific relief in terms of explanation I of Section 22 of the SRA since the circumstances under which the Agreement is made are such which give Respondent No. 1 an unfair advantage over the Petitioners though there may be no fraud or misrepresentation on the part of Respondent No. 1. This Court has already concluded above that the evidence on record does not prove that Respondent No. 1 had an unfair advantage over the Petitioners merely because he was an Advocate. Similarly, the plea of inadequacy of sale consideration was not established by the Petitioners by producing evidence in this regard within the scope and mandate of Section 28(a) of the SRA which permits refusal of specific performance of a contract to a party on the ground of grossly inadequate consideration with reference to state of things existing at the date of the contract if the same either by itself or coupled with other circumstances establishes fraud or undue advantage vis-à-vis the other party. No evidence regarding prevailing market value in the concerned revenue estate was brought on record by the Petitioners. No fraud or undue advantage was proved on record. Rather, on the other hand, Jamabandi brought on record proves that the Property at the time of the Agreement was banjar. DW-1 herself admitted that canal water was not sanctioned for the Property while sub-soil water was unfit for agricultural use. Importantly, at the time of the Agreement, the Petitioners were not owners of the Property and there was a risk as to whether the allotment of the Property would ever mature or culminate into complete ownership. Accordingly, the Petitioners failed to demonstrate that the sale price was inadequate. In case titled, “Irshad Hussain v. Ijaz Hussain, etc.” (NLR 1994 SCJ 134), the Apex Court held that mere inadequacy of sale price is not a ground for refusing specific performance of a contract when the same is otherwise proved since discretion vested with the Court must be exercised judiciously.

35. Preponderance of evidence on record establishes that the Agreement was duly executed in accordance with law against payment of earnest money. Respondent No. 1 demonstrated part performance of the Agreement and his bona fide, readiness and willingness to perform the Agreement by depositing the remaining sale consideration in Court in compliance with the directions of the Court. As such, the contention that Respondent No. 1 is not entitled to grant of specific performance of the Agreement since he did not deposit remaining sale consideration on the first date of hearing is misconceived in view of the law laid down in case titled, “Muhammad Asif Awan v. Dawood Khan and others” (2021 SCMR 1270). There are concurrent findings recorded by the Courts below to this effect. In the absence of any misreading and non-reading of evidence, the same are liable to be maintained. For reference see case titled, “Muhammad Idrees and others v. Muhammad Pervaiz and others” (2010 SCMR 5). The case law relied upon by the Petitioners is distinguishable and is not applicable to the peculiar facts and circumstances of the case. It is trite law that each case must be decided on the basis of its own facts. Hence, Respondent No. 1 has lawfully been held entitled to specific performance of the Agreement by the Courts below.

36. The Honorable Supreme Court of Pakistan in case titled, “Malik Bahadur Sher Khan v. Haji Shah Alam and others” (2017 SCMR 902) while deliberating upon time as essence of the contract took notice of prevailing ground reality and emphasized that in the twenty first century, it would be unfair, unjust and even inequitable to not take into account the fact that every passing day brings a decrease in the value of rupee and a manifold increase in the prices of land and as such, ordered an additional payment of a specified amount to the vendor against return of earnest money. In innumerable cases, the Apex Court while fashioning discretionary relief, has employed equitable approach in transactions of immovable property to strike a balance between the financial interests of a buyer and a seller depending upon the facts and circumstance of each case. The exercise of such discretion is within the mandate and ambit of the SRA. If applied properly, timely, justly and fairly, it can also help resolve property disputes between the parties swiftly. If at the end of protracted litigation windfall gains in favor of one party at the cost of other party are eliminated or minimized through a balancing act of the Court in exercise of discretion, it will discourage protracted litigation being futile and would act as an incentive for the parties to settle their mutual claims expeditiously. Reliance is placed on cases titled, “Muhammad Hussain and others v. Dr. Zahoor Alam” (2010 SCMR 286) and Mst. Rehmat case (supra).

37. In the instant case, earnest money was merely Rs. 50,000/- against remaining sale consideration of Rs. 250,000/- which was payable at the time of transfer of the Property after the date of execution of Conveyance Deed on 31.03.2004 which was eventually paid on 18.12.2006 under the directions of the Court. As such, there is a gap of about 32 to 33 months. Further, Respondent No. 1 enjoyed possession of the Property since the date of the Agreement. Accordingly, Respondent No. 1 is directed to pay an additional amount of Rs. 1,500,000/- as compensation for delayed payment and continued possession to the Petitioners.

38. During the pendency of this Civil Revision, Respondent No. 2 was allowed to become a party by virtue of acceptance of C. M. No. 638/2018 under Order I, Rule 10 of the Code of Civil Procedure, 1908 (the “CPC”) with consent of the parties vide order dated 12.10.2021 and was heard, accordingly. Writ Petitions No. 483 of 2020 and 9055 of 2019 were filed by Respondent No. 2 against the Petitioners and Respondent No. 1.

39. W.P. No. 483/2020 was directed against the impugned Order dated 21.10.2019, whereby, Additional District Judge, Sahiwal was pleased to dismiss an Application of Respondent No. 2 under Section 12 (2) of the, CPC seeking to set aside the Judgments and Decrees dated 31.05.2016 and 12.09.2017 passed in favor of Respondent No. 1 and against the Petitioners. W.P. No. 9055/2019 was instituted against the impugned orders dated 31.07.2018 and 01.03.2018, whereby, an Objection Petition of Respondent No. 2 under Section 47 read with Section 151 of the CPC in the pending Execution Petition of Respondent No. 1 to execute the Judgment and Decree dated 31.05.2006 against the Petitioners was concurrently dismissed by the Courts below. It is noted that both the constitutional Petitions were not competent as appropriate remedy by way of Civil Revision was available under the law and accordingly, are converted into Civil Revisions in view of law enunciated in case titled, “Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others” (2017 SCMR 118).

40. The common facts in both the Petitions alleged by Respondent No. 2 are that an agreement to sell dated 01.12.2001 (the “First Agreement”) regarding sale of proprietary rights of the Property was executed between the Petitioners and Respondent No. 2 against total sale consideration of Rs. 3,750,000/- out of which Rs. 2,000,000/- was paid as earnest money at the time of execution of First Agreement and balance amount of Rs. 1,750,000/- was payable at the time of transfer of the Property in the name of Respondent No. 2 after registration of Conveyance Deed in favor of the Petitioners by the Provincial Government. Further, Respondent No. 2 was responsible to bear complete expenses including payment of lease money and public dues regarding the Property till issuance of Conveyance Deed. As such, the Petitioners received different amounts from Respondent No. 2 from time to time. Eventually, Conveyance Deed was issued on 31.03.2004 followed by mutation No. 353 dated 09.08.2004. Thereafter, the Petitioners transferred the Property to Respondent No. 2 vide mutation No. 537 dated 16.11.2013 after obtaining an additional amount of Rs. 7,000,000/- .

41. In the Application under Section 12(2) of the, CPC, it was averred by Respondent No. 2 that he often remained outside the country on account of his professional engagements. Lately, he came to Pakistan and was shocked to know that Respondent No. 1 has obtained Judgments & Decrees dated 31.05.2016 and 12.09.2017 in his favor regarding the Property. The same are liable to be set aside for the reason that the First Agreement in favor of Respondent No. 2 is prior in time and still intact on the basis of which mutation No. 537 dated 16.11.2013 has been duly attested in favor of Respondent No. 2. Hence, the Agreement in favor of Respondent No. 1 is based on fraud and misrepresentation and as such, the impugned Judgments & Decrees in favor of Respondent No. 1 and against the Petitioners could not have been passed. The Petitioners supported the version of Respondent No. 1.

42. The Appellate Court vide impugned Order dated 21.10.2019 held that since the aforesaid Judgments are also impugned in the titled Civil Revision and an Application of Respondent No. 2 to become a party thereto is pending before this Court, therefore, the Application under Section 12(2) of the CPC can be best adjudicated by this Court.

43. The bare contents of the Application under Section 12(2) of the CPC clearly establish that the Application was collusive in concert with the Petitioners in an attempt to frustrate the concurrent Judgments and Decrees passed by the Courts below in favor of Respondent No. 1. There is no allegation of fraud or misrepresentation against the Petitioners or Respondent No. 1 or revenue officials. There is no averment that Respondent No. 1 was aware of the First Agreement and intentionally or fraudulently did not implead Respondent No. 2 as party to the suit. In fact, the Petitioners never disclosed the existence of any prior transaction including the First Agreement in their written statement yet got attested mutation No. 537 dated 16.11.2013 in favor of Respondent No. 2. The alleged existence of the First Agreement was disclosed for the first time when this Application was filed. It is settled law that an agreement to sell does not create any right unless it is performed by the parties themselves or through the Court. Admittedly, the impugned Judgments and Decrees dated 31.05.2016 and 12.09.2017 were rendered when the alleged First Agreement was not performed between the Petitioners and Respondent No. 2 and the latter till date did not file any independent suit for specific performance against the Petitioners seeking performance of the First Agreement. As such, the allegation of mere existence of the First Agreement in favor of Respondent No. 2 is meaningless in contrast to the Agreement in favor of Respondent No. 1 regarding which specific performance was sought through the Court and ordered as such, as depicted from the impugned Judgments and Decrees. Respondent No. 2 failed to disclose any valid reason for not filing the suit seeking specific performance of the First Agreement. This is especially so since during the intervening period between the issuance of Conveyance Deed dated 31.03.2004 and filing of Application under Section 12(2) of the CPC on 02.02.2018, Respondent No. 2 never required the Petitioners to perform the First Agreement. The performance, however, was claimed through attestation of oral sale mutation No. 537 dated 16.11.2013 in favor of Respondent No. 2. In the absence of suit seeking performance of the First Agreement between the Petitioners and Respondent No. 2 and in the presence of pending lis for specific performance between the Petitioners and Respondent No. 1, mutation No. 537 dated 16.11.2013 at best can be considered as subsequent purchase which if taken in isolation from the First Agreement is hit by the principle of lis pendens which entails that the subsequent purchaser is merely a representative of the seller and has no independent right or footing. The August Supreme Court of Pakistan has held that even innocent subsequent purchaser has no independent right. He may have purchased the Property at his own risk and cost and will sink and swim with the Petitioners. Reliance is placed on cases titled, “Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others” (PLD 2011 Supreme Court 905); and “Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others” (PLD 2002 Supreme Court 303).

44. It is noted that since the initiation of the lis on 29.04.2006 between the Petitioners and Respondent No. 1, various status quo orders were passed by the Courts regarding the Property which were recorded in revenue record vide Rapt No. 283 dated 03.05.2006 and Rapt No. 266 dated 02.04.2010. Revenue record in the nature of Rapt Roznamcha, Jamabandi and Khasra Girdawari, ipso facto, reveal the existing litigation from different angles. It is, therefore, inconceivable that Respondent No. 2 was not aware of the pending litigation between the Petitioners and Respondent No. 1. It clearly establishes that the said mutation was attested in favor of Respondent No. 2 in collusion with the Petitioners and revenue officials. Mere occasional traveling out of country is not a valid reason advanced by Respondent No. 2 to plead ignorance from fact of existing litigation regarding the Property or failure to file the suit for specific performance against the Petitioners. Article 150 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) unequivocally proclaims that full faith and credit shall be given to public acts and record as well as to judicial proceedings. Public revenue record evidencing litigation regarding the Property was available before the date of attestation of alleged mutation by the Petitioners in favor of Respondent No. 2 which was intentionally, deliberately and fraudulently attested to circumvent, defeat and frustrate the judicial pronouncements in the nature of impugned Judgments and Decrees passed in favor of Respondent No. 1. The constitutional dictate of according full faith and credit to public record and judicial proceedings means that they are sacrosanct, credit worthy and unimpeachable unless the party claiming exception thereto can establish otherwise through cogent, reliable and irrefutable reasons. This in turn implies that in the absence of any evidence to the contrary, mandate of Article 150 of the Constitution in giving full faith and credit to public record and judicial pronouncements must prevail. One facet of this constitutional principle is that where the fact of pending litigation is duly incorporated in relevant public record for the information of public at large, the onus is upon the beneficiary of any subsequent transaction undertaken in defiance or violation of such public record to demonstrate to the satisfaction of the Court, the reasons which precluded him from undertaking the required due diligence or his lack of knowledge regarding the same. Hence, Respondent No. 2 had express knowledge of pendency of litigation between the Petitioners and Respondent No. 1 at least at the time of attestation of mutation No. 537 dated 16.11.2013 and as such, his application under Section 12(2) of the CPC dated 02.02.2018 was also barred by time.

45. No element of fraud, misrepresentation, concealment or want of jurisdiction is established from the contents of the Application which is clearly beyond the scope and mandate of Section 12(2) of the CPC. If such an application is allowed, perhaps no claim of any party can succeed as each time a prior collusive transaction can be alleged to defeat the duly adjudicated claim. Hence, this Application is dismissed being collusive, barred by time and beyond the purview of Section 12(2) of the, CPC.

46. In Writ Petition No. 9055/2019, it was submitted that Respondent No. 1 filed an Execution Petition to execute the Judgment and Decree dated 31.05.2016 and an order dated 10.07.2018 was passed by the Executing Court in compliance of which a mutation No. 592 dated 20.07.2018 was attested in favor of Respondent No. 1 to give effect to the aforesaid Judgment and Decree. This prompted Respondent No. 2 to file an Objection Petition on 20.07.2018 under Section 47 of the, CPC seeking withdrawal of mutation No. 592. He stated that he is in possession of the Property and after receiving threats from Respondent No. 1 regarding his possession, he obtained a stay order dated 18.07.2018 from the Court of Additional District Judge, Sahiwal with respect to his application under Section 12(2) of the CPC which was also incorporated in Revenue Record. He came to know that during the pendency of the said stay order and the titled Civil Revision before this Court, Respondent No. 1 obtained order dated 10.07.2018 from the Executing Court and in connivance with the Revenue Officials got attested mutation No. 592 dated 20.07.2018 in his favor which is unlawful and liable to be set aside.

47. Mutation No. 537 dated 16.11.2013 was attested in favor of Respondent No. 2 during the pendency of litigation between the

Petitioners and Respondent No. 1. Conversely, mutation No. 592 dated 20.07.2018 was attested in favor of Respondent No. 1 under lawful orders passed by the Executing Court. Hence, the Executing Court aptly dismissed the Objection Petition by applying the principle of lis pendens with respect to oral sale mutation No. 537 dated 16.11.2013 attested in favor of Respondent No. 2 and ordered it to be cancelled on 10.07.2018. The Appellate Court even observed that no injunctive order was passed by it and as such, the Executing Court has committed no illegality or irregularity while passing the order under appeal.

1. For the reasons recorded in the above paragraphs, it is evident that the Objection Petition of Respondent No. 2 was not maintainable. He was not a party to the suit between the Petitioners and Respondent No. 1. The latter had a valid and executable Decree in his favor and was entitled to seek its execution in accordance with law against the Petitioners. Mutation No. 537 dated 16.11.2013 attested in favor of Respondent No. 2 was collusive and hit by the principle of lis pendens. Respondent No. 2 had failed to avail appropriate legal remedy against the Petitioners seeking performance of his alleged claim based on First Agreement. Accordingly, the impugned orders dismissing the Objection Petition are unexceptional.

2. The upshot of the above discussion is that the titled Civil Revision is partially accepted, the impugned Judgments and Decrees are modified in the manner that suit for specific performance of the Agreement of Respondent No. 1 is decreed subject to payment of compensation of Rs. 1,500,000/- (Rupees One Million Five Hundred Thousand only) by Respondent No. 1 to the Petitioners on or before 15 April 2022 before the Executing Court, failing which the suit shall be deemed to have been dismissed. The connected Writ Petitions No. 9055/2019 and 483/2020 are dismissed. No order as to costs.

(Y.A.) Revision petition partially accepted

PLJ 2023 Lahore 280

Present: Jawad Hassan, J.

MUHAMMAD NAEEM MIR--Petitioner

versus

FEDERATION OF PAKISTAN etc.--Respondents

W.P. No. 70991 of 2022, decided on 21.11.2022.

Constitution of Pakistan, 1973--

----Arts. 15, 16, 18 & 199--Long march--Violation of right of business--Effecting supply of goods--Direction to petitioner--Obligation of police--Democratic aspirations of people--Long March is based on fundamental right of democracy in terms of Article 16 of Constitution--Due to Long March, main roads, including GT Road and Motorways, on north Pakistan are blocked--Long March is affecting supply of goods to north side of GT Road and other connected areas as pointed out by counsel for Petitioner--Court has already directed Petitioner to move an application before Respondent No. 4/I.G of Police Punjab and if he files such application, same will, of course, be dealt with by Respondent No. 4 in accordance with relevant provisions of Police Order, 2002--Police has an obligation and duty to function according to mandate of Constitution, law, and democratic aspirations of people--Petitions disposed of. [Pp. 282, 284 & 285] A, C, D, E & F

PLD 2020 Lahore 407, PLD 2022 Lahore 148, 2021 CLD 639, 2021 MLD 370 and 2020 CLC 157 ref.

Constitution of Pakistan, 1973--

----Preamble--State shall exercise its powers and authority through chosen representatives of people and by doing so, principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed. [P. 282] B

Mr. M. Asad Manzoor Butt, ASC for Petitioner alongwith Mr. Afzaal Hussain Hashmi, Advocate.

Mirza Nasar Ahmad, Additional Attorney General for Respondent No. 1 alongwith Malik Javaid Akhtar, Additional Attorney General-I, Mr. Nasir Javaid Ghumman, Deputy Attorney General and Mazhar Yasin Khan Wattoo, Joint Secretary, Federal Ministry of Interior.

Miss Maria Farooq, AAG alongwith Rai Shahid Saleem Khan, AAG.

Date of hearing: 21.11.2022.

Order

Pursuant to orders dated 11.11.2022 and 14.11.2022, Mirza Nasar Ahmad, Additional Attorney General for Pakistan has informed that recently, on similar issue the Hon’ble Supreme Court of Pakistan has disposed of a human rights case titled “Kamran Murtaza versus Federation of Pakistan etc.” He next points out that a petition of similar nature is pending before the Hon’ble Chief Justice of the Islamabad High Court, Islamabad and another identical matter is also pending at Rawalpindi Bench of this Court.

1. This writ petition has been filed by the Petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) with two-fold prayer. One is to direct the Respondents to stop the protests, including the Long March, or make arrangements for the protection of life and liberty of business community as well as the public at large and his second prayer is to direct the Respondents to take appropriate steps for the betterment of law & order situation in the country by arranging an alternate open place outside the cities for lawful demonstration, protests or processions by the political parties.

2. On the previous date of hearing, i.e. 14.11.2022, this Court observed that the Long March is based on the fundamental right of democracy in terms of Article 16 of the Constitution, scope of which has already been expanded in the judgment reported as Mian Ali Asghar versus Government of the Punjab and others (2020 CLC 157), by holding (in paragraph-9) that “right to peaceful protest and procession is a fundamental right of all the citizens in a democratic country like ours.” The provisions of Article 16 of the Constitution are to be read with the preamble of the Constitution, which clearly narrates that the State shall exercise its powers and authority through the chosen representatives of the people and by doing so, the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by the Islam, shall be fully observed. The core contention raised by learned counsel, Mr. M. Asad Manzoor Butt, ASC, is that as the Petitioner is a businessman, therefore, due to the Long March being conducted by a political party known as “Pakistan Tehreek-e-Insaaf” (the “PTI”), not only his but also fundamental rights of other business community, as guaranteed under Article 18 of the Constitution, are being infringed.

3. Suffice to mention here that in Mian Ali Asghar Case (supra),this Court besides giving observations regarding the peaceful protest and procession being a fundamental right of all the citizens in a democratic country, has also held that “protesters who claim to espouse their cause often forget that their right to protest ends when other person’s right to free movement and right of trade/business starts.” In the said judgment, reference has also been made to the judgment of Kerala High Court in Jacob’s case (AIR 1993 Kerala 1), relevant portion [from paragraph-9] of which is given as under for ease of the matter:

“19. Professions of rights, distanced from realities of life, would make liberties unreal. The liberties of some, could prove to be the end of the liberties of others. The loquacious may silence the meek. The State must protect the mute, the unorganized and inarticulate, against onslaught of enthusiasm of the vocal or the vociferous. It is no use saying hosannas to freedom, unless such freedom is real. Real they will be, only if there is an ordered society. Order to liberty, is what oxygen to life is. There is no basis to think that freedom and order are not compatible. They are complementary. Liberty will be lost in excess of anarchy, if there is no order. Regulation and suppression are not the same in purpose or result. Time it is to think, whether un-disguised assertions of rights by some, have not imperiled rights of others. If one were to recognize right to protest by blocking roads and railways, it is recognition of a right, to deny rights of the peaceful citizens. Acorns of today, will grow into oaks of tomorrow.”

Moreover, the right to democracy and the right to peaceful protest or procession have been further developed by this Court in the case of a protest on Mall Road [from Mian Mir Bridge to Post Master General, Office, Mall Road], reported as Mian Ali Asghar versus Government of the Punjab and others (2021 MLD 370) in which this Court, by relying on the principles settled in the earlier judgment reported as 2020 CLC 157 (supra), issued certain directions in respect of declaring the aforesaid area as “Red Zone”, in result thereof, a Committee was formed by concerned hierarchy of the Provincial Government to make proper legislation and ultimately, a draft of “the Punjab Red Zone (Establishment and Security) Act, 2020” (the “Draft Act”) was prepared but pursuant to subsequent meetings of (aforesaid) Committee, certain amendments were made in the Draft Act and then, final Draft was prepared and submitted to this Court known as “the Punjab High Security Zones (Establishment) Act, 2020” (the “Final Draft Act 2020”), on the basis of which, the said case was disposed of with certain substantial directions to the relevant Government Departments. The right of democracy has also been expanded by this Court in another issue of holding of “Jalsa” by a political party known as “Pakistan Muslim League” (the “PML”) in the case of Haris Bin Hassan Jang versus Federation of Pakistan and others (2021 CLC 413) in which it has been held “Article 16 of the Constitution clearly depicts that every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order.”

1. Another important aspect of the matter is that due to the Long March, the main roads, including the GT Road and Motorways, on north Pakistan are blocked, thus, violating fundamental right of business & trade (Article 18) as well as the right to freely move (Article 15) and in the judgment reported as Muhammad Tahir Jamal versus Government of Pakistan, etc. (PLD 2020 Lahore 407), this Court has already strengthened the scope of Article 15 of the Constitution by observing (in paragraph-16) as under:

“16. Article 15 of the Constitution provides that every citizen has a fundamental right to freedom of movement throughout Pakistan subject to restrictions imposed by the law. Providing an appropriate safe passage to travel throughout the country is a responsibility shouldered upon the state and the NHA created under the National Highway Authority Act, 1991 which was established for the very purpose of planning, development, operation and maintenance of the National Highways and strategic roads to provide safe, time efficient and better road facilities of international standards to travelers/ commuters /passengers so that they can exercise their right of movement in a more better way. Different phases of Motorways are also constructed by the NHA to undertake this very purpose at the level of utmost excellence because the NHA is custodian of the Highway assets of Pakistan’s road network and committed to provide a safe, modern and efficient transportation system.”

Right to free movement has also been discussed by this Court in the recent judgment reported as Muhammad Umais versus Cantonment Board Rawalpindi and others (PLD 2022 Lahore 148), relevant paragraph 42 of which is reproduced hereunder:-

“Article 26 of the Constitution commands that there must not be any discrimination to access the places of public entertainment or resort. However, the manner to access such places can be regulated for the purposes of managing the flow of traffic, which ultimately is a thing directly related to the interest and convenience of the public as required by Article 15 of the Constitution and laid down under Section 175 sub-section (K) of the Cantonment Act. It goes without saying that for the purpose of regulating traffic flow and to avoid traffic jams and gridlock situations, entry of vehicular access on a particular road can be controlled and regulated for the very purpose.”

It is also significant to mention here that the Long March is affecting the supply of goods to the north side of GT Road and other connected areas/cities, as pointed out by learned counsel for the Petitioner, and this Court has already protected the right of business by highlighting the scope of Article 18 of the Constitution in the case of M.C.R. (Pvt) Ltd, franchisee of Pizza Hut versus Multan Development Authority and others (2021 CLD 639) by discussing in detail the issue of foreign investment and the role of foreign investors in Pakistan. Relevant Paragraph-29 of the said judgment is reproduced hereunder for ease of the matter:

“29. Since the Pizza Hut is an international chain and entered into lease agreement with WASA, it is the duty of the Courts in Pakistan to see the rights of the parties and to protect their interest in order to build confidence of investors in Pakistan but at the same time the interest of government functionaries has also to be examined regarding financial interest of the Government.”

1. Be that as it may, on 14.11.2022 this Court has already directed the Petitioner to move an application before Respondent No. 4/Inspector General of Police Punjab and if he files such application, the same will, of course, be dealt with by Respondent No. 4 in accordance with relevant provisions of the Police Order, 2002 (the “Order”), preamble of which clearly states that the police has an obligation and duty to function according to mandate of the Constitution, law, and democratic aspirations of the people while Article 4 of the Order deals with the duties of police, including (i) protection of life, property and liberty of citizens [Article 4(1)(a)]; (ii) keep order and prevent obstruction on public roads and in public streets and thoroughfares at fairs and all other places of public resort and in the neighbourhood of and at the places of public worship [Article 4(1)(f)]; regulate and control traffic on public roads and streets [Article 4(1)(g)]; and prevent harassment of women and children in public places [Article 4(1)(r)] and moreover, administrative power of police is given in Article 10 of the Order read with the Police Act, 1861 (the “Act”) and the Police Rules, 1934 (the “Rules”). All the aforesaid aspects and the principles settled by this Court in the judgments cited above alongwith the verdict of the Hon’ble Supreme Court of Pakistan given in Kamran Murtaza Case (supra) will also be taken into consideration by Respondent No. 4 while dealing with the Petitioner’s application, which will be decided within one week of its filing.

Disposed of.

(Y.A.) Petition disposed of

PLJ 2023 Lahore 286

Present: Asim Hafeez, J.

Mst. MUKHTAR BEGUM, etc.--Petitioners

versus

Mst. MUMTAZ ASGHAR (deceased) through L.Rs., etc.--Respondents.

C.R. No. 3426 of 2011, decided on 30.3.2022.

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

----Ss. 12, 14 & 16--Suit for specific performance--Decreed--Concurrent findings--Sale of leasehold rights--Agreement to sell--Possession was delivered--Non-fulfilment of condition of sale-deed regarding raising construction--General power-of-attorney by heirs of deceased--Challenge to--Undisputedly, sale consideration agreed would remain unchanged--Despite non-fulfillment of a condition of raising construction – which failure could not torpedo enforceability of agreement -a decree for specific performance can, independently, be passed, based on consideration agreed for sale--Section 14 of Specific Relief Act 1877 is not attracted to facts of case, as no default was envisaged in agreement for not raising construction and no question of compensation to heirs of deceased arose, in wake of facts and circumstances of case--Conduct of petitioners is another relevant fact--Possession of property was delivered, and no effort was made to seek cancellation of agreement to sell, nor any notice issued by petitioners to express intention to terminate agreement--No illegality is envisaged upon decreeing suit for specific performance by invoking Section 16 of Act of 1877--Civil revision dismissed. [Pp. 291 & 292] A, B, C & D

2005 SCMR 1408 ref.

Sh. Usman Karim-ud-Din, Advocate for Petitioners.

M/s. Syed Ali Hassan and Rai Asif Mehmood Kharal, Advocates for Respondents No. 1(i) to 1(v).

Date of hearing: 25.1.2022.

Judgment

Instant Civil Revision is directed against concurrent findings/decisions, in terms whereof, suit for specific performance of agreement to sell, filed by the Respondent No. 1 – now represented through legal heirs, Respondents No. 1 (i) to 1 (v) -was decreed vide judgment and decree dated 03.11.2010, against which appeal filed by the petitioners was dismissed vide judgment and decree dated 24.09.2011.

1. Facts, essential for the adjudication of instant Civil Revision, are that Ch. Muhammad Khan – predecessor-in-interest of the petitioners -(“deceased”) held lease hold rights in the suit property – Plot No. 161, measuring 600 Yards in Cantonment Lahore, by virtue of duly registered lease deed, and confirmed by the Ministry of Defence (M&L Department) Rawalpindi. Deceased allegedly executed agreement to sell dated 13.01.1981, for sale of the leasehold rights, which was duly registered. The suit property was agreed to be sold against consideration of Rs. 150,000/-, out of which Rs. 149,500/- was paid and acknowledged at the time of execution of agreement and delivery of possession to the purchasers, i.e., Shuja K. Chaudhary (Respondent No. 2) and Mst. Tasneem Shuja (Respondent No. 3). Deceased, in acknowledgement of agreement to sell also executed General Power of Attorney dated 13.01.1981, duly registered and irrevocable, in favour of one Ghulam Mustafa, the father of Respondent No. 2. Respondents No. 2 and 3, jointly, executed agreement to sell dated 22.06.1981, duly registered document, in favour of one Mst. Mumtaz Asghar, represented through the heirs, Respondents No. 1(i) to 1(v). Consideration for agreement to sell, later in time, was Rs. 198,000/-, and out of which Rs. 197,000/- was paid to the Respondents No. 2 and 3. And further a Special Power of Attorney was also executed in favour of Mst. Mumtaz Asghar, dated 22.06.1981 by Ghulam Mustafa. Original lessee died in the year 1992, upon whose death the suit property devolved upon heirs, who allegedly executed General Power of Attorney dated 14.01.1999, favouring Petitioner No. 6 – impleaded as Defendant No. 8 in the suit. Alleging, failure on the part of the heirs of the deceased to transfer the property, and in the wake of execution of GPA dated 14.01.1999, Respondents No. 1(i) to 1(v) filed suit for declaration in March 1999, wherein plaint was rejected under Order VII Rule 11 of Code of Civil Procedure 1908 vide decision dated 17.04.2000, on the ground that declaratory suit was not maintainable, but suit for specific performance. Appeal filed by Respondents No. 1(i) to 1(v) was also dismissed on 04.10.2001. This led to the filling of suit for specific performance on 20.11.2001 against the present petitioners, seeking enforcement of the agreement to sell dated 22.06.1981. Notably, first purchasers, by virtue of agreement to sell dated 13.01.1981, had never questioned the authority of the Respondents No. 1(i) to 1(v) to seek enforcement of alleged interest(s) in the property. Claim was contested by the petitioners -legal heirs of deceased on the ground of failure to fulfil material condition of the agreement of 13.01.1981, requiring raising of construction upon the suit property, though execution of agreement to sell, General Power of Attorney, in favour of the Respondents No. 2 and 3, factum of substantially paid consideration and delivery of possession were not emphatically denied. Based on controversies, issues were framed, and evidence recorded. Upon conclusion of the trial, suit was decreed vide decree dated 03.11.2010, which was maintained by first appellate Court vide judgment and decree dated 24.09.2011. Hence, this Civil Revision.

2. Learned counsel appearing for the petitioners read out clauses 1, 2, 3, 4 and 7 of agreement to sell dated 13.01.1981 -Exh.P-2 -to highlight failure to raise construction, by the first vendee, asserting that condition precedent was not performed, and default continues. Learned counsel submits that even Respondents No. 1(i) to 1(v), subsequent vendees, in terms of agreement to sell dated 22.06.1981, also failed to fulfill condition, which default was fatal to the enforceability of the agreement. And no rights could be claimed under alleged agreement to sell and General Power of Attorney – as GPA replicates condition of raising construction. Learned counsel also raised objections to the maintainability of suit for not impleading necessary parties. Reference is made to the cases of Government of Balochistan, CWPP&H Department and others v. Nawabzada MIR Tariq Hussain Khan Magsi and others (2010 SCMR 115), Harsan v. Iqbal pervaiz and 9 others (2016 YLR 2516) and Tariq Shabeer v. Muhammad Ijaz (2007 YLR 1369).

3. Learned counsel for Respondents No. 1(i) to 1(v) supports the impugned judgments and decrees. Submits that execution of the agreement to sell dated 13.01.1981 was proved, and otherwise reliance on the terms and conditions of the agreement constitutes an acknowledgment qua its execution. Referred the case of Chiragh Din and another v. Akram Mohiuddin and 4 others (2008 MLD 252). Learned counsel submits that filing of a declaratory suit, in the first instance, and bare rejection of plaint does not bar filing of suit for specific performance, which was still within limitation from the accrual of cause of action. Learned counsel emphasized that respondents, on the strength of earlier agreement to sell and agreement to sell, favouring predecessor of respondents 1(i) to 1(v), are lawfully entitled to claim and enforce their interest(s) in suit property. Adds that possession was delivered to the Respondents No. 2 and 3 by virtue of earlier agreement, which was handed down to the Respondents 1(i) to 1(v) under agreement dated 22.06.1981, who are entitled to claim benefit of Section 53-A of the Transfer of Property Act, 1882. Learned counsel referred to the decision in the case of Syed Hakeem Shah (Deceased) through LRs and others v. Muhammad Idress and others (2017 SCMR 316). Further submits that agreement to sell was executed to sell the lease hold rights, which can be executed without prior permission, and permission can be sought at the time of transfer. Reference is made to the cases of Mst. Bhaghan and 2 others v. Sh. Muhammad Latif and 2 others (PLD 1981 Lahore 146), Sami Ul Haq v. Dr. Maqbool Hussain Butt and others (2001 SCMR 1053) and Mst. Umatul Mobeen v. Muhammad Aziz (2010 YLR 1216). Learned counsel for the Respondents No. 1(i) to 1(v) has drawn attention of the Court to document Exh.D-2 -(letter of 25.09.1997 at page 108) -to emphasize that plan for construction was submitted but not approved, as plot was in the name of legal heirs of deceased.

4. Both the counsels had referred to various clauses of the first agreement to sell -Exh.P-2, of which clauses 1, 2, 3, 4, 7 and 8 were repeatedly read, which are reproduced hereunder, for ease of reference,--

“1. That the total consideration money for the sale/transfer of the lease hold rights of the said plot along with its superstructures if any constructed thereon has been mutually agreed and decided and settled at Rs. 1,50,000.00 (Rs. one lac fifty thousand only) in cash & has been received in the following manner:-

“i) Rs. 10,000.00/- Rs. ten thousand only in cash as earnest money dated 31.12.1980.

ii) Rs. 1,39,500.00/- Rs. one lac thirty nine thousand five hundred only in advance dated 10.1.1981 in advance money.

iii) Rs. 500.00/- Rs. five hundred only will be paid at the time of registration before the Sub-Registrar.

1. That with a view to get building constructed thereon and whereas the party No. 2 has agreed to construct the same on their own expenses.

2. That Party No. 2 shall constructed the proposed building within the limited time allowed in the building lease according to the sanctioned plans. The Party No. 1 has delivered to the Party No. 2 the vacant possession of the said plot of land.

3. That on the Party No. 2 becoming the lessee of the said property as aforesaid, it will be the bounden duty of the Party No. 1 to do all and everything for the said plot of land sold with or without buildings thereon, transferred conveyed and registered in the name of Party No. 2 or their nominee or not and also to execute all such deeds and instruments which Party No. 1 may be called upon to execute for more fully and perfect securing aforesaid transfer of lease hold rights of the party…. The Party No. 1, however, bears all the expenses in this regard.

4. That after the party No. 2 has constructed the building on the plot noted above the Party No. 1 shall obtain the permission of the Department concerned for the transfer of the lease hold rights of plot and building constructed thereon in favour of Party No. 2.

5. That Party No. 1 shall obtain necessary clearance certificates from the Department concerned entirely at his own expenses and hereby undertakes to get the building lease transferred in favour of Party No. 2.

[Emphasis supplied]

1. Relevant clauses of General Power of Attorney dated 13.01.1981 read as under, “9. That after the completion and construction of the bungalow on the said land I shall have no right to sell, mortgage, gift or otherwise transfer the property except through my said aforesaid Attorney whose decision will be final. I shall not take possession of the property except with the willingness of my attorney only after paying all the expenses incurred by the said Attorney in construction of the houses/buildings and in improvement of the property.

2. In consideration of the services rendered and concern and interest of the attorney existing in the said property this General Power of Attorney shall be irrevocable.

Determination

1. One critical fact needs reference. Original lease deed contained condition of raising construction, which coincided with the condition incorporated in the agreement to sell. Timelines were provided in the lease deed for raising construction. What would be the effect of non-fulfilment of said condition of the lease deed, if any, is not the matter in issue before this Court. Notably, Ministry of Defence (Military Lands Cantonments) was not a party to the proceedings. This Court, therefore, refrains from commenting on the effect of not raising construction, in the context of requirements under the lease deed – since Respondents No. 1(i) to 1(v) have had to seek prior approval for at the time of effecting sale [their counsel had referred decisions that permission could be obtained at the time of sale, and not for agreement to sell]. This decision is restricted to determination of dispute regarding alleged rights claimed by the private parties – when deceased had agreed to sell lease hold rights. Clause 3 of the Agreement indicates the factum of timelines for raising the construction, by referring to building lease. Hence, effect of not raising construction, in terms of lease deed, is not subject of instant decision.

2. Fundamental question, in the wake of the submissions and the record, is whether agreements to sell 13.01.1981 and 26.06.1981 – subsequent being in favour of the Respondents No. 1(i) to 1(v) – are enforceable, in wake of non-performance of condition of raising construction upon the plot. And whether suit for specific performance can still be decreed despite non-fulfilment of the condition – claimed to be a requisite condition for effecting transfer.

Agreement to sell under reference contained two set of contractual obligations, the consideration part and condition of raising construction. As far as first part is concerned, admittedly, out of consideration of Rs. 150,000/-, only Rs. 500/- was payable, balance was paid since January 1981. Whether condition of raising of construction is fatal to the survival of the agreement to sell? Intentions are evident from the agreement, which did not provide consequences of default in case of failure to construct. Hence, failure to fulfil condition of construction would not jeopardize or frustrate material component, relating to the sale of lease hold rights, and enforceable per se irrespective of alleged failure to construct. There is another significant facet of the case. It is apparent that monetary consideration agreed was conclusive and final, which would remain unchanged, irrespective of raising of construction or not. Clause 1 of the agreement is clear, which included prospective construction as part of the consideration agreed. In terms of clause 2 of the agreement, vendee was responsible to raise construction at its own expense. Clause 4 indicates that transfer would be made upon construction. Hence, with or without construction, consideration price remains unchanged. Learned counsel for the petitioner was confronted to explain the effect of non-performance of condition regarding raising of construction and consequences for the petitioners, who had no plausible explanation. In fact, no prejudice would be caused to the seller/vendor, even if no construction was raised construction -which non-performance might create some issues in the context of terms of lease deed and effect whereof would be examined at relevant time by the authorities concerned. Learned counsel was asked that whether upon raising of construction, consideration of sale would appreciate, who conceded that it would not. Undisputedly, sale consideration agreed would remain unchanged. Controversy is crystalized, whether, in the facts and circumstances of the case, agreement to sell is still enforceable or not? Section 16 of the Specific Relief Act, 1877 provides an answer, which section is reproduced hereunder, for facility of reference, “16. Specific performance of independent part of contract. When a part of a contract which taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part”.

1. Section 16 of Specific Relief Act, 1877 is an exception to Section 17 of the Act, 1877 – which bars specific performance of part of the contract. It is evident from the perusal of the agreement that despite non-fulfillment of a condition of raising construction – which failure could not torpedo the enforceability of the agreement -a decree for specific performance can, independently, be passed, based on consideration agreed for sale. The advantages and disadvantages, in case of failure to construct had to be borne by the Respondents No. 1(i) to 1(v), exclusively. Case at hand comes within the scope of Section 16, ibid. And even otherwise non-fulfillment of condition to construct potentially or otherwise would not cause any damage to the petitioners, who had not denied the contractual arrangement for sale of lease hold rights – which otherwise provided no consequences of default in lieu of failure to construct.

Section 14 of Specific Relief Act 1877 is not attracted to the facts of the case, as no default was envisaged in the agreement for not raising construction and no question of compensation to the heirs of the deceased arose, in wake of the facts and circumstances of the case. Conduct of the petitioners is another relevant fact. Possession of the property was delivered, and no effort was made to seek cancellation of the agreement to sell, nor any notice issued by the petitioners to express intention to terminate the agreement. No illegality is envisaged upon decreeing the suit for specific performance by invoking Section 16 of Act of 1877. Scope of Section 16, ibid, has been discussed and elucidated in the case of ‘Sinaullah and others v. Muhammad Rafique and others’ (2005 SCMR 1408), relevant portion whereof is reproduced for ease of reference,--

“Partial specific performance can be ordered only in the cases strictly falling within the provisions of above Sections 14, 15 and 16. Only those contracts can be specifically enforced which are capable of division then the part which can be specifically performed can be ordered to be specifically enforced. However, if an agreement or contract is such which is an indivisible agreement/contract consisting of one single transaction not permitting splitting up of the transaction, then such a case would not be covered by Sections 14, 15 and 16 of the Specific Relief Act and the agreement or contract could not be ordered to be partially specifically performed”.

1. In the light of the ratio laid, it is held that in the absence of consequences for failure to construct, the agreement is enforceable by splitting consideration component from the obligation of condition of construction, former being enforceable independently.

2. Learned counsels have also touched the issue of limitation. To my mind, no question of limitation arises. No specific date was provided for the execution of conclusive document – registered lease deed -or timelines for transfer of plot, clearly subjected to the condition of raising construction, whereafter lease hold rights are transferable. Matter falls within the second part of Article 113 of the Limitation Act, 1908, when no specific date for performance was prescribed. In this case, cause of action otherwise arose upon execution of General Power of Attorney, by the legal heirs of the deceased on 14.01.1999 – an act challenging the interests of the Respondents No. 1(i) to 1(v), wherefrom the suit filed was within the 3 years – suit was filed on 20.11.2001. Factum of rejection of plaint is inconsequential – on the premise of non-maintainability of suit for declaration. Suit filed on 20.11.2001 is within limitation from the date of execution of General Power of Attorney by the heirs of deceased, conveying intention to challenge the rights extended to the Respondents No. 1(i) to 1(v) in terms of the agreement. Execution of General Power of Attorney by the heirs of deceased, manifesting refusal to acknowledge claim of Respondents No. 1(i) to 1(v), which provides tangible reasons and cause of action for filing the suit. Judgments referred by counsel for the petitioners are distinguishable and authority laid therein extend no support to the petitioners. In these circumstances, no illegality was committed by the Courts, which concurrently decreed the matter, against the petitioners. No case for interference is made out.

3. This Civil Revision is without any merit and the same is, hereby, dismissed. No order as to costs.

(Y.A.) Civil revision dismissed

PLJ 2023 Lahore 293

Present: Shujaat Ali Khan, J.

ABDUL RASHEED--Petitioner

versus

PROVINCE OF THE PUNJAB etc.--Respondents

C.R. No. 237171 of 2018, heard on 16.11.2022.

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

----S. 9--Civil Procedure Code, (V of 1908), S. 115--Suit for possession--Decreed--Report of local commission--Appeal--Disposed of on report of local commission--Civil revision--Accepted and case was remanded--Appeal accepted after post remand proceedings--Filing of suit without demarcation--Allotment of two ahatas was contrary to colony manual--Allotment order was not produced--Appointment of local commission with mutual consent--Filing of objections by petitioner--Challenge to--Having consented for appointment of Local Commission and acceptance of its report, petitioner had no cheeks to challenge that Appellate Court could not decide case in light of report of Local Commission--Appellate Court invited objections from parties against report of Local Commission but no objection was filed by private respondents but petitioner filed objections and when he failed to substantiate his objections, Appellate Court spurned same, at this juncture, petitioner could not be allowed to raise objection against validity of report of Local Commission--At time of spot inspection Local Commission not only associated parties but also Patwari to know exact position and upon measurement of land--When verdicts of Courts below are variance, preference is to be given to findings of Appellate Court--Ahata No. 142 was completely allotted to petitioner but without its demarcation by leaps and bounds, private respondents could not be held in illegal occupation of any part thereof--Revision petition dismissed. [Pp. 301, 305 & 306] B, C, D, E & F

2007 SCMR 870.

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

----S. 75 & O.XXVI--Appointment of local commission--Court can appoint a commission inter-alia for local investigation and report submitted by said commission can be used by Court for just decision of case. [P. 297] A

1993 SCMR 1473, 2011 YLR 277, PLD 2009 SC 16 & 2013 CLC 1473 ref.

Mr. Shahid Mehmood Khan Khilji, Advocate for Petitioner.

Rana Shamshad Khan, Additional Advocate General for Respondent No. 1.

Mr. Muhammad Osama Asif, Advocate for Respondents No. 2 to 7.

Date of hearing: 16.11.2022.

Judgment

Shorn of unnecessary details, the facts, forming factual canvas of this petition, are that the petitioner filed a suit for possession with the averments that property bearing Ahata Aroori Nos. 141 & 142, measuring 5-Marlas & 11-Marlas, respectively, situated in Chak No. 121/SB, Tehsil Sillanwali, District Sargodha, was allotted to the him on 04.07.1993 followed by Sale Deed bearing No. 707-1, dated 2012.2003 and Mutation No. 885, dated 29.10.2007. Though, predecessor-in-interest of the respondents instituted multiple proceedings challenging allotment of above Ahatas in favour of the petitioner but remained unsuccessful upto the Board of Revenue, hence allotment in favour of the petitioner attained finality. Thereafter, 7-Marlas land was allotted to the respondents for the purpose of residence. Subsequently, on the request of Respondent No. 2 land measuring 4-Marlas 42 Sq.ft, situated in Ahata No. 142 was given by the petitioner to her temporarily but afterwards the respondents refused to vacate the said property. The suit was decreed by the learned Civil Judge, Sargodha (learned Trial Court) through judgment and decree, dated 24.03.2016, against which the respondents filed an appeal before the learned Additional District Judge, Sargodha (learned Appellate Court) which was disposed of through judgment and decree, dated 11.01.2017, on the basis of report of the Local Commission. Feeling aggrieved of judgment and decree, dated 11.01.2017, passed by learned Appellate Court the petitioner filed Civil Revision No. 603/2017 before this Court which was accepted through order, dated 20.02.2018 and the matter was remanded to learned Appellate Court for decision afresh. During post remand proceedings, learned Appellate Court after calling objections from both the parties qua the report of the Local Commission again accepted the appeal filed by the respondents through judgment and decree, dated 24.05.2018. Aggrieved of judgment and decree, dated 24.05.2018, passed by learned Appellate Court the petitioner has filed this petition.

1. The submissions made by learned counsel for the petitioner can be summed up in the words that when the suit filed by the respondents as well as their predecessor-in-interest challenging allotment in favour of the petitioner was dismissed, they had no cheeks to occupy any part of Ahata No. 142; that learned Appellate Court decided appeal of the respondents on the basis of report of the Local Commission which was not brought on record in accordance with the provisions of Qanoon-e-Shahadat Order, 1984; that ambiguous nature of the report submitted by the Local Commission is evinced from the fact that on the one hand it concluded that if the respondents are not removed from the land, illegally occupied by them, the access of the petitioner to his Ahatas would be blocked but on the other declared that respondents have not encroached upon the land of the petitioner; that mala-fide on the part of the Local Commission is also evident from the fact that just to favour the respondent it measured the allotted property of the petitioner from the watercourse whereas rest of the Ahatas were measured from their outer boundaries; that when the respondents, while filing written statement, admitted that they were illegally occupying a part of the land allotted to the petitioner, learned Appellate Court had no justification to reverse the well-reasoned findings of learned Trial Court.

2. Learned counsel representing Respondents No. 2 to 7, while defending the impugned judgment and decree, rendered by learned Appellate Court, submits that since the petitioner filed suit without demarcation of Ahatas, allotted to him, the same was not proceed-able; that when the petitioner consented for appointment of Local Commission for spot investigation he was bound to accept its report without any objection; that since it was established from the report of the Local Commission that the land allotted to the petitioner was being utilized by him, to the exclusion of anybody else, including the respondents, no illegality has been committed by learned Appellate Court while reversing the findings of learned Trial Court; that at the most the respondents can be considered as illegal occupants on the land owned by the Provincial Government; that since name of Muhammad Yousaf son of Ghulam Yasin is very much present in Mutation No. 876, he cannot be considered as illegal occupant on the land of the petitioner and that the petitioner, while appearing as PW-1, admitted that he did not get demarcated his allotted Ahata Jats, the suit filed by him was not maintainable.

3. Learned Additional Advocate General, while supporting the private respondents, states that according to pleadings of the parties, two Ahatas were allotted to the petitioner which being contrary to the Colony Manual as only one Ahata could be allotted to a landlord proportionate to his holdings in vicinity, the very basis of claim of the petitioner is not tenable; that since the petitioner did not produce allotment letter in his favour just to camouflage allotment of two independent Ahatas against the relevant law, learned Appellate Court rightly reversed the findings of learned Trial Court; that when the petitioner himself mentioned in the plaint that the land measuring 4-Marlas was given to the respondents/their predecessor-in-interest on temporary basis they could not be considered as illegal occupants; that spurious nature of claim of the petitioner is evident from the fact that in the Conveyance Deed area has been mentioned as 16-Marlas whereas in the Schedule it was curtailed to half of the Ahata No. 141 which could not be identified without its proper partition by the Collector; that when the petitioner has been found in possession of the land allotted to him, he cannot allege possession of the respondents over the suit land as illegal.

4. While exercising his right of rebuttal, learned counsel for the petitioner submits that since claim set out in the plaint relates to Ahata No. 142, the same having been allotted to him in entirety, nobody else, including the present respondents, could possess it; that since in the earlier round of litigation allotment in favour of the petitioner has been upheld upto the Board of Revenue, respondents have no cheeks to challenge allotment in favour of the petitioner, at this stage and that the respondents, being illegal occupants over the land, allotted to the petitioner, cannot carry any legal status.

5. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition, as well as the case-law cited at the bar.

6. According to Section 75 readwith Order XXVI CPC and Chapter 10, Part-B of Lahore High Court Rules and Orders, Volume-I, Court can appoint a commission inter-alia for local investigation and report submitted by the said commission can be used by the Court for just decision of the case. Power of the Court to appoint a Local Commission came under discussion before the Apex Court of the country in the case of Rana Shamshad Ali Khan v. Province of Punjab through Collector, Multan (now Collector, Lodhran) and 4 others (1993 SCMR 1473) wherein it has inter-alia been held as under:

“\\\The learned Judge in Chambers having granted status quo order in the case, on the application of petitioner, was fully competent to modify that order if the circumstances of the case so justified and for that purpose the learned Judge could pass any incidental order, including the order to appoint a Commissioner to inspect the site, to satisfy himself if the condition of the premises was such that it required modification of the status quo order passed in the case …….”

The said view was followed by Hon’ble Supreme Court of Pakistan in a later case reported as Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others (PLD 2009 Supreme Court 16) with the following observation:

“8. As regards the contention that Local Commissioner could not have been appointed without application by any party and that the report furnished by the Commissioner could not have been taken into consideration in determining the amount of compensation by the Referee Court, it may be pointed out here that legally there is no impediment in appointing a Local Commissioner when the evidence brought on record alone is not capable to resolve the controversy.”

The ratio decidendi of above cases was also applied in the cases reported as General Manager, Azad Kashmir Logging and Sawmills Corporation, Muzaffarabad v. Abdul Rehman and 2 others (2013 CLC 1473) and Iqbal M. Hamzah v. Gillette Pakistan Ltd. (2011 YLR 277). In the light of afore-referred judgments there leaves no ambiguity that Court, even the Appellate Court, has power to appoint a commission for spot inspection.

1. Now reverting to merits of the case, I have noted that crux of the arguments advanced by learned counsel for the petitioner is that since report of the Local Commission, appointed by learned Appellate Court, was not brought on record as per law the same could not be used to decide the matter against the petitioner. In this regard, I have noted that on 19.11.2016, learned Appellate Court passed the following order:

“19.11.2016:

Present: Learned counsel for the parties. Parties in person.

ORDER

An application was moved by learned counsel for the appellants for appointment of local commission with the stance that the respondent/plaintiff had instituted the suit in hand for recovery of possession of land measuring 04 marlas and 42 squares against petitioners/appellants. That the petitioner is illegal occupant over the land in question but Respondent No. 1 Abdur Rasheed is not the owner of this land and land in question is owned by the Provincial Government. That demarcation of the land in question has not been made so far and it was prayed that local commission be deputed so that it be ascertained that either the petitioners are encroachers of 04 marlas and 42 square feet on the land of Respondent No. 1 Abdul Rasheed in Ahata No. 142 and it was prayed that local commission for this purpose be deputed. At the stage of arguments of both the learned counsel for the parties on the application in hand, it was settled between both the parties that local commission be deputed for the measurement of ownership of respondent Abdul Rasheed in Ehata No. 142 and if the petitioners/appellants namely Sat Bharai etc. are found having encroached the land owned by the respondent Abdul Rasheed, they would have got no objection if that encroached piece of land be decreed in favour of the respondent Abdul Rasheed and the petitioners would voluntarily vacate the same without any further proceedings.

1. One of the appellant Muhammad Yousaf is present in person alongwith learned counsel for the appellants and respondent Abdul Rasheed is also present along with his learned counsel, therefore, keeping in view the terms and conditions settled between both the parties to this extent, their statements are separately recorded.

Statement of Ch. Muhammad Feroz Advocate learned counsel for appellants without oath and that of appellant No. 2 Muhammad Yousaf on oath:

States that they have got no objection if a local commission be deputed who would measure the land situated in Ehata No. 142 and keeping in view the ownership of Respondent No. 1 Abdul Rasheed son of Muhammad Shafi in this Ehata, if any piece of land is decreasing in his ownership to the extent the land possessed by appellants in Ehata No. 142 would be adjusted and ownership of Respondent No. 1 Abdul Rasheed in Ehata No. 142 would be completed and with rest of possession of the appellants, Respondent No. 1 Abdul Rasheed would have no concern and in the light of report or local commission the appellants would be bound to vacate that piece of land found in ownership of Respondent No. 1 Abdul Rasheed without any further proceedings.”

RO&AC (Israr Zada) 19.11.2016. Additional District Judge, Sargodha.

Statement of learned counsel for Respondent No. 1 Rana Muhammad Hanif Advocate without oath and that of Respondent No. 1 Abdul Rasheed son of Muhammad Shafi on oath:

States that statement recorded above from the appellants' side, has been heard and Respondent No. 1 Abdul Rasheed has got no objection if the local commission is deputed who would com the land of Respondent No. 1 according to his ownership of Exh.P-22/sale deed in Ehata No. 142 and a local commission to that extent be deputed in the light of report of which the matter be decided in accordance with law.

RO&AC (Israr Zada) 19.11.2016. Additional District Judge, Sargodha.

ORDER:

Thus, with the mutual consent of learned counsel for both the sides Mr.Iftikhar Hussain Baloch Advocate is deputed as local commission, who is directed to visit and inspect the land situated in Ehata No. 142. After having measurement, the land in possession of Respondent No. 1 Abdul Rasheed son of Muhammad Shafi according to his entitlement, if there seems any deficit, the same would be completed from the land possessed by the appellants in Ehata No. 142 and after having made site plan of the same worth mentioning relevant surroundings and its width and length in measurement, the same be produced in the Court on the next date of hearing. The fee of local commission is fixed Rs. 10,000/- out of which Rs. 7000/- be paid by the petitioners/appellants and remaining Rs. 3000/- be paid by the Respondent No. 1 Abdul Rasheed. To come up for report of local commission on 01.12.2016.

Announced (Israr Zada) 19.11.2016. Additional District Judge, Sargodha.

From the above quoted order, coupled with statements of Respondent No. 2 along with his counsel as well as that of the petitioner along with his counsel, it is abundantly clear that the Local Commission was appointed with mutual consent of the parties for site inspection and submission of report according to the allotted area of the petitioner and his possession, thus, at this stage it does not lie in the mouth of learned counsel for the petitioner that since report of the Local Commission was not brought on record in line with the provisions of Qanoon-e-Shahadat Order, 1984 the same was inconsequential, has no substance.

1. Admittedly, the question before learned Appellate Court revolved around measurement of land underneath the petitioner, thus, learned Appellate Court was well within its power to appoint Local Commission as the same was supported by law laid down in the cases reported as Sher Muhammad and others v. Muhammad Afzal and others (PLD 2011 Lahore 412) and Hussain and others v. Faiz Muhammad and others (1989 MLD 3651).

2. The order passed by learned Appellate Court, referred in the above paragraph, makes it abundantly clear that the Local Commission was appointed with consent of the parties, thus, its report could not be lightly ignored by the Court except providing the parties concerned a chance to file their objections against the said report and if the objections are over-ruled the Court should not feel shy to decide the matter in the light of said report. The said question came under discussion in the cases reported as Bhai Khan and others v. Shakeel and others (2009 SCMR 594), Wazir Hussain Shah and 7 others v. Ali Shah and 3 others (PLD 2011 Supreme Court (AJ&K) 25), Mst. Lalan v. Noor Muhammad and 12 others (1994 SCMR 1771) and Abdullah and 5 others v. Abdur Rehman and 9 others (2004 YLR 295). In the case of Mst. Lalan (Supra) the Apex Court of the country has laid law to the following effect:

“Learned Counsel for the petitioner submitted that as the evidence had been recorded by Ch. Muhammad Akram, Advocate, as such he was an Arbitrator, therefore, an opportunity should have been given to the petitioner to file objection to the award. This contention has no force. Ch. Muhammad Akram was appointed to resolve the dispute, by the parties themselves. He had taken the evidence to settle the real dispute between the parties. Such evidence was necessary because the contention of the petitioner was that there was an alternate passage for the use of the respondents, and that they had not been using such passage. After taking evidence, Ch. Muhammad Akram resolved the controversy which formed the basis of the judgment of the Additional District Judge. Even if Ch. Muhammad Akram be treated as Arbitrator, there was no allegation of misconduct against him, therefore, his report was properly accepted by the Courts below. The learned High Court has adverted to the facts of the case and observed as under:

“Report of the referee Exh.C.1 on the basis whereof the judgment has been rendered by the learned first appellate Court clearly reflects the right of passage of the respondents on the basis of easement of necessity inasmuch as they do not possess an alternate passage, consequently, it cannot be said that the report has neither been misread or the learned lower appellate Court has rendered a wrong judgment.”

If conduct of the petitioner is adjudged in the light of afore-referred decision of the superior Courts there leaves no ambiguity that having consented for appointment of Local Commission and acceptance of its report, the petitioner had no cheeks to challenge that learned Appellate Court could not decide the case in the light of report of the Local Commission.

1. A perusal of the judgment, passed by learned Appellate Court, shows that though during post remand proceedings, learned Appellate Court invited objections from parties against report of the Local Commission but no objection was filed by the private respondents but the petitioner filed objections and when he failed to substantiate his objections, learned Appellate Court spurned the same, thus, at this juncture, the petitioner could not be allowed to raise objection against validity of report of the Local Commission.

2. The Local Commission, who was appointed with mutual consent of the parties submitted its report, dated 15.12.2016, along with site plan which is imaged below:

A perusal of the afore afore-imaged report shows that at the time of spot inspection the Local Commission not only associated the parties but also Muhammad Khan Patwari to know the exact position and upon measurement of the land, underneath the petitioner, he came to the conclusion that Ahata No. 142, allotted to the petitioner, was under his exclusive possession and respondents did not encroach upon any part of it. In the wake of such unequivocal findings of the Local Commission learned Appellate Court was left with no option but to accept the appeal filed by the respondents.

1. This Court is cognizant of the fact that Local Commission is appointed for aid of the Court to arrive at a just conclusion and authenticity of the report submitted by the Local Commission cannot lightly be ruled out especially when parties concerned have failed to impugn its validity by filing substantial objections convincing the Court to discard the report of the Local Commission. Reliance in this regard is placed on the cases reported as Biladar Khan v. Faridoon Khan and others (PLD 2003 Peshawar 23), Uttam Kumar Das and another v. Ajgar Ali Meah and others (PLD 1995 Dacca 15), Zaheer-ur-Din and others v. Mst. Khurshida Begum (1996 CLC 580), Sultan Eraj Zaman Khan and another v. The Collector, Land Acquisition, Khanpur Dam and another (1996 CLC 287) and Messrs Kausar and Co. v. Messrs Universal Insurance Co. (Pvt) Ltd. (1991 MLD 1774).

2. There is no cavil with the fact that no lis can be decided only on the basis of report of Local Commission but when the Local Commission was appointed by Court with mutual consent of the parties and undertaking that they would abide by the findings of the Local Commission, Court can decide the matter on the basis thereof. Further, if a party is aggrieved of report of the Local Commission can file objections against its report but when the said objections are spurned by the Court, matter between the parties can be decided on the basis of report of the Local Commission. Further, when name of one of the respondents, Muhammad Yousaf son of Ghulam Yasin, has been mentioned in the column of ownership in Mutation No. 876, the respondents cannot be considered in illegal possession of the land, allotted to the petitioner.

3. It is well established by now that when verdicts of the Courts below are variance, preference is to be given to the findings of the Appellate Court. Reliance in this regard is placed on the case reported as Hakim-ud-Din through L.Rs and others v. Faiz Bakhsh and others (2007 SCMR 870).

4. During the course of arguments, learned counsel for the petitioner put much emphasis on the point that since allotment in favour of the petitioner was validated upto the Board of Revenue, the respondents cannot be allowed to challenge the same at this stage. In this regard, I am of the view that since question involved in this petition is as to whether the private respondents are in illegal occupation of any part of the land allotted to the petitioner or not, the plea raised by learned counsel for the petitioner has hardly any relevance with the point involved in this petition.

5. Now taking up plea of the petitioner that since Ahata No. 142 was allotted to the petitioner in its entirety, to the exclusion of anybody else, the private respondents could not be allowed to illegally possess any part thereof under the garb of any allotment letter in favour of their predecessor-in-interest, I am of the view that there is no cavil with the fact that Ahata No. 142 was completely allotted to the petitioner but without its demarcation by leaps and bounds, the private respondents could not be held in illegal occupation of any part thereof especially when it has been reported by the Local Commission that the petitioner is in possession of the allotted Ahata. The safest recourse for the petitioner was/is to get demarcation of his allotted Ahata and if it is opined that any part thereof is in illegal occupation of private respondents, the law would take its own course but at present the findings of learned Appellate Court cannot be upset merely on the ground that Ahata No. 142 was allotted to the petitioner as a whole.

6. During arguments, learned counsel representing the petitioner repeatedly contended that learned Appellate Court decided the matter solely on the basis of report of the Local Commission. The said stance of the learned counsel stands contradicted from the contents of the judgment passed by learned Appellate Court inasmuch as while discussing the report of the Local Commission learned Appellate Court observed in unequivocal words that when the petitioner failed to establish that private respondents have encroached upon any inch of his land, he was not entitled to get the sought for decree. To fortify its findings, learned Appellate Court has referred to specific portions of statement of the petitioner recorded as PW.1. In the given scenario, the contention urged by learned counsel for the petitioner carries no weight.

7. For what has been discussed above, I see no force in this petition which is hereby dismissed with the observation that the petitioner would be at liberty to get demarcated the Ahatas allotted to him and if anything favouring his claim comes on surface, he would be at liberty to institute proceedings before the appropriate forum. Further, if the respondents raise any construction impeding his access to his allotted Ahata, he would be within his right to approach the forum concerned for redressal of his grievance. No order as to costs.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 307

Present: Asim Hafeez, J.

ALI AHMAD, etc.--Petitioners

versus

OFFICE OF THE OMBUDSPERSON (MOHTASIB) PUNJAB, etc.--Respondents

W.P. No. 63956 of 2021, decided on 19.1.2022.

Punjab Enforcement of Women’s Property Rights Act, 2021 (X of 2021)--

----Ss. 7 & 7(3), (5)--Constitution of Pakistan, 1973, Art. 199--Complaint before ombudsperson during pendency of suit--Legality of order of ombudsperson--Statutory requirements--Challenge to--Respondent No. 1, without adhering to requirement(s) of filling report in Court, in which case is pending, making recommendations accordingly and waiting for permission of Court to take further proceedings, summarily proceeded to decide matter, which significant lapses, in context of sub-section (3) of Section 7 of act, manifest failure to adopt and adhere to prescribed statutory requirements--Respondent No. 1 erroneously ignored factum of proceedings pending in Court, and upon deciding matter linked its implementation with condition of withdrawal of pending suit--Respondent No. 1, before passing order of allowing complaint, failed to adhere to prescribed statutory requirements, envisaged under Section 7 of Act, 2021--Petition allowed. [Pp. 314 & 315] A, B & C

Mr. Abbas Ali Chadhar, Advocate assisted by Ch. Saifullah Shafiq, and Ch. Zeshan Afzaal Hashmi, Advocates, for Petitioners.

Mr. Zafar Rahim Sukhera, Assistant Advocate-General.

M/s. Mushtaq Ahmad Mohal and Irfan Ullah Tarar, Advocates for the Respondents No. 2 to 5.

Date of hearing: 19.1.2022.

Order

This constitutional petition throws challenge to the legality of decision dated 06.10.2021, by Respondent No. 1 – Ms. Nabila Khan, Ombudsperson Punjab – in exercise of jurisdiction extended under the Punjab Enforcement of Women’s Property Rights Act, 2021 (“Act, 2021”), while invoking Section 7 of the Act, 2021. Notices were issued to the Advocate General, Punjab under Order XXVII-A of the Civil Procedure Code 1908, on the plea that adjudication perhaps involves determination of the constitutionality/vires of some provisions of the Act, 2021. Private respondents were also put to notice and are represented-Respondents No. 2 to 5 have filed written statement/reply.

1. It is appropriate to sum-up the extent and scope of instant decision. In the light of the submissions by the counsels, appraisal of the facts and examination of relevant provisions of the enactment – facts of the case attract Section 7 of Act, 2021 – it is decided that no question of vires or unconstitutionality of Section 7 of the Act, 2021 arises. And the lis at hand, exclusively, calls for determination of the legality or otherwise of the order assailed, in the context of the jurisdiction extended unto learned Ombudsperson and purportedly exercised.

2. Facts, essential for adjudication, are that Respondent No. 2, widow of Ali Nawaz, filed complaint, alleging denial share of inheritance, to her and daughters of the deceased – Respondents No. 3 to 5 – regarding estate of her deceased husband, comprising of landed property. It was alleged that their shares were fraudulently transferred in the guise of alleged gift, allegedly extended by the ladies of the family to the sons of the deceased – Petitioners No. 1 to 4. The most critical fact is that before the filing of complaint, Respondents No. 2 to 5 have had filed civil suit, seeking declaration of invalidity against alleged transaction of gift, which suit was pending when cognizance upon compliant was taken. The merits of the complaint, potentiality of the claim and alleged defence thereto is not subject matter of adjudication, hence, no comments required. The context of the controversy-in-issue is whether the authority/powers, exercised by the Respondent No. 1 in view of present facts, are in accordance with and scope of mandate extended under Section 7 of Act, 2021– dealing, with the complaint(s), where case proceedings are otherwise pending in a Court of law.

Respective submissions.

1. Learned counsel for the petitioners contends that Respondent No. 1 lacked jurisdiction to take cognizance of the complaint, filed even before the promulgation of the Act, 2021. Adds that civil suit, filed by the respondents was sub-judice and without adhering to the mandate and requirements prescribed in Section 7 of Act, 2021, Respondent No. 1 proceeded to decide the competing rights claimed qua the property in question, which is claimed to have been gifted in accordance with the law. Further submits that allegations of fraud and deception, qua purported gift, were accepted and endorsed summarily -merely upon believing contents of the affidavit of one Muhammad Ashraf, son of Respondent No. 2 and brother of the petitioners and respondents 3 to 5 -, and without calling for evidence and affording opportunity to cross-examine said Muhammad Ashraf. Lastly submits that jurisdiction was allegedly exercised under Section 7 of the Act, 2021, but without adhering to the requirements of sub-section (3) of Section 7 of the Act, 2021. Adds that implementation of the order impugned was subjected to the condition of withdrawal of civil suits by the complainant and her daughters – Respondents No. 2 to 5, which alone manifests erroneous exercise of jurisdiction – which part of the order draws no support from Section 7 of Act, 2021.

2. Learned counsel for the Respondents No. 2 to 5 submits that instant Constitutional petition is not maintainable in law due to non-joinder of Muhammad Ashraf as party, who had submitted affidavit before the Respondent No. 1. Adds that petition is not otherwise maintainable, when alternate remedy is available and availed, reference is made to the civil suit filed by petitioners. Adds that order dated 06.10.2021 was also challenged through said suit – wherein application for injunctive relief was disallowed and petitioners had filed appeal, which is pending adjudication. Further submits that this Court had earlier dismissed instant petition on the ground of pendency of civil suit, hence, matter cannot be re-adjudged or reviewed. Adds that various petitions are pending before this Court, wherein vires of the law, i.e., Punjab Enforcement of Women’s Property Rights Act, 2021, is questioned and same are sub-judice, wherein notices under Order XXVII-A of Code of Civil Procedure, 1908 were issued, hence, it is appropriate to hear Advocate-General in person or attach this petition with the pending ones. While discussing the purpose of the law, states that sons have deprived the mother and sisters of their shares in the estate of deceased husband/father; which illegal and unjustified action calls for interference and exercising jurisdiction under Act, 2021, and Respondent No. 1 committed no illegality while exercising jurisdiction under Section 7 of the Act, 2021.

3. Learned law officer supported the constitutionality of the law, who has also produced record of the proceedings before the Respondent No. 1.

Determination.

1. Submissions on behalf of the Respondents No. 2 to 3 are misconceived and repelled, reasoning hereunder follows.

2. Petitioners, through this petition, have questioned the legality of the order dated 06.10.2021 substantially, and only a ceremonial challenge was thrown to the vires of the law. No question of vires or unconstitutionality was pleaded. While hearing the matter on 02.12.2021, it was announced that petition was disposed of in lieu of the civil suit filed by the petitioners, and after examining the record matter was re-fixed for hearing. This Court finds no clog or encumbrance to re-hear and decide the matter. Order of 02.12.2021 is reproduced, for facility of reference, which reads as;

“Order was announced in Court and petition was disposed of in wake of pendency of civil suit – documents provided by counsel for petitioner, in terms of order dated 01.12.2021. Petition was disposed of under the impression that proceedings before Respondent No. 1 are still pending, however, perusal of order dated 06.10.2021 reveals that order has been finally passed, only subjected to the condition of withdrawal of civil suit by the complainant. While dictating detailed order, it transpired that some issues require further assistance of the counsels, for instance, status, enforceability and the scope of order dated 06.10.2021 in the wake of filing of civil suit by the petitioner, post instant petition. This Court believes that unless the fate of order dated 06.10.2021 is not decided, it certainly would have prejudicial implications. Matter needs adjudication.

1. Let this matter be fixed for hearing on 06.12.2021, after notice Pervi to the counsels”

2. Assertion that order dated 06.10.2021 was also assailed through civil suit is misplaced. It is evident that petitioners have filed civil suit, during the pendency of instant proceedings, perusal whereof manifests that order dated 06.10.2021 was not challenged therein or subjected to adjudication by civil Court – though Respondent No. 1 is a party thereto and declaration was sought against the Mutation No. 2811 dated 25.10.2021, recorded based on order of 06.10.2021. The objection that proceedings be enjoined with pending petitions, wherein vires of the law is challenged, is misconceived. This Court is not convinced that any ground is available to proceed to adjudge the question of constitutionality or otherwise of the law, hence, tagging petition with other cases is un-necessary.

3. Now issue of legality or otherwise of the order impugned -dated 06.10.2021 -is examined. It is expedient to reproduce relevant portions of the order impugned, which read as;

“The respondents’ contention that since the case of the suit property is already subjudice in Civil Court therefore, the complaint is liable to be dismissed is not maintainable in light of the provisions of the Section 7(1) of the Punjab Enforcement of Women’s Property Rights Act, 2021, which provides as follow;

“Where proceedings in a Court of law are pending in relation to the ownership or possession of any property claimed to be owned by a woman, she may file a complaint under this sub-section to the Ombudsperson:

Provided that the Ombudsperson, on its own motion or on a complaint filed by any person including a non-governmental organization may also initiate action under sub-section (1) in relation to the ownership or possession of a woman’s property, even if proceedings are pending in a Court in respect of that property”.

Facts and evidence available on record are suffice to note here that the instant case does not require in depth inquiry therefore Ombudsperson has clear and wide jurisdiction of adjudication on the instant case.

Keeping in view the above discussion, affidavit submitted by the one of the respondents Mr. Muhammad Ashraf, element of dominancy and influence of respondents, judgments of the honorable higher Courts, fact of illiteracy of complainant and her daughters and most crucial fact of gift mutation in favour of com plainant’s daughters and then in favour of their mother on the same day, it stands established without any iota of doubt that the respondents has disinherited complainant and her daughters by way of fraud and pressure and thus the same is liable to be cancelled. Therefore, the case in hand is decided in favour of the complainant Ms. Basheeran Bibi and her daughters Anwari Bibi, Asghari Bibi and Sarwari Bibi and the gift mutation assailed by them whereby they were left disinherited is hereby declared illegal and void, against the law and Shariah.

It directed that the complainant and her daughters be given due share of legacy inherited by them after death of Mr. Ali Nawaz.

The Deputy Commissioner Sheikhupura with assistance of concerned SHO shall ensure implementation of this decision and restoration of possession to the complainant and her daughters within the period of 7 days of receipt of this decision. Compliance report should reach this office within 7 days as provided under Section 5(1)&(3) of the Punjab Enforcement of Women’s Property Rights Act, 2021. However, it is clarified that this decision shall be implemented in a condition when the complainant and her daughters withdraw all suits pending in Civil Court”.

[Emphasis supplied]

1. It is evident that in wake of pending civil suit of the Respondents No. 2 to 5, at the time of the cognizance of the complaint by Respondent No. 1, Section 7 of Act, 2021 is applicable and attracted, which for expedience is reproduced hereunder.

Section 7 of the Act, 2021.

Complaint to the Ombudsperson in case proceedings in a Court of law are pending.– (1)

Where proceedings in a Court of law are pending in relation to the ownership or possession of any property claimed to be owned by a woman, she may file a complaint under this sub-section to the Ombudsperson:

Provided that the Ombudsperson, on its own motion or on a complaint filed by any person including a non-governmental organization may also initiate action under sub-section (1) in relation to the ownership or possession of a woman’s property, even if proceedings are pending in a Court in respect of that property.

(2) The Ombudsperson shall make a preliminary assessment of the complaint under sub-section (1), whereafter he may, if the matter requires further probe or investigation, refer the matter to the concerned Deputy Commissioner, who, after calling the record, if necessary, and issuing notices to the complainant or her adversaries, conduct a summary enquiry and submit a report within fifteen days to the Ombudsperson.

(3) If the matter does not require any detailed probe, investigation or recording of evidence, the Ombudsperson may, after calling any record, if deemed necessary, file a report in the Court of law, in which the case is pending, recommending that the proceedings in the Court may be terminated or put in abeyance unconditionally or subject to any order of the Court, and the Ombudsperson be permitted by the Court to take further proceedings under this Act.

(4) Before filing of the report under sub-section (3), the Ombudsperson shall call upon the complainant and her adversaries to submit objections, and conduct a hearing and pass orders, preferably within thirty days of the hearing, as to whether the Ombudsperson shall or shall not file a report under sub-section (3).

(5) In case the Ombudsperson passes an order of not filing a report under sub-section (3), he may advise the complainant to pursue the proceedings in the Court of law and terminate the complaint.

(6) The Ombudsperson upon receiving the report under sub-section (2), may further conduct such summary inquiry and call for such record as he may deem fit”.

[Emphasis supplied]

1. It is apparent from perusal of order impugned, that simultaneously with the issuance of notices to the respondents, report was sought from the revenue authorities -submitted on 17.03.2021 – which perhaps was the only evidence available, in addition to the affidavit of one of the sons of deceased Ali Nawaz, Muhammad Ashraf, contents whereof were erroneously treated as admission qua alleged fraud and deception – fraudulent transfer of property in guise of gift. It is apparent that no opportunity was afforded to rebut the affidavit or to allow cross-examination upon Muhammad Ashraf, in the absence whereof bare contents of the affidavit cannot be treated or construed as admission of fraud, attributable to the petitioners. This assumption qua admission is contrary to the settled principles of evidence qua admissions in civil matters. Further comments are reserved as review of the contents of affidavit is not intended, nor subject matter of adjudication.

2. In terms of sub-section (1) of Section 7 of Act, 2021, pendency of civil suit would not restrict or bar initiation of proceedings or cognizance by Respondent No. 1 – either on its own motion or complaint. Hence, initiation of proceedings on complaint manifests no illegality.

3. In terms of sub-section (2) of Section 7, Respondent No. 1 is required to make preliminary assessment of the complaint for determining that whether matter at hand requires further probe or investigation, and if it does require further probe or investigation, reference can be made to the concerned Deputy Commissioner for soliciting report within 15 days. It appears that matter was not referred to the concerned Deputy Commissioner, suggesting an inference that no further probe or investigation was required.

4. Sub-section (3) of Section 7 of Act, 2021 is critical. Respondent No. 1 observed that matter does not require in-depth inquiry. It is evident that Respondent No. 1, without adhering to the requirement(s) of filling report in the Court, in which case is pending, making recommendations accordingly and waiting for the permission of the Court to take further proceedings, summarily proceeded to decide the matter, which significant lapses, in the context of sub-section (3) of Section 7 ibid, manifest failure to adopt and adhere to the prescribed statutory requirements, indicating erroneous exercise of jurisdiction. Respondent No. 1 erroneously ignored factum of proceedings pending in the Court, and upon deciding the matter linked its implementation with the condition of withdrawal of pending suit. Evidently, legislative command unequivocally -manifests in terms of sub-section (3) of Section 7, ibid -conferment of the discretion unto Respondent No. 1, only to determine that whether the matter requires detailed probe, investigation or recording of evidence, for which determination Respondent No. 1 may call for the record, if deemed necessary, before the filing of the report. The expression ‘if deemed necessary’ must be read in the company of the expression ‘after calling any record’ and not be construed as extending an elective/optional choice or discretion unto Respondent No. 1 in the matter of filling report with the Court. Yes, there is no requirement of filing report if complaint is terminated, upon following the mandate of sub-section (5) of Section 7 of the Act, 2021. And if Respondent No. 1 intends to proceed to decide complainant, submission of report in the Court and awaiting further orders are imperative and mandatory requirements. Any construction, contrary to this apparent and obvious legislative intent of filling report in the Court of law, in which case is pending, would offend the mandate of Section 7 of Act, 2021, undermines the authority and jurisdiction of the Court – evidently protected in terms of sub-section (3) of Section 7 of the Act, 2021, and renders Section 7 of Act, 2021 redundant and superfluous in the context of Sections 4 and 6 of the Act, 2021. Perusal of sub-sections (4) and (5) of Section 7, ibid, reiterate the necessity of submitting report, unless complaint is terminated, upon reaching conclusion that no report is required to be submitted. In terms of sub-section (5) of Section 7 of Act, 2021, act of non-filling of report – after affording opportunity of filling objections and conducting of hearing in terms of sub-section (4) of Section 7 of Act, 2021 – suggests termination of complaint and renunciation of jurisdiction.

5. Harmonious and wholesome reading of Section 7 of Act, 2021 is required to protect it, instead of disjunctive and disconnected reading, which line of interpretation would impart incompatibility, contradiction, and redundancy. Legislature had not intended to oust the jurisdiction of the Civil Court and ensured that report is essentially filed in the Court, where matter is pending. The intent is to reconcile the jurisdiction of the Court, where matter is pending, and jurisdiction extended to the Respondent No. 1, to avoid apparent collusion or conflict. In brief, perusal of Section 7 of Act, 2021, indicates the jurisdiction(s) conferred are not mutually exclusive but structured to avoid conflict, confusion and disarray. The act of non-submission of report with the Court is illegal and requires interference by invoking Constitutional jurisdiction.

6. In view of the above, it is concluded that Respondent No. 1, before passing the order of allowing complaint, failed to adhere to the prescribed statutory requirements, envisaged under Section 7 of Act, 2021, which suggests that assumption and exercise of jurisdiction is misplaced, erroneous and illegal. Reliance on the judicial pronouncements in the order impugned is otherwise misplaced, wherein critical fact was ignored that in all the cases referred full trial was conducted, upon calling of evidence, before determining alleged influence of the donee over the donor, element of dominancy and allegations of fraud.

7. This petition is allowed, order dated 06.10.2021 is set aside. Complaint filed by Respondent No. 2 shall be deemed pending before Respondent No. 1, which shall decide the complaint afresh, upon hearing the parties, in the light of the facts and circumstances existing, at the time of cognizance of the complaint. [there is no information that whether suit of the Respondents No. 2 to 5 is still sub-judice or withdrawn under the order of 06.10.2021]. Any observation made herein is for the purposes of deciding the lis and not intended to prejudice or affect the rights claimed and determination of the complaint on merits.

(Y.A.) Petition allowed

PLJ 2023 Lahore 315

Present: Abid Aziz Sheikh, J.

Raja IBADAT SAJJAD KHAN--Petitioner

versus

Mst. SHEHNAZ KOUSAR etc.--Respondents

W.P. No. 13531 of 2022, heard on 21.11.2022.

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 9--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of maintenance allowance--Right to file written statement was closed--Petitioner was not challenged order--Suit was decreed--Producing of petitioner’s evidence was not allowed by family Court--Order for non-producing of evidence was not challenged by petitioner--Question of whether under Act, Family Court is vested with power to close right of written statement of defendent--PWs were crossed-examined by petitioner--How Family Court,specifically not allowed petitioner to produce his evidence on ground that his defence was closed--Petitioner neither challenged said order before learned Family Court nor before any higher forum-- Trial Court,allowed petitioner only to cross-examine PWs but not allowed him to produce his evidence--Petitioner did not challenge impugned order--This proves that petitioner had no intention to lead his evidence to disprove facts stated in plaint--Petitioner is now estopped by his own conduct and cannot agitate this ground for first time in this Constitutional Petition--Petitioner is a Civil Engineer and doing his construction business in name and style “Beams Construction” and his monthly income is more than three hundred thousand--There is nothing in rebuttal to evidence of respondents--Petition allowed.

[Pp. 322 & 323] D, E, F & G

Family Courts Act, 1964 (XXXV of 1964)--

----S. 9(1)--Filling of written statement--On date fixed under Section 8 of Act, defendant shall appear before Family Court and file written statement, a list of witnesses and gist of evidence--In case written statement is not filed on that date, Family Court may, for any sufficient reason, allow defendant to file written statement on next date which shall not exceed 15 days. [P. 318] A

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

----O. VIII, R. 10--Authority of Court--No doubt, there is no specific provision under Act to strike off right of defence of defendant for failure to file written statement--However, High Court in “Khalil-ur-Rehman Bhutta v. Razia Naz and another” (1984 CLC 890), held that for orderly dispensation of justice under Act, in case of a contumacious default of a defendant to file written statement, Family Court will be well within its authority to make an order in nature of Order VIII Rule 10 of Code of Civil Procedure, 1908 (CPC). [Pp. 318 & 319] B

1984 CLC 890, 2017 CLC Note 22, 2014 SCMR 365

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

----O.VIII R. 10--Absence of written statement--In absence of written statement, defendant can still cross-examine PWs, lead evidence to disprove facts averred in plaint and also take part in arguments.

[P. 322] C

2010 SCMR 970, 2020 MLD 750, 2012 CLC 1361.

M/s. Ali Rana and Khawaja Haseeb Ahmad, Advocates for Petitioner.

Ch. Zaheer Abbas, Advocate for Respondents No. 1 to 3.

Date of hearing: 21.11.2022.

Judgment

This Constitutional Petition is directed against the judgments and decrees dated 22.02.2021 and 26.01.2022 (impugned judgments and decrees), passed by the learned Judge Family Court, Lahore and learned Appellate Court, respectively.

1. Relevant facts are that plaintiffs/Respondents No. 1 to 3 (respondents) filed a suit for recovery of maintenance allowance against the defendant/petitioner (petitioner) on 06.09.2018. In said suit, petitioner’s right to file written statement was closed on 17.04.2019. The said order was upheld by this Court vide order dated 19.06.2019 in Writ Petition No. 37030/2019. The learned Judge Family Court, after framing of issues, recorded respondents’ evidence and the respondents/plaintiffs’ witnesses (PWs) were also cross-examined by the petitioner. However, vide orders dated 13.11.2020 and 30.01.2021, the petitioner was not allowed to produce his evidence as his right of defence was already closed. Finally, the suit was decreed vide judgment and decree dated 22.02.2021 for maintenance allowance of Respondents No. 2 &3 (minors) @ Rs. 35,000/- per month each and @ Rs. 25,000/- for Respondent No. 1 (wife). The said judgment was upheld by the learned Appellate Court on 26.01.2022, hence, this Constitutional Petition.

2. Learned counsel for the petitioner submits that there is no provision in the Family Courts Act, 1964 (Act) to close defendant’s right to file his written statement, therefore, the order dated 17.04.2019 was not sustainable. He further submits that merely because petitioner failed to file his written statement does not mean that he could not produce his own evidence in rebuttal. He place reliance on “Qamar Shahzad versus Judge Family Court, Ferozewala and 4 others” (2021 MLD 1859). He adds that even on merit, the respondents could not prove the financial status of the petitioner who was jobless at the relevant time, therefore, the maintenance allowance fixed by the learned Courts below is beyond the financial capacity of the petitioner.

3. Learned counsel for the respondents, on the other hand, supported the impugned judgments and decrees.

4. Arguments heard. The first question requires determination is whether under the Act, the Family Court is vested with the power to close the right of written statement of the defendant. In order to answer this question, it is expedient to reproduce Section 8(2) and Section 9(1) (Punjab Amendment) of the Act hereunder:

“8(2) Every summons issued under clause (b) of sub-section (1) shall be accompanied by a copy of the plaint, a copy of the schedule referred to in sub-section (2) of Section 7, and copies of the documents and list of documents referred to in sub-section (3) of the said section.”

“Punjab Amendment:

9(1) On the date fixed under Section 8, the defendant shall appear before the Family Court and file the written statement, a list of witnesses and gist of evidence, and in case the written statement is not filed on that date, the Family Court may, for any sufficient reasons which prevented the defendant from submitting the written statement, allow the defendant to submit the written statement and other documents on the next date which shall not exceed fifteen days from that date.”

Plain reading of the aforesaid provisions manifests that every summons, issued under Section 8 of the Act, shall be accompanied by a copy of the plaint, a copy of schedule referred to and copies of the documents and list of documents. Whereas under Section 9(1) of the Act, on the date fixed under Section 8 of the Act, the defendant shall appear before the Family Court and file the written statement, a list of witnesses and gist of evidence. In case the written statement is not filed on that date, the Family Court may, for any sufficient reason, allow the defendant to file written statement on the next date which shall not exceed 15 days.

1. No doubt, there is no specific provision under the Act to strike off the right of defence of defendant for failure to file written statement. However, this Court in “Khalil-ur-Rehman Bhutta v. Razia Naz and another” (1984 CLC 890), held that for the orderly dispensation of justice under the Act, in the case of a contumacious default of a defendant to file written statement, the Family Court will be well within its authority to make an order in the nature of Order VIII Rule 10 of the Code of Civil Procedure, 1908 (CPC). The relevant part of the judgment is reproduced hereunder:

“(6) As regards the contention that the petitioner's defence could not have been struck off, it is to be seen that despite having been given opportunities, he did not file the written statement. It is true, that except Sections 10 and 11, C.P.C., which have been made applicable to a Family Court, under Section 17 of the Act the rest of the C.P.C. on its own force, does not apply to the proceedings before it. It is, however, to be kept in mind that the Family Courts Act, does not provide for every conceivable eventuality and unforeseen circumstance. Though it is a forum of limited jurisdiction yet it has to regulate its own proceedings. A situation may crop up, before a Family Court that a defendant persistently defaults in submitting his written statement and acts contumaciously, as happened in the instant case. Will the Family Court be powerless to proceed against such a litigant? If the Court is held to be denuded of authority, to pass a punitive order against such a defaulter that would result in paralysing its function. It must be remembered that the Family Courts Act has been enacted with the object of expeditious disposal of the disputes relating to the family affairs. Thus, for the orderly dispensation of justice under the Act, in the case of a contumacious default of a defendant, to file the written statement, the Family Court will be well within its authority to make an order, in the nature of one envisaged by Order VIII, Rule 10, C.P.C. and deprive him of his right to file the written statement. I think that the learned trial Court proceeded against the petitioner on a similar line and by using the expression as to the striking of his defence, it simple meant to take away his right of filing written statement. Anyhow, even if there is some betrayal of over-stepping by the trial Court in view of the conduct of the petitioner I do not feel persuaded in this behalf, to strike down the order dated 28th February, 1983.”

The same view was also expressed by this Court in “Fakhar Abbas versus Additional District Judge Tandlianwala District Faisalabad and 3 others” (2017 CLC Note 22), where it was held as under:

“12. So far the contention of the learned counsel that the Family Court is not vested with any such authority to either strike off the defence of the petitioner or to close his right of defence. It is held that there is no cavil that though no such express provision exists in the Family Courts Act, 1964, which gives authority to the Court to close the evidence of a party or to strike off his right of written statement but on the same account there is even no provision to this effect that in case of failure by a party to file the written statement or to lead evidence his right of filing of written statement or evidence could not be closed in any circumstance. As already observed that the petitioner has availed sufficient opportunities to file the written statement but he has failed to submit the same. The Family Court cannot be made helpless in such a situation because it would not be in the interest of justice. Family Courts are established under the Family Courts Act, 1964, which is a special law thus the Court can adopt any mode which is not inconsistent to the Family Courts Act, 1964 or the Rules framed there under, for advancement and meeting the ends of justice.”

1. The Hon’ble Supreme Court of Pakistan in “Muhammad Tabish Naeem Khan versus Additional District Judge, Lahore and others” (2014 SCMR 1365), on this issue held that Family Court is a quasi-judicial forum, which can draw and follow its own fair procedure and thus if defendant does not file written statement within time allowed by the Court, the Court shall have the inherent power to proceed ex-parte against him, to strike off defence and to pass an ex-parte decree in line with the principles enunciated by the CPC. The relevant observation by the Hon’ble Supreme Court is reproduced hereunder:

“We are not persuaded to hold, that the ex parte decree dated 4.7.2008 was void, for the reason that there is no provision in the West Pakistan Family Courts Act, 1964 to strike off the defence of the petitioner, when he failed to file the written statement, thus it (decree) should be ignored; suffice it to say that the Family Court is the quasi judicial forum, which can draw and follow its own procedure provided such procedure should not be against the principles of fair hearing and trial, thus if a defendant of a family matter, who is duly served; and especially the one who appears and disappears and also does not file his written statement within the time allowed to him by the Court, the Court shall have the inherent power and ample power to proceed ex parte against him, to strike off the defence and to pass an ex parte decree in line with the principles as are enunciated by the Civil Procedure Code. In any case, such order (striking off defence) cannot be said, treated or deemed to be void, which should be ignored as nullity in the eyes of the law as argued by the learned counsel for the petitioner. If the petitioner was aggrieved of the order, he should have either got it set aside by filing an application before the Family Court or by challenging the same in appeal which admittedly was not so done.”

1. The case of “Qamar Shahzad” supra, relied upon by the learned counsel for the petitioner, does not support his claim rather follow the dictum laid down in aforenoted judgments and therein it is concluded that Family Court has authority to make an order in the nature of Order VIII Rule 10, CPC and deprive the defendant to file written statement. Notwithstanding the above legal position, even otherwise when the order dated 17.04.2019 was upheld by this Court on 19.06.2019 in Writ Petition No. 37030/2019 and was not further challenged by the petitioner, he cannot claim that Family Court had no jurisdiction to close the right of written statement of the petitioner.

2. The law is settled that failure of a defendant to file written statement within stipulated time period entails striking off his defence in terms of Order VIII Rule 10, CPC. However, the moot question is that whether defendant can cross-examine the PWs, take part in the arguments and can also lead evidence to disprove the facts stated in the plaint, even though his right to file written statement was already struck off. In this regard, the Hon’ble Supreme Court in “National Logistic Cell (N.L.C.) versus Hazrat Ali and others” (2010 SCMR 970) did not interfere in the impugned judgment on the ground that defendant not only cross-examined the PWs but also led his own evidence. The learned Sindh High Court in “Mehar and others versus Province of Sindh through District Government Pleader, Khairpur and 4 others” (2020 MLD 371) held that it is settled law that failure of a defendant to file written statement will result in striking off his defence under Order VIII Rule 10, CPC, however, the defendant can cross-examine the PWs and lead his evidence to disprove the facts stated in the plaint. In “Mrs. Rubina Ali through Special Attorney versus Ayesha Kamal through Legal heir and 4 others” (2014 MLD 750), the learned Sindh High Court upheld the judgment of the forums below on the ground that despite issuance of summons, the defendant did not bother to file written statement and/or adduce any evidence in order to rebut the assertions made by the plaintiffs on oath. Regarding the right of cross-examination, this Court in “Muhammad Nadeem versus Judge Family Court and 2 others” (2012 CLC 1361) and “Messrs Ravi Enterprises through Proprietor and another versus Allied Bank of Pakistan through Provincial Chief and 3 others” (2005 CLD 1425) held that defendant will have right to cross-examine the PWs even his right to file written statement was struck off. In “Mst. Bushra Bang Shirani and another versus Muhammad Hassan and another “ (1992 MLD 1116), the learned Sindh High Court held that even when right to file written statement was closed, the defendant can still cross-examine the PWs and take part in the arguments.

3. From the above case law, it is not difficult to deduce that in absence of written statement, the defendant can still cross-examine the PWs, lead evidence to disprove the facts averred in the plaint and also take part in the arguments. Now we will examine if petitioner was fairly allowed opportunity to exercise aforesaid rights in the proceedings.

4. In the present case, though petitioner’s right to file written statement was closed on 17.04.2019 but he was given ample opportunity not only to cross-examine the PWs but also to argue the suit at the time of final arguments. How the Family Court, vide order dated 30.01.2021, specifically not allowed the petitioner to produce his evidence on the ground that his defence was closed on 17.04.2019. The petitioner neither challenged the said order before the learned Family Court nor before any higher forum. It is also relevant to note that even earlier when the evidence of plaintiffs/ respondents was concluded, the learned Trial Court fixed the case for final arguments vide order dated 06.10.2020, however, the petitioner agitated before the learned Trial Court (as per Para No. 9 of this petition) that his right to defence was still intact, resultantly, the learned Trial Court,vide order dated 13.11.2020, allowed the petitioner only to cross-examine the PWs but not allowed him to produce his evidence. The petitioner did not challenge the order dated 13.11.2020, whereby he was only allowed to cross-examine the witnesses, rather accepted the said order and cross-examined the PWs. This proves that petitioner had no intention to lead his evidence to disprove the facts stated in plaint. The petitioner is now estopped by his own conduct and cannot agitate this ground for the first time in this Constitutional Petition.

5. Now coming to the merits of the case, the Respondents No. 2 & 3 are admittedly minor daughters of the petitioner, whereas Respondent No. 1 is his legally wedded wife. The petitioner is not only legally but also morally bound to maintain them till their legal entitlement. Admittedly, the Respondents No. 2 & 3 are grown up and studying in university, therefore, amount of Rs. 35,000/- per month each for their livelihood, including education etc., is neither exorbitant nor irrational considering the prevailing inflation. The amount of Rs. 25,000/- for Respondent No. 1 is also not excessive to meet financial needs for her livelihood. Regarding the financial status of the

petitioner, the record, including oral and documentary evidence produced by respondents, shows that petitioner is a Civil Engineer and doing his construction business in the name and style “Beams Construction” and his monthly income is more than three hundred thousand. There is nothing in rebuttal to the evidence of respondents/plaintiffs, as petitioner’s right to file written statement was closed and further during the cross-examination, respondents/ plaintiffs’ claim/evidence remained un-rebutted/unshaken.

1. In view of above discussion, no illegality and infirmity is found in the concurrent findings of the learned two Courts below, hence, this petition being meritless is dismissed.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 323

Present: Ch. Muhammad iqbal, J.

MUHAMMAD RIAZ AHMAD--Petitioner

versus

Mst. SHAHEEN AKHTAR etc.--Respondents

W.P. No. 40877 of 2021, decided on 10.11.2022.

Constitution of Pakistan, 1973--

----Art. 199--Suit for recovery of marriage expenses--Decreed--Appeal--Partially allowed--Pronouncement of divorce by petitioner to Respondent No. 1--Respondent No. 2 was his daughter--Solemnization of marriage of Respondent No. 2 was not disputed by petitioner--Obligation of petitioner--Challenge to--It was second marriage of petitioner with Respondent No. 1, out of which Respondent No. 2 was born whereas petitioner from his earlier wedlock, has five daughters who were maintained by petitioner without any inconvenience or any excuse of any financial hardship--Amount granted by appellate Court, keeping in view current financial needs as well as social norms does not seem to be excessive as compare to financial status of petitioner, as such these findings do not require any indulgence by this Court in its constitutional jurisdiction--Petition dismissed.

[P. 329] H & I

Word and Phrases--

----Maintenance--Word “maintenance” has been defined in Black’s Law Dictionary (9th Edition) as under:

“….. 5. Financial support given by one person to another ...”

In Oxford Dictionary it has been defined as under:

“The money needed for somebody's living expenses; act of providing this money.” [P. 326] A

Right of Maintenance--

----Right of maintenance does not limit itself only to food, raiment and lodging but also entails all other necessary expenses for mental and physical wellbeing of recipient. [P. 326] B

Muhammadan Law--

----Para 370(1)--Binding on father--Para 370(1) of Muhammadan Law, a father is bound to maintain his daughter till she gets married.

[P. 326] C

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 9(1-A) Maintenance--If a father fails to maintain his child, legal remedy is provided to mother/grandmother of child in term of raising said grievance before Chairman. [P. 327] D

Constitution of Pakistan, 1973--

----Art. 35--Protection--Article 35 of Constitution of Islamic Republic of Pakistan, 1973 provides protection to mother and child. [P. 327] E

Responsibility of father--

----When a woman has attained puberty she needs help and assistance of her father to formally enter matrimony--Father must function as guardian on her behalf in such marriage to enable his daughter into contract of marriage--A father is not only bound to maintain his daughter by providing financial support for her food, clothes, lodging, education, health etc. till her marriage but also responsible to bear expenses incurred on her marriage according to his financial status. [Pp. 327 & 329] F & G

Ref. 2011 (3) KHC 825.

Mr. Muhammad Jameel Rahi Sapra, Advocate for Petitioner.

Date of hearing: 10.11.2022.

Order

Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the vires of judgment and decree dated 15.12.2020 passed by the learned Judge Family Court, Phalia who partially decreed the suit of Respondents No. 1 & 2 for recovery of marriage expenses of Respondent No. 2 to the tune of Rs. 1,50,000/- and also assailed the judgment and decree dated 26.05.2021 passed by the learned Addl. District Judge, Phalia who partially accepted the appeal of the petitioner, modified the judgment and decree of the learned trial Court and decreased the amount of marriage expenses from Rs. 1,50,000/- to Rs. 1,00,000/- .

1. Brief facts of the case are that the petitioner contracted marriage with the Respondent No. 1, Mst. Shaheen Akhtar and during this wedlock, Respondent No. 2/Mst. Maryam Riaz was born. The relationship between the spouses came to an end by pronouncement of divorce by the petitioner to Respondent No. 1, however, the Respondent No. 2 grown up while being in custody of her mother/ Respondent No. 1. That the marriage of Respondent No. 2 was solemnized with one Nawazish Ali and at this marriage ceremony total expenses amounting to Rs. 3,00,000/- were afforded by the Respondent No. 1 who demanded the above said amount from the petitioner/ defendant, the real father of the Respondent No. 2 but he refused to accept the demand of the respondents. This gainsayal resulted into filing of the suit. Petitioner filed contested written statement. As per divergent pleadings of the parties, following issues were framed:

2. Whether the Plaintiff No. 1 is entitled to a decree for recovery of Rs. 03-Lacs incurred on the marriage of Plaintiff No. 2? OPP

3. Whether the plaintiff has not come to the Court with clean hands and as such is not entitled to any relief? OPD

4. Whether the suit of the plaintiffs is false and frivolous and vexatious, as such liable to be dismissed with special costs? OPD

5. Relief.

Both the parties lead their respective oral and documentary evidence. The learned Judge Family Court partially decreed the suit. Against the said judgment and decree, the petitioner filed an appeal which was partially accepted by the learned appellate Court and modified the decision of the family Court as mentioned in para one of the instant judgment. Hence, this writ petition on the ground that the petitioner being father of Respondent No. 2 has regularly paid the maintenance allowance to his daughter/Respondent No. 2 till her marriage, as such, he is not under obligation to pay her marriage expenses.

1. I have heard the learned counsel for the petitioner at full length and gone through the record with his able assistance.

2. As per divergent pleading the core controversy revolves around the pivotal question whether a Muslim father is under an obligation to pay the expenses incurred on marriage of his unmarried daughter besides paying the maintenance allowance or ‘maintenance’ of a daughter includes the ‘marriage expenses’? To answer above question, this Court intends to go through the definition of word maintenance. In Pakistan, the Muslim Family Laws Ordinance, 1961 and the West Pakistan Family Courts Act, 1964 deal with issues relating to the maintenance of the child. However, the word/term “maintenance” has not been defined in the aforesaid laws, as such, it is appropriate to borrow its literal dictionary meaning. The word “maintenance” has been defined in Black’s Law Dictionary (9th Edition) as under:

“….. 5. Financial support given by one person to another ...”

In Oxford Dictionary it has been defined as under:

“The money needed for somebody's living expenses; the act of providing this money.”

It has been defined in Para 369 of the Muhammadan Law as:

“369. Maintenance defined.--“Maintenance” in this Chapter includes food, raiment and lodging.”

The word “maintenance” is derived from Arabic word ‘Nafaq’ which means “to spend” and in literal sense, the word ‘nafaqah’ means what a person spends on his family. It is an inclusive explanation of the concept, not exhaustive and is only indicative in nature. Other liabilities are also included within the sweep of the concept of maintenance i.e. medical expenses, education expenses etc., can also go into and constitute the concept of maintenance. The right of maintenance does not limit itself only to food, raiment and lodging but also entails all the other necessary expenses for the mental and physical wellbeing of the recipient. As per Para 370(1) of the Muhammadan Law, a father is bound to maintain his daughter till she gets married. For reference, Para 370(1) is reproduced as under:

“370. Maintenance of children and grandchildren.--(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (S. 352) does not relieve the father from the obligation of maintaining them. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.”

(emphasis supplied)

As per Section 9(1-A) of the Muslim Family Laws Ordinance, 1961 [inserted through the Punjab Muslim Family Laws (Amendment) Act, 2015], if a father fails to maintain his child, legal remedy is provided to the mother/grandmother of the child in term of raising the said grievance before the Chairman. For reference, aforesaid provision is reproduced as under:

“9. Maintenance.--(1)…..

(1-A), If a father fails to maintain his child, the mother or grandmother of the child may, in addition to seeking any other legal remedy, apply to the Chairman who shall constitute an Arbitration Council and the Arbitration Council may issue a certificate specifying the amount which shall be paid by the father as maintenance of the child.”

The maintenance paid by a father to his child is not a Courtesy rather a religious, legal, moral and social duty of a father which cannot be put aside on frail grounds. Article 35 of the Constitution of the Islamic Republic of Pakistan, 1973 provides protection to the mother and child. For reference, aforesaid Articles are reproduced as under:

“35. The State shall protect the marriage, the family, the mother and the child.”

The above discussion lead to draw a conclusion that it would be absolutely safe to include marriage expenses also within the sweep of the concept of maintenance of an adult unmarried daughter.

1. The responsibility of the Muslim father is to act as guardian of his unmarried daughter. Even when a woman has attained puberty/majority she needs the help and assistance of her father to formally enter matrimony. The father must function as guardian on her behalf in such marriage to enable his daughter into the contract of marriage. This paramount responsibility of the father as guardian at the time of marriage of his daughter must necessarily bring with it the corresponding obligation to ensure that all necessary expenses in connection with the marriage are met by him. Father has the indisputable obligation to maintain his unmarried daughter and he has the obligation to ensure that the unmarried daughter under his charge is given away in marriage properly, as such the legal obligation to meet the reasonable marriage expenses of his daughter, as part of his obligation to pay maintenance to her. The responsibility of arranging marriage of a daughter undoubtedly not only requires emotional stress but also fall heavily on guardian’s pocket. Admittedly, a father is bound to maintain his daughter till her marriage but at eve of her marriage, how the burden of “maintenance”/monetary obligation can be shifted to a mother, who does not figure anywhere in the compulsion to provide “maintenance” to his children. This will not only financially burden the person (a mother) to bear the marriage expenses of her daughter but also will be against the legal norms. The Kerala High Court has elaborated the issue of payment of marriage expenses of an unmarried daughter by her father in a judgment cited as Ismayil vs. Fathima [2011 (3) KHC 825], the relevant portion whereof is reproduced as under:

“29. We are of the opinion that the above stipulations in the Personal Law, though they do not afford direct assistance to us on this controversy, can also be relied on to reach the conclusion that the Muslim father has the indisputable obligation to maintain his unmarried daughter. We find it safe to proceed to further hold that he has the obligation to ensure that the unmarried daughter under his charge is given away in marriage properly. He hence, has we hold, the legal obligation to meet the reasonable marriage expenses of his daughter, as part of his obligation to pay maintenance to her.

…….28. The above discussions lead us to the conclusion that the right/obligation to maintain the unmarried daughter includes the right/obligation to meet the marriage expenses of the unmarried daughters. This is so for all fathers -be they Hindus, Muslims, Christians or others. We adopt the following process of reasoning to, reach that conclusion. They all have the duty under their personal law to maintain their children. Even ignoring the personal law, as declared in Matliew Varghese (supra), such a right/duty can be spelt out from Article 21 of the Constitution. Duty to maintain is not limited to provide for food, raiment and lodging. It includes the duty of the obligee to do all acts for the physical, mental and moral well being of the child. That duty has to be understood in the context of the Indian society in the modern constitutional republic. The concept has to be understood identically for persons belonging to all religious faiths in the secular polity. Where the inter pretor has elbow room, he must invoke the power of interpretation as a functionary of the State consistent with the mandate of Article 44 of the Constitution. The interpretor need not wait for the Parliament to enact a uniform civil code. Till that is done by the Parliament, the interpretor as a functionary of the State must draw inspiration from Article 44 of the Constitution in performing the duty/power of interpretation. So reckoned the duty to maintain the unmarried daughters under the personal law must in the present day Indian context include the obligation to meet the Carriage expenses of the unmarried daughters. For all members of the Indian polity, this has to apply. The Muslim father also, we hence hold, has the obligation to pay/meet the marriage expenses of his unmarried daughter. We must hasten to observe that the right/duty is only to meet the reasonable expenses, that too only when the daughter is dependent on the father.”

In view of above discussion, the answer to the question proposed earlier, is that a father is not only bound to maintain his daughter by providing financial support for her food, clothes, lodging, education, health etc. till her marriage but also responsible to bear the expenses incurred on her marriage according to his financial status.

1. Another aspect of the case is that it was second marriage of the petitioner with the Respondent No. 1, out of which Respondent No. 2 was born whereas petitioner from his earlier wedlock, has five daughters who were/are maintained by the petitioner without any inconvenience or any excuse of any financial hardship. It can safely be presumed that at the time of respective marriages of his daughters from first wife, he would have faced all the required expenses without any hesitation. The petitioner/ defendant has not disputed the solemnization of marriage of his daughter/Respondent No. 2 rather he is objecting the claim of the respondents/plaintiffs towards payment of the expenses of marriage of Respondent No. 2. This contumacious refusal of the petitioner to pay the marriage expenses of his daughter/Respondent No. 2 is amount to penalizing her due to the reason that she has been living with her mother, who has been divorced by the petitioner which dissimilar treatment is evident discrimination among the daughters unfortunately applied by the father/petitioner.

2. The respondents/plaintiffs, through their suit, prayed for grant of Rs. 300,000/- as marriage expenses whereas the learned Judge Family Court accepted the claim to the tune of Rs. 150,000/- . Only the petitioner challenged the said decree through an appeal and the learned appellate Court, after considering and appreciating the oral as

well as documentary evidence of the parties, reduced the quantum of amount from Rs. 150,000/- to Rs. 100,000/- . Once again, the petitioner, instead of paying the said amount to the respondents filed the instant petition which shows his callousness towards his daughter/Respondent No. 2. The amount granted by the learned appellate Court, keeping in view the current financial needs as well as the social norms does not seem to be excessive as compare to the financial status of the petitioner, as such these findings do not require any indulgence by this Court in its constitutional jurisdiction.

1. Resultantly, this writ petition is dismissed in limine being devoid of any merits.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 330

Present: Muzamil Akhtar Shabir, J.

MUHAMMAD BASHIR--Petitioner

versus

Syed IMDAD ALI SHAH--Respondent

C.R. No. 6746 of 2020, decided on 24.11.2022.

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

----O.XXXVII--Suit for recovery--Filing of application for leave to defend--Non-attachment of affidavit with application leave to defend--Dismissal of application--Challenge to--Application for leave to defend filed by petitioner was neither itself verified nor was accompanied by an affidavit and permission had not been sought from Trial Court to subsequently file and affidavit--Petitioner disputes claim on factual ground that cheques were issued as guarantee and had been misused which plea was required to be supported by an affidavit attached with application for leave to defend but same has not been filed, ADJ was justified to dismiss application for leave to defend--Civil revision fails to show any illegality, jurisdictional defect, mis-reading and non-reading of record by Trial Court in passing well-reasoned impugned order which does not warrant any interference by this Court--Civil revision dismissed. [Pp. 332, 333 & 334] A, C & D

2015 CLC 1747, 2005 YLR 1521 & 2012 YLR 2277 ref.

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

----O.XXXVII R. 3--Leave to defend--Court has to consider application for leave to defend on basis of affidavit relating to facts submitted by applicant and not otherwise. [P. 333] B

Mr. Amir Munir Bagri, Advocate for Petitioner.

Hafiz Muhammad Saif-ur-Rehman, Advocate for Respondent.

Date of hearing: 24.11.2022.

Order

Through this civil revision, petitioner has called in question order dated 09.01.2020 passed by learned Addl. District Judge, Gujranwala whereby in suit for recovery of Rs. 15,50,000/- filed by respondent under Order XXXVII of C.P.C. against the petitioner, his application for leave to defend has been dismissed.

1. Learned counsel for the petitioner states that impugned order is not sustainable as the learned Court below has not properly appreciated the law on the subject and filing of affidavit along with application for leave to defend was not a mandatory requirement, therefore, his application for leave to defend cannot be dismissed.

2. On the other hand, learned counsel for the respondent has defended the impugned order by stating that non-filing of affidavit with application for leave to defend is fatal to the case of the petitioner.

3. Respondent filed a suit for recovery of Rs. 15,50,000/- under Order XXXVII of C.P.C. against petitioner in which application for leave to defend was filed by the petitioner on the ground that suit was barred by time and cheques given as guarantee had been misused but the said application was not accompanied by an affidavit. Learned Addl. District Judge dismissed the said application by observing as under:

“4. It is the case of plaintiff that he gave disputed amount valuing Rs. 15,50,000/- to the defendant as a loan in October 2017 subject to the condition that he would return the same in February 2018. The defendant issued disputed Cheque No. 00000013 dated 05.03.2018 valuing Rs. 10,00,000/- and cheque No. 00000014 dated 05.03.2018 valuing Rs. 5,50,000/- of HBL Mandiala Tega Kamoki Branch Tehsil Kamoki District Gujranwala in lieu of that amount which got dishonored on presentation to the concerned bank. The defendant has averred that the cheques in question were issued to the plaintiff as a guarantee and as such the plaintiff has misused these cheques after in league with Fiaz ul Haq S/o Ihsan ul Haq who was discharging his duty as his peon under Order XXXVII Rule III(1) which reads as under:

“Defendant showing defence on merits to have leave to appear. (1) the Court shall, upon application by the defendant give leave to appear and to defend the suit; upon affidavits which discloses such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.”

5. The relevant provision of law quoted above has crystal clear defines the one of pre-requisite for granting leave to defend the suit to defendant for making such application, if it is supported by an affidavit in such suit. The application for leave to defend the suit filed by the defendant is only competent if it accompanied with an affidavit. As such affidavit is a basic document u/o XXXVII Rule III, CPC which would reflect such facts, as would made it incumbent upon plaintiff to prove the consideration. Reliance is placed on reported case law titled as “Mirza Irfan vs Muhammad Yaqoob” 2011 MLD 1024 LHR.”

1. The petitioner has taken the plea that non-filing of affidavit is not fatal and has relied upon judgments reported as “Khurshid Alam and another versus Al-Khair Gadoon Limited” (2004 CLC 1266) (Lahore), “Sardar Abdur Rehman versus Fida Hussain” (1996 CLC 1571) (Pesh) and “Emirates Bank International versus United Exports Limited and 8 others” (PLD 1993 Kar 661) in support of his claim. The afore-referred plea has been considered in view of the judgments relied upon by the petitioner. In case reported as “Khurshid Alam’s case (Supra) the application for leave to defend itself was verified on oath yet was not supported by an affidavit. In the said circumstances on the ground of the application itself having been verified on oath, this Court treated the same as sufficient compliance of provision of Order XXXVII Rule 3, C.P.C. and while setting aside the order for dismissal of application for leave to defend remanded the case for decision afresh. In case reported as “Sardar Abdur Rehman’s case (Supra) the application for leave to defend was accompanied by an affidavit yet the said affidavit had not been attested by the Oath Commissioner, the High Court observed that application for leave to defend cannot be rejected solely for the reason that accompanying affidavit was not attested. In case reported as Emirates Bank International’s case (Supra) where the application for leave to defend was not accompanied by an affidavit the Court observed that Court has discretion under Section 148, C.P.C. to accept a belatedly filed affidavit.

2. In the present case, the application for leave to defend filed by the petitioner was neither itself verified nor was accompanied by an affidavit and permission had not been sought from the Trial Court to subsequently file and affidavit, hence, the afore-referred judgments referred to by the learned counsel for the petitioner are distinguishable on facts and of no benefit to him.

3. Perusal of the Rule III(1) of Order XXXVII, C.P.C. shows that Court has to consider the application for leave to defend on the basis of affidavit relating to facts submitted by the applicant and not otherwise. An exception to said legal position would be that the claim of the applicant to obtain leave to defend is based on question of law only and not on the basis of any disputed fact, then affidavit may not be required to be filed as the Court is always competent to decide the questions of law as same only require interpretation of law. But in the present case, petitioner disputes claim on factual ground that cheques were issued as guarantee and had been misused which plea was required to be supported by an affidavit attached with the application for leave to defend but the same has not been filed, therefore, learned Addl. District Judge was justified to dismiss the application for leave to defend. Reliance in this regard may be placed on judgments reported as “Muhammad Imran Hafeez vs. Naveed Ali” (2015 CLC 1747), “Raja Zahid Hussain vs. Director-General National Housing Authority, Islamabad and 2 others” (2005 YLR 1521) and “Messrs Bilour Match Industries vs. Messrs Paper World (Pvt.) Ltd.” (2012 YLR 2277), which make filing of an affidavit in support of facts a mandatory requirement.

4. As regards the plea raised by the petitioner that suit was barred by Limitation, it is pertinent to mention here that the Court in terms of Section 3 of the Limitation Act, 1908 is bound to determine the same even if not raised as a defence, which Section is reproduced below:

“3. Dismissal of suit, etc. instituted, etc. after period of limitation.--Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed although limitation has not been set up as a defence.”

1. The Court while determine the said question of limitation, which is a mixed question of law and facts may require affidavit to be attached with the application for leave to defend, if the said question is to be determined by the resolution of some disputed facts. However, if for resolution of said question of limitation, decision has to be made on admitted facts or facts which are not disputed then the Court on its own can determine the said question of limitation even if not raised by any party whether leave to defend has been granted or not.

10. In view of what has been discussed above, this civil revision fails to show any illegality, jurisdictional defect, mis-reading and non-reading of record by the Trial Court in passing the well-reasoned impugned order which does not warrant any interference by this Court. With this observation, this civil revision being devoid of merits is dismissed.

(Y.A.) Civil revision dismissed

PLJ 2023 Lahore 334 [Multan Bench Multan]

Present: Shahid Jamil Khan, J.

NEMAT ULLAH KHAN--Petitioner

versus

PROVINCE OF THE PUNJAB, etc.--Respondents

W.P. No. 17916 of 2022, heard on 30.11.2022.

Punjab Environmental Protection Act, 1997 (XXXIV of 1997)--

----Ss. 16, 18 & 19--Constitution of Pakistan, 1973, Art. 199--Violation of “zig zag” technology--Using of old technology--Imposing of penalty--Sealing of business premises--Business of “Brick Kilns”--Smog in winter season--Extreme steps were taken against petitioners--Direction to--Respondent instead of following procedure, provided under law, has taken extreme steps, against which interim relief was granted, as a result, intent and purpose of law is frustrated--Environment and consequential climate change is now biggest threat globally and Pakistan is ranked with countries most vulnerable--Cities like, Karachi and Lahore are on top of most polluted cities in world--If zigzag technology is not being used, respondent Agency can pass an Environmental Protection Order by calling responsible person--Keeping in view gravity of violation; hearing can be provided at premises and protection order should be passed immediately--If such order, in writing, is violated, anti-environmental activity should be stopped for a specified period or permanently--In case of further violation, criminal action should be taken against owner or responsible person violating direction--Petitioners’ plea that brick kilns are not contributing much in smog, cannot be taken up and decided in Constitutional jurisdiction being a purely technical issue--Determination of any anti-environmental activity, primarily, rests with Authority under Act of 1997, which can be assailed in accordance with law--An act or omission, damaging environment is a recurring damage, effecting general public globally, each incidence of violation or defiance constitutes an independent cause of action, to be taken under Act of 1997, read with ancillary and subordinate legislation--Petition disposed of. [Pp. 336, 337 & 338] A, C, F, G & H

Punjab Environment of Protection Act, 1997--

----Purpose of Act--As evident from its preamble is ‘protection, conservation, rehabilitation and improvement of environment’.

[P. 336] B

Punjab Environmental Protection Act, 1997 (XXXIV of 1997)--

----S. 11--Prohibition--There is prohibition for every person against anti-environmental activity including discharge or emission of a substance, causing air pollution. [P. 336] D

Punjab Environmental Protection Act, 1997 (XXXIV of 1997)--

----S. 16--Appropriate measure--Where Provincial Agency is satisfied that any anti-environmental activity, as prescribed in law, is likely to occur, is occurring or has occurred--It can direct person to take appropriate measure. [P. 336] E

M/s. Chaudhary Muhammad Shahid Ansari, Peer Masood-ul-Hassan Chishti and M. Fayyaz Mansab Sukhera, Advocates for Petitioners.

Rana Muhammad Arif Kamal Noon, Additional Advocate General, Punjab for Respondents.

Mr. Misbah-ul-Haq Lodhi, Deputy Director (Environment), Multan for Respondents.

Date of hearing 30.11.2022.

Judgment

The petitioners in this and connected petitions (W.P.Nos.2264, 17420, 15530 of 2020 and 12075 of 2022) being owners of “Brick Kilns” are aggrieved of imposition of penalty and proposed sealing of business premises for alleged violation of using old technology (‘BTK’) instead of approved ‘zigzag’ technology.

1. Learned counsel for the petitioner submits that approval and infrastructure of zigzag technology is not in accordance with the provisions of the Punjab Environmental Protection Act, 1997 (“Act of 1997”). It is apprised during proceedings before the Lahore High Court as well august Supreme Court of Pakistan, a Commission was appointed for recommendations and suggestions to control smog in winter season. As per Commission’s report, brick kiln’s association had agreed for use of zigzag technology and, in particular, closure of their production during winter season in the areas usually hit by smog.

Learned counsel for the petitioners has attempted to argue that imposition of zigzag technology is not in accordance with the provisions of the relevant law. Also submits that direct sealing of business or its premises along with imposition of penalty is in violation of the provisions and procedure under the Act of 1997.

Learned AAG assisted by Mr. Misbah-ul-Haq Lodhi, Deputy Director (Environment), Multan is confronted, whether procedure under the law is followed, the answer is in negative. It is, however, explained that fine is being imposed on direction by High Court, but could not show any order in support.

1. Heard. Record perused.

2. The tendency to take shelter, in absence of clear written direction of High Court has to be curbed, therefore, is deprecated. The respondent Agency, instead of following the procedure, provided under the law, has taken extreme steps, against which interim relief was granted, as a result, the intent and purpose of the law is frustrated. Purpose of the Act of 1997, as evident from its preamble is ‘protection, conservation, rehabilitation and improvement of the environment’. Environment and consequential climate change is now biggest threat globally and Pakistan is ranked with the countries most vulnerable. Cities like, Karachi and Lahore are on top of the most polluted cities in the world.

3. Under Section 5 of the Act of 1997, Provincial Environmental Protection Agency is established, which is empowered, under Section 7(g), to enter and inspect, under authority of search warrant, a place, having reasonable ground to believe that an offence under the Act of 1997 is being committed. Under Section 11, there is prohibition for every person against anti-environmental activity including discharge or emission of a substance, causing air pollution. Environmental Protection Order can be passed, under Section 16 of the Act of 1997, where the Provincial Agency is satisfied that any anti-environmental activity, as prescribed in the law, is likely to occur, is occurring or has occurred. It can direct the person to take appropriate measure, as prescribed in Section 16(2) of the Act of 1997. Section 16 of the Act of 1997 is reproduced:

“16. Environmental protection order.-(1) Where the Provincial Agency is satisfied that the discharge of emission of any effluent, waste, air pollutant or noise, or the disposal of waste, or handling of hazardous substance, or any other act or omission is likely to occur, or is occurring, or has occurred, in violation of any provision of this Act, rules or regulations or of the conditions of a license, or is likely to cause, or is causing, or has caused an adverse environmental effect, the Provincial Agency may, after giving the person responsible for such discharge, emission, disposal, handling, act or omission an opportunity of being heard, by order, direct such person to take such measures as the Provincial Agency may consider necessary within such period as may be specified in the order.”

(2) In particular and without prejudice to the generality of the foregoing power, such measures may include–

(a) immediate stoppage, preventing, lessening or controlling the discharge, emission, disposal, handling, act or omission, or to minimize or remedy the adverse environmental effect;

(b) installation, replacement or alteration of any equipment or thing to eliminate or control or abate on a permanent or temporary basis, such discharge, emission, disposal, handling, act or omission;

(c) action to remove or otherwise dispose of the effluent, waste, air pollutant, noise, or hazardous substances; and

(d) action to restore the environment to the condition existing prior to such discharge, disposal, handling, act or omission, or as close to such condition as may be reasonable in the circumstances, to the satisfaction of the [Provincial Agency].

(3) Where the person, to whom directions under sub-section (1) are given, does not comply therewith, the [Provincial Agency] may, in addition to the proceeding initiated against him under this Act or the rules and regulations, itself take or cause to be taken such measures specified in the order as it may deem necessary, and may recover the costs of taking such measures from such person as arrears of land revenue.

[emphasis supplied]

Under the provisions, ibid, if zigzag technology is not being used, the respondent Agency can pass an Environmental Protection Order by calling the responsible person (Sections 18 & 19) or by visiting the premises, where violation is being committed. Keeping in view the

gravity of the violation; hearing can be provided at the premises and protection order should be passed immediately. If such order, in writing, is violated, the anti-environmental activity should be stopped for a specified period or permanently. In case of further violation, criminal action should be taken against the owner or responsible person violating the direction. Under Section 17, if proceedings are not in accordance with law, the aggrieved person has remedy before the Environmental Tribunal under Sections 21 and 22 of the Act of 1997.

1. Petitioners’ plea that brick kilns are not contributing much in the smog, cannot be taken up and decided in Constitutional jurisdiction being a purely technical issue. Determination of any anti-environmental activity, primarily, rests with the Authority under the Act of 1997, which can be assailed in accordance with law.

2. Learned Law Officer assisted by Mr. Misbah-ul-Haq Lodhi, Deputy Director (Environment), Multan has undertaken on behalf of the Director General (Environment) that the procedure noted in the Act of 1997 and explained hereinabove shall be followed. It is, however, clarified that following this procedure does not mean that action would be delayed. An act or omission, damaging environment is a recurring damage, effecting general public globally, therefore, each incidence of violation or defiance constitutes an independent cause of action, to be taken under the Act of 1997, read with the ancillary and subordinate legislation.

3. The petitioner in this and connected petitions be provided opportunity of being heard on 02.12.2022 and an order, if required, under Section 16(1) of the Act of 1997 be passed and the petitioner in this and connected petitions be treated strictly in accordance with law.

Petitions are disposed of with direction and in the manner noted herein.

(Y.A.) Petition disposed of

PLJ 2023 Lahore 338 (DB)

Present: Abid Aziz Sheikh and Sultan Tanvir Ahmad, JJ.

AKMAL AZIZ and 3 others--Petitioners

versus

HABIB BANK LIMITED and another--Respondents

E.F.A. No. 66967 of 2021, heard on 22.11.2022.

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

----O.XXI Rr. 89 & 90--Financial Institutions (Recovery of Finances) Ordinance, (XLVI of 2001), Ss. 9 & 22--Suit for recovery--Decreed--Order to auction of property--Auction was challenged by deceased judgment debtor on grounds of irregularities in auction--Objection petition--Dismissed--Appeal before Supreme Court--Order of banking Court was upheld by Supreme Court--Auction was confirmed--Order of Apex Court was attained finality--Confirmation of sale--Filing of objections--Dismissed--Stance of fraud was not with drawl by judgment-debtor--Deceased judgment-debtor in his life time exercised his right to file objection in terms of Order XXI, Rule 90 of Code instead of seeking his remedy under Order XXI, Rule 89 of Code--He never opted to withdraw such objection to avail remedy under Order XXI, Rule 89 of Code, either--Deceased judgment-debtor opted not to withdraw from his stance of fraud and irregularity up till Honourable Supreme Court of Pakistan--Banking Court has already rejected claim of deceased judgment-debtorand rejection order in application under Order XXI, Rule 90 of Code attained finality up to level of Honourable Supreme Court of Pakistan--Appeal dismissed.

[Pp. 341, 342 & 345] A, C & D

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

----O.XXI Rr. 89 & 90--Acquisition of property--Any person owning a property or holding any interest of title, acquired before sale, can apply under said rule but subject to condition that if he has applied for setting aside sale under Order XXI, Rule 90 of Code, he must withdraw same before he seeks relief under Order XXI, Rule 89 of Code. [P. 341] B

Mr. Muhammad Shahzad Shaukat, ASC and Mr. Nadeem Irshad, Advocate for Petitioners.

Mr. Ashar Elahi, ASC for Respondents.

Date of hearing 22.11.2022.

Judgment

Sultan Tanvir Ahmad, J.--Present Execution First Appeal, filed under Section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (the “Ordinance”), is directed against judgment dated 08.10.2021 passed by learned Banking Court-I, Lahore (the “Banking Court”), whereby, the objection petition dated 15.09.2020, filed by the appellants under Order XXI, Rule 89 of the Code of Civil Procedure, 1908 (the “Code”), has been dismissed.

1. Facts, necessary for the disposal of the present appeal are, that Respondent No. 1 filed suit for recovery under Section 9 of the Ordinance, which was decreed against the predecessor of the appellants namely Aziz Ahmed (hereinafter called as the “deceased judgment-debtor”) and for the satisfaction of the said decree, property measuring 01-kanal, residential house bearing No. 41-A, College Block, Allama Iqbal Town, Lahore (hereinafter called as the “property”) was auctioned on 20.08.2014. The auction was assailed by the deceased judgment-debtor on the grounds of irregularities, fraud as well as allegation of auction at throwaway price etc., under Order XXI Rule 90 of the Code, which was dismissed by the learned Banking Court on 14.11.2014. This order of dismissal of objection petition filed by the deceased judgment-debtor was assailed but it was maintained up to the Honourable Supreme Court of Pakistan. Upon the dismissal of the objection petition, filed under Order XXI, Rule 90 of the Code, on 08.09.2020 the learned Banking Court confirmed the auction which took place on 20.08.2014, in terms of Order XXI, Rule 92(1) of the Code. After confirmation of the sale, the appellants, being legal representatives of the deceased judgment-debtor filed objections under Order XXI, Rule 89 of the Code on 14.09.2020. The objections were dismissed vide the judgment dated 08.10.2021. Aggrieved from the same, present appeal has been filed.

2. Mr. Muhammad Shahzad Shaukat, learned Senior, ASC and Mr. Nadeem Irshad, learned counsel for the appellants have submitted that the learned Banking Court should have issued notices to the legal representatives of the deceased judgment-debtor i.e. the appellants in terms of Order XXI, Rule 22 of the Code and the proceedings including the confirmation of the sale have been conducted in violation of the said rule as well as Section 50 of the Code. They have added that upon the death of judgment-debtor, the property devolved upon the legal representatives, who became “persons having interest in the property” in terms of Order XXI, Rule 89 of the Code , thus, confirmation of auction without notice is void; that since the estate devolved upon the legal representatives, therefore, they were not bound by the defence taken by the deceased judgment-debtor and upon death, the legal representatives have rightly filed the objections in terms of Order XXI, Rule 89 of the Code. In this regard, they have relied upon the judgments from various jurisdiction, including the judgments in the cases titled “Muhammad Khalil versus Messrs Faisal M.B. Corporation and Others” (2019 SCMR 321) and “Minor Smt. Shanti Devi versus Khandubala Dasi and Ors “ (AIR 1961 Cal 336).

3. Conversely, Mr. Ashar Elahi, learned counsel for the Respondent No. 2 has vehemently opposed this appeal and he has relied upon Section 146 of the Code, while submitting that the appellants stepped into the position of the deceased judgment-debtor and they are not entitled to make application under Order XXI, Rule 89 of the Code as their predecessor could not do the same, after dismissal of the application under Order XXI, Rule 90 of the Code.

4. We have heard the arguments and perused the record with the able assistance of learned counsel for the parties.

5. The auction in the present case took place on 20.08.2014, which was assailed by the deceased judgment-debtor by filing objections on the grounds of irregularities, fraud and the allegation of auction of the property at throwaway price. The same was dismissed by the learned Banking Court on 14.11.2014 and the deceased judgment-debtor kept maintaining his stance of fraud and irregularities up to the Honourable Supreme Court of Pakistan, where this stance was rejected in the life time of the deceased judgment-debtor. The position is that the deceased judgment-debtor in his life time exercised his right to file objection in terms of Order XXI, Rule 90 of the Code instead of seeking his remedy under Order XXI, Rule 89 of the Code. He never opted to withdraw such objection to avail remedy under Order XXI, Rule 89 of the Code, either.

6. It is manifest from the language of Order XXI, Rule 89 of the Code that any person owning a property or holding any interest of title, acquired before the sale, can apply under the said rule but subject to the condition that if he has applied for setting aside the sale under Order XXI, Rule 90 of the Code, he must withdraw the same before he seeks relief under Order XXI, Rule 89 of the Code. Here, it is appropriate to reproduce Order XXI, Rule 89 of the Code, which is as follows:-

“89. Application to set aside sale on deposit.--

(1) Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in Court,--

(a) for payment to the purchaser, a sum equal to five percent. of the purchase-money, and

(b) for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

(2). Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.

(3). Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale”.

(Emphasis supplied)

1. The deceased judgment-debtor opted not to withdraw from his stance of fraud and irregularity up till the Honourable Supreme Court of Pakistan. In this situation, the learned Banking Court passed the order of confirming the sale in terms of Order XXI, Rule 92 of the Code that reads as follows:-

“92. Sale when to become absolute or be set aside--

(1) Where no application is made under Rule 89, Rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.

(2). Where such application is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within thirty days from the date of sale, the Court shall make an order setting aside the sale:

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby”.

(3). XXX.

(Emphasis supplied)

1. It is clear from wording of above provisions of law that if a person fails to file application under Order XXI, Rule 89 of the Code and his application under Order XXI, Rule 90 of the Code is also dismissed, the Court does not have choice but to proceed to pass an order confirming the sale, which then becomes absolute. Reference can be made to the cases titled “Zakaria Ghani and 4 others versus Muhammad Ikhlaq Memon and 8 others”(2016 CLD 480), “Mir Wali Khan and another versus Manager, Agricultural Development Bank of Pakistan, Muzaffargarh and another”(PLD 2003 Supreme Court 500), “Muhammad Hussain versus Industrial Development Bank of Pakistan, Hyderabad and another” (2014 MLD 192) and “Janak Raj versus Gurdial Singh and another “ (1967 AIR (SC) 608).

2. In “Zakaria Ghani and 4 others” case (supra), the Honourable Supreme Court of Pakistan has observed that where application under Order XXI, Rule 90 or 89 of the Code is not made or such application is rejected, it becomes mandatory for the Court to make an order of confirmation. The Honourable Supreme Court of Pakistan has also held that if judgment-debtor chooses not to take advantage of the opportunity provided to him by the law (i.e. failure to file application under above said rules), the matter comes to an end. It will be advantageous to reproduce the relevant extracts of “Zakaria Ghani and 4 others” case (supra), as follows:-

“….The above is further clarified by the provisions of Order XXI, Rule 92, C.P.C. which lays down explicitly the consequences of a failure to make an application under Order XXI, Rule 89 or Order XXI, Rule 90. The said provision states that where no such application has been made under the above mentioned rules, or where such application has been made and disallowed, it becomes mandatory on the Court to make an order confirming the sale and thereupon the sale becomes absolute. These provisions leave no doubt for any ambiguity in the matter. The plaintiff has not merely a legal right flowing from the contract between the parties but a statutory right crystallized in the form of a decree passed by a Court of competent jurisdiction. The law has laid down the only methods available in order to challenge such a crystallized right vesting in a plaintiff. If a judgment debtor chooses not to take advantage of the opportunities afforded to him by the law the matter comes to an end.”

(Underlining is added)

1. The application under Order XXI, Rule 90 of the Code was dismissed in the life time of the deceased judgment-debtor, who failed to exercise his right under Order XXI, Rule 89 of the Code, within permissible time after the sale that took place on 20.08.2014 by depositing the amount as stipulated in Order XXI, Rule 89(1) (a) and (b) read with Order XXI Rule 92(2) of the Code, thus, the deceased judgment-debtor was left with no interest that could be affected or which could have been passed on to the legal representatives.

2. The deceased judgment-debtor after the above situation, if alive, could not have done anything, therefore, interest of justice is not likely to be defeated by not giving fresh notices to the legal representatives. The similar question was raised before the learned High Court of Andhra Pradesh in case titled “R.Rajamma versus Avula Saraswathamma and Others”(1973 AIR (A.P.)132) and somewhat the similar conclusion was drawn and it was observed that filing of application under Order XXI, Rule 89 or Rule 90 of the Code and getting them disallowed, thus, exhausting practically all the remedies available to deceased judgment-debtor, therefore, left little or nothing for any one, much less for his legal representatives to agitate, thereafter.

3. It will also be beneficial to reproduce the following conclusion in “R.Rajamma” case (supra):

“36. It may be noted that the provision of law as found adumbrated in sub-rule (1) of Rule 92 also does not provide for bringing on record the legal representatives of the judgment-debtor, who dies between the date of sale and the date of confirmation. It may also be noted that the duty imposed upon the Court, under the aforesaid provision, is couched in a mandatory form, leaving little or no discretion with the Court, excepting that of making an order of confirmation, provided the conditions, mentioned therein, are found fulfilled and the conditions in this case, as contemplated under sub-rule (1) of rule 92, as already noted above, were found fulfilled in the sense that the applications made by the judgment-debtor, under Rules 89 and 90 of Order XXI, Civil Procedure Code were disallowed by the Court, thus leaving the Court free to discharge its duty. That factual situation was not disputed by the counsel appearing for the respondents. We may also notice, in this connection, that the provision as is contained in the proviso appended to sub-mile (2) of Rule 92, requiring the issuance of notices to the persons affected, is found designedly absent in the case obtaining under sub-rule (1) of Rule 92, the reason being obvious. While setting aside the sale if there are certain persons that are likely to be affected, notices shall have to be given under sub-rule (2) of Rule 92, but, in a case where all the remedies available under Rules 89, 90 and 91 by an application filed within thirty days after the sale, were found to have been exhausted and when such applications under Rules 89, 90 and 91 were disallowed, there is no one, who can be said to have had his interest affected as to be given any notice. We may also note, in this connection, that for getting an order of confirmation passed under sub-rule (1) of Rule 92 no application by any person need be filed to the Court, nor the provisions of the Limitation Act as applicable to application under rules 89, 90 or 91 are attracted to a case contemplated under sub-rule (1) of Rule 92. On account of the omission, under sub-rule (1) of Rule (92), to provide for the issuance of a

notice to the persons concerned, as provided for in the proviso appended to sub-rule (2) it may safely be assumed that the object of the Legislature in enacting a provision like sub-rule (1) of Rule 92 is to render the sale as confirmed, under that Rule, subject to the fulfillment of the conditions mentioned therein immune from any attack from any quarter, as, otherwise, the possibility of securing the maximum price in the sale of immovable property effected in execution of a decree, will be slender.

(Emphasis supplied)

1. As far as reliance of Mr. Shahzad Shoukat, learned Senior ASC on “Minor Smt. Shanti” case (supra) is concerned, suffice to say that the judgment-debtor in the said case died after proclamation of the sale but before the sale/auction took place, thus, that case is clearly distinguishable from the case in hand. Likewise, the other case laws, including “Muhammad Khalil” case (supra) relied by Mr. Shahzad Shoukat are of no help to the appellants. In “Muhammad Khalil” case (supra) the Honourable Supreme Court of Pakistan reached to the conclusion in favour of the judgment-debtor on the basis that the property was sold for less than the market value, whereas, in the present case the learned Banking Court has already rejected the claim of the deceased judgment-debtor vide order dated 14.11.2014 and the rejection order in the application under Order XXI, Rule 90 of the Code attained finality up to the level of the Honourable Supreme Court of Pakistan.

2. In view of the above, we are of the considered view that the learned Banking Court has rightly dismissed the objection petition. Consequently, the present appeal is dismissed with no order as to costs.

(Y.A.) Appeal dismissed

PLJ 2023 Lahore 345 [Multan Bench, Multan]

Present: Muhammad Shan Gul, J.

MUHAMMAD RAMZAN--Petitioner

versus

STATE, etc.--Respondents

W.P. No. 253 of 2022, heard on 26.1.2022.

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

----Ss. 63 & 173(i)--Power of discharge--Report of police officer--The Criminal Procedure Code, 1908 empowers Magistrates to discharge an accused at two stages after an FIR is lodged; First, through Section 63 of Cr.P.C. during course of an investigation and then by means of Section 173(3), after investigation by Police results in a final report to be submitted in terms of Section 173(1)--High Court observed that conflicting authorities exist regarding whether at time when an accused is presented before a Magistrate for grant of physical remand under Section 167, Magistrate can exercise power under Section 63 and discharge an accused and then followed view endorsing discharge at such time if evidence collected by police is grossly deficient--Police, in case before High Court has, however, requested for accused to be sent to judicial lock up.

[P. 350] A & B

2021 PCr.LJ 1393.

Duty of Magistrate--

----Prime duty and obligation of Magistrate is to safeguard liberty of citizens and to protect them from frivolous criminal prosecution where it appears that it is an attempt to entangle citizens in such prosecution. [P. 350] C

PLD 1987 Lahore 236 & 1997 MLD 1135.

Discharge order--

----The judgments of Hon’ble Superior Courts show that an order of discharge of an accused (i) must be a reasoned order based upon evaluation of evidence by judicial application of mind and (ii) should not have effect of choking investigation at a nascent stage and in circumstances should not kill case of prosecution prior to giving complainant an opportunity to prove case against accused.

[P. 352] D

2006 SCMR 1920 & 2020 PCr.LJ 130.

Power of Magistrate--

----It is only when circumstances of case viewed with evidence available obviously dispel involvement of an accused in commission of an alleged offence that a magistrate is empowered to discharge accused and order of a Magistrate must pass test of a speaking, reasoned and judicial order which must show application of judicial mind upon facts of case, shed light on extent of investigation conducted in matter, evidence collected and probability of incrimination of accused on basis of present or prospective investigation. [P. 356] E

AIR 2011 SC 1103.

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

----Ss. 302/34--Criminal Procedure Code, (V of 1898), Ss. 63 & 173--Constitutional petition--Jurisdiction and power of magistrate--Ocular account of accused--Misreading of law--Lack of proper application of mind--A Magistrate Ist Class has ceded jurisdiction to Investigation Agency by blindly relying on its slipshod investigation conducted with respect to an accused in a murder case and spanning only four days--He has ceded jurisdiction to the Investigation Agency by blindly relying on its slipshod investigation conducted with respect to an accused in a murder case and spanning only four days. The Magistrate has abdicated his authority to the Investigation Agency and which is why his order betrays a failure to exercise jurisdiction that the law vests in him--Why Magistrate was not relying on medical report which supports ocular account of accused having caused a specific firearm injury to deceased--Magistrate has, through misunderstanding of law and by means of lack of proper application of mind, exercised his jurisdiction absolutely wrongly and in defiance of settled principles of criminal justice--Where statements of complainant and witnesses recorded under Section 161, Cr.P.C. were available on record and supportive of case of complainant, a discharge order cannot be passed--If any evidence suggests non-involvement of Respondent No. 5, same would clearly be in conflict with statements of eye witnesses and hence impugned order makes mistake of opining upon a factual controversy and which exercise is reserved for trial Court to undertake after recording of evidence.

[Pp. 357, 358, 359 & 360] F, G, H, I & J

PLD 2001 Lahore 271, PLD 2020 Lahore 931, PLD 1962 SC 480, PLD 1962 SC 480, 2020 PCr.LJ 835, 2019 YLR 2178 & PLD 1997 Lahore 164.

Qazi Sadar-ud-Din Alvi, Advocate for Petitioner.

Mr. Muhammad Amir Khan Bhutta, Advocate for Respondent No. 5.

Mr. James Joseph, Advocate, as a friend of Court.

Mr. Hassan Mahmood Khan Tareen, DPG and Malik Shoukat Mahmood Mahra, AAG for Respondents.

Date of hearing: 26.1.2022.

Judgment

Through this judgment the titled constitutional petition is sought to be decided.

1. Facts in brief are that a crime report Bearing No. 301/2021 was lodged at P.S. Sadar, Taunsa Sharif, D.G. Khan by the petitioner, Muhammad Ramzan (complainant) under Section 302/34, PPC dated 15.11.2021 in respect of the murder of his real brother. He implicated, in his capacity as complainant-cum-eye-witness, four persons including Saddam Hussain, Respondent No. 5, in the present petition, as accused. The deceased sustained four firearm injuries and one out of which hit him on his left thigh and which was attributed to Respondent No. 5, Saddam Hussain. A brother of Respondent No. 5, Ghulam Yasin, another accused to whom a firearm injury was also attributed was arrested and during investigation he led to the recovery of a pistol.

2. Respondent No. 5 i.e. Saddam Hussain, was arrested on 12.12.2021 and the Investigation Branch of police obtained a four days physical remand. After the expiration of remand, the Investigation Officer filed an application seeking extension in remand of Saddam Hussain. This application is indeed ‘friendly’ in nature and equally irreconcilable as well. It is stated in the application that while Respondent No. 5 was found present at the spot he was found to be unarmed and that nothing remained to be recovered from Respondent No. 5, Saddam Hussain but that he may be sent in judicial remand.

3. A learned Magistrate, 1st class, Taunsa Sharif, vide order dated 17.12.2021 declined the request for judicial remand and rather discharged Respondent No. 5, Saddam Hussain from FIR No. 301/2021. The present petition lays a challenge to this order and prays for a certiorari.

4. Learned counsel for the petitioner submits that the petitioner is aggrieved of order dated 17.12.2021 whereby Respondent No. 5 Saddam Hussain, a nominated accused with a specific role in FIR No. 301/2021 under Section 302, PPC Police Station, Saddar Taunsa Sharif, District D.G Khan has been discharged by a Magistrate without there being before him any request for such discharge. Counsel submits that the petitioner’s real brother was killed by respondents including Respondent No. 5 and an FIR was registered but that instead of properly investigating the matter, the police, apparently in collusion with the respondents filed a tailored request for seeking further remand of Respondent No. 5 and upon which request instead of allowing remand or denying remand and sending Respondent No. 5 in judicial custody, Respondent No. 5 was discharged from the case.

5. Learned counsel submits that even if the police request was to be relied upon blindly, even then the proper course for the learned Magistrate was to have sent Respondent No. 5 to the judicial lockup and not discharge him altogether. Adds that prosecution witnesses still support the case of the petitioner, that Respondent No. 5 has been saddled with a specific role, that medical evidence corroborates the ocular account and that the application filed by the police seeking remand itself reeks of collusion between the police and Respondent No. 5 since on the one hand the application notes that there is nothing to be recovered from Respondent No. 5 and in the same breath prays for remand of four days in respect of Respondent No. 5. Learned counsel for the petitioner adds that the order under challenge is preposterous and that the right of the complainant especially recognized and acknowledged in Qisas related offences has been compromised.

6. On the other hand, learned Assistant Advocate General as also the DPG have opposed this petition by relying on the plea that such power as has been exercised by the Magistrate is inherent in Section 167, Cr.P.C. and is not dependent upon any application being made. They have drawn the attention of this Court to Volume 3, Chapter 11-B High Court Rules and Orders as also to the case of “Nazeer Ahmad vs. The State etc” (PLD 1987 Lahore 236) for the said purpose. They maintain that discharge does not mean acquittal and it only means that an accused person is placed in column No. 2 of the report under Section 173, Cr.P.C. who can well be summoned to face trial. They add that such a person can be reinvestigated for his role and can even be arrested after seeking permission from the Magistrate concerned. They round of by submitting that the petitioner’s approach to this Court is nothing more than a case of ‘much ado about nothing’.

7. Mr. James Joseph, Advocate was asked to assist the Court as a friend of the Court. He argued that the order of discharge is based on extraneous considerations because in the presence of overwhelming evidence being available against Respondent No. 5, Saddam Hussain, the Magistrate ought not to have discharged him. He submitted that in view of the law laid down by this Court in “Iftikhar Ahmed v. The State and others” (PLD 2020 Lahore 931) at paragraph No. 6 the order under challenge could not be sustained.

8. Learned counsel for the complainant, on the other hand, has defended the impugned order passed by the Magistrate ordering discharge. He has adopted arguments of the learned Law Officers and submits that there is nothing novel about the order under challenge and that since there are remote chances of Saddam Hussain’s conviction, the order under challenge should not be interfered with.

9. Heard. Record perused.

POWER OF DISCHARGE:

1. The Criminal Procedure Code, 1908 empowers Magistrates to discharge an accused at two stages after an FIR is lodged; First, through Section 63 of Cr.P.C. during the course of an investigation and then by means of Section 173(3), after investigation by the Police results in a final report to be submitted in terms of Section 173(1).

“63. Discharge of person apprehended: No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.

1. Report of police officer: (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer incharge of the police-station shall [through the Public Prosecutor]--

(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.”

CAN THE ACCUSED BE DISCHARGED UNDER SECTION 63 WHEN APPLICATION FOR REMAND IS FILED UNDER SECTION 167:

1. In “Muzaffar Ahmad v. The State and 2 others” (2021 P.Cr.L.J. 1393), this Court observed that conflicting authorities exist regarding whether at the time when an accused is presented before a Magistrate for the grant of physical remand under Section 167, the Magistrate can exercise power under Section 63 and discharge an accused and then followed the view endorsing discharge at such time if the evidence collected by the police is grossly deficient. Police, in the case before this Court has, however, requested for the accused to be sent to judicial lock up.

2. This Court endorsed the discharge order since the offence forming FIR was primarily civil in nature and the Hon’ble Court opined that the prime duty and obligation of the Magistrate is to safeguard the liberty of citizens and to protect them from frivolous criminal prosecution where it appears that it is an attempt to entangle citizens in such prosecution despite the dispute being civil in nature.

“17. It is the sacred duty of the Magistrate to protect the rights of the people. In Zahira Habibulla H. Sheikh and another v. State of Gujarat and others (AIR 2004 SC 3114) the Supreme Court of India held that “the concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata … It will be not correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson’s eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society.” Therefore, the Magistrate must apply his mind to the facts and circumstances of the case while discharging an accused and should be honest, fair and just to the accused as well as the prosecution. For this purpose, he must, inter-alia, take the following things into consideration: (a) the nature of allegations against the accused; (b) the evidence collected/likely to be collected; and (c) the defence plea of the accused and the evidence, if any, he has produced in support thereof. The Magistrate should thoroughly examine the police diaries and record reasons for his opinion.

1. The validity of an order of discharge does not depend on the period that the accused had been in the custody of the police and the time they had to investigate the case but is determined on the basis of the factors mentioned in the preceding paragraph. I must, however, add that the Magistrate should not act in haste and see that his order of discharge does not nip the prosecution case.”

2. In “Nazir Ahmad v. The State” (PLD 1987 Lahore 236), it has been held as follows:-

“If the Magistrate finds that no case at all is made out against the accused, he is justified in not granting the remand and discharging the accused from the case. The power of discharging an accused from a case is, therefore, inherent in Section 167. If the Investigating Officer finds that the said accused is innocent or that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the said accused to a Magistrate for trial, there is nothing to prevent him from applying under Section 167 of the Code, read with Section 63 thereof, for his discharge from the case. Section 63 clearly states that no person who has been arrested by a police officer can be discharged except on his own personal bond, or on bail, or under the special order of a Magistrate. Since the power of discharging an accused from a case during investigation is inherent in Section 167 of the Code, an order under the said section can be passed on the report of a police officer praying for his discharge. Such an order would be the “special order of a Magistrate’ as contemplated in Section 63.”

1. In “Rehmat Ali v. Nazir Hussain” (1997 MLD 1135) it has been held as follows:-

“The Magistrate before whom an arrested person is produced, may proceed under Section 63 read with Section 167, Cr.P.C. to make a special order to release or discharge such person if the police has not been able to show sufficient cause for remanding the accused to police custody. These Sections also imply that the investigation is to be completed within 24 hours and if it is not possible then the Magistrate may grant remand of an arrested person subject to a term not exceeding 15 days in the whole. It is thus obvious that under the law a Magistrate is competent to either remand an accused to the police custody subject to a term not exceeding 15 days or he may make a special order to discharge such person.”

1. The current view seems to be that a Magistrate can even discharge an accused at the stage when such accused is produced for the grant of physical remand.

WHEN SHOULD A DISCHARGE ORDER BE PASSED:

1. The judgments of the Hon’ble Superior Courts show that an order of discharge of an accused (i) must be a reasoned order based upon evaluation of evidence by judicial application of mind and (ii) should not have the effect of choking investigation at a nascent stage and in the circumstances should not kill the case of prosecution prior to giving the complainant an opportunity to prove the case against accused.

2. In “Hidayatullah and others v. The State through Advocate-General, N.W.F.P. Peshawar High Court, Peshawar” (2006 SCMR 1920), it has been held as follows:-

“8. It is a settled principle of law that it is the discretion of the magistrate concerned to pass order under Section 63 of the Code of Criminal Procedure to discharge the accused persons. However, the discretion must be exercised by the concerned magistrate justly, fairly and in case discharge order was passed by magistrate mechanically without application of his independent mind to the facts of the case, blindfolded acceptance of a recommendation of the police in that regard, perversity of reasoning and adoption of a procedure which offends against the letter and spirit of the law relating to discharge, then High Court has ample jurisdiction to interfere and set aside such an order Section 561-A, Cr.P.C.”

1. The case reported as “Atif Muhammad Khan v. The State through Station House Officer Police Station Lohi Bher, Islamabad and 2 others” (2020 P.Cr.L.J. 130): deals with discharge under Section 173(3) i.e after filing of Challan:-

“12. The upshot of the above case law is that a Magistrate before whom report under Section 173, Cr.P.C. is filed can either agree with the same or disagree. The disagreement has to be based on the cogent ground but should not amount to interference in the investigation of the matter. The conclusion reached by the Investigating Officer, if is discrepant on the face of record and seems to be based in violation of law or the facts and circumstances of the case can be interfered with; however, the Magistrate while doing so and disagreeing with the report has to do the same through a reasoned and speaking order. The Magistrate while scrutinizing the report filed by the Investigating Officer though does not act as a Judicial Officer but does so in administrative capacity but the order passed should have the attributes of the judicial order inasmuch as the same should be reasoned based on cogent grounds and the law.”

1. In “Khadim Hussain Shah v. Judicial Magistrate and others” (2019 MLD 363) it has been held as follows:-

“5. Undeniably, petitioner is the complainant of case FIR No. 255, dated 02.03.2017, offence under Section 406, P.P.C., registered with Police Station, Batala Colony, Faisalabad. Bare perusal of the impugned order reflects that on 21.04.2017, only one day physical remand was granted by the learned Illaqa Magistrate. On 22.04.2017, the Investigating Officer produced the accused seeking further physical remand of ten days, but the learned Illaqa Magistrate instead of taking into consideration the material available on the record in its true perspective while declining the request of the Investigating agency in this regard proceeded to discharge the accused. It is worth mentioning here that allegation against the accused is that he has misappropriated an amount of Rs. 17,00,000/-belonging to the complainant. Keeping in view the peculiar facts and circumstances of the instant case coupled with the allegation of misappropriation of huge amount, this Court is of the firm view that the learned Illaqa Magistrate has discharged the accused in haste without affording proper opportunity to the Investigating Officer to conclude his investigation quite in accordance with law.

1. In “The State through Advocate-General N.W.F.P. v. Ubaidullah and another” (2005 MLD 1883) it has been held as follows:-

“17. Sections 63 and 169, Cr.P.C. empower the Magistrate to discharge an accused before trial. Section 63, Cr.P.C. has laid an embargo on the discharge of accused under arrest. Such an accused could be discharged only on obtaining sureties bail bound or personal bond of the accused on a special order of Magistrate. The special order is made during investigation on the request/case diary of investigation only. The Magistrate cannot sit to decide a criminal case during investigation. If Magistrates are given the powers to discharge and release an accused person at the very initial stage, there will be no room for success in blind heinous criminal case which always investigated at different theories of probabilities based on spy information. Once an accused is apprehended and found innocent he can only be set free during investigation by obtaining discharge order from Court, Discharge of an accused is also governed by Section 169, Cr.P.C. which is at the conclusion of investigation and on submission of report under Section 173, Cr.P.C.

1. In “Shahid Raza Bhatti v. Magistrate Section 30, District Courts, Rawalpindi and 2 others” (1999 MLD 1847) it has been held as follows:-

“6………..Thus, it is clear that impugned order cannot be said to have been passed under Section 63, Cr.P.C. The power of release/discharge has been given even to a police officer as is evident from the provisions of Section 169, Cr.P.C. However, the said provisions can only be pressed into service if upon an investigation under this chapter it appears to the officer Incharge of the police station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Even this situation had not cropped up in the instant case as the learned Magistrate had stiffled the investigation in its very inception by refusing the remand and, consequently, discharging the accused/Respondent No. 2. The authority relied upon by the learned counsel for Respondent No. 2 also does not come to his rescue, as in the said authority the order of discharge had been passed by a Magistrate when Physical remand for 10 days had been granted and no incriminating evidence had been collected against the accused named therein.”

1. In “Muhammad Shafi and 3 others v. Station House Officer, Uggoki, Tehsil and District Sialkot and another” (1999 P.Cr.L.J. 1345), it has been held as follows:-

“criminal investigation should not be stifled or killed during its infancy as the same will be against the principles governing administration of justice”

INDIA:

1. In India Section 227 of the Code of Criminal Procedure, 1973 deals with the discharge of an accused:

“227. Discharge. -If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution there is not sufficient ground for proceeding accused and record his reasons for so doing.”

1. In 2014(11) SCC 709 (State of Tamilnadu Represented by the Inspector of Police Vigilance and Anti-corruption vs. N. Suresh Rajan-Indian Supreme Court), it has been held as follows:-

“At the stage of consideration of an application for discharge, Court has to proceed with an assumption that the materials brought on record by prosecution are true and to evaluate the said materials and documents with a view to find out whether the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the offence.”

1. In AIR 2011 SC 1103 (R.S.Mishra vs. State of Orissa) it has been held as follows:

“19. ……… Therefore, on the analogy of a discharge order, the Judge must give his reasons at least in a nutshell, if he is dropping or diluting any charge, particularly a serious one as in the present case. It is also necessary for the reason that the order should inform the prosecution as to what went wrong with the investigation. Besides, if the matter is carried to the higher Court, it will be able to know as to why a charge was dropped or diluted.”

1. It is only when the circumstances of the case viewed with the evidence available obviously dispel the involvement of an accused in the commission of an alleged offence that a magistrate is empowered to discharge the accused and the order of a Magistrate must pass the test of a speaking, reasoned and judicial order which must show application of judicial mind upon the facts of the case, shed light on the extent of investigation conducted in the matter, evidence collected and the probability of incrimination of accused on the basis of present or prospective investigation.

THE PRESENT CASE

1. From the facts of the present case it is obvious that FIR has been lodged by the brother of the deceased, who along with his son, another brother and nephew is an eye-witness of the incident. All four eye-witnesses, in their statements under Section 161 of Cr.P.C. have supported and confirmed the version of the Complainant/Petitioner. The injury attributed to Respondent No. 5 in the crime report is corroborated by the report of medical examination conducted at THQ Hospital, Taunsa on 16.11.2021.

2. It is also evident that contents of the crime report as well as those of statements of eye witnesses reveal that the deceased received four firearm injuries from the bullets fired by three of the assailants. It is unclear if the bullet casings/empties recovered from the scene of occurrence were sent for forensic analysis and if they all matched the gun recovered from another accused (Ghulam Yasin) because only in that eventuality could the Investigation Officer safely say that nothing was to be recovered from Respondent No. 5. This is not the case, at least this is not evident from the record placed before the Magistrate.

3. Police although has stated that Respondent No. 5 was unarmed but has also stated that he was present at the site of occurrence with an intention to kill the deceased (Muhammad Saleem).

4. The Impugned Order does not discuss the evidence on record i.e. statements of eye-witnesses, medical evidence, recoveries etc and merely reproduces the statement of Investigation Officer that Respondent No. 5 was present at the site unarmed without discussing the material justifying the opinion of the Investigation Officer or stating why he opted to ignore the evidence of eye-witness etc. stated above. It further states that there is no incriminating evidence available on record without even evaluating the effect of evidence mentioned above. It absolutely shuts the door of investigation against an accused despite there being many undisclosed and unascertained facets of the offence.

5. In the present matter, a Magistrate Ist Class has ceded jurisdiction to the Investigation Agency by blindly relying on its slipshod investigation conducted with respect to an accused in a murder case and spanning only four days. The Magistrate has abdicated his authority to the Investigation Agency and which is why his order betrays a failure to exercise jurisdiction that the law vests in him. He has by so doing allowed an extraneous consideration and an irrelevant factor to guide his discretion and which has made his approach improper and ominously susceptible to interference and being quashed through the issuance of a certiorari.

6. On the balancing scale, the Magistrate has weighed the factors erroneously in that as against the factors of the FIR being promptly lodged through which Respondent No. 5, Saddam Hussain was nominated specifically and attributed a specific role and in which case the prosecution witnesses supported the FIR and its contents about firearm injuries attributed to Respondent No. 5, where the medical buttressed the ocular, he has allowed himself to be swayed solely and only by a questionable and unwarranted finding of the Investigation Agency about Respondent No. 5 Saddam Hussain being present at the place of occurrence yet being unarmed. For good measure, the Magistrate has tried to pre-empt the question of application of Section 34, PPC in the matter by ruling that mere presence at the place of occurrence does not attract Section 34, PPC. In this way he has caused considerable prejudice to the case of the petitioner.

7. What is even more alarming is the indubitable fact that never for once did the Magistrate call his attention to the basis, reasons or warrant for the sweeping statement of the investigation agency on which he relied without ado. At least from his order as also from the application praying for judicial remand, no such exercise or basis is evident.

8. Equally disturbing, likewise, is the absence of any discourse in the impugned order about why the Magistrate was not relying on the medical report which supports the ocular account of the accused having caused a specific firearm injury to the deceased. Also, there is no narrative in the impugned order about why a real brother would indulge in falsely implicating and wrongly nominating the actual killers of his brother especially in the absence of reasons rooted in malice, previous enmity or civil disputes.

9. Also eye-raising is the haste in which the learned Magistrate has passed the impugned order. The crime report 301/2021 was registered on 15.11.2021 and till 12.12.2021, Respondent No. 5, Saddam Hussain remained at large and was only arrested on 12.12.2021 and after a four days investigative process into an offence under Section 302, PPC, he was discharged on 17.12.2021, the same day when the application seeking judicial remand was filed.

10. We must stop here to acknowledge the law laid down in “Ashiq Hussain v. Sessions Judge, Lodhran and 3 others” (PLD 2001 Lahore 271) at paragraph No. 24 wherein Mr. Asif Saeed Khan Khosa, J., as he then was has lucidly observed as follows:-

“It may also be stated here that an order of a Magistrate regarding discharge of an accused person in a criminal case is essentially a discretionary order which may not ordinarily be interfered with by a higher forum as a matter of course unless strong and compelling reasons exist for such interference. As already noticed above the Supreme Court of Pakistan had observed in the abovementioned case of Bahadur and another v. The State and another PLD 1985 SC 62 that “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” and that such an order is only an administrative order which does not prejudicially affect any other party’s rights or remedies. Thus, in view of such a legal status of an order of discharge, extraordinary reasons have to be available for a higher forum to interfere with such an exercise of jurisdiction and discretion by a Magistrate and for insistence upon taking an accused person into custody where the police or the Magistrate do not deem such custody to be necessary or warranted for the time being in the circumstances of a given case. Generally such an insistence by a complainant while seeking setting aside of an order of discharge stems from a misconception that due to the order of discharge the accused person in question stands absolved of the allegations against him or the investigation or prosecution qua him have been smothered or terminated. As already observed above, such notions are based upon misunderstanding of the correct legal position regarding discharge. With the restatement of the law on the subject through this judgment such misconceptions now ought to stand dispelled and it is, therefore, expected that henceforth propensity of complainants to rush to a higher forum with challenges against the orders of discharge would dissipate. In order to complete the picture it may be mentioned here that, as already noticed above, a revision petition is not competent against an order of discharge and such an order may be challenged before a High Court through a petition under Article 199 of the Constitution praying for issuance of a writ of certiorari. It was held by the Supreme Court of Pakistan in the cases of Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187 and Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 that in an appropriate and unusual case even a petition under ‘Section 561-A. of the Code may be maintainable before a High Court against an order of discharge. The case-law on the subject shows that some of the recognized grounds for interference with an order of discharge are passage of such an order by a Magistrate mechanically without application of his own independent mind to the facts of the case, blindfolded acceptance of a recommendation of the police in that regard, perversity of reasoning and adoption of a procedure which offends against the letter or spirit of the law relating to discharge.”

1. The case under consideration before this Court clearly attracts the ratio cited above and qualifies as one in which a Magistrate has, through misunderstanding of law and by means of lack of proper application of mind, exercised his jurisdiction absolutely wrongly and in defiance of the settled principles of criminal justice. Providing impetus to what has been stated above is another judgment of this Court “Iftikhar Ahmed v. The State and others” (PLD 2020 Lahore 931) wherein at paragraph No. 6 it has been clearly held that, “where statements of complainant and witnesses recorded under Section 161, Cr.P.C. were available on record and supportive of the case of the complainant, a discharge order cannot be passed.”

2. The impugned order also defies the guidelines provided by the Hon’ble Supreme Court of Pakistan in “Mazharul Haq v. Ishaque Sardar and 15 others” (PLD 1962 SC 480) in terms of which even if any evidence suggests the non-involvement of Respondent No. 5, Saddam Hussain, the same would clearly be in conflict with the statements of eye-witnesses and hence the impugned order makes the mistake of opining upon a factual controversy and which exercise is reserved for the trial Court to undertake after recording of evidence.

3. In “Mazharul Haq v. Ishaque Sardar and 15 others” (PLD 1962 SC 480), it has been held as follows:-

“The existence of two opposing versions, on any point of fact arising in such an enquiry, or of opposing view‑points on any question of law, is by itself a sufficient ground for the Magistrate to commit the case for decision to a competent Court. ……. A case is conceivable where the prosecution evidence fails altogether, and quite plainly, to make out a prima facie case, and there, of course the Magistrate would discharge. But what appears to have been accepted by all the Courts, in this case hitherto is that if the defence, on any question of fact, which forms an ingredient of the case, sets up a different version, the effect is to annul even the prima facie case, on the ground of “reasonable doubt”. The correct position is that the matter is placed in issue between the parties, and becomes fit matter for trial by a competent, Court, which alone can allow the benefit of “reasonable doubt” and then only after having heard the case in full.

A more grave error than that of confusing the functions of a Committing Court with those of a trial Court by interposition of the rule of “reasonable doubt” at a stage when the case has not even been formulated, it is difficult to conceive. It should have been evident to the Sessions Court, and even more so to the learned Single Judge in the High Court, that the Committing Magistrate had exceeded his jurisdiction by recording clear findings on three questions of fact which were questions in issue between the parties, and formed an essential part of the case which could only be appropriately tried on charges which fell within the exclusive competence of a Sessions Court. We regret to find that the learned Single Judge has instead gone to the length of saying that there can be no reasonable expectation of, this case ending in a conviction. Now such a conclusion can be reached upon preliminary evidence led in an enquiry, in, regard to an occurrence which had been held to be duly proved, we find it difficult to see. Until full evidence has been led at a proper trial, no speculation is even permissible as to whether or not any assessor or any Judge can be found who will record a verdict of conviction.”

ACCUSED CAN NOT BE DISCHARGED IN THE PRESENCE OF STATEMENTS OF EYE-WITNESSES/PROSECUTION WITNESSES IMPLICATING HIM:

1. In “Soomar v. Civil Judge and Judicial Magistrate, Khipro District Sanghar and 8 others” (2020 P.Cr.LJ 835) it has been held as follows:

“5. It appears from the record that the accused are nominated in the aforementioned FIR with specific role(s). During the course of investigation, I.O. of the case has recorded the statements of eye-witnesses namely Essa Khan and Jamal Khan under Section 161, Cr.P.C., who have fully supported the prosecution version and have completely implicated the accused (private Respondents Nos. 2 to 7) in the commission of the alleged offence.

1. It has been held by our Superior Court that where prosecution witnesses have fully implicated the accused in their statements recorded under Section 161, Cr.P.C., Magistrate cannot discharge the accused on the basis of police opinion … ….”

2. In “Iftikhar Ahmed v. The State and others” (PLD 2020 Lahore 931), it has been held as follows:-

“……….Submission of report by the police is necessary as has been underlined in the excerpt of the reported judgment and such discretion to pass order under Section 63, Cr.P.C. to discharge the accused has to be exercised justly and fairly, but in the present case, as has been observed above, on the first day of arrest, the accused Respondents Nos. 5 and 6 have been discharged by the learned Magistrate despite the fact that statements of complainant and witnesses recorded under Section 161, Cr.P.C. were available on record… …”

1. In “Mst. Bano v. Civil Judge and Judicial Magistrate No. XII, Hyderabad and 8 others” (2019 YLR 2178), it has been held as follows:-

“11. As per police papers it appears that in the aforementioned FIR serious allegations have been levelled against the accused/private respondents, who by the dint of weapons entered into the house of the petitioner, issued murderous threats, violated the principle of “Chadar and Char Deewari” and took away Rs. 25,00,000/- and 10 Tola of Gold with them and this fact is supported by the statements of the prosecution witnesses recorded under Sections 161 and 164, Cr.P.C., but surprisingly neither the I.O. nor the learned Magistrate took care of it and passed the impugned order wrongly. It is settled principle of law that ipsi dixit (opinion of the I.O.) cannot be accepted to exonerate the accused from the commission of the alleged offence. In this connection, we are again supported by the case law reported as Mst. Qudrat Bibi v. Muhammad Iqbal and another (2003 SCMR 68).

1. The compendium of the above discussion is that, prima facie, there is sufficient material to corroborate the contention of the petitioner and there is no reasonable ground and justification to disbelieve the evidence of the P.Ws. at this initial stage of the case.”

2. In “Abdul Hameed v. The State” (PLD 1997 Lahore 164), it has been held as follows:-

“9. During the course of arguments it transpired that Ghulam Mustafa, Muhammad Anwar and Lal Din have been discharged by the Illaqa Magistrate on 25-7-1995 on police report. The prosecution witnesses had fully implicated these persons in their statements recorded under Section 161, Cr.P.C. In these circumstances, prima facie, the Magistrate could not discharge them on the basis of police opinion that they were innocent. Such a finding can be given by the competent Court or by this Court in quashment proceedings. The Assistant Advocate-General, Multan should move appropriate application in the Multan Bench of this Court for annulment of the aforesaid order of the Illaqa Magistrate. It may, however, be observed that anything said herein will not prejudice either side during the trial or the proceedings to be initiated by the law, officer.”

1. It is obvious then that the order under challenge cannot be sustained and is hence declared to be of no legal effect and is set aside.

2. Allowed in the above terms.

(A.A.K.) Petition allowed

PLJ 2023 Lahore 363 (DB)

Present: Ch. Muhammad Iqbal and Muzamil Akhtar Shabir, JJ.

PROVINCE OF THE PUNJAB through Chief Secretary etc.--Appellants

versus

Syed DANISH HUSSAIN SHAH--Respondent

I.C.A. No. 31531 of 2022, heard on 23.1.2023.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Pakistan Prison Rules, 1978, R. 1042(c)--Respondent was appeared in competitive exam and stood 13th position--Denial to appointment as Assistant Superintendent--Eligibility criteria--Rejection of representation--Writ petition--Allowed--Lack of requisite standard of vision--Conduct of medical examination--Findings of medical board were not challenged by respondent--Prerogative of authority--Respondent has not challenged findings of Medical Board but has prayed for setting aside Rule [1042(C)] through constitutional petition which amounts to admission on his part regarding findings and it is settled law that admitted facts need not to be proved--When law prescribes anything to be done in a particular manner, it is to be done as mandated by law--Respondent failed to bring on record that Rule 1042(C) of Pakistan Prison Rules, 1978 is in violation of Article 18 of Constitution or hit by any of conditions settled by Hon’ble Apex Court of country--Prerogative of setting eligibility criteria of a certain post exclusive falls within domain of concerned authority and interfering in that domain would amount to committing judicial overreach which is unwarranted by law--It is settled law that it is not for Court to examine qualification and eligibility in a recruitment process and it cannot delve deeper into design and need of employing institution or second guess their selection criteria and job recruitment and these matters can be best resolved by institution itself according to suitability and requirements of a certain post--Prescribed vision 6x6 without glasses is an essential requirement which cannot be dispensed with and any deviation from said criteria would allow entry to ineligible persons and deprive many eligible candidates.

[Pp. 365, 366, 368, 369 & 370] A, C, E, F, G & H

1991 SCMR 2300, 2021 SCMR 1534, 2008 SCMR 1148 & 2021 SCMR 775 ref.

Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974--

----R. 21--Prescribed criteria--A candidate must fulfill prescribed criteria and if a candidate does not meet physical and mental requirements as prescribed by government, he shall not be appointed. [P. 366] B

Constitution of Pakistan, 1973--

----Art. 18--Right of profession--Right of profession is treated as a fundamental right but it is subject to such qualification as settled by law and every citizen has to follow commandments of law in this regard. [Pp. 366 & 367] D

2015 SCMR 1739.

Ms. Aalia Ejaz, Additional Advocate General with Irfan Abdullah Khan, Law Officer of the Department for Appellants.

Respondent for Ex-parte.

Date of hearing: 23.1.2023.

Judgment

Ch. Muhammad Iqbal, J.--This Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 is directed against the order dated 04.03.2022 passed by the learned Single Judge whereby Writ Petition No. 72701/2017 filed by respondent was allowed.

1. Brief facts of the case are that the respondent filed a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and contended that the respondent applied for the post of Assistant Superintendent Jail (BS-16) in response to advertisement No. 41/2017 published by the Punjab Public Service Commission, he appeared in competitive exam and stood at 13th position among successful candidates. Subsequently, the appointment letters were issued to the successful candidates but the respondent was denied appointment on the ground that his eyesight was not as per eligibility criteria. The respondent filed a representation which was rejected by Appellant No. 2 vide order dated 21.06.2017. The respondent challenged the validity of order dated 21.06.2017 as well as Rule 1042(C) of Pakistan Prisons Rules, 1978 through Writ Petition [No. 72701/2017] which was allowed by the learned Single Judge vide order dated 04.03.2022. Hence, this appeal.

2. We have heard the arguments of learned counsel for the appellants and have gone through the record with her able assistance.

3. The appellants through advertisement No. 41/2017 invited applications for the post of Assistant Superintendent Jail (BS-16) with the following criteria:

“i. Bachelor Degree (2nd Division) from recognized university, and

ii. Physical Standards:

Height 173 CM

Chest 85 CM without expansion and 90 CM with expansion

Vision Right 6/6 without glasses Left 6/6 without glasses.”

The respondent applied for the said post, qualified the written test and after completion of legal formalities, the PPSC announced the result and the respondent stood at Sr. No. 13 but the appointment letter of the respondent was not issued on the ground that his eyesight was not up to the requisite standard i.e. 6x6 without glasses. The respondent filed representation to the Additional Chief Secretary (Home), Government of the Punjab on 18.04.2017 which was rejected on 21.06.2017.

1. It is important to note here that in the Paragraph No. 8 of the writ petition, the respondent challenged the said order dated 21.06.2017 being void ab-initio but in the prayer clause, instead of requesting for setting aside of the said order, he prayed as under:

“Keeping in view above mentioned facts it is respectfully prayed Rule 1042(C) of Pakistan Prisons Rules (Annex-K) prescribing vision “without glasses” may be declared ultra vires of the constitution. Respondent No. 2 may be directed to issue offer of appointment letter to the petitioner as he fulfills all other conditions of appointment as such.”

The respondent, after acceptance of the terms and conditions of the advertisement, filed an application for the post but he could not fulfill the required eligibility criteria. The respondent appeared before the Medical Board, Services Hospital, Lahore and the said Medical Board issued certificate on 08.02.2017 which shows the eyesight of the respondent as 6x6 with glasses. The said medical examination was conducted as required under the Punjab Prisons Service Rules, 2010. Under Rule 1042(c) of the Pakistan Prison Rules, 1978 the vision of both eyes of a candidate must be 6x6 without glasses but as per report of Medical Board, the respondent lacks the requisite standard of vision. The respondent has not challenged the findings of the Medical Board but has prayed for setting aside the aforesaid Rule [1042(C)] through the constitutional petition which amounts to admission on his part regarding the findings and it is settled law that admitted facts need not to be proved. Reliance is placed on the cases of Mst. Nur Jehan Begum through LRs v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300) and Mst. Rehmat and others vs. Mst. Zubaida Begum and others (2021 SCMR 1534). Furthermore, Rules 602, 604, 1045 and 1047 Pakistan Prison Rules, 1978 deal with the nature and duties of an Assistant Superintendent Jail for which the vision of a candidate must be upto the best level, as settled by the department. Under Rule 21 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 a candidate must fulfill the prescribed criteria and if a candidate does not meet the physical and mental requirements as prescribed by the Government, he shall not be appointed. Moreover, Rule 74(3) of the United Nations Standard Minimum Rules for the Treatment of Prisoners obliges government/authority to adopt suitability and physical standards for the recruitment of the Prison Staff and the Rule 1042(C) is clearly in consonance thereof. When law prescribes anything to be done in a particular manner, it is to be done as mandated by law. In this regard, reliance may respectfully be placed on the case titled as Government of the Punjab, Food Department through Secretary Food and another vs. Messrs United Sugar Mills Limited and another (2008 SCMR 1148).

1. The learned Single Judge while allowing the constitutional petition has held that the Rule 1042(C) of the Pakistan Prison Rules, 1978 is ultra vires of Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973 [hereinafter referred to as “Constitution”]. It would be expedient to have glance at Article 18 of Constitution, which is reproduced as under:

“Article 18: Freedom of trade, business or profession. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:

Provided that nothing in this Article shall prevent:-

(a) the regulation of any trade or profession by a licensing system; or

(b) the regulation of trade, commerce or industry in the interest of free competition therein; or

(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons.”

There is no cavil or cudgel that the right of profession is treated as a fundamental right but it is subject to such qualification as settled by the law and every citizen has to follow the commandments of the law in this regard. The Hon’ble Supreme Court of Pakistan in a judgment cited as Lahore Development Authority through D.G and others vs. Ms. Imrana Tiwana and others (2015 SCMR 1739) has held that the power to strike down or declare a legislative enactment as void is to be exercised with great care and caution and has laid down certain conditions for exercising such power. For reference, relevant portion of the judgment (supra) is reproduced as under:

“64. The power to strike down or declare a legislative enactment void, however, has to be exercised with a great deal of care and caution. The Courts are one of the three coordinate institutions of the State and can only perform this solemn obligation in the exercise of their duty to uphold the Constitution. This power is exercised not because the judiciary is an institution superior to the legislature or the executive but because it is bound by its oath to uphold, preserve and protect the Constitution. It must enforce the Constitution as the Supreme Law but this duty must be performed with due care and caution and only when there is no other alternative.

1. Cooley in his “Treatise on Constitutional Limitations”, Pages 159 to 186, H.M. Seervai in “Constitutional Law of India”, Volume I, Pages 260 to 262, the late Mr. A.K. Brohi in “Fundamental Law of Pakistan”, Pages 562 to 592, Mr. Justice Fazal Karim in “Judicial Review of Public Actions” Volume I, Pages 488 to 492 state the rules which must be applied in discharging this solemn duty to declare laws unconstitutional. These can be summarized as follows:

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

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

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

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

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

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

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

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

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

The respondent failed to bring on record that the Rule 1042(C) of the Pakistan Prison Rules, 1978 is in violation of the Article 18 of the Constitution or hit by any of the aforementioned conditions settled by the Hon’ble Apex Court of the country.

1. Further, the prerogative of setting the eligibility criteria of a certain post exclusive falls within the domain of the concerned authority/executive and interfering in that domain would amount to committing judicial overreach which is unwarranted by law. Reliance in this regard placed on a recent pronouncement cited as Chief Executive Officer, Multan Electric Power Company Ltd. Khanewal Road, Multan vs. Muhammad Ilyas and others (2021 SCMR 775) wherein the Hon’ble Supreme Court of Pakistan has held as under:

“6. In the instant case, the judge instead of deciding the case on merits, passed the final order of appointment of Respondent No.1 without adjudicating the issue in hand and then executed the order by directing the petitioner that the Appointment Letter be issued by the next date of hearing. By assuming the role of the Executive the judge disregarded his core function of adjudication, in accordance with law. Ignoring the constitutional boundaries of separation of powers can easily equip a judge with a false sense of power and authority. This is a dangerous tendency and must be guarded against to ensure that the judicial role continues to remain within its constitutional limits.

1. When judiciary encroaches upon the domain of the Executive, as in this case, where the learned judge disregarded the eligibility criteria and the recruitment policy of the Executive Authority and assumed the function of the Executive, it is said to commit judicial overreach – which occurs when a Court acts beyond its jurisdiction and interferes in areas which fall within the Executive and/or the Legislature’s mandate. Through such interference the Court violates the doctrine of separation of powers by taking on the executive functions upon itself. The instant case is a textbook case of judicial overreach, where a judge directs an authority to issue an Appointment Letter disregarding the recruitment process, merit and the employment policy of the executive authority. Such judicial role imperils the separation of powers, jeopardizes the legitimacy of the judicial institution and undermines constitutional democracy. It is imperative that the Courts do not derogate from their constitutionally mandated oversight function of judicial review. Certain values in the Constitution have been designated as foundational to our democracy which means that, as corner-stones of our democracy, they must be scrupulously observed. It is a sure recipe for a constitutional crisis if these values are not observed and their precepts are not carried out conscientiously.”

(emphasis supplied)

It is settled law that it is not for the Court to examine the qualification and eligibility in a recruitment process and it cannot delve deeper into the design and need of the employing institution or second guess their selection criteria and job recruitment and these matters can be best resolved by the institution itself according to the suitability and requirements of a certain post. The Hon’ble Supreme Court of Pakistan in a case cited as Muhammad Ashraf Sangri vs. Federation of Pakistan and others (2014 SCMR 157) has held that the question of fitness of any candidate for a particular post is subjective matter and can best be assessed by the functionaries who are entrusted with this responsibility. In another case cited as The Secretary Punjab Public Service Commission, Lahore and others vs. Aamir Hayat and others (2019 SCMR 124), the Hon’ble Apex Court has held that the jurisdiction of the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is limited to the extent of ensuring that state functionaries do what they are required by law to do and refrain from doing what they are prohibited by law to do and unless an act or omission of a state functionary falls within the above parameters it is not liable to be interfered with. It has further been held that such interference would constitute overstepping its jurisdiction by the High Court and entering the domain of the

executive which is contrary to the concept of trichotomy of powers as per the scheme of the Constitution. In this regard, the reliance is placed on a case cited as Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others vs. Hayat Hussain and others (2016 SCMR 1021).

In these circumstances, the prescribed vision 6x6 without glasses is an essential requirement which cannot be dispensed with and any deviation from the said criteria would allow entry to ineligible persons and deprive many eligible candidates. Thus, the autonomy and free choice of the employing institution/appellants must be respected and be allowed to recruit according to the criteria advertised. Reliance in this regard is placed on a recent pronouncement of the Hon’ble Supreme Court of Pakistan rendered on 07.12.2022 in Civil Petition No. 4806 of 2019 titled as Waqas Aslam and others vs. Lahore Electric Supply Company Limited etc.

1. In view of above, this appeal is allowed, the order dated 19.11.2021 passed by the learned Single Judge is set aside and resultantly, the constitutional petition filed by the respondent is hereby dismissed.

(Y.A.) Appeal allowed

PLJ 2023 Lahore 370

Present: Sardar Muhammad Sarfraz Dogar, J.

WAJID ALI--Petitioner

versus

LEARNED JUDICIAL MAGISTRATE, etc.--Respondents

W.P. No. 12205 of 2021, decided on 21.11.2022.

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

----S. 516-A--Constitution of Paksitan, 1973, Art. 199--Superdari--Sealing of premises--Direction to--Section 13(3) of Punjab Food Authority Act, 2011 amended 2016 (Act)--Superdari of 410-Whey Powder Bags, which was taken into possession under Section 13(3) of Punjab Food Authority Act, 2011 amended 2016 (Act)--Power of “sealing of premised” could be invoked by Food Safety Officer (FSO) under Section 13 (1) (c) of 2011 Act--No ground or any other legislative guideline had been given in Section 13(1)(c) that permitted or empowered FSO to exercise his discretion and invoke power of sealing--Act of “sealing” is not supported by a remedial mechanism as in case of seizure of food--There is no legal remedy available to a food operator or food business after premises have been sealed--There is also no provision for de-sealing under Act--So-called sealing power under Section 13 (1) (c) amounts to frustrating Section 18 and scheme of Act--Power of sealing of premises by FSO, in its present form, is, ex facie discriminatory--Proceedings made by Respondent No. 3 are declared to be ultra vires, illegal and without any legal effect and same are set aside--Respondent No.3 is directed to hand over seized 410-Bags of Whey Powder being animal feed, to petitioner. [Pp. 372 & 373] A, B, C, D, E

PLD 2021 SC 684 ref.

Mr. Akhtar Hussain Bhatti, Advocate for Petitioner.

Mr. Ahmad Masood Gujjar, AAG for Respondents.

Date of hearing: 21.11.2022.

Order

Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the legality and constitutionality of proceedings dated 05.11.2020 made by Respondent No. 3 and also seeks superdari of 410-whey powder bags, which was taken into possession under Section 13(3) of the Punjab Food Authority Act, 2011 amended 2016 (“Act”).

1. Heard. Record perused.

2. Brief facts giving rise to this writ petition are that on 05.11.2020, the Respondent No. 3 inspected the Fat Rendering Unit and Dairy Farm, which was in one boundary wall and after observing certain issues, sealed the same and seized 410 Bags of Whey Powder and took to the office of Punjab Food Authority, Okara.

3. Main thrust of learned counsel for the petitioner is that the seized whey powder was being fed to the cattle and was not meant in any sense to be the food for consumption of human beings. Record shows that this has been the stance of petitioner from day one that the said Whey Protein Powder is feed of the animals. In the report dated 14.11.2020 which was submitted before the learned Senior Civil Judge (Criminal Division), Okara by the Food Safety Officer Punjab Food Authority, Okara it has been mentioned that approximately 610 Bags of Whey Powder were found and the representatives of the dairy farm failed to justify the presence of said bags within the dairy farm and could not provide traceability in respect of sale or purchase of the said bags or any other document on the spot. If, for the sake of arguments, it is believed that the petitioner’s representatives could not provide any receipt or prescription or documentary proof in respect of presence of 610 Bags of Whey Powder, even then the seizure of 410 Bags out of said 610 Bags remained under suspicion and unjustified. Though, it has been claimed that there was tempering of dates of some powder bags and that the whey powder was “adulterated” however, the same remained uncorroborated firstly no sample was sent to laboratory for its analysis secondly, there was no denial on the part of the Food Safety Officer as to when the same is being fed to the animals then how the same became adulterated and harmful for human beings? Furthermore, if said Whey Powder could be used for synthetic milk, then why not the Food Safety Officer sealed rest of the 200 Bags along with premises and only seized 410 Bags? Apart from above unanswered queries, there is no provision in the Act, which enables the Food Safety Officer to seize the “Animal Food”.

4. Coming to the legality of the proceedings conducted by the Food Safety Officer, in respect of sealing the dairy farm and Fat Rendering Unit. Record shows that the premises were sealed on 05.11.2020 under Section 13(1)(c) of the Act and the same was de-sealed through improvement notice under Section 16 of the Act, on 18.11.2020. In a matter of alike nature, the august Supreme Court of Pakistan in a case titled “Messrs Lung Fung Chinese Restaurant, Lahore and others vs Punjab Food Authority and others” (PLD 2021 Supreme Court 684) while evaluating the powers of Food Safety Officer in respect of his sealing and de-sealing the premises held that:

“Power of sealing in the hands of the Food Safety Officer (FSO) could easily be applied arbitrarily which could not be permitted under the constitutional scheme, as any such act would offend fundamental rights under Arts.18, 23 & 25 of the Constitution--power of sealing of premises by the FSO to “seal any premises” in S. 13(1)(c) of the 2011 Act was declared to be unconstitutional and illegal, and it was further declared that any Rules, Regulations or SOPs promulgated under the 2011 Act dealing with “sealing of the premises” by the FSO in the absence of any sealing power under the Act were, ultra vires the 2011 Act and also illegal and without any legal effect.” (Emphasis added)

1. It has been further held in the above noted esteemed judgment of august Supreme Court of Pakistan that the Punjab Food Authority Act, 2011 (‘the 2011 Act’) did not lay down any parameters or guidelines as to when the power of “sealing of premises” could be invoked by the Food Safety Officer (FSO) under Section 13 (1) (c) of the 2011 Act. No ground or any other legislative guideline had been given in Section 13 (1) (c) that permitted or empowered the FSO to exercise his discretion and invoke the power of sealing. Section 13 (1) (c) simply stated that FSO could seal any premises where he believes any food is prepared, preserved, packaged, stored, conveyed, distributed or sold, examined any such food and examined anything that he believes that was used, or capable of being used for such preparation, preservation, packaging, storing, conveying, distribution or sale. Nowhere did Section 13 (1) (c) provide when the sealing power could be invoked. Further, the act of “sealing” is not supported by a remedial mechanism as in the case of seizure of food. Therefore, there is no legal remedy available to a food operator or food business after the premises have been sealed. There is also no provision for de-sealing under the Act. More importantly, a similar power has been actually vested in the FSO under Section 18 of the Act for passing emergency prohibition orders whereby a food operator can be restrained from carrying on food business. The difference is that within twenty-four hours the aggrieved party can approach the Food Authority for its redressal against such order (Section 18(2)). The so-called sealing power under Section 13(1) (c) amounts to frustrating Section 18 and the scheme of the Act. In the absence of any legislative policy or guideline clearly spelling out when the sealing can take place and there being no remedial process provided against sealing, the power of sealing in the hands of the FSO can easily be applied arbitrarily which cannot be permitted under our constitutional scheme, as any such act would offend fundamental rights under Articles 18, 23 and 25 of the Constitution. The power of sealing of premises by the FSO, in its present form, is, therefore, ex facie discriminatory. The august Supreme Court of Pakistan, therefore, declared that the power of the FSO to “seal any premises” in Section 13(1) (c) to be unconstitutional and illegal and the power to seal the premises of a food operator or a food business by the FSO was struck down and reference to “sealing” in Section 31(2) was also struck down whereas the rest of the provision [Section 13(1)(c)] shall remain intact and continue to be enforceable. The august Supreme Court of Pakistan further held that any Rules, Regulations or SOPs promulgated under the Act dealing with “sealing of the premises” by the FSO in the absence of any sealing power under the Act were declared to be ultra vires the Act and illegal and without any legal effect.

2. Therefore, keeping in view the above, instant petition is accepted. Consequently, the proceedings dated 05.11.2020 made by Respondent No. 3 are declared to be ultra vires, illegal and without any legal effect and same are set aside. The Respondent No. 3 is directed to

hand over the seized 410-Bags of Whey Powder being animal feed, to the petitioner.

(KQB) Petition accepted

PLJ 2023 Lahore 374

Present: Shahid Bilal Hassan, J.

Mst. ROBINA SHEHNAZ, etc.--Petitioners

versus

MUKHTAR BEGUM, etc.--Respondents

C.R. No. 2701 of 2016, heard on 24.1.2023.

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

----S. 115--Muslim Family Laws Ordinance, (VIII of 1961), S. 9--Suit for recovery of maintenance allowance--Decreed Execution proceedings--Writ petition--Dismissed--Suit property was transferred--Gift mutations--Application for cancellation of mutations--Allowed--Appeal--Accepted--Jurisdiction of executing Court--Challenge to--Deceased judgment debtor transferred property, owned by him through disputed mutations on basis of alleged gift, after dismissal of his writ petition by this Court, which seems to be nothing but an attempt to frustrate decree passed against him--Executing Court was vested with jurisdiction to undo illegal act committed by deceased and rightly cancelled said mutations--Appellate Court has failed to exercise its vested jurisdiction as per mandate of law and has committed illegality while passing impugned judgment which cannot be allowed to hold field further--Revision petition accepted. [Pp. 375 & 376] A & B

2015 SCMR 128 ref.

Malikzada Hameed-ur-Rehman, Advocate for Petitioners.

Nemo for Respondent No. 1.

Mr. Muhammad Muzammil Qureshi, Advocate for the Respondent No. 2.

Date of hearing: 24.1.2023.

Judgment

Succinctly, a decree for recovery of maintenance allowance was passed against Aulad Hussain, deceased on 06.12.2008, which was upheld upto High Court as writ petition was dismissed on 29.06.2010. After dismissal of the writ petition, the judgment debtor transferred his property through Mutations No. 1859 dated 27.09.2010 and 1871 dated 09.10.2010 on the basis of alleged gift; therefore, the petitioners moved an application before the learned Executing Court for cancellation of said mutations and recovery of decretal amount of maintenance allowance. The said application was resisted by the rival party; however, the learned Executing Court allowed the said application on 09.02.2016. The respondents being aggrieved preferred an appeal and the same was accepted vide impugned judgment dated 04.05.2016 and application ibid was dismissed; hence, the instant revision petition.

1. Heard.

2. The said question has been answered by the Apex Court of the country in a judgment reported as Amjad Iqbal v. Mst. Nida Sohail and others (2015 SCMR 128), by holding that:

‘The Executing Court through its order dated 14.05.2011 declared such Hiba to be unlawful and such order of the Executing Court appears to have been maintained by the revisional Court. Once the Hiba itself was declared to be unlawful, any further transaction on the basis of the said Hiba could only be a nullity in the eye of law for that the donee of the Hiba did not have legal title to the house to sell the same to the petitioner. Both Hiba as well as the purported sale in favour of the petitioner were nothing but sham transactions and its purpose was to ensure that the decree is not satisfied. The decree was nothing but for the maintenance of Resondent No. 2’s own minor daughter. Unfortunately, the Respondent No. 2 in sheer disregard of his parental obligation has indulged in making all these unlawful transactions. What intent the Respondent No. 2 had in his mind but to starve his own minor daughter of her basic needs for survival. The Court while exercising parental jurisdiction cannot just sit and be a spectator in this unholy and unlawful conduct of the Respondent No. 2.’

In the present case, the deceased judgment debtor Aulad Hussain transferred the property, owned by him through disputed mutations No. 1859 dated 27.09.2010 and 1871 dated 09.10.2010 on the basis of alleged gift, after dismissal of his writ petition by this Court, which seems to be nothing but an attempt to frustrate the decree passed against him. Therefore, the learned Executing Court was vested with jurisdiction to undo the said illegal act committed by the deceased

Aulad Hussain and rightly cancelled the said mutations by allowing application, filed by the petitioners in this regard. As such, the learned appellate Court has failed to exercise its vested jurisdiction as per mandate of law and has committed illegality while passing the impugned judgment dated 04.05.2016, which cannot be allowed to hold field further. Resultantly, the revision petition in hand is accepted, impugned judgment dated 04.05.2016 passed by the learned appellate Court is set aside and order dated 09.02.2016 passed by the learned Executing Court is restored. No order as to the costs.

(Y.A.) Revision Petition accepted

PLJ 2023 Lahore 376

Present: Abid Hussain Chattha, J.

BAKHTAWAR BIBI--Petitioner

versus

ADDITIONAL DISTRICT JUDGE and 2 others--Respondents

W.P. No. 5819 of 2017, heard on 31.10.2022.

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----Ss. 7/8--Constitution of Pakistan, 1973, Art. 199--Suit for Jactitation of Marriage--Dismissal of suit--Free consent and will of petitioner way not established by respondent--Burden of proof--Where claim of woman is in negative form and nature, obviously she could not have been burdened to substantiate same by producing further evidence as she did not in exercise of her own free will and accord enter into a contract of marriage, especially when alleged Nikah was not performed where woman ordinarily resides-- Petitioner claiming therein that she is a house woman and respondent has prepared forged and bogus Nikahnama--She did not enter into any Nikah with him--She had asserted specific facts of bad intentions and ulterior objectives upon respondent including that he had managed to register Nikahnama with connivance of Nikah Registrar and witnesses of Nikah--Witnesses of Nikahnama are not related to petitioner and respondent although they were cousins--It is conspicuously missing in written statement that who else was present during marriage--Entire episode of alleged registration of marriage of Petitioner was surrounded by mystery--Petitioner successfully discharged burden of proof that Nikah had not taken place with her free consent and will--Place of Nikah was not village where both parties were residing--Absence of parents of bride and her relatives was proved without any corresponding reasons of their absence--Nikah Registrar neither knew petitioner nor had verified her place of abode--Respondent failed to establish free consent and will of Petitioner with respect to alleged Nikahnama--Petition allowed.

[Pp. 381, 382, 383 & 384] A, B, C, D, E, F, G, H

PLD 2006 SC 489 ref.

Ch. Tanveer Ahmad Hanjra, Advocate for Petitioner.

Ch. Umar Farooq, Advocate for Respondent No. 3.

Date of hearing: 31.10.2022.

Judgment

This constitutional Petition is directed against the impugned Judgments and Decrees dated 28.10.2014 and 11.11.2016 passed by Judge Family Court, Arifwala and Additional District Judge, Arifwala, respectively.

1. Briefly, the Petitioner instituted a suit for jactitation of marriage against Respondent No. 3 (the “Respondent”) averring therein that the Respondent in connivance with the Nikah Registrar and other witnesses prepared a forged and bogus Nikahnama dated 28.03.2012 and started to mention the Petitioner as his wife, even though, the Petitioner never contracted Nikah with the Respondent. The Respondent was asked to cancel the aforesaid Nikahnama and upon his refusal to do so, the Petitioner was constrained to file the suit.

2. The suit was resisted by way of filing written statement by the Respondent. After framing issues out of divergent pleadings of the parties, pro and contra evidence was recorded and eventually, the Family Court dismissed the suit vide Judgment and Decree dated 28.10.2014. An Appeal filed by the Petitioner in this behalf was also dismissed vide Judgment and Decree dated 11.11.2016.

3. Learned counsel for the Petitioner contended that the impugned Judgments passed by the Courts below are against the law and facts of the case. The Courts below have badly failed to consider that the Petitioner did not contract Nikah with the Respondent and the registration of Nikahnama was collusively managed by the Respondent in league with the witnesses and the Nikah Registrar as was evident from the surrounding circumstantial evidence which was completely ignored. As such, the impugned Judgments are result of misreading and non-reading of evidence on record, hence, the same are liable to be set aside.

4. Conversely, learned counsel for the Respondent submitted that the Respondent, witnesses of the Nikah and the Nikah Registrar had testified the solemnization of Nikah and its registration which disproved the stance of the Petitioner and unequivocally established that Nikah was validly executed and registered. Therefore, this Court cannot interfere in the concurrent findings of fact recorded by the Courts below in exercise of constitutional jurisdiction.

5. Before proceeding further, it would be advantageous to reproduce the reasoning of the Courts below in dismissing the suit of the Petitioner. The Family Court, while recording its findings on issue No. 1 as to whether the Petitioner is entitled for decree of Jactitation of Marriage concluded as under:

“9. The onus to prove this issue was on the plaintiff. The plaintiff in support of her claim got examined herself as PW1 and also her real maternal uncle (Mamu) Lal Muhammad S/O Noor Muhammad as PW2. Initially, the plaintiff in her plaint and her evidence on oath categorically stated that there was no Nikah at all. No offer and acceptance was there but during her cross-examination as suggested by the defendant, she replied that “it is incorrect to suggest that defendant and his Chacha (paternal Uncle) got her thumb-impressions by enticing or pretending her to get premium of Benazir Income Support program”. By doing that, she had impliedly admitted the existence of Nikahnama in question. Moreover, If this was the cause of obtaining her thumb-impression, that must be pleaded specifically in her body of plaint. Thereby she remained failed to prove that Nikahnama was not prepared.

1. The plaintiff took the stance that after getting knowledge of impugned Nikahnama, the notables of her family conducted Panchayat, wherein, the defendant pronounced oral Talaq followed by a written one in the presence of Lal Muhammad S/O Noor Muhammad PW2 and Kaleem Ullah Chishti S/O Habibullah Chishti and others but no independent witness was produced to prove this fact except PW2, who is related to her in such a way that he is inimical to defendant whose testimony cannot be considered in such circumstances when the fact of forged divorce deed against them has already been subjudice before the Court of competent jurisdiction at Pakpattan Sharif vide case FIR No. 45 /13 offences under Sections 420/468/471, PPC, P.S, Kalyana Pakpattan Sharif.

2. The plaintiff also admitted that the defendant claimed herself as his wife for one month. She also admitted that his father has divorced her mother due to the fact that she had been taken divorce from the defendant and contracted second marriage thereafter. It shows that the factum of marriage of plaintiff with defendant Moazzam Ali was within the knowledge of her father who had not agitated it to be annulled rather satisfied. But when this marriage contracted dispute emerged, he divorced her wife (The mother of Plaintiff). If the Nikahnama would have been prepared without their knowledge, then naturally her father must have stood behind her daughter.

3. As far as the alleged divorce by defendant is concerned for the limited purpose of this suit, the defendant categorically and vehemently contested that he had never ever prepared this forged deed and any further Certificate of Effectiveness of Divorce deed. The copy of report of Fingerprints Bureau Mark-D also shows prima facie that the thumb-impression of defendant did not match with that one at deed.

4. The Nikahnama of plaintiff with Qurban as Mark-DE also shows that the word “Divorcee” in Column No. 5, and if she did not accept her marriage in dispute with the defendant she would not have conceived this handicap.

5. On the other hand, the defendant in order to prove that the marriage was actually taken place. He produced both the witnesses of Nikahnama, the Nikah Khawan and Secretary Union Council concerned. He also produced documents of registered Nikahnama in dispute as Exh.D2, Computerized marriage Registration Certificate as Exh.D3 and other documents as mentioned in Para No. 5 ibid by which he proved that Nikahnama was registered. All the witnesses and Nikah Khawan were firm in their statements and nothing was brought on record favourable to plaintiff. As both the documents of Nikahnama carries presumption of truth. So in these circumstances, it has been concluded that plaintiff herself contracted her marriage with the plaintiff and her allegations levelled against the defendant regarding her Nikah being forged are not plausible. Therefore, she has not proved this issue and same is decided against the plaintiff.”

6. While dismissing the Appeal, the Appellate Court recorded its findings in Paragraph Nos. 9 to 12 of its Judgment which are reproduced below:

“9. Perusal of case file has transpired that the present appellant Bakhtawar Bibi has filed the main suit for ‘Jactitation of Marriage’ before the learned trial Court with the contention that on the basis of fabricated and bogus Nikahnama dated 28.03.2012, the present respondent/defendant of the main trial suit has been pretending the present appellant Bakhtawar Bibi as his wife, whereas, no such Nikah has ever been recited, no offer or acceptance have been made and the present appellant has never been got habilitated in the house of present respondent whereas the present respondent side while negating and nullifying the version of the present appellant has produced oral as well as documentary evidence and in support of oral evidence the present respondent has also produced attested copy of the Nikahnama Exh-D2, in which it has been mentioned that a Nikah between Moazzam Ali son of Ghulam Ali groom and Bakhtawar Bibi bride has been contracted on 28.03.2012 and the said Nikahnama Exh-D2 also bears the signatures of spouses as well as signatures of the witnesses; that Nikah and the said Nikahnama Exh-D2 also bears the signature of Nikah Khawan being Author namely Muhammad Ramzan.

1. Moreover, it is also significant to mention here that the respondent’s side has also produced the original marriage registration certificate of the above said Nikah and the said certificate has been placed on the file as Exh-D3 and perusal of the said Exh-D3 has categorically demonstrated that the particulars of bride groom and bride have been mentioned in detail in the said Exh-D3 and the name of Nikah Khawan has also been specifically been mentioned and the said certificate Exh-D3 has also been duly issued by the concerned authority i.e Union Council No. 103 Urban Pakpattan Sharif.

2. Moreover, it is also significant to mention here that the respondent’s side has also produced an affidavit Exh-D4 on the file which bears the thumb-impression of the present appellant Bakhtawar Bibi and same has also been got issued in the name of present appellant and on the said affidavit Exh-D4, the photograph of the appellant has also been appended, which also bears the thumb-impression of the appellant Bakhtawar Bibi. Perusal of the contents of the Exh-D4 has demonstrated that appellant has categorically stated that she is sui-juris of 18-years and she has not been abducted by anyone nor has been raped by anyone and she has not stolen any gold ornaments or clothes etc from her house and left her house in three clothes and she has contracted marriage with his paternal cousin Moazzam Ali (present respondent) with her own free will and consent who is also his fiancée.

3. Now, it is quite clear, vivid and obvious that the contention of the present appellant Bakhtawar Bibi is merely based on oral claim and verbal version whereas the respondent’s side has successfully and quite vehemently negated, rebutted and nullified the mere oral version of the present appellant about “Jactitation of Marriage’ by counter alleging the same through production of the above mentioned documentary proof in shape of Exh-D1 to Exh-D4. It is quite understandable in the light of plethora of judgment of Hon’ble Apex Court that documentary proof excludes the oral version. It is also crystal clear that present appellant Bakhtawar Bibi has merely adopted an oral contention in comparison with the documentary counter version of the present respondent and in the light of above given detailed observation, the version of the present appellant has been found much shallow, fluffy, trembling based on weak footings and the same is just talk in the vaccume. Therefore, for the foregoing reasons as mentioned above, the learned trial Court has made a very correct, judicious and right decision while deciding issue No. 1 against present appellant.”

4. In a similar case titled, “Matloob Hussain v. Mst. Shahida and 2 others” (PLD 2006 Supreme Court 489), the Honble Supreme Court of Pakistan held that where the claim of the woman is in negative form and nature, obviously she could not have been burdened to substantiate the same by producing further evidence as she did not in the exercise of her own free will and accord enter into a contract of marriage, especially when the alleged Nikah was not performed where the woman ordinarily resides but much away from her ordinary abode. In such a case, the surrounding circumstances were required to be examined to determine that Nikah between the parties was validly and lawfully performed by the lady in exercise of her free will and consent being persona majora.

5. Perusal of the plaint reveals that the Petitioner filed a suit for jactitation of marriage claiming therein that she is a house woman and the Respondent has prepared forged and bogus Nikahnama dated 28.03.2012 and has started to show the Petitioner as his wife, whereas, she did not enter into any Nikah with him. She categorically stated that no marriage, Nikah or Rukhsti ever took place and she never resided in the house of the Respondent. It was specifically alleged that the Respondent for a long period of time held bad intentions about her and in connivance with the Nikah Registrar and witnesses of the Nikah, hatched a conspiracy to maliciously register the Nikahnama. She was constrained to bring the aforesaid fact in the knowledge of her parents and relatives, whereafter, Panchayat was held between her relatives and the Respondent in which the Respondent acknowledged his mistake and pronounced verbal Talaq on 30.03.2012 before the witnesses, namely, Lal Muhammad, Kaleem Ullah Chishti and others. Afterward, he executed written Talaqnama and delivered it by hand. Thereafter, the Petitioner remarried with one Qurban Rasool on 03.12.2012. After the said marriage, the Respondent with mala fideintentions and ulterior objectives registered an FIR No. 45/2013 dated 09.02.2013 against her and her husband in Police Station Kalyana, Tehsil and District Pakpattan by contending therein that he did not divorce the Petitioner, rather, Talaqnama was forged and fictitious. As such, after two months of her marriage, the Respondent resiled from his Talaq and again started to assert his right as husband on the basis of collusive Nikahnama with the intention to destroy her matrimonial life which constrained her to file the suit.

6. Her story was simple and straight forward and she had asserted specific facts of bad intentions and ulterior objectives upon the Respondent including that he had managed to register the Nikahnama with connivance of Nikah Registrar and witnesses of the Nikah, whereas, she had categorically denied having consented to the Nikah and having executed the Nikahnama. Her Nikah with Qurban Rasool was cited as the reason for resiling from Talak by the Respondent.

7. The Petitioner in her examination-in-chief has categorically deposed that she did not know the Nikah Registrar nor she appeared before him. She explained that the Respondent was son of her paternal uncle and their houses were located in the same village. She conceded that earlier relations between the family members of the Respondent and the Petitioner were cordial but on account of the present episode, their relations are soared. She deposed in her cross-examination that she only contracted marriage with one Qurban Rasool and never with the Respondent. She also testified that when she got married with Qurban Rasool, her family members participated in the marriage and the same was contracted with their consent, although, the Nikah was solemnized through Court and she had also given a statement in the Court that she is marrying with Qurban Rasool with her own consent and free will. The Petitioner faced lengthy cross-examination but she remained consistent with respect to her basic pleadings in the plaint. The stance of the Petitioner was duly corroborated by PW-2 who was her maternal uncle. PW-2 also narrated the episode of Panchayat and stated that the same took place at his Dera. Column No. 7 of the Nikahnama depicts that there was no “Wakeel”of the bride and her name is written there as sui juris. There are only two witnesses and the name of Nikah Khawan/Nikah Registrar on the Nikahnama. It is also quite strange that the witnesses of the Nikahnama are not related to the Petitioner and the Respondent although they were cousins.

8. In contrast, the Respondent in his written statement had alleged that the Petitioner resided with him for eight days and that the Nikahnama was validly executed and that she had developed illicit relations with one Qurban Rasool which instigated her to prepare a forged Talaqnama dated 30.03.2012 regarding which he registered an FIR No. 45/2013 dated 09.02.2013. It is also noted that it is conspicuously missing in the written statement that who else was present during the marriage and whether the same was solemnized with the consent of parents of the spouses and other family members.

9. DW-1 deposed that both the witnesses were from different areas. The Nikah took place in Mohallah Sufiya Abad in Union Council No. 3, Pakpattan Sharif and Rukhsti took place from there. At the time of Nikah, father of the Respondent was not present, however, his grandfather was present but he did not become a witness of the Nikah. The Petitioner only remained Abad for eight days with him. He categorically deposed that both the witnesses were his friends who did not know the Petitioner. He also stated that at the time of Nikah, the Petitioner did not have her CNIC, therefore, he pasted her photograph in lieu thereof. He also deposed that the Petitioner did not admit the Nikah because he had registered an FIR against her. DW-2 stated that only five to six persons were present on the event of Nikah and he did not know all of them. He also deposed that he did not know the Petitioner. DW-3 also stated that he did not know the Petitioner at the time of Nikah. DW-4, Nikah Khawan deposed that at the time of Nikah, three to four persons were available along with the grandfather and paternal uncle of the Petitioner and that Nikah was solemnized by him which was with the consent of the Petitioner but he did not remember whether he entered the CNIC of the Respondent or not and he did not verify that the Petitioner was not resident of that area. He also deposed that he did not know both the witnesses.

10. From perusal of the aforesaid facts, it is clear that the entire episode of alleged registration of marriage of the Petitioner was surrounded by mystery. It is quite apparent that the Nikah was solemnized through a plan and collusive arrangement. In these circumstances, there is no reason to disbelieve the simple story put forward by the Petitioner since had she been actually married and wanted to remarry with another person, she had the option to file a suit for dissolution of marriage in the Court instead of filing the instant suit through a concocted story. The Petitioner successfully discharged the burden of proof that Nikah had not taken place with

her free consent and will, whereafter, the burden of proof shifted upon the Respondent to establish her free will and consent to Nikah as well as that Nikah ceremony had actually taken place. The place of Nikah was not the village where both the parties were residing. The absence of the parents of the bride and her relatives was proved without any corresponding reasons of their absence. The witnesses of Nikah were the friends of the Respondent and were strangers to the Petitioner. The Nikah Registrar neither knew the Petitioner nor had verified her place of abode. The pleadings and deposition of holding of Panchayat by the Petitioner went un-rebutted. There is a difference of about a year between the date of the Talaqnama and the date of registration of the said FIR. The delay is unexplained. As such, the Respondent failed to establish the free consent and will of the Petitioner with respect to the alleged Nikahnama and failed to discharge the burden of proof regarding registration of a valid and lawful marriage. Hence, the Courts below have grossly misread and non-read the evidence on record and the impugned Judgments are not sustainable in view of the law developed by the Honble Supreme Court of Pakistan in the Matloob Hussain case (supra). As such, this is a fit case for interference in exercise of constitutional jurisdiction vested in this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

1. In view of the above, this Petition is allowed; the impugned Judgments and Decrees dated 28.10.2014 and 11.11.2016 are set aside and in consequence thereof, the suit for Jactitation of marriage filed by the Petitioner is decreed. Decree sheet be drawn, accordingly.

(KQB) Petition accepted

PLJ 2023 Lahore 384

Present: Muhammad Sajid Mehmood Sethi, J.

AASHIQ HUSSAIN--Petitioner

versus

FIDA HUSSAIN and others--Respondents

W.P. No. 6404 of 2020, heard on 24.1.2023.

Constitution of Pakistan, 1973--

----Art. 199--Application for comparison of thumb-impression of witnesses--Concurrently dismissed--Denial of witnesses to attested and signed disputed mutations--Duty of petitioner--Right of a party--Challenge to--Where thumb-impressions of executant or witness of a document are denied, a person pleading positivity of thumb-impressions will be under a heavy burden to prove same by seeking comparison with admitted thumb-impressions--It was duty of petitioner to apply to Court for getting thumb-impressions witnesses compared from an expert, which he duly performed but his request was declined--It is well-established by now that Courts must take liberal view regarding acceptance of request for comparison of signatures/thumb-impressions, as there is no express provision in law to decline such request--Observation of Trial Court that this exercise would linger on proceedings is misconceived as there will be no harm to any party rather it will be appropriate and imperative to reach a just and proper conclusion even at cost of some delay--It is a right of a party to seek and demand every possible assistance from Courts of law and to hold him responsible only when he or she is found to have acted contrary to law--Interest of justice can only be safely dispensed after signatures and thumb-impressions of witnesses are got verified from expert--Petition allowed. [Pp. 386 & 387] A, B, C & D

2020 CLC 243, 2018 SCMR 2080, 2012 SCMR 1258, 2000 YLR 2789, PLJ 2014 Lah. 193 & 2019 CLD 894 ref.

Mr. Muhammad Ihsan Gondal, Advocate for Petitioner.

Mr. Muhammad Ashraf Saggu, Advocate for Respondents.

Date of hearing: 24.1.2023.

Judgment

Through instant petition, petitioner has called into question order dated 10.12.2019 and judgment dated 20.01.2020, passed by learned Civil Judge and Additional District Judge, Darya Khan, respectively, whereby petitioner’s application for comparison of thumb-impressions/signatures of witnesses namely Ghulam Muhammad (DW-7) and Madah Hussain (DW-8) was concurrently dismissed.

1. Learned counsel for petitioner submits that once a party denies execution of a document, it is for the other party to get comparison of the signatures or thumb-impressions with that of appearing on the document. Further submits that expert opinion on the question whether the documents or statements are signed by same person is relevant fact within the contemplation of Article 59 of the Qanun-e-Shahadat Order, 1984, thus, petitioner’s application is liable to be accepted. Contends that learned Courts below have not rightly appreciated the applicable law and failed to exercise jurisdiction vested in them, hence, impugned decisions are unsustainable in the eye of law. He has relied upon GhulamHaider v. Fateh Muhammad (2005 MLD 1501), Mst. Nusrat Bibi v. Muhammad Ashraf Mehr and others (2007 YLR 41), Sarfraz v. Khizer Hayat and another (2008 YLR 818) and Muhaar v. Muhammad Yousaf and others (2010 MLD 1745).

2. Contrarily, learned counsel for respondents defends the impugned orders.

3. Arguments heard and available record perused.

4. Admittedly, petitioner and respondents are legal heirs of deceased Muhammad Ramzan. In suit, respondents/plaintiffs challenged the veracity and authenticity of different mutations executed by predecessor-in-interest of the parties in favour of petitioner/defendant. Under the law, a beneficiary of the document(s) is required to establish valid execution of the transaction(s) in his favour by producing attesting/marginal witnesses. In a situation, where the thumb-impressions/signatures of the executant or witness of a document are denied, a person pleading positivity of the thumb-impressions/signatures will be under a heavy burden to prove the same by seeking comparison with the admitted thumb-impressions/ signatures. Reference can be made to Mst. Nusrat Bibi v. Muhammad Ashraf Mehr and others (2007 YLR 41), Abdul Haq and others v. Iftikhar Ahmad and others (2017 MLD 1792) and Shabbir Ahmed and others v. Cholistan Development Authority and others (2020 CLC 243).

5. In the instant case, petitioner/defendant is the beneficiary of the disputed mutations and in evidence, he produced Ghulam Muhammad as DW-7, who categorically denied to have attested the disputed mutations and signed the same. Whereas, DW-8, Madah Hussain also refuted attestation of the mutations and existence of his thumb-impressions thereon. In such eventuality, it was duty of petitioner to apply to the Court for getting thumb-impressions/ signatures of aforesaid witnesses compared from an expert, which he duly performed but his request was declined. In case of failure to opt such course by a party/beneficiary, there might be a presumption against him that had the thumb-impressions/signatures of aforesaid witnesses been got compared from the expert, the report would have received against him. Guidance can also be sought from the cases reported as Wali Muhammad Khan and another v. Mst. Amina and others (2018 SCMR 2080) and NazirAbbas through L.Rs. v. Ghulam Muhammad through L.Rs. (2017 CLC 996).

6. It is well-established by now that the Courts must take liberal view regarding acceptance of request for comparison of signatures/thumb impressions, as there is no express provision in law

to decline such request. Moreover, report of the expert will tend to supplement the evidence of either party enabling the Court to reach just and correct decision and pronounce a balanced judgment. Learned Courts below have failed to exercise jurisdiction vested in them under the law on an unjustified ground. The observation of learned Trial Court that this exercise would linger on the proceedings is misconceived as there will be no harm to any party rather it will be appropriate and imperative to reach a just and proper conclusion even at the cost of some delay. It is a right of a party to seek and demand every possible assistance from the Courts of law and to hold him/her responsible only when he or she is found to have acted contrary to law. The interest of justice can only be safely dispensed after the signatures and thumb-impressions of aforesaid witnesses are got verified from the expert. Reference is made to Mst. Akhtar Begum v. Muslim Commercial Bank Ltd. (2009 SCMR 264), Syed Sharif Ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others (2012 SCMR 1258), ZafarUllah Khan v. Mst. Hakim Bibi and another (2000 YLR 2789), TalibHussain v. Additional District Judge etc. (PLJ 2014 Lahore 193), Syed Akbar Hussain through L.Rs. and another v. Mst. Naziran Begum and another (2014 CLC 1760) and LalDin v. Muhammad Saleem (deceased) through L.Rs. and others (2019 CLD 894).

1. In view of the above, instant petition is allowed and impugned orders passed by learned Courts below are declared to be illegal and without lawful authority and set aside. Petitioners application for comparison of thumb-impressions/signatures of witnesses namely Ghulam Muhammad (DW-7) and Madah Hussain (DW-8) is accepted. Learned Trial Court is directed to do the needful expeditiously and decide the suit within two months after the receipt of report of the expert, even if it is to be heard on day-to-day basis.

(Y.A) Petition allowed

PLJ 2023 Lahore 387 [Bahawalpur Bench, Bahawalpur]

Present:Masud Abid Naqvi, J.

SardarARSALAN HAIDER LEGHARI--Appellant

versus

SAJID MEHMOOD, CIVIL JUDGE, etc.--Respondents

Election A. No. 10 of 2018, decided on 21.6.2018.

Constitution of Pakistan, 1973--

----Art. 63(1)(c)--Election Act, (XXXIII of 2017), S. 63--Rejection of nomination papers--Petitioner and his family member were citizen of Canada--Petitioner was not mentioned nationality of Canada in nomination papers and attached documents--Challenge to--Defect of a substantial nature--Appellant has filed an application by renouncing his Canadian Citizenship but same is still in process and admittedly, no certificate has been issued by Competent Authority to effect that petition was not a citizen Canada--At filing of his nomination papers, on date of scrutiny and even today--Appellant is not qualified to contest election under Article 63(1)(c) because Constitution does not permit a person who has acquired Citizenship of another State to become a member of Pakistan’s Parliament or of a Provincial Assembly--Appellant has also candidly conceded that he has not mentioned in his nomination papers or in attached documents, nationalities of his wife as well as his children who are also citizens of Canada--Hence, by not mentioning nationalities of his wife and children, defect of a substantial nature has also accrued--Appeal dismissed. [Pp. 390 & 391] B, C & D

Ref. PLD 2012 SC 1089, 2013 Cr.C. 1821.

Constitution of Pakistan, 1973--

----Art. 62--Election process--The election process can be broadly divided into two segments, one period between date of nominations of candidates till day before polling which can be termed as a pre-poll stage while second shall start with day of polling and terminates with declaration of result of election and can be signified as post poll stage. [P. 389] A

Mr. Mumtaz Mustafa, Advocate for Appellant.

Mr. Muhammad Iqbal Mehr, AAG for State.

HafizaMehnaz Nadeem Abbasi, Legal Advisor, Election Commission of Pakistan.

Date of hearing: 21.06.2018.

Order

Aggrieved by the order dated 19.06.2018 passed by the Returning Officer, PP-265-XI, Rehim Yar Khan, wherein the appellant’s nomination papers were rejected on the ground that at the time of filing of nomination papers the appellant was a citizen of Canada, the appellant has filed the instant appeal under section 63 of the Elections Act, 2017 on the ground that by filing application on 21.05.2018 the appellant has renounced his Canadian citizenship.

1. The learned counsel for the appellant mainly argues that the appellant has filed an application on 21.05.2018 before the Canadian High Commission, Islamabad by surrendering his original citizenship card, Canadian Passport and has also paid the fee of 100 Canadian Dollar. Hence, the appellant is entitled to contest the election and is not disqualified under Article 63(I)(c) of the Constitution of Islamic Republic of Pakistan, 1973. I have heard the arguments of the learned counsel for the appellant and perused the documents attached with this appeal.

2. There is no cavil to the proposition of law that in order to contest the election of the Parliament or to the Provincial Assembly or be a Member thereof, a person must possess the qualifications as enumerated in Article 62 of the Constitution and does not suffer from the disqualifications as mentioned in Article 63 of the Constitution. The election process can be broadly divided into two segments, one the period between the date of nominations of the candidates till the day before the polling which can be termed as a pre-poll stage while the second shall start with the day of the polling and terminates with the declaration of the result of the election and can be signified as post poll stage. At the pre-poll stage the significant disputes which may arise in relation to the election, are about the valid nominations of the candidates, inter-alia, involving the question about their qualifications/ disqualifications etc. As far as the dispute about the valid nominations of the candidates are concerned, Section 62 of the Elections Act, 2017 lays down a comprehensive and a particularized procedure vis-à-vis the scrutiny of the nomination papers which specifically envisages the filing of objections thereto by the candidate, his election agent, proposer, seconder, an authorized person of each candidate or even a voter. Returning Officer is not only authorized of his own motion to examine the valid nomination of a candidate and to look into his qualifications/disqualifications but is also to decide the objections while scrutinizing the nomination papers and for the determination thereof, the Returning Officer may also conduct a summary inquiry for accepting or rejecting the nomination papers as he may deem fit, with the empowerment to require any authority or organization to produce any document or the record but the scope of such inquiry, however, is, short, brief, concise and immediate and in any case shall be in contrast to a full fledge trial, especially when there shall be substantial and genuine controversy about the facts or the application of law which is dependent upon the factual resolution. Against the decision of Returning Officer, a candidate or the objector has a right to file an appeal before the Appellate Tribunal constituted for this purpose under Section 63 of Elections Act 2017 and Appellate Tribunal shall summarily decide an appeal under sub-section 2 of section 63 ibid, within such time as may be notified by the commission, on the basis of admitted/easily verifiable material/record to eminently and conclusively establish the qualification/ disqualification of the candidate. Although, the appellant has filed an application on 21.05.2018 by renouncing his Canadian Citizenship but same is still in the process and admittedly, no certificate has been issued by the Competent Authority to the effect that he is not a citizen of Canada. As such, at the filing of his nomination papers, on the date of scrutiny and even today, the appellant was/is still a Canadian citizen because the learned counsel for the appellant is unable to provide any document from Canadian Authorities showing that the appellant’s application for surrendering/renouncing Canadian citizenship has been accepted. In reported judgment titled “Syed Mehmood Akhtar Naqvi vs. Federation of Pakistan through Secretary Law and others (PLD 2012 S.C. 1089), the Hon’ble Supreme Court held as under:

“ ……… 43. If we compare Article 63(1) with Article 63(A) of the Constitution inserted by 18th Amendment, the intention of the Legislature becomes clear that Article 63(1) of the Constitution applied to pre and post-election disqualification, whereas Article 63(A) applied to post election disqualification on the ground of defection ………………………

53. As regards Mr. Zahid Iqbal, MNA vide order dated 18.03.2012, learned ASC appearing for Mr. Zahid Iqbal, MNA was directed to file evidence/ documents/ certificate issued by the competent authority in terms of British Nationality Act, 1981 to the effect that he is not a citizen of UK but he failed to do so till date despite giving time, thus we have no option but to believe that Mr. Zahid Iqbal, MNA, is holding citizenship of United Kingdom, having Passport No. 300997046 of Britain …………………………………

72. From bare reading of the said letter dated 29.05.2012 by U.K. Border Agency, it appears that Mr. A. Rehman Malik has been registered as having renounced British Citizenship on 29.05.2012. This aspect of the matter has already been discussed in our short order, thus need not be discussed in detail again but suffice it to say that apparently for this reason realizing legal position, he has resigned from membership of the Parliament on 11.07.2012 and against the vacant seat he participated in the fresh elections and was declared successful candidate vide notification dated 24.07.2012 ……………...”.

Reliance is also placed on judgment reported as “Syed Anwar Hasnat vs. Returning Officer PP-2 7 , Jhelum” (2013 CLC 1821).

1. In view of the above discussion, the appellant is not entitled/qualified to contest the election under Article 63(1)(c) because the Constitution of the Islamic Republic of Pakistan does not permit a person who has acquired the Citizenship of another State to become a member of Pakistan’s Parliament or of a Provincial Assembly.

2. On Court’s query, the appellant has also candidly conceded that he has not mentioned in his nomination papers or in attached documents, the nationalities of his wife as well as his children who are also citizens of Canada. Hence, by not mentioning the nationalities of his wife and children, the defect of a substantial nature has also accrued.

3. In view of above, I find no infirmity or illegality in the impugned order of the Returning Officer and consequently this appeal is dismissed in limine.

(Y.A.) Appeal dismissed

PLJ 2023 Lahore 391

Present: Masud Abid Naqvi, J.

HADAYAT ULLAH deceased through Legal Heirs etc.--Petitioners

versus

PROVINCE OF THE PUNJAB etc.--Respondents

C.R. No. 3587 of 2011, heard on 30.3.2022.

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

----S. 12--Civil Procedure Code, (V of 1908), S. 115--Suit for specific performance--Allotment of land--Transfer of suit land--Suit was decreed--Appeal--Dismissed--Agreement to sell possession of suit land was delivered--Proprietary rights were not granted--Respondents were not owner of suit land--Earlier a suit for specific performance filed by respondents on same subject matter was dismissed--Appeal was also dismissed--Ownership of suit land was still with Province of Punjab--Power to deny proprietary rights--Allotment policy--No new cause of action was arose in favour of respondents--Concept of rejection of plaint-- Respondents No. 2 to 9 filed a suit for Specific Performance of an Agreement to sell on same subject matter with same relief in 1991 against predecessors in interest of private petitioners--There remains no doubt rather admittedly, proprietary rights have not been granted to private petitioners by Defendant No. 1 and petitioners are not owners of disputed land which is still owned by Province of Punjab--Hence, before granting proprietary rights to private petitioners, Province of Punjab retains its powers to deny proprietary rights to private petitioners, in case of any violation of allotment policy etc. Courts below while passing impugned judgments and decrees failed to appreciate this fact--Courts below have failed to appreciate material facts, provisions of law and dictum laid down by Honourable Superior Courts--Civil revision allowed.

[Pp. 393, 394 & 395] A, B, C & E

2015 SCMR 58 and 2002 SCMR 1821 ref.

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

----O. VII, R. 11, 13--Rejection of plaint--Concept of rejection of a plaint under Order VII, Rule 11 read with Rule 13 CPC is clearly distinct from that of a suit which is decided and disposed of in normal course by a court of competent jurisdiction after recording evidence.

[P. 395] D

Mr. Muhammad Shahzad Shaukat, Advocate for Petitioners.

M/s. Faiz Muhammad Bilal & Najam Iqbal Bilal, Advocates for Respondents.

Date of hearing: 30.03.2022

Judgment

Concise facts of this civil revision are that the plaintiffs/Respondents No. 2 to 9 filed a suit for Specific Performance of an Agreement to Sell against the private defendants/petitioners & Province of the Punjab/Defendant No. 1 with the averments that suit land commonly known as lot No. 446 was not only allotted to Din Mohammad son of Moula Baksh but the possession of the same was also delivered by the Thal Development Authority to him. With the permission of Collector, said Din Mohammad transferred the suit land to Hadayat Ullah (deceased), Anayat Ullah (deceased), Rehmat Ullah (deceased) & Bheir Din (deceased) in 1960 and private defendants/ petitioners are their legal heirs. After receiving an amount of Rs. 6500 as sale consideration, the predecessors in interest of private defendants/petitioners namely Hadayat Ullah, Anayat Ullah, Rehmat Ullah & Bheir Din executed an agreement to sell dated 19.12.1963 & affidavit in favour of the predecessor in interest of the plaintiffs/ Respondents No. 2 to 9 namely Sher Mohammad (deceased) with the understanding that Sher Mohammad will pay the amount(s) of remaining installments of suit land and will take further steps for the fulfillment of other conditions for the completion of allotment process and for grant of proprietary rights and possession of the suit land was also delivered. The plaintiffs/Respondents No. 2 to 9 paid the amount(s) of remaining installments and no amount of any installment or otherwise is payable by the plaintiffs/Respondents No. 2 to 9, hence instant suit for Specific Performance of Agreement to Sell. Province of the Punjab/Defendant No. 1/Respondent No. 1 & private defendants/petitioners filed contesting written statement(s) by raising factual as well as legal objections.

1. Out of divergent pleadings of the parties, issues were framed by the learned Trial Court including the issue of rejection of plaint under Order 7 Rule 11 CPC and parties led their respective oral as well as documentary evidence. After hearing the arguments advanced by both the parties, the learned trial Court vide judgment and decree dated 20.07.2009 decreed the suit. Feeling aggrieved, the private defendants/petitioners preferred an appeal and the learned Additional District Judge dismissed the appeal vide judgment and decree dated 22.07.2011. Being dissatisfied, the private defendants/petitioners have filed the instant civil revision and challenged the validity of the impugned judgments and decrees passed by the learned courts below.

2. I have heard the arguments of learned counsel for the parties and minutely gone through the record as well as the impugned judgments and decrees.

3. Perusal of record reveals that the plaintiffs/Respondents No. 2 to 9 filed a suit for Specific Performance of an Agreement to sell on the same subject matter with same relief in 1991 against the predecessors in interest of private defendants/petitioners namely Hadayat Ullah, Anayat Ullah, Rehmat Ullah & Bheir Din which was dismissed by the learned trial courtvide judgment and decree dated 28.11.1995 with the findings:

“…. defendants have not earned ownership yet ….. I am of considered opinion that time is not ripe for the filing of the suit for specific performance of agreement to sell …….”. The appeal against the said judgment & decree preferred by the plaintiffs/Respondents No. 2 to 9 was also dismissed by the learned appellate court vide judgment & decree dated 08.12.1996. The instant suit is the second suit, filed by plaintiffs/Respondents No. 2 to 9 against the private defendants /petitioners & Province of the Punjab/Defendant No. 1 on the same subject matter with same relief. Apart from raising other questions of facts and law in written statement, Province of the Punjab/Defendant No. 1 mainly pleaded that propriety rights were/are not granted to private defendants/ petitioners and they cannot sell the suit land to the plaintiffs/ Respondents No. 2 to 9 and even certain amount(s) were/are due and are payable by the private defendants/petitioners and plaint is liable to be rejected under Order 7 Rule 11 CPC. The private defendants/petitioners also confirmed the ownership of the Province of the Punjab/Defendant No. 1 on the suit land with the acknowledgement that certain amount(s) were/are due and payable by them to Province of the Punjab/Defendant No. 1.

1. The predecessors in interest of private defendants/ petitioners namely Hadayat Ullah, Anayat Ullah, Rehmat Ullah & Bheir Din allegedly executed an agreement to sell/ Iqrarnama/ Ex.P-5 dated 19.12.1963 & Affidavit/Ex.P-4 in favour of the predecessor in interest of the plaintiffs/Respondents No. 2 to 9 namely Sher Mohammad but by simply reading the entire record as well as pleadings of the contesting parties and the disputed documents, there remains no doubt rather admittedly, the proprietary rights have not been granted/delivered to private defendants/petitioners by the Province of the Punjab/Defendant No. 1 and the private defendants/petitioners are not the owners of the disputed land which is still owned by the Province of the Punjab. Hence, before granting proprietary rights to the private defendants/ petitioners, Province of the Punjab retains its powers to deny the proprietary rights to the private defendants/ petitioners, in case of any violation of allotment policy etc. The learned Courts below while passing the impugned judgments and decrees failed to appreciate this fact that after the dismissal of plaintiffs/ Respondents No. 2 to 9’s first suit for Specific Performance of same Agreement to Sell with the same subject matter and same relief against the private defendants/petitioners & Province of the Punjab and thereafter dismissal of plaintiffs/ Respondents No. 2 to 9’s appeal, no new cause of action arose in favour of plaintiffs/ Respondents No. 2 to 9 to file instant second suit. Being successor in interest of Sher Mohammad deceased, plaintiffs/ Respondents No. 2 to 9 again filed second Suit for Specific Performance before arising cause of action as the alleged agreement to sell cannot be enforced before the grant of proprietary rights by the Province of the Punjab to the private defendants/petitioners. In this regard, I am fortified by the dictum laid down by the Hon’ble Supreme Court of Pakistan in case of “Commissioner Multan Division, Multan and others vs. Muhammad Hussain and others” (2015 SCMR 58), the operative part is reproduced hereunder:

“…. there is a distinction between the disputes pertaining to claim for proprietary rights by an allottee or his successors against the State from disputes between allottees and their vendees of State land under transactions concluded prior to grant of proprietary rights. Liberal treatment is accorded by the law to an agreement to sell, concluded by an allottee with a vendee in anticipation of securing proprietary rights of State land. As held in Muhammad Sadiq v. Muhammad Ramzan (2002 SCMR 1821), an agreement or deed of sale of land leased by the State, being contractual is treated as valid inter parties but the same cannot be enforced until proprietary rights are conferred by the State ….”

1. It is relevant to discuss here that Order VII, Rule 11 C.P.C. cannot be properly construed in isolation without understanding the theory of law with reference to its complementary provision, namely, Order VII, Rule 13, C.P.C. which is reproduced below:

“13. Where rejection of plaint does not preclude presentation of fresh plaint.--The rejection of the plaint on any of the grounds hereinabove mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.”

Rule 13 ibid clarifies the consequence of the rejection of the plaint by keeping the right of the plaintiff alive to present a fresh plaint even if based on “the same cause of action” notwithstanding the rejection of the plaint, this is a distinctly unusual provision which also marks a clear distinction from the provisions of Section 11 CPC as same not merely imposes a legal bar on an unsuccessful plaintiff but actually takes away the jurisdiction of the court to try any suit or issue in which the matter directly or substantially in issue has also been in issue in a former suit between the same parties litigating under the same title in a court of competent jurisdiction which has been “heard and finally decided”, a well-known principle of res judicata which is one of the foundational principles of our procedural law. Concept of rejection of a plaint under Order VII, Rule 11 read with Rule 13 CPC is clearly distinct from that of a suit which is decided and disposed of in the normal course by a court of competent jurisdiction after recording evidence.

1. Both the learned Courts below have failed to appreciate these material facts, provisions of law and the dictum laid down by the Honourable Superior Courts. Hence, the findings of both the learned Courts below are set aside by accepting this Civil Revision. Resultantly, the plaint filed by the plaintiffs/Respondents No. 2 to 9 is hereby rejected under Order VII, Rule 11 read with Rule 13 of CPC.

(J.K.) Civil revision allowed

PLJ 2023 Lahore 396

Present:Masud Abid Naqvi, J./Appellate Tribunal

SAIMA SAJID--Appellant

versus

RETURNING OFFICER, PP-259, RAHIM YAR KHAN--Respondent

Election A. No. 61 of 2018, decided on 26.6.2018.

Election Act, 2017 (XXXIII of 2017)--

----S. 63--Election petition--Nomination papers were rejected on ground that proposer and seconder were not voters from concern constituency--Defect regarding proposer and seconder--Neither be left unnoticed nor remedied--Validity--Proposer and/or seconder are not voters of the said constituency it would be tantamount to no nomination at all. Hence, Returning Officer was legally justified in rejecting the appellant’s nomination papers. [P. 398] A

Ref. PLD 2007 SC 277; PLD 2016 Lah. 101; PLD 2016 Lah. 179 and 2003 MLD 230.

Mr. Shah Hussain, Advocate for Appellant.

Mr. Muhammad Iqbal Mehr, AAG for State.

Hafiza Mehnaz Nadeem Abbasi, Legal Advisor, Election Commission of Pakistan.

Date of hearing: 26.6.2018.

Order

Aggrieved by the order dated 13.06.2018 passed by the Returning Officer, PP-259, Rahim Yar Khan wherein the appellant’s nomination papers were rejected on the ground that proposer and seconder of the appellant are not voters from the constituency from where the appellant is contesting the election, the appellant has filed the instant appeal under section 63 of the Elections Act, 2017 on the ground that on realizing the bonafide omission, an application was moved by the appellant before the Returning Officer requesting therein to remedy omission by presenting certificates of other two voters but the same was also rejected. Hence, the appellant is entitled to contest election as the defect is not of substantial nature.

1. The learned counsel for the appellant mainly argues that through clerical mistake, names of proposer and seconder were wrongly mentioned. However, the appellant filed an application before the Returning Officer for rectifying the defect at the time of scrutiny, which was dismissed on 13.06.2018. Learned counsel for the appellant argues that this defect is curable while placing reliance on the case reported as MudassarQayyum Nahra vs Election Tribunal, Punjab, Lahore and 10 others (2003 PLD (Lahore) 1089) wherein substitution was requested there and then, on being pointed out before Returning Officer and same was allowed by the Returning Officer. Prays that case of the appellant is on the same footings and the appellant can correct/rectify this defect by substituting proposer and seconder. Hence, the appellant is entitled to contest the election by rectifying the defect. I have heard the arguments of the learned counsel for the appellant and perused the documents attached with this appeal.

2. Against the decision of Returning Officer, based on summary inquiry, a candidate or the objector has a right to file an appeal before this Appellate Tribunal, constituted for this purpose under section 63 of Elections Act 2017 and Appellate Tribunal is empowered to summarily decide an appeal under sub-section 2 of section 63 ibid, however, in, short, brief, concise and immediate manner and in contrast to a full fledge trial, especially on the substantial and genuine controversy about the facts or the application of law which is dependent upon the factual resolution, within such time as may be notified by the commission, on the basis of admitted/easily verifiable material/record to eminently and conclusively establish the qualification/ disqualification of the candidate. There is no denial of the fact that the appellant has filed the nomination papers on the last date of filing nomination papers i.e. 11.06.2018 by mentioning the names of Muhammad Ahmad as proposer and Naveed Abid as seconder. During scrutiny of nomination papers, on 13.06.2018, it was discovered that names of proposer and seconder were not in the electoral roll of the electoral area from where the appellant was/is contesting election as a candidate and the appellant filed application for correction of defect on 13.06.2018 after the last date of filing nomination papers i.e. 11.06.2018. This defect is of a substantial nature. Returning Officer is only empowered to allow a defect other than one of a substantial nature to be remedied, such as particulars of the candidate or his proposer and seconder, signature of proposer/seconder as to ensure that the same are accurate. But if the name of candidate and his particulars are altogether missing and/or same is the position of the proposer/ seconder the Returning Officer cannot be allowed to add these afresh. The same shall be the position with regard to substitution as the Retuning Officer has no lawful authority to allow an altogether new person to be replaced as a

proposer or seconder for a person who is absolutely disqualified or ineligible to propose or second. The Hon’ble Supreme Court of Pakistan while dealing with an identical matter reported as “Nadeem Shafi vs Tariq Shuja Butt and others (PLD 2016 Supreme Court 944), has held as under:

“The Returning Officer and the Appellate Authority are barred from correcting a defect of a substantial nature; if the fact that the proposer and/or seconder is not a voter of the constituency is not a defect of a substantial nature, then what is? Therefore, there can be no valid appellate orders allowing substitution or rectification of a defective nomination paper.”

1. Defect regarding proposer and seconder not being from the constituency from where a candidate files his nomination papers, can neither be left unnoticed nor remedied because it is an endorsement of the nominated candidate by voter(s) of same constituency and in case, it is discovered that the proposer and/or seconder are not voters of the said constituency it would be tantamount to no nomination at all. Hence, the Returning Officer was legally justified in rejecting the appellant’s nomination papers. Reliance is placed on judgments reported as RanaMuhammad Tajammal Hussain vs. Rana Shaukat Mahmood (PLD 2007 Supreme Court 277), Barkhurdar vs. Appellate Tribunal/Additional District and Sessions Judge and 3 others (PLD 2016 Lahore 101), Muhammad Ilyas vs. Returning Officer and others (PLD 2016 Lahore 179), Asif Khan vs. Returning Officer (2003 MLD 230).

2. In view of above, I find no infirmity or illegality in the impugned order of the Returning Officer and consequently this appeal is dismissed.

(Y.A.) Appeal allowed

PLJ 2023 Lahore 398 (DB) [Rawalpindi Bench, Rawalpindi]

Present: Mirza Viqas Rauf and Anwaar Hussain, JJ.

MUHAMMAD ALAM KHILJI and others--Petitioners

versus

JUDGE ACCOUNTABILITY COURT and others--Respondents

W.P. No. 3197 of 2022, decided on 17.11.2022.

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

----Ss. 18(g) r/w 24--Constitution of Pakistan, 1973, Art. 199--Writ petition--Amendment in NAB Ordinance--There is no cavil to fact that prior to amendment in “Ordinance”, all petitioners were treated as “accused” of an offence defined in “Ordinance” and their custody was also regulated accordingly in light of provisions contained in “Ordinance”-- Two provisions brought a radical change and on said account, “petitioners” became out of ambit of offenders under “Ordinance” as alleged plundered amount was less than five hundred million rupees as yardstick fixed in sub-section (o) of Section 5--The “Ordinance” with amendment failed to cater situation, this ambiguity or lacuna in law resulted into a quandary for Accountability Courts on one hand and on other, “petitioners” were left with no remedy and they were made to wait for something to happen from Heaven for their future--Custody of an accused in can be regulated as per mandate of Section 167 read with Section 344 of “Code”, but this will serve only a limited purpose to regulate custody of accused--It will not be an answer as to under what offence, accused has been kept in custody for an indefinite and unbridled period--All pending inquiries, investigations, trials or proceedings under “Ordinance” relating to persons or transactions find mentioned in clause (a) of sub-section (2) shall stand transferred to concerned authorities, departments and Courts under respective laws but case of “petitioners” is not covered under provision of law and they have been left unattended by legislature to languish behind bars--No person can be left remediless in any eventuality and more specifically, when life and liberty is involved--Petition allowed. [Pp. 402, 405 & 407] A, B, C, D & E

PLD 2001 SC 607.

M/s. Sardar Tariq Hussain and Muhammad Zahid Mughal, Advocates for Petitioners and for Respondents No. 1 to 4 (in W.P.No. 3199 of 2022).

Mr. Khurram Masaud Kiyani, Advocate for Petitioner (in W.P.No. 3352 of 2022).

Mr. Muhammad Sajid Khan Tanoli, Deputy Attorney-General for Pakistan.

Mr. Jahanzeb Khan Bharwana, Additional Prosecutor General, Syed Waqar Naqvi, Deputy Prosecutor General, Sardar Muzaffar Ahmed, Deputy Prosecutor General, Hafiz Asad Ullah Awan SSP, Tariq Abbasi Special Prosecutor, Husnain Khurshid Special Prosecutor N.A.B. along with Salman Akbar, Deputy Director/Investigating Officer and Muhammad Farrukh Hayat, Assistant Director N.A.B.

Date of hearing: 17.11.2022.

Order

This single judgment shall govern the subject petition as well as connected W.P.No. 3199 of 2022 (National Accountability Bureau through Dy PGA, N.A.B. vs. Muhammad Alam Khilji and others) and W.P.No. 3352 of 2022 (Ghulam Mehboob vs. The State and others) as all these petitions are canvassing similar questions of law and fact.

1. The petitioners herein were arrayed as accused in Accountability Court Reference No. 24 of 2021 under Sections 18(g) read with Section 24 of the National Accountability Ordinance, 1999 (hereinafter referred to as “Ordinance”) initially placed before the learned Administrative Judge, Accountability Court, Lahore. The reference was, however, subsequently returned to the Chairman, N.A.B. on promulgation of the National Accountability (Second Amendment) Act, 2022 (hereinafter referred to as “Act”), to be presented before the Court of competent jurisdiction. In terms whereof, the reference was presented before the learned Administrative Judge Accountability Court, Rawalpindi. By way of order dated 26.10.2022, the learned Judge Accountability Court No. 1, Rawalpindi observed that in the light of the “Act”, he has no jurisdiction to further proceed with the trial of reference and, thus, returned the reference to the Chairman, N.A.B. along with all relevant record for its presentation before the concerned Court and the Investigating Officer was directed to receive all the record from Ahlmad of the Court on or before 01.11.2022. It was also observed that the accused (petitioners) are in police custody, the Investigating Officer was directed to receive the reference in time and produce the accused persons before the Court of competent jurisdiction, which order is now impugned in this petition as well as W.P.No. 3199 of 2022, wherein the petitioners are arrayed as Respondents No. 1 to 4.

2. In W.P.No. 3352 of 2022, the petitioner, namely, Ghulam Mehboob is accused in A.C.R.No. 02 of 2020 and he is calling in question the order dated 08.09.2022, passed by the learned Judge, Accountability Court No. II, Rawalpindi, whereby his bail application was disposed of with the following observations:

“Before proceeding further it is pertinent to mention here that post arrest bail of the petitioner has been dismissed on merits by Muhammad Saeed Ullah, Judge, Accountability Court No. II, Rawalpindi vide order dated 11.02.2022. All the grounds have been discussed in the above mentioned bail petition order. It would only wastage of time to discuss all grounds mentioned in the above mentioned bail petition order. Only fresh ground available to the petitioner is that in sub section (o) of Section 5 of NAO, 1999, amendment has been made and after the said amendment, it cannot be said that petitioner has committed any offence under National Accountability Ordinance. For reappraisal above mentioned section (o) is reproduced here:-

(o) “Offence” means the offences of corruption and corrupt practices and other offences as defined in the Ordinance “of the value less than five hundred millions”.

It is argument of learned counsel for the petitioner that petitioner be allowed bail on this ground. After perusal of the above mentioned amendment and definition of corruption and corrupt practices it becomes clear that since allegation of corruption against the petitioner is less than value of five hundred million rupees and only of 185 million (18.50 corars), therefore, it cannot become offence under NAO, hence, since it is not an offence of N.A.O. therefore, being duty Judge this Accountability Court has no jurisdiction to grant bail of this offence. This Court lacks jurisdiction to entertain this bail application because allegation against the petitioner is less than 500 million and the instant Reference is only of 240 million. As I have stated above that since undersigned has entertained this application as duty Judge and after above mentioned amendment offence of NAO is not made therefore, this Court lacks jurisdiction. Hence, cannot decide bail petition on merits. Petitioner can approach proper forum for redressal of his grievances, if so advised. Bail petition disposed of accordingly. File be consigned to the record room.”

1. In response to these petitions, N.A.B. has submitted written statement as well as para-wise comments and on the last date, we directed the Prosecutor General, National Accountability Bureau, Rawalpindi to appear in person and the Secretary, Law and Parliamentary Affairs Department to arrange his representation for the purpose of assisting in the matter in issue.

2. For the purpose of ease and reference, all the accused before us shall be treated as “petitioners” and N.A.B. as “respondent-department”.

3. After having heard learned counsel for the petitioners, Additional Prosecutor General, Deputy Prosecutor General and the learned Law Officer, we have perused the record.

4. It is an admitted fact on all hands that the “petitioners” were taken into custody by the “respondent-department” on the ground that they have committed an offence as defined in the “Ordinance”. Separate references Bearing Nos. 24 of 2021 and 02 of 2020, respectively were placed before the National Accountability Courts concerned for conducting trial of the “petitioners”. The “petitioners” while facing trial were in judicial custody. In the meanwhile, an amendment was introduced in the “Ordinance” through the National Accountability Act, 2022 by First and Second Amendment Act. This change in the “Ordinance” resulted into passing of the impugned orders, referred herein-above, whereunder the National Accountability Courts concerned refused to exercise jurisdiction in the matter and directed the “respondent-department” to produce the “petitioners” (accused) before the competent forum in time.

5. Before adverting to any other aspect, it would be advantageous to observe that there is no cavil to the fact that prior to the amendment in the “Ordinance”, all the petitioners were treated as “accused” of an offence defined in the “Ordinance” and their custody was also regulated accordingly in the light of provisions contained in the “Ordinance” ibid. The situation in hand arose, when amendments were introduced in the “Ordinance” through the National Accountability (Amendment) Act, 2022. The most relevant for the issue, in hand, is Section 5(o), wherein “Offence” has been defined as under:-

(o) “Offence” means the offences of corruption and corrupt practices and other offences as defined in this Ordinance [of the value not less than five hundred million rupees], and includes the offences specified in the Schedule to this Ordinance”

“Public at large” is also defined in the following way through sub-section (s) of Section 5:

“at least one hundred persons”

The above two provisions brought a radical change and on said account, the “petitioners” became out of the ambit of offenders under the “Ordinance” as the alleged plundered amount was less than five hundred million rupees as yardstick fixed in sub-section (o) of Section 5. The “Ordinance” with the amendment since failed to cater the situation, so this ambiguity or lacuna in the law resulted into a quandary for the Accountability Courts on the one hand and on the other, the “petitioners” were left with no remedy and they were made to wait for something to happen from the Heaven for their future.

1. Life and liberty is one of the cardinal fundamental rights guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as “Constitution”). Article 9 guarantees security of a person and Article 10 provides safeguards as to arrest and detention, which read as under:-

“9. Security of person.--No person shall be deprived of life or liberty save in accordance with law”.

1. Safeguards as to arrest and detention.--(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall be made except 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 Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding [three months] unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of [three months], unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.

Explanation-I: In this Article, “the appropriate Review Board” means:-

(i) in the case of a person detained under a Federal law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court; and

(ii) in the case of a person detained under a Provincial law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court.

Explanation-II: The opinion of a Review Board shall be expressed in terms of the views of the majority of its members.

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, [within fifteen days] from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order:

Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.

(6) The authority making the order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.

(7) Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case:

Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy [or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti-national activity as defined in a Federal law or is a member of any association which has for its objects, or which indulges in, any such anti-national activity].

(8) The appropriate Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowance for his family.

(9) Nothing in this Article shall apply to any person who for the time being is an enemy alien.

1. This Court, being the custodian of fundamental rights of the citizens, is bound to ensure protection of their rights not allowing anybody to curtail liberty without due course of law. Though in terms of Section 17 of the “Ordinance” as amended by the Act, the provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as “Code”) have been made applicable mutatis mutandis to the proceedings under the “Ordinance”, unless those are inconsistent with the provisions of the “Ordinance” and in view thereof, we can observe that the custody of an accused in the circumstances can be regulated as per mandate of Section 167 read with Section 344 of the “Code”, but this will serve only a limited purpose to regulate the custody of the accused. It will not be an answer as to under what offence, the accused has been kept in custody for an indefinite and unbridled period.

2. A wade through the “Ordinance” reveals that by way of amended Act, the legislature has though catered the situation, but to a limited extent. Section 4 of the “Ordinance” is quite relevant, which is reproduced below for ready reference and convenience:-

“4. Application:

(1) This Ordinance extends to the whole of Pakistan and shall apply to all persons, including those persons who are or have been in the service of Pakistan, except persons and transactions specified in subsection (2), (2) The provisions of this Ordinance shall not be applicable to the following persons or transactions, namely:-

(a) all matters pertaining to Federal, Provincial or Local taxation, other levies or imposts, including refunds, or loss of exchequer pertaining to taxation, [transactions or amounts duly covered by amnesty schemes of Government of Pakistan.]

(b) decisions of Federal or Provincial Cabinet, their Committees or Sub-Committees Council of Common Interests (CCI), National Economic Council (NEC), National Finance Commission (NFC), Executive Committee of the National Economic Council (ECNEC), Central Development Working Party (CDWP), Provincial Development Working Party (PDWP), Departmental Development Working Party (DDWP), [Board of Directors of State Owned Enterprises (SOEs) and Board of Trustees/Directors of all Statutory Bodies], the State Bank of Pakistan and such other bodies except where the holder of the public office has received a monetary gain as a result of such decision;

(c) any person or entity who, or transaction in relation thereto, which are not directly or indirectly connected with the holder of a public office except offences falling under clauses (ix), (x) and (xi) of sub-section (a) of Section 9;

(d) procedural lapses in performance of any public or governmental work or function, project or scheme, unless there is evidence to prove that a holder of public office or any other person acting on his behalf has been conferred or has received any monetary or other material benefit from that particular public or governmental work or function, whether directly or indirectly on account of such procedural lapses, which the said recipient was otherwise not entitled to receive;

(e) a decision taken, an advice, report or opinion rendered or given by a public office holder or any other person in the course of his duty, unless there is sufficient evidence to show that the holder of public office or any other person acting on his behalf received or gained any monetary or other material benefit, from that decision, advice, report or opinion, whether directly or indirectly, which the said recipient was otherwise not entitled to receive;

(f) all matters, which have been decided by, or fall within the jurisdiction of a regulatory body established under a Federal or Provincial law [;and]

[(g) all matters where the funds, property or interests not involving or belonging to the appropriate government, except for the offences under clause (ix), (x) or (xi) of sub-section (a) of Section 9.]

(3) Upon the National Accountability (Amendment) Act, 2022 (XI of 2022), coming into force, all pending inquiries, investigations, trials or proceedings under this Ordinance, relating to persons or transactions mentioned in clause (a) of sub-section (2), shall stand transferred to the concerned authorities, departments and Courts under the respective laws” .

(underlining supplied for emphasis)

From the perusal of above referred provision of law, it is though manifest that in terms thereof, all pending inquiries, investigations, trials or proceedings under the “Ordinance” relating to persons or transactions find mentioned in clause (a) of sub-section (2) shall stand transferred to the concerned authorities, departments and Courts under the respective laws but the case of the “petitioners” is not covered under the above provision of law and they have been left unattended by the legislature to languish behind the bars.

1. We are cognizant of the fact that initially when there was no provision in the “Ordinance” for releasing an accused on bail, the Hon’ble Supreme Court of Pakistan in Khan Asfandyar Wali’s case (PLD 2001 Supreme Court 607) held as under:

“197. It was held in the case of Zafar Ali Shah (supra) that the powers of the superior Courts under Article 199 of the Constitution “remain available to their full extent …. notwithstanding anything contained in any legislative instrument enacted by the Chief Executive.” Whereas, Section 9(b) of the NAB Ordinance purports to deny to all Courts, including the High Courts, the jurisdiction under Sections 426, 491, 497, 498 and 561A or any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of an offence under the NAB Ordinance. It is well settled that the Superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction as such Section 497 of the Criminal Procedure Code, Section 9(b) of the NAB Ordinance to that extent is ultra vires the Constitution. Accordingly, the same be amended suitably”.

Even otherwise, no person can be left remediless in any eventuality and more specifically, when the life and liberty is involved.

1. Resultantly, We allow instant petition (W.P. No. 3197 of 2022) and W.P. No. 3352 of 2022 and set-aside the orders dated 26.10.2022 and 08.09.2022, passed by the learned Judge, Accountability Court Nos. I and II, Rawalpindi. In consequence whereof, the petitioners namely, Muhammad Alam Khilji, Muhammad Azam Alam, Muhammad Nazim Alam, Muhammad Asif Alam and Ghulam Mehboob, are released on bail subject to their furnishing bails bonds in the sum of Rs. 1,00,000/-each with one surety each to the satisfaction of the Deputy Registrar (Judicial) of this Court.

2. So far as W.P.No. 3199 of 2022 is concerned, same stands disposed of on above terms.

3. Before parting, it is, however, observed that if some government agency/department e.g. Police, F.I.A. etc. feels that the “petitioners” have committed any offence under any penal law of the Federation or the Province, such government agency/department would be at liberty to proceed against them in accordance with law with no legal impediment in their way.

(A.A.K.) Petition allowed

PLJ 2023 Lahore 408 [Multan Bench, Multan]

Present: Abid Hussain Chattha, J.

Mian MANZOOR AHMAD through L.Rs.--Petitioners

versus

Mian MUHAMMAD AKBAR and 5 others--Respondents

C. R. No. 174-D of 2009, heard on 23.1.2023.

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

----S. 42--Civil Procedure Code, 1908, S. 115--Suit for declaration--Concurrently decreed--Petitioner and respondent No. 1 was jointly donated land for construction of dispensary--Respondent No. 1 separately gifted another piece of land for construction of BHU--Government was abandoned dispensary--Suit property was became surplus property--Permission was granted by Government for return of suit property--Application for correction of mutation--Accepted--Petitioner was never reversion of suit property to respondent No. 1--Parameters of conditional gift--Petitioner and Respondent No. 1 jointly donated land, suit property for construction of Dispensary--Later, Respondent No. 1 separately gifted another piece of land for construction of BHU in another Mouza--The Government abandoned Dispensary and as such, suit property became surplus property--Petitioner had never consented to any proposal regarding reversion of suit property to Respondent No. 1 to his exclusion--No such proposal was ever floated by Government--There is also nothing on record that suit property was exchanged with gifted land of BHU--Mutation attested by Respondent No. 1 in favour of Government clearly depicted that he had gifted 12 Kanals of land for purpose of construction of BHU and when said property would become surplus, he being only donor can legitimately claim it back--Orders passed by revenue hierarchy reverting suit property in proportion to donation of Petitioner and Respondent No. 1 are in consonance with law--Instant case squarely falls within parameters of conditional gift which was restricted to use of ‘usufruct’ of donated suit property till life of project and was lawfully allowed to revert back to donors--Courts below have misread evidence on record as well as misapplied law to decree suit of Respondents No. 1 and 2 which resulted into grave miscarriage of justice-- Notwithstanding concurrent findings of facts recorded by Courts below, interference is warranted to redress unlawful deprivation of Petitioner--Petition allowed.

[Pp. 412, 413, 415 & 416] A, B, C, D, F & G

Constitution of Pakistan, 1973--

----Arts. 23 & 24--Protection to property rights--Constitution grants protection to property rights as a fundamental right of citizens.

[P. 415] E

Sahibzada Mehboob Ali Khan, Advocate for Petitioners.

Mr. Muhammad Masood Bilal, Advocate for Respondents No. 1 & 2.

Syed Naveed-ul-Hassan Bukhari, Assistant Advocate General for Respondents No. 3 to 6.

Date of hearing: 23.1.2023.

Judgment

This Civil Revision is directed against the impugned Judgments and Decrees dated 21.03.2007 and 26.02.2009 passed by Senior Civil Judge, Dera Ghazi Khan and Additional District Judge, Dera Ghazi Khan, respectively, whereby, the suit for declaration filed by Respondents No. 1 and 2 was concurrently decreed against Mian Manzoor Ahmad, predecessor-in-interest of the Petitioners (the “Petitioner”).

1. Succinctly, the facts divulged in the plaint are that the Deputy Commissioner, Dera Ghazi Khan demanded donation of free land for construction of Dispensary in Mauza Ghaus Abad, Dera Ghazi Khan. The Petitioner and Respondent No. 1 were real brothers and they collectively donated 07 Kanals & 05 Marlas land (the “suit property”) for the said purpose which was mutated by way of gift to the Provincial Government through the District Collector vide Mutation No. 109 dated 31.03.1966. The Petitioner donated 03 Kanals and 16 Marlas of land, whereas, Respondent No. 1 donated 03 Kanals and 09 Marlas of land and Dispensary was constructed by the Health Department of the Government of the Punjab on the suit property. Later, the Government approved Basic Health Unit (the “BHU”) in another Mouza for which separate land was required and request for donation was accordingly made. Respondent No. 1 was a political person and a member of the District Council. He proposed to the Petitioner that they may collectively donate 12 Kanals land for the BHU provided the suit property previously donated by them for the Dispensary is returned. However, the Petitioner did not agree to the proposal, whereafter, Respondent No. 1 separately and singly donated 12 Kanals land for construction of the BHU. In this behalf, the District Council, Dera Ghazi Khan passed the Resolution to the effect that the suit property previously donated for construction of Dispensary be returned to the person who donated the required land for the BHU. Accordingly, the suit property was transferred in the name of Respondent No. 1 vide Mutation No. 564 dated 02.01.1986. The abandoned building material of Dispensary was separately auctioned which was purchased by Respondent No. 1, whereafter, Respondent No. 1 is in possession of the suit property. It was further alleged in the plaint that the Petitioner did not object when the suit property was transferred back in the name of Respondent No. 1 and he also transferred 03 Kanals and 16 Marlas land to his son, Respondent No. 2. As such, Respondents No. 1 & 2 are owners in possession of the suit property and the Petitioner has no concern with the same. It was further stated that after a period of 12 years due to certain differences between the brothers, the Petitioner submitted an application on 12.01.1998 to the revenue officials for correction of mutation which was allowed and further challenge thereto in the revenue hierarchy by Respondents No. 1 and 2 failed. As such, the orders dated 01.09.1998, 12.01.1999, 13.11.2000 and 26.04.2001 passed by the revenue officials, whereby, Mutation No. 564 dated 02.01.1986 was rectified and the suit property was mutated in proportion to the respective shares of donation of the Petitioner and Respondent No. 1 are unlawful and against the law and facts for the reason that the suit property was returned to Respondent No. 1 alone in exchange for land gifted by him for the BHU. Hence, the order for correction of the said mutation was unlawful and the referred orders passed by the revenue officials are liable to be set aside.

2. The suit was contested by the Petitioner. It was submitted in the written statement that Respondent No. 1 unconditionally gifted the land measuring 12 Kanals for construction of the BHU. It was not given in exchange for the suit property which after extinguishment of the purpose for which it was donated had become surplus and was liable to be returned to the original donors in proportion to their previous ownership. No modern construction was raised on the suit property which existed in the abandoned condition. Respondent No. 1 succeeded to mutate it in his name to the exclusion of the Petitioner without his knowledge and consent. Upon gaining knowledge of Mutation No. 564 dated 02.01.1986, the Petitioner moved an application to the revenue hierarchy for correction of mutation which was concurrently allowed.

3. The Official Respondents No. 3 to 6 also filed written statement. It was admitted that the suit property was given to Respondent No. 1 in exchange of land measuring 12 Kanals. However, at the same time, it was also admitted that Deputy Commissioner had allowed correction of mutation in favour of the Petitioner.

4. The Trial Court framed issues and recorded respective evidence of the parties. The pivotal issue was as to whether Respondents No. 1 and 2 were owners in possession of the suit property to the exclusion of the Petitioner and if so, the impugned orders passed by the revenue officials were liable to be set aside.

5. The Trial Court after appraisal of evidence on record held that Respondent No. 1 had proved his case and he was entitled for decree of declaration as prayed for. It was observed that although the suit property was gifted for Dispensary by the Petitioner and Respondent No. 1 in different shares yet later Respondent No. 1 gave 12 Kanals land in the year 1986 for the BHU with the condition that the suit property would be returned to him. Therefore, the return of the suit property to Respondent No. 1 was lawful especially when the same was gifted to the Province of the Punjab and the Petitioner could not claim it back as a matter of right. In this context, letter dated 01.01.1986 (Ex. P-10) was issued regarding return of the suit property to Respondent No. 1 and in furtherance thereof, the mutation dated 02.01.1986 (Ex. P-12) was duly sanctioned. Respondent No. 1 had produced the copy of mutation (Ex. P-2) which depicted that he had transferred 12 Kanals of land to the Health Department of the Province of the Punjab for the BHU. The Application of the Petitioner (Ex. P-8) dated 12.01.1998 for correction of mutation sanctioned on 02.01.1986 was filed after a lapse of 12 years and was barred by time in terms of Article 14 read with Section 3 of the Limitation Act, 1908 as an order of the Government Officer can be challenged within a period of one year only. Accordingly, the suit was decreed.

6. The Appellate Court maintained the Judgment of the Trial Court on the same premises. It further discussed letter dated 01.01.1986 issued by District Health Officer, Dera Ghazi Khan to conclude that the word ‘owner’ depicted that the same was liable to be returned only to Respondent No. 1, otherwise, the word ‘owners’ should have been mentioned, if the suit property was intended to be returned in proportion to the original owners i.e. the Petitioner and Respondent No. 1. The Resolution of the District Council dated 08.07.1985 (Ex. P-3) was relevant, whereunder, the required land for construction of the BHU was donated by Respondent No. 1. Moreover, Mutation No. 564 dated 02.01.1986 shows that the suit property was owned by the Provincial Government, as such, was in possession of District Council and was given to Respondent No. 1 in lieu of the land gifted by him for the BHU. Hence, the orders passed by the revenue hierarchy for correction of mutation in favour of the Petitioner were unlawful.

7. Arguments heard. Record perused.

8. The evidentiary resume of this case establishes that certain basic facts are admitted. The Petitioner and Respondent No. 1 jointly donated 03 Kanals, 16 Marlas and 03 Kanals, 09 Marlas of land, respectively, constituting the suit property for construction of Dispensary. Later, Respondent No. 1 separately gifted another piece of land measuring 12 Kanals for construction of the BHU in another Mouza. The Government abandoned the Dispensary and as such, the suit property became surplus property. The Health Department of the Government of the Punjab granted permission to return the suit property. Thus, the only question which requires determination is as to whether the entire suit property was lawfully transferred back to Respondent No. 1 considering that he had donated a separate piece of land measuring 12 Kanals for construction of the BHU or the suit property should have been transferred to its donors in the same proportion in which it had been originally donated by them as concurrently held in the orders passed by the revenue hierarchy.

9. It was specifically pleaded in the plaint that Respondent No. 1 had proposed to the Petitioner to donate the required land for construction of the BHU jointly and take back the suit property but the Petitioner declined the proposal. The Petitioner had specifically stated in his written statement that Respondent No. 1 had donated 12 Kanals of land voluntarily and unconditionally for construction of the BHU and the donation was never in exchange of the suit property. Even otherwise, the share of suit property of the Petitioner could not have been exchanged without his consent and no person has any right to deprive the Petitioner from his share in the suit property. The oral evidence on record is in line with the referred pleadings. This fact clearly established that the Petitioner had never consented to any proposal regarding reversion of the suit property to Respondent No. 1 to his exclusion. No such proposal was ever floated by the Government. There is also nothing on record that the suit property was exchanged with the gifted land of the BHU. Respondent No. 1 had never informed the District Council that the suit property was collectively gifted by the Petitioner and Respondent No. 1. As such, Respondent No. 1 as member of the District Council had maneuvered the resolution in his favor on wrong facts and without the knowledge and consent of the Petitioner. Even otherwise, the Resolution of the District Council was not binding, rather, was in the nature of a recommendation which can neither pre-empt the law nor could have divested the Petitioner from his legal entitlement regarding his share in the suit property. The mutation attested by Respondent No. 1 in favour of the Government clearly depicted that he had gifted 12 Kanals of land for the purpose of construction of the BHU and when the said property would become surplus, he being the only donor can legitimately claim it back. As such, the orders passed by the revenue hierarchy reverting the suit property in proportion to the donation of the Petitioner and Respondent No. 1 are in consonance with law.

10. The interpretation extended by the Appellate Court to the word ‘owner’ with reference to letter dated 01.01.1986 to the effect that it depicted that the suit property was allowed to be returned only to Respondent No. 1 is completely misplaced. This was merely an internal letter conveying approval of return of the suit property based on proceedings initiated by Respondent No. 1 without the knowledge of the Petitioner. It was not determination of entitlement of the suit property in favor of Respondent No. 1. The said letter even wrongly mentions the measurement of the suit property as 06 Kanals. Therefore, the effect of the said letter was not more than permission to return the suit property having been abandoned after the extinguishment of the purpose of donation.

11. It is also noted that observation of the Trial Court to the effect that challenge to Mutation No. 564 dated 02.01.1986 was barred by time under Article 14 of First Schedule to the Limitation Act, 1908 is misplaced. This is on account of the reason that referred Article is applicable to suits instituted to set aside an act or order of an officer of the Government in his official capacity not otherwise expressly provided for which prescribes limitation of one year from the date of the act or order, whereas, the Petitioner had moved an application for correction of mutation under Section 166 of the Punjab Land Revenue Act, 1967 for which no limitation was prescribed. Jurisdiction conferred to revenue authorities under the said Section was wide enough to correct clerical or arithmetical errors. For reference, see case titled, “Dildar Ahmad and others v. Member (Judicial-III) BOR, Punjab, Lahore and another” (2013 SCMR 906).

12. Generally, a valid and complete gift is not retractable without the consent of both parties or by a decree since retraction of gift as a deed of conveyance is the very opposite of conveyance. Section 167 of Muhammadan Law by D. F. Mulla enunciates this principle. Gift is essentially without consideration. It is of two kinds, Hiba pertaining to corpus of property or Hiba pertaining to Areeat, which is a transfer of some limited interest for a limited time with the objective to allow the enjoyment or benefit of usufruct of gifted property. Any condition attached to a valid completed gift falling within the ambit of first kind is considered void, whereas, lawful conditions are recognized with respect to second kind of gift. Section 170 thereof defines Areeat as grant of a license, resumable at the grantor’s option, to take and enjoy the ‘usufruct’ of a thing. It follows that an Areeat is not a complete and absolute transfer of ownership but a temporary license in the nature of revocable and conditional transfer of ownership allowing the benefit of ‘usufruct’ without any consideration. The grantor’s option can be validly capped or made conditional. As such, in common parlance, it may be termed as a conditional gift which operates and is revocable subject to conditions attached thereto. The determination as to whether a gift relates to ‘corpus’ or ‘usufruct’ of the property depends upon the facts and circumstances of each case to be inferred from relevant evidence after discovering the real intention of the donor and no hard and fast rule can be laid down for this purpose. For reference, see discussion on gifts in Chapter 11 of “D. F. Mulla’s Principles of Islamic Law Muhammadan Law ) with “Sur vey of Case –Law” from the Superior Courts”, Seventh Edition by M. Mahmood and Jawad Mahmood); and D.F. Mulla’s, Principles of Muhammad Law, Pakistan Edition by Dr. M. A. Mannan”. The Apex Court in case titled, “Muhammad Nawaz and others v. Muhammad Khan and others” (2005 SCMR 710) recognized and endorsed the two types of gift in terms of ‘corpus’ and ‘usufruct’ of the property. It was held that where a condition is attached to a gift of ‘corpus’ of the property, the gift is valid and the condition attached thereto is illegal. However, when gift is regarding ‘usufruct’ of the property, any condition attached thereto is valid and is liable to be given effect. In case titled, “Abdul Rehman and 68 others v. Province of Punjab through Collector, Bahawalpur and 23 others” (2009 YLR 753), it was held that a conditional gift never becomes absolute and always remains subject to the condition on the basis of which it is made.

13. Articles 23 and 24 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) grants protection to property rights as a fundamental right of the citizens. The principles enshrined therein stipulate that every citizen shall have the right to acquire, hold and dispose of property subject to the Constitution and any reasonable restrictions imposed by law in the public interest. Further, no person shall be compulsorily deprived of his property save in accordance with law. It is further articulated that no property shall be compulsorily acquired save for a public purpose and after payment of due and adequate compensation. It, therefore, follows that the public welfare schemes initiated by the State for the benefit of its citizens are required to be executed after acquisition of land subject to determination and payment of due and adequate compensation in accordance with law. However, due to financial constraints, it is customary for the Government to execute various welfare schemes, such as, farm to market roads, schools, health and provision of other civic facilities on land volunteered by the residents. Such schemes generally require that free of cost land must be transferred in the name of concerned Government Department before a scheme is executed. The land is generally mutated in the villages in the name of the concerned Government Department through gift mutation as a convenient mode of transfer of land to satisfy the mandatory condition of the concerned Government Department. The intention of the party while executing such a transfer is unequivocally restricted to benefit from the project and the gift of land is intrinsically linked to the purpose of donation. Such gift of land is liable to be construed as a limited or conditional gift which is valid till the life of the project. Such land, in all fairness and equitable considerations, must revert to the owners once the purpose of donation extinguishes and the project is abandoned. The principle of reversion is also recognized in terms of Article 493 of Chapter XIV (Acquisition of Land for Public Purposes) of Punjab Land Administration & Management Manual administered by the Board of Revenue, Punjab even with respect to unutilized lands that may have been acquired. Therefore, gifts regarding ‘usufruct’ of the property in the name of the State should be encouraged as this would give incentive and security to the donors to freely donate land to the Departments of the Government as the donors would know that the donated land would revert back to them including their legal heirs after the life of the project. Needless to reiterate that State is mandated by Article 3 of the Constitution to eliminate all forms of exploitation. The instant case squarely falls within the parameters of conditional gift which was restricted to the use of ‘usufruct’ of donated

suit property till the life of the project and was lawfully allowed to revert back to the donors. The orders sanctioning correction of mutation to ensure the proportionate reversion to the donors are unexceptional. Therefore, it is obvious that the Courts below have misread the evidence on record as well as misapplied the law to decree the suit of Respondents No. 1 and 2 which resulted into grave miscarriage of justice. Hence, notwithstanding the concurrent findings of facts recorded by the Courts below, interference is warranted to redress the unlawful deprivation of the Petitioner.

1. In view of the above, this Civil Revision is allowed and the concurrent impugned Judgments and Decrees dated 21.03.2007 and 26.02.2009 passed by the Courts below are set aside. Consequently, the suit of Respondents No. 1 and 2 stands dismissed. No order as to costs.

2. Office is directed to transmit a certified copy of this Judgment to the Senior Member, Board of Revenue, Punjab, Lahore who is directed to prescribe a clear mechanism of transfer of donated property for a limited purpose and time period under a preferred mode of transfer with the mechanism of its reversion to its owners after the life or purpose of the project to ensure due protection to the donors as well as to encourage such donations to meet the pressing communal and civic needs of the people amidst rising prices of immoveable property. Compliance report shall be filed in this behalf with the Deputy Registrar (Judicial) of this Court within a period of three months from the date of this Judgment regarding any decision or steps taken in this behalf.

(Y.A.) Civil Revision allowed

PLJ 2023 Lahore 416

Present: Jawad Hassan, J.

FAYSAL BANK LIMITED--Applicant

versus

HARIS STEEL INDUSTRY (PVT.) LIMITED--Respondent

Ex.A.No. 50-B of 2016 and C.M. No. 5 of 2018, decided on 14.11.2022.

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

----Ss. 9 & 19--Civil Procedure Code, (V of 1908), S. 151 & O.XXI Rr. 66, 84, 90--Suit for recovery--Decreed--Auction proceedings--Objection application--Auction of property--Amount of security was not deposited--Allegations of irregularity and illegalities in auction proceedings--Validity of auction--Mere allegations of irregularity are not sufficient to set aside sale but objector must satisfy Court that he has suffered substantial injury by reason of such irregularity or fraud--Validity of auction is reasonably protected under law through provisions of Ordinance and CPC--It is also duty of Court to check whether provisions under Order XXI of “CPC” for public auction of property have been complied with, even in absence of any objection petition--The third party rights accrue in favour of a bidder when auction-sale becomes complete, i.e. when Court confirms auction sale--Once a sale has been affected, a third party interest intervenes which cannot be disregarded.

[Pp. 432 & 435] B, C, D & E

PLD 2016 SC 229, PLD 1987 SC 512, 2011 CLD 1683 & 2002 CLD 1071 ref.

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

----O. XXI, R. 84--Auction proceeding--Obligation of bidder--After a successful completion of an auction proceedings, highest bidder is under an obligation to deposit sale price in terms of proclamation of sale and then Court Auctioneer sends a report to Court describing various particulars of proceedings including detail of participants, bids offered by them, information about highest bidder, and notification of earnest money as deposited by latter under Order XXI Rule 84 of “CPC”. [P. 426] A

Barrister Khalid Ishaq, ASC, Qazi Misbah-ul-Hassan, Advocate with Faizan Ahmad, Advocate for the Applicants/judgment debtors.

Mr. Muhammad Naeem Sehgal, ASC and Waseem Ahmad, Advocate for decree holder.

Mr. Aamir Saeed Raan, ASC, Barrister Mian Belal Ahmad, ASC with Barrister Ali Fayyaz, Mirza Abdul Maalik Baig and Rai Usama Sultan, Advocates for Auction Purchaser.

M/s. Ashiq Hussain Hanjra and Qaisar Mehmood,Advocates/Court auctioneers.

Mr. Majid Ali Wajid, ASC/Amicus Curiae. Mr. Ruman Bilal, Advocate for SECP.

Date of hearing: 14.11.2022.

Order

C.M.No. 05 of 2018

This objection petition in terms of Section 19 of the Financial Institution (Recovery of Finance) Ordinance, 2001 (the “Ordinance”) was filed by the applicants/judgment debtors objecting to auction proceedings dated 14.12.2017 on the ground that the land measuring 180-Kanals (more than 22 acres) situated at Mauza Bauly, Tehsil Muridke, District Sheikhupura worth more than Rs. 400 million has illegally been auctioned @ Rs. 185,000,000 in favour of one Muhammad Fazal Muqeem.

I. Context

1. During execution proceedings, the auction of property was held on 14.12.2017 and the applicants/judgment debtors being aggrieved thereof filed this objection application on 13.01.2018 to set aside the same. The nub of the matter in this application is the alleged illegalities and irregularities committed by the Court Auctioneers in auction proceedings in connection with the execution of the decree of banking suit. In order to resolve the issue following banking moot points were framed on 22.11.2019:--

I. Under which provision of the Financial Institution (Recovery of Finance) Ordinance, 2001 (the “Ordinance”) and the Code of Civil Procedure, 1908 (CPC), the Banking Court has to approve the auction schedule?

II. What should be included in terms and conditions of the auction approved by the Court in the light of the provision of the CPC?

III. Whether the objection petition is maintainable in case of non-deposit of 20% pre-auction/post-auction in every case when there is material illegality and irregularity in the auction proceedings?

IV. What is the time frame of the auction and its objection to be decided?

V. What are the vested rights of the bidders and auction purchasers after they have become successful bidder before the sale certificate is issued?

VI. Whether the pasting of poster in the Court Premises is mandatory?

VII. Whether the signing of attendance sheet and bidding sheet, is mandatory or directory?

VIII. The relationship of the Court auctioneer should be transparent with all the stakeholders and what is criteria of the same?

IX. What amounts to substantial injury Order XXI Rule 90 of CPC?

X. Whether the auction that has been conducted without following the procedure, violates the fundamental rights of the auction purchaser under Articles 23 and 24 of the Constitution?

II. Applicant/judgment debtors’ submissions

1. Mr. Khalid Ishaq, ASC submits that this Court directed the decree holder/bank to publish the auction schedule in two daily newspapers (one Urdu and one English) with the purpose to inform maximum number of people from general masses regarding auction of the property so that the maximum bidders could participate in the bidding process but the decree holder/bank in sheer violation of order of this Court malafidely published the proclamation only in English language in newspaper daily “The Nation”, therefore the auction proclamation does not fulfill the requirements of Order XXI Rule 66 of the Civil Procedure Code, 1908 (the “CPC”). He further submits that the Court Auctioneers were bound to affix the proclamation upon a conspicuous part of the Court and the property to be auctioned as per prescribed law but the same has not been done. He argues that it is mandatory provision of Order XXI Rule 68 of the “CPC” that no auction shall be held until the expiration of at least 15 days calculated from the date on which the copy of proclamation has been affixed in the Court i.e. 01.12.2017 but as per report of the Court Auctioneers the same was held on 14.12.2017, only after 13 days of fixation of proclamation in Court. He next adds that actually no open auction has been conducted and the proceedings shown in the auction report are false, fake, fictitious and are result of collusion between the decree holder/bank, auction purchaser and the Court auctioneers. He highlights that as per auction report, two bidders paid the earnest money amounting to Rs. 1,000,000/- through cheques instead of pay orders to participate in the auction proceedings, which also was not in accordance with law. He maintains that the property to be auctioned is undivided thus the same cannot be auctioned without proper partition and demarcation. He points out that evaluation report submitted by the evaluator is also incorrect, false and fictitious because the same does not give the actual value of the property. Lastly, submits that the alleged auction proceedings dated 14.12.2017 are result of fraud, hence the same be declared as illegal, fraudulent, null and be set aside.

III. Decree Holder Bank/Respondents Submission

1. Conversely, Mr. Muhammad Naeem Sehgal, ASC for the decree holder/bank submitted detailed reply to this application and defended the auction proceedings dated 14.12.2017 by denying the story narrated by the applicants/judgment debtors. Mr. Muhammad Naeem Sehgal, ASC also objected to maintainability of this application on the ground that the applicants/judgment debtors have neither deposited 20% of amount realized at the sale nor furnished security in term of Order XXI Rule 90 of the “CPC” and thus it has just been filed to frustrate auction proceedings and to deprive the decree holder/bank from its lawful rights. He added that whole auction proceedings were conducted strictly in accordance with law and the property was auctioned against sum of Rs. 185,000,000/-as per law therefore, the applicants/judgment debtors have not approached this Court with clean hands and are not entitled to any relief.

IV. Court Auctioneer’s submissions

1. The Court Auctioneers have also submitted their written arguments in response to this application and argued that allegations levelled and pleaded by the applicants/judgment debtors are totally false, flimsy, frivolous, baseless and have no force or value in the eyes of law. They urged that all the auction proceedings have been conducted in accordance with law and no illegality or irregularity has been committed on their behalf.

V. Amicus Curiae’s submission

1. Mr. Majid Ali Wajid, ASC submitted that where property/security before the Court for realization of the decretal amount is a mortgaged property, there is no requirement of its attachment before its sale in execution of decree passed by the Court and the Court may directly order the said property to be sold through public auction in terms of Order XXI Rule 64 of the “CPC”. He adds that once such order is made, the Court causes a proclamation of intended sale, after notice to the decree holder and the judgment debtor under order XXI Rule 66 of the “CPC”, containing material details such as description of the property, its reserve price, the terms and conditions of the auction, and its time, date and venue, to be published in terms of Order XXI Rule 66 and Rule 67 of the “CPC”. He added that in terms of the Lahore High Court Amendment in Order XXI Rule 66, sub-rule (2), which has come into effect from 1-11-2020, such proclamation shall be drawn by the Court Auctioneer from now onwards, and contain all the aforesaid material details which shall be submitted before the Court for its approval which shall add to it the reserve price of the property under sale, based upon the evaluation report submitted by any evaluator appointed by the Court from amongst the evaluators approved by the Pakistan Bankers’ Association. Hence, once the Court has satisfied itself from the perusal of the record of case that requirements under the afore-mentioned rules have been complied with, the Court has to approve the auction schedule and to proceed with the auction of the property in terms of Order XXI Rule 66 of the “CPC”. He pointed out that the term ‘auction schedule’ is merely used in practice, and is not a term that can be found in the procedure provided in the “CPC”. It is in fact the term “proclamation” which is used in Order XXI of the “CPC” for this purpose. Therefore, it may not be correct to use the term ‘auction schedule’, as the said term only gives an indication of the schedule/timing/date of auction, rather than the terms and conditions mentioned therein. The term “proclamation” is a comprehensive term as the approved proclamation includes both the schedule of auction sale, as well the terms and conditions of auction.

VI. Determination by the Court

1. Before discussing the aforementioned points of determination, it would not be out of place to mention here that in a similar case “Faysal Bank Limited versus Sajjad Aslam and others” (2022 CLD 123), where auction proceedings were challenged, this Court besides elaborating the term “substantial injury” has held that in order to get an auction sale set-aside, it was mandatory for the judgment-debtor to fulfill two basic conditions. Firstly, he has to satisfy the Court on the merits, the existence of a material irregularity, or fraud in publishing or conducting an auction. Secondly, he has to establish that he had sustained a substantial injury by reason of such irregularity or fraud. Keeping the said yardstick in view, the aforementioned points of determination are discussed and decided respectively as under:

POINT Nos. 1 & 2 (Provisions regarding approval and terms and conditions of auction)

1. There is no cavil to the proposition that Section 19 of the “Ordinance”, Section 151 read with Order XXI of the “CPC” deals with execution proceedings before the Banking Court and gives discretion to it to execute a decree of Banking Court as per the provisions of the “CPC”, or in any manner the Court deems fit. Section 51 of the “CPC” generally provides the modes which can be adopted by a Court for execution of a decree while Order XXI provides detailed procedure regulating the powers of the Court in respect of execution. Order XXI Rule 64 envisages power of executing Court to order sale of property already attached but in case of a mortgaged property, an executing Court can order the sale through public auction and attachment would not be necessary. Reliance is placed on Messrs Hanif Metal Store through Proprietor and others v. Bank of Punjab through Manager and others (2017 CLD 447), wherein it was held that:

“Mortgaged property being already secured, the Court was not required to adopt protective measures through attachment in respect of mortgaged properties. There is no cavil with the settled proposition that once Executing Court opted and invoked provisions of C.P.C., then it cannot avoid its express provisions. However, as already discussed above, provision of Order XXI, Rule 54 or Section 60, C.P.C. does not specifically required attachment of mortgaged property, therefore, Court was not bound to attach the mortgage property before its sale in execution”.

1. Order XXI Rule 66 deals with proclamation of sales by public auction while Rule 67 deals with mode of making proclamation. Once an order for sale under Rule 64 is made, the Court causes a proclamation of intended sale, after notice to the decree holder and the judgment debtor under order XXI Rule 66, CPC. Under the amended Rule 66 sub-rule (2) of Order XXI, any proclamation of sale of any such property by public auction, shall be drawn by the Court Auctioneer which shall be submitted before the Court for its approval which shall add to it the reserve price of the property under sale, based upon the evaluation report submitted by any evaluator appointed by the Court from amongst the evaluators approved by the Pakistan Bankers’ Association. Hence, once the Court has satisfied itself from the perusal of the record of case that requirements under the afore-mentioned rules have been complied with, the Court has to approve the auction schedule and to proceed with the auction of the property in terms of Order XXI Rule 66. It is pertinent to mention here that the term “auction schedule’, only gives an indication of the schedule/timing/date of auction, rather than the terms and conditions mentioned therein while the term “proclamation” is a comprehensive term as the approved proclamation includes both the schedule of auction sale, as well the terms and conditions of auction. In the light of Order XXI Rule 66 the “CPC”, following elements should be included in the terms and conditions of the auction schedule/proclamation approved by the Court:-

i. Time and place of sale of auction property.

ii. Description of the property to be sold at auction.

iii. The revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government.

iv. Any encumbrance to which the property is liable.

v. The amount for the recovery of which the sale is ordered.

vi. Every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property.

vii. The reserve price of the property.

1. Order XXI Rule 67 sub-rule (2) further provided that such proclamation shall be published in the official gazette or in a local newspaper, or in both however the said sub-rule is substituted by Lahore High Court in 2018 and now the sub-rule (2) (i) requires that where the reserve price determined by the Court exceeds rupees two million, the proclamation shall be published in at least one widely circulated national daily newspaper while under sub-rule (2)(ii) video recording of the auction proceedings is also required to be made by the Court auctioneer.

POINT NO. 3 (Maintainability in case of non -deposit of 20% amount)

1. The objection regarding the maintainability of the instant petition due to non-deposit of 20% of amount in terms of Order XXI Rule 90 of the “CPC” as raised by learned counsel for the Respondents is not without substance. This is because as per the second proviso of Rule 90, Order XXI of the “CPC”, until and unless, the judgment debtors deposit an amount equal to 20% of the sum realized at the sale or furnish such security as the Court may direct, in every case, any objection would not be maintainable even when there is material illegality and irregularity in the auction proceedings. The requirement to deposit 20% of the auction price, or such other security as directed by the Court, along with an application under Order XXI Rule 90 of the “CPC” is mandatory, and any application that fails to fulfil this requirement cannot be entertained and is liable to be dismissed by the Court. Reliance is placed on “Zakaria Ghani versus Muhammad Ikhlaq Memon” (PLD 2016 SC 229), wherein it was held (Para. 4 on Pg. 238) that:

“Yet another condition is prescribed by the second proviso which states that no application shall be entertained in terms of this provision of law unless and until the judgment deposits an amount equal to 20% of the sum realized at the sale or furnish such security as the Court may direct. These are stringent conditions which make the policy of the law crystal clear. A mere allegation is not sufficient. It has to be established that not merely an irregularity, but a material irregularity has taken place, or, in the alternative, that fraud has been perpetrated in the process of carrying out the sale. Then is super added the requirement that even if these conditions are complied with the judgment debtor must satisfy the Court that he has sustained a substantial injury by reason thereof. Finally, in order to discourage frivolous applications intended to delay the execution of the decree it is mandatory on the judgment debtor to deposit 20% of the sale amount or furnish such security as the Court may direct.”

1. The plain reading of the second proviso to Order XXI Rule 90 of the “CPC” mandates every application under the provision to be accompanied by 20% of the auction price in order to be entertained. Reliance is also placed on “Messrs HABIB AND COMPANY and others versus MUSLIM COMMERCIAL BANK LIMITED & others” (PLD 2020 SC 227), wherein it was held (Pg. 231) that:

“A bare reading of the second proviso to Order XXI Rule 90 clearly shows that the deposit of a sum of 20% of the auction price is mandatory for the application to be entertained in the first place, i.e. an application will not be maintained unless such a sum is deposited. A closer reading of the provision also shows that the discretion provided to the Court is not with respect to furnishing of the security at all, but rather the amount of the security to be deposited.”

1. It is not out of place to mention here that in order to evade the requirement of depositing 20% of the sum realized at the sale, the objectors often seek to circumvent the application of provisions under Order XXI Rule 90 the “CPC” by filing the objection petitions under Section 19(7) of the “Ordinance”. However, the said objection petitions would be deemed to be the applications under Order XXI Rule 90 of the “CPC”. Reliance is placed on “Messrs NICE ‘N’ Easy Fashion (PVT.) LTD. and others versus Allied Bank of Pakistan and another” (2014 SCMR 1662), wherein it was held (Pg. 1666) that:

“The appellants themselves moved the Banking Court under Section 19(7) of the Ordinance and have not made an application under Order XXI Rule 89 or 90, C.P.C. Even if the objection petition of the appellants is treated as an Application under Order XXI Rule 89 or 90, C.P.C., then the said Rules mandate that the objector should deposit the amounts mentioned therein along with the application. In absence of the deposit, as mandated by the Rules, the application and or objections cannot be entertained by a Banking Court. In the case in hand, the appellants have not deposited any of the amounts required under the aforesaid Rules, therefore, the objections were rightly rejected by the Banking Court.”

1. In another judgment reported as “Messrs Habib and Company and others versus Muslim Commercial Bank Limited and others” (2019 SCMR 1453) it was held (Pg. 1455) that:

“The provisions of Order XXI Rule 90, C.P.C. have come under discussion in various judgments pronounced by this Court in which it has conclusively been held that the statutory deposit of 20% by this judgment debtor is mandatory and that without such a deposit the objection application under Order XXI Rule 90, C.P.C. is not maintainable.”

POINT NO. 4 (Time frame of the auction and decision of objections)

1. Order XXI Rule 68 deals with the time frame of sale through auction. Under this Rule an interval of 15 days must elapse between the date of proclamation and the date of sale an immovable property. Although non-compliance of this provision may amount to material irregularity but any such sale would not be liable to be set-aside until and unless it is proved that it caused substantial injury to a party. Reliance is placed upon “Zakaria Ghani and 4 others versus Muhammad Ikhlaq Memon and 8 others” (PLD 2016 Supreme Court 229). This Court has also held in “Faysal Bank Limited versus Sajjad Aslam and others” (2022 CLD 123) that:

It has to be established that no merely an irregularity but a material irregularity had taken place, or, in the alternative that fraud had been perpetrated in the process of carrying out the sale. Even if these conditions were complied with the judgment debtor must satisfy the Court that he had sustained a substantial injury by reason thereof. It has further held that mere an irregularity, even if material, should not suffice unless it could be shown that material loss had been caused.

1. As far as the time frame for decision of the objection petition against auction is concerned, Section 19(7) the “Ordinance” envisages that, notwithstanding anything contained in the “CPC”, or any other law for the time being in force, the Banking Court is required to follow the summary procedure for purpose of investigation of claims and objections in respect of attachment or sale of any property, whether or not mortgaged, pledged or hypothecated, and shall complete such investigation within 30 days of filing of the claims or objections.

POINT NO. 5 (Vested rights of bidders and auction purchasers)

1. After a successful completion of an auction proceedings, the highest bidder is under an obligation to deposit the sale price in terms of the proclamation of sale and then the Court Auctioneer sends a report to the Court describing various particulars of the proceedings including the detail of participants, the bids offered by them, the information about the highest bidder, and the notification of earnest money as deposited by the latter under Order XXI Rule 84 of the “CPC”. The Court then applies its judicial mind on the report in order to choose the most appropriate bid, preferably the highest, for the realization of the decree and costs. The Hon’ble Supreme Court of Pakistan has repeatedly held that the nature of a bid made in the auctions, whether it is the highest or the lowest, is that of an offer which does not by itself give rise to any rights to the bidders or auction purchasers, as the same is always subject to acceptance by the Court after proper application of its judicial mind and deposit of full purchase-money under Order XXI Rule 85, CPC. Reliance is placed on “Muhammad Attique versus Jami Limited” (PLD 2010 SC 993), wherein it was held that:

“….. It is well settled that a bid made at an auction is in the nature of an offer which does not mature into a contract till its acceptance. The auctioneer acts as an agent of the seller to accept the bid, a concluded contract comes into being the moment the bid is accepted by a word of mouth or in any other customary method like fall of hammer at public auction. If, however the auctioneer is not vested with the power to accept the bid and said power is with another authority (i.e. the Court in a matter), the contract/sale comes into being when the bid is accepted by that authority ………”

….. In an auction proceedings, title in the property not transferred in favour of the highest bidder, at the time when was held and offer was forwarded to the acceptance, the Court sale for immovable property under Order XXI Rule 84 is subject to proceedings under Order XXI Rules 89, 90 and 91, as result of which sale may either be set aside or confirmed. Once sale is confirmed, Section 65 C.P.C. provides that ownership right in the immovable property will be deemed to have vested in the succeeding bidder retrospectively from the date when auction was held.”

1. In another pronouncement, the Hon’ble Supreme Court of Pakistan in “Afzal Maqsood Butt versus Banking Court No. 2, Lahore” (PLD 2005 SC 470), has held that

“….. The bid in an auction is only an offer and without the confirmation of sale, it does not create any right in the property in favour of the successful bidder, therefore, the confirmation of sale cannot be claimed as of right.”

1. As far as the infringement of legal right of the highest bidder in the auction proceedings is concerned, reliance is placed on “Captain-PQ Chemical Industries (Pvt.) Ltd versus Messrs A.W. Brothers and others” (2004 SCMR 1956), wherein it was held that:

“We have examined the entire record also perused the judgment impugned. We may mention here at the outset that mere floating of the bid in respect of the fact whether it is the highest or the lowest, does not create a legal right in favour of the bidder, hence the question of its infringement does not arise.”

1. The declaration of the highest bidder at the end of an auction is merely to let the participated bidders know who has to deposit the earnest money in terms of Order XXI Rule 84 of the “CPC”. As to the creation of legitimate expectation in favour of the highest bidder to the sale of subject property, such expectation is of course created in favour of the highest bidder but against the other bidders, making him expect that his offer shall be accepted by the Court and the property in question against other bidders will be transferred in his name after all the legal requirements have been met. However, such expectation does not give rise to any right much less vested right in the property, for such rights to be created, only when a bid is accepted by the Court after proper application of its judicial mind.

2. While discussing the accrual of valuable rights in favour of the bidders, the Supreme Court of Pakistan in case titled “Muhammad Khalil versus Faisal M.B. Corporation” (2019 SCMR 321) held that:

“We are not impressed by the argument of the learned Counsel for the Petitioner that by virtue of being declared the highest bidder and depositing the entire sale price in Court, valuable rights had accrued in favour of the Petitioner. It needs no reiteration that an auction is always subject to confirmation by the Court. Till such time such confirmation is granted by the Court, after hearing all hearing concerned parties in accordance with law, the powers available to the Court under Order XXI Rules 89 or 90 can always be exercised.”

Therefore, unless the Court confirms the auction by accepting the bid of the highest bidder, no vested/third party right accrue in favour of the auction purchaser.

POINT Nos. 6 & 7 (Pasting of poster in Court and signing of attendance/bidding sheet)

1. The pasting of poster in the Court premises is one of the modes of making proclamation under the provisions of Order XXI Rule 67 which enables due publicity to an auction sale. Every proclamation is to be made and published, as nearly as may be, in the manner prescribed by the Order XXI Rule 54 sub-rule (2), which is reproduced is as under:

“54(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate.”

1. Thus, a substantial compliance of the provisions of the Order XXI Rule 54 sub-rule (2) is enough for the purposes of sale proclamation and attracting the prospective bidders, and in the absence of any specific complaint in this regard, the entire auction proceedings cannot be vitiated by the Court. Reliance is placed on “GHULAM ABBAS versus ZOHRA BIBI and another” (PLD 1972 SC 337), wherein it was held that:-

“The next contention of the learned counsel for the appellant is that the non-publication of the sale proclamation by beat of drum in the locality, as prescribed by sub-rule (2) of rule Order XXI of the Code of Civil Procedure, was a non-compliance with a mandatory provision of the law, which vitiated the entire proceedings. Again, it is no doubt true that the sale proclamation was not published at some place on, or adjacent to the property by beat of drum, but due publicity was given to it, as is evident from the reports of the bailiff and the Nazir, both by publication in newspapers as also by the distribution of hand bills at the site and at other important places in the city. The affixations at other place, as required by the rule, were of course, duly complied with, and complaint is made with regard thereto.

There is nothing in this to show that the provisions of Order XXI Rule 54, of the Code are mandatory and substantial compliances is not enough.

Indeed, it would appear that the view of the Courts has consistently been that the non-compliance with the provisions of the Code of Civil Procedure, with regard to the proclamation of sale, its publication and the conduct of the sale in execution, are only material irregularities but illegalities which render the sale in disregard of those provisions a nullity. A sale cannot be set aside unless “direct evidence of substantial injury resulting from the irregularity has been given, as was observed in the case of Tassaduk Rasul Khan vs. Ahmad Hussain and the onus of proving this prejudice is on the party complaining thereof.”

It may also be pertinent to point out here that under Order XXI Rule 67 of the Code of Civil Procedure itself, all that is required is that “every proclamation shall be made and published, as nearly as may be, in the manner prescribed by rule 54 sub-rule (2)” and in this sub-rule it is provided that the proclamation shall be “by bet of drum or other customary mode”. Proclamation by beat of drum, therefore, is not the only mode by which the order can be proclaimed. The object of these rules is to ensure that due publicity is given to the fact that sale is to be held and proper opportunity is given to bidders to attend the sale.

We are satisfied that such publicity was given and full opportunity was furnished to intending bidders.

Learned counsel for the appellant contends that this is an additional requirement of the rules of the Sindh Chief Court which do not abrogate the provisions of the Code of Civil Procedure. We are inclined to agree with him, but, nevertheless, we are of the opinion that these Rules are not mandatory in nature and substantial compliance with them is sufficient. The object of these Rules is to give the order of attachment or the sale proclamation as wide a publicity as possible in the circumstances of the case, having regard to the nature of the property to be sold and the place of its location. If this has substantially been done and a fair offer received at the auction, then the Courts would be inclined to hold that there has been substantial compliance with Rules, unless, of course, the appellant can establish by cogent evidence that the irregularity has resulted in prejudice to him. The Appellant has not been able to do in the present case.”

1. As far as the issue of signing of attendance sheet and bidding sheet is concerned, the Civil Procedure Code is silent on this point. By way of practice the signing of the attendance sheet and the bidding sheet is for the purpose to establish that the sale is conducted in a fair and transparent manner at site in terms of the proclamation of auction approved by the Court. It further establishes that the auction proceedings and the auction report are not bogus or sham. The presence of attendance and bidding sheets on the record shows the number of the parties were present on the auction date at the site, and who were the persons who submitted their pay orders and participated in the auction. The presence of a greater number of persons on the attendance and bidding sheet also proves that due publicity of the auction sale of the property was given and full opportunity was furnished to the intending bidders to participate in the auction proceedings.

POINT NO. 8 (Transparent role of Court Auctioneer)

1. Order XXI Rule 65 of the “CPC”. provides that every sale in execution of decree shall be conducted by an officer of the Court or by such other person as the Court may appoint, and shall be made by public auction in the manner prescribed. Once an order of sale through public auction is made under Order XXI Rule 64 of the “CPC”, and a Court auctioneer is appointed by the Court under Rule 65 of the same Order, then the Court causes a proclamation of the intended sale, after notice to the decree holder and the judgment debtor under order XXI Rule 66 of the “CPC”, containing material details such as description of the property, its reserve price, the terms and conditions of the auction, and its time, date and venue, to be published in terms of Order XXI Rule 66 and Rule 67 of the “CPC”.

2. The role of Court Auctioneer has become much relevant in an Auction proceeding subsequent to the amendment in Order XXI Rule 66, sub-rule (2), because under the amended Rule, such proclamation shall be drawn by the Court Auctioneer and contain all the aforesaid material details which shall be submitted before the Court for its approval. Every proclamation is to be made and published in terms of the provisions of Order XXI Rule 67 of the “CPC” which enables due publicity to an auction sale for the purposes of attracting the potential prospective bidders in the auction proceedings.

3. Moreover, in terms of the Lahore High Court Amendment in Order XXI Rule 67, sub-rule (2), to make the auction proceedings more transparent, the above mentioned proclamation shall also be published in at least one widely circulated national daily newspaper where the reserve price determined by the Court exceeds rupees two million, and the Court Auctioneer appointed by the Court shall cause video recording of the auction proceedings while ensuring transparent and fair bidding process of the public auction.

4. After complying with all the said requirements, the Court Auctioneer conducts the auction in accordance with the terms and conditions mentioned in the proclamation of sale approved by the Court. Upon completion of the auction proceedings relating to sale of immovable property, the Court Auctioneer declares the highest bidder to apprise him of his obligation to deposit 25% of the sale price in terms of the proclamation of sale as required under Order XXI Rule 84 of the “CPC”. However, in view of the Lahore High Court Amendment, 2018, under Order XXI Rule 84 sub-rule (1), C.P.C., on every sale of immovable property, the person declared to be the purchaser shall pay to the officer or other person conducting the sale the amount equal to the reserve price of the property through pay order or bank draft or banker’s cheque immediately after such declaration and in case such payment is not made, the property shall forthwith be resold in the manner provided under this Order.

5. The balance amount of the bid price or purchase money shall be deposited by the purchaser/highest bidder within 15 days from the date of sale in the Court or with the Court Auctioneers as per provisions of Rule 85, Order XXI of the “CPC”.

6. The Court Auctioneer, then, sends a report to the Court describing various particulars of the proceedings including the detail of participants, i.e. attendance sheet, the bids offered by them (bidding sheet), the information about the highest bidder, and the notification of amount paid by the purchaser.

7. For the purposes of maintaining the transparency in the auction proceedings, it is the duty of the Court to check whether the afore mentioned criteria for the public auction of the property as envisaged under Order XXI has been complied with, and whether at the time of drawing up the proclamation of sale, the Court Auctioneer kept in his mind the requirements under Order XXI Rules 66, 67, 84 and 85. Then the Court should apply its judicial mind before the confirmation of the auction sale in favour of the purchaser, even in the absence of the objection petition. Otherwise, failure of the Court Auctioneers to adhere to the said Rules could vitiate the auction proceedings on account of the material irregularity resulting in lack of transparency and rendered the proclamation of sale illegal.

POINT NO. 9 (Substantial injury under Order XXI Rule 90)

1. A plain reading of Order XXI Rule 90 of the “CPC” shows that mere allegations of irregularity are not sufficient to set aside the sale but the objector must satisfy the Court that he has suffered substantial injury by reason of such irregularity or fraud. For a Court to set aside the sale under Order XXI Rule 90 of the “CPC”, it is necessary for the objectors to raise in the objection petitions not only irregularity or fraud in the auction proceedings, but they also have to prove before the Court that they have sustained substantial injury as a result of such irregularity or fraud. The Hon’ble Supreme Court in “Zakaria Ghani and 4 others versus Muhammad Ikhlaq Memon and 8 others” (PLD 2016 Supreme Court 229) held that for setting aside of sale under Order XXI Rule 90 of the “CPC”, mere irregularity is not sufficient but there must be material irregularity or fraud in the process and in addition, there must be substantial injury to the judgment debtor. The relevant observation of apex Court is reproduced hereunder:-

“A mere allegation is not sufficient. It has to be established that not merely an irregularity but a material irregularity has taken place, or, in the alternative, that fraud has been perpetrated in the process of carrying out the sale. Then is super added the requirement that even if these conditions are complied with the judgment debtor must satisfy the Court that he has sustained a substantial injury by reason thereof. Finally, in order to discourage frivolous applications intended to delay the execution of the decree it is mandatory on the judgment debtor to deposit 20% of the sale amount or furnish such security as the Court may direct. It is also material to note that once again a time frame of 30 days has been specified under Article 166 of the Limitation Act in this behalf. Failing compliance with the provisions of Order XXI Rule 90 once again the inevitable consequence is that the judgment debtor is precluded from making any such allegation in order to challenge the validity of the sale at a subsequent stage”.

1. In view of law laid down by august Supreme Court and express provision of Order XXI Rule 90 of the “CPC”, an aggrieved person may apply to Court to set aside “sale” on the ground of material irregularity or fraud in publication or conducting it, however, no sale be set aside unless upon the facts proved, Court is satisfied that applicant has sustained substantial inquiry due to such irregularity or fraud.

2. It is clear and obvious that unless any material irregularity, coupled with substantial injury, is shown to have been committed, no sale can be set aside. Reliance is placed on “Ghulam Abbas versus Zohra Bibi and another” (PLD 1972 SC 337), wherein it was held that:-

“Indeed, it would appear that the view of the Courts has consistently been that the non-compliance with the provisions of the Code of Civil Procedure, with regard to the proclamation of sale, its publication and the conduct of the sale in execution, are only material irregularities but illegalities which render the sale in disregard of those provisions a nullity. A sale cannot be set aside unless “direct evidence of substantial injury resulting from the irregularity has been given, as was observed in the case of Tassaduk Rasul Khan vs. Ahmad Hussain and the onus of proving this prejudice is on the party complaining thereof.

If there was any doubt as to the correctness of the above view, this doubt is laid at rest by the proviso to Rule 90 of Order XXI of the Code of Civil Procedure which clearly prescribes that “no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.”

1. Following are the instances that could amount to substantial injury under Order XXI Rule 90, C.P.C., i. Presence of evidence on record that the auction proceedings are not conducted at the site. Reliance is placed on Muhammad Ashraf vs UBL 2019 SCMR 1004.

ii. The property has been sold at a throw away price. Reliance is placed on Muhammad Khalil vs Faisal M.B. Corporation 2019 SCMR 321, wherein it was held that:-

“We are therefore in no manner of doubt that the land in question was indeed sold at a throw away price causing substantial injury and loss to the Judgment Debtor. There was a huge gulf between the value represented by the auction price and the real market value and there is no plausible or reasonable explanation for such difference. Further, there is evidence on record that the auction proceedings were not conducted at the spot. This has cast serious doubts upon the sanctity of the auction and the entire process which led to such auction. It is now well settled that the Court has the power to set aside any auction if the same is proved to have been conducted in an unlawful or irregular manner or the property has been sold at a throw away price. We are unable to agree with the assertion of the learned counsel for the petitioner that inadequacy of the sale price cannot constitute basis for setting aside a sale.”

1. This Court while interpreting substantial injury as envisaged under Order XXI, Rule 90, C.P.C, has already held in Faysal Bank Limited v. Sajjad Aslam and Others (2022 CLD 123), that the First Proviso of Order XXI, Rule 90 of the “CPC” guides that no sale shall be set aside on the ground of irregularity or fraud unless upon the fact proved the Court is satisfied that the Applicant has sustained substantial injury by reason of such irregularity or fraud; that due to such an irregularity the judgment debtor has not suffered from any substantial injury.

2. In this regard, we seek support from a judgment reported as “Zakaria Ghani and 4 others versus Muhammad Ikhlaq Memon and 8 others” (PLD 2016 Supreme Court 229) wherein it has been observed that Order XXI, Rule 90 of the “CPC” proceeds on different basis. In order to succeed it was mandatory for the judgment-debtor to satisfy the Court, on the merits, that the sale should be set aside on the ground of a material irregularity, or fraud, in publishing or conducting it. Another condition was prescribed by means of the proviso thereto which stipulated that no sale shall be set aside on the ground of irregularity or fraud unless, upon the facts proved before the Court, it was established that the judgment-debtor had sustained substantial injury by reason of such irregularity or fraud.

A mere allegation was not sufficient. It has to be established that not merely an irregularity but a material irregularity had taken place, or, in the alternative that fraud had been perpetrated in the process of carrying out the sale. Even if these conditions were complied with the judgment debtor must satisfy the Court that he had sustained a substantial injury by reason thereof. It is further held that mere an irregularity, even if material, should not suffice unless it could be shown that material loss had been caused. The more enlightening observation made by the Hon’ble Supreme Court are that where the irregularity consisted of errors by the Court, or by Court officials, no party should be made to suffer by reason thereof. So, under these guidelines it can safely be said that even irregularities made in this case by the Court -Auctioneer are not lethal to the rights of judgment –debtor causing any substantial injury to him.

POINT NO. 10 (Violation of fundamental rights of the auction purchaser)

1. An auction that has been conducted by following the procedure does not violate the fundamental rights of the auction purchaser under Articles 23 and 24 of the Constitution as the same are subject to certain restrictions imposed by the law. The validity of auction is reasonably protected under the law through the provisions of the Ordinance and the CPC. It is also the duty of the Court to check whether the provisions under the Order XXI of the “CPC” for the public auction of the property have been complied with, even in the absence of any objection petition.

2. The Hon’ble Supreme Court has held in the case of “Afzal Maqsood Butt versus Banking Court No. 2, Lahore” (PLD 2005 SC 470) that a bid in an auction is only an offer and it confers no benefit unless it culminates in the issuance of a confirmation of sale. It was further observed that confirmation of sale cannot merely be claimed as of right.

3. The vested/third party rights accrue in favour of a bidder when the auction-sale becomes complete, i.e. when the Court confirms the auction sale. However, such vested rights again are defeatable and would not take away the right of the mortgagor/judgment debtor to redeem his property if he brings his case within the parameters of Order XXI Rule 89, Rule 90, or Rule 91 of the “CPC”. However, position of the auction purchaser is different when the Court confirms the auction sale in favour of the auction purchaser. Reliance is placed on Hudaybia Textile Mills Ltd. vs. Allied Bank of Pakistan Ltd. (PLD 1987 SC 512) wherein the Court had accepted the bid and the sale had been completed, giving rise to vested rights in the auctioned property. It has also been held that once a sale has been affected, a third party interest intervenes which cannot be disregarded.

4. As far as the objection of the petitioner regarding the deposit of cheque instead of cash is concerned, it has already been held

in “Messrs Spinghar Textile Mills Ltd. and another versus United Bank Limited and another” (2011 CLD 1683) as follows:

“In the present day law and order situation, it would be unfair, if not impossible, for a prospective bidder to carry with him a huge amount of funds running into million in cash in order to fulfil the requirement of Rules 84 and 85 of Order XXI of C.P.C. This should not be taken as amendment of the said Rule. In fact, the Banking Judge, while settling the terms of the proclamation, ought to taken into account all aspects of the case and depending of the peculiar circumstances of each case determine the mode of payment. In this regard, the site of auction, time of auction and the value of property being auctioned would be relevant factors for determining the said mode of payment. The paramount consideration being that the auction proceedings were validly carried out and no prejudice was caused to any party, then in that case, the entire auction proceedings cannot be brought to a halt merely for the reason that the initial payment was made through cheque. In this regard, we seek guidance from the judgments of the august Supreme Court of Pakistan in Muhammad Ikhlaq Meman v. Zakria Ghani (2005 CLD 1589) and Shaukat Ali Mini v. Trust Leasing Corporation (2002 CLD 1071).”

1. Keeping the aforesaid in view, the instant objection petition (C.M. No. 05 of 2018) is dismissed being not maintainable.

(Y.A.)

PLJ 2023 Lahore 436

Present: Shahid Bilal Hassan, J.

MUBASHAR AHMAD AYAZ--Appellant

versus

Late (Moulana) MANZOOR AHMAD CHINIOTI through L.Rs. etc.--Respondents

R.S.A. No. 46 of 2009, heard on 24.1.2023.

Defamation of Ordinance, 2002 (LVI of 2002)--

----S. 9--Civil Procedure Code, (V of 1908), O.XX R. 5--Suit for recovery of damages--Publication of article--Application for framing of additional issues--No findings of trial Court on additional issues--Suit was decreed--Challenge to--Trial Court framed additional issues 1-A and 1-B on application of appellant but while reducing judgment into writing trial Court totally ignored issues, which otherwise go to root of case and without deciding same, fate of case cannot be decided finally--Appeal accepted. [P. 438] A

1982 SCMR 816 ref.

Sh. Usman Karim-ud-Din, Advocate for Appellants.

Mr. Muhammad Javid-ur-Rehman Rana & Mr. Naseem Noor, Advocates for Respondents.

Nemo for Respondent No. 2.

Date of hearing: 24.1.2023.

Judgment

Succinctly, Manzoor Ahmad Chinioti, late plaintiff instituted a suit for recovery of Rs. 50,000,000/-as damages against the present appellant and Respondent No. 2, which was duly contested by the present appellant and Respondent No. 2. Out of the divergent pleadings of the parties the learned trial Court framed following issues:-

a. Whether the suit is barred by limitation? OPD

b. Whether the impugned publication is privileged and was in the public interest welfare? OPD-2

c. Whether the Defendant No. 2 published the impugned article, after its publication by Defendant No. 1. If so, is he not liable to pay damages? OPD-2

d. Whether the impugned publication falls within the purview of libel and the plaintiff has been defamed, if so, is the plaintiff entitled to damages as prayed for? OPP

On moving an application by the appellant, the learned trial Court framed two following additional issues on 06.06.1996:-

1-A.Whether the suit is not maintainable in its present form? OPD

1-B.Whether the plaintiff has got no cause of action? OPD

Both the parties adduced their evidence. However, the learned trial Court without giving any findings on issues No. 1-A and 1-B passed the impugned judgment and decree dated 08.12.2000 holding the late Respondent No. 1 entitled to Rs. 500,000/-, to be paid by the present appellant and Respondent No. 2 jointly and severally. The appellant challenged the said judgment and decree; however, the learned appellate Court dismissed the appeal on 04.12.2008; hence, the instant regular second appeal.

1. Heard.

2. Rule 5 of Order XX, Code of Civil Procedure, 1908 reads:-

“In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.”

In the instant case, the learned trial Court framed additional issues 1-A and 1-B on the application of the appellant but while reducing the judgment into writing the learned trial Court totally ignored the said issues, which otherwise go to the root of the case and without deciding the same, the fate of the case cannot be decided finally, because by using word “Shall” the said provision has been made mandatory unless the issues are interlinked and interconnected; however, in the instant case the position is otherwise. In judgment reported as Ali Muhammad v. Muhammad Hayat and others (1982 SCMR 816), the Apex Court of the country held:

“---it was observed that the trial Judge was bound to give reasons for his decision on each separate issue and the disposal of issues Nos. 1-5 by simply observing that “all these issues have no substantive force in view of findings given under issues No. 6” was not a proper decision in accordance with law.”

It was further observed that:

“3. We do not agree. The learned trial Court had disregarded the mandatory provisions of Order XX, Rule 5, C.P.C. and, therefore, had acted in exercise of his jurisdiction with material irregularity. The High Court in exercise of its revisional jurisdiction was competent to make such order in the case as it thought fit.”

1. In this view of the matter, without commenting further on merits of the case, may it prejudice case of either side, the appeal in hand is accepted, impugned judgments and decrees are set aside and the matter is remanded to the learned trial Court with a direction to decide the same afresh after hearing the learned counsel for the parties. The adversaries are directed to appear before the learned trial Court on 14.02.2023, positively.

(Y.A.) Appeal accepted

PLJ 2023 Lahore 439 [Multan Bench, Multan]

Present: Ahmad Nadeem Arshad, J.

SHABBIR AHMAD--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MULTAN, etc.--Respondents

W.P. No. 3227 of 2022, heard on 19.1.2023.

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

----S. 152--Specific Relief Act, (I of 1877), Ss. 12, 42 & 54--Constitution of Pakistan, 1973, Art. 199--Suit for declaration, perpetual injunction and specific performance--Ex-parte decreed--Application for correction of order and decree--Concurrently dismissed--Relief of specific performance and perpetual injunction were not granted--Omissions by Court were positive application of mind intentionally--Inadvertent accidental slip--Challenge to--Law favours adjudication on merits--Technicalities should not be allowed to defeat justice--An act of Court should not prejudice any party--Technical objection should not come in way of dispensation of complete and substantial justice--Petitioner specifically pleaded in his plaint that Respondents No. 2 to 8 agreed to sell their shares to him and after receipt of consideration amount executed agreements to sell in his favour--Petitioner produced said agreements in his documentary evidence--Reliefs of specific performance and perpetual injunction were basic reliefs, which required determination from Court--Failure on part of Court to give any findings on said reliefs and to decide in either way did not suggest that said omissions were made by Court through positive application of mind intentionally--Trial Court did not expressly refuse to grant said reliefs--Said omission is not a deliberate one and seems to be an inadvertent accidental slip, which squarely falls within ambit of Section 152, C.P.C.--Petition allowed.

[Pp. 447 & 448] D, E & F

2004 SCMR 1611 and 2003 SCMR 1401 ref.

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

----S. 152--Jurisdiction of Court--Court under Section 152, C.P.C. is not only competent to correct clerical or arithmetical mistake in judgment, decree or order but may correct accidental slip or omission as well. [P. 444] A

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

----S. 152--Arithmatical mistake--Clerical or arithmetical mistake, means when some mistake either in calculation or numerical figures creeps in, which figures could be verified from record, or where any party, property or fact has been incorrectly described or where some typographical error has crept in. [P. 444] B

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

----S. 152--Accidental slip or omission--“accidental slip or omission” as used in Section 152 C.P.C. means “to leave out or failure to mention something unintentionally”. [P. 444] C

AIR 1930 Lahore 201, AIR 1942, Oudh 226, 1990 MLD 130 and PLD 1983 SC 220.

Mr. Muhammad Asghar Bhutta, Advocate for Petitioner.

Mr. Muhammad Jawad Asghar Bhutta, Advocate with Respondent No. 4.

Mr. Muhammad Mehmood Ashraf Khan, Advocate for Respondents No. 5(i)-(iv) &(vi).

Dates of hearing: 19.1.2023.

Judgment

Through this Constitutional Petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner assailed the vires of orders/judgments dated 09.07.2021 and 11.02.2022, whereby the learned Courts below dismissed his application for correction of order and decree dated 29.03.2019 concurrently.

1. Facts in brevity are that petitioner instituted a suit for declaration along with perpetual injunction and specific performance titled “Shabbir Ahmad vs., Public at Large, etc., with the contention that suit property consisting upon a shop measuring 42 ½ square yards bearing property No. 189 and 189-A situated at Ward No. 3, Circular Road, Hussain Agahi, Multan was belonged to Muhammad Shafi deceased predecessor of petitioner and Respondents No. 2 to 8 and after his demise they became owner of the said shop according to their legal shares; that Respondents No. 2 to 8 through written agreements to sell as well as oral agreement to sell transferred their shares in his name and prayed as under:--

i) A declaration may kindly be granted to the effect that the plaintiff and Defendants No. 2 to 8 are legal heirs of deceased Muhammad Shafi son of Abdullah and except them there is no other legal heirs and being legal heirs they are owners of the movable and immovable properties of the deceased

ii) that the Defendants No. 2 to 8 have transferred their shares through agreements to sell in his favour and decree for specific performance of said oral as well as written agreements to sell be granted; &

iii). that defendant No. 1-A has been asked time and again to accept the plaintiff and Defendants No. 2 to 8 as legal heirs of deceased and enter their names in the record as legal heirs of deceased but he refused to do so, therefore, perpetual injunction may be issued to the effect that he entered the name of plaintiff as owner in the record.

No one appeared on behalf of defendant No. 1 and 1-A despite proclamation in the newspaper therefore they were proceeded against ex-parte vide order 28.11.2018 whereas, Defendants No. 2 to 8 entered appearance on 31.07.2018 and submitted their conceding written statement. The learned trial Court after recording ex-parte evidence of the petitioner decreed the suit on 29.03.2019 in the following terms: -

“Keeping in view the scenario portrayed above, suit of the plaintiff for declaration is hereby ex-parte decree. Plaintiff No. 1 and 2 to 8 are declared as legal heirs of deceased Muhammad Shafi. Decree sheet be prepared accordingly. There is no order as to costs. File be consigned to the record room after its due completion and compilation.”

Thereafter petitioner moved an application on 03.09.2020 for correction of order and decree dated 29.03.2019. The learned trial Court vide order dated 09.07.2021 dismissed the same by holding that the scope of review is very limited as only some patent errors could be rectified in review and the petitioner should have filed an appeal against refusal of the reliefs before the learned appellate Court but he failed to do so. Feeling aggrieved, petitioner preferred a revision petition which also met the same fate and dismissed by the learned revisional Court vide order dated 11.02.2022. Being dissatisfied he approached this Court through instant constitutional petition.

1. Learned counsel appearing on behalf of the petitioner maintains that the petitioner specifically pleaded in his plaint that the other legal heirs of deceased Muhammad Shafi transferred their share in his favour through written agreements to sell as well as oral agreements to sell, also executed registered general power of attorney in his favour; that the said defendants filed conceding written statement in his favour but the learned trial Court while deciding the suit failed to consider said aspect of the case and omitted to grant relief of specific performance and perpetual injunction; that petitioner sought correction of the order and the decree but the learned Courts below dismissed his application considering it a review application and prayed for acceptance of the writ petition as well as his application and setting aside of impugned orders. To augment his arguments, he placed reliance upon “Syed Saadi Jafri Zainabi vs. Land Acquisition Collector and Assistant Commissioner” (PLD 1992 Supreme Court 472) “Muhammad Akram v. DDCO, Rahim Yar Khan and others” (2017 SCMR 56) “Bank of Credit and Credit and Commerce International (Overseas) Ltd vs. Messrs Ali Asbestos Industries Ltd and 5 others” (1990 MLD 130), “Mst. Forosha v. Fazal Gul and others” (PLD 1983 Supreme Court 220) and “Amjad Butt vs. Amjad Ali” (2017 CLC Note 45).

2. Conversely, learned counsel appearing on behalf of the respondents maintained that petitioner did not implead Mehfooz-ur-Rehman as party in the revision petition who is a proper and necessary party; that the petitioner did not implead defendants in his application as a party; that the Courts below without giving notice passed the said orders; that the application of the petitioner did not come with the ambit of Section 152 CPC and while relying upon “Baqar versus Muhammad Rafique and others” (2003 SCMR 1401), “Muhammad Aslam Lone vs. Additional Distrit Judge Gujranwala and 10 others” (PLD 2008 Lahore 373), “Habib Bank Limited versus Ist Additional District Jduge and others” (2005 MLD 1525), “Ansar Mahmood versus Jamshed Ahmed Mustafa Zuberi and 6 others” (PLD 2015 Islamabd-1), “Iftikhar Ahmad and 7 others vs. Habib Bank Limited,Karachi and another” (1993 CLC 101) and “Muhamamd Yaqoob vs. Bawar and 2 others” (1998 CLC 456) prayed for dismissal of the writ petition.

3. I have heard learned counsel for the parties at length and perused the record with their able assistance.

4. Perusal of record it appears that in para No. 3 of the plaint petitioner specifically pleaded that through agreement deed No. 152 dated 10.10.2014, agreement deed No. 54 dated 04.09.2014, agreement deed No. 667 dated 14.03.2015 and power of attorney No. 1013 dated 23.04.2015 defendants received consideration of their shares in cash and if any defendants did not execute any writing, he received his share orally. Therefore, the said defendants have no concerned with the suit property and they are bound through their oral as well as written agreements to execute registered deed in his favour. The exact wording is as under:

"یہ کہ بروئے اقرار نامہ نمبری152 محررہ مورخہ 10.10.2014،بروئے اقرار نامہ نمبری 54 محررہ مورخہ 4.9.2014 و اقرار نامہ نمبری 667 محررہ مورخہ 14.3.2015 و مختار نامہ نمبری 1013 محررہ مورخہ 23.4.15 کی رو سے مدعی سے مدعا علیہم نے اپنا حصہ زرِ نقد کی صورت میں وصول کر چکے ہیں۔ اور اگر کسی مدعا علیہم نے کوئی تحریر لکھ کر نہ دی ہے تو اعتماد کی بنیاد پر اپنا حصہ وصول کر چکے ہیں۔ اسی طرح اُن کا اس جائیداد متد عویہ سے کسی قسم کا تعلق یا واسطہ نہ ہے بروئے معاہدہ پابند ہیں جو کہ زبانی و تحریری ہے۔ اسی کی رو سے رجسٹری بحق مدعی کراکر دینے کے پابند ہیں۔ "

Defendants No. 2 to 8 in their conceding written statement admitted the said para as “correct” and also admitted the execution of agreements as well as power of attorney. The exact wording is as under:

"یہ کہ مدعی و مدعا علیہم نمبران 2 تا 8 ہی متوفی کے قانونی و شرعی وارثان ہیں کوئی دیگروارث نہ ہے۔ اور فقرہ نمبر 3 درست تسلیم ہے۔ اقرار نامہ مستدعو یہ نمبران 54،152، 667 و مختار نامہ عام نمبری 1013 محرره 15-4-23 درست تسلیم ہیں۔ کسی قسم کا عذر واعتراض نہ ہے۔"

Plaint further reveals that petitioner prayed for specific performance of said oral as well as written agreements and grant of perpetual injunction.

In support of his version, petitioner appeared as PW-1 and got examined Khizar Hayat as PW-2. He produced sale deed No. 2035 dated 13.06.1967 as Exh.P-1, whereby, his father and Muhammad Usman jointly purchased the suit property measuring 42 ¼ squares yards from Makhdoom Shahab-ud-Deen, copy of registered power of attorney No. 1013 dated 23.04.2015 as Exh.P-2, copy of PT-1 as Exh.P-3, copy of death certificate of Muhammad Shafi as Exh.P-4, copy of death certificate of Muhammad Bashir son of Muhammad Shafi as Exh.P-5, original agreement No. 54 dated 04.09.2014 as Exh.P-6, original agreement No. 667 dated 14.03.2015 as Exh.P-7 and original agreement No. 152 dated 10.10.2014 as Exh.P-8.

In this way he proved through evidence that suit property was belonged to their predecessor namely Muhammad Shafi and after his demise inherited to his legal heirs and Defendants No. 2 to 8 through different agreements to sell agreed to transfer their share in his favour and also executed a registered general power of attorney in this behalf. Petitioner‟s evidence remained unrebutted. The learned trial Court only granted relief for declaration by declaring that plaintiff and Defendants No. 2 to 8 are legal heirs of deceased Muhammad Shafi but failed to give any findings with regard to the other reliefs of perpetual injunction and specific performance of the agreements to sell. In this scenario petitioner moved the application for correction of the order/ decree.

1. Now the question whether the omission in the decree to expressly contains reliefs of perpetual injunction and specific performance of the agreements to sell could be supplemented in exercise of the authority under Section 152, C.P.C., it would be beneficial to reproduce the section which empowers the Courts for correction of judgment and decree which is reproduced as under:

“152. Amendment of judgments, decrees or orders.--Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.”

1. Learned counsel for the respondents raised objection that, only the clerical or arithmetical mistakes in judgment and decree or order could be corrected in the context of Section 152, C.P.C.

2. Plain reading of said Section it appears that the Court under Section 152, C.P.C. is not only competent to correct clerical or arithmetical mistake in the judgment, decree or order but may correct accidental slip or omission as well. Section 152, C.P.C. can be conveniently divided into two parts. First half of the section provides authority to correct “clerical or arithmetical mistake in the judgment, decree or order”, other half after or provides authority to correct error arising thereon from any accidental slip or omission. Use of word “or” indicates that, such powers to correct are not conjunctive but disjunctive and qualified. To correct clerical or arithmetical mistake, it means when some mistake either in calculation or numerical figures creeps in, which figures could be verified from the record, or where any party, property or fact has been incorrectly described or where some typographical error has crept in. Second half of the Section 152 (ibid) contemplates “error arising thereon from any accidental slip or omission”. Catchword in phrase “accidental slip or omission” as used in Section 152, C.P.C. is “accidental”, it qualifies “slip” and “omissions”. Thus it could be said that “accidental slip or omission” as used in Section 152 C.P.C. means “to leave out or failure to mention something unintentionally”. Thus, it could be safely said that it is only where the slip or omission is accidental or unintentional it could be supplemented or added in exercise of jurisdiction conferred under Section 152 C.P.C. Such course is provided to foster cause of justice, to suppress mischief and to avoid multiplicity of proceedings.

3. In the light of above discussion, it can be concluded that the Court has jurisdiction to correct the clerical or arithmetical mistakes or errors caused due to accidental slip or omission in a judgment, decree or order. Such power can be exercised at any time. The aim of the procedural provisions is to safeguard the interest of justice instead of defeating the same. It is the basic principle of administration of justice that the Courts are sanctuaries of justice and in exercise of authority to do exdebito justitiae, i.e. to say wrong and to suppress a mischief to which a litigant is entitled.

4. In “Ram Singh v. Sant Singh and others” (AIR 1930 Lahore 210), where the trial Court had decreed the suit but inadvertently omitted to mention in the judgment that possession of the property be also given to the petitioner. When he applied for possession it was objected that as in the decree possession has not been awarded it cannot be granted. The petitioner filed an application under Section 152, C.P.C. for amendment of the judgment and it was observed as under:

“The learned counsel says that if a relief is claimed in the plaint but has not been granted by the Court then it must be assumed that it has been refused. I do not think this argument applies to a case like the present where there is no express refusal but only an omission to grant the prayer and the omission not a deliberate one. I hold, therefore, that the application of the petitioner was competent under Section 152, Civil Procedure Code and should have been granted by the Court below. In any case if it had been necessary for me to do so, I would have revised the order passed on the application of the petitioner to be granted possession of the property which was adjudged to be his by the declaratory decree granted to him by the Court below in spite of the fact that an appeal was open to the petitioner against the order refusing possession, but he did not file one.”

In re: “Raj Raj Bahadur Singh v. Shatranjai” (AIR 1942 Oudh 226) application under Section 152, C.P.C. was made for amendment of the judgment and decree and it was observed as follow:

“We are of opinion that it was only by an oversight that the latter portion of the order was not ordered to be deleted. It was held in (10) 13 O.C.114:61 C.979, Ashik Husain v. Mahdi Hasan that the test is whether the order as it stands represents the intention of the Judge at the time he made it and if it does then a mistake in it cannot be treated as an accidental slip or omission which may be corrected under Section 152. In this case we are of opinion that the intention of the learned Judges was not to make any decision as regards the plaintiff’s right to ten villages and it was only by an accidental slip that they omitted to order the deleting of the second portion of the order. Section 152 corresponds to O.28, R.11 of the Rules of the Supreme Court of Ireland. It was held in 1892 A.C. 547: 62 L.J.P.C.24: IR 1.67 L.T. 722, Henry William Hatton v. Huga Harris on an interpretation of those rules that the Court has jurisdiction to correct the errors arising out of an accidental slip or omission. It was held in AIR 1924 Cal.895: 80 I.C. 55:28 C.W.No. 873, Chandra Kumar v. Sundhansu Badani Debi that the word “may” in Section 152 does not make it discretionary with the Court to order the correction but merely enlarges the power of the Court by providing that such correction can be done at any time or in other words the section simply emphasizes that no lapse of time would disentitle the Court to make the correction. It is also observed in this case that the intention of the law is to make it obligatory on the Court whenever such a mistake is discovered to correct it and Section 152 merely emphasizes the duty of the Court by saying that it may be done at any time without limitation.”

In a case titled as Bank of Credit and Credit and Commerce International (Overseas) Ltd vs. Messrs Ali Asbestos Industries Ltd and 5 others” (1990 MLD 130), the Court while granting preliminary decree inadvertently did not grant relief against the mortgaged property although prayer for decree against it had been made. Subsequently on plaintiff’s application under Section 152, C.P.C., said relief was granted, while interpreting Section 152 C.P.C., as under:

“These observations clearly lay down the principles involved in Section 152 C.P.C. Where the Court has not passed any order unintentionally but due to oversight or omission, although in the facts and circumstances of the case the party was entitled to such relief, the Court is empowered to correct that mistake so that no party should suffer due to unintentional omission of the Court. In this suit plaintiff was entitled to a decree under Order 34 C.P.C. in the normal course. The omission to grant this relief was not intentional. The contention of Mr. S.A, Samad Khan that the plaintiff should file a separate suit for the sale of the mortgaged properties clearly demonstrates the inconvenience and hardships which shall be caused to a party in such circumstances. I, therefore, allow the application, amend the judgment that the plaintiff would be entitled to preliminary decree under Order 34, C.P.C. in respect of the mortgaged properties. The decree should also accordingly be amended.”

Such powers can be exercised at any stage. The Hon’ble Supreme Court of Pakistan in its full bench judgment reported as “Mst. Forosha v. Fazal Gul and others” (PLD 1983 Supreme Court 220) held as under:

“The plane reading of the section, leaves no doubt whatsoever that the powers confer on the Courts if the case falls within the purview of its provisions, can be exercised at any time and it has accordingly been held that there is no time limit for entertaining an application in that behalf”.

The august Supreme Court of Pakistan in its full bench judgment reported as “Syed Saadi Jafri Zainabi versus Land Acquisition Collector and Assistant Commissioner” (PLD 1992 SC 472) held as under:

“Section 152 enables a Court to correct the mistakes, omissions, or error in the judgments, decree or order which has crept into it inadvertently and un-intentionally. Such mistakes are mostly caused due to inadvertent mistakes of the Court. The rules of procedure as provided by C.P.C. or intended to foster justice, therefore, no one should be allowed to suffer due to the mistake of the Court.

The Court has jurisdiction to correct the clerical or arithmetical mistakes or errors caused due to accidental slip or omissions in a judgment, decree, or order. Depending on facts, it confers a wild discretion on the Court to correct, (I) clerical, or arithmetical mistake, (II) errors caused due to accidental slips or omissions in the judgment, decree or order. Such power can be exercised at any time. Where the Court is bound to grant a relief which the party seeks, or where the Court is bound to grant relief even without it being sought by a party and if unintentionally or inadvertently the Court does not grant such relief, it would be justified at any time to correct such accidental omission or errors by exercising power under Section 152 C.P.C.”

1. The law favours adjudication on merits. Technicalities should not be allowed to defeat justice. An act of the Court should not prejudice any party. Technical objection should not come in the way of dispensation of complete and substantial justice. In this regard, reference can be sought from case titled “Muhammad Shafi and others v. Muhammad Boota and others” (2004 SCMR 1611).

2. Learned counsel for the respondents maintained that if a relief claimed in the plaint but has not been granted by the Court then

it must be assumed that it has been refused. While relying upon “Baqar versus Muhammad Rafique and others” (2003 SCMR 1401) argued that omission made by Court by positive application of mind could never be dubbed as accidental or a mistake apparent on the face of record.

1. Petitioner specifically pleaded in his plaint that Respondents No. 2 to 8 agreed to sell their shares to him and after receipt of consideration amount executed agreements to sell in his favour. Petitioner produced said agreements in his documentary evidence. Respondents No. 2 to 8 conceded his stance in their written statement. In this scenario reliefs of specific performance and perpetual injunction were the basic reliefs, which required determination from the Court. Failure on the part of the Court to give any findings on said reliefs and to decide in either way did not suggest that said omissions were made by the Court through positive application of mind intentionally. The learned trial Court did not expressly refuse to grant said reliefs. Said omission is not a deliberate one and seems to be an inadvertent accidental slip, which squarely falls within the ambit of Section 152, C.P.C.

2. The case law referred to by the learned counsel for the respondents are not relevant to the facts and circumstance of the case, hence, not applicable.

3. For what has been discussed above, the instant constitutional petition is allowed. Impugned orders/judgments dated 09.07.2021 and 11.02.2022 are set-aside. Resultantly, the application filed by the petitioner for correction of order and decree dated 29.03.2019 is allowed and learned trial Court is directed to make necessary correction in the order and decree dated 29.03.2019, keeping in view plaint and evidence of the petitioner by incorporating reliefs of specific performance and perpetual injunction. No order as to costs.

(Y.A.) Petition allowed

PLJ 2023 Lahore 448 [Multan Bench, Multan]

Present: Ahmad Nadeem Arshad, J.

GHULAM RASOOL, etc.--Petitioners

versus

PROVINCE OF PUNJAB, etc.--Respondents

C.R. No. 135-D of 2011, decided on 29.9.2022.

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

----S. 115, O.XXXIV, Rr. 1 & 27--Limitation Act, (IX of 1908), S. 13--Suit for redemption of property--Preliminary decree of redemption--Decree was not assailed by Respondent No. 2 to 52--Decree was attained finality--Appeal filed by Respondent No. 1 was allowed--Fresh period of limitation was commenced--Petitioner's suit was well within time--Only mortgage rights could be assumed by Central Government--No power of proprietary rights of Central Government--Evacuee mortgagee was migrated to India--Right to equity of redemption--Petitioners were legal heirs of original mortgagors--Entitlement for redemption of property--Suit property was mortgaged by predecessors of petitioners--In computing period of limitation prescribed for any suit, time during which defendant has been absent from Pakistan and from territories beyond Pakistan under administration of Central Government shall be excluded--Suit property which was initially mortgaged in year 1900 and subsequently in year 1915 to evacuee mortgagee who had migrated to India in wake of independence, period of limitation stopped running w.e.f. 15.08.1947 as period of sixty years was not expired till that date--Through Mutation No. 308, property of petitioners was confiscated in favour of Government on 13.02.1974--Meaning thereby, up to this date concerned authorities were treating ownership rights in property to be non-evacuee and only mortgagee rights to be evacuee property--Central Government merely stepped into shoes of evacuee and was vested only with rights of mortgage and nothing more--Government was not claiming any right beyond mortgage rights in respect of said mortgaged properties in favour of evacuees--Mutation No. 310 being affected in pursuance of this policy instructions in writing, it would sufficiently constitute as an acknowledgment on behalf of Central Government and would, bind respondents--A fresh period of limitation had commenced with effect from 13.02.1974--There was nothing before appellate Court to indicate that land had been treated as evacuee property by a competent authority prior to January, 1957--Only mortgagee rights could be assumed by Central Government and Central Government was not empowered to take proprietary rights--Mortgagee rights of evacuee could not be treated as evacuee property as original owners were local Muslims and there was no law to divest these local Muslims of their right of ownership of such property--Trial Court, rightly declared petitioners to be owners of equity of redemption in suit land and passed a preliminary decree for redemption of mortgaged property--Appellate Court failed to consider said aspect of case--Petition allowed.

[Pp. 453, 454, 455 & 458, 459 & 460] A, B, C, D, E, F, G, H & I

PLD 1978 Lahore 71, PLD 1997 Lahore 716 & 2000 YLR 728.

Makhdooma Shagufta Khaliq Naqvi, Advocate for Petitioners.

Mahar Muhammad Imtiaz Hussain Mirali,Assistant Advocate General for Respondent No. 1.

Dates of hearing: 12.9.2022.

Judgment

Through this Civil Revision, the petitioners questioned the validity and legality of judgment and decree dated 06.10.2010, passed by the learned appellate Court, whereby, while accepting the appeal of respondents dismissed their suit.

1. Shorn of unnecessary details, petitioners/plaintiffs (herein after referred to as the petitioners) instituted a suit for redemption of property measuring 28 kanals 11 marlas situated in khata No. 360/300, mouza Notak Mahmeed, Tehsil and District Dera Ghazi Khan against the respondents/defendants and challenged the vires of Mutation No. 308, Mutation No. 309, Mutation No. 310 & Mutation No. 311 all dated 13.02.1974 by maintaining that their predecessor namely Ghulam Rasool and Kariman Shah sons of Muhammad Bakhsh were the real owners of the suit property; that Kariman Shah died issueless and his legal heir was Ghulam Rasool being sole real brother; that after the death of Ghulam Rasool his son namely Allah Ditta became owner of suit property and after his death petitioners are his legal heirs; that Ghulam Rasool and Kariman Shah deceased mortgaged the property measuring 47 kanals 15 marlas in favour of Budhoo, etc., through Mutation No. 163 dated 08.01.1900; that said Budhoo etc. transferred/sold partial mortgage rights in favour of Sarwar Shah through Mutation No. 557 dated 28.03.1904 and partial mortgage rights in favour of Taga through Mutation No. 1532 dated 22.12.1915; that share of the property to the extent of Sarwar Shah mortgagee was redeemed by the predecessor of the petitioners but the remaining property remained as mortgage with the Hindoos; that after the Partition, mortgage rights were transferred in favour of Central Government, which are now transferred to Provincial Government; that in the year 1973 the Central Government also got transferred the ownership of said property in his name and according to RL-II No. 206 dated 07.02.1973, Mutation No. 308 dated 13.02.1974 was sanctioned; that the Central Government redeemed said property vide Mutation No. 309 and vide Mutation No. 310 transferred the property in the names of respondents/Defendants No. 2 to 10 (herein after referred to as Respondents No. 2 to 10); that thereafter Respondents No. 2 to 10 transferred the property to Respondents No. 11 to 38/Defendants No. 11 to 38 through Mutation No. 311; adds that all above mentioned mutations as well as RL-II are illegal, ineffective qua the rights of the petitioners; that the respondents were asked time and again to accept the claim of the petitioners but they refused, which necessitated them to instituted the suit. The suit was contested by Respondent No. 1/defendant No. 1 (herein after referred to as Respondent No. 1) as well as by Respondents No. 11 to 15, 17, 18, 20 to 40 by filing separate written statements. They raised many preliminary as well as factual objections. Contention of the Respondent No. 1 is that predecessor of the petitioners have failed to redeem the property well within time, therefore, their rights were confiscated in favour of the Central government through Mutation No. 308, hence, the petitioners have no concern with the suit property; that Settlement Department allotted the suit property to Respondents No. 2 to 10 according to RL-II No. 206 through Mutation No. 310 dated 13.02.1974; that Respondents No. 2 to 10 transferred the property in favour of Respondents No. 11 to 38 through Mutation No. 311 dated 13.02.1974; that the petitioners have no concerned with the disputed property and they instituted the suit on false facts which is liable to be dismissed. Respondents No. 11 to 15, 17, 18, 20 to 40 in their written statement have contended that the suit is time barred; that it is well within the knowledge of petitioners that the suit property was allotted to respondents and they also instituted a suit for pre-emption which was dismissed after trial, hence, the petitioners are estopped to instituted the suit because they have waived their rights in the suit property, if any; that the petitioners are not in possession of the suit property and lastly prayed for its dismissal. The learned trial Court, keeping in view divergent pleadings of the parties framed necessary issues on 25.10.1994 and thereafter again formulated the issues on 26.09.2005. The parties were directed to produce their respective evidence in support of their contentions, which they did and got recorded their evidence, pro and contra. The learned Trial Court after providing opportunity of hearing and appreciating the evidence available on record, passed a preliminary decree of redemption in favour of petitionersvide judgment and decree dated 05.03.2009. Respondents No. 2 to 52/Defendants No. 2 to 52 did not assail the judgment and decree of learned trial Court, therefore, it attained finality to their extent. Feeling aggrieved, Respondent No. 1 i.e., Province of Punjab preferred an appeal which was allowed via impugned judgment and decree dated 06.10.2010 passed by learned appellate Court, resultantly the preliminary judgment and decree of the learned trial Court was set aside and dismissed the petitioners’ suit. Being dissatisfied, the petitioners approached this Court through instant Civil Revision.

2. Through order dated 05.10.2020 ex-parte proceedings were initiated against Respondent No. 46-A. On the report of Tehsildar, that legal heirs of Respondents No. 12, 16-A, 19, 31, 39 and 49 are not ascertained, this Court vide order dated 17.02.2022 deleted their names from the array of respondents. Rest of the respondents did not turn up despite repeated notices, therefore, ex-parte proceedings are initiated against them. Even otherwise except Respondent No. 1, rest of the respondents did not assail preliminary decree of redemption passed by learned trial Court, meaning thereby they accepted the judgment and preliminary decree dated 05.03.2009 of learned trial Court.

3. I have heard learned counsel for the parties at full length and perused the record with their able assistance.

4. Learned Appellate Court without touching the merits of the case allowed the appeal of Respondent No. 1 and dismissed the suit of petitioners on the ground that the suit property was an evacuee property and allotted under Rehabilitation Laws, therefore, Civil Court has no jurisdiction to entertain the suit and jurisdiction of Civil Court is clearly barred under the Repealed Settlement Laws.

5. Petitioners in their suit maintained that Ghulam Rasool Shah and Kariman Shah were the owners of the suit property who mortgaged the same in favour of Budhoo etc. (Hindus) through Mutation No. 163 dated 08.01.1900. Said Budhoo transferred partial mortgagee rights through Mutation No. 557 dated 28.03.1904 in favour of Sarwar Shah which were got redeemed by Ghulam Rasool mortgagor. Whereas, Budhoo also transferred rest of the partial mortgagee rights to Taga etc., through Mutation No. 1532 dated 22.12.1915 which remained under his mortgage till partition. The mortgagee rights of Taga etc., were transferred in favour of the Central Government and thereafter the said rights were transferred in the name of Provincial Government (Respondent No. 1). In year 1973 the ownership was transferred in the name of Central Government through RL-II No. 206 dated 07.02.1973 and Mutation No. 308 was sanctioned in this regard on 13.02.1974. The Central Government through Mutation No. 309 dated 13.02.1974 redeemed the suit property and transferred it in favour of Respondents No. 2 to 10 through Mutation No. 310 dated 13.02.1974. The Respondents No. 2 to 10 sold the property through Mutation No. 311 dated 13.02.1974 in favour of Respondents No. 11 to 38. The petitioners prayed in their suit that they being legal heirs of original mortgagors are entitled for redemption of the suit property but the respondents have refused to do so. The respondents-defendants while accepting the facts narrated supra mainly emphasized that the petitioners-plaintiffs failed to get redeemed the suit property within time, therefore, the same was rightly confiscated in favour of the Central Government and thereafter transferred in favour of the allottees/vendees.

6. Originally, the suit property was mortgaged by the predecessors of the petitioners/plaintiffs through Mutation No. 163 dated 08.01.1900 in favour of Budhoo who transferred partial mortgagee rights in favour of Sarwar Shah through Mutation No. 557 dated 28.03.1904 (which is not disputed in the present suit) and in favour of Taga etc., through Mutation No. 1532 dated 22.12.1915. This Court in case cited as “Allah Ditta & Others v. Sardar Khan & Others” (PLD 1997 Lahore 716) while following the dictum laid down by august Supreme Court of Pakistan in the case reported as “Bani Begum and others v. Muhammad Azam Khan and others” (PLD 2003 SC 235), held that sixty years limitation period as prescribed under Article 148 of Limitation Act, 1908 has to be counted from the date of latest mutation. Therefore, in the present case the date of latest mutation was 22.12.1915, whereby on the said date original mortgagee Budhoo etc., transferred partial mortgagee rights in favour of Taga etc., through Mutation No. 1532. It is principle of law that the period of limitation stopped running during which defendant has been absent from Pakistan, enshrined in the provisions of Section 13 of Limitation Act, 1908 which is reproduced as under for ease:

“13. Exclusion of time of defendant’s absence from Pakistan and certain other territories. In computing the period of limitation prescribed for any suit the time during which the defendant has been absent from Pakistan and from the territories beyond Pakistan under the administration of the Federal Government shall be excluded”.

Section 13, which is based on the English Law, provides that in computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from Pakistan and from the territories beyond the Pakistan under the administration of the Central Government shall be excluded. In the instant case, suit property which was initially mortgaged in the year 1900 and subsequently in the year 1915 to the evacuee mortgagee who had migrated to India in the wake of independence, the period of limitation stopped running w.e.f. 15.08.1947 as the period of sixty years was not expired till that date.

In the case titled “Muhammad Shafi v. Ghulam Qadir & others” (PLD 1978 LAHORE 71), this Court observed that “at the time of partition in 1947, when the mortgagees migrated to India, neither a period of sixty years had expired with effect from the date of mortgage i.e. 11.07.1899 or a period of six years w.e.f. 27.05.1946 when the Revenue Authorities rejected the mutation. The period of limitation would then stop running in view of the provisions of Section 13 of the Limitation Act”.

This Court in a case “Allah Ditta & others v. Sardar Khan & others” (PLD 1997 LAHORE 716) also observed as under:

“The mortgagee of the land in question migrated to India in the wake of independence, period of limitation by that time when counted had not expired the period of limitation stopped running w.e.f. 15.08.1948 against evacuee mortgagee on the basis of provisions of S. 13 of Limitation Act, 1908.

This dictum was also followed by this Court in cases titled “Allah Yar v. Custodian of Evacuee Properties, Punjab Lahore and others” (2000 YLR 728) and in a case cited as “Ghulam Muhammad and 03 others v. Member, Board of Revenue, Punjab, Lahore & 16 others” (PLD 2005 LAHORE 119).

1. Through Mutation No. 308, the property of the petitioners was confiscated in favour of the Government on 13.02.1974. Meaning thereby, up to this date the concerned authorities were treating the ownership rights in the property to be non-evacuee and only mortgagee rights to be evacuee property. Obviously, this entry was made by virtue of the acquisition of evacuee rights in land under Section 04 of the Displaced Persons (Land Settlement) Act, 1958. The August Supreme Court of Pakistan in “Muhammad Khan v. Chief Settlement and Rehabilitation Commissioner” (PLD 1962 SC 284), considered the effect of evacuee laws and Section 4 of the Displaced Persons (Land Settlement) Act, 1958 on the rights of Muslim Pakistani citizens in respect of property subject to mortgage and held that a notification under the last mention section in no way, destroyed the rights of non-evacuees in land in which evacuee had any right under mortgage. Therefore, it cannot be disputed that the successors-in-interest of Ghulam Rasool Shah and Kariman Shah continued to have a right to the equity of redemption in the suit property, notwithstanding the acquisition of evacuee’s interest therein by the Central Government. The position, therefore, is that the Central Government merely stepped into shoes of the evacuee and was vested only with the rights of mortgage and nothing more.

2. Indeed, the Settlement and Rehabilitation Commissioner, West Pakistan, Lahore, recognized this position and issued instructions for the redemption of mortgages by locals with evacuees through Memo No. 6883-59/7042 R(P) dated 08th December, 1959 which reads as under:

“The land mortgaged by locals with evacuees has remained excluded from allotment under the Rehabilitation Settlement Scheme. The question of its final disposal has been considered and it has been decided that the amount (mortgage money) due to the evacuees in such cases should be recovered by the local rehabilitation authorities within their respective areas of jurisdiction. The needful will be done under Section 25(2) (L) of the Pakistan (Administration of Evacuee Property) Act, 1957. Powers under this subsection have since been delegated to the Deputy Rehabilitation Commissioners and Assistant Rehabilitation Commissioners by the Custodian of Evacuee Property, vide Custodian’s order dated 28-8-1959/17-11-1959(copies enclosed). The Assistant Rehabilitation Commissioners concerned should immediately issue a notice to the local mortgagors of this category to redeem the properties involved within one month, failing which the evacuees right in the properties shall be auctioned under Section 25(2) (s) of the Pakistan (Administration of Evacuee Property) Act, 1957. Cases requiring disposal by means of auction should be reported to the undersigned after one month. The amounts which may be recovered in consequence of the redemption should be deposited in the compensation pool constituted under Section 5 of the Displaced Persons (Land Settlement) Act, 1958.”

1. In case of failure on the part of the mortgagors to redeem the mortgage after the issue of notice as instructed in the aforesaid memo, only “the evacuee’s right in the properties shall be auctioned”. Clearly, therefore, the Government was not claiming any right beyond the mortgage rights in respect of said mortgaged properties in favour of the evacuees. The memorandum No. 1980-60/1489-R (P) dated 22nd April, 1960, described the position in cases in which redemption of land mortgaged by non-evacuees with evacuees is barred by Article 148 of the Limitation Act, 1908 and declared that such property may thus be treated as purely evacuee property and utilized for the settlement of pending claims, which may with advantage be reproduced as under:

“A question had arisen as to what will be the position in cases in which redemption of land mortgaged by non-evacuees with evacuees is barred by Article 148 of the Limitation Act, 1908. Evidently the question of redeeming the land in such cases does not arise. Such land may thus be treated as purely evacuee property and utilized for the settlement of pending claims for agricultural land of the displaced persons. It has, however, been decided that the period of sixty years should be counted up to the date on which a particular non-evacuee mortgagor applies for redemption in terms of this office circular Memorandum No. 6883-59/7042-R (P), dated the 8th December, 1959, Deputy Commissioner, Gujrat and No. 11-SO, dated the 8th January, 1960, and Memorandum No. dated the 11th February, 1960, respectively. “

1. It is, therefore, clear that the basis for claiming full ownership rights in the land in favour of the Government was that the period of limitation for suit for redemption as provided in Article 148 of the Limitation Act, 1908 had expired with the result that the equity of redemption stood extinguished by virtue of Section 28 of the Limitation Act, 1908. For reference, both are reproduced as under:

“Article 148.

| | | | | --- | --- | --- | | Description of Suit | Period of Limitation | Time from which period beings to run. | | Against a mortgagee to redeem or to recover possession of immovable property mortgaged. | [Sixty years] | When the right to redeem or to recovery possession accrues: Provided that all claims to redeem arising under instruments of mortgage of immovable property situate in Lower Burma which had been executed before the first day of May, 1863, shall be governed by the rules of limitation in force in that Province immediately before the same day. |

“Sec.28 Extinguishment of right to property. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.”

Note: The Supreme Court of Pakistan in the case titled “Maqbool Ahmad vs. Federation” (1991 SCMR 2063) declared the provision of Section 28 of the Limitation Act, 1908 repugnant to injunction to Islam with effect from 31.08.1991 and this section was omitted by Act II of 1995 (PLD 1996 Central Statue 1296).

1. In the light of above discussion, the period of limitation stopped under Section 13 of the Limitation Act, 1908, on 15.08.1947. The aforesaid memorandum of the Chief Settlement and the Rehabilitation Commissioner dated 08th September, 1959, wherein the Government acknowledged the right of redemption of the petitioners and more particularly the entry in the revenue record showing the petitioners as owners/mortgagors and the Central Government as mortgagee vide Mutation No. 308 dated 13.02.1974, constituted acknowledgments in writing before the expiration of the period of limitation, u/S. 19 of the Limitation Act, 1908 with the result that a fresh period of limitation accrued in favour of the petitioners. For ease, Section 19 of the Act ibid is reproduced as under:

2. Effect of acknowledgment in writing.---(1) Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

(2) Where the writing containing the acknowledgment is undated; oral evidence may be given of the time when it was signed; but, subject to the provisions of the Evidence Act, 1872, oral evidence of its contents shall not be received.”

1. Mutations were, therefore, effected only irrespective of mortgagees right in favour of the Government as the period of limitation for redemption of the mortgage had not yet expired. Mutation No. 309 dated 13.02.1974 was effected on the ground that period of limitation for redemption had by then expired and as such the Central Government was shown as the full owner of the suit property. Mutation entry No. 308, however, in acknowledging petitioner’s predecessor as the mortgagor, constitutes acknowledgment of liability and right to equity of redemption possessed by them which clearly constitutes acknowledgment for the purposes of Section 19 of the Limitation Act, 1908.

2. Under Section 4 of the Displaced Persons (Land Settlement), Act 1958, evacuee lands acquired, vested in the Central Government or the Provincial Government and by virtue of Section 5 of the said Act form part of the compensation pool for the purpose of granting compensation to displaced persons whose claims have been verified. These lands forming part of the compensation pool were to be administered by the Chief Settlement Commissioner and other Officers in the Settlement Organization. Accordingly, by statutory provisions, the Chief Settlement Commissioner acted as Agent for the Government in the management of the properties in the compensation pool. It follows, therefore, that Mutation No. 310 being affected in pursuance of this policy instructions in writing, it would sufficiently constitute as an acknowledgment on behalf of the Central Government and would, therefore, bind the respondents. In this view of the matter, a fresh period of limitation had commenced with effect from 13.02.1974. Petitioners instituted their suit on 10.03.1992, therefore, their suit having been instituted within sixty years from the aforesaid date, was well within time.

3. From the perusal of the plaint it appears that the petitioners have prayed for a declaration that the mutations treating the suit property to have wholly vested in the Government were illegal and that they be declared to be the owner of the equity of redemption. The suit instituted by the petitioners is a suit for redemption and the parties to the suit were on notice about the real nature of the suit.

4. Learned appellate Court dismissed the suit merely on the ground that the jurisdiction of civil Court to try the suit stand ousted as the property has been taken to be evacuee and allotted under the Rehabilitation Laws.

5. No doubt under Section 25 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the Act “1958”) and Section 41 of the Administration of Evacuee Property Act, 1957 (hereinafter referred to as the Act “1957”) barred the jurisdiction of Civil Court. But it is also a matter of fact that both the acts have been repealed through the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975).

6. This Court in a case titled “Iqbal Khan and 9 others vs. Shahid Ullah Baig and another” (1989 CLC 1265) held that “after the repeal Act, XII of 1957 the only forum to determine whether a property is available property or not, is the Civil Court and not the residuary authorities” and in another case titled as “Mst. Kubra Begum and others vs. Shamas Din and another” (2014 YLR 1456) held that “after the repeal of settlement laws the ultimate jurisdiction only vests with Civil Court”. Peshawar High Court in a case titled as “Abdul Rashid and others vs. Abdul Ghani and others” (2011 MLD 787) held that “in view of repeal of evacuee laws or otherwise, too, civil Court alone could take cognizance of the matter so as to judge veracity of the order.” It was further held that if the vires of orders and actions of settlement authorities are in question, then the bar of jurisdiction contained in Section 25 of Land Settlement Act would not operate in that there has to be a forum to resolve such controversy”.

7. By virtue of the provisions of Section 3 of Act, 1957, no person or property not treated as evacuee or as evacuee property immediately before the first day of January, 1957 could be treated as evacuee or, as the case may be, as evacuee property, on or after the said date. For reference, Section 3 of the Act, 1957 is reproduced here under:

“3. Property not to be treated as evacuee property on or after 1st January, 1957. (1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January, 1957 shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date.

(2) Nothing in sub-section (1) shall apply,--

(a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property; or

(b) to any property which is occupied, supervised, or managed by a person whose authority or right so to do after the twenty-eighth day of February, 1947, has not been accepted or approved by the Custodian.

1. The status of a person or of a property as an evacuee or as an evacuee property was to be determined with reference to the Act, 1957. Sub-section (1) of Section 3 provided first day of January, 1957, as the target dated by providing that no person or evacuee property not treated as evacuee or as evacuee property immediately before first day of January, 1957 shall be treated as an evacuee or an evacuee property subject to the exclusion of the cases mentioned in sub-section (2) whereof, namely, (a) any person or any property in respect of which action had commenced or the proceedings were pending (b) any property which was occupied, supervised or managed by a person whose authority or right so to do after 12th day of February, 1947, had not been accepted or approved by the custodian. The functionaries under the Act, 1957 and Act, 1958 did not enjoy unfettered and unbridled power to treat any person or property as an evacuee or evacuee property but they were to act within the bounds delineated in the relevant provisions of the relevant statue. There was nothing before the learned appellate Court to indicate that the land had been treated as evacuee property by a competent authority prior to January, 1957. The various provisions of Act, 1958 and the Act, 1957 indicate that the jurisdiction to take over any property as an evacuee property or to allot the same as part of compensation to any claimant vested in the custodian or the settlement authorities provided the person and the property fell within the purview of the definition of the terms “evacuee” or an “evacuee property” or otherwise.

2. Admittedly the status of the property that the same was mortgaged is admitted. According to copy of record of rights for the year 1968-69 suit property was incorporated as mortgaged land with the Central Government. Through Mutation No. 308 suit property was confiscated in favour of the Central Government on 13.02.1974 and through Mutation No. 309 dated 13.02.1974 land measuring 214-kanals 12-marlas was sanctioned in which the suit property measuring 28-kanals 11-marlas was also included. Only the mortgagee rights could be assumed by the Central Government and the Central Government was not empowered to take the proprietary rights. The mortgagee rights of the evacuee could not be treated as evacuee property as the original owners were local Muslims and there was no law to divest these local Muslims of their right of ownership of such property. The only circumstances which could deprive them from the rights was the expiry of limitation for redemption of the land or under some order of any competent authority or the legal proceedings for recovery of mortgage money and in case of inability of the land owners to pay that amount, then the rights of the ownership could be snatched from them.

3. The ownership rights of the petitioners with regard to suit property were non-evacuee, whereas the mortgagee rights of the suit property were evacuee. Therefore, Section 4 of the Displaced Persons (Land Settlement) Act, 1958 in no way destroyed the rights of non-evacuees in land in which evacuee had any right under mortgage.

4. Learned Trial Court, keeping in view facts & circumstances of the case, rightly declared the petitioners to be the owners of equity of redemption in the suit land and passed a preliminary decree for redemption of the mortgaged property. Learned Appellate Court failed to consider said aspect of the case and merely non-suited the petitioners on the ground that the suit property was an evacuee property and allotted under Rehabilitation Laws, therefore, Civil Court has no jurisdiction to entertain the suit and completely overlooked the question involved in the suit in an arbitrary and fanciful manner.

5. For the foregoing reasons, this petition is allowed. Consequently, impugned judgment & decree of the learned Appellate Court dated 06.10.2010 is set aside and the preliminary decree for redemption of the mortgaged property is restored and learned trial Court is directed to prepare preliminary decree for redemption of

mortgaged property under Order XXXIV, Rule 7, C.P.C. in Form No. VII-B of Appendix “B”, C.P.C. and take further proceedings as required by law. In the circumstances of the case there shall be no order as to costs.

1. Before parting with this judgment, it is observed that Respondents No. 11 to 38 are bona fide purchasers for value of the suit property which was allotted as far back as 1974 to Respondents No. 2 to 10. They are being depriving of it at this late stage of the day. They deserve to be properly compensated. It is therefore, observed that they may apply to Member, Board of Revenue/Notified Officer for transfer of alternate land, out of the evacuee land, now forming part of Provincial Government Pool. In case such an application is moved, it shall be treated to be a pending matter within the meaning of Evacuee Laws (Repeal) Act, 1975 and necessary orders from transfer of available land shall be passed in their favour.

(Y.A.) Revision Petition allowed

PLJ 2023 Lahore 461

Present: Jawad Hassan, J.

PAKISTAN TEHREEK-E-INSAAF through General Secretary Asad Umar and others--Petitioners

versus

GOVERNOR OF PUNJAB and another--Respondents

W.P. Nos. 5851, 6118, 6093, 6119, of 2023, heard on 10.2.2023.

Constitution of Pakistan, 1973--

----Arts. 12/48/58/105/112/218/219(d) & 199, 213 to 226--Writ of mandamus--Election Act, 2017--Chapter 5 of Elections Rules, 2017--Holding elections of Provincial Assembly, Punjab--Doctrine of time bound legislation--Elections as per mandate of “Constitution”--Deputy of Election Commission writ of mandamus in terms of Article 199 of “Constitution” directing Respondents to announce date of holding elections of Provincial Assembly, Punjab within ninety (90) days as mandated by “Constitution” and relevant provisions of “Act”--Article 218(3) of “Constitution” provides that “it shall be duty of Election commission to organize and conduct election and to make such arrangements as are necessary to ensure that election is conducted honestly, justly, fairly and in accordance with law--Article 219(d) of “Constitution” further provides that “ECP” is charged with duty of “the holding of general elections to N.A, Provincial Assemblies and local governments”--Article 220 provides that “it shall be duty of all executive authorities in Federation and in Provinces to assist Commissioner and Election Commission in discharge of his or their functions.” These constitutional provisions dealing with role, powers and responsibilities of “ECP”, have been elaborated and interpreted--Articles 218(3) which cast a constitutional duty upon “ECP” to organize and conduct elections--Prayer made in “consolidated petitions” is allowed and “ECP” is directed to immediately announce “date of election” of Provincial Assembly of Punjab with Notification specifying reasons, after consultation with Governor of Punjab, being constitutional Head of Province, to ensure that elections are held not later than ninety days as per mandate of “Constitution”--Petitions allowed. [Pp. 471 & 474] B, D, E

2021 PTD 2126; PLD 2022 Lahore 607; PLD 2012 SC 681; PLD 1989 SC 396; PLD 2021 SC 480; PLD 2010 SC 573; 2021 SCMR 714; ref.

Interpretation of Statute--

----Doctrine of time bound legislation--Doctrine of time bound legislation with its mandate to decide matter as per time frame given under a statute. [P. 465] A

2022 MLD 2006; PLD 1989 SC 166; PLD 1989 SC 396; PLD 1988 Lahore 725; PLD 2013 Lahore 675; PLD 2022 SC 678; PLD 1983 Lahore 552; PLD 2022 SC 678; 2022 CLC 463 ref.

Constitution of Pakistan, 1973--

----A specific provision of a Constitution or a State should not be read in isolation and it must be considered in context of other relevant and connecting provisions of a constitution or a statute which underlying values and principles of constitution as a whole.

[P. 474] C

For Petitioners.

Senator Barrister Syed Ali Zafar, ASC, Uzair Karamat Bhandari, ASC, Barrister Ahmad Pansota, ASC, Dr. Ali Qazilbash, Safdar Shaheen Pirzada, ASC, Syed Mohammad Aslam Rizvi, Saad Ullah, Barrister Ahtasham Mukhtar, Imran Iqbal, Ahmad Abdul Rehman, Barrister Ahmad Asfandyar Waheed, Asna Ahsan, Sara Majeed, Tariha Arif, Sikandar Sultan Ch., Abdullah Arif, Muhammad Asfandyar Khan Lodhi, Rabbiya Ali, Mian Ihsan-ul-Haq Sajid, Advocates for Petitioner.

Asad Umar, Fawad Ahmad Ch., Ahsan Khawar, Shibli Faraz, Omar Ayub, Major Sarwar, Riaz Fatyana, Mian Aslam Iqbal, Sibtain Khan and Ashraf Sohna.

Mr. Mohammad Azhar Siddique, ASC with Ahmad Imran Ghazi, Ashad Azhar, Mian Shabbir Ismail, Irfan Mukhtar, Munir Ahmad, Salma Riaz and Amna Liaqat, Advocates (in W.P. No. 6118 of 2023).

Mr. Muhammad Nouman Shams, Advocate (in W.P. No. 6093 of 2023) with Petitioner.

Ch. Shahid Iqbal, Advocate for the Petitioner (in W.P. No. 6119 of 2023).

For Respondents.

Mr. Muhammad Shahzad Shaukat, ASC with Muhammad Nasir Chohan, ASC, Rana Asadullah, ASC, Rana Mashood Ahmad, ASC, Barrister Taha, Shaukat, Barkaat Asif, Muhammad Ahsan Nasrullah Dhillon, Saad Salman Parvez, Ali Raza Shah, Advocates for the Respondent No. 1.

Mr. Shezada Mazhar, ASC with M. Jawwad Khan Lodhi, Asad Raza and M. Ahmad Khan Niazi, Advocates alongwith Khurram Shahzad, ADG Legal, Ch. Umar Hayat, Director Legal, Imran Arif Ranjha, Legal Advisor and Hafiz Adeel Ashraf, Assistant Law Officer for Election Commission of Pakistan.

Mirza Nasar Ahmad, Additional Attorney General with Mr. Nasir Javed Ghuman, Deputy Attorney General and Asad Abbas Dhother, Assistant Advocate General.

Mr. Zahid Zaman, Chief Secretary, Government of Punjab.

Dr. Usman Anwar, Inspector General of Police, Punjab.

Dr. Asim Murtaza Cheema, Civil Judge/Research Officer, Lahore High Court, Lahore.

Dates of hearing: 30.1.2023, 3.2.2023, 9.2.2023 and 10.2.2023.

At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the Courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the Courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the Courts do not merely provide a public service like any other.

Lord Robert John Reed, President of the UK Supreme Court

Judgment

This judgment will decide above numbered petitions (the “consolidated petitions”), whereby interpretation of time bound/time specific constitutional provisions of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) read with relevant provisions of the Elections Act, 2017 (the “Act”) has been sought by Pakistan Tehreek-e-Insaaf (the “PTI”) through its Secretary General Asad Umar, Munir Ahmad, Zaman Khan Vardag and Sabir Raza Gill (the “Petitioners”) to issue writ of mandamus in terms of Article 199 of the “Constitution” directing the Respondents to announce date of holding elections of Provincial Assembly, Punjab (the “date of election”) within ninety (90) days as mandated by the “Constitution” and the relevant provisions of the “Act”. The prayer made in the “consolidated petitions” reads as under:

“W.P. No. 5851 of 2023

Direct Respondent to immediately announce the date of election for the Provincial Assembly of the Punjab so as to ensure that the election is held not later than ninety days of dissolution of Assembly.

W.P. No. 6118 of 2023

In view of the aforementioned facts and peculiar circumstances, it is, therefore, humbly prayed that the Writ Petition at hand may very kindly be accepted and necessary orders may kindly be issued the Respondent to No. 1/Governor to immediately announce the date of election for the Provincial Assembly of the Punjab as directed under Article 105, read with 224 of the Constitution of the Islamic Republic of Pakistan, 1973 so as to enforce Article 218(3) ibid, so that the Election is held not later than ninety days of dissolution of the Assembly, in the interest of public, democratic norms, justice, equity and fair play.

It is further prayed that in view of the constant violations of the Governor/Respondent No. 1 of his Constitutional Mandate, his Oath as well as the continuous violations of Articles 4 & 5, 105, 218(3) and 224 of the Constitution of the Islamic Republic of Pakistan, 1973, it is requested that the President of Pakistan may kindly be directed to act in accordance with Article 101(3) of the Constitution of the Islamic Republic of Pakistan, 1973, so as to remove the same, of course, in order to fulfil the constitutional mandate.

Writ Petition No. 6093 of 2023

UNDER THE ABOVEMENTIONED CIRCUMSTANCES, it is respectfully prayed that an appropriate writ may be issued by declaring that after dissolution of a Provincial Assembly, the delay on the part of the Governor for appointing an actual date for holding of a General election to the Assembly is violative of Articles 105(3) and 5(2) of the Constitution of Pakistan.

It is further prayed that a direction may be issued to the Governor of Punjab to appoint an actual date, not later than 90 days from the date of dissolution for holding of a general election to a Provincial Assembly of Punjab.

Writ Petition No. 6119 of 2023

In view of the foregoing, it is most respectfully prayed that this Hon’ble Court may be pleased to direct Respondent to immediately announce the date of election for the Provincial Assembly of the Punjab so as to ensure that the election is held not later than ninety days of dissolution of the Assembly”

1. The common prayer in the “consolidated petitions” revolves around the announcement of “date of election” by the Respondents. Pertinently, on the issue of time specific/time bound provision of a Statue/Act, this Court has already rendered a detailed judgment reported in “Shaheen Merchant versus Federation of Pakistan etc” (2021 PTD 2126 Lahore) in which this Court has developed the doctrine of time bound legislation with its mandate to decide the matter as per time frame given under a statute while discussing the anatomy of authority/regulator, jurisprudential anthology regarding the duty of the State to provide expeditious justice under Article 37-D of the “Constitution” while referring the judgments of Hon’ble Supreme Court of Pakistan and the legal anthropology of time frame, pathology regarding the time specific tribunal with time bound mandate to decide the matter under the law. This Court first time developed the principles of time frame by relying quote of Justice Warren E. Burger, Chief Justice of United States which reads as:

A sense of confidence in the Courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: (i) that people come to believe that inefficiency and delay will drain even a just judgment of its value; (ii) that people who have long been exploited in the smaller transactions of daily life come to believe that Courts cannot vindicate their legal rights from fraud and over-reaching; (iii) that people come to believe the law – in the larger sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets quotation.

In the aforesaid judgment, the Court specifically stated that under Article 37-D of the “Constitution” the State is duty bound to give the expeditious justice.

CONTEXT OF THE CASE

1. In terms of Article 112(1) of the “Constitution”, the then Chief Minister of Punjab, Ch. Pervaiz Elahi on 12.01.2023 advised the Governor of Punjab to dissolve Provincial Assembly. The Governor of Punjab in its letter dated 14.01.2023 declared that the Provincial Assembly Punjab and the Cabinet stood dissolved after forty-eight hours at 22:10 hours and assured his availability for discharging his constitutional obligations. The incumbent Speaker of the Punjab Assembly Muhammad Sibtain Khan had requested the Governor of Punjab on 20.01.2023 to appoint the “date of election”. Another request for the same purpose was also made by the “ECP” to Principal Secretary to the Governor of the Punjab on 24.01.2023, in reply thereto, the Principal Secretary to the Governor of Punjab has mentioned that he has been directed to state, in the aforenoted context, and to ask the “ECP” to note that the Provincial Assembly of Punjab stood dissolved in terms of clause(1) of Article 112 of the Constitution of the Islamic Republic of Pakistan, 1973 by efflux of time stipulated therein and not by the order of the Governor of the Punjab. Therefore, clause (3) of Article 105 of the Constitution of the Islamic Republic of Pakistan, 1973 does not apply in this situation. Instead, the election process to now take place in accordance with Article 224 read with clause (3) of Article 218 of the Constitution of Islamic Republic of Pakistan and the applicable provisions of the Elections Act, 2017, hence this petition.

PROCEEDINGS BEFORE THE COURT.

On 30.01.2023, when the titled petition first time brought before the Court, it was only carrying documents appended therewith (Annex-A to Annex-D, Pages 8 to 13). In all petitions, the prayer of the Petitioners circumambulates for issuance of directions to the Respondents to announce the “date of election” within the time frame provided in the “Constitution” and the “Act”.

First Date of Hearing (30.01.2023)

1. Senator Barrister Syed Ali Zafar, ASC during course of hearing, had referred to a letter dated 24.01.2023 issued by the “ECP” to Principal Secretary to the Governor of the Punjab in terms of Article 224 of the “Constitution” read with Section 57(2) of the “Act” regarding announcing the “date of election” and he, on confrontation, has made the “ECP” as the Respondent No. 2 in this petition. Mr. Asad Umar concurrently highlighted the right of democracy and political justice by relying the judgment of this Court in the case of “Hafeez Ur Rehman Ch versus Federation of Pakistan etc” (2022 MLD 2006). The Court after hearing the arguments, admitted the petitions and issued notices to the Attorney General for Pakistan as well as Advocate General Punjab in terms of Order XXVII-A of the Code of Civil Procedure (V of 1908), sought replies.

Second Date of Hearing (03.02.2023)

1. Senator Barrister Syed Ali Zafar, ASC remained consistent on focal point viz the mandate of the Governor of Punjab to announce the “date of election” within constitutional time frame of ninety days after dissolution of Provincial Assembly and relied on certain Articles of the “Constitution” and non-compliance thereof entails constitutional breach by referring “Federation of Pakistan versus Muhammad Saifullah Khan” (PLD 1989 SC 166) (Full Bench), “Election Commission of Pakistan versus Javaid Hashmi” (PLD 1989 SC 396), “Muhammad Sharif versus Federation of Paksitan” (PLD 1988 Lahore 725) (Full Bench) and “Rao Naeem Sarfaraz versus Election Commission of Pakistan through Chief Election Commissioner” (PLD 2013 Lahore 675). Mr. Asad Umar referred “Curate’s Egg” principle and stated that he sees the role of ECP some good as it had announced dates of bye-elections throughout the Country but some bad as the “ECP” is not giving the “date of election” in his case. The Court also directed the Respondents to file reply to this petition.

Third Date of Hearing (09.02.2023)

1. Written statement on behalf of the Governor of Punjab was submitted by Mr. Muhammad Shahzad Shaukat, ASC on 08.02.2023 in W.P.No. 6118 of 2023. The case was argued at length by Senator Barrister Syed Ali Zafar, ASC who referred Article 220 of the “Constitution” and also relied on the judgment of Hon’ble Supreme Court of Pakistan titled “Ch. Pervaiz Elahi versus Deputy Speaker, Provincial Assembly of Punjab, Lahore and others” (PLD 2022 SC 678) and sought writ of mandamus against the Respondents for announcing the “date of election”. Mr. Shezada Mazhar, ASC appeared on behalf of the “ECP” and sought time to file reply. While Mr. Muhammad Shahzad Shaukat, ASC for the Governor of Punjab was on adjournment due to his preoccupation before the Hon’ble Supreme Court of Pakistan. The case was adjourned to 10.02.2023.

Fourth Date of Hearing (10.02.2023)

1. Reply was filed by Mr. Shezada Mazhar, ASC on behalf of the “ECP” and arguments were concluded by learned counsel for the parties. Chief Secretary Punjab and Inspector General of Police appeared and made their statements before the Court with reference to Article 220 of the “Constitution” and stated that they will fully comply with the directions of the “ECP”.

2. Before proceedings further, it would be advantageous to add that reply on behalf of Governor of Punjab was filed only in W.P.No. 6118 of 2023 whereas reply on behalf of the “ECP” was only filed in W.P.No. 5851 of 2023. Since the common question in the “consolidated petitions” with regard to “date of election” is involved therefore, the replies filed by the Respondents would be treated as replies in the “consolidated petitions” in the light of judgment reported in “Dr. Muhammad Nasim Javed versus Lahore Cantonment Housing Society Ltd., through The Secretary Fortress Stadium Lahore Cantt. and 2 others” (PLD 1983 Lahore 552) wherein it was held that “where a number of writ petitions are being heard together, written statement filed by respondents in one of such writ petition can also be treated as written statement in the other writ petitions being heard together and therefore no prejudice will be caused to such party by not filing of separate written statements in each case”.

PETITIONERS SUBMISSIONS

1. Senator Barrister Syed Ali Zafar, ASC inter alia argues that after dissolving the Provincial Assembly by the Governor of Punjab in terms of Article 112(1) of the “Constitution”, ninety days’ time has been provided for announcement of “date of election” by the Governor of Punjab which, if not announced, cannot be left open for an indefinite period and under the law, the same can be announced either by the “ECP” or the President of Pakistan, as the case may be. In order to strengthen this argument, he has relied on paragraph No. 16 of the judgment of Hon’ble Supreme Court of Pakistan in case titled “Ch. Pervaiz Elahi versus Deputy Speaker, Provincial Assembly of Punjab, Lahore and others” (PLD 2022 SC 678); that the Petitioners are seeking writ of mandamus to the “Respondents” to announce the “date of election” with reference to Articles 112, 105, 218 and 219 of the “Constitution”; Mr. Uzair Karamat Bhandari, ASC states that Articles 112 and 105 of the “Constitution” have to be read together as the Governor of Punjab though appointed caretaker government as per mandate of Article 105(3)(b) yet without announcing the “date of election” of dissolved Assembly under Article 103(3)(a) of the “Constitution”; Mr. Mohammad Azhar Siddique, ASC states that Article 218(3) of the “Constitution” casts a duty upon the “ECP” to organize and conduct the election of the assemblies as defined under Section 2(iv) of the “Act” and to make such arrangements as are necessary to ensure the conduct of election honestly, justly, fairly and in accordance with law but in the case in hand, the “ECP” has shown his readiness to conduct the election and has made request to the Governor of Punjab to appoint a date under Article 224(2) of the “Constitution” read with Section 57(2) of the “Act” between 9th April, 2023 to 13th April, 2013 as evident from letter dated 24.01.2023 but this power has not been exercised by the Governor of Punjab; that under Article 5 of the “Constitution”, the Governor of Punjab is bound to obey the “Constitution” and law and the law in the case is the “Act” and the judgments of the apex Court; lastly he has put much emphasis on the preamble of the “Constitution” in the light of judgment of this Court passed in the case of “Jamshed Iqbal Cheema versus The Election Appellate Tribunal and 19 others” (2022 CLC463).

RESPONDENTS SUBMISSION

Reply on behalf of Governor of Punjab

1. Mr. Mohammad Shahzad Shaukat, ASC filed reply and took preliminary objection qua maintainability of the “consolidated petitions” on the touchstone of Article 248 of the “Constitution”. It has further been objected that the “consolidated petitions” have been filed in utter disregard to the provisions of Articles 105, 112, 218 and 219 of the “Constitution”.

Reply on behalf of the “ECP”

1. Mr. Shezada Mazhar, ASC filed reply and took preliminary objection qua maintainability of the “consolidated petitions” on the touchstone of Article 218(1), 224, 58(1), 48(5), 112(1) of the “Constitution”. It has further been objected that under the “Constitution” and the “Act” there is no provision which requires the “ECP” to give date of election.

DETERMINATION BY THE COURT

1. From the prayer made in the “consolidated petitions”, the anchor point is whether writ of mandamus can be issued to either of the Respondents to announce the “date of election” under Article 199 of the “Constitution”. Without any shadow of doubt, 90 days’ time is mandated in the “Constitution” for fixing/announcing the “date of election” of Provincial Assembly after its dissolution in terms of Article 105 and time frame provided under Articles 112 and 224(2) of the “Constitution”. Aptly, the constitutional duties of the Governor of Punjab being the Head of the Province are mentioned under Part-IV, Chapter-1 of the “Constitution” according to which the Governor is appointed by the President on the advise of the Prime Minister and holds the office at the pleasure of the President. Under this Part, the Governor performs his functions on the advice of the Chief Minister or the Cabinet and this Part specifically deals with his role as the Governor for the Province as per Article 101 of the “Constitution” being the head of Province which is equal to the President of the Pakistan under Part-III, Chapter-1, but the President has the term of office under Article 44 for five years. The President also acts on the advice of the Cabinet under Article 41 which is similar to Article 105 of the “Constitution” but the duty/obligation of the Governor are subject to constitution because Article 105 of the “Constitution” starts with subject to constitution, and the provisions invoked by “the Petitioners” under Article of 105(3) where the governor dissolve the Provincial Assembly but he has to first give a date of holding general elections and then to appoint caretaker government. It is evident from the correspondence between the parties and the stance taken by the Governor of Punjab and letter of the President of Pakistan to the Governor clearly manifests that conduct of general election but who has to do it is not answered in Article 224 of the “Constitution” for holding elections within 90 days. It is quite clear that Article 224 of the “Constitution” falls under Part-VIII, Chapter 2 which deals with electoral laws and conduct of elections whereas Part VIII Chapter 1 deals with the Chief Election Commission and Election Commissions with their mandate. Article 224(2) of the “Constitution” deals with the time of election but did not specific which authority as it falls under Chapter 2 of Part VIII which deals with electoral laws and conduct of election. It has been seen that Chapter 2 deals with conduct of election if it is read with Chapter 5 of the “Act”, which deals with the election of the Assemblies read with Chapter 5 of the Elections Rules, 2017.

2. Perusal of Article 105 of the “Constitution” makes it quite clear that it covers two eventualities; the first eventuality deals with the situation where on the advice of the Chief Minister, the Governor exercises his constitutional power to dissolve the assembly while second eventuality deals with a situation where on such advice by the Chief Minister, he abstains from exercising his constitutional powers and the assembly stands dissolved by operation of law. In the first eventuality, where the Governor uses his constitutional powers to dissolve the assembly, he is clearly bound under Article 105(3)(a) to appoint a date not later than ninety days from the date of dissolution, for the holding of general elections to the Assembly but Article 105 is silent and does not clearly specify as to who is the authority to declare the date of election in the above-mentioned second eventuality.

3. On the other hand, careful perusal of Article 112 of the “Constitution” also shows that the said two eventualities are duly separated by insertion of semi-colon, separating the eventuality when the Governor so exercises his constitutional powers to dissolve the assembly, from the eventuality when it stands dissolved by the operation of law. Now question arises, at the cost of repetition, that none of the parties have taken the stance against Article 224(2) of the Constitution that general election is required to be held within 90 days therefore, the actual point of dispute is regarding the authority under the given circumstances who is to declare the date of such election. This is because Article 224(2) also does not specifically mentions the authority who is constitutionally bound to declare the date of election of the Provincial Assembly in such eventuality. To resolve this controversy, while keeping in view the stance of the Governor of Punjab in his correspondence letter dated 01.02.2023, mentioned supra and the letter dated 08.02.2023 of the President of Pakistan addressed to the Chief Election Commissioner, it is necessary to look into the nature, scope, constitutional mandate and constitutional responsibility of the “ECP”. It is not out of place to mention here that the Governor vide his letter 01.02.2023 addressed to the Ex-Parliamentary Leader of “PTI”, has reaffirmed that he will discharge his responsibilities and duties in line with the “Constitution” and law as and when required.

4. On the other hand, perusal of Part-VIII of the “Constitution” shows that the Constitution in Articles 213 to 226 contained in Chapters 1 and 2 of the said Part, defines and elaborates the nature, scope, powers and purposes of the “ECP”. Article 218(3) of the “Constitution” provides that “It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.” Article 219(d) of the “Constitution” further provides that the “ECP” is charged with the duty of “the holding of general elections to the National Assembly, Provincial Assemblies and the local governments”. Similarly, Article 220 provides that “it shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions”. These constitutional provisions dealing with role, powers and responsibilities of the “ECP”, have been elaborated and interpreted in a number of judgments by this Court as well as the Hon’ble Supreme Court of Pakistan. This Court in “Tariq Iqbal versus Election Commission of Pakistan and others” (PLD 2022 Lahore 607) has held that the Election Commission of Pakistan is the apex, independent and neutral constitutional authority to hold, organize and conduct elections in Pakistan. The Hon’ble Supreme Court of Pakistan in “Workers Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others versus Federation of Pakistan and 2 others” (PLD 2012 SC 681) while elaborating and interpreting Article 218(3) of the “Constitution” observed as under:

“40. A bare reading of Article 218(3) makes it clear that the Election Commission is charged with the duty to ‘organize’ and ‘conduct the election’. The language of the Article implies that the Election Commission is responsible not only for conducting the election itself, but also for making all necessary arrangements for the said purpose, prior to the Election Day. By conferring such responsibility on the Election Commission, the Constitution ensures that all activities both prior, on and subsequent to Election Day, that are carried out in anticipation thereof, adhere to standards of justness and fairness, are honest, in accordance with law and free from corrupt practices. This Court in Election Commission of Pakistan v. Javaid Hashmi and others (PLD 1989 SC 396), observed that “(g)enerally speaking election is a process which starts with the issuance of the election programme and consists of the various links and stages in that behalf, as for example, filing of nomination papers, their scrutiny, the hearing of objections and the holding of actual polls. If any of these links is challenged it really (is) tantamount to challenging the said process of election”. It interpreted that the phrase ‘conduct the election’ as having “wide import” and including all stages involved in the election process. These observations subject all election related activities that take place between the commencement and the end of the election process to the jurisdiction conferred on the Election Commission under Article 218(3). The Election Commission therefore has to test all election related activities that are carried out in the relevant period, both individually and collectively, against the standards enumerated therein”.

Emphasis added

1. The interpretation of Article 218(3) by the Hon’ble Supreme Court in this case clearly indicates that the Election Commission of Pakistan is the ultimate authority to ensure the conduct of elections in accordance with law i.e. the provisions of the “Constitution” as well as the “Act”, and such authority is not limited to the election day or subsequent to it but also to all stages prior to it, while the election process starts with issuance of election program which in turn starts with the declaration of date of election. This broader role and responsibility of the ECP is further elaborated by the Hon’ble Supreme Court in “Workers Party Pakistan supra which reads as

“42. ... Article 220 of the Constitution also directs the Federal and Provincial machinery to assist the Election Commission in fulfilling its constitutional responsibilities. The law, therefore, entrusts the Election Commission with exclusive, broad and extensive powers to attend to all issues related directly and ancillary to the election process.”

1. The above mentioned findings of Hon’ble Supreme Court of Pakistan in this case was further reaffirmed in PLD 2021 Supreme Court 480 in the case of Reference By The President of The Islamic Republic of Pakistan, Under Article 186 of The Constitution of The Islamic Republic of Pakistan, 1973.

2. The authority of the “ECP” regarding the conduct of elections in accordance with law was further extended by the Hon’ble Supreme Court of Pakistan in “Sheikh Rashid Ahmed versus Government of Punjab and others” (PLD 2010 SC 573) wherein it has held that “the provision of Article 220 of the Constitution also reflects to be in pari materia with the provision of Article 190 of the Constitution”. This extended powers of the “ECP” were further elaborated in “Administrator Municipal Corporation, Peshawar and others versus Taimur Hussain Amin and others” (2021 SCMR 714) wherein the Hon’ble Supreme Court held that;

“6. …Article 220 of the Constitution mandates that, ‘It shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions.’ In case the Federation and/or the Province(s) create hurdles in the way of the Commission holding elections, they will be violating the Constitution, which may attract serious consequences”.

1. Although, Article 224(2) read with Article 105 and 112 of the “Constitution” does not specifically mentions the authority to declare a date of election in a provincial assembly in case it stands dissolved by operation of law but in the light of jurisprudence developed in aforesaid judgments, it can safely be concluded that the “ECP” being apex, independent and neutral constitutional authority mandated under the “Constitution” to hold, organize and conduct elections in Pakistan in accordance with law is the ultimate constitutional authority to ensure compliance of Article 224(2) of the “Constitution” under the doctrine of Penumbra which refers to a legal principal that recognizes certain unenumerated rights and obligations as implicit in the guarantees of the Constitution which can also be termed as constitutional penumbras. Under this doctrine, a specific provision of a Constitution or a State should not be read in isolation and it must be considered in the context of other relevant and connecting provisions of a constitution or a statute which underlying values and principles of the constitution as a whole. The doctrine if penumbra enable the Courts in interpreting various provisions of the constitution in order to enforce those rights and obligations which are explicitly mentioned in the text of a particular provision of the constitution or a law. Keeping the aforesaid doctrine in view, when Articles 218(3) which cast a constitutional duty upon the “ECP” to organize and conduct elections and to ensure that the election is conducted in accordance with law that is the “Constitution”, the “Act” and the Elections Rules, 2017 read with Article 219(d) which charged the “ECP” with the duty of holding the general elections to the provincial assemblies read with Article 224(2) and 220 of the “Constitution” which cast a duty on all the executive authorities in the federation and in the provinces to assist the “ECP” in discharge of its constitutional functions, are being considered together being connecting and relevant provisions, the obligation and duty of the “ECP” to declare the date of general election for the Province comes within the penumbra of these constitutional provisions and elections laws.

2. In view of the constitutional provisions mentioned above and the judgments of the Supreme Court of Pakistan, the prayer made in the “consolidated petitions” is allowed and the “ECP” is directed to immediately announce the “date of election” of the Provincial Assembly of Punjab with the Notification specifying reasons, after consultation with the Governor of Punjab, being the constitutional Head of the Province, to ensure that the elections are held not later than ninety days as per the mandate of the “Constitution”.

(K.Q.B.) Petition allowed

PLJ 2023 Lahore 475 [Multan Bench, Multan]

Present: Faisal Zaman Khan, J.

ARSHAD MEHMOOD.--Petitioner

versus

JUDGE FAMILY COURT and another--Respondents

W.P. No. 11512 of 2019, heard on 24.1.2023.

Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 14 & 14(3)--Constitution of Pakistan, 1973, Arts. 189 & 199--Right of cross-examination and producing of oral evidence as well as documentary evidence petitioner was closed--Many opportunities were provided for producing of evidence--Non availability of remedy against interim order--Jurisdiction--Violation of constitution--Challenge to--Question of whether against an interim--Order passed by a family Court, a writ petition is maintainable--When an interim order passed by a family Court is challenged before High Court in exercise of its Constitutional Jurisdiction interference made by High Court would not only amount to challenging wisdom of Legislature, who has deliberately not provided any remedy against interim order passed by family Court but it is also violative of Article 189 of Constitution--It is clear and obvious that respondent no.1 through impugned interim orders has not only taken away right of petitioner to cross-examine witnesses of Respondent No. 2 but has also closed his right to produce oral as well as documentary evidence--Many opportunities were granted to petitioner to produce his evidence which also included last opportunity however he failed to do needful impugned orders have rightly been passed--Petition dismissed.

[P. 478] C, D & E

2002 SCMR 312, PLD 2005 SC 719, 2013 SCMR 34, 2015 SCMR 1739, 2020 SCMR 300 ref.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14(3)--Interim order--Any interim order passed by Family Court cannot be subject to challenge through an appeal or a civil revision.

[P. 477] A

Remedy against interim order--

----Where a particular law does not provide a remedy against an interim order passed by a Court exercising jurisdiction under that law, said order ordinarily cannot be assailed by way of filing a constitutional petition with a caveat that if order is without jurisdiction. [P. 477] B

2020 SCMR 260, 2020 SCMR 502 & 2021 SCMR 1430 ref.

Mr. Humayun Syed Rasool, Advocate for Petitioner.

Nemo for Respondents.

Dates of hearing: 24.1.2023.

Judgment

Through this petition, interim orders dated 27.10.2018 and 20.06.2019 passed by respondent No. 1 have been assailed. By virtue of the former order, right of the petitioner to cross-examine the witnesses of respondent No. 2 has been struck off and through the latter, his right to produce oral as well as documentary evidence has also been closed.

1. At the outset of hearing, learned counsel for the petitioner has been confronted with Section 14 of the West Pakistan Family Courts Act 1964 (Act) to highlight that the Legislature in its own wisdom has not provided any appeal or revision against an interim order passed by the Family Court, therefore, this writ petition is not maintainable in view of the fact that if any such jurisdiction is exercised by this Court, the same would amount to defeating the intention of the Legislature.

2. In spite of his earnest effort, learned counsel for the petitioner has not been able to give any plausible explanation.

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

4. Arguments heard. Record perused.

5. The moot point which requires determination by this Court is as to whether against an interim order passed by a Family Court, a writ petition is maintainable?

6. Family Courts are established under Section 3 of the West Pakistan Family Courts Act 1964 (Act). The said Courts exercise their jurisdiction under Section 5 of the Act, which is restricted to the “matters” specified in Part I of the Schedule of the Act.

7. The preamble of the Act would show that the Act has been promulgated in order 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.

8. A careful reading of the preamble would show that the Act has primarily been promulgated for “expeditious” “settlement” and “disposal of disputes” mentioned in the Schedule of the Act which primarily cater for the disputes arising out of “marriage”, which is between the “spouses” and the “family affairs” which are outcome of marriage.

9. When an “issue/dispute/matter” as contemplated in the Schedule arises to a spouse, for “disposal” of the same either of them under Section 6 of the Act being an aggrieved spouse will approach the family Court against a party as defined in Section 2(d) of the Act, whose presence is necessary for proper decision of the case or which has been impleaded by the family Court. Upon such institution, defendant shall be intimated under Section 8 who upon intimation will file a written statement under Section 9 whereafter under Section 10 process of “settlement” will be initiated by the family Court by making an effort for reconciliation between the spouses. If the reconciliation fails, issues will be framed and thereupon under Section 11 parties will be put to evidence and once the evidence is concluded, under Section 12 another effort for “settlement” between the spouses shall be made by the family Court and in case it fails, a final decree will be passed.

10. Unlike the procedure provided for proceeding in a regular civil suit under the Code of Civil Procedure 1898 (CPC), for “expeditious” disposal of the family suits, under Section 7 an aggrieved spouse is allowed to enjoin multifarious causes of action (as mentioned in the Schedule) in one suit and for disposal of the same Section 12-A provides for a time line. To further simplify the process/procedure and for express disposal of cases, under Section 17 application of Qanun-e-Shahdat Order 1984 and CPC has also been ousted.

11. In order to meet the objectives of the Act a bar has been specifically created in Section 14(3) of the Act which would show that any interim order passed by the Family Court cannot be subject to challenge through an appeal or a civil revision.

12. While interpreting such like bar of jurisdiction, it has been held by the Hon’ble Supreme Court of Pakistan that where a particular law does not provide a remedy against an interim order passed by a Court exercising jurisdiction under that law, the said order ordinarily cannot be assailed by way of filing a constitutional petition with a caveat that if the order is without jurisdiction. For reference, reliance can be placed on judgments reported as President, All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others [2020 SCMR 260], Allah Rakha (deceased) through L.Rs. and others v. Additional Commissioner (Revenue), Gujranwala and others [2020 SCMR 502] and Haji Muhammad Latif v. Muhammad Sharif and others [2021 SCMR 1430].

13. Keeping the above in view, when an interim order passed by a family Court is challenged before this Court in exercise of its Constitutional Jurisdiction (which according to the judgments mentioned supra is circumscribed), interference made by this Court would not only amount to challenging the wisdom/intention of the Legislature, who has deliberately not provided any remedy against the interim order passed by the family Court but it is also violative of Article 189 of the Constitution of the Islamic Republic of Pakistan. Even otherwise, such interference will also be defeating the purpose of promulgation of the Act qua expeditious disposal of the family cases.

14. It has also been held by the Hon’ble Apex Court that wisdom/intention of the Legislature cannot be looked into by this Court in exercise of its constitutional jurisdiction. For reference, reliance can be placed on judgments reported as ZamanCement Company (Pvt.) Ltd. v. Central Board of Revenue and others [2002 SCMR 312], Pakistan Lawyers Forum and others v. Federation of Pakistan and others [PLD 2005 SC 719], State of M.P. v. Rakesh Kohli and another [2013 SCMR 34] and Lahore Development Authority through D.-G. and others v. Ms. Imrana Tiwana and others [2015 SCMR 1739].

15. Keeping in view the above and placing it in juxtaposition with the facts of the present case, it is clear and obvious that Respondent No. 1 through the impugned interim orders has not only taken away the right of the petitioner to cross-examine the witnesses of respondent no.2 but has also closed his right to produce oral as well as documentary evidence. The said orders being interim in nature could not have been assailed in an appeal or civil revision as contemplated in Section 14 of the Act and since the learned counsel for the petitioner has failed to show any jurisdictional defect in the said orders, the jurisdiction of this Court is also barred.

16. It shall not be out of place to mention here that many opportunities were granted to the petitioner to produce his evidence which also included last opportunity however he failed to do the needful therefore the impugned orders have rightly been passed as they are in consonance with the principle of law laid down by the Hon’ble Supreme Court of Pakistan in judgment reported as Moon Enterprises CNG Station Rawalpindi v. Sui Northern Gas Pipelines Limited and another [2020 SCMR 300].

17. For what has been discussed above, since the learned counsel for the petitioner has not been able to highlight any jurisdictional defect or procedural impropriety in the impugned orders, therefore, no interference is required, as a sequel to which, this petition fails and the same is dismissed.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 479

Present:Tariq Saleem Sheikh, J.

SHUMAILA SHARIF--Petitioner

versus

SECRETARY UNION COUNCIL etc.--Respondents.

W.P. No. 66288 of 2022, heard on 16.12.2022.

Punjab Local Government Act, (XXXIII of 2022)--

----S. 33--Divorce Act, (IV of 1869), Ss. 10, 22--Respondent No. 4 filed a petition for dissolution of their marriage under S. 10 of Divorce Act, 1869, which was granted by Civil Court--She applied to NADRA (Respondents No.1 & 2) for a renewal of her CNIC, it refused to include petitioner’s father’s name and asked her to provide divorce certificate from Union Council concerned--NADRA declined to accept Court’s decree and pastor’s certificate as sufficient proof of dissolution of her marriage--Section 10 of Divorce Act specifies grounds on which husband and wife may petition for dissolution of marriage. Section 22 prohibits court from passing a decree for a divorce--A court decree for dissolution of marriage entails legal consequences in all cases and creates rights and liabilities for parties--Government of Punjab is directed to frame requisite rules and issue notifications and letters, etc, within 90 days from date of announcement of this judgment--Petitioner is directed to re-apply to NADRA for issuance of CNIC and submit her affidavit in prescribed form along with a certified copy of Civil Court’s judgment and decree NADRA shall process her application in accordance with law and Registration policy--Petition disposed of.

[Pp. 480, 481, 482, 484 & 485] A, B, C, D & E

PLD 2022 Lahore 756; PLD 2017 Lahore 610; PLD 2014 SC 699 ref.

Mr. Umar Saeed, Advocate for Petitioner.

Mr. Imran Muhammad Naeem, Advocate with Mr. Hamid Rafiq, Law Officer, NADRA for Respondent No. 2.

Mr. Mukhtar Ahmad Ranjha, Additional Advocate General for Respondent No. 3.

Mian Muhammad Iqbal, Advocate for Respondent No. 4.

Mr. Hashim Ali Gill, Assistant Director (Litigation), Local Government & Community Development Department for Respondent No. 5.

Ms. Rizwana Naveed, Additional Secretary, Human Rights & Minorities Affairs Department, with M/s. Naveed Ahmad Goraya and Faisal Mukhtar, Law Officers for Respondent No. 6

Mr. Kashif Alexander, Advocate for Amicus curiae.

Date of hearing: 16.12.2022.

Judgment

The Petitioner and Respondent No. 4, both Christians, got married. On 06.10.2016, Respondent No. 4 filed a petition for the dissolution of their marriage under Section 10 of the Divorce Act, 1869, which was granted by the Civil Court vide judgment and decree dated 01.02.2018. Subsequently, at the Petitioner’s request, the Pastor of Trinity Gospel Church Ministries in Lahore issued a Certificate of Separation dated 08.12.2018. The Petitioner’s Computerized National Identity Card (CNIC) expired on 03.10.2021, and she needed it changed to replace her ex-husband’s name with her father’s. When she applied to the National Database and Registration Authority (NADRA) (Respondents No. 1 & 2) for a renewal of her CNIC, it refused to include the Petitioner’s father’s name and asked her to provide divorce certificate from the Union Council concerned. According to the Petitioner, NADRA declined to accept the Court’s decree and the Pastor’s Certificate as sufficient proof of the dissolution of her marriage. She requested a divorce certificate from the Secretary, Union Council No. 226, Kot Lakhpat, Lahore (Respondent No. 1), but he refused saying that it was not issued to the Christian community. By this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner seeks a writ of mandamus against Respondent No. 1 for issuance of a divorce certificate.

1. This Court admitted this petition to regular hearing and appointed Mr. Kashif Alexander, Advocate, as amicus curiae. The Secretary, LG & CD, and the Secretary, Human Rights & Minorities Affairs Department, Government of the Punjab, were also impleaded as respondents who submitted their written statements.

2. The Petitioner’s counsel contends that section 33 (1)(j) of the Punjab Local Government Act 2022 (“PLGA 2022”) casts a duty on the Union Councils to ensure registration of births, deaths, marriages, and divorces for all the communities without discrimination. The refusal of Respondent No. 1 to issue a divorce certificate to the Petitioner on the ground that they are Christians violates their fundamental rights guaranteed by the Constitution. The counsel has also referred to Article 36 of the Constitution, which expressly requires the State to protect the minorities’ legitimate rights and interests.

3. The Additional Advocate General has little to defend the Respondents. He states that the Provincial Government is taking steps to address the Christian community’s complaints regarding the non-issuance of divorce certificates.

4. Advocate Kashif Alexander, amicus curiae, contends that the court’s decree determines the parties’ future relationship whereas a divorce certificate is part of their identity. He maintains that obtaining a divorce certificate is a legal right that cannot be denied. It is especially important in this case because NADRA requires it to update the Petitioner’s marital status before issuing her a new/revised CNIC. Respondent No. 1 must be commanded to issue it which, even otherwise, is his statutory obligation.

5. Heard. The Christian Marriage Act of 1872 and the Divorce Act of 1869 are the principal family laws for Christians in our country. Every church has its precepts, but these statutes prevail where there is a conflict.

6. The Divorce Act was enacted in 1869 (the “Divorce Act”) to amend the law relating to divorce and matrimonial causes relating to persons professing the Christian religion and to confer jurisdiction on certain courts in respect thereof. Section 10 of the Divorce Act specifies the grounds on which the husband and wife may petition for dissolution of marriage. Section 22 prohibits the court from passing a decree for a divorce a mensa et thoro but allows the husband or wife to obtain a decree of judicial separation on the ground of adultery, cruelty, or desertion without reasonable excuse for two years or upwards of marriage. Section 55 states that all decrees and orders rendered by the court in any suit or proceeding brought under the Act shall be enforced and may be appealed in the same manner as decrees or orders issued by the court in the exercise of its original civil jurisdiction under the laws for the time being in force.

7. A court decree for dissolution of marriage entails legal consequences in all cases and creates rights and liabilities for the parties. The Divorce Act stipulates such implications for Christians, and one of them is that either party can marry again after the prescribed period has elapsed.

8. There is no cavil that when a marriage is dissolved, the parties have a right to a divorce certificate. But is it really necessary? Mr. Alexander contends that it is because it is a part of their identity.

9. A person’s identity refers to all aspects of his profile that are important to him.[1] His identity begins at conception and includes biological information, physical traits, and significant social relationships such as ties to family members, culture, or religion.[2] According to this view, the right to identity is inextricably linked to other rights, such as a right to a name, nationality, juridical personality, family, and culture.[3] Some legal experts consider it a part of the right to life, while others believe it is rooted in human dignity and thus fundamental and inalienable.

10. International law focuses more on what may be described as “legal identity.” According to Article 6 of the Universal Declaration of Human Rights (1948), everyone has the right to be recognized as a person before the law. Articles 7 & 8 of the UN Convention on the Rights of the Child expressly protect the child’s right to identity. The other treaties that seek to safeguard identity rights include the Hague Adoption Convention[4] and anti-human trafficking conventions. According to the 2030 Agenda for Sustainable Development, legal identity is a catalyst for achieving at least ten Sustainable Development Goals. Hence, it has designated it as a specific target – Target 16.9 (Legal identity for all).[5]

11. The Constitution of Pakistan (1973) does not explicitly guarantee the right to identity. However, in Hafiz Awais Zafar v. Judge Family Court, Lahore, and others (PLD 2022 Lahore 756), this Court held that Article 9 (right to life) and Article 14 (dignity of man) safeguard that right. Therefore, any citizen whose marital status changes due to the dissolution of marriage by divorce has a fundamental right to obtain a divorce certificate from the competent authority and then have their CNIC updated/revised.

12. Our Constitution gives minorities a special status. Its preamble states that the State shall make adequate provisions for the minorities to profess and practice their religions and develop their cultures. Secondly, the State shall guarantee fundamental rights, including equality of status, opportunity and before the law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship, and association, subject to the law and public morality. Thirdly, the State shall make adequate provisions to safeguard the legitimate interests of minorities. These asseverations are then secured through Article 2A (which makes the Objectives Resolution a substantive part of the Constitution). Article 4 (Right of an individual to be dealt with in accordance with the law) and Part II (Fundamental Rights and Principles of Policy). In Ameen Masih v. Federation of Pakistan and others (PLD 2017 Lahore 610), this Court held that “minority rights are, therefore, a basket of fundamental rights, constitutional values, State obligations under the Principles of Policy, international conventions like ICCPR (duly ratified by Pakistan) and the rich jurisprudence developed over the years.”

13. In Suo Motu Case No. 1 of 2014 etc. (PLD 2014 SC 699),[6] the Hon’ble Supreme Court of Pakistan reiterated that minorities have a special status under our Constitution and approvingly cited the following excerpt from the writing of Tayyab Mahmud, a Professor at Seattle University School of Law and Director of the Centre for Global Justice:

“The express guarantees for freedom of belief and practice of religion, the rule of law, due process, equal protection, and a progressive legislative agenda, proffered by the leadership of the Pakistan Movement, constitute an implied social covenant with religious minorities in Pakistan.”[7] The apex Court further stated: “Protecting the freedom of religious belief and practice of all communities was indeed the predominant right asserted in several propositions and resolutions passed by the All India Muslim League (AIML). Despite the fact that members of the AIML were being strongly influenced by secular liberal thought, the idealogy underlying the Pakistan Movement was the creation of a separate nation-state for the protection of the interests of the Muslim minority in India. However, these freedoms were not limited to protecting the Muslim minority but all religious minorities. One of the famous Fourteen Points enumerated by Mohammad Ali Jinnah on proposed constitutional changes was that ‘full religious liberty, i.e., liberty of belief, worship and observance, propaganda, association, and education shall be guaranteed to all communities.’[8] Furthermore, ‘adequate, effective and mandatory safeguards should be specifically provided in the Constitution for minorities in these units and the regions for the protection of their religious, cultural, economic, political, administrative and other rights and interests in consultation with them’ as stated in the Resolution adopted by the 27th Annual Session of the AIML at Lahore on 22-24 March 1940, which we now celebrate as Pakistan Day. Thus, the very genesis of our country is grounded in the protection of the religious rights of all, especially those of minorities.”

1. It is the function of the Local Government to register births, deaths, marriages, and divorces and issue certificates in respect thereof. Under section 51(2)(x) of the Punjab Local Government Act, 2013, the Municipal Committees were charged with this duty. The Punjab Local Government Act, 2019 (read with the Third and Fourth Schedules), the Metropolitan Corporations, Municipal Corporations, Municipal Committees, and the Town Committees performed this function. And now, under section 33(1)(j) of the recently-enacted PLGA 2022, it is the mandate of the Union Council. At this stage, it is pertinent to mention that Section 21 of the National Database and Registration Authority Ordinance, 2000, ordains that the marriage or divorce of a citizen should be reported to NADRA.

2. Section 202 of PLGA 2022 empowers the Government to make rules for carrying out the purposes of the said Act. However, it has not framed any rules for the registration of divorces of minorities in general and the Christian community in particular and the issuance of divorce certificates. The local governments have also not made any bye-laws in this regard in terms of section 203.

3. The Petitioner is not the only person who has complained of non-issuance of a divorce certificate by a Union Council. This is a general issue that the Christian community is facing. This Court considers that rules/bye-laws under Sections 202/203 of the PLGA 2022 are necessary to meet the situation. Accordingly, the Government of the Punjab is directed to frame the requisite rules and issue

notifications and letters, etc., within 90 days from the date of announcement of this judgment.

1. During the proceedings, it has been brought to the notice of this Court that NADRA’s Registration Policy dated 06.04.2021 (Version 5.0.2) allows a change of marital status of a divorcee on the basis of an affidavit in the prescribed form. Until the Provincial Government frames rules as directed above, NADRA shall accommodate the Christian community in accordance with the Registration Policy.

2. In view of the above, the Petitioner is directed to re-apply to NADRA for the issuance of CNIC and submit her affidavit in the prescribed form along with a certified copy of the Civil Court’s judgment and decree dated 01.02.2018. NADRA shall process her application in accordance with the law and the Registration Policy dated 06.04.2021.

3. This petition is disposed of with the above directions.

(K.Q.B.) Petition disposed of

[1]. Theodore McCombs et.al., Right to Identity (2007). Available at: https://scm.oas.org/pdf/2007/CP19277.pdf.

[2]. ibid.

[3]. ibid.

[4]. The Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption (1993).

[5]. United Nations Strategy for Legal Identity for All. Available at: https://unstats.un.org/Legal-identityagenda/documents/Un-Strategy-for-LIA.pdf.

[6]. Suo Motu actions regarding suicide bomb attack of 22-09-2013 on the Church in Peshawar and regarding threats being given to Kalash tribe and Ismailies in Chitral.

[7]. Tayyab Mahmud, Freedom of Religion and Religious Minorities in Pakistan: A Study of Judicial Practice, Fordham International Law Journal, 19.1 (1995), p.51.

[8]. Point No. 7.

PLJ 2023 Lahore 485 [Multan Bench, Multan]

Present: Ahmad Nadeem Arshad, J.

GHULAM MUSTAFA, etc.--Appellants

versus

MUHAMMAD MUSHARAF HUSSAIN, etc.--Respondents

R.F.A. No. 104 OF 2015, decided on 28.9.2022.

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

----S. 96, O.XXXVII, Rr. 1 & 2--National Saving Deposit Accounts Rules 1974, R. 7--Suit for recovery--Decreed--Deniel of amount borrowed by deceased father--No cheque was issued--Withdrawal slip--Suit was not filed against deceased father of appellant--Filing of suit after death of appellant’s father--Withdrawl slip was not signed by legal heirs of deceased--Withdrawal slip was not dishonored--Question of whether document relied upon by plaintiff is negotiable instruments in shape of bill of exchange, Hundi or Promissory note and is triable by same proposition of law or not--Suit was not instituted against deceased by whom withdrawal slip was allegedly attributed to be issued/drawn as he had been died at that time and suit was instituted against his legal representatives after his death--Legal representatives of deceased did not sign withdrawal slip, they were not liable for payment of said cheque--Respondent No. 1 did not mention that he presented withdrawal slip before National Saving Center Muzaffargarh--If withdrawal slip was given to Respondent No. 1 on date of advancement of loan then why deceased did not incorporate date on said withdrawal slip--Findings of Trial Court upon issues No. 1 & 2 are not sustainable and liable to be reversed being against facts & law--Withdrawal slip is not a negotiable instrument as defined in Act, 1881-- Withdrawal of amount--It is for account holder to withdraw amount either personally or through agent or through banking clearing house or any other channel but nowhere in said withdrawal slip it was mentioned that through this slip Saving Center is directed to pay specified amount to anyone else--Appeal allowed. [Pp. 490, 491, 492, 493 & 495] C, D, E, F, G & H

2015 CLD 307, 2022 CLD 900, 2016 CLC 937 ref.

Negotiable Instruments Act, 1881 (XXVI of 1881)--

----S. 6--Cheque--Cheque is in nature of an order from accountholder to bank directing it to pay specified amount out of his account.

[P. 489] A

National Saving Deposit Accounts Rules, 1974--

----R. 4--Withdrawal slip--The depositor will be assigned an account number and will be given a slip in Form DA-2 acknowledging amount deposited--The depositor will also be issued a Withdrawal Slip Book containing 10 slips (D.A-4) and a passbook simultaneously or if first deposit has been made wholly through a cheque on clearance of a cheque. [P. 489] B

Mr. Shahzad Saleem Khan Balouch, Advocate for Appellants.

Mr. Muhammad Khurram Javed, Advocate for Respondent No. 1.

Dates of hearing: 15.9.2022.

Judgment

Through this Regular First Appeal, appellants have called into question the validity and propriety of judgment & decree dated 25.04.2015 whereby suit of Respondent No. 1 for recovery of Rs. 95,00,000/-under Order XXXVII Rule 1 & 2 of the Code of Civil Procedure, 1908 (CPC), was decreed.

1. Pithily, necessary facts forming background of proceedings in hand are that Respondent No. 1/plaintiff (hereinafter referred to as Respondent No. 1) instituted a suit for recovery of Rs. 95,00,000/-against the appellants and Respondents No. 2 to 8 under Order XXXVII Rule 1 & 2 CPC by contending that there were cordial relations between Respondent No. 1 and deceased Ghulam Mustafa and on latter’s desire he contracted marriage with Samina Batool alias Samiya Batool (allegedly adopted daughter of deceased Ghulam Mustafa). He further asserted that deceased Ghulam Mustafa, who was a businessman, borrowed an amount of Rs. 95,00,000/-from him for business with the promise to give monthly profit of Rs. 2,00,000/-which was given by him on 14.02.2010 in presence of witnesses and in lieu thereof deceased Ghulam Mustafa issued a cheque No. XC322939 of his account No. 5715 at National Savings Center Muzafargarh; that Ghulam Mustafa passed away on 10.07.2010 due to heart failure; that said Ghulam Mustafa belonged to Jafaria sect, hence, his estate devolved upon Defendants No. 1 to 03 who promised to return the amount borrowed by deceased after selling his estate but despite repeated demands they adopted delaying tactics and finally refused to pay the amount. Hence, the Respondent No. 1 was constrained to institute the suit.

2. On the other hand, appellants/Defendants No. 1 to 03 (hereinafter referred to as appellants) hotly contested the suit by filing written statement in contrast whereby they raised certain legal as well as factual objections. On legal side, they contended that Respondent No. 1 has no cause of action and approached the Court with unclean hands and filed a false & frivolous suit just to harass and blackmail the appellants which is liable to be dismissed with special costs u/S. 35-A of CPC. Further added that the instrument on the basis of which suit has been filed is not a cheque, hence, the Court has no jurisdiction to try the matter. On factual side, appellants denied the averments of plaint by pleading that neither any amount was borrowed by deceased Ghulam Mustafa from the Respondent No. 1 nor he issued the alleged cheque to the Respondent No. 1. Further asserted that the suit has been filed on the basis of a withdrawal slip which is not a negotiable instrument rather the same is meant to withdraw profit from the National Saving Center.

3. Learned Trial Court framed following issues out of the divergent pleadings of the parties:

ISSUES

1. Whether the plaintiff has no cause of action to file the suit? OPD

2. Whether this Court has no jurisdiction to entertain the suit, because, disputed documents is not cheque? OPD

3. Whether the plaintiff did no approach the Court with clean hands, hence he is not entitled for any relief? OPD

4. Whether Ghulam Mustafa, predecessor in interest of the defendants belonged to shia sect and defendant No. 3 did no inherit the legacy of Ghulam Mustafa, hence, she is not bound to fulfill the obligation of said Ghulam Mustafa? OP defendant No. 3

5. Whether the defendants are entitled of special costs under Section 35-A CPC? OPD

6. Whether the disputed cheque is forged fictitious, collusive and illegal? OPD

7. Whether the plaintiff is entitled to the relief as prayed for? OPP

8. Relief.

9. After framing of issues, trial Court invited the parties to adduce their respective evidence, recorded their evidence pro & contra, provided opportunity of hearing and then decreed the suit of Respondent No. 1 via judgment & decree dated 25.04.2015 (hereinafter referred as impugned judgment & decree).

10. Learned counsel appearing on behalf of appellants inter-alia contends that impugned judgment & decree is against the facts & law as well as result of mis-reading/non-reading of the evidence available on record; that Respondent No. 1 miserably failed to prove his suit but learned Trial Court decreed the suit; that deceased Ghulam Mustafa was not a businessman rather he was a class-IV employee; that the suit was not maintainable as the withdrawal slip is not a negotiable instrument, hence, the Court had no jurisdiction to try the matter.

11. Contrarily, learned counsel for the Respondent No. 1 opposed the appeal with vehemence and prayed for its dismissal by adding that there is nothing wrong with the impugned judgment & decree and same has been passed by the Court after due appreciation of the evidence available on record.

12. I have heard learned counsel for the parties at length and perused the record with their able assistance.

13. Appellants questioned the maintainability of the suit on the ground that it does not disclose any cause of action and also raised objection with regard to jurisdiction of the Court. Learned Trial Court, keeping in view the objections of the appellants, framed issues No. 1 & 2 as follows:

14. Whether the plaintiff has no cause of action to file the suit? OPD

15. Whether this Court has no jurisdiction to entertain the suit, because, disputed documents is not cheque? OPD

The main grievance of the appellants was that Respondent No. 1 instituted suit for recovery under Order XXXVII Rule 1, & 2 C.P.C. as summary suit on the basis of alleged cheque allegedly issued by Ghulam Mustafa deceased by treating it a negotiable instrument and produced said alleged cheque as Exh.P.1 which is not a cheque rather “withdrawal slip” issued by National Saving Center and claimed that this slip does not fall within the definition of cheque as defined in Negotiable Instruments Act, 1881 (hereinafter referred to as the Act, 1881).

Section 06 of the Act, 1881 defines a cheque as under:

“Cheque”, a “cheque” is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand.

In appendix-I forms of negotiable instruments, the form of cheque is given as under:

No……. Date………

To

AB, etc. (Bank)

Pay to EF,………… bearer

Or _______ ..... Rupees ….. only, value received order

.......

Rs…….. CD (Drawer)

From perusal of definition and the form supra, it appears that cheque is in the nature of an order from the accountholder to the bank directing it to pay the specified amount out of his account.

Whereas, Rule 04 of the “National Saving Deposit Accounts Rules, 1974”, (hereinafter referred to as Rules) defines the issuance of withdrawal slip book as under:

1. “The depositor will be assigned an account number and will be given a slip in Form DA-2 acknowledging the amount deposited. The depositor will also be issued a Withdrawal Slip Book containing 10 slips (D.A-4) and a passbook simultaneously or if the first deposit has been made wholly through a cheque on the clearance of a cheque.”

Rule 7 prescribes the procedure for withdrawal of amount in the following terms:

1. “The customer can withdraw money by submitting the signed withdrawal or acknowledgment slip (Form D.A-4) personally or through agent or through banking clearing house or any other channel authorized by CDNS for the purpose …….”

From perusal of withdrawal slip (Exh.P.1), it appears that line one is with regard to the name, line two is with regard to sum and it does not contain any direction to the Saving Center to pay an amount specific in the line No. 2 to a person holding said withdrawal slip. Keeping in view Rules and withdrawal slip, it can be safely drawn that it is for the account holder to withdraw amount either personally or through agent or through banking clearing house or any other channel but nowhere in the said withdrawal slip it was mentioned that through this slip the Saving Center is directed to pay the specified amount to anyone else. The sole purpose of issuing withdrawal slip by the National Saving Center is to withdraw the amount deposited by the accountholder and the profit/interest deposited by the Saving Center.

1. Negotiable instrument defined in Section 13 of the Act, 1881 which reads as under:

2. “Negotiable instrument”.(1) A negotiable instrument means a promissory note, bill of exchange or cheque payable either, to order or to bearer.

Explanation (I). A promissory note, bill of exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person, and does not contain words prohibiting, transfer or indicating an intention that it shall not be transferable.

Explanation (II). A promissory note, bill of exchange or cheque is payable to bearer which, is expressed to be so payable or on which the only or last endorsement is an endorsement in blank.

Explanation (III). A promissory note, bill of exchange or cheque, either originally or by endorsement, is expressed, to be payable to the order of a specified person, and not to him or his order it is nevertheless payable to him or his order at his option.

(2) A negotiable instrument may be made payable to two more payees jointly, or it may be made payable in the alternative to one of two, or one or some of several payees.

Under the definition, a negotiable instrument means a promissory note, bill of exchange or cheque payable either to order or to bearer, and a promissory note, bill of exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person and does not contain words prohibiting, transfer or indicating an intention that it shall not be transferrable. Whenever a question arises as to whether or not a document in an original language is negotiable instrument, the point will have to be decided not by looking to the definition of negotiable instrument, but independently of its provisions. The Court will find out how such instrument has been treated in the past and if it appears that according to usage or custom such instruments have been treated as negotiable instruments then they will be treated as such. From perusal of the Rules, Act, 1881 and withdrawal slip in juxtaposition it appears that said withdrawal slip does not amount to negotiable instrument.

1. Under Order XXXVII, Rule 2 C.P.C. all suits upon bill of exchange, Hundis, or promisor notes, may, in case the plaintiff desires to proceed hereunder be instituted by presenting a plaint in the forum prescribed. The question arises that whether the document relied upon by plaintiff is negotiable instrument in the shape of bill of exchange, Hundi or promissory note and is triable by the same provision of law or not. For the said purpose, the contents of the deed is material to be taken into consideration. If the contents of the deed fall in the definition of Section 13 of the Act, 1881, then the plaintiff has option to file the suit in the ordinary Court of civil jurisdiction or in the special Court exercising the powers vested in them under Order XXXVII C.P.C. As discussed above, the withdrawal slip does not fall within the definition of negotiable instrument, therefore, Respondent No. 1’s suit is not maintainable.

2. Admittedly, suit was not instituted against Ghulam Mustafa by whom the withdrawal slip was allegedly attributed to be issued/drawn as he had been died at that time and suit was instituted against his legal representatives after his death. It is a settled principle of law that where the claim in the suit was based on bill of exchange, hundi, promissory note or instrument drawn by the bank as required under Order XXXVII Rule 2 (1) CPC, the same was condition precedent for bringing a suit under summary chapter against a person who was drawer of instrument mentioned in Order XXXVII, Rule 2 (1) CPC. Suit under the summary chapter could only be filed against the drawer of an instrument and not against any other person. The maker/drawer of withdrawal slip, Ghulam Mustafa (deceased) had died before the institution of the suit. For a moment, if the withdrawal slip is presumed to be a cheque, the said cheque thus ceased to have any effect as a negotiable instrument on the death of its maker. The legal representatives of the deceased did not sign the withdrawal slip (Exh.P.1), therefore, they were not liable for the payment of said cheque. They are only liable if they signed their name and expressly limits their liability to the extent of the assets received by them as such. In this regard, the provisions of Sections 29 & 29-A of the Act, 1881 have direct relevance which are reproduced as under:

3. Liability of legal representative signing--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.

29A. Signature essential to liability.--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 thereon as if he had signed it in his own name.

This Court while deciding a question 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 cheque concluded this crucial question in a case titled as “Muhammad Abaid Ullah v. Attique-ur-Rahman and 08 others” ( 2015 CLD 307 = 2015 CLC 641) in the following terms:

“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.”

Similar view was also expressed by this Court in “Bushra Bibi & Others v. Additional District Judge & Others (2022 CLD 900), as under:

“There remains no doubt that defendants/petitioners who are neither makers, drawers or endorsers nor acceptors of cheque and even presentation for encashment and dishonoring of the alleged cheque during lifetime of Muhammad Yousaf/predecessor-in-interest of defendants/petitioner cannot legally authorize plaintiff/Respondent No. 2 to institute suit under Order XXXVII, Rule 2 C.P.C. against present petitioners/defendants/successors-in-interest of the deceased Muhammad Yousaf, hence, suit was not maintainable before trial Court.”

1. Another crucial fact is that whether said withdrawal slip was presented before the National Saving Center for its encashment? Perusal of plaint it appears that Respondent No. 1 did not mention that he presented said withdrawal slip before National Saving Center Muzaffargarh. During cross-examination, P.W.1/Respondent No. 1 admitted that he did not present Exh.P.1 for encashment. Exact deposition is as under:

"میں نے ExP-1 کو کبھی بھی Encashment کیلئے متعلقہ بنک میں یا NSC مظفر گڑھ میں پیش نہ کیا ہے۔"

He further deposed as under:

"میں Exp-1 کو لیکر کبھی نیشنل سیونگ سینٹر نہیں گیا۔"

As such, the withdrawal slip was never dishonored. For filing of a suit under Order XXXVII CPC on the basis of a cheque, it is necessary for the plaintiff to present the cheque to the bank for its dishonor in order to accrue cause of action to him against the drawer of the cheque. If a cheque is not presented to the bank for its payment, the procedure provided for in order XXXVII CPC shall not be available to a person holding the cheque and the suit so instituted shall not be maintainable. The reason is not hard to fathom as in the absence of presentment of the cheque before the bank, it shall remain at best a piece of evidence corroborating the original loan transaction but did not provide any cause of action. Section 30 of the Act, 1881, defines the liability of drawer in the following terms:

“30. Liability of drawer.--(1) (a) The drawer of a bill of exchange by drawing it, engages that on due presentment it shall be accepted and paid according to its tenor, and that it be dishonoured, he will compensate the holder or any endorser who is compelled to pay it, and

(b) the drawer of a cheque by drawing it, engages that in the case of dishonour by the drawee he will compensate the holder; Provided that due notice of dishonour of the bill or cheque has been given to or received by the drawer as hereinafter provided.

(2) The drawee of a bill of exchange is not liable thereon until acceptance in the manner provided by this Act.”

This Court in a case titled “Khalifa Azhar Mumtaz v. Ghulam Akbar (2014 CLD 995), observed as under:

“Admittedly, the cheque was never presented in the bank for payment. When the cheque was never presented for payment, in the light of Section 72 read with Section 84 of Negotiable Instrument Act (XXVI) of 1881, therefore, there is no refusal by the drawer or the bank for payment of cheque, therefore, no cause of action accrued to the plaintiff for filing of suit under Order XXXVII of the C.P.C.”

Further held that:

“It clearly reveals that cheque is only payable on demand and cause of action arose only when such demand is not honored. When there is no demand and there is no question of dishonor of demand, therefore, on this view of the matter also the suit was not maintainable.”

This Court while explaining the said situation in a case titled as “Zahoor Ahmad v. Master Mushtaq Ahmad” (2016 CLC 937) held as under:

“The various provisions of the Negotiable Instruments Act dealing with presentment clearly bring out the facts that unless a cheque is presented for payment, the drawer of the cheque will be absolved from liability. In other words, the presentment of a cheque is a condition precedent in order for a payee to charge the drawer/maker of a cheque. It is thus evident that for filing of a suit under Order XXXVII, C.P.C. based on a cheque, it is necessary to present that said cheque to the bank. Admittedly, the 16 cheques allegedly given by the appellant-defendant were not presented for payment. The suits under Order XXXVII, C.P.C., therefore, were not maintainable before the Additional District Judge. It may again be emphasized that the tenor of the plaint showed that the respondent-plaintiff had relied solely upon the cheques to agitate his cause of action against the appellant-defendant.”

1. Another fact is also very important that Respondent No. 1 interpolated the withdrawal slip by inserting date on it as 14.05.2011. That fact was also admitted by Respondent No. 1 himself during cross-examination while recording his statement as P.W.1. The exact deposition is as under:

"Exh.P.1 کے تمام اندر اجات ماسوائے تاریخ کے متوفی کے اپنے قلمی ہیں جبکہ اس پر تاریخ میں نے بعد میں ڈالی ہے۔ میں نے ExP-1 میں درج تاریخ 14.5.20211 کو ہی تحریر کی تھی۔ میں نے ExP-1 پر 14.5.11 کی تاریخ 14.5.11 کو اس دعویٰ کی دائری کے لئے ڈالی تھی۔"

The Respondent No. 1, during cross-examination, further deposed that the said withdrawal slip was given to him at the time of advancement of the loan. The exact deposition of P.W.1 is as under:

"رقم کا لین دین 14.2.10 کو تقریبا 12 بجے دن ہوا تھا۔ متوفی نے متدعویہ رقم کی مبینہ وصولی کے بعد اسی وقت مجھے چیک ExP-1 دیا تھا۔"

If the withdrawal slip was given to Respondent No. 1 on the date of advancement of loan then why deceased did not incorporate the date on the said withdrawal slip.

From the perusal of plaint, it is evident that drawer Ghulam Mustafa s/o Muhammad Ramzan died on 10.07.2010. It seems that after the death of Ghulam Mustafa deceased, Respondent No. 1 got the withdrawal slip with the help of the relatives who were living with deceased and were not entitled for any share from his legacy according to rule of succession set-forth by Jaferia sect and then manipulated it by inserting a date after the death of drawer and used it for instituting the suit.

1. In view of above discussion, I have reached to irresistible conclusion that findings of the learned Trial Court upon issues No. 1 & 2 are not sustainable and liable to be reversed being against the facts & law. The suit filed by Respondent No. 1 under summary procedure of Order XXXVII Rule 1 & 2 C.P.C. against the appellants/defendants/ successors in interest of the deceased Ghulam Mustafa was not maintainable before the Trial Court. Moreover, it has also been held that the withdrawal slip is not a negotiable instrument as defined in the Act, 1881. Hence, the same are accordingly reversed. Therefore, there is no need to discuss the other merits of the case as this Court has concluded that the suit of Respondent No. 1 was not maintainable.

2. For the foregoing reasons, this appeal is allowed. Consequently, impugned judgment & decree of learned Trial Court dated 25.04.2015 is set aside. Record of learned Trial Court alongwith copy of this judgment be sent back immediately. Learned Trial Court is directed to return the plaint in the suit titled “Muhammad Musharaf Hussain Vs. Ghulam Mustafa through LRs” to the Respondent No. 1/plaintiff under Order VII, Rule 10 C.P.C. for filing before the appropriate forum as neither the successors in interest of the maker

can be sued under Order XXXVII Rule 2 C.P.C. nor the withdrawal slip falls within the definition of negotiable instruments. Parties are directed to appear before the learned District Judge, Muzaffargarh for further proceedings on 10.10.2022. No order as to cost.

(Y.A.) Appeal allowed

PLJ 2023 Lahore 496 [Multan Bench Multan]

Present: Faisal Zaman Khan, J.

AHSAN NAWAZ--Petitioner

versus

JUDGE FAMILY COURT, etc.--Respondents

W.P. No. 355 of 2023, heard on 15.3.2023.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Muslim Family Laws Ordinance, (VIII of 1961), Ss. 9 & 10--Suit for recovery of maintenance allowance and dower--Decreed to extent of maintenance allowance--Rukhsati--Nikah was solmnized--Petitioner was neither asking Rukhsati nor was performing his martial obligations--Onus to prove--Where a husband fails to maintain his wife, she in addition to seeking other legal remedies can also seek maintenance allowance--It shall not be out of place to mention here that no condition of Rukhasti or consummation of marriage has been mentioned therein--It has been held that claim of maintenance by wife is not conditional with Rukhsati--Conduct of spouses will be of utmost importance while granting a claim of maintenance--Nikah was solemnized between spouses petitioner was not taking any further action, as he neither was asking for Rukhsati, nor was performing his marital obligations/conjugal rights despite fact that Respondents No. 2 was willing to do same, thus, due to delinquency on part of petitioner, she became entitled to maintenance allowance, hence she rightly filed suit seeking maintenance allowance--It was imperative for petitioner to have proved that he was not at fault--No evidence, has been produced by petitioner wherefrom this could be ascertained that he has been making efforts to seek Rukhsati--Delinquency as to not seeking Rukhsati or not performing marital obligations is on part of petitioner as Respondents No. 2 was ready and willing to perform her marital obligations/conjugal rights being lawfully wedded wife of petitioner, thus, she has rightly been held entitled to maintenance allowance--Instead of approaching a Court of law for seeking performance of conjugal rights, he without any reason and after two years of Nikah divorced Respondents No. 3--Petition dismissed. [Pp. 498 & 499] A, B, C, D, E, F & G

1989 SCMR 119 2020 YLR 1586, 2017 YLR 2349, 1991 CLC 1142, PLD 2022 SC 686 ref.

Mahar Ghulam Shabbir Aaheer, Advocate for Petitioner.

Mr. M. Shakeel Anjum, Advocate for Respondents.

Date of hearing: 15.3.2023.

Judgment

Through this petition, judgment and decree dated 18.10.2022 passed by Respondents No. 1 has been assailed, by virtue of which a suit for recovery of maintenance allowance and dower filed by Respondents No. 2 against the petitioner has been decreed to the extent of maintenance allowance.

1. Facts giving rise to the present petition are that Nikah between the petitioner and Respondents No. 2 was solemnized on 30.01.2018, however, the Rukhsati never took place. Since the Petitioner Neither endeavored to ask for Rukhsati nor performed his marital obligations/conjugal rights for a long time, therefore, a suit for recovery of maintenance allowance and dower was filed by Respondents No. 2 against the petitioner in which the latter filed his written statement. Out of divergent pleadings of the parties, 04 issues were framed, evidence pro and contra was led, whereafter, through judgment and decree dated 18.10.2022 the suit was decreed to the extent of maintenance allowance, therefore, this petition.

2. Learned counsel for the petitioner submits that since marriage between the spouses was not consummated as no Rukhsati had taken place, therefore, Respondents No. 2 was not entitled to any maintenance allowance.

3. Replying to the above, learned counsel for Respondents No. 2 supports the impugned judgment and decree.

4. Arguments heard. Record perused.

5. The question which requires determination by this Court is that where a Nikah between the spouses has been performed, however, the marriage is not consummated as the Rukhsati has not taken place, in such an eventuality, whether a wife is entitled to maintenance allowance?

6. Under Section 5 of the Muslim Family Laws Ordinance 1961 (Ordinance), every marriage solemnized under the Act has to be registered and once a man and a woman enters into a marital bond they become HUSBAND and WIFE. Section 9 of the Ordinance spells out that where a HUSBAND fails to maintain his WIFE, she in addition to seeking other legal remedies (as contemplated in West Pakistan Family Courts Act 1964) can also seek maintenance allowance. It shall not be out of place to mention here that no condition of Rukhasti or consummation of marriage has been mentioned therein.

7. Section 9 of the Ordinance has been interpreted by the Supreme Court of Pakistan in judgment reported as “Muhammad Najeeb v. Mst. Talat Shahnaz and others” (1989 SCMR 119) wherein it has been held that for the purposes of recovery of maintenance allowance, the said provision makes reference to a HUSBAND and a WIFE and does not refer to the fact that whether marriage between them has been consummated or Rukhsati has taken place.

8. While further elaborating the above concept in judgments reported as “Muhammad Arif v. Additional Sessions Judge-VIII, Karachi West and 2 others “ (2020 YLR 1586) and “Khudai Noor v. District Judge, Pishin and 2 others” (2017 YLR 2349) and “Mst. Shamim Akhtar v. Additional District Judge, Sialkot and another” (1991 CLC 1142), it has been held that the claim of maintenance by the WIFE is not conditional with the RUKHSATI or CONSUMATION of marriage. It has also been elaborated that in such circumstances the conduct of the spouses will be of utmost importance while granting a claim of maintenance.

9. In a latest judgment passed by the Supreme Court of Pakistan reported as Haseen Ullah v. Mst. Naheed Begum and others (PLD 2022 SC 686), in Paragraph No. 7 it has been held as follows:

“A wife who is willing to, but cannot, discharge her marital obligations for no fault of her own, rather is prevented to do so by any act or omission of her husband is legally entitled to receive her due maintenance from her husband, and the latter cannot benefit from his own wrong.”

1. Keeping the above in view, a perusal of the plaint would show that Nikah was solemnized between the spouses on 30.01.2018, however, since the petitioner was not taking any further action, as he neither was asking for Rukhsati, nor was performing his marital obligations/conjugal rights despite the fact that Respondents No. 2 was willing to do the same, thus, due to delinquency on part of the

petitioner, she became entitled to maintenance allowance, hence she rightly filed the suit on 15.07.2021 seeking maintenance allowance.

1. Oppose to the above, as per written statement filed by the petitioner delay caused in Rukhsati has been attributed to the family of Respondents No. 2.

2. In the above backdrop, since it was imperative for the petitioner to have proved that he was not at fault as it was his contention that it was the parents of Respondents No. 2 who had been delaying the Rukhsati, hence the onus to prove the same was on him, however, a further perusal of the available record would show that no evidence, whatsoever, has been produced by the petitioner wherefrom this could be ascertained that he has been making efforts to seek Rukhsati or to perform the marital obligations/conjugal rights.

3. In view of the above factual matrix, it is clear and obvious that the delinquency as to not seeking Rukhsati or not performing the marital obligations/conjugal rights is on part of the petitioner as Respondents No. 2 was ready and willing to perform her marital obligations/conjugal rights being the lawfully wedded wife of the petitioner, thus, she has rightly been held entitled to maintenance allowance from the period when the Nikah was solemnized.

4. Another aspect which further weakens the stance of the petitioner is that instead of approaching a Court of law for seeking performance of conjugal rights, he without any reason and after two years of Nikah divorced Respondents No. 3 on 18.12.2020.

5. For what has been discussed above, since the learned counsel for the petitioner has not been able to highlight any jurisdictional defect or procedural impropriety in the impugned judgment and decree, therefore, 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 2023 Lahore 499 (DB)

Present: Muhammad Sajid Mehmood Sethi and Jawad Hassan, JJ.

HUMAIRA MEHBOOB--Appellant

versus

SUMMIT BANK LIMITED etc.--Respondents

E.F.A. No. 20277 of 2023, decided on 27.3.2023.

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

----Ss. 9, 22--Execution proceedings--Suit for recovery--Submission of evaluation report--Appellant was provided opportunity for filing of objections on evaluation report--Non-filing of objections--Fixation of recovery price by Banking Court--determination of value of property--Safeguard against property--Execution proceedings are underway since year 2014 and Appellant was well aware about it but she knowingly did not file objections at relevant time rather same were filed belatedly as is evident from order sheet attached with record so she is estopped from her own conduct-- Appellant, while relying upon her evaluation report, has invited this Court to disregard report prepared by “Evaluator”--The contention so raised cannot be accepted--Reserve price was fixed by “Banking Court” based on report of “Evaluator” hence it ensures reasonableness, fairness and otherwise promotes transparency whereas mere bald assertion of inadequacy of reserve price fixed by a private evaluator not appointed by Court is per se no ground to re-fix reserve price especially when no substantial injury was otherwise caused--Determination of value of any property is always subjective and opinions in this regard differ--Reserve price of a property is always based on a tentative estimate, therefore, appears to be correct--A judgment debtor cannot be allowed to derail auction process by submitting evaluation report prepared at his instance instead of arranging a buyer for properties to be auctioned--Condition of confirmation of sale by Court also operates as a biggest safeguard against property which has been sold at inadequate price irrespective of fact whether any irregularity or fraud in conduct of sale has been committed or not--Banking Court rightly dismissed application of Appellant and do not see any illegality or perversity in impugned orders which have been passed strictly in accordance with law, as such do not warrant any interference by us--Appeal dismissed. [Pp. 501, 502, 503] A, B, C, D, E & F

PLD 2015 SC 212, 2023 CLD 85 & 2021 CLD 1212 ref.

Sh. Imran Mohammad Naeem, Advocate for Appellant.

Date of hearing: 27.3.2023.

Order

This appeal in terms of Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter to be referred as the “Ordinance”) arising out of execution proceedings calls in question the vires of order dated 13.03.2023 whereby learned Judge Banking Court-VI, Lahore (the “Banking Court”) proceeded to dismiss the application filed by the Appellant. She also challenges order dated 09.02.2023 regarding fixation of reserve price of the mortgaged property.

1. Learned counsel for the Appellant inter alia submitted that the Banking Court has not taken into consideration the true facts and circumstances of the case while dismissing the application of the Appellant; that the Banking Court has not taken into consideration the fact that value of the mortgaged property sought to be auctioned is much more than what has been assessed by the Masud Associates Pvt. Limited i.e. assessed market value as Rs. 50,276,563/-and forced sale value as Rs. 40,221,250/-; that the Appellant has got the mortgaged property evaluated from Diamond Surveyors Pakistan which has assessed the market value thereof to be Rs. 151,650,000/-and forced sale value as Rs. 128,902,500/-.

2. We have heard the arguments and perused the record.

3. It evinces from the record that an independent evaluator namely “Masud Associates Pvt Limited” (the ““Evaluator”) was appointed by the “Banking Court” vide order dated 20.01.2023. Vide order dated 27.01.2023, the “Banking Court” directed the Court auctioneer to contact the “Evaluator” to submit valuation report which he did on 03.02.2023 and vide the same order, the Appellant was provided an opportunity to file objections, if any, but she did not file and consequently, the “Banking Court” vide order dated 09.02.2023 fixed the reserved price of the mortgaged property in terms of the report of the “Evaluator” and where after the present application challenging the report was filed by the Appellant. The record does not show that at the time of filing this report, the Appellant has ever filed an objection while the “Banking Court” in order dated 13.03.2023 observed that “an opportunity was given to the judgment debtor for submission of objection on the valuation report but the judgment debtor has not filed the objection at that time and reserve price was fixed on 09.02.2023. The judgment debtor filed the objection petition at belated stage just to linger on execution proceedings”. Admittedly, execution proceedings are underway since year 2014 and the Appellant was well aware about it but she knowingly did not file objections at the relevant time rather the same were filed belatedly on 18.03.2023 as is evident from the order sheet attached with record so she is estopped from her own conduct. The Hon’ble Supreme Court of Pakistan in the case of “Dr. Muhammad Javaid Shafi versus Syed Rashid Arshad and others” (PLD 2015 SC 212) has held that “a person was estopped by his own conduct, if he though was aware of certain fact(s), which was likely to cause harm to his rights and adversely affect him and was prejudicial against him, avowedly or through some conspicuous act or by omission, intentionally permitted and allowed another person to believe a thing to be true and act on such belief without taking any steps to controvert or nullify such adverse fact and instead he slept over the matter. Such waiver or estoppel may arise from mere silence or inaction or even inconsistent conduct of a person”.

4. The counsel for the Appellant strenuously argued before us about fixation of reserve price by the “Banking Court” on lesser side based on report submitted by the “Evaluator”. It is pertinent to mention here that the amendment brought about by Lahore High Court in Order XXI Rule 66 CPC, which added a proviso to sub-rule (2)(e). It reads as under:

“Provided that it shall not be necessary for the Court itself to give its own estimate of the value of the property; but the proclamation shall include the estimate, if any, given by either or both of the parties”.

6 Pertinently, fixing the value of the property is a matter of opinion, and the Court cannot give its opinion on such a point. It appears that the object of the above proviso is to relieve the Court from the burden of affirming the accuracy of the value of the property shown in the proclamation of sale and to enable the prospective purchaser to form his own opinion relying upon the estimates given by the parties. After all, Order XXI Rule 66 (2) (e), CPC stipulates that the proclamation shall contain every other thing which the Court considers material for a purchaser to know in order to judge the nature and value of the property. Notwithstanding the afore-mentioned provision, with the availability and benefit of the evaluation reports from the PBA approved evaluators, the Courts do fix the reserve price of the properties being put to auction on the basis of the value placed therein. In the case in hand, the Appellant, while relying upon her evaluation report, has invited this Court to disregard the report prepared by the “Evaluator”. The contention so raised cannot be accepted. The fact that the evaluation report prepared under the instructions of the Appellant places higher price of the mortgaged property than the evaluation report, which the “Evaluator” prepared under the directions of the “Banking Court”, should not form basis for rejecting the latter report. The preference would always be given to evaluation report prepared under the orders of the Courts rather than a report which is prepared at the behest of a judgment debtor. In this case, the reserve price was fixed by the “Banking Court” based on the report of “Evaluator” hence it ensures reasonableness, fairness and otherwise promotes transparency whereas mere bald assertion of inadequacy of reserve price fixed by a private evaluator not appointed by the Court is per se no ground to re-fix the reserve price especially when no substantial injury was otherwise caused. Reliance is placed on “Al-Hadi Rice Mills (Pvt.) Ltd through Chief Executive and 4 others versus MCB Bank Limited and 6 others” (2023 CLD 85). It is not uncommon for the judgment debtors to prepare the evaluation report showing exaggerated value of the mortgaged properties in order to delay and frustrate the auction process. It may again be emphasized that evaluation report by the “Evaluator” was prepared under the orders of the “Banking Court” and, therefore, the selection is not between the evaluation reports of the contesting purchasers that the Court is merely accepting the value placed by one side as ipse dixit. It must also be kept in mind that determination of the value of any property is always subjective and opinions in this regard differ. The consistent view expressed by the Courts that the reserve price of a property is always based on a tentative estimate, therefore, appears to be correct. Notwithstanding the concern of the Courts to balance out the interests of both the judgment debtor as well as the decree holder, a transparent auction which is well advertised with competitors taking part in the bidding process is itself the biggest safeguard against collusion amongst the bidders and shall ensure that the final price received will largely be independent of the reserve price and reflect the best price that the property can obtain. Objections of such nature by the judgment debtors are always meant to delay the process of auction. Nothing stops a judgment debtor to locate and bring forward a buyer of his choice either in the auction or before the Court prior to the sale if the property is being sold for a price which in the estimation of the judgment debtor is on the lower side. For this very purpose Rule 83 Order 21, CPC has been enacted under which Court sales can be postponed to enable a judgment debtor for raising money through private sale of the property. A judgment debtor cannot be allowed to derail the auction process by submitting evaluation report prepared at his instance instead of arranging a buyer for the properties to be auctioned. It may further be added that the condition of confirmation of sale by the Court also operates as a biggest safeguard against the property which has been sold at inadequate price irrespective of the fact whether any irregularity or fraud in the conduct of the sale has been committed or not.

1. We, therefore, fully agree with the findings of the Banking Court which rightly dismissed the application of the Appellant and do not see any illegality or perversity in the impugned orders which have been passed strictly in accordance with law, as such do not warrant any interference by us. Since the appeal is at limine stage and it can be dismissed by applying doctrine of “Limine Control” in the light of case “M/s Colony Textile Mills Limited and another versus First Punjab

Modaraba” (2021 CLD 1212). Consequently, the Appeal in hand, being devoid of any merit, is hereby dismissed in limine.

(Y.A.) Appeal dismissed

PLJ 2023 Lahore 504 (DB)

Present: Muhammad Sajid Mehmood Sethi and Jawad Hassan, JJ.

COMMISSIONER INLAND REVENUE, ZONE-II, LTU, LAHORE--Applicant

versus

M/s. SHEZAN INTERNATIONAL LTD., LAHORE--Respondent

PTR No. 147 of 2013, heard on 29.3.2023.

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

----Ss. 21(k), 37, 120 & 133--Public limited company--Filing of income tax return--Addition was made in capital gain tax by appellant--Appeal--Deposed of--Addition of lease rentals and vehicles was deleted--Challenge to--Appeal was disposed of--Merger of subsidiary company into respondent company--No financial transaction between merging companies--Non-involvement of any cash payment--Amalgamation of wholly owned subsidiary company--Liability to capital gain tax--Challenge to--It is well-settled that merger of two or more companies is essentially a process of corporate reconstruction whereby assets of merging companies were either clubbed or brought together in surviving or new company, however, proprietary rights of assets remained intact. No financial transaction could be said to have taken place between merging companies--A merger does not give rise to any financial transaction to create a taxable event and no cash payment is involved in any manner. Amalgamation does not involve any sale or purchase and any surplus of value of shares issued by amalgamated company over value of one asset transferred does not result in any taxable gain--Amalgamation of wholly-owned subsidiary company with its parent company does not result in transfer for consideration and, does not give rise to any capital gains. The liability to capital gains tax can only be on transferor company which in instant case has lost its identity and ceased to exist--In case amalgamating company receives nothing but shareholders receive shares of amalgamated company, there is no question of capital gains in hands of amalgamating company since it is shareholders who receive consideration (if any)--Undoubtedly, when two companies amalgamate and merge into one, transferor-company loses its entity as it ceases to have its business--Legal Advisor for applicant-department has failed to point out any illegality or legal infirmity in order passed by Appellate Tribunal, which even otherwise is unexceptionable, thus, needs no interference--Reference rejected.

[Pp. 507, 508 & 509] A, B, C, D, E & F

135 ITR 456, (1983) 37 CTR Bom 212 & (1979) 119 ITR 399 1986 AIR 1218, 1986 SCR (2) 607.

Mr. Imran Rasool, Advocate for Applicant.

Mr. Hameed Bukhsh, Advocate for Respondent.

Date of hearing: 29.3.2023.

Judgment

Muhammad Sajid Mehmood Sethi, J.--Through instant Reference Application under Section 133 of the Income Tax Ordinance, 2001 (“the Ordinance of 2001”), following questions of law, urged to have arisen out of impugned order dated 04.12.2012, passed by learned Appellate Tribunal Inland Revenue, Lahore (“Appellate Tribunal”), have been proposed for our opinion:--

1. Whether on the facts and in the circumstances of the case, the learned Appellate Tribunal Inland Revenue was justified in deleting the addition made on account of capital gain tax under Section 37 of the Income Tax Ordinance?

2. Whether on the facts and in the circumstances of the case, the learned Appellate Tribunal Inland Revenue, without having any material before it for cross checking, is justified in holding that the addition covers the parameters of Section 97 of the Ordinance and delete the addition without making any comparison with them?

3. Brief facts of the case are that respondent-taxpayer, a public limited company, deriving income from manufacturing and sale of juices, pickles, jams, ketchups etc., filed income tax return for the tax year 2004 declaring income at Rs. 79,967,801/-, which was taken to be deemed assessment as per Section 120 of the Ordinance, however, it was found to be erroneous insofar as prejudicial to the interest of revenue. Consequently, the assessment was amended by putting in additions on account of capital gains under Section 37 of the Ordinance of 2001 thereby disallowing the expense on R&M of the vehicles. The respondent-taxpayer filed appeal before Commissioner (Appeals), who, vide order dated 13.06.2011, disposed of the appeal in the manner that addition made under Section 21(k) of the Ordinance was confirmed whereas addition of lease rentals & vehicle expenses at Rs. 828,735/- was deleted, and regarding donation, it was directed that credit of donation made to approved institutions may be allowed while calculating the tax liability of the taxpayer. Feeling aggrieved, respondent preferred second appeal before learned Appellate Tribunal, which was disposed of vide order dated 04.12.2012 and the addition of Rs. 99,640,500/-made by the Additional Commissioner Inland Revenue under Section 37 of the Ordinance of 2001, which was confirmed by the Commissioner (Appeals), was deleted being illegal and void ab-initio.

4. Learned Legal Advisor for applicant-department submits that learned Appellate Tribunal was not justified in deleting the addition made on account of capital gains under Section 37 of the Ordinance of 2001. He adds that without making any comparison, Appellate Tribunal has deleted the addition without having any material before it for the purpose of cross-checking in order to satisfy the parameters provided in Section 97 of the Ordinance ibid, which is absolutely without any legal justification.

5. Contrarily, learned counsel for respondent-taxpayer defends the impugned order by contending that merger of wholly owned subsidiary is fully covered under the provisions of Section 97 of the Ordinance of 2001, thus, no gain or loss shall be taken to arise on disposal of its assets.

6. Arguments heard. Available record perused.

7. Perusal of record reveals that respondent-company had a subsidiary company with the name and style of ‘M/s. Hattar Juices (Pvt.) Limited’, which was merged into respondent-company pursuant to Court’s order. The ACIR held that as per scheme of arrangement approved by the Board, ordinary shares of M/s. Hattar held legally or beneficially by respondent-company were cancelled and in lieu, all assets and liabilities of M/s. Hattar vested in M/s. Shezan International Ltd., Lahore, thus, disposal in terms of Section 75 took place as respondent parted with the ownership of those shares at that time. Commissioner (Appeals) while dealing with the issue of capital gains on merger, observed that the value of assets received in lieu of shares is the consideration received against the cancellation of shares, and that the respondent-company became the owner of assets of M/s. Hattar after scheme of amalgamation was affected. Whereas learned Appellate Tribunal held that the conditions enumerated in Section 97 of the Ordinance of 2001 were fully fulfilled, thus, Section 37 of the Ordinance was not attracted.

8. It is apparent that pursuant to this Court’s order dated 02.12.2003, passed in C.O. No. 65 of 2003, M/s. Hattar Fruit Products Limited merged into respondent-company under the scheme of arrangement for merger/amalgamation. It is well-settled that merger of two or more companies is essentially a process of corporate reconstruction whereby assets of merging companies were either clubbed or brought together in the surviving or new company, however, proprietary rights of assets remained intact. No financial transaction could be said to have taken place between the merging companies. As such in the scheme of merger arrangement, there does not take place any sale, disposition, exchange or relinquishment or extinguishment of any right on the part of the amalgamating companies that gives rise to any income or gain resulting in a taxable event. If upon merger, the net assets of the merging companies remain unaltered as also the proprietary interest of the shareholders in the amalgamated company remains the same, a corporate merger does not give rise to any taxable event.

9. A merger does not give rise to any financial transaction to create a taxable event and no cash payment is involved in any manner. Amalgamation does not involve any sale or purchase and any surplus of value of shares issued by the amalgamated company over the value of one asset transferred does not result in any taxable gain. Reliance is placed upon a judgment of Delhi High Court reported as CIT (Delhi) v. Bhahrat Development (Pvt.) Limited (135 ITR 456), which was subsequently upheld by the Supreme Court of India in a number of decisions.

10. While dealing with somewhat similar proposition, the Division Bench of Bombay High Court in judgment reported as Forbes Forbes Campbell and Company Ltd. v. Commissioner of Income-Tax [(1983) 37 CTR Bom 212], while referring to page 411 of the judgment of Calcutta High Court reported as Shaw Wallace & Co. Ltd. v. Commissioner of Income-Tax [(1979) 119 ITR 399], has observed as under:

“9. According to Banerji J. (p. 411):

“The entire capital and assets of the transferor-companies having vested in the assessee, as a result of the said amalgamations, the assessee became the sole owner of the capital of the transferor-companies. There was, therefore, no extinguishment of the right of the assessee in participating in the capital on the liquidation of the transferor-companies.

The assessee was a party to the said schemes of amalgamation and consented and agreed to the same whereunder, as noted earlier, no shares were to be issued to the assessee in lieu of or in exchange for the shares held by it in the transfer-companies. The shares held by the assessee in the transferor-companies represented the capital invested by the assessee in the said companies and by the said amalgamations the assessee became the sole owner of the entire capital of the transferor-companies. By virtue of the said amalgamations the assessee as the transferee-company became the sole repository of all the rights which flowed from or were imbedded in the shares held by the assessee in the transferor-companies.”

1. In other words, it has been observed by the learned judge of the Calcutta High Court that the result of the amalgamation was not securing of any additional amount or asset by the assessee-company but blending of the assets of the transferor-company with it, and, in pursuance of that scheme of amalgamation, there was the abolition of the shares in the transferor-company which shares earlier represented the said assets. Whether the assets of the transferor-company exceeded its liabilities or whether the assets were less than the liabilities would seem to make no difference and there would be no capital gains or capital loss to the assessee-company, since the assessee-company continued to enjoy in a different manner what it already owned. We may point out that earlier, at p. 409, Justice Sen of the Calcutta High Court has looked behind the facade of the transaction and lifted the corporate veil to come to the identical conclusion. In his view, there was rearrangement of the capital base, for instead of keeping the capital in the name or in the control of its subsidiaries, the assessee brought back the same under its direct control. He has also opined that, in this situation, there cannot be any element of gain or loss.”

2. Amalgamation of the wholly-owned subsidiary company with its parent company does not result in transfer for consideration and, therefore, does not give rise to any capital gains. The liability to capital gains tax (if any) can only be on the transferor company (subsidiary), which in the instant case has lost its identity and ceased to exist. M/s. Hattar, which got amalgamated with the respondent-company, is a hundred percent subsidiary of the respondent. By virtue of the amalgamation, all the assets and liabilities of M/s. Hattar became the assets and liabilities of the respondent-company. Where the amalgamating company, which is a hundred percent subsidiary, merges with the holding company (amalgamated company), no question of any profit or gain would arise because the amalgamating company (wholly owned subsidiary), on amalgamation ceases to exist, and its identity merges completely with the amalgamated company; where however, in case the amalgamating company receives nothing but the shareholders receive shares of the amalgamated company, there is no question of capital gains in the hands of the amalgamating company since it is the shareholders who receive consideration (if any). That in an amalgamation where no shares are issued by the amalgamated company, because the amalgamating company was a wholly owned subsidiary, no question of capital gains can arise because the amalgamating company does not receive any consideration.

3. The Supreme Court of India, in judgment reported as General Radio & Appliances Co. Ltd. v. M.A. Khader (Dead) By Lrs (1986 AIR 1218 = 1986 SCR (2) 607), while examining the effect of amalgamation, observed that after the amalgamation of two companies, the transferor-company ceases to have any identity and the amalgamated company acquires a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets. Undoubtedly, when two companies amalgamate and merge into one, the transferor-company loses its entity as it ceases to have its business.

4. Learned Legal Advisor for applicant-department has failed to point out any illegality or legal infirmity in the order passed by learned Appellate Tribunal, which even otherwise is unexceptionable, thus, needs no interference.

5. In view of the above, our answer to the purposed questions is in affirmative i.e. against applicant-department and in favour of respondent.

This Reference Application is decided against applicant-department.

1. Office shall send a copy of this judgment under seal of the Court to learned Appellate Tribunal as per Section 133 (5) of the Ordinance of 2001.

(Y.A.) Reference rejected

PLJ 2023 Lahore 510 (DB)

Present: Ch. Muhammad Iqbal and Muzamil Akhtar Shabir, JJ.

Mst. ASMA ABDUL WARIS--Appellant

versus

STATE BANK OF PAKISTAN and 4 others--Respondents

ICA No. 18654 of 2023, decided on 20.3.2023.

Banking Companies Ordinance, 1962 (LVII of 1962)--

----S. 11--Constitution of Pakistan, 1973, Art. 199--Law Reforms Ordinance, (XII of 1972), S. 3--Appeal before State Bank of Pakistan for reinstatement in service--Dismissed--Writ petition--Jurisdiction of State Bank--Maintainability of appeal--Challenge to--State Bank has specifically raised question relating to maintainability of appeal by relying upon judgments of this Court, question of discrimination does not arise--Single Judge rightly concluded that State Bank of Pakistan had no jurisdiction to hear and decide service matters of employees of Banks such as appellant’s case and where a jurisdiction is not vested by law, Courts would not ordinarily confer jurisdiction on any authority--When law provides a particular manner of doing things, they must be done in that manner or not at all--Anything done to contrary would be illegal, ex-facie erroneous and unsustainable in law--Impugned order passed by Single Judge is in consonance with judgments earlier passed by this Court as well as law on subject and no illegality, jurisdictional defect or mis-reading of record has been pointed out in said well-reasoned order for us to warrant any interfere in same--Appeal dismissed.

[Pp. 514, 518 & 519] A, B, C & D

2015 PLC (CS) 468, 2010 CLD 338, 2022 SCMR 2044, PLD 2008 Lahore 175 & 2022 SCMR 2080 ref. 2007 SCMR 1086.

Mr. Nadeem Ahmad Sheikh, Advocate for Appellant.

Date of hearing: 20.3.2023.

Order

Through this Intra Court Appeal, filed under Section 3 of the Law Reforms Ordinance, 1972, the appellant has called in question order dated 22.02.2023 passed by learned Single Judge of this Court, whereby constitutional petition (WP No. 12119 of 2023) filed by the appellant has been dismissed.

1. It is contended by learned counsel for the appellant that the learned Single Judge did not appreciate that in similar matters, appeals in service matter against orders passed by the different Banks had been entertained by the State Bank of Pakistan and relief was granted to the employees relating to their reinstatement in service and the appellant has been discriminated against by order passed by State Bank of Pakistan dated 09.01.2023 declining to interfere in the orders passed by Respondents No. 2/bank due to lack of jurisdiction.

2. In her constitutional petition, the appellant has prayed as under:

“In view of the above, it is, therefore, most respectfully prayed that a writ may kindly be issued in favor of the petitioner and against Respondents No. 1 while setting aside the impugned order dated 09.01.2023 and directing Respondents No. 1 to decide the representation of the petitioner at the par with Liaqat Ali case for the sake of justice and equity.”

1. The order dated 09.01.2023 passed by State Bank of Pakistan, challenged through the constitutional petition, is reproduced below:

“1. This representation has been heard by the State Bank of Pakistan (hereinafter referred to as Respondents No. 1) in compliance with the directions issued by the Hon’ble Lahore High Court, Lahore passed vide Order dated 17.11.2022 in ICA NO. 72454 of 2022 titled ‘Mst. Asma Abdul Waris vs State Bank of Pakistan, etc’.

1. The Petitioner, Ms. Asma Abdul Waris, claims that she joined United Bank Limited (hereinafter referred to as Respondents No. 2) as Assistant Vice President/Branch Manager on 01.04.2017. She was promoted as Vice President in March 2022 but her promotion was withheld due to an ongoing inquiry for opening of fake bank accounts. An inquiry dated 13.05.2022 was conducted against her and she was unlawfully terminated from service by the Respondents No. 2. The Petitioner alleged that she also made representations to Respondents No. 1 to exercise its powers for her reinstatement, however, Respondents No. 1 did not exercise its powers.

2. It is pertinent to mention that the State Bank of Pakistan does not intervene in HR matters of employees of banks as held by the Hon’ble Courts in case of Noor Badshah VS United Bank limited and others (2015 PLC (C.S.) 468 Lahore High Court, Lahore) and MCB Bank Limited VS State Bank of Pakistan and others (2010 CLD 338 Lahore High Court, Lahore).

3. Nevertheless, in compliance with the Order dated 17.11.2022 issued by the Hon’ble Lahore High Court, the matter was fixed for hearing on 30.12.2022 at SBP Banking Services Corporation office Faisalabad which was attended by the Petitioner and the representative of Respondents No. 2. During hearing the Petitioner and Respondents No. 2, explained the issue However, the Petitioner was informed of the aforementioned legal limitations of the State Bank of Pakistan. Further, it was also communicated to the Petitioner that as per available records, no application/email is pending with Respondents No. 1.

4. In view of foregoing, the subject petition stands dispose of.”

5. In the aforesaid order, it has specifically been mentioned that State Bank of Pakistan does not intervene in HR matters of employees of Banks as it has no jurisdiction to entertain the same in view of the principles laid down by Lahore High Court in the judgments reported as Noor Badshah vs. United Bank Limited and others (2015 PLC (C.S.) 468 and MCB Bank Limited vs. State Bank of Pakistan and others (2010 CLD 338). The operative part of judgment of Noor Badhshah’s case, in which case of MCB Limited has also been referred, is reproduced below:

“………

1. In order to answer this question, it is necessary to determine whether the State Bank of Pakistan (SBP) has failed to perform any of its statutory and legal obligations regarding petitioners service disputes i.e. increments and recalculation of their pensionary benefits. As regards the authority and the role of SBP is concerned, SBP is only a regulatory authority for all the Banks operating in Pakistan and its functions are contemplated under the Banking Companies Ordinance, 1962 (Ordinance 1962) with respect to the activation and operation of banks and for carrying out purpose of Banking Companies Ordinance, 1962 and matters ancillary thereto. Perusal of various provision of Banking Company Ordinance, 1962 shows that the dispute between the petitioners and respondent Bank is not covered under the provision of Ordinance, 1962 and that such regulatory role and control of SBP shall not clothe the Bank with the status of “person” or “authority” performing function in connection with affairs of Federation. Learned counsel for the petitioner has not referred any statutory provision under which the State of Bank being a regulator have a statutory duty and obligation to direct the Bank to perform its functions in respect of its employees term and condition of service. In similar situation, while dealing with question of maintainability of writ petition against Muslim Commercial Bank, in case UIMCB Ltd. through Authorized representative v. State Bank of Pakistan through Governor and 2 others (2010 CLD 338), it was held as under:

“Analyzing the question with reference to Section 41 of the Ordinance, it may be held that the State Bank has the power to give direction to the banks, if it is in the public interest and /or to prevent the affairs of any banking company being conducted in a manner detrimental to the interests of the depositors or in a manner prejudicial to the interest of the banking company, or to secure, the proper management of any banking company generally (underlined to supply emphasis). This power of the State Bank of Pakistan is not unlimited omnipotent, unbridled rather is circumscribed by the condition of being in the public interest, though public interest cannot always be constructed to mean all the people or most of the people, but obviously so many of them as contradistinguishes them from the few. Only for the reason that a few ex-employees of the MCB have formed a registered body would not mean to confer the petitioner with the status of the public whose interest should be served in terms of Section 41(a); moreover, any impugned action or inaction on part of the MCB, does not fall within the concept of preventing the affairs of the banking company being conducted detrimental to the interest of the depositors, or prejudicial to the interest of the banking company, or for securing the proper management thereof, which again is the prerequisite for the exercise of the power of the State Bank of Pakistan on account of Section 41(b)(c). The issue raised by the petitioner in this case examined from any provision. Subsection (2) of Section 41 of the Ordinance, also does not come to rescuer the petitioner as the directions, guidelines and instructions contemplated by this subsection are with respect to the activities and operations of the banks and the institutions for carrying out the purposes of the Ordinance and the matters ancillary thereto. The learned counsel for the petitioner has not been able to substantiate, if the grievance voiced in the petition is covered by Section 41(2) of the Ordinance, therefore, I am quite clear in my view that no direction in the constitutional jurisdiction can be issued to the State Bank of Pakistan for further directing the MCB to perform any of the acts as are mentioned in the section.”

The august Supreme Court is Abdul Wahab’s case supra also held as under:

“As regards the authority and the role of the SBP (in the above context), SBP is only a regulatory body for all the banks operating in Pakistan in terms of Banking Companies Ordinance, 1962 and suffice it to say that such regulatory role and control of SBP shall not clothe the Bank, with the status of a person or the authority performing the functions in connection with the affairs of the Federation. Rather it shall remain to be a private entity”.

In view of above discussion, the SBP having not failed to perform any of its statutory obligation towards petitioner is not a necessary party in this petition and no direction can be issued to SBP for release of increments or recalculation of pensionary benefits of the petitioners.”

1. The perusal of the afore referred judgment shows that the State Bank of Pakistan although supervises functioning of other banks yet it has got no jurisdiction in the service matters (HR matters) of employees of the said banks, however, the appellant seeks direction to State Bank of Pakistan to decide her representation as it is claimed by learned counsel for the appellant that some orders were passed in the case of similarly placed persons, wherein appeals/representations were entertained by State Bank and decided. Refers to order dated 04.07.2017 passed in the case of “Liaqat Ali vs. UBL” and order dated 21.08.2017 passed in the case of “Ijaz Hussain vs. UBL” relating to the same bank, however, it is noted that in the said orders question of jurisdiction of the State Bank of Pakistan to entertain appeals in service matters of employees of banks had not arisen and had not been decided, whereas in the present case, the State Bank has specifically raised the question relating to maintainability of appeal by relying upon the afore referred judgments of this Court, therefore, question of discrimination does not arise.

2. It is contended by learned counsel for the appellant that State Bank had jurisdiction to entertain appeal in terms of Section 11 of the Banking Companies Ordinance, 1962 (“Ordinance”), which is reproduced below:

“11. Prohibition of employment of managing agents and restrictions on certain forms of employment.--(1) No banking company,--

(a) shall employ or be managed by a managing agent; or

(b) shall employ or continue the employment of any person--

(i) who is, or at any time has been, adjudicated insolvent or has suspended payment, or has compounded with his creditors, or who is, or has been, convicted by a criminal Court of an offence involving moral turpitude; or

(ii) whose remuneration or part of whose remuneration takes the form of commission or a share in the profits of the company:

Provided that nothing contained in sub-clause (ii) shall apply to the payment by a banking company of--

(a) any bonus in pursuance of a settlement or award arrived at or made under any law relating to industrial disputes or in accordance with any scheme framed by such banking company or in accordance with the usual-practice prevailing in banking business; or

(b) any commission to any broker (including guarantee broker), cashier-contractor, clearing and forwarding agent, auctioneer or any other person, employed by the banking company under a contract otherwise than as a regular member of the staff of the company; or

(c) shall be managed by any person,--

(i) who is a director of any other company not being a subsidiary company of the banking company or a company registered under Section 26 of the Companies Act, 1913 (VII of 1913), except with the previous approval of the State Bank; or

(ii) who is engaged in any other business or vocation; or

(iii) who has a contract with the company for its management for a period exceeding five years at any one time:

Provide that any contract with the company for its management may be renewed or extended for a further period not exceeding five years at a time if and so often as the directors so decide:

Provided further that nothing in this clause shall apply to a director other than the managing director of a banking company by reason only of his being such director.

(2) Where a person holding the office of a chairman or director or manager or chief executive officer (by whatever name called) of a banking company is, or has been found any tribunal or other authority (other than a criminal Court) to have contravened the by provision of any law and the State Bank is satisfied that the contravention is of such a nature that the association of such person with the banking company is or will be detrimental to the interest of the banking company or its depositors or otherwise undesirable, the State Bank may make an order that person shall cease to hold the office with effect from such date as may be specified therein and thereupon, that office shall, with effect from the said date, become vacant.

(3) Any order made under sub-section (2) in respect of any person may also provide that he shall not, without the pervious permission of the State Bank in writing, in any way, directly or indirectly, be concerned with, or take part in the management of the banking company or any other banking company for such period not exceeding five years as may be specified in the order.

(4) No order under sub-section (2) shall be made in respect of any person unless he has been given an opportunity of making a representation to the State Bank against the proposed order:

Provided that it shall not be necessary to give any such opportunity if, in the opinion of the State Bank, any delay would be detrimental to the interests of the banking company or its depositors.

(5) Any decision or order of the State Bank made under this section shall be final for all purposes.”

Suffice it to say that aforesaid Section deals with prohibition of employment of managing agents and restrictions on certain forms of employment and does not relate to the service matters of other employees of banks or their cases about terms and conditions of service and termination, consequently the reliance of the counsel for appellant on the said Section is misplaced. Moreover, in Noor Badshah case (supra) it has also been held that power of State Bank to give directions provided in Section 41 of the Ordinance is not applicable to service matters of bank employees. The learned Single Judge considered the said aspect of the matter in the impugned order relating to application of Section 11 of the Ordinance while dismissing the constitutional petition of the appellant, relevant portion of which is reproduced below:

“Learned counsel for the petitioner submits that since the inquiry against the petitioner was conducted pursuant to a complaint filed before State Bank of Pakistan, the fate of her termination was also to be decided by the State Bank of Pakistan. Adds that the petitioner has been made to suffer for the mis-deeds of the others. Further adds that according to Section 11 of the Banking Companies Ordinance, 1962, the said bank has authority to regulate the matters relating to the employment of managing agents and restrictions on certain forms of employment, hence the impugned order is not sustainable.

3. After hearing learned counsel for the parties and going through the documents appended with this petition, I have noted that admittedly the petitioner was an employee of the United Bank Limited and she was terminated from service while serving as Manager, meaning thereby she was not the employee of the State Bank of Pakistan, hence it had no jurisdiction to deal with the matter relating to the terms and conditions of service of the petitioner.

4. Now coming to the plea of the petitioner that in terms of Section 11, ibid, the State Bank of Pakistan was to decide the fate of representation of the petitioner, I am of the view that the said provision does not empower the State Bank of Pakistan to deal with any matter relating to terms and conditions of service of an employee of a private bank, hence the said provision does not come to the rescue of the petitioner.

5. Insofar as the contention of learned counsel for the petitioner that since action was taken against the petitioner pursuant to a complaint filed before the State Bank of Pakistan is concerned, suffice it to note that any person can file complaint before the State Bank of Pakistan complaining mal-administration on the part of a banking company but the said fact does not empower the State Bank of Pakistan to deal with any matter relating to terms and conditions of service of an employee of a private bank.

6. For what has been discussed above, I see no force in this petition, which is accordingly dismissed in limine.”

1. The learned Single Judge rightly concluded that the State Bank of Pakistan had no jurisdiction to hear and decide service matters of employees of Banks such as the appellant’s case and where a jurisdiction is not vested by law, the Courts would not ordinarily confer said jurisdiction on any authority for the reason that jurisdiction could not be conferred by parties even by consent. Reliance in this regard may be placed upon the judgments reported as 2022 SCMR 2044 (Eden Builders (Pvt.) Limited, Lahore versus Muhammad Aslam and others) and PLD 2008 Lahore 175 (Water And Power Development Authority through Chairman, WAPDA and 4 others versus Abdul Shakoor through Legal Heirs). Besides it is settled by now that where a thing is required to be done in a particular manner, it must be done in the said manner and not otherwise as the same would be against the intention of legislature and not sustainable. Reliance in this behalf may be placed on 2022 SCMR 2080 (Mall Development (Pvt.) Ltd. versus Waleed Khanzada and others), wherein it is mentioned that when the law provides a particular manner of doing things, they must be done in that manner or not at all. Anything done to the contrary would be illegal, ex-facie erroneous and unsustainable in law. Same principle has been laid down in judgments reported as 2021 SCMR 1979 (Attaullah Khan versus Ali Azam Afridi and others), PLD 2018 SC 189 (Muhammad Hanif Abbasi versus Imran Khan Niazi), 2017 SCMR 1427 (The Collector of Sales Tax, Gujranwala versus Super Asia Mohammad Din and Sons), 2016 CLD 2025 (SC) = PLD 2016 SC 995 (Shahida Bibi and others versus Habib Bank Limited and others), PLD 2013 SC 255 (Muhammad Anwar and others versus Mst. Ilyas Begum and others), 2014 SCMR 1015 (Zia Ur Rehman versus Syed Ahmed Hussain and others), PLD 2011 SC 512 (Khalil-ur-Rehman and another versus Dr. Manzoor Ahmed and others) and 2007 SCMR 1086 (Muhammad Akram versus Mst. Zainab Bibi).

2. In view of what has been discussed above, the impugned order passed by learned Single Judge is in consonance with the judgments earlier passed by this Court as well as law on the subject and no illegality, jurisdictional defect or mis-reading of record has been pointed out in the said well-reasoned order for us to warrant any interfere in the same.

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

(Y.A.) Appeal dismissed

PLJ 2023 Lahore 519

Present: Abid Aziz Sheikh, J.

Malik MUHAMMAD YAQOOB etc.--Petitioners

versus

GOVERNMENT OF THE PUNJAB etc.--Respondents

W.P. No. 30365 of 2022, heard on 3.4.2023.

Punjab Local Council Services (Appointment and Conditions of Service) Rules, 1983--

----R. 5(3)--Constitution of Pakistan, 1973, Art. 199--Contractual appointment--Upper age limit relaxation was allowed--Services of contract employees were regularized--Petitioners were not regularized--Representation and appeal of petitioners was rejected--Vested right--Doctrine of locus poenitentae--Age relaxation orders were not cancelled during contract service of petitioners--The age relaxation orders, passed by appointing Authority under Rules, being not cancelled during contract service of petitioners, respondent-department was estopped subsequently to deny regularization under Regularization Policy or Notification on ground that petitioners at time of appointment were beyond prescribed age of 30 years--The contract appointment orders in respect of petitioners were not only issued after complying codal formalities but they also completed their contract tenure, hence, vested right accrued in their favour and respondents are estopped under principle of locus poententiae to deny regularization of petitioners on ground that they were overage at time of their contract appointment--It is also settled law that parties should not be made to suffer for action or inaction of authority who was obliged to follow law--Petitions allowed.

[Pp. 522, 527 & 528] B, C & D

2022 SCMR 1583, 2015 SCMR 1418, 2004 SCMR 158, 1997 SCMR 15, PLD 1991 SC 973, PLD 1969 SC 407, 2020 PLC (CS) 400, 2018 PLC (CS) 493.

Punjab Local Council Services (Appointment and Conditions of Services) Rules, 1983--

----R. 5(3)--Upper age limit--Under Proviso to Sub-rule (3) of Rule 5 of Rules, appointing Authority being competent Authority can allow upper age limit up to five years. [P. 521] A

Chaudhary Maula Bakhsh Gondal, Advocate for Petitioners.

Mr. Omer Farooq Khan, Assistant Advocate-General, Punjab alongwith Baby Tabassum, Law Officer and Malik Noman Aslam Bhatti, Legal Advisor M.C. Renala Khurd for Respondents.

Dates of hearing: 29.3.2023 and 3.4.2023.

Judgment

Through this Constitutional Petition, the petitioners have challenged the orders dated 15.04.2022, 05.01.2021, 21.12.2020 & 28.10.2016 passed by the respondents.

1. Relevant facts are that defunct Tehsil Municipal Administration, Renala Khurd (TMA), advertised various posts of Drivers & Helpers in BS-1 to BS-4 vide Advertisements dated 11.6.2006 and 20.8.2007 (Advertisements). The age limit for said posts was 18 to 25 years and after applying upper age relaxation allowed across the board, the maximum upper age limit was 30 years. The petitioners, who were few months beyond upper age limit of 30 years, were granted age relaxation for period beyond 30 years under Section 5(3) of the Punjab Local Council Services (Appointment and Conditions of Service) Rules, 1983 (Rules) by the concerned TMA vide letters dated 30.8.2006 and 9.10.2007. The Petitioners No. 1 to 3 were consequently appointed on contract for a period of three years vide appointment order dated 30.8.2006 and Petitioners No. 4 & 5 vide order dated 31.8.2007. The contract of the Petitioners No. 1 to 3 was also further extended. In meanwhile the Regularization Policy dated 14.10.2009 was issued by the Services & General Administration Department (Regulation Wing), Government of Punjab (Regularization Policy), to regularize the services of contract appointees in BS-01 to BS-15. The said Regularization Policy was also adopted to regularize the services of employees from BS-01 to BS-15 of the Local Government vide Notification dated 07.11.2009 (Notification). The petitioners were, however, not regularized on the ground that they were overage at the time of recruitment. The petitioners being aggrieved filed Writ Petition No. 14135 of 2010 which was disposed of by this Court on 12.04.2016 with direction to Respondents No. 2 to decide the representation of the petitioners. The said respondent, vide order dated 28.10.2016, rejected the representation on the ground that the petitioners were overage at the time of contract appointment, hence, cannot be regularized under the Notification. The petitioners again filed Writ Petition No. 35620 of 2016, which was allowed by this Court on 13.10.2020 and matter was sent back to Respondents No. 2 to pass reasoned and speaking order. The said respondent after giving hearing on 08.12.2020, dismissed the representation on 21.12.2020, and also terminated the services of the petitioners on 05.01.2021. The petitioners again filed Writ Petition No. 844/2021, which was disposed of on 21.10.2021 with direction to Respondents No. 1 (Chief Secretary, Punjab) to decide the matter against the impugned order as well as termination order. The Respondents No. 1 through impugned order dated 15.04.2022 dismissed the appeal of the petitioners, hence, this Constitutional Petition.

2. Learned counsel for the petitioners submits that the age beyond the prescribed age in Advertisements was already relaxed by the Competent Authority and once the said age relaxation orders were implemented and the petitioners were not only appointed on contract but also allowed to complete their tenure of three years’, subsequently their regularization cannot be denied on this ground.

3. Learned counsel for the respondents as well as learned Law Officer, on the other hand, submits that under the Regularization Policy and Notification the services of only those contract employees could be regularized who fulfilled the criteria of age, qualification and physical fitness etc. at the time of their contract employment. He submits that all the petitioners being beyond the prescribed age limit of 30 years in the Advertisements at the time of their contract employments, they were not entitled for their regularization and their services were lawfully terminated. Submits that impugned orders do not suffer from any illegality.

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

5. There is no dispute that in the Advertisements the prescribed age limit was 18 to 25 years and after applying five years’ age relaxation allowed by the Government of Punjab across the board, the maximum upper age for appointment against the posts in-question was 30 years. However, it is also admitted position on record that the age of the petitioners beyond 30 years was relaxed by the Tehsil Municipal Officer (TMO) concerned under the Rule 5(3) of the Rules vide order dated 30.08.2006 in respect of Petitioners No. 1 to 3 and order dated 09.10.2007 in respect of Petitioners No. 4 & 5. Under Proviso to Sub-rule (3) of Rule 5 of the Rules, the appointing Authority being competent Authority can allow upper age limit up to five years. The perusal of appointment orders dated 30.08.2006 and 31.08.2007 shows that same have been issued by the TMO upon recommendation of the Selection Committee. Therefore, the upper age of petitioners was relaxed under Rule 5(3) of the Rules by the same Authority who appointed the petitioners. It is neither case of the respondents that appointing Authority was not competent nor it is claimed that age relaxation orders dated 30.08.2006 and 09.10.2007 were recalled/cancelled being issued illegally or by incompetent Authority. Rather record depicts that the said relaxation of age order dated 30.08.2006 in respect of Petitioners No. 1 to 3 was duly acted upon and the said petitioners were not only appointed on contract for a period of three years but after completing their terms they were also granted extension. In respect of Petitioners No. 4 & 5, though upper age relaxation order was issued on 09.10.2007 after their appointment on 31.08.2007 but again neither those petitioners’ service contracts were terminated being beyond prescribed age nor the upper age relaxation order dated 09.10.2007 was recalled/cancelled till date rather they were allowed to complete their tenure of three years and in meanwhile the Regularization Policy and Notification were issued.

6. In the above circumstances, vested right accrued in favour of the petitioners and under the doctrine of locus poenitentiae now they cannot be denied regularization under the Regularization Policy and Notification on the ground that their age at the time of recruitment was beyond 30 years. The age relaxation orders, passed by the appointing Authority under the Rules, being not set-aside/cancelled during the contract service of the petitioners, the respondent-department was estopped subsequently to deny regularization under Regularization Policy or Notification on the ground that the petitioners at the time of appointment were beyond the prescribed age of 30 years.

7. In similar situations, the hon’ble Supreme Court and learned High Courts of different provinces from time to time applied the doctrine of vested rights and locus poenitentiae in following case law:--

i) In “Inspector General of Police, Quetta and another vs. Fida Muhammad and others” (2022 SCMR 1583), hon’ble Supreme Court held as under:

“11. The doctrine of vested right upholds and preserves that once a right is coined in one locale, its existence should be recognized everywhere and claims based on vested rights are enforceable under the law for its protection. A vested right by and large is a right that is unqualifiedly secured and does not rest on any particular event or set of circumstances. In fact, it is a right independent of any contingency or eventuality which may arise from a contract, statute or by operation of law. The doctrine of locus poenitentiae sheds light on the power of receding till a decisive step is taken but it is not a principle of law that an order once passed becomes irrevocable and a past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order but in this case, nothing was articulated to allege that the respondents by hook and crook managed their appointments or committed any misrepresentation or fraud or their appointments were made on political consideration or motivation or they were not eligible or not local residents of the district advertised for inviting applications for job. On the contrary, their cases were properly considered and after burdensome exercise, their names were recommended by the Departmental Selection Committee, hence the appointment orders could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of the respondents.”

ii) In “Mst. Basharat Jehan vs. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others” (2015 SCMR 1418), the hon’ble Apex Court held as under words:-

“20. Once a right is accrued to the appellant by appointment letters issued after complying with all the codal formalities could not be taken away on mere assumption and or supposition and or whims and fancy of any executive functionary. Such right once vests, cannot be destroyed or withdrawn as legal bar would come into play under the well doctrine of locus poenitentiae, well recognized and entrenched in our jurisprudence (One may refer to Director, Social Welfare, N.W.F.P., Peshawar v. Sadullah Khan (1996 SCMR 1350).”

iii) In “Pakistan International Airlines Corporation through Chairman and others vs. Shahzad Farooq Malik and another” (2004 SCMR 158) it is held as under:

“There is no cavil with the proposition that the authority has the power to undo the act done by it but such provision would be subject to the relevant laws and the Rules and would be applicable only in those cases where under the relevant law or the Rules a different intention does not appear. In the present case, the Corporation has its law and the Rules which govern the service under the Corporation. The authority could remove the employee who has been appointed in violation of the Rules but such action could be taken when no decisive steps had been taken in pursuance of the appointments. In the instant case, the respondents after their appointment were confirmed in service by the P.I.A.C., hence, valuable rights had accrued to ‘them which could not be interfered with only on the ground that they were irregularly appointed by the P.I,A.C itself unless there were other allegations against them, in view of the principle of locus poenitentiae.”

iv) In “Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others vs. Wasif Zamir Ahmad and another” (1997 SCMR 15), hon’ble Supreme Court observed as under:

“The decision of the petitioners to give admission to the Respondents No. 1 was implemented in letter and spirit. He, therefore, cannot be deprived of his vested right which he had earned on the basis of act of the petitioners.”

v) In “Chief Secretary, Government of Sindh and another vs. Sher Muhammad Makhdoom and 2 others” (PLD 1991 Supreme Court 973), august Supreme Court held as under:-

“It is quite apparent that restrictions in para. 4 of the Revenue Department’s Notification mentioned above, pertain to the appointment as Mukhtiarkar and in the case under consideration will have no bearing for the reason that respondents were granted exemptions in accordance with circulars, requirements of which were duly fulfilled by them and not only that but exemptions were implemented and they receive, necessary training, as such valuable rights had accrued to them which could not be interfered with. In this context, reference can be made to Section 20 of General Clauses Act and guidelines laid down in the case of Pakistan v. Muhammad Himayatullah Farukhi (PLD 1969 Supreme Court 407), in which it is held that principle of locus poenitentiae is available to the Government or relevant authorities and further authority which is competent to make order has power to undo it, but such order cannot be withdrawn or rescinded once it has taken legal effect and created certain rights in favour of any individual. It appears that Service Tribunal has allowed appeals of the respondents mainly on this ground with cogent reasons in support thereof.”

vi) In “Pakistan Through The Secretary, Ministry of Finance vs. Muhammad Himayatullah Farukhi” (PLD 1969 Supreme Court 407) the doctrine of locus poenitentiae applied in following terms:-

“There can hardly be any dispute with the rule as laid down, in these cases that apart from the provisions of Section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights.”

vii) In “Qurat-ul-Ain vs. Qazi Zian-ul-Abadeen and others” (2020 PLC (C.S) 400), Hon’ble Supreme Court (AJ&K) held as under:

“We deem it proper to observe here that although, the Gold Medal is not awarded for M.Phil degree, but in view of the peculiar facts of the case especially when a right had already been accrued to the respondent in the light of the policy prevailing at the relevant time, the appellant cannot be benefited on such ground. As the respondent has got the top merit position in the selection process, therefore, he cannot be deprived of his right for appointment by making any subsequent amendment in the rules/policy already holding the filed.”

viii) In “Aamir Tufail Chaudhary vs. Government of Punjab and 2 others” (2018 PLC (C.S.) 493), this Court held as under:

“It is settled principle of law that once a decisive step has been taken by the relevant authority the same cannot be retracted since it has vested valuable rights. The offer letter was issued to the Petitioner and the Petitioner in consequence whereof fulfilled all the terms and conditions of the offer letter by having his degrees verified and having a fresh medical examination. The Respondents under the principle of locus poenitentiae cannot deny the Petitioner the post as valuable rights had accrued to the petitioner and the same could not be recalled.”

ix) In “Ammad Ahmad vs. National Highway Authority through its Chairman and 5 others” (2018 PLC (C.S) Note 187), this Court observed as follows:-

“15. Under the law, decisive step taken by the authority cannot be withdrawn. Law is well settled that once a right is created by extending benefit for no default of a person, the same cannot be taken away on mere assumption, supposition, whims and fancy. Such right, once vested, could not be destroyed or withdrawn as legal bar would come into play under the doctrine of locus poenitentiae. Even in presence of any legal defect in initial appointment, principle of locus poenitentiae would not permit competent authority to undo same after a long time and remove incumbent from service.”

x) In “Adnan Ahmed vs. Province of Sindh through Chief Secretary to the Government of Sindh and 8 others” (PLD 2022 Sindh 542), the Hon’ble Sindh High Court held as under:

“The respondents received letters for their appointment and are working on their respective post after completing the formalities which includes verification of their testimonials “Domicile and PRCs”. It is settled by now that once a right is accrued to the appellant by appointment letters issued after complying with all the codal formalities could not be taken away on mere assumption and or supposition and or whims and fancy of any executive functionary. Such right once vests, cannot be destroyed or withdrawn as legal bar would come into play under the well doctrine of locus poenitentiae, well recognized and entrenched in our jurisprudence.”

xi) In “Rehmat Sanober vs. Balochistan Public Service Commission through Chairman and 2 others” (2015 PLC (C.S) 1246), the Hon’ble Balochistan High Court held as under:

“10. So, we can confidently observe that the petitioner was under protection of the earlier policy of the Government of Balochistan as mentioned in the publication dated 22.02.2013 and even now when this matter is going to be decided the age limit provided by Notification dated 25th February, 2013 is no more in the field. We are satisfied to hold that this is a policy matter and the relaxation in upper age limit extended by the Government of Balochistan earlier was not in violation of any fundamental right or a law nor did it suffer from any infirmity, inherent legal defect or want of authority. Thus, in these circumstances, the principle of „Locus Poenitentiae‟ fully attracts in this case and a legal vested right accrued to the petitioner cannot be taken away.”

(emphasis supplied)

1. The contract appointment orders in respect of petitioners were not only issued after complying codal formalities but they also completed their contract tenure, hence, vested right accrued in their favour and the respondents are estopped under the principle of locus poententiae discussed above to deny regularization of the petitioners on the ground that they were overage at the time of their contract

appointment. It is also settled law that parties should not be made to suffer for action or inaction of the authority who was obliged to follow the law. In this regard, reliance is placed on “Province of Punjab through Secretary, Agriculture, Government of Punjab and others vs. Zulfiqar Ali” (2006 SCMR 678).

1. In view of above discussion, this writ petition is allowed and by setting-aside the impugned orders, the respondents are directed to reinstate and regularize the services of the petitioners forthwith.

(Y.A.) Petition allowed

PLJ 2023 Lahore 528 [Rawalpindi Bench, Rawalpindi]

Present: Mirza Viqas Rauf, J.

FAZAL KARIM and 2 others--Petitioners

versus

MEHBOOB KHAN (deceased) through his legal heirs--Respondents

C.R. No. 212-D of 2018, decided on 31.3.2023.

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

----O.VII R. 11--Specific Relief Act, (I of 1877), S. 54--Application for rejection of plaint--Accepted--Suit for permanent injunction--Rejection of plaint--Appeal--Dismissed--Co-owner of suit property--Question of whether a suit for injunction simplicitor inter se co-sharers is proceedable or otherwise--Challenge to--Every co-sharer is owner in each and every inch of joint property until it is partitioned by metes and bounds--It is also an oft repeated principle of law that a co-sharer cannot change nature of joint property or raise construction without consent of other co-sharers--If a co-sharer is dispossessed from joint property in his/her possession by any other co-sharer, remedy lies for regaining his/her possession either in a suit under Section 9 of Specific Relief Act, 1877 or by way of a suit for partition--The matter, would become different in a case when a co-sharer intends to change nature of joint holding or threatens other co-sharers to divest from their right in joint property as co-owner--In such a case, such co-owner can institute a suit for injunction restraining former from changing nature of joint land or raising any construction upon same--In said eventuality, it is for former to first of all get joint land partitioned--Petition allowed. [P. 534] A & B

2004 SCMR 1036, 1989 SCMR 130, NLR 1995 SCJ 169 & 2004 MLD 1844 ref.

Sardar Asmat Ullah Khan, Advocate for Petitioners.

Mirza Saqlain Abid, Advocate for Respondents.

Date of hearing: 15.3.2023.

Judgment

This petition under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “CPC”) stems out from the order dated 26th February, 2018, whereby the learned Additional District Judge, Rawalpindi, while dismissing the appeal preferred by the petitioners, affirmed the judgment and decree dated 19th February, 2018 passed by the learned Civil Judge, Rawalpindi, resulting into dismissal of suit instituted by the petitioners, being not competent. Since suit instituted by the petitioners is dismissed while invoking the provisions of Order VII Rule 11 “CPC”, so leaving desultory details apart, only necessary facts are to be highlighted.

1. Being the co-owner of the suit property, the petitioners instituted a suit for permanent injunction, which was resisted by Mehboob Khan, predecessor-in-interest of the respondents, who instead of submitting the written statement, moved an application under Order VII Rule 11 “CPC” on the ground that suit is barred by law and it is not maintainable. The application was though contested by the petitioners but it was accepted by way of order dated 19th February, 2018. Feeling aggrieved, the petitioners preferred an appeal before the learned Additional District Judge, Rawalpindi but of no avail and the appeal was dismissed in limine through impugned order dated 26th February, 2018, hence this petition.

2. On the first date of its presentation, the petition was admitted for regular hearing on 5th March, 2018 and thereafter by way of order dated 24th November, 2021, following question was framed:

“As to whether a suit for injunction simpliciter inter-se co-sharers/co-owners is proceedable or otherwise?

1. Learned counsel for the petitioners, while addressing the above question, submitted that even a co-owner can institute a suit for injunction for the protection of his proprietary and possessory rights. He added that the petitioners have been non-suited on extraneous grounds. In support of his contentions, learned counsel has placed reliance on Muhammad Rafiq and others v. Sardar and others (2004 SCMR 1036) and Ali Gohar Khan v. Sher Ayaz and others (1989 SCMR 130).

2. Conversely, learned counsel for the “respondents” submitted that a co-sharer/co-owner is precluded to institute a suit for injunction and he has only a remedy to seek partition from the Court of law. It is added that findings of both the Courts below are concurrent and unexceptionable. Reliance to this effect is placed on Akhtar Nawaz Khan, etc. v. Danial Khan, etc. (NLR 1995 SCJ 169) and Ashiq Hussain v. Prof. Muhammad Aslam and 9 others (2004 MLD 1844).

3. Heard. Record perused.

4. The moot point involved in this case is as to whether a co-sharer/co-owner can institute a suit for injunction for the protection of his rights without seeking partition. The above question, for the first time, came under discussion before Supreme Court of Pakistan in the case of Ali Gohar Khan v. Sher Ayaz and others supra. The relevant extract from the same is reproduced below:

“6. The sole question which needs consideration in this case is whether in the facts and circumstances of the present suit a decree for perpetual injunction can be issued. As the record stands, the respondents had purchased a portion of the land from a joint Khata and dumped stones for raising construction over the same. The report of the Commissioner though may not be germane to the pleadings of the parties but is relevant to the extent that the suit property is jointly owned by the parties and no partition in any form has yet taken place. Furthermore, the fact that the property in suit is joint and no private partition amongst the parties has taken place stands finally decided by the Civil Judge vide his order dated 9-1-1975. Therefore, it can be said without any fear of contradiction that the parties are co-sharers in the suit property. The question now is whether a co-sharer in such a situation can deal with a joint property in the manner he likes without the express permission of other co-sharers and to their detriment. The answer obviously is in the negative as it is a settled principle of law that in case of joint immovable property each co-sharer is interested in every inch of the subject-matter irrespective of the quantity of his interest. A co-sharer thus will not be allowed to act in a manner which constitutes an invasion on the right of the other co-sharers. A co-sharer in possession of a portion of the joint property, therefore, cannot change the nature of the property in his possession unless partition takes place by metes and bounds. In the circumstances we think the learned District Judge was justified in law in passing a decree of perpetual injunction in favour of the appellant.”

1. Latter in the case of Akhtar Nawaz Khan, etc. v. Danial Khan, etc. supra, a learned Bench of the Supreme Court of Pakistan comprising of three Hon’ble Judges, with a majority view, held as under:

“There is no cavil with the proposition enunciated from time to time that every joint owner is interested in every inch of the joint property so long as partition by metes and bounds does not take place among the co-sharers and each individual co-sharer is allotted his exclusive share and that every co-sharer has the right to stop the other co-sharers from changing the nature of the property to his detriment. It is equally well-established by now that every co-sharer in possession of the joint property to the extent of his share in the entire joint property has a right to make use of it in the manner he likes without hindrance by the other co-sharers and if they feel aggrieved by the conversion of the user by the co-sharers, their remedy is to go for the partition and get their share separated.”

1. In the case of Muhammad Rafiq and others v. Sardar and others supra, the Supreme Court of Pakistan, however, reiterated the principles laid down in the case of Ali Gohar Khan v. Sher Ayaz and others supra in the following manner:

“2. The dispute relates to inheritance of one Nawab. The respondents were admittedly his daughters whereas the present petitioners are his collaterals being heirs of his brother. It was held that after the death of Nawab, the land was inherited by his widow Mst. Hakam Bibi/mother of the respondents as limited owner and on the termination of her limited interest, the property devolved on the heirs of last male owner i.e. Nawab, under the Muslim Law. Since Nawab had not left any male heir therefore, his two daughters were declared to be the owners of the property by way of inheritance according to the shares allocated to them as daughters under the Mohammedan Law and the remaining property was inherited by the respondents as collaterals. These findings have been recorded by all the Courts below and we do not find any reason as to why the present petitioners have filed this petition.

1. Learned counsel for the petitioners submitted that the only objection which the petitioners wanted to agitate was that since the respondents were not in possession of the property, therefore, the suit for mere declaration without prayer for consequential relief of possession was not maintainable.

2. We are afraid, the argument is plainly unsound. The heirs of Nawab had become joint owners of the property after the termination of limited interest of Hakam Bibi therefore, it was a case of joint ownership and suit for declaration by one of the joint owners that they were also owners in the property which right was being denied to them, was maintainable.

3. It was not necessary for any of the joint owners, to have claimed partition of the joint property at present as it could be claimed by any of the joint owners during the currency of joint ownership without limitation of any period in that behalf so long as the right of any of the joint owners was not denied which was not in dispute in this case.”

4. The question framed hereinabove also came under discussion before this Court in the case of Ashiq Hussain v. Prof. Muhammad Aslam and 9 others supraand it was resolved as under:

“6. … Mere reading of aforesaid contents of the plaint clearly shows that petitioner has not impleaded all the co-sharers as defendants in the suit. Therefore, First Appellate Court was justified to non-suit the petitioner which is in accordance with the law laid down by the Honourable Supreme Court in Khaleeq Ahmad v. Abdul Ghani and others (PLD 1973 SC 214). The relevant observation is as under:

“A suit for possession can be brought by all the co-owners jointly. It is open however, to one of them also to sue for possession but he must join the other co-owners as defendants and the decree will be for joint possession and not in favour of the plaintiff only.”

The First Appellate Court was justified that suit of the petitioner was not maintainable against the other co-sharers except by bringing a suit for partition of joint property as the law laid down by the Division Bench of this Court in Muhammad Shafi’s case (1979 CLC 230). The relevant observation is as follows:

“There is thus ample authority for the proposition that if a co-sharer has been in exclusive possession of a certain portion of the joint property for a long period, he cannot be dispossessed therefrom by another co-sharer except by bringing a suit for partition of the joint property.”

The aforesaid judgment of the Division Bench of this Court was considered and approved by the Honourable Supreme Court in Mst. Resham Bibi’s case (1999 SCMR 2325). The aforesaid provision of law is also supported by the law laid down in “Munshi and 2 others v. Muhammad Shafi and 30 others” (1966 Law Notes (Lahore) 58). The First Appellate Court has reversed the finding of the trial Court after proper appreciation of evidence on record in First Appeal which is the prerogative of the First Appellate Court to reappraise the evidence as Appellate Court to come to his own conclusion on the basis of evidence adduced before the trial Court by the parties and resultantly he could competently reverse the finding of the trial Court on the question of fact in issues in question. The First Appellate Court has reversed the finding with cogent reasons after reappraisal of the evidence on record as is evident from Para. No. 8 of the impugned judgment. It is established proposition of law that findings on question of fact or law howsoever, erroneous the same may be recorded by a Court of competent jurisdiction cannot be interfered with by the High Court in exercise of its revisional jurisdiction under Section 115, C.P.C. Unless such findings suffers from jurisdictional defect, illegality or material irregularity as per principle laid down by the Privy Council in N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras (PLD 1949 Privy Council 26). The aforesaid judgment was considered and followed by this Court in Board of Intermediate and Secondary Education Lahore v. Syed Khalid Mahmood (1985 CLC 657) which is upheld by the Honourable Supreme Court in unreported judgment dated 31-3-1985 passed in C.P. No. 1146 of 1984. Learned counsel of the petitioner failed to point out any infirmity or illegality in the impugned judgment and also did not bring the case within the parameters prescribed by the Privy Council in the aforesaid judgment.

1. The above view was further affirmed in the case of Mst. Roshan Ara Begum and 8 others v. Muhammad Banaras and another (2016 YLR 1300). The relevant extract from the same is reproduced below:

“6. Learned lower appellate Court has rightly held that Respondents No. 1 purchased the disputed shop from a co-sharer/paternal aunt. Hence, he also became a co-sharer in the joint property. Furthermore, it is established law that a co-sharer cannot file a suit for declaration and possession against the other co-sharer but a suit for partition can only be filed. The Hon’ble Supreme Court of Pakistan in a case reported as Mst. Sanobar Sultan and others v. Obaidullah Khan and others (PLD 2009 SC 71) has held as under:

“A purchaser of a share out of a joint property having become a co-owner, his status as a tenant ceases and his possession will become that of a co-owner who falls within the definition of a landlord. A co-sharer is entitled to retain the possession of the joint property till partition.”

1. In the wake of survey of law on the subject, I find that in the case of Fazal and others v. Ghulam Muhammad and others (2003 SCMR 999), Bench comprising of three Hon’ble Judges of Supreme Court of Pakistan held that suit for permanent injunction is maintainable on behalf of co-sharer/co-owner.

2. After having a wade through the principles laid down from time to time with regard to the proposition in hand, it evinces that the question framed hereinabove is not so frizzy or ticklish. Law is consistent to this effect that every co-sharer/co-owner is owner in each and every inch of the joint property until it is partitioned by metes and bounds. It is also an oft repeated principle of law that a co-sharer/co-owner cannot change the nature of the joint property or raise construction without consent of the other co-sharers/co-owners. If a co-sharer is dispossessed from the joint property in his/her possession by any other co-sharer, the remedy lies for regaining his/her possession either in a suit under Section 9 of the Specific Relief Act, 1877 or by way of a suit for partition.

3. The matter, however, would become different in a case when a co-sharer intends to change the nature of the joint holding or threatens the other co-sharers to divest from their right in the joint property as co-owner. In such a case, such co-owner can institute a suit for injunction restraining the former from changing the nature of the joint land or raising any construction upon the same. In the said eventuality, it is for the former to first of all get the joint land partitioned. In the present case, the principles laid down in Fazal and others v. Ghulam Muhammad and others supra are clearly attracted and as such the trial Court as well as the appellate Court have erred in law while dismissing the suit being not maintainable and barred by law.

4. For the foregoing reasons, this petition is allowed. As a result, impugned orders dated 19th February, 2018 and 26th February, 2018 are set aside being tainted with illegalities and material irregularities. As a consequence, the suit instituted by the petitioners shall be deemed to be pending before the learned Senior Civil Judge (Civil Division), Rawalpindi, who shall either decide the same by his own or entrust it to any other Court of competent jurisdiction. Needless to observe that the Court seized with the matter shall decide the suit afresh on its own merits, strictly in accordance with law. Parties are directed to appear before the learned Senior Civil Judge (Civil Division), Rawalpindi on 15.04.2023.

(Y.A.) Petition allowed

PLJ 2023 Lahore 535 [Rawalpindi Bench, Rawalpindi]

Present: Jawad Hassan, J.

ZAFAR KHIZER--Petitioner

versus

FEDERATION OF PAKISTAN etc.--Respondents

W.P. No. 505 of 2022, decided on 11.10.2022.

Constitution of Pakistan, 1973--

----Arts. 4, 9, 14, 25A & 38--Scope of Fundamental rights--Nutrition of children--Petitioner has sought directions to both the Federal as well as the Provincial Governments to declare the fundamental rights of child citizens, including right to nutritious food, right to proper development (to maximize benefit from education) and right to education, as an unqualified right and to further expand the said rights in light of provisions of Articles 4, 9, 14, 25A and 38 of the Constitution--Government to make legislation and manage child rights issues, including hunger and malnutrition in Pakistani children--National Nutrition Survey (the “NNS”) conducted in 2011, shows the highest levels of child malnutrition in Pakistan as compared to other developing countries and also reports a global acute malnutrition (wasting) rate of 15% among children--Commission of child welfare and development (the “CCWD”) was established in 1980, under the Ministry of Human Rights, to protect the interest of children in accordance with law, however, no commendable efforts were made by the CCWD to review the enforcement of fundamental rights of the child citizens--Article 35 of the Constitution the State is fully responsible to protect the marriage, the family and the child and scope of this Article has already been expanded--There is need to further strengthen the scope of fundamental rights of child citizens of this country--Issue of nutritious food to every child under the age of ten especially poverty stricken children, was raised and specific direction was issued by this Court to the Government to improve the nutrition of children--Court has discussed the role and functions of the Federal and Provincial Governments with respect to their respective rules of business--Food and School Education Departments under Second Schedule of the Punjab Government Rules of Business, 2011 to make proper policy/legislation on the issue.

[Pp. 537, 538, 539, 540, 541 & 542] A, C, D, E, F, G, H, I

Constitution of Pakistan, 1973--

----Arts. 25-A--Right of education--Article 25A, which specifies that free and compulsory education is fundamental right of all the children of the age of five to sixteen years. [P. 537] B

PLD 2020 Lahore 229; PLD 2019 Lahore 253; PLD 2019 Lahore 664; PLD 2020 Lahore 407; PLD 2022 Lahore 346; PLD 2021 Lahore 1; PLD 2021 Lahore 156 ref.

Barrister Muhammad Ahmad Pansota, ASC for Petitioner alongwith Ms. Eamaan Noor Bandial and Ms. Noor Iman, Advocates.

Mr. Muhammad Sajid Khan Tanoli, Deputy Attorney General alongwith Mr. Asif Ikram, Assistant Attorney General.

Mr. Mushtaq Ahmad Mohal, Additional Advocate General Punjab alongwith M/s. Mirza Asif Abbas and Waheed Asad Raja, Assistant Advocates General Punjab.

Mr. Muhammad Ikram Abbasi, Litigation Officer, CEO/DEA, Rawalpindi on behalf of Respondents No. 5.

Mr. Akhtar Javaid, Secretary Law and Parliamentary Affairs, Punjab.

Waheed Akhtar, Superintendent O/O Deputy Director Food, Rawalpindi Division on behalf of Respondents No. 11.

Muhammad Naveed Akhtar, Child Protection Officer, Child Protection & Welfare Bureau, Government of Punjab.

Date of hearing: 11.10.2022.

Order

“In 1895 the London satirical magazine Punch published a famous cartoon in which a bishop says to a curate at breakfast, ‘I’m afraid you’ve got a bad egg, Mr. Jones’. The curate replies, ‘Oh no, my lord, I assure you that parts of it are excellent’.”

SHORT ORDER

For detailed reasons to be recorded later on and subject to what is outset therein by way of amplification, today’s short order is aimed at disposing the instant writ petition in terms elaborated herein below. The good news is that this Court appreciates the effort made by the Petitioner with regard to the betterment of legislation on Pakistani child citizens’ fundamental rights, including right to life and dignity, right to proper growth and development through strict enforcement of their right to nutritious food and education. Whereas the bad news in one aspect, at least for the Petitioner, is that he, prior to knocking the door of this Court, has not approached the concerned Governmental authorities for the enforcement of such fundamental rights under the relevant laws because in their report & para-wise comments, the answering Respondents have mentioned the proper legislation introduced by the legislator from time to time for the protection and expansion of said fundamental rights (of child citizens). This one aspect aside, it is a thoroughly good egg. The concept of “curate’s egg” has been developed by the English Courts.

1. This constitutional petition has been filed by the Petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) for the protection of fundamental rights of child citizens of this country as enshrined in Chapters 1 and 2 (under Part-II) of the Constitution. The Petitioner has sought directions to both the Federal as well as the Provincial Governments to declare the fundamental rights of child citizens, including right to nutritious food, right to proper development (to maximize benefit from education) and right to education, as an unqualified right and to further expand the said rights in light of provisions of Articles 4, 9, 14, 25A and 38 of the Constitution. The first issue to be resolved by this Court is whether the word child citizen can be referred in the Constitution in light of different words used in the Constitution i.e. (a) citizen; (b) party; (c) person; and (d) individual in order to invoke such provisions. In this regard, stance of the learned counsel for the Petitioner is that the Constitution itself elucidates the word children under the newly added Article 25A, which specifies that free and compulsory education is fundamental right of all the children of the age of five to sixteen years. They further asserted that the word “children” is mentioned in Article 11(3) and also used in Article 25(3) while Article 35 of the Constitution protects the marriage, the family, the mother and the child, hence, the word child used in the Constitution can be stretched with the words citizen and person.

2. Barrister Muhammad Ahmad Pansota, ASC submitted that the Petitioner, being an overseas Pakistani, has done a lot of work through a non-profit organization for protection of child citizens’ rights by providing free pre-schooling and primary education to over ten thousand children in about fifty centres set-up in underdeveloped areas of Bangladesh and Pakistan, and he has approached this Court to highlight the indifference, lassitude and inaction of the Respondents towards the Pakistani child citizens who are future of this country and deserve strict protection of their fundamental rights as guaranteed/ protected under the Constitution and through this petition, he is seeking indulgence of the Court on the issue of proper legislation with regard to the enforcement of said fundamental rights. He further submitted that the Petitioner has invoked the constitutional jurisdiction of this Court, after passing of the landmark judgment on right to food in the case of Muhammad Ahmad Pansota and others versus Federation of Pakistan and others (PLD 2020 Lahore 229), just to maximize the potential of children as well as the youth through education due to the severe reluctance of and inaction on part of the Government to make legislation and manage child rights issues, including hunger and malnutrition in Pakistani children. He contended that in the aforesaid judgment, this Court has expanded the scope of right to life and right to food by discussing in detail the Islamic principles and moral standards derived from the Holy Quran & Sunnah in view of the importance of food and ramification of hunger and held that Islam imposes a duty on privileged Muslims to share their wealth and help the ones in need. In the said judgment, this Court has further elaborated the principles of policy as well as the purpose and intent of fundamental rights for which they have been framed, hence, to further develop the rights of Pakistani child citizens, the Petitioner has brought this matter before the Court. Ms. Eamaan Noor Bandial, Advocate further explained that Article 199 of the Constitution uses the word ‘person’, Article 4 of the Constitution defines the word ‘citizen’, while somewhere in the Constitution the word ‘individual’ is mentioned and they are all intertwined, hence, the term ‘child citizens’ falls within the framework of the Constitution. She next argued that Article 4 of the Constitution gives an inalienable right to every citizen which is defined under Article 260 of the Constitution and if it is read with the definitions referred above, the scope is large because the word ‘party’ is involved therein. She submitted that the issue in hand relates to the Federal as well the Provincial Government and legislative authorities of both the Governments to first introduce laws under their respective Rules of Business and then to perform their statutory roles in administering the said laws, therefore, they are fully responsible for the protection of rights of Pakistani child citizens. Ms. Eamaan Noor Bandial, Advocate further submitted that the concept ‘right to food’ has been developed in the World Health Organization (the “WHO”) which highlights the very aspect that the latest National Nutrition Survey (the “NNS”), conducted in 2011, shows the highest levels of child malnutrition in Pakistan as compared to other developing countries and also reports a global acute malnutrition (wasting) rate of 15.1% among children, which is higher than the 13% figure of the previous NNS 2001, conducted in Pakistan.

3. Ms. Eamaan Noor Bandial, Advocate argued that due to the prevailing condition of mortality, poor health, poor physical and cognitive development, poor school performance, reduced capacity to work even later in life, the Commission of Child Welfare and Development (the “CCWD”) was established in 1980, under the Ministry of Human Rights, to protect the interest of children in accordance with law, however, no commendable efforts were made by the CCWD to review the enforcement of fundamental rights of the child citizens. She submitted that the reason to agitate the matter before this Court as a public interest litigation is the principles settled by this Court in Muhammad Ahmad Pansota Case (supra) as well as the judgments cited as Subay Khan versus Secretary, Labour, Government of the Punjab (PLD 2019 Lahore 253), Sheikh Asim Farooq versus Federation of Pakistan and others (PLD 2019 Lahore 664) and Muhammad Tahir Jamal, Advocate versus Government of the Punjab and others (PLD 2020 Lahore 407). She has also drawn attention towards the latest judgment passed by this Court in the case of Sana Khursheed versus Government of the Punjab through Chief Secretary and 9 others (PLD 2022 Lahore 346), in which the scope of right to life and right to dignity of man has been expanded under the provisions of Articles 9 and 14 of the Constitution. She further contended that the issue in hand also relates to right to education of child citizens, which will be badly affected if proper food is not provided to them, in line with the mechanism adopted in all other countries, as mentioned in this petition. She placed reliance on the recent judgment passed by this Court on right to education in the case of Al-Bakoi International etc. versus Federation of Pakistan etc. (PLD 2021 Lahore 1) wherein much emphasis has been laid down on the importance of education, by holding that “Education is the most essential instrument of change and can close the gap between rich and poor within a society. A quality public education for all can be a powerful engine for greater equality and can equip men and women – rich and poor alike – with equal voice and power.” In this judgment, the Court has further observed that under Article 25-A of the Constitution it is sole and utmost responsibility of the State (the Federal and the Provincial Government) to secure fundamental right of education of all the children and also to promote the education and well-being. She added that under Article 35 of the Constitution the State is fully responsible to protect the marriage, the family and the child and scope of this Article has already been expanded by this Court in Sana Khursheed Case (supra) by holding that “the State should undertake special legislative, administrative and judicial initiatives to ensure protection of the rights of women and children.” It is to be noted that on intervention/directions of this Court in different cases, in the last four years, various laws (Acts, Ordinances and Policies) have been made by the legislator, after forming committees of experts from lawyers and other relevant fields, and subsequently, the said laws were also implemented by the executive. Details of which is mentioned in Paragraph No. 28 of the judgment passed in Sana Khursheed Case (supra) in the following manner:

| | | | | --- | --- | --- | | Sr. No. | Law/Legislation | Cases | | 1 | The Punjab Domestic Workers Act, 2019 | Subay Khan v. Sohail Shahzad Secretary Labour Govt of Punjab, etc. (PLD 2019 Lahore 253) | | 2 | Punjab Food Authority (Disposal of Excess Food), Regulation, 2019 | Barrister Muhammad Ahmed Pansota v. Federation of Pakistan, etc. (PLD 2020 Lahore 229) | | 3 | Commercial Courts Ordinance, 2021 | M.C.R. (Pvt) Ltd., franchisee of Pizza Hut v. Multan Development Authority, etc. (2021 CLD 639) | | 4 | The Punjab High Security Zones (Establishment) Act, 2020 | Mian Ali Asghar v. Government of the Punjab, etc. (CLC 2020 Lahore 157 = 2021 MLD 370) | | 5 | Urban Forest Policy | Sheikh Asim Farooq v. Federation of Pakistan, etc. (PLD 2019 Lahore 664) | | 6 | The Punjab Empowerment of Persons with Different Abilities Act, 2022 | Mst. Sana Khursheed v. Government of the Punjab through Chief Secretary and 9 others (PLD 2022 Lahore 346) |

1. Pursuant to the direction issued by this Court on 23.02.2022, Respondents No. 1, 2, 3, 7 and 10 have submitted their report & para-wise comments by conceding the fact that there is need to further strengthen the scope of fundamental rights of child citizens of this country. They, while supporting the Petitioner’s stance about protection and expansion of the fundamental rights of child citizens, have referred to various laws specifically, the legislation introduced by the legislative authorities of both the Federal and Provisional Governments on this issue, besides mentioning efforts being made by the relevant governmental departments to enforce provisions of the said laws.

2. Mr. Akhtar Javaid, Secretary Law and Parliamentary Affairs, Punjab, who is present in the Court today in another case, has put in appearance (on Court call) to render assistance in this matter as well and informed that he will look into the matter and examine the relevant laws/policies and then suggest the relevant department for making laws/policies, as and when required. It is to be noted that already a similar matter was taken up by Mrs. Justice Ayesha A. Malik (the then Judge of this Court now the Judge of the Hon’ble Supreme Court of Pakistan) on 15.10.2021 in Writ Petition No. 33518/2015, in which the issue of nutritious food to every child under the age of ten especially poverty stricken children, was raised and specific direction was issued by this Court to the Government to improve the nutrition of children under ten years of age and of expecting mothers by demonstrating various programs underway. Relevant part of the said order (from Paragraph-3) is reproduced hereunder:

“After hearing the learned counsel for the parties and going through the reports filed by the Respondents, it appears that an effort is being made by the Government on this issue which is a continuous effort to uplift the food and health of women and children. Given the interest of the Petitioner in this issue, it is best to pursue the matter at the policy level to ensure that efforts continue and to collect data on the subject. At this stage, as the Government has admitted that efforts must be made to improve the nutrition of the children under ten years of age and of expecting mothers and have demonstrated the various programs underway, accordingly.”

Pertinently, already directions have been issued by this Court in above said order and on confrontation, whether the same have been complied with or not, the Secretary Law and Parliamentary Affairs, Punjab stated that certain progress has been made however, he has assured that he will discuss the matter with the relevant authorities and also make hectic efforts for resolution of this issue on immediate basis.

1. Learned counsel for the Petitioner argued that the words ‘person’ and ‘citizen’ fall within the framework of the Constitution and pertinently this petition deals with the fundamental rights of child and children as the Constitution itself recognizes their rights under the principle of policy, Part-2, Chapter-I because the word ‘children’ is defined under Article 25-A and word ‘child’ is mentioned under Articles 11(3) and 35 of the Constitution therefore, the Respondents under their respective Rules of Business, if provided, can make legislation and prepare policy, if so advised. After 18th Amendment in the Constitution, this Court has discussed the role and functions of the Federal and Provincial Governments with respect to their respective rules of business in Muhammad Yousaf versus The Secretary Finance etc. (2021 PLD Lahore 156) by observing that:

“Primarily the Governments in Pakistan are divided into “Federal Government” and “Provincial Government”. The Federal Government functions under Articles 90 and 97 read with Article 99 under which Federal Rules of Business, 1973 are made whereas the Provincial Government functions under Articles 129 read with Article 137, and under Article 139 conduct of business is made alongwith Punjab Government Rules of Business, 2011. The law made by either Federal Government or Provincial Government originates through legislative procedure provided under Article 70 of the Constitution. After the 18th Amendment made to the Constitution in the year 2010, the concept of Provincial Autonomy stands heightened and accentuated in the context of the Federation of Pakistan and what was previously not within the domain of the federating units and was not do-able for the Provinces now falls within the ambit and purview of their executive authority and legislative competence.

1. The concept of decentralization of power and functions has gained currency throughout the world and political philosophers have advocated merits of sharing responsibilities with all the component units of the state instead of concentration and centralization of all the powers within the Federal Government in order to empower the Provinces to legislate laws and execute policies in accordance with the requirements and needs of their respective areas and to secure effective and efficient delivery of services for the citizens residing therein in accordance with their particular ground realities”.

Therefore, there is clear cut mandate with the Food and School Education Departments under Second Schedule of the Punjab Government Rules of Business, 2011 to make proper policy/legislation on the issue in hand.

1. This Court succeeded to conclude the case in shape of issuing various directions to the Respondents, including that they will (i) make proper legislation on the Pakistani child citizens’ fundamental rights in light of the relevant provisions of the Federal Rules of Business, 1973 and the Punjab Government Rules of Business, 2011, as discussed above, and if proper legislation already holds the field then ensure its enforcement; (ii) formulate a national policy on such rights under the Rules, after carefully going through the

respective laws, by conducting surveys in the relevant fields and also taking restrictive steps for the malnourishment/malnutrition in the child citizens; and then (iii) ensure implementation of the said policy in true sense.

8-A. Disposed of accordingly. The detailed judgment will be followed later.

(K.Q.B.) Petition disposed of

PLJ 2023 Lahore 543 (DB)

Present: Ch. Muhammad Iqbal and Muzamil Akhtar Shabir, JJ.

MUNIR AHMAD, ADVOCATE HIGH COURT--Petitioner

versus

PROVINCE OF PUNJAB through Chief Secretary etc.--Respondents

W.P. No. 18733 of 2023, decided on 22.3.2023.

Constitution of Pakistan, 1973--

----Arts. 199, 218 & 220--Holding of Election of Punjab Assembly--Directions of Supreme of Pakistan for conducting of fair and free elections--Issuance of Election schedule--No plea was raised regarding non-conducting of election--Apprehensions of petitioner-- Hon’ble Supreme Court of Pakistan has already issued a direction for conducting free and fair elections and in terms thereof, Election Commission of Pakistan is authorized to take necessary steps for said purpose and in compliance of said order, election schedule for election to Provincial Assembly of Province of Punjab has already been issued--Nothing substantial is presently available on record to establish that Election Commission of Pakistan had failed to implement Articles 218 and 220 of Constitution and was not proceeding with matter of conduct of elections in fair manner in letter and spirit--Election Commission of Pakistan has not raised any plea against any of officers that he is not helping in conducting election in a proper manner or that it is not in a position to hold elections in a fair manner; yet if any such matter had arisen, Hon’ble Supreme Court of Pakistan had authorized Election Commission of Pakistan to deal with said matter in accordance with law--Petition dismissed. [Pp. 548 & 550] C & D

Constitution of Pakistan, 1973--

----Art. 218(3)--Duty of election commission--It shall be duty of Election Commission to organize and conduct election and to make such arrangements as are necessary to ensure that election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against. [P. 545] A

Constitution of Pakistan, 1973--

----Art. 220--Duty of executive authorities--It shall be duty of all executive authorities in Federation and in Provinces to assist Commissioner and Election Commission in discharge of his or their functions. [P. 545] B

Mr. Muhammad Azhar Siddique, Advocate for Petitioner.

Date of hearing: 22.3.2023.

Order

Muzamil Akhtar Shabir, J.--Through this constitution petition, petitioner has prayed as under:

“In view of the foregoing facts and peculiar circumstances of the case, it is, therefore, most respectfully prayed that this instant petition may kindly be allowed and as the Election Commission of Pakistan has badly failed to implement Articles 218 & 220 of the Constitution of Islamic Republic of Pakistan, 1973 and at the same time the respondent/Chief Secretary of Punjab and Inspector General of Police Punjab are also reluctant to holding the election within the stipulated time as directed by the august Supreme Court of Pakistan read with different constitutional provisions, hence, directions may kindly be made to all the respondents to conduct fair and free transparent elections in view of Article 218 (3) read with Article 220 of the Constitution of Islamic Republic of Pakistan, 1973 read with judgments on the subject, of course, in the interest of justice, equity and fair play.”

1. Mr. Muhammad Azhar Siddique, Advocate-learned counsel for the petitioner states that the Election Commission of Pakistan has failed to implement Articles 218 and 220 of the Constitution of the Islamic Republic of Pakistan, 1972 “the Constitution” and at the same time, the respondent-Chief Secretary of Punjab and Inspector General of Police, Punjab are reluctant to hold the election within the stipulated time as directed by the august Supreme Court of Pakistan and in the circumstances, a direction may be issued to all the respondents to conduct fair and free transparent election in terms of Article 218(3) read with Article 220 of the Constitution, for which purpose, the learned counsel for petitioner has relied upon the averments of the instant constitution petition as well as the documents attached with it to substantiate his stance.

2. The petitioner seeks direction to respondent-authority for conducting elections in fair manner in terms of Article 218 and 220 of the Constitution which are reproduced as under:

“218. (1) For the purpose of election to both Houses of Majlis-e-Shoora (Parliament), Provincial Assemblies and for election to such other public offices as may be specified by law, a permanent Election Commission shall be constituted in accordance with this Article.

(2) The Election Commission shall consist of--

(a) the Commissioner who shall be Chairman of the Commission; and

(b) four members, one from each Province, each of whom shall be a person who has been a Judge of a High Court or has been a senior civil servant or is a technocrat and is not more than sixty-five years of age, to be appointed by the President in the manner provided for appointment of the Commissioner in clauses (2A) and (2B) of Article 213.

Explanation.--”Senior civil servant” and “technocrat” shall have the same meaning as given in clause (2) of Article 213.

(3) It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.

1. ………..…………….………….…………….…………………… ………..............................

2. It shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions.”

3. The Hon’ble Supreme Court of Pakistan has already issued direction for holding the elections to the Election Commission of Pakistan in Suo Motu Case No. 1 of 2023, Const. Petition No. 1 of 2023 and Const. Petition No. 2 of 2023 titled “Islamabad High Court Bar Association Islamabad through its President etc. v. Election Commission of Pakistan through the Chief Election Commissioner, Islamabad and others” and has resolved the controversy vide order dated 1.3.2023. For ready reference, the operative part of the said order is reproduced as under:

“10. On a conjoint reading of the foregoing provisions we conclude and hold as follows:

a. In situations where the Assembly is dissolved by an order of the Governor, the constitutional responsibility of appointing a date for the general election that must follow is to be discharged by the Governor as provided in terms of Article 105(3)(a). These are the situations described in paras 5 and 6(a) above.

b. In situations where the Assembly is not dissolved by an order of the Governor, the constitutional responsibility of appointing a date for the general election that must follow is to be discharged by the President as provided in terms of S. 57(1) of the 2017 Act. These are the situations described in paras 6(b) and 7 above.

1. Since the general election on a dissolution of a Provincial Assembly has to be held within a time period stipulated by the Constitution itself, which is a constitutional imperative, the President or, as the case may be, the Governor must discharge the constitutional responsibility of appointing a date for the said election swiftly and without any delay and within the shortest time possible. The Election Commission must proactively be available to the President or the Governor, and be prepared for such consultation as required for a date for the holding of general elections.

2. It follows from the foregoing that in relation to the dissolution of the Punjab Assembly, to which the situation described in para 6(b) above applied, the constitutional responsibility for appointing a date for the general election that must follow was to be discharged by the President. However, in relation to the dissolution of the KPK Assembly, to which the situation described in para 6(a) above applied, the constitutional responsibility for appointing a date for the general election that must follow was to be discharged by the Governor.

3. It further follows that the order of the President dated 20.02.2023 is constitutionally competent and subject to what is observed below, it is hereby affirmed insofar as it applies to the Punjab Assembly; but the same is constitutionally invalid insofar as it applies to the KPK Assembly and is therefore hereby set aside. It also follows that the Governor of KPK Province, inasmuch as he has not appointed a date for the holding of the general election to the Assembly of that Province is in breach of his constitutional responsibility.

4. It is further declared and directed as follows in relation to the matters before the Court:

a. In ordinary circumstances the general election to the Punjab Assembly ought to be held on 09.04.2023, the date announced by the President in terms of his order of 20.02.2023. However, we are informed that on account of the delay in the emergence of the date for the holding of the general election, it may not be possible to meet the 90 day deadline stipulated by the Constitution. It is also the case that (possibly on account of a misunderstanding of the law) the Election Commission did not make itself available for consultation as required under S. 57(1) of the 2017 Act. The Election Commission is therefore directed to use its utmost efforts to immediately propose, keeping in mind ss. 57 and 58 of the 2017 Act, a date to the President that is compliant with the aforesaid deadline. If such a course is not available, then the Election Commission shall in like manner propose a date for the holding of the poll that deviates to the barest minimum from the aforesaid deadline. After consultation with the Election Commission the President shall announce a date for the holding of the general election to the Punjab Assembly.

b. The Governor of the KPK Province must after consultation with the Election Commission forthwith appoint a date for the holding of the general election to the KPK Assembly and the preceding clause (a) shall, mutatis mutandis, apply in relation thereto.

1. It is the constitutional duty of the Federation, in terms of clause (3) of Article 148, “to ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution”. There can be no doubt that this duty includes ensuring that a general election to the Assembly of every Province is held, and enabled to be held, in a timely manner within the period set out in the Constitution. This duty is in addition to, and applies independently of, the duty cast under Article 220 on “all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions”. It follows that the Federation, and in particular the Federal Government, is, inter alia, obligated, on an immediate and urgent basis, to forthwith provide the Election Commission with all such facilities, personnel and security as it may require for the holding of the general elections. In like manner, it is the duty of the Provincial Governments, acting under the Caretaker Cabinets, to proactively provide all aid and assistance as may be required by the Election Commission. The duty cast upon the authorities as set out in S. 50 of the 2017 Act must also be discharged forthwith and proactively.

2. The three matters before the Court are found maintainable and stand disposed of as above.”

3. The perusal of afore-referred order shows that the Hon’ble Supreme Court of Pakistan has already issued a direction for conducting free and fair elections and in terms thereof, the Election Commission of Pakistan is authorized to take necessary steps for the said purpose and in compliance of the said order, election schedule for election to the Provincial Assembly of Province of Punjab has already been issued and notified on 08.03.2023 and Election Commission of Pakistan is proceeding with the matter in terms thereof whereby the elections are scheduled to be held on 30.04.2023, the said schedule is reproduced below for ready reference:

“ELECTION COMMISSION OF PAKISTAN

NOTIFICATION

Islamabad, the 8th March, 2023

No. F.2(3)/2023-Cord.--In pursuance of the dissolution of the Provincial Assembly of the Punjab on 14th January, 2023 and Order dated 1st March, 2023 passed by the Hon’ble Supreme Court of Pakistan in Suo Motu Case No. 1 of 2023, Constitution Petition No. 1 of 2023 and Constitution Petition No. 2 of 2023 and announcement of date by the President of the Islamic Republic of Pakistan as 30 April, 2023, the Election Commission of Pakistan in terms of Article 224(2) and 254 of the Constitution of the Islamic Republic of Pakistan read with Section 57(2) of the Elections Act, 2017 (Act No. XXXIII of 2017) and all other powers enabling it in that behalf, hereby calls upon the electors of the Provincial Assembly of Punjab constituencies to elect their representatives from each of these constituencies to the general seats and in connection therewith appoints the following dates for various activities of the election to the aforesaid Assembly:

| | | | | --- | --- | --- | | PROGRAMME | | | | Sr. No. | EVENTS | DATE | | 1 | 2 | 3 | | 1 | Notification of Election Programme | 08.03.2023 | | 2 | Public Notice to be issued by the Returning Officer on | 11.03.2023 | | 3 | Dates for filing of nomination papers with the Returning Officer by the candidates | 12.03.2023 To 14.03.2023 | | 4 | Publication of names of the nominated candidates | 15.03.2023 | | 5 | Last date for Scrutiny of nomination papers by the Returning Officer | 22.03.2023 | | 6 | Last date for filing of appeals against decisions of the Returning Officer rejecting/accepting the nomination papers | 27.03.2023 | | 7 | Last date for deciding of appeals by the Appellate Tribunal | 03.04.2023 | | 8 | Publication of revised list of candidates | 04.04.2023 | | 9 | Last date for withdrawal of candidature and Publication of revised list of candidates | 05.04.2023 | | 10 | Allotment of Election Symbol to contesting candidates | 06.04.2023 | | 11 | Polling day | 30.04.2023 |

1. The above mentioned programme shall also apply to the Seats Reserved for Women & Non-Muslims in the Provincial Assembly of Punjab. Last date of filing of separate list of priority for Seats Reserved for Women & Non-Muslims before the Returning Officer is 14 March, 2023.

By Order of the Election Commission of Pakistan

S/d (Muhammad Farid Afridi) Additional Director General (Elec-II)

The Manager, Printing Corporation of Pakistan Press, Islamabad.”

1. Although, the petitioner refers to certain instances wherein certain incidents have taken place including the imposition of ban under Section 144, Cr.P.C. and also refers to news items that the Inspector General of Police, Punjab and Chief Secretary of Province of Punjab had shown their inability to facilitate the conduct of the elections; however, nothing substantial is presently available on the record to establish that the Election Commission of Pakistan had failed to implement Articles 218 and 220 of the Constitution and was not proceeding with the matter of conduct of elections in fair manner in letter and spirit. The Election Commission of Pakistan has not raised any plea against any of the officers that he/she is not helping in conducting the election in a proper manner or that it is not in a position to hold elections in a fair manner; yet if any such matter had arisen, the Hon’ble Supreme Court of Pakistan had authorized the Election Commission of Pakistan to deal with the said matter in accordance with law.

2. Presently the averments raised in the instant constitution petition are only based on apprehensions that free and fair elections shall not be conducted but no cogent and substantial material is available on the record to reach such a finding in the matter; consequently, this petition being pre-mature and based on apprehensions only is accordingly dismissed.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 550 [Multan Bench, Multan]

Present: Ahmad Nadeem Arshad, J.

Mst. IRSHAD BIBI--Petitioner

versus

GHULAM MUSTAFA, etc.--Respondents

C.R. No. 970 of 2012, heard on 7.3.2023.

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

----S. 42--Suit for declaration--Dismissed--Appeal--Partially allowed--Oral sale mutation--Power of attorney--Petitioner was in Dar-ul-Aman at time of sanctioning of mutation--Attorney was alienated suit property to his real son--DW-2 was admitted non-presence of petitioner at time of sanctioning of mutation and receiving of sale consideration--Scribe of attorney deed and marginal witnesses were not produced by respondent--Patwari and revenue office were not produced regarding attestation of mutation in Court--Challenge to--Petitioner challenged vires of Mutation which was entered on basis of Rapat Roznamcha Waqiati whereby her land was allegedly alienated through oral sale by her general attorney to Respondent No. 1 and Muhammad Anwar, Sadiq Ali & Hashmat Ali (vendees)--Petitioner also challenged authority of general attorney regarding sale of suit property--DW-2 also admitted it correct that at time of sanctioning of impugned mutation petitioner was not present and when payment was made even then she was also not present and petitioner did not receive any amount from him--Perusal of impugned Mutation it appears that it was entered on 31.08.1988 and sanctioned on 15.09.1988--Petitioner was admitted in Dar-ul-Aman on 09.08.1988 and was released on 29.08.1988 after her marriage with Raja Matloob--The suit property was alienated by general attorney on basis of general power of attorney--It is settled principal of law that there must not be any uncertainty or vagueness in power of attorney--It is evident from record that PW-2 got property rights of suit property in favour of petitioner through registered conveyance deed by using General power of attorney--Said attorney used general power of attorney after seven years of its execution for transferring petitioner’s property without getting any fresh mandate from principal--No authority for oral sale was given to attorney--Neither scribe of attorney deed nor its marginal witnesses were produced in order to establish that document was duly made understandable to petitioner and its contents were in her knowledge--Respondents also failed to examine Sub-Registrar who registered document--They withheld material evidence and no effort whatsoever was made to produce same in Court--Neither concerned Patwari nor Revenue Officer as well as witnesses in whose presence statements of parties were recorded had been produced-- It is obligatory upon respondents to prove this fact that their witnesses had been died or cannot be traced out--Trial Court has erred in law while dismissing suit of petitioner, whereas, Appellate Court has also not properly appreciated evidence of parties while partially allowing appeal--The findings of Courts below qua dismissing suit of petitioner are merely based on surmises and conjectures, which is against facts and law, having not based upon proper appreciation of oral as well as documentary evidence--Civil revision allowed.

[Pp. 554, 558, 559, 562, 565, 567 & 573] A, C, D, E, F, G, H, K & M

PLD 1985 SC 341, PLD 2005 SC 418, 2019 SCMR 567, 2020 SCMR 276 & PLD 2021 SC 538 ref.

Obligation of vendee--

----It was imperative for vendee to establish that transaction was undertaken with a title holder; there was an offer made which was accepted; parties had no incapability; there was consensus at idem; that it was settled against valid consideration and that it was accompanied by delivery of possession. [P. 553] B

Restriction on attorney--

----The attorney has to act as an agent of principal--There is a restriction that attorney has to take principal in confidence before converting property of principal on force of power of attorney into personal use or for benefit of his near relatives. [P. 565] I

PLD 2008 SC 389.

Right of sale--

----If an attorney intends to exercise right of sale in his favour or in favour of next of his kin, he has to consult principal before exercising that right and he should firstly obtain consent and approval of principal after acquainting her with all material circumstances. [P. 565] J

PLD 2008 SC 389, 2022 SCMR 1398, 2022 SC 1068.

Vitiation of fraud--

----Fraud vitiates even most solemn transaction--Any transaction based on fraud would be void--Limitation does not run against void transaction--Mere efflux of time did not extinguish right of any party--Notwithstanding bar of limitation, matter can be considered on merit so as not to allow fraud to perpetuate. [P. 569] L

2016 SCMR 1417, 2008 SCMR 855, 2001 SCMR 1591, 1992 SCMR 1832 ref.

M/s. Haroon-ur-Rashid Nizami & Shamsa Naz Zahra Lak, Advocates for Petitioner.

Mr. Muhammad Tanvir Ch., Advocate Respondent No. 1.

Khawaja Bashir Hussain Advocate for Respondent No. 2-9 & 10-a to 10-f.

Date of hearing: 7.3.2023.

Judgment

Through this single judgment I intend to decide above captioned Civil Revision as well as Civil Revision No. 791 of 2012 titled as “Ghulam Mustafa v. Irshad Bibi, etc” as parties in both the petitions as well as subject matter is same and both civil revisions are arising out of same judgments & decrees of Courts below.

1. Facts in brevity are that petitioner/plaintiff Mst. Irshad Bibi (hereinafter referred to as the petitioner) instituted a suit for declaration on 31.10.2007 against the Respondent No. 1 & Respondents No. 2-9, 10-A to 10-F/defendants (hereinafter referred to as the respondents) by contending therein that she is owner in possession of suit property measuring 96 Kanals & 08 Marlas and impugned sale Mutation No. 110 dated 15.09.1988 as well as subsequent entries in the revenue record made on the basis of said mutation are against the facts & law, void ab-intio and infective upon her rights; that she never appointed Muhammad Aslam as her general attorney for sale of her property and the proceedings conducted by him are forged, fictitious and based upon fraud; that she cancelled the general power of attorney being a forged document; that at the time of sanctioning of impugned mutation she was in Dar-ul-Aman, therefore, she did not appear before anyone; that neither she gave any statement nor received any consideration amount for sale of suit property; that all the proceedings with regard to sanctioning of impugned mutation are forged, fictitious, based upon fraud and result of collusiveness of revenue officials; that at the time of sanctioning of mutation Muhammad Aslam was shown to be her general attorney but she never appointed him as general attorney for the sale of suit property and if any such deed of attorney was shown to be executed, it is forged and fictitious and not applicable upon her, therefore, she is not bound to it; that impugned mutation was not attested by concerned Lumbardar; that impugned mutation was got sanctioned by Muhammad Aslam in favour of respondents by misusing power of attorney, which is against law & facts and liable to be set aside as neither general attorney can alienate the property of his principal to his legal heirs nor can alienate without her consent to any other; that impugned mutation is without consideration and result of impersonation; that petitioner neither appeared before any Revenue Officer or Patwari nor got recorded her statement; that petitioner is a Pardanasheen lady and according to the custom she did not use to go outside her house without the consent of her husband; that respondents had been giving share produce regularly to her at her house, so, she remained unaware about the impugned sale; that one week ago when respondents started claiming themselves owner of the suit property and also stopped to give share produce, then it came to her knowledge that suit property had been alienated in their favour; that respondents were asked time & again to get cancel the impugned mutation but they refused to do so, which constrained her to institute the suit.

2. On the other hand, Respondent No. 1 and Respondents No. 2 to 9 & 10-A to 10-F/defendants contested the suit by filing their separate written statements in contrast whereby they raised certain legal as well as factual objections such as petitioner has no cause of action; that suit is not maintainable in its present form; that they are bona-fide purchasers with consideration; that petitioner made sale bargain of the suit property through her general attorney namely Muhammad Aslam with respondents (Defendants No. 1 to 3 & predecessor of Defendants No. 4 to 10-F) and through Mutation No. 110 alienated the suit property to them; that after sale of the suit property, petitioner while admitting said power of attorney got it cancelled, therefore, she is estopped from her own words & conduct to institute the suit; that the suit is barred by time. While replying on facts, they pleaded that petitioner made sale bargain of land measuring 48 Kanals & 08 Marlas for a consideration of Rs. 3,75,000/-with Respondent No. 1/Defendant No. 1 through her general attorney Muhammad Aslam (her real brother) and received Rs. 3,75,000/-in presence of witnesses and similarly received Rs. 3,75,000/-from Defendants No. 2 & 3 and predecessor of Defendants No. 4 to 10; that before attestation of the mutation power of attorney was got verified; that general attorney paid the consideration amount to the petitioner; that petitioner through her general attorney appeared before concerned Patwari and Revenue Officer and the general attorney got attested the suit mutation and prayed for dismissal of the suit.

3. Owing to the divergent pleadings of the parties, learned Trial Court framed necessary issues and invited the parties to produce their respective evidence in support of their divergent stances. After recording evidence of the parties pro & contra, learned Trial Court dismissed the suit vide judgment & decree dated 03.05.2011. Feeling aggrieved, she preferred an appeal which was partially accepted vide judgment & decree dated 23.07.2012 and suit of the petitioner was decreed against Respondent No. 1 and oral sale Mutation No. 110 was cancelled to the extent of Respondent No. 1 regarding alienation of land measuring 48 Kanals 08 Marla, however, dismissed rest of her suit. Being dissatisfied, said Ghulam Mustafa has filed Civil Revision No. 791 of 2012 for setting aside impugned judgment & decree of appellate Court dated 23.07.2012, whereas, petitioner (Irshad Bibi) has filed Civil Revision No. 970 of 2012 whereby she has prayed for decree of her suit in toto.

4. I have heard learned counsel for the parties at length and perused the record with their able assistance.

5. It evinces from the record that petitioner challenged the vires of Mutation No. 110 dated 15.09.1988 (Exh.P.1=Exh.D.1) which was entered on the basis of Rapat Roznamcha Waqiati No. 366 dated 31.08.1988 whereby her land measuring 96 Kanals & 08 Marlas was allegedly alienated through oral sale by her real brother/general attorney for a consideration of Rs. 7,50,000/-to Respondent No. 1 namely Ghulam Mustafa (real son of the general attorney) and Muhammad Anwar, Sadiq Ali & Hashmat Ali (vendees). Petitioner also challenged the authority of general attorney regarding sale of the suit property. Although, general power of attorney No. 1949 dated 21.12.1981 (original as Exh.D.2, certified copy as Exh.D2/1) was got cancelled by petitioner through revocation deed No. 2586 dated 19.09.1988 (Exh.D.4) but before its cancellation, said general attorney had alienated the suit property to respondents. Stance of the respondents is that they are bona-fide purchasers for consideration and purchased the suit property from petitioner through her general attorney.

6. Suit property was sold by general attorney through oral sale mutation, therefore, in order to establish valid execution of the transaction, respondents have to prove not only the general power of attorney, the ingredients of sale but also the execution of the mutation through cogent and reliable evidence. In order to enforce a sale of immoveable property it was imperative for the vendees to establish that the transaction was undertaken with a title holder; there was an offer made which was accepted; the parties had no incapability; there was consensus at idem; that it was settled against valid consideration and that it was accompanied by the delivery of possession. Transaction involving property of illiterate women was to be treated at par with Pardanasheen lady and where a transaction involved anything against her apparent interest, it must be established that independent, impartial and objective advice was available to her and the nature, scope, implication and ramifications of the transaction entering into was fully explained to her and she understood the same. Attestation of mutation by itself does not furnish proof of sale and whenever any such transaction was questioned, the onus laid on the beneficiary to prove the transaction and every ingredient thereof as well as the document if executed for its acknowledgment. Mutation was always sanctioned through summary proceedings and to keep the record updated and for collection of revenue, such entries were made in the relevant register under Section 42 of the Land Revenue Act, 1967 and it had no presumption of correctness prior to its incorporation in the record of rights. However, entries in the mutation were admissible in evidence but the same were required to be proved independently by the persons relying upon it through affirmative evidence. Oral transaction reflecting therein did not necessarily establish title in favour of the beneficiary. Mutation could not by itself be considered a document of title and may have been attested as an acknowledgment of past transaction.

7. To reach a just conclusion, scanning of the whole evidence is necessary as conclusion drawn by both the Courts below are at variance. Guidance sought from the judgment of august Supreme Court of Pakistan whereby in a case titled “Mst. Azra Gulzar v. Muhammad Farooq and another (2022 SCMR 1625)” held as under:

“In the case in hand, the fora below is at variance in their findings and in such like situation the High Court was supposed to give its findings after appraisal of the entire evidence.”

1. Petitioner appeared in the witness box as P.W.1 and deposed that in lieu of her land situated at Noorpur Islambad, suit property was allotted to her in Chak No. 7, Dunyapur which consisted upon 100 Kanals. Now the suit property remained 96 Kanal & 08 Marlas as 04 Kanals came in the road. She further deposed that her brother Muhammad Aslam who is father of Respondent No. 1 (Ghulam Mustafa) used to look after the suit property. She maintained that property was being cultivated by the tenants and her brother used to give him share of produce in cash, sometimes to Rs. 10,000/-annually and sometimes Rs. 20,000/-. She also maintained that she did not give power of attorney to his brother with the mandate to sale the suit property rather the same was for the purpose to look after the suit property; after the death of her brother when she came on the suit property, then it came to her knowledge that the suit property had been sold. She deposed that mutation is based upon fraud as Muhammad Aslam general attorney neither obtained any advice/consent from her to sale the suit property nor paid her any consideration amount. She further stated that neither she gave any statement for sale of suit property nor put her thumb impression at any document. She also maintained that Muhammad Aslam wanted to marry her with his insane brother-in-law and when she refused to do so, he tortured her and she had life threats from him, therefore, she shifted to Dar-ul-Amanand due to that reason Aslam sold her land. She further deposed that she contracted second marriage with Raja Matloob. She deposed that respondents have no concern with the suit property. During cross-examination, she maintained that the power of attorney which was executed to look after the suit property was written with her consent. She admitted that she cancelled the power of attorney through revocation deed on 19.09.1988. She further deposed that 21/22 years ago she went to Dar-ul-Amanwhere she remained for 20/21 days and her second marriage was solemnized in Dar-ul-Aman. She also deposed that her brother Muhammad Aslam used to give her share amount by collecting the same from tenants. Despite lengthy cross-examination, respondents failed to bring anything favourable to them from the mouth of petitioner.

Petitioner produced Malik Ghulam Mustafa as P.W.2 in support of her claim. He supported her version and deposed that he never heard that petitioner sold her land.

In documentary evidence she produced copy of impugned mutation as Exh.P-1. Perusal of said document it appears that concerned Patwari incorporated factum of oral sale through Rappat Roznamcha Waqiati No. 366 dated 31.08.1988. Through said mutation petitioner’s land measuring 96-kanals 08-marlas was transferred by her general attorney Muhammad Aslam in favour of Hashmat Ali (640 shares), Muhammad Anwar and Sadiq Ali (320 shares) and Ghulam Mustafa (968 shares) for a consideration of Rs. 7,50,000/-. Said mutation was witnessed by Muhammad Ibrahim s/o Nanik and Liaqat Ali s/o Jalal Din. Statements of the parties were recorded on 08.09.1988 whereas mutation was sanctioned on 15.09.1988. Many cuttings were found on the said mutation. Copy of Mutation No. 111 dated 28.10.1988 was produced as Exh.P-2, whereby Muhammad Aslam general attorney of petitioner gifted his land measuring 100-kanals to his son namely Mujahid through oral Tamleek, copy of record of rights for the years 1986-87 as Exh.P-3, which shows ownership of petitioner upon the suit property, copy of record of rights for the years 2006-07 as Exh.P-4, copy of record of rights for the years 2006-07 as Exh.P-5. Perusal of said documents it appears that ownership with regard to suit property was changed and alleged vendees stepped into the shoes of petitioner. Copy of Khasra Girdawari for Kharif 2008 was brought on record as Exh.P-6.

1. In rebuttal, Defendant No. 1 appeared as DW-1, Defendant No. 6 as DW-2 and Defendant No. 2 as DW-3. They did not produce any independent witness in support of their stance. All the DWs deposed in the same line as narrated in their written statements. Respondent No. 1 while appearing as D.W.1 deposed that general attorney Muhammad Aslam is his father who was appointed by petitioner as his attorney to look after the property and to sell the same. He maintained that attorney delivered the consideration amount of Rs. 7,50,000/-to the petitioner and after getting the consideration amount she cancelled the power of attorney. During cross-examination, he admitted that mutation was sanctioned in the office of Patwari and at that time petitioner was not present. He further deposed that petitioner did not appear before any Officer. He admitted it correct that his Phuphi (petitioner) went to Dar-ul-Aman as she was angry with them; that she went to Dar-ul-Amanon 09.08.1988 and came back on 29.08.1988. During cross-examination, he deposed that petitioner demanded her property as we were not marrying her as per her choice, thereafter, voluntarily said that she demanded amount after selling the suit property. He admitted that when petitioner contracted marriage with Raja Matloob, at that time she was in Dar-ul-Aman. He also admitted that her Phuphi (petitioner) is illiterate. He maintained that women in their family observed Parda. He also admitted it correct that share produce was given by his father to petitioner, however, voluntarily said that it was given before sanctioning of impugned mutation. He also admitted it correct that petitioner did not give any permission for sanctioning of impugned mutation, however, she got executed power of attorney.

Defendant No. 6 namely Bashir Ahmad appeared as D.W.2. During cross-examination, he deposed that petitioner is real sister of attorney Muhammad Aslam; he did not know when power of attorney was executed. He also admitted it correct that at the time of sanctioning of impugned mutation petitioner was not present and when the payment was made even then she was also not present. He also admitted it correct that petitioner did not receive any amount from him.

Defendant No. 2 Muhammad Anwar appeared as D.W.3 and deposed that consideration amount was paid to Muhammad Aslam general attorney. During cross-examination, he deposed that Irshad Bibi was consulted while purchasing the suit property and said consultation was made in his presence and in presence of Hashmat Ali. They did not depose anything about their source of income as well as never explained that how they collected consideration amount and paid to petitioner.

Respondents produced copy of Mutation No. 110 as Exh.D-1, original general power of attorney as Exh.D-2, certificate issued by the Sub-Registrar as Exh.D-3, copy of deed of revocation as Exh.D-4, copy of separate vandaas of respondents as Exh.D-5, copy of application submitted by petitioner for going to Dar-ul-Aman as Exh.D-6, copy of Nikahnama of petitioner with Muhammad Yousaf as Exh.D-7, copy of record of rights of Khewat No. 42 for the years 1987-88 as Exh.D-8, copy of record of rights of Khewat No. 55 for the years 2006-07 as Exh.D-9, copy of Khasra Girdawari as Exh.D-10, copy of death certificate of Muhammad Aslam as Exh.D-11, copy of Form ‘Say’ as Exh.D-12, copy of general power of attorney executed by Mst. Maqbool Jan as Exh.D-13, copy of Mutation No. 558 as Exh.D-14, copy of Mutation No. 289 as Exh.D-15, copy of Mutation No. 493 as Exh.D-16, copy of Mutation No. 559 as Exh.D-17, copy of Mutation No. 560 as Exh.D-18, copy of Mutation No. 211 as Exh.D-19, copy of Mutation No. 212 as Exh.D-20 and copy of Khasra Girdawri Kharif 2009 Kharif 2010 as Exh.D-21.

1. Admittedly, petitioner remained in Dar-ul-Aman in the month of August, 1988. She moved an application for sending her in Dar-ul-Aman on 09.08.1988 (Exh.D.6) whereby she maintained as under:

“ یہ کہ سائلہ نور پور شاہاں کی رہائشی ہے اور مسمی محمد یوسف نے سائلہ کو طلاق دیکر اپنے زوجیت سے الگ کر دیا ہے۔ یہ کہ سائلہ کی اراضی دنیا پور ملتان میں ہے اور سائلہ کے بھائی مسمی اللہ داد و محمد اسلم پسران غلام محمد اور انکے بیٹوں کے خلاف سائلہ کی درخواست پر کارروائی انسدادی عمل میں لائی گئی ہے۔ سائلہ کی اراضی ہتھیانے کے لیے سائلہ کو جان سے مارنے کے در پے ہیں۔ یہ کہ سائلہ مطلقہ ہونے کی وجہ سے اپنے انہی بھائیوں کے پاس رہائش پزیر تھی اور اب سائلہ کے پاس کوئی معقول رہائش نہیں ہے۔ جبکہ مذکورہ بھائیوں سے سائلہ کو جان کا خطرہ ہے۔ اندریں بالا استدعا ہے کہ سائلہ کو دارالامان بجھوانے کا حکم صادر فرما کر سائلہ کو تحفظ فراہم کیا جائے۔”

She got recorded her statement before the Magistrate on 09.08.1988 wherein she stated as under:

بیان کیا کہ میرے بھائی اللہ داد اور محمد اسلم میری شادی میری مرضی کے خلاف کرنا چاہتے ہیں۔ مجھ کو اپنے بھائیوں سے خطرہ ہے۔ میں اپنی مرضی سے دار الامان جانا چاہتی ہوں۔”

Respondents produced attendance register of Dar-ul-Aman as Exh.D.7. In the said register, petitioner who was given number 36, it was written as under:

“مورخہ 88-08-29 کو شادی کے بعد ادارے سے فارغ کر دیا گیا۔ خاوند کے ساتھ گئی”

Perusal of impugned Mutation No. 110, it appears that it was entered on 31.08.1988 and sanctioned on 15.09.1988. Petitioner was admitted in Dar-ul-Aman on 09.08.1988 and was released on 29.08.1988 after her marriage with Raja Matloob. She left the house of her brothers due to dispute of her marriage as well as threat of her life and property as they were bent upon to deprive her from the property. Admittedly, those days disputes between the principal and attorney were at peak. In view of that it does not appeal to a prudent mind in presence of such a strained relations petitioner was consulted and got her consent qua selling the suit property and she was given consideration amount.

1. The suit property was alienated by general attorney on the basis of general power of attorney. It is settled principal of law that there must not be any uncertainty or vagueness in the power of attorney. Power of attorney should be construed strictly and only such powers qua the explicit object which were expressly and specifically mentioned in the power of attorney should be exercised by the agent as conceded to have been dedicated to him. The august Supreme Court of Pakistan in its esteem judgment titled “Fida Muhammad versus Pir Muhammad Khan (Deceased) Through Legal Heirs And Others” (PLD 1985 Supreme Court 341) held as under:

“It is wrong to assume that every “general” Power-of-Attorney on account of the said description means and includes the power to alienate/ dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object The draftsman must pay particular attention to such a clause if intended to be included in the Power-of-Attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deducible from words spoken or written which do not clearly convey the principal’s knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and or misrepresentation.

The second aspect which needs caution on question of validity of acts under a Power-of-Attorney is that notwithstanding an authority to alienate principal’s property, the Attorney is not absolved from his two essential obligations, amongst others firstly in cases of difficulty (and it will be a case of difficulty if the Power-of-Attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction.”

In the light of above referred judgment, when power of attorney was examined, it appears that principal gave authority as under:

"جو کہ فریق اول متاثرہ اسلام آباد ہے۔ مظہرہ کو اپنی ایکوائر شدہ اراضی کے متبادل پر مٹ برائے ضلع ملتان موصول ہو کر موضع چک نمبرM/7 تحصیل لودھراں ضلع ملتان میں اراضی12 ½ ایکڑ مربع نمبر 25,24 (100) کنال الاٹ ہو چکی ہوئی ہے۔ چونکہ مظہرہ عورت ذات ہے اس لیے بذاتہی انتظام و انصرام کرنے سے قاصر ہے۔ مظہرہ نے اپنی جانب سے مسمی محمد اسلم ولد غلام محمد بر ادر حقیقی فریق دوئم مذکورہ الصدر کو اپنا مختار عام مقرر کر کے حسب ذیل اختیارات تفویض و فائض کر دیے ہیں۔ اب وہ الاٹ شدہ اراضی کے متعلق قیمت اراضی مقرر کر کے جملہ واجبات بذریعہ اقساط یا یک مشت ادا کر کے مالکانہ حقوق حاصل کرے۔ بیع نامہ اراضی تکمیل کرائے، بیعہ نامہ حاصل کرے، قبضہ اراضی حاصل کرے، نا پسند اراضی کا تبادلہ کسی دوسرے ضلع میں کرائے یا اسی ضلع میں کرائے یا خود کاشت کرے یا بذریعہ مزارعان و پٹہ داران کاشت کرائے۔ مزار عان کو بیدخل کرے، پٹہ داران تبدیل کرے، محکمہ انہار کے افسران سے رابطہ قائم کر کے نہری پانی منظور کرائے۔ موگہ بندی،وارہ بندی کا تعین کرائے۔ جس قدر دعویٰ فریق اول کی جانب سے یا بر خلاف فریق اول عدالت ہائے دیوانی فوجداری یا محکمہ مال یا دیگر محکموں میں متدائر یا قابل دادرسی ہوں انکی پیروی یا جواب دہی کرے، بذریعہ وکلاء بیرسٹرایٹ لاء ثالثان، اہل کمیشن مشیران قانونی بذریعہ مختار نامہ خاص مختار خاص مقرر کرے قانونی معاونت حاصل کرے از عدالت ہائے ابتدائی تا عدالت ہائی عالیہ ہائیکورٹ سپریم کورٹ رجوع کرے اپیل کرے رٹ کرے بیان دے بیان حلفی دے صلح کرے راضی نامہ کرے دستبرداری از دعویٰ جات اختیار کرے مسل معائنہ کرے حکم امتنامی حاصل کرے ڈگری حاصل کرے، اجر اء و ڈگری کرائے، زرِڈگری حاصل کرے، نقول حاصل کرے، مختلف محکموں میں درخواست ہائے دیکر مفاد ہائے حاصل کرے، محکمہ ڈاک تار سے کام لے، مختلف بینکوں میں حسابات کھلوائے، چیک دے چیک لے اور اراضی مذکورہ کو بیعہ رہن ، ہبہ، تملیک ، تبادلہ دپٹہ وغیرہ کر کے دے زر معاوضہ زر بدر، زرثمن زربیعانہ، زر پٹہ بٹائی یا حصہ پیداوار حاصل کرے، بیعہ نامہ وثیقہ جات رجسٹری ہائے بذریعہ حکام مجاز تصدیق و منظور کرائے اور ہر قسم کے کاغذات دستاویزات درخواست ہائے پر فریق اول کی بجائے اپنے دستخط کرے، انگوٹھا لگائے اور ہر قسم کی کارروائی کرے"۔

From perusal of said general power of attorney, it appears that it did not contain a clear separate clause with regard to alienation/sale of the suit property. It evinces from the said deed of power of attorney that it was made to complete the allotment process and to look after the suit property. Power to alienate/sale was given in a general and vague manner, meaning thereby although authority of alienation was given but not specifically with express terms and by necessary implication. It is evident from record that Muhammad Aslam got the property rights of suit property in favour of petitioner through registered conveyance deed dated 20.01.1982 (Exh.D.3) by using said General power of attorney. Said attorney used the general power of attorney after seven years of its execution for transferring petitioner’s property through impugned mutation without getting any fresh mandate from the principal.

1. Hon’ble Supreme Court of Pakistan held that the power of attorney must be strictly construed while observing in a case titled as “Muhammad Akhtar versus Mst. Manna and 3 others” (2001 SCMR 1700) as under:

“It is well settled by now that the power of attorney must be strictly construed and it is necessary to show that on a fair construction of the whole instrument the authority in question may be found within the four corners of the instrument either in express terms or by necessary implication.”

And endorsed said dictum in “Muhammad Yasin and another versus Dost Muhammad through Legal Heirs and another” (PLD 2002 SC 71) in following terms:

“It is also well known principle of law that all such instruments of power of attorney in pursuance whereof attorney is authorized to act on behalf of principal are to be construed strictly.”

1. It is also evident from the perusal of said power of attorney that no authority for oral sale was given to the attorney. He was given only authority to execute registered sale deed as under:

“بیعہ نامہ و ثیقہ جات رجسٹری ہائے بذریعہ حکام مجاز تصدیق و منظور کرائے”

The august Supreme Court of Pakistan in its judgment reported as “Imam Din and 4 others versus Bashir Ahmed and 10 others” (PLD 2005 SC 418) did not validate the oral sale on behalf of attorney despite the fact he was given authority to sell the property through registered sale deed and held that attorney was specifically authorized to sell the property through registered sale deed and in the light of strict construction of power of attorney, implied authority of oral sale could not be presumed and also observed as under:

“The power of attorney is a written authorization by virtue of which the principal assigns to a person as his agent and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of this nature is to assign the authority of the principal to another person as his agent. The main object of such type of agency is that the agent has to act in the name of principal and the principal also purports to rectify all the acts and deeds of his agent done by him under the authority conferred through the instrument. In view of nature of authority, the power of attorney must be strictly construed and proved and further the object and scope of the power of attorney must be seen in the light of its recital to ascertain the manner of the exercise of the authority in relation to the terms and conditions specified in the instrument.

The rule of construction of such a document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act. The general words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution. This is settled rule that before an act purported to be done under the power of attorney is challenged as being in excess of the powers, it is necessary to show on fair construction, that the authority was not exercised within the four corners of the instrument”.

It was further observed that:

“Even if a presumption of existence of the power of attorney is raised, the transaction would still be not considered genuine and within authority of agent for want of explicit power of oral sale. The attorney was specifically authorized to sell the property through registered sale-deed and in the light of strict rule of construction of power of attorney, the implied authority of oral sale could not be presumed. The attorney was not given general authorization for disposal of property in any manner rather his authority of sale was restricted by registered deed and consequently, his failure to act in the manner as provided in the document would render the transaction invalid”.

It was further observed that:

“The perusal of the attested copy of the power of attorney would show that various acts relating to the management of property, litigation and all other matters concerning the property, including the power of selling through registered sale-deed were mentioned therein in explicit terms and the attorney was bound to act strictly in the manner as specified in the power of attorney to ensure that the transaction was transparent and free of fraud and misrepresentation”.

It was further observed that:

“The property in respect of which the power of attorney was executed, was allotted to the vendor by the Rehabilitation Department and the powers given therein in the power of attorney were in respect of the litigation of property with the departments, including the power of filing of suits, written statements, appeals, revisions in the Civil Court. High Court and the Supreme Court, the management of property, the ejectment of tenant, receipt of produce and rent from the tenants to pursue litigation, civil and criminal to file affidavits and applications in the suits as well as in execution proceedings and let out property on lease. In addition, the attorney was also empowered to sell the property on receipt of the sale price through registered sale-deed and appoint the Advocate for his assistance. The perusal of this document would show that the power of sale of land was given to the attorney specifically by means of a registered sale-deed and probably the purpose of restricting the power of sale only by registered sale-deed was to avoid any misuse of the said power and to ensure that the sale was with the consent and knowledge of ‘the principal, therefore, in the light of rule of strict construction of such instrument, it could be visualized that the oral sale was not within the authority of agent under the instrument”.

1. Petitioner specifically pleaded in her plaint that she executed power of attorney only to look after her property and did not give any authority for alienation/sale of the suit property. While appearing in the witness box, she reiterated her version. Admittedly, petitioner is an illiterate lady, who was unaware of the technicalities and worldly affairs. Muhammad Aslam, her real brother was in position of a fiduciary on whose advice she was relying. Now, it was duty of the beneficiaries to prove that petitioner had complete knowledge and full understanding about the contents of the document and that she had independent and disinterested advice in the matter before entering into the execution of the document. Respondents have to prove that petitioner was made to understand that she was also giving power to sell the property to her attorney. Endorsement of Sub-Registrar on the document showing that same had been read over to such lady was of routine nature and could not be construed therefrom that she had been specifically apprised that she was also giving power to her attorney to sell the property. Mere thumb marking a document would not tantamount to a valid execution, until & unless such lady was duly apprised and made to understand the true nature & contents thereof. In this case, neither scribe of the attorney deed nor its marginal witnesses were produced in order to establish that the document was duly made understandable to the petitioner and its contents were in her knowledge. Respondents also failed to examine Sub-Registrar who registered the document. In this way, they withheld the material evidence and no effort whatsoever was made to produce the same in the Court.

2. The execution of power of attorney neither amounts to be divesting the principal of the authority over the subject matter nor does it amount to absolute right of the attorney over the property as its owner. The attorney has to act as an agent of the principal. There is a restriction that the attorney has to take the principal in confidence before converting the property of the principal on the force of the power of attorney into personal use or for the benefit of his near relatives. Admittedly, suit property was transferred by the general attorney to his son namely Ghulam Mustafa i.e. Respondent No. 1. If an attorney intends to exercise right of sale in his favour or in favour of next of his kin, he has to consult the principal before exercising that right and he should firstly obtain the consent and approval of the principal after acquainting her with all the material circumstances. In this regard, august Supreme Court of Pakistan in a case titled “Muhammad Ashraf & 02 others v. Muhammad Malik & 02 others (PLD 2008 SC 389)” held as under:

“It is a settled law by now that if an attorney intends to exercise right of sale/gift in his favour or in favour of next of his kin, he/she had to consult the principal before exercising that right. The consistent view of this Court is that if an attorney on the basis of power of attorney, even if “general” purchases the property for himself or for his own benefit, he should firstly obtain the consent and approval of principal after acquainting him with all the material circumstances. Here in the cases of Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others PLD 1985 SC 341, Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 and Nisar Ahmad and others v. Naveed-ud-Din and others 2004 SCMR 619, can be referred, which are fully applicable to the case in hand.”

The august Supreme Court of Pakistan in a case titled “Haq Nawaz & others v. Banaras & others (2022 SCMR 1068)” held as under:

“It was not even pleaded that she received any independent advice and/or that contents of the power of attorney were read over and explained to her before she executed it.

…. it was imperative for the appellants Nos. 1 and 2 to have demonstrated and proved that at the time of the execution of the power of attorney, she was fully conscious of the fact that the document also contained power to sell and that the entire document was read out and explained to her fully and truly, and further that she executed it under an independent advice. They had also to prove that the lady was fully aware and conscious of the consequences and implications of executing the said document. However neither did they prove, nor even pleaded any of it. It therefore cannot be held that Ghulam Rasool, was in fact authorized by Mst. Channan Jan to sell the suit land. The impugned sale/transfer was thus liable to be set -aside on this ground alone. In any view of the matter, since admittedly, the power of attorney did not specifically authorized Ghulam Rasool, to convey the property to his sons, or for that matter to any of his near ones, nor has he been able to prove that, he was otherwise so authorized. The impugned sale mutation was liable to be cancelled as rightly done by the revenue hierarchy. Since long it is well established that an attorney cannot lawfully make transfer of a property under agency in his own name, or for his benefit, or in favour of his associates, without explicit consent of the principal, and in the event he does so, the principal, under the mandate of Section 215 of the Contract Act, has a right to repudiate such transaction. Mst. Channan Jan having disowned the subject transaction, the same was rightly annulled as noted above.”

It was also held by apex Court of Pakistan in case “Mst. Shehnaz Akhtar & another v. Syed Ehsan-ur-Rehman & others (2022 SCMR 1398):

“It is a settled law by now that if an attorney intends to exercise right of sale/gift in his favour or in favour of next of his kin, he/she had to consult the principal before exercising that right. The Court further held that the consistent view of this Court is that if an attorney on the basis of power of attorney, even if “general”, purchases the property for himself or for his own benefit, he should firstly obtain the consent and approval of principal after acquainting him with all the material circumstances and also referred to the dictums laid down in the case of Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others (PLD 1985 SC 341), Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCMR 818) and Nisar Ahmad and others v. Naveed-ud-Din and others (2004 SCMR 619).”

1. Suit property was transferred through oral sale Mutation No. 110. Respondents also failed to prove valid execution of said oral sale mutation. Neither concerned Patwari who entered the mutation nor Revenue Officer who attested the mutation as well as witnesses in whose presence statements of the parties were recorded had been produced. They also failed to produce any proof regarding their death as no death certificates of these persons were brought on record. Article 80 of Qanun-e-Shahadat Order, 1984 provides the procedure how to prove when no attesting witness is found. It is obligatory upon the respondents to prove this fact that their witnesses had been died or cannot be traced out. In this regard, the august Supreme Court of Pakistan in “Ghulam Sarwar (Deceased) through L.RS, and others versus. Ghulam Sakina” (2019 SCMR 567) held as under:

“Mere assertion that marginal witnesses of the mutations had died would not discharge the burden of a party. There is nothing to establish the death of said witnesses.” The petitioner failed to lead any evidence to establish death or disappearance of the said witnesses.”

It was further held by the august Supreme Court of Pakistan in case “Muhammad Sarwar versus Mumtaz Bibi and others” (2020 SCMR 276) as under:

“It is also noticeable that the concerned Tehsildar who had allegedly sanctioned the mutation namely Rehmat Ali and another witness of the mutation namely Anwar Hussain (Patidar) were material witnesses of the alleged gift mutation. They were however not produced for any valid reason. Therefore, the presumption of Article 129 of the Qanun-e-Shahadat Order by reason of withholding of the best evidence can also be drawn against the petitioner.”

In another case titled “Sheikh Muhammad Munir v. Mst. Feezan (PLD 2021 SC 538) held as under:

“The Article states that it must be proved that the witness had either died or could not be found. Simply alleging that a witness cannot be found did not assuage the burden to locate and produce him. The petitioner did not lead evidence either to establish his death or disappearance, let alone seek permission to lead secondary evidence.”

The respondents had a way to prove the factum of death by leading secondary evidence but they failed to do so. In this way, best evidence was withheld without showing any justification, thus inference of Article 129(g) of Qanoon-e-Shahadat Order, 1984 has to be drawn against him. They also remained failed to comply with the requirements of Article 17 & 79 of Qanoon-e-Shahadat Order, 1984.

1. Admittedly, there are numerous cuttings on the alleged oral sale mutation. The said cuttings which have been made on the mutation were sufficient to declare the impugned sale null & void. Reliance is placed upon the case law cited as “Mst Hameedan Bibi & another v. Muhammad Sharif (2017 YLR 239).”

2. Respondents failed to prove the sale which constituted basis of the mutation or even the mutation itself. Neither they established on record that they had source of income to generate such a huge amount of Rs. 7,50,000/-in the year 1988 nor established through concrete and trustworthy evidence that said consideration amount was transferred to the principal. Neither any independent witness was produced in this regard nor they tendered any receipt with regard to payment of consideration amount.

3. General attorney namely Muhammad Aslam transferred the suit property through impugned Mutation No. 110 dated 15.09.1988 by using power of attorney dated 21.12.1981. Petitioner cancelled the said general power of attorney just after four days of sanctioning of the mutation through revocation deed dated 19.09.1988. After sanctioning of impugned mutation, deed of general power of attorney became useless. If transaction of sale was in her knowledge, then definitely she did not revoke the general power of attorney as it lost its importance after alienation of suit property.

4. Through written statement, respondents took a legal objection that suit of the petitioner is barred by limitation. Learned Trial Court framed issue No. 5 in this regard which was decided by the Trial Court against the respondents. Respondents did not prefer any cross-objections while challenging said findings. However while arguing their case before learned lower appellate Court, the respondents agitated the point of limitation. The learned appellate Court repelled their contention. Respondents No. 2 to 9 and 10-A to 10-F did not file any cross-revision before this Court.

Record reflects that petitioner instituted the suit on 31.10.2007 whereby she took the stance that she came to know about the impugned transaction one week before institution of the suit. Petitioner has specifically alleged that the impugned transaction is result of fraud & mis-representation.

1. It is well settled principle of law that fraud vitiates even the most solemn transaction. Any transaction based on fraud would be void. Limitation does not run against void transaction. Mere efflux of time did not extinguish the right of any party. Notwithstanding the bar of limitation, the matter can be considered on merit so as not to allow fraud to perpetuate. In this regard, I seek guideline from the cases of Hon‟ble Supreme Court of Pakistan reported as “Peer Bakhsh through LRs and others vs. Mst. Khanzadi and others” (2016 SCMR 1417);”Muhammad Iqbal versus Mukhtar Ahmad” (2008 SCMR 855)”Mst. Raj Bibi etc. versus Province of Punjab, etc.” (2001 SCMR 1591) and “Hakim Khan versus Nazeer Ahmad Lughmani” (1992 SCMR 1832).

With regard to point of limitation, the august Supreme Court of Pakistan in case titled as “Khan Muhammad through L.Rs and others versus Mst. Khatoon Bibi and others” (2017 SCMR 1476) held as under:

“As far as the question of limitation in filing suit for declaration is concerned, we also would like to discuss it in some detail. In general, the time provided for such suit under Article 120 of the Limitation Act, 1908 is six years. Different aspects regarding reckoning/calculating this period of limitation have been considered and some yardsticks have been settled by this Court in different nature of cases and the situation cropping-up according to the facts and circumstances of the cases. In the cases of simple correction of revenue record, it is settled by now that every fresh wrong entry in the record of rights would provide fresh cause of action provided the party aggrieved is in possession of the property as owner needless to say that it can be either physical or symbolic possession. Similarly, in the cases of claiming right of inheritance, it is well settled that the claimant becomes co-owner/co-sharer of the property left by the predecessor along with others the moment the predecessor dies and entry of mutations of inheritance is only meant for updating the revenue record and for fiscal purposes. If a person feels himself aggrieved of such entries, he can file a suit for declaration within six years of such wrong entries or knowledge. Any such repetition of the said entries in the revenue record would again give him a fresh cause of action or when the rights of anyone in the property are denied it would also give fresh cause of action. Similarly, it is again. settled by now that no limitation would run against the co-sharer. We for instance can quote few judgments covering all these aspects like “Ghulam Ali and 2 others v. Mst. Ghulam Samar Naqvi” (PLD 1990 SC 1), “Riaz Ahmad and 2 others v. Additional District Judge and 2 others” (1999 SCMR 1328), “Mst. Suban v. Allah Ditta and others” (2007 SCMR 635), “Muhammad Anwar and 2 others v. Khuda Yar and 25 others” (2008 SCMR 905) and “Mahmood Shah v. Syed Khalid Hussain Shah and others” (2015 SCMR 869).”

August Supreme Court of Pakistan in judgment “Muhammad Yaqoob v. Mst. Sardaran Bibi & others” (PLD 2020 SC 338), held as under:

“In addition, any transaction/document which is the result of fraud of misrepresentation can neither be perpetuated nor can it be protected on the ground of expiry of the period of limitation, whenever such transaction is assailed in a Court of law.”

Section 18 of the Limitation Act, 1908 is the most pivotal provision providing relief in computing the limitation period, applicable to a person who claims to be deprived of the knowledge of his right to sue based on the fraud of the other party. That section is reproduced for ease of reference:

“18. Effect of fraud. Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application:--

(a) against the person guilty of the fraud or accessory thereto, or

(b) against any person claiming through him otherwise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production.”

Where a person is by means of fraud kept from the knowledge of his right to institute a suit. In such circumstances, the period of limitation commences from the date when the fraud first became known to the “person injuriously affected”. Such injuriously affected person can, therefore, institute a suit within the limitation period specified for such suit in the First Schedule (“Schedule”) to the Limitation Act, but computing it from the date when he first had knowledge of the fraud, whereby he was kept from knowledge of his right to institute the suit. Thus, Section 18 of Limitation Act is an umbrella provision that makes the limitation period mentioned in the Articles of the Schedule, begin to run from the time different from that specified therein.

Therefore, it is the date of knowledge of the “person injuriously affected” of the fraud mentioned in Section 18, and of his right to sue that is relevant for computing the limitation period.

Thus, the limitation period of six years provided in Article 120 of the Limitation Act is to be computed from the time mentioned in the said Article, that is, when the right to sue accrued. It reads:

| | | | | --- | --- | --- | | Description of suit | Period of limitation. | Time from which period begins to run. | | 120. Suit for which no period of limitation is provided elsewhere in this schedule. | Six years. | When the right to sue accrues. |

The provision clearly declares that for computing the limitation, the period of six years would commence from the date of accrual of right to sue. To ascertain, when does the right to sue accrue, to seek a declaration of her ownership right over the suit property shown to have been transferred to see another provision of law, that is, Section 42 of the Specific Relief Act. A suit for declaration of any right, as to any property is filed under Section 42 of the Specific Relief Act, which reads:

“42. Discretion of Court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.”

It becomes evident by reading the above provisions that the right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right. The august Supreme Court of Pakistan in its recent judgment titled “Rabia Gula and others Vs. Muhammad Janan and others” (2022 SCMR 1009) while interpreting two ctions that cause the accrual of right to sue, to an aggrieved person: (i) actual denial of his right or (ii) apprehended or threatened denial of his right, held as under:

“8.13 Now, what “actions” can be termed as an “actual denial of right”, and what a mere “apprehended or threatened denial of right”, in the context of adverse entries recorded in the revenue record. It is important to note that a person may ignore an “apprehended or threatened denial” of his right taking it not too serious to dispel that by seeking a declaration of his right through instituting a suit, and may exercise his option to institute the suit, when he feels it necessary to do so, to protect his right. For this reason, every “apprehended or threatened denial” of right gives a fresh cause of action and right to sue to the person aggrieved of such apprehension or threat. However, this option to delay the filing of the suit is not available to him in case of “actual denial” of his right; where if he does not challenge the action of actual denial of his right, despite having knowledge thereof, by seeking declaration of his right within the limitation period provided in the Limitation Act, then his right to do so becomes barred by law of limitation.

Petitioner specifically pleaded in her plaint that respondents used to pay share produce to her at her home. While recording her statement she deposed that suit property was cultivated by the tenants and her brother collected the share produce from them and then paid to her. After the death of her brother they stopped to pay the share produce. She also clarified that after death of her brother when she visited the suit property then it came to her knowledge that the suit property had already been sold by her brother to the respondents by using the general power of attorney. Respondent No. 1 while recording his statement as DW-1 during cross-examination admitted that it is correct his father used to pay the share produce of the suit property to the petitioner. However he voluntarily said that his father gave to suit produce before sanctioning of the mutation. From the above it can easily be gathered that Muhammad Aslam had been giving share produce to the petitioner and after his death when respondents stopped to pay the share produce, alienation of suit property came to

her knowledge and she promptly instituted the suit to safeguard her interest.

1. In the light of above discussion, suit of the petitioner was within the limitation, hence, learned Courts below have rightly decided issued No. 5 qua limitation against the respondents and in favour of petitioner. I also endorse the findings of Courts below on this particular issue.

2. I have minutely gone through the record available on the file, evidence of the parties as well as the impugned judgment s and decrees passed by the learned Courts below. Learned Trial Court has erred in law while dismissing suit of the petitioner, whereas, learned Appellate Court has also not properly appreciated the evidence of the parties while partially allowing the appeal. The findings of the Courts below qua dismissing suit of the petitioner are merely based on surmises and conjectures, which is against facts and law, having not based upon proper appreciation of oral as well as documentary evidence.

3. In the wake of above discussion, this Civil Revision is allowed. Consequently, the impugned judgments and decrees of the Courts below dated 03.05.2011 & 23.07.2012 are hereby set-aside to the extent of dismissal of petitioner’s suit. Resultantly, the suit instituted by the petitioner is decreed as prayed for. The connected Civil Revision No. 791 of 2012 titled as “Ghulam Mustafa v. Irshad Bibi, etc.” is dismissed having no force. No order as to cost.

(Y.A.) Revision allowed

PLJ 2023 Lahore 573

Present: Muhammad Amjad Rafiq, J.

HafizALI RAZA--Petitioner

versus

DEPUTY COMMISSIONER, LAHORE, etc.--Respondents

W.P. No. 20258 of 2023, decided on 30.3.2023.

Punjab Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)--

----Ss. 3 & 23--Preventive detension--Justification of detension--Grounds of detension were not communicated to detenues--Challenge to--Misuse of authority--Conjectural presumption--Executive authority no doubt can take action on any source report in rare cases but then it becomes mandatory to collect material to justify detention--No material whatsoever was collected by authority; this Court has also adjourned case twice to produce material so far collected by authority but except bald assertions no other material was produced--It has been observed that grounds of detention have also not been communicated to detenus; mere conjectural presumption cannot take place of proof; requisite necessity for detention was not met before issuance of impugned order--This Court in Constitutional jurisdiction can entertain request of petitioner for declaring detention of detenus as illegal--Petitioner has assailed detention order as a whole, wherein, name of Moeed Ullah is also written, when entire impugned order is under scrutiny, it would be unjust to treat said Moeed Ullah separately--In any way representation of Moeed Ullah has not been decided so for, therefore, no bar attracts for taking decision with respect to his detention as well in this petition--It is not necessary that firstly detenus should file a representation and then assail their detention--No sufficient material is available with respondents to justify preventive detention through impugned order--Detention of detenus is declared as arbitrary--Petition allowed. [Pp. 577, 580, 581 & 582] B, C, E, G & H

PLD 2003 SC 442, 2001 SCMR 8, PLD 1973 Kar. 694, 2002 SCMR 914, 1999 PCr.LJ 2014 ref.

Punjab Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)--

----S. 3--Preventive detension--Preventative detention is a controversial method of confinement that allows a state to curtail liberty of a person, often under auspices of national security and maintenance of public order. [P. 576] A

Constitution of Pakistan, 1973--

----Art. 10(1)--Right to consult--Custody without information--No person who is arrested shall be detained in custody without being informed, as soon as may be, of grounds for such arrest, nor shall he be denied right to consult and be defended by a legal practitioner of his choice. [P. 581] D

Constitution of Pakistan, 1973--

----S. 199--Authority for judicial review--Authority for judicial review comes from Article 199 of Constitution of Islamic Republic of Pakistan, 1973, which expands jurisdiction of High Court to include orders, “directing that a person in custody within territorial jurisdiction of Court be brought before it so that Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.” Individuals that are preventatively detained also need not wait for their appearance before Review Board to seek judicial review of their detention. [P. 581] F

AIR 1952 Cal. 26 ref.

Mr. Muhammad Suleman, Advocate for Petitioner.

M/s. Sattar Sahil and Umar Arshad Butt, Assistant Advocate General(s) with Usman Khalid Khan, Additional Secretary (IS) and Irshad Ahmad Section Officer (IS-I) Home Department.

Date of hearing: 30.3.2023.

Order

Through this constitution petition the petitioner has challenged the vires of Order No. RDM/303 dated 21.03.2023 passed by Deputy Commissioner, Lahore/Respondent No. 1, hereinafter called as impugned order, by which thirteen persons named in Para-No. 3 of this petition, have been put under preventive detention.

1. Learned counsel for the petitioner contends that no material in substance was available which could warrant preventive detention of the detenus, therefore, Respondent No. 1 has travelled beyond his powers and committed excess while curtailing the liberty of the detunes which is one of the fundamental rights guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973. Further states that on the last date of hearing respondents were directed by this Court that if any supportive material has been collected before or after the passing of impugned order, the same shall be submitted for inspection of this Court and detenus were also ordered to be produced pursuant to Rule 39 of the Punjab Public Order Detenu Rules, 1979. Contention of learned counsel for the petitioner was attended; detenus present before the Court submit that they were either in their respective houses or at work-places when picked up by the police and so for grounds for their detention have not been conveyed to them nor they have been allowed to consult any legal counsel and even their family members or relatives were denied access.

2. Mr. Sattar Sahil, the learned Assistant Advocate General submits that detenus are political workers and were designing to participate in subversive activities through demonstration and protest against the sitting regime. Adds that their detention was justified to maintain the public order; he has placed reliance on the cases reported as “Sheikh Muhammad Musa versus Government of East Pakistan and others” (1969 PCr.LJ 862) and “Purnendu Dastigar versus Government of East Pakistan Through The Secretary Home (POL.) Department and 2 Others” (1970 PCr.LJ 11).

3. Contrary to above contentions, the learned counsel for the petitioner submits that in a case reported as “Federation of Pakistan through Secretary, Ministry of Interior Islamabad v. Mrs. Amtul Jalil Khawaja and others” (PLD 2003 SC 442) the Supreme Court of Pakistan has laid down the criteria to check the vires of order passed for preventive detention and in this case no material is available which could pass such threshold. He has further relied on the cases reported as “Muhammad Irshad versus Government of the Punjab and others” (2020 PCr.LJ 206), “Shahid Rasool versus Government of the Punjab through Secretary Home Department, Lahore and 6 others” (2023 YLR 333) and “Muhammad Abdaal alias Abdali versus Government of Punjab and others” (PLD 2020 Lahore 471).

4. It is now known that preventative detention is a controversial method of confinement that allows a state to curtail the liberty of a person, often under the auspices of national security and the maintenance of public order. Particularly during times of war, the doctrine of preventative detention operates as a legal go-between of sorts. It borrows elements from both humanitarian and criminal law, but strictly adheres to neither. Several international legal instruments, both binding and non-binding, address what constitute the standards arrest and detention. The Universal Declaration of Human Rights (UDHR), which may be construed as customary international law, states, “no one shall be subjected to arbitrary arrest, detention or exile.” The drafting history of the UDHR indicates that the original intention of the drafters was to prohibit arrest and detention that was “unlawful.” This is evident in the Drafting Committee’s original provision which prohibited arrest and detention “except in cases prescribed by law and after due process.” The concept of “unlawful” was replaced with “arbitrary” after deliberations that suggested that arbitrariness was a broader means of providing protection to individuals subject to arrest or detention. The International Covenant on Civil and Political Rights (ICCPR) is a binding extension of the UDHR. Article 9(1) of the ICCPR conveys the same principle:

“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

In her discussion of preventative detention and personal liberty, Claire Macken demonstrated that there are two possible interpretations of “arbitrary” as follows:

1. An arrest or detention is “arbitrary” if it is purely unlawful and not in accordance with procedure as laid down by law;

2. An arrest or detention is “arbitrary” if it is unlawful or unjust, which means that in addition to violating the letter of the law, it also violates the principles of justice in spirit.[1]

The security of person has also been saved through our Constitution as per Article-9 which says “No person shall be deprived of life or liberty save in accordance with law”

1. The relevant provision of law for preventive detention for the subject case is Section 3 of the Punjab Maintenance of Public Order Ordinance, relevant part is reproduced as under:

2. Power to 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 not exceeding six months at a time.

The purpose of above section is to prevent any person from acting in any manner prejudicial to public safety or the maintenance of public order. For ascertaining such act, it is essential that some material in tangible form should be available. Learned Assistant Advocate General states that only a source report is sufficient to prevent imminent danger by putting the person in captivity. Executive authority no doubt can take action on any source report in rare cases but then it becomes mandatory to collect the material to justify detention and the minimum period for collection of such material is impliedly reflected in Section 3(6) of Ordinance ibid which is as under:

If a detention order of a person is made under this section, the authority making the order:

(a) shall, within fifteen days of the detention of the person, communicate to the person the grounds on which the order has been made, and shall afford the person the earliest opportunity of making a representation to the Government against the detention order;

Such material should obviously be in tangible form like; SMS/Voice messages, Whats app Messages or of other social media accounts, Pamphlets/handouts, Posters, Photographs, Paintings, Caricatures, Books/Literature, Newspapers, Audio/Video CDs, Electronic and Digital material, Wall chalking, Banners/Pena flex, recording of demonstrations in Rallies, Material on face book, twitter or any other social media account, call records, geofencing through CDR, Speeches in Public Meetings, Radio & T.V. shows, Surveillance report in any form, Reports from international agencies, Suspicious transaction report from any financial institution, membership record of affiliated association or political party etc. On collection of such material there must be a standard satisfaction of authority for necessity to make an order for preventive detention which means that there must be some reasonable grounds to justify the order. What does reasonable grounds mean, it has been laid down by a Division Bench of this Court in case titled “Saif-ur-Rehman vs GOP, etc” (Criminal Appeal No. 315/2022) decided on 10.01.2023, as under:

“Reasonable grounds” means

a set of facts or circumstances which would satisfy an ordinary cautious and prudent person that there is reason to believe and which goes beyond mere suspicion.

a suspicion based on reasons that can be articulated. It is more than mere hunch or supposition, but much less than the level of proof that would be required to impose a disciplinary sanction.

more than mere suspicion but less than the civil test of balance of probabilities. It is a much lower threshold than the criminal standard of “beyond reasonable doubt.” It is a bona fide belief in a serious possibility based on credible evidence.

that there must be some supporting information for the suspicion. A mere allegation is not enough. Reports must not contain information that is known to be untrue.

information that establishes sufficient articulable facts that give a trained law enforcement or criminal investigative agency officer, investigator, or employee a reasonable basis to believe that a definable criminal activity or enterprise is, has been, or may be committed.

1. In the case reported as “Federation of Pakistan through Secretary, Ministry of Interior Islamabad v. Mrs. Amtul Jalil Khawaja and others” (PLD 2003 SC 442), following criteria has been set down by the Supreme Court of Pakistan to check the vires of order passed by the authority:--

(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”

Keeping in mind the above guidelines, I have examined the report submitted before this Court and observe that following reasons are mentioned in the impugned order:

“The above said persons are active members of a Political Party. It is further submitted that they are involved in activities, raised/chanted objectionable slogans amongst the general public to provoke and incite them. Moreover, they instigated the general public to take out rallies which is destined to create nuisance for public and they also delivered objectionable speeches at Davis Road, Lahore. On 18-03-2023, the above activists alongwith their accomplices blocked the Davis Road, and created law & order situation and caused harassment amongst the general public. They become potential danger/threat to public peace and tranquility and caused law & order situation. Such like activist/miscreant will give rise to a situation prejudicial to public safety and maintenance of public order, if left unchecked.”

In support of such information no material whatsoever was collected by the authority; this Court has also adjourned the case twice to produce the material so far collected by the authority but except bald assertions cited above no other material was produced. It has been observed that grounds of detention have also not been communicated to the detenus; mere conjectural presumption cannot take the place of proof; thus, the requisite necessity for detention was not met before issuance of impugned order.

1. Pursuant to the laws controlling preventative detention, a person may only be detained if there are reasonable grounds. The Supreme Court of Pakistan in a case reported as “The Government of East Pakistan versus Mrs. Rowshan Bijaya Shaukat Ali Khan” (PLD 1966 Supreme Court 286) has held that the grounds given by the authority must be “complete and full”, which means that;

“There should be as full a statement of the evidence and circumstance and the particular acts of the detenu on which the inference against the detenu is based as is reasonably possible under the circumstances. The Government surely does not in any way suffer if it gives a complete statement of facts to the detenu and the cause of justice is advanced by a full disclosure.”

The Karachi High Court reinforced this position in Muhammad Younus versus Province of Sind through the Secretary to The Government of Sind Home Department, Sind Secretariat, Karachi and 2 Others (PLD 1973 Kar 694), It held, “The exercise of power by the detaining authority is subject to the ascertainment of reasonable grounds, which is a judicial or quasi-judicial function.”

This has further been fortified through the Constitution of the Islamic Republic of Pakistan, 1973 as per Article-10(1) which enunciates that:

“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.”

1. Though learned Assistant advocate General has maintained that this Court lacks jurisdiction to dilate upon the issue of preventive detention as per Section 23 of The Maintenance of Public Order Ordinance, 1960 yet the Court is not much impressed of such contention which has no force. This Court in Constitutional jurisdiction can entertain the request of the petitioner for declaring the detention of the detenus as illegal. While the power of the executive to detain is written into the specific preventative detention laws, the authority for judicial review comes from Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, which expands the jurisdiction of the High Court to include orders, “directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.” Individuals that are preventatively detained also need not wait for their appearance before Review Board to seek judicial review of their detention. Reliance is on “Raman Lal Rathi vs Commissioner of Police and others” (AIR 1952 Cal. 26).

2. To prevent misuse of power by the executives and to protect the fundamental rights it has been held by Supreme Court in case reported as “Government of Sindh and others versus Mst. Najma” (2001 SCMR 8) like as under:-

“Since it is the duty of the superior Courts to protect the fundamental rights of the people, as such, for achieving above object, the superior Courts can exercise all incidental and ancillary power and also can adopt new strategies to enforce the fundamental rights.”

and in the cited case following order of High Court for imposing cost was upheld;

“Order of preventive detention of detenu, who was candidate in elections, passed by District Magistrate, was declared to be without lawful authority and of no legal effect by the High Court and a cost of Rs. 5,000 each was imposed on District Magistrate and the Superintendent of Police personally”

Same was the situation in other case reported as “State through Advocate-General, Sindh, Karachi versus Mst. Taji Bibi” (2002 SCMR 914)

“detenue was kept in custody without lawful order and the order of detention under the Maintenance of Public Order Ordinance, 1960, was found to be in flagrant violation of the mandatory requirements of Section 3 of the said Ordinance and Article 10 of the Constitution, and the detenue was allowed compensation at the rate of Rs. 5,000 per day for a period of 32 days.”

1. The learned Assistant Advocate General has pointed out that one of the detenus namely Moeed Ullah has also filed a separate petition through one Zia-ud-Din which was fixed before another learned Bench and a direction was passed for treating his application as representation for decision in accordance with law, therefore, at least he cannot claim any relief in these proceedings. It has been observed that present petitioner has assailed the detention order as a whole, wherein, name of Moeed Ullah is also written, therefore, when the entire impugned order is under scrutiny, it would be unjust to treat said Moeed Ullah separately. In any way the representation of Moeed Ullah has not been decided so for, therefore, no bar attracts for taking decision with respect to his detention as well in this petition. Even otherwise, it is not necessary that firstly the detenus should file a representation and then assail their detention. Reliance is placed on the case reported as “Abdul Latif Shamshad Ahmed vs. District Magistrate, Kasur” (1999 PCr.LJ 2014).

2. For what has been discussed above, since no sufficient material is available with the respondents to justify the preventive detention through impugned order. Thus, detention of detenus is declared as arbitrary, consequently, the instant writ petition is allowed, the impugned order Bearing No. RDM/303 dated 21.03.2023 passed by Deputy Commissioner, Lahore is set-aside and the detenus are directed to be released forthwith, if not required to be detained in any other case.

(Y.A.) Petition allowed

[1]. Research Society of International Law; Preventive-Detention-Maira-Article-ICRC.

PLJ 2023 Lahore 583 [Rawalpindi Bench, Rawalpindi]

Present: Mirza Viqas Rauf, J.

SheikhMUHAMMAD HAFEEZ--Petitioner

versus

FEDERATION OF PAKISTAN etc.--Respondents

W.P. No. 3256 of 2022, decided on 27.2.2023.

Constitution of Pakistan, 1973--

----Arts. 9, 15, 16 & 199--Punjab Long March--Attack with fire-arms on participants of longmarch--Lodging of FIR--Creation of panic in PTI Camps--Starting of sin sits--Inconvenience to people due to traffic jams in large numbers--Submission of report regarding sin site--Primary duty of police--Role of National Highway and Motorway Police--Role of General Secretary and Chairman PTI in commission of offences by protestors--Right to assemble--Direction to--Destiny of Long March was from Liberty Chowk Lahore to Islamabad, Capital Territory--The participants of Long March and their leadership when arrived at Wazirabad they were attacked by unknown assailants with firearms, one of which was arrested at spot-- Though a First Information Report was registered at relevant police station qua incident but it created panic in camps of “PTI”-- The sit-ins started from 05.11.2022 and continued till 11.11.2022 made it impossible for citizens to enter or move out from city through any means of transport--Public and goods transport remained closed for six days due to “PTI” sit-ins--Business in area had come to a virtual standstill on Murree Road and other highways--Citizens had suffered a great deal from road blockades-- Some of participants of sit-ins were armed with deadly weapons and they even were not shy to use same to create deterrence for achieving their goals--The report and material in shape of snaps as well as CD alongwith report submitted by “IB” not only discloses identity of most of protestors but “PTI” MNAs, MPAs as well as Ministers of their ally government in province--On contrary, reports submitted by Commissioner Rawalpindi, Deputy Commissioner, Rawalpindi, RPO, CPO Rawalpindi and Home Department are too far from truth--It is primary duty of police to protect life, property and liberty of citizens-- police has played a role of silent spectator, rather remained as privy to criminal acts of protestors--There was a disruption not only at Highways but at Motorways, more particularly at entry and exit points, role of National Highways and Motorway police can also not be ignored--From its inception, role of Motorways police was exemplary but with passage of time, their efficiency like other departments has started deteriorating though still better from many of Departments but it needs serious consideration of concerned authorities, especially I.G of Motorway Police--Role of Respondents No. 8 and 9 it is observed that though it is claim of petitioners that they were in fact basic source of all this situation but no concrete or cogent material has been brought before Court to demonstrate that said respondents have actively played any role for commission of offences by protestors--Instead, Respondent No. 8, in a public gathering held during pendency of this petition, tried to defend illegal and unlawful acts of protestors and he had uttered certain remarks against superior judiciary on account of which he was issued a show cause notice--Respondent No. 8 in pursuant to order of Court entered his appearance and tendered unconditional apology, which was accepted and show cause notice was recalled--Petitions disposed of. [Pp. 585, 586, 590, 596, 599 & 600] A, B, C, D, E, F, G, H, I, J, K, L & M

Constitution of Pakistan, 1973--

----Art. 16--Right to assemble--Right to assemble peacefully is a fundamental right of every citizen guaranteed under Article 16 of “Constitution” but such right is neither unbridled nor unlimited--Article 16 though guarantees such right but it is always subject to reasonable restrictions imposed by law in respect of public order.

[P. 600] N

2011 KLR SC 298 & PLD 2019 SC 318 ref.

M/s. Israr-ul-Haq Malik, Arsalan Rasheed Qureshi and Asad Mahmood Abbasi, Advocates for Petitioner.

M/s. Malik Muhammad Siddique Awan, Additional Attorney General, Sajid Khan Tanoli, Deputy Attorney General and Arshad Mehmood Malik, Assistant Attorney General for Respondent No. 1.

M/s. Malik Amjad Ali, Additional Advocate General, Mirza Asif Abbas, Assistant Advocate General and Qaiser Abbas Shah, Assistant Advocate General for Punjab with Liaqat Ali Chattha, Commissioner Rawalpindi, Syed Shahzad Nadeem Bukhari, CPO, Taimoor Khan, CTO, Ms. Zunera, S.P, Ms. Shazia, DSP (Legal) and Waqas, S.P, Potohar for Respondents No. 2 to 7.

Mr. Faisal Fareed Ch., Advocate for Respondents No. 8 and 9.

Date of hearing: 7.2.2023.

Judgment

This single judgment shall govern three constitutional petitions i.e. W.P. No. 3256 of 2022, 3253 of 2022 and 3258 of 2022 as all these petitions stem out from a common incident and canvassing similar questions of law and facts and having similar background as well.

Factual Background.

1. The Long March (as given the name as “Haqeeqi Long March”) started on 28.10.2022 from Liberty Chowk Lahore under the patronage and leadership of Imran Ahmed Khan Niazi (Respondent No. 9), the Chairman of one of the largest Political Party, Pakistan Tehreek-e-Insaf (hereinafter referred to as “PTI”), on the basis of some political demands to be fulfilled by the Federal Government. The Destiny of the Long March was from Liberty Chowk Lahore to Islamabad, the Capital Territory. The participants of the Long March and their leadership when arrived at Wazirabad on 03rd November 2022, they were attacked by unknown assailants with fire-arms, one of which was arrested at the spot. Unfortunately, in the said incident, one citizen had lost his life and some got injured, including their Chairman. This incident resulted into a change in the object of Long March and also disrupted its normal course. Though a First Information Report (hereinafter referred to as “F.I.R”) was registered at the relevant police station qua the incident but it created panic in the camps of “PTI” as the leadership and workers are of the view that said “F.I.R” did not capture the actual facts and it is not in line with their expectations. This prompted the workers and second row of “PTI” leadership generally throughout Pakistan and more specifically within Rawalpindi region to hold demonstrations which includes sit-ins on entry and exit points of Rawalpindi as well as Motorway Interchange of Rawalpindi-Islamabad. The sit-ins started from 05.11.2022 and continued till 11.11.2022 made it impossible for the citizens to enter or move out from the city through any means of transport. Those travelling to Islamabad from Murree Road were facing inconvenience while people going to offices and other destinations had been facing traffic jams in large numbers. Public and goods transport remained closed for six days due to the “PTI” sit-ins. Business in the area had come to a virtual standstill on Murree Road and other highways. Citizens including traders, students, doctors, paramedic staff, lawyers, Government Employees and patients had suffered a great deal from road blockades. Moreso, the life activity was practically paralyzed. The work of the Courts within District Rawalpindi was affected practically due to the non-availability of the litigants and their counsel as they failed to attend their cases. Some of the participants of the sit-ins were armed with deadly weapons and they even were not shy to use the same to create deterrence for achieving their goals. This situation remained intact till 11.11.2022, until filing of these petitions, when by way of order dated 10th November 2022, in W.P. No. 3253 of 2022 learned Law Officer representing the Province was directed to ensure the presence of the respondents i.e. Commissioner Rawalpindi, Deputy Commissioner, City Police Officer, Chief Traffic Officer and Senior Superintendent of Police (Operations), Rawalpindi as well as some responsible officer on behalf of Chief Secretary Punjab. On the next date, i.e. 11th November 2022, all the concerned officers were directed to submit their respective reports with regard to the matter in issue stating the facts as to at what points, the roads were blocked and what measures were taken till that time to ensure the free movement of the people in terms of Articles 9 & 15 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as “Constitution”). On the very same date, Senior Superintendent of Police (Operations), Rawalpindi and Deputy Commissioner, Rawalpindi undertook before the Court that they will ensure the free movement of the people, in the meanwhile.

2. This was surely the turning point and thereafter almost all places and points were got freed from the protestors. On 16th November 2022, reports in terms of order dated 11th November 2022, were filed by Chief Traffic Officer, City Police Officer and Commissioner Rawalpindi Division, however, reports on behalf of Chief Secretary, Punjab Lahore, Inspector General of Punjab Police, Lahore, Regional Police Officer, Rawalpindi and Deputy Commissioner, Rawalpindi were also requisitioned on the said date alongwith a comprehensive report from Intelligence Bureau on the subject.

3. The gist of the reports submitted by the respective departments is given below:-

Ministry of Interior, Islamabad (Respondent No. 1)

It is mentioned that to review the overall law and order situation in the country in the backdrop of long march, a special meeting was held in which all the Chief Secretaries and Inspectors General of Police participated in which special instructions were parted to all the law enforcement agencies to tackle with the issue at hand through exclusive measures. Moreover, respective Governments were asked to deploy requisite force to assist the NH&MP for keeping the national highways, motorways and link roads open. Moreover, a reference had been made to the Ministry of Law & Justice for furnishing constitutional/ legal opinion in the matter, however, the motorways and highways were cleared as a result of these efforts and the inconvenience of the public was averted.

Chief Secretary Punjab/Home Department (Respondent No. 2)

It is reported that as per report of Respondent No. 3, after the Wazirabad incident, an abrupt emergence of protestors from almost all the suburbs of the city caused the blockade of roads at different points. This caused nuisance in the general public. Keeping in view of 2007 incident, the Respondent No. 3, alongwith District Administration, Rawalpindi took very cautious measures, it took immediate steps to handle the situation, coordinated with the Home Department, City Police Officer, Rawalpindi and the leadership of political parties. The police was ordered to re-open/unblock the roads. The leadership of political parties was engaged to calm down the protestors. All the blocked points were reopened. The mobs/protestors tried to affect the smooth flow of traffic for three days, but Respondent No. 3 alongwith District Administration, Rawalpindi dealt with the situation time and again. The general public was kept informed about the prevailing situation on daily basis. The traffic was diverted to the alternative routes and the general public was directed to follow the new administrative instructions. Furthermore, social and electronic media were used to ease and inform the general public. Apprehending the law and order situation, the District Administration, Rawalpindi announced three days local holiday in Educational institutions for the safety of children. All the untoward situation was handled leaving no leaf unturned. At present, all the roads are cleared and open and there remains no hurdle in the smooth running of traffic flow. Government of Punjab is committed to ensure the fair and peaceful running of traffic and others administrative affairs within its jurisdiction in future as well. Further, Government of Punjab has acted in accordance with true spirit of law and judgments passed by the superior Courts to protect the life and property of citizens in the Province of Punjab.

Commissioner, Rawalpindi (Respondent No. 3)

It is reported that amidst the outcome of Wazirabad incident and in order to avoid 2007 like incident, stern steps to maintain the law and order situation were taken including announcement of three days local holiday in Educational Institutions of the City.

Inspector General of Police (Respondent No. 4)

It is reported that pursuant to order dated 16th November, 2022 passed by the Hon’ble Court, reports were sought from AIG/Operations, CPO Punjab and Regional Police Officer, Rawalpindi. According to the report of AIG/Operations, CPO Punjab, on receipt of letter dated 26th October, 2022 issued by Government of Punjab, Home Department regarding safety and security instructions Long March schedule to be started from 28.10.2022 by “PTI”. Directions were then issued to the Addl: IGsP/Special Branch, CTD & PHP, Punjab, CCPO/Lahore, RPOs, Gujranwala, Gujrat, Sheikhupura and Rawalpindi, City Police Officers, Gujranwala and Rawalpindi and District Police Officers, Gujrat, Sheikhupura & Jhelum that a comprehensive strategy be adopted for the foolproof security of the participants during their movements/stay through Punjab to ensure the requisite precautionary and security measures as mentioned in the letter of Home Department.

Regional Police Officer (Respondent No. 5)

It is reported that on receipt of order dated 16th November, 2022 passed by the Hon’ble Lahore High Court, report was sought from the City Police Officer, Rawalpindi. As per report of CPO, Rawalpindi, the members of the political party started protest against attack upon Chairman “PTI” and tried to block the roads in this district, due to which the traffic on the roads was badly affected. The blockade of roads by the protestors created law and order situation and it was apprehension that some untoward incident could be occurred due to which the protestors were handled carefully and urged to vacate the roads. Most of the protestors were camped near the roads which affected traffic flow and it gave semblance of the roads blockade. The district as well as Traffic Police managed the traffic blockade points by pushing the most protestors on one side of the road and the other side was cleared for the two-way traffic. However, once the roads got opened, different groups of protestors arrived and caused traffic conjunction. This continued for three days, however, traffic police gave alternate diversion routes to avoid inconvenience to general public. Moreover, criminal cases were registered at Police Station Taxila and Naseer Abad against the unknown protestors. It is further submitted that the general public was kept informed on daily basis about the prevailing situation and alternate routes of traffic through electronic as well as social media to provide maximum convenience. All the hurdles created by the protestors on the roads have been removed and now at the present all roads are cleared and there is no hurdle in smooth flow of traffic in the jurisdiction of District Rawalpindi.

City Police Officer, Rawalpindi (Respondent No. 6)

It is submitted that due to Wazirabad incident, law and order situation of the country especially Punjab was disturbed. Heavy contingency of police was deployed to tackle the situation and with the collaboration of Traffic police, the protestors were pushed on one side of the road leaving the other side for free movement of the transport.

Deputy Commissioner, Rawalpindi (Respondent No. 7).

Effective measures were taken including negotiation with the leadership of political parties to keep the smooth flow of traffic and general public was informed about the situation on daily basis through different modes.

National Highways and Motorway Police

It is mentioned that National Highways and Motorway Police has very limited mandate to administer and control the traffic related issues on Highways and Motorway, however, after the announcement of countrywide protest by a political party, detailed instructions were conveyed to the NH&MP field formations which includes, inter alia to maintain close liaison with the concerned SDPOs/NHA/FWO and also to remain in touch with the concerned SHOs of the District Police for ensuring deployment of sufficient contingents of police at main toll plazas. Their main focus was to maintain free flow of traffic, ensure the safety of commuters. It is submitted that for the purpose, special police wings in the shape of anti-riot force and police reserves have been established by the local police, while the manpower sanctioned for the National Highways and Motorway Police does not include such anti-riot wings or reserves. Therefore, in such situations, NHMP becomes heavily dependent on local administration and provincial police.

1. In addition to the above, with consent of all in attendance, detailed report was requisitioned from Intelligence Bureau (I.B) vide order dated 16th November, 2022, which was submitted by the learned Law Officer in a sealed envelope on 23rd November, 2022. Though an immunity was solicited qua the said report but after opening of seal and examining the report and material placed in support thereof, I do not find any such material justifying extending of any privilege to the same, so the same may be made part of record. The report is not only comprehensive, supported by relevant material and nearer to the truth as well but contrary to the reports submitted by the Commissioner, Deputy Commissioner, Regional Police Officer, City Police Officer and National Highways and Motorway Police. As per said report, on 7th November, 2022, “PTI” activists blocked major roads leading towards ICT in the jurisdiction of Rawalpindi and Attock districts at different points. These blockades continued till 11th November, 2022 on the following places/points:--

a. Shamsabad, Murree Road, Rawalpindi in front of Allama Iqbal Park.

b. Gulzar-e-Quaid, Old Airport Road, Rawalpindi.

c. Pirwadhai Mor (Towards IJP Road), Rawalpindi.

d. Motorway (M-2) Near Village Banjnial, Rawalpindi.

e. Motorway (M-1) Near Islamabad Toll Plaza.

f. Chak Beli Mor, GT Road, Rawalpindi.

g. Mian Misyari Chowk, Murree Expressway, Tehsil Murree.

h. Ratta Shah Chowk, Margalla, GT Road, Tehsil Taxila.

i. Bypass GT Road, Tehsil Taxila.

j. GT Road at Banth Adda, Tehsil Gujar Khan

k. Rawalpindi-Kohat Road (N-80) at Dhok Maskeen, Fateh Jhang, District Attock.

It is mentioned in the report that the protest was led by “PTI” MNAs/MPAs/ Provincial Ministers. The protestors managed to block all the major roads of Rawalpindi by taking advantage of their own Government in the province (Punjab). No effective measures/actions were seen against them by the Provincial Government. It is also mentioned in the report that two FIRs were got registered at Police Station Taxila and Naseer Abad but against unknown protestors. It is also find mentioned in the report that on the intervening night of 9th/10th November, 2022, persons affiliated with Malik Taimoor Masood Akbar (MPA/“PTI”), Ammar Siddique Khan (MPA/“PTI”) and Mansoor Hayat (MNA/“PTI”) exchanged harsh words and later opened fire on each other. Resultantly, three persons of Ammar Siddique Khan Group got injured, which resulted into registration of FIR No. 1464 dated 10th November, 2022 and a cross-version of the same date at Police Station Taxila.

1. Heard. Record perused.

2. The report and the material in the shape of snaps as well as CD alongwith report submitted by “IB” not only discloses the identity of the most of the protestors but the “PTI” MNAs, MPAs as well as Ministers of their ally government in the province. On the contrary, reports submitted by the Commissioner Rawalpindi, Deputy Commissioner, Rawalpindi, Regional Police Officer, Rawalpindi, City Police Officer, Rawalpindi and Home Department are too far from the truth.

3. Before further embarking upon the matter in issue, it would be advantageous to have a glance of the relevant laws conferring power to the Civil Administration and the Police for dealing with law and order situation including the issue at hand. In order to institute a comprehensive system of civil administration in the Punjab for efficient administration, improved service delivery, better coordination, supervision and regulatory enforcement and for ancillary matters, the Punjab Civil Administration Act, 2017 (Act III of 2017) (hereinafter referred to as “Act, 2017”) was promulgated. Section 3 of the “Act, 2017” encompasses the domain of Commissioners, Deputy Commissioners and Assistant Commissioners, which reads as under:

3. Commissioners, Deputy Commissioners and Assistant Commissioners.--(1) The Government shall appoint a Commissioner for each Division, a Deputy Commissioner for each District and an Assistant Commissioner for each Tehsil in the Punjab from amongst the officers of the Service.

(2) A Commissioner shall be the officer-in-charge of general administration and principal representative of the Government in the Division.

(3) A Deputy Commissioner shall be the officer-in-charge of general administration and principal representative of the Government in the District.

(4) An officer appointed under sub-section (1) shall perform the functions and exercise the powers under this Act or any other law or as the Government may, by order or notification, assign or delegate.

(5) The Commissioner and Deputy Commissioner shall be subject to general superintendence and control of the Government.

Functions of the Commissioner, Deputy Commissioner, Additional Commissioners and Additional Deputy Commissioners are laid down in Sections 4, 5 and 6 of the “Act, 2017”, which are reproduced below:

1. Functions of the Commissioner.--A Commissioner, in addition to any function under sub-section (4) of Section 3 and Section 15, shall:

(a) supervise and monitor the discharge of duties by the Deputy Commissioners in the Division;

(b) coordinate the work of all the offices and public facilities in the Division;

(c) facilitate and coordinate any work which concerns two or more Districts in the Division or two or more Divisions for purposes of integrated development, efficient use of public resources and effective service delivery; and

(d) supervise and coordinate the implementation of the policies, instructions and guidelines of the Government.

1. Functions of the Deputy Commissioner.--A Deputy Commissioner, in addition to the functions mentioned in sub-section (4) of Section 3 and Section 15, shall:

(a) supervise and monitor the discharge of duties by the Assistant Commissioners in the District;

(b) coordinate the work of all the offices and public facilities in the district for purposes of integrated development, efficient use of public resources and effective service delivery;

(c) support and facilitate the offices and public facilities in the District;

(d) ensure that the standards set by the Government in respect of a public facility are fully observed; and

(e) supervise and coordinate the implementation of the policies, instructions and guidelines of the Government.

1. Functions of the Additional Commissioners and Additional Deputy Commissioners.--(1) The Government may appoint one or more Additional Commissioner in each Division and one or more Additional Deputy Commissioner in each District from amongst the officers of the Service.

(2) An Additional Commissioner shall serve under the general administration and control of the Commissioner and shall perform the functions under this Act or any other law or as the Commissioner may, by order, assign.

(3) An Additional Deputy Commissioner or an Assistant Commissioner shall serve under the general supervision and control of the Deputy Commissioner and shall perform functions under the Act or any other law or as the Deputy Commissioner may, by order, assign.

(4) An Assistant Commissioner may distribute work among the officers subordinate to him in the manner and to the extent prescribed.

1. Section 15 of the “Act, 2017” bestows duty upon the Commissioner, Deputy Commissioner and the Assistant Commissioner, as the case may be, to ensure the maintenance of public order and public safety and safeguarding public or private properties in their respective jurisdictions. For ready reference and convenience, Section 15 is reproduced below:

2. Public order etc.--(1) The Deputy Commissioner on his own, or on the request of the head of a local government or head of the District Police, may convene a meeting for purposes of maintaining public order and public safety and safeguarding public or private properties in the District; and, the decisions taken in the meeting shall be executed by all concerned accordingly.

(2) Notwithstanding anything in sub-section (1), in case of any unforeseen or sudden situation that threatens or is likely to threaten pubic order, public safety or public and private properties in the District, the Deputy Commissioner and the head of the District Police shall jointly take appropriate action to address the situation.

(3) The provisions of sub-section (1) and sub-section (2) shall apply mutatis mutandis to the Commissioner and Assistant Commissioner respectively in relation to the Division and the Tehsil.

(Underlining supplied for emphasis)

1. It appears from the report submitted by the Commissioner and the Deputy Commissioner that they were perhaps oblivious of their duties as ordained under the “Act, 2017”. It is though mentioned in the report of Commissioner, Rawalpindi that steps were taken to maintain the law and order situation but practically there was nothing except declaring three days public holiday in educational institutions of the city. It is quite strange that as per report of Deputy Commissioner, he took effective measures including negotiation with the leaders of the political parties to maintain law and order on daily basis through different modes. It is thus apparent from their own reports that the Commissioner and Deputy Commissioner have failed to discharge their duties, rather remained aloof from the critical situation and instead opted to assume the role of reconciliator or mediator, which is not the command of law.

2. It would not be out of place to mention here that on 11th November, 2022, Capt. (R) Shoaib Ali, Deputy Commissioner, Rawalpindi and Waseem, Senior Superintendent of Police (Operations), Rawalpindi, while being in attendance, undertook before the Court to ensure free movement of the people whereafter most of the blocked points were freed by the protestors, which were surely on account of filing of these petitions before the Court.

3. Adverting to the role of police, it is observed that as per command of the Police Order, 2002, the police has an obligation and duty to function according to the Constitution, Law and democratic aspirations of the people. The Police Order, 2002 was promulgated to reconstruct the police for efficient prevention and detection of crime and maintenance of public order. Chapter II of the Order lays down the responsibilities and duties of the police. Articles 3 and 4 are more relevant, which are reproduced below for the purposes of convenience:-

4. Attitude and responsibilities of police towards the public. It shall be the duty of every police officer to--

(a) Behave with the members of the public with due decorum and Courtesy;

(b) Promote amity;

(c) Guide and assist members of the public particularly the poor, disabled or physically weak and children who are either lost or find themselves helpless on the streets or other public places; and

(d) Aid individuals who are in danger of physical harm particularly women and children.

1. Duties of police.--(1) Subject to law, it shall be the duty of every police officer to–

(a) Protect life, property and liberty of citizens;

(b) Preserve and promote public peace;

(c) Ensure that the rights and privileges, under the law, of a person taken in custody, are protected;

(d) Prevent the commission of offences and public nuisance;

(e) Collect and communicate intelligence affecting public peace and crime in general;

(f) Keep order and prevent obstruction on public roads and in the public streets and thoroughfares at fairs and all other places of public resort and in the neighbourhood of and at the places of public worship;

(g) Regulate and control traffic on public roads and streets;

(h) Take charge of all unclaimed property and to prepare its inventory;

(i) Detect and bring offenders to justice;

(j) Apprehend all persons whom he is legally authorized to apprehend and for whose apprehension, sufficient grounds exist;

(k) Ensure that the information about the arrest of a person is promptly communicated to a person of his choice;

(l) Enter and inspect without a warrant on reliable information any public place, shop or gaming-house where alcoholic drinks or narcotics are sold or weapons are illegally stored and other public places of resort of loose and disorderly characters;

(m) Obey and promptly execute all lawful orders;

(n) Perform other duties and exercise powers as are conferred by this Order, the Code or any other law for the time being in force;

(o) Aid and co-operate with other agencies for the prevention of destruction of public property by violence, fire, or natural calamities;

(p) Assist in preventing members of public from exploitation by any person or organized groups;

(q) Take charge of lunatics at large to prevent them from causing harm to themselves or other members of the public and their property; and

(r) Prevent harassment of women and children in public places.

(2) Police officer shall make every effort to–

(a) Afford relief to people in distress situations, particularly in respect of women and children;

(b) Provide assistance to victims of road accidents;

(c) Assist accident victims or their heirs or their dependents, where applicable, with such information and documents as would facilitate their compensation claims; and

(d) Cause awareness among the victims of road accidents of their rights and privileges.

(3) It shall be the duty of a police officer to lay information before a competent Court and to apply for a summons, warrant, search warrant or such other legal process as may, by law, be issued against any person suspected of committing an offence.

From the perusal of the above referred provisions of law, it is manifestly clear that it is primary duty of the police to protect life, property and liberty of citizens. The police has to ensure that the rights and privileges of the public shall be protected. As compared to the above, the police has played a role of silent spectator, rather remained as privy to the criminal acts of the protestors.

1. It was though expected from the City Police Officer that being head of the police of the city district, he not only commands the force in performance of its duties but to assist the Court in digging out the truth but surprisingly, role of City Police Officer is not appreciable at all. He not only failed to perform his duties but tried to cover the deeds of protestors and their masters. Despite availability of overwhelming material, only two FIRs were registered against unknown persons under minor offences. Registration of FIRs was only an eyewash and actual culprits were even not touched till today though their acts were clearly covered under Section 6 of the Anti-terrorism Act, 1997. Role of Regional Police Officer was also not different from the City Police Officer. In whole episode, he also remained as dysfunctional organ.

2. Since there was a disruption not only at the Highways but at the Motorways, more particularly at the entry and exit points, so role of National Highways and Motorway police can also not be ignored. For the purpose of safe driving on the national highways and for matters connected therewith or incidental thereto, the National Highways Safety Ordinance, 2000 (XL of 2000) (hereinafter referred to as “Ordinance, 2000”) was promulgated. Chapter VII of the Ordinance deals with establishment of a police for motorways and national highways. Sub-section (1) of Section 90 empowers the Federal Government to establish a police force for performing police and traffic control functions on motorways and national highways and within such other territorial limits as it may, by notification in the official Gazette, specify. By virtue of sub-section (2) of Section 90, the police force established under sub-section (1) is clothed with all powers of Station House Officer under the Code of Criminal Procedure, 1898 (Act V of 1898), Police Act, 1861 (V of 1861) and in additional thereto shall:

(a) regulate and control traffic on the national highways and prevent obstructions thereon;

(b) keep order on the national highways and prevent the contravention of any rule, regulation or order made under this Ordinance or any other law in force;

(c) maintain law and order on the national highways and take cognizance of offences committed thereon;

(d) determine and regulate the category and type of traffic permissible at particular times keeping in view the road, weather and other conditions;

(e) render all possible assistance to national highways users;

(f) undertake initial investigation in respect of offences committed on national highways and then transfer the cases to the concerned police station for investigation. Restrict or stop local police from investigation and transfer of case back to National Highways and Pakistan Motorway Police.

(g) plan, budget and manage publicity, information and education campaigns for the purposes of maintaining good order and safety on the national highways;

(h) keep the highways clear from any encroachment and keep a look out for suspicious persons and criminals;

(i) take into possession any abandoned property for its disposal under the law;

(j) provide security to the travelers;

(k) develop and maintain a transport research cell and laboratory for the purpose of carrying into effect the provisions of this Ordinance;

(l) act as the advisory body to the National Highway Authority for proper planning building and development of national highways;

(m) examine the feasibility, desirability and necessity of various facilities, hoarding, advertisements, etc. on or along the national highways from the security and traffic standpoint in order to achieve the objectives of this Ordinance, and take appropriate measures for its removal, closure or regulation;

(n) enlist and maintain motor vehicle examiners for checking mechanical fitness of transport vehicles and issue no objection certificates for registration and route permits in respect of vehicles plying on national highways.

(o) inspect and oversee installation of such other facilities on or along the national highways as are necessary for ensuring good order and safety of the public;

(p) employ experts and enter into contracts including service contracts for the purposes of this Ordinance;

(q) establish a competent licensing authority and driver testing facility;

(r) promote the setting up of proper driver training schools in the private sector and co-ordinate their inspection and supervision through Provinces.

(s) assist the Provinces in setting up such driving schools; and

(t) perform such other functions as the Government may, from time to time, require;

Section 91 bounds down all the officers of the Police and Civil Armed Forces to assist the National Highways and Pakistan Motorway Police in discharge of its functions under the “Ordinance, 2000”. Section 94 empowers the Federal Government to appoint any person to be Magistrate of the first class within the meaning of the Code of Criminal Procedure, 1898 (Act V of 1898) for carrying into effect the provisions of the “Ordinance, 2000”.

1. Contrary to the mandate of law as mentioned hereinabove, the National Highways and Motorway Police came with the plea that their primary function is the traffic management and its regulation and control on the National Highways and Motorway. It is also apprised on behalf of National Highways and Motorway Police that they are neither equipped with the anti-riot equipment, bullet proof jackets etc. and lockups for the detention of persons arrested. It is pleaded that due to these reasons, National Highways and Motorway Police is heavily dependent on local administration, provincial police and other civil armed force. This was surely a reason that an important organ of the State, which is supposed to protect the National Highways and Motorways from any kind of aggression, has become helpless and hostage in the hands of protestors. This is an eye opener for all of us. On the one hand motorways are sometimes though used for strategic purpose as well but no solid measures have been taken for ensuring the safety and protection either of Highways or Motorways. It is observed that from its inception, the role of Motorways police was exemplary but with the passage of time, their efficiency like other departments has started deteriorating though still better from many of the Departments but it needs serious consideration of the concerned authorities, especially Inspector General of Motorway Police. The role of National Highway Police is, however, only illusory, which is not appreciable at all and needs drastic measures for improvement.

2. It would not be out of place to mention here that in order to evolve the traffic management system in the cities, Punjab Police Traffic Wardens were appointed and a special traffic cade of the Punjab Police was created under Article 8 of the Police Order, 2002. In exercise of powers conferred under Article 112 of the Police Order, 2002, the Punjab Police Traffic Wardens Service Rules, 2017 were framed. Rule 12 of the Rules ibid provides function and duties of the Chief Traffic Officer and Traffic Officer in the following manner:--

(a) shall assist the Head of District Police in traffic management functions;

(b) act as per guidelines, instructions and standard operating procedures for traffic management system issued by the Head of Traffic Police;

(c) enforce the provisions of the Provincial Motor Vehicles Ordinance, 1965 and Motor Vehicle Rules 1969 or any other law;

(d) monitor the performance of the members;

(e) assist the members in regulating traffic on roads or choke points;

(f) ensure proper deployment of traffic duties in the district;

(g) conduct driving tests and issue driving licenses of all categories as per rules;

(h) initiate traffic education and awareness programmes;

(i) shall be responsible for working, discipline and conduct of the members;

(j) coordinate with other departments and allied agencies for efficient working of traffic management system;

(k) initiate Performance Evaluation Reports as determined; and

(l) any other duties assigned by the Head of District Police regarding traffic management.

Though a specific and exclusive function has been assigned to the traffic officers in the cities but with few exceptions they have failed to discharge their functions and duties as per mandate of law. It is generally observed that traffic wardens only play a role of silent spectator or guide instead of realizing their actual functions and duties. Their performance needs to be addressed by the Chief Traffic Officer at the priority and they should be reformed into the officers of a Law Enforcement Agency.

1. Coming to the role of Respondents No. 8 and 9 being the General Secretary and Chairman of “PTI”, it is observed that though it is claim of the petitioners that they were in fact basic source of all this situation but no concrete or cogent material has been brought before the Court to demonstrate that said respondents have actively played any role for the commission of offences by the protestors. The allegations against them are generalized in nature. At the same time, it was expected from both the respondents that they being the leaders of one of the largest parties of the country should have condemned the acts of their followers. Instead, Respondent No. 8, in a public gathering held during the pendency of this petition, tried to defend the illegal and unlawful acts of the protestors and in doing so, he had uttered certain remarks against the superior judiciary on account of which he was issued a show-cause notice by way of order dated 5th December, 2022. Respondent No. 8 in pursuant to the order of the Court entered his appearance on 7th December, 2022 and tendered unconditional apology, which was accepted and show-cause notice was recalled.

2. Right to assemble peacefully is a fundamental right of every citizen guaranteed under Article 16 of the “Constitution” but such right is neither unbridled nor unlimited. Article 16 though guarantees such right but it is always subject to reasonable restrictions imposed by law in respect of public order. A citizen who claims right of freedom of assembly for himself/herself has to keep in mind the fundamental rights of the other citizens, guaranteed under the “Constitution” e.g. security of person, freedom of movement, trade business and profession. Guidance in this respect can be sought from Watan Party and another v. Federation of Pakistan and others (2011 KLR Supreme Court 298). The relevant extract from the same is reproduced below:

“4. Article 14 of the Constitution of Pakistan ensures dignity of every individual. In the case of ‘Commissioner of Income Tax v. Eli Lilly Pakistan’ reported as 2009 SCMR 1279, this Court observed that:

“It is the duty and obligation of the State on account of the various provisions of the Constitution to provide the atmosphere based on honesty by providing equal protection of law. Every citizen must be treated equally, dignity of human being life should be maintained, and liberty of life and honour must be guaranteed as envisaged in the Articles 9, 14 and 25 of the Constitution.”

5. Articles 15 and 18 of the Constitution, respectively relate to freedom of movement etc. and freedom of trade, business or profession and have been interpreted by this Court in the case titled “Government of Pakistan v. Zamir Ahmad” reported as PLD 1975 SC 667, in the following words:

“Article 18 of the Constitution of Pakistan, which relates to the freedom of trade, business or profession, which corresponds to Article 15 of the interim Constitution, and which incidentally held the field at the relevant time, assures the citizens the right to enter upon any “lawful profession of occupation” and “to conduct any lawful trade or business”. It is important to point out that the word “lawful” qualifies the right of the citizen in the relevant field. This clearly envisages that the State can by law ban a profession, occupation, trade or business by declaring it to be unlawful which in common parlance means anything forbidden by law. Prostitution, trafficking in women, gambling, trade in narcotics or dangerous drugs are common place instances of unlawful profession or trade. These are inherently dangerous to public health or welfare. Therefore, on the wording of Article 18 of the Constitution, the right to enter upon a profession or occupation or to conduct trade or business can hardly be described to be a Constitutional or Fundamental Right when such right may be denied by law. In this respect our Constitution stands in sharp contrast with the corresponding provision of the Indian Constitution which omits the use of word “lawful” in the relevant Provision.”

The same principle was enunciated by this Court in the case of Arshad Mehmood (supra). This Court observed that the Government has the authority to regulate a lawful business or trade. Reasonable restriction, however, does not mean prohibition or prevention completely. Article 24(1) of the Constitution envisages that no person shall be deprived of his property save in accordance with law.

1. Any democratic set up consisting of citizens and functionaries in the country under the Constitution is bound to show its loyalty to the State, for to be loyal and faithful to the State is the basic duty of every citizen under Article 5 of the Constitution. This Court in the case of Shahid Orakzai v. Pakistan through Secretary Law (PLD 2011 SC 365) held that Article 5(2) of the Constitution has mandated that obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and for every other person for the time being within Pakistan. The chosen representatives, who have acquired authority on behalf of their electors as members of the National Assembly, Senate or Provincial Assemblies as per mandate of their oath, which they take before entering upon office, are bound to bear true faith and allegiance to Pakistan. The oath of the office of members of the National Assembly and Senate as set out in the Third Schedule provides that the members will perform their functions honestly, to the best of their ability, faithfully and in accordance with the Constitution and law; that they will act in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan and they will preserve, protect and defend the Constitution. Therefore, while holding a constitutional office, the chosen representatives of the people have to remain true to their oath and to observe constitutional limits in all circumstances.”

2. Sit-in (دھرنا) has become a common phenomenon and fusty trend in Pakistan. It has now become a source/weapon not only with the political parties but every segment of society having followers/ members/ companions to stage a sit-in for their demands so as to exert pressure upon the executive/state to fulfill their demands, leaving aside all the legal course provided under the law. This trend has led the country to destabilization. In civilized countries, nobody can be allowed to take the law in his/her own hands irrespective of the fact how much the worst condition is. Pakistan is perhaps the only country in which the law enforcement agencies/executive, instead of defending the cause of the State and maintaining its writ, join hands with the persons/groups, who intend to erode the sovereignty of the State or to create lawlessness on extraneous reasons. It is not the first time in the history of country that such incident had taken place. In recent past, when the members of Tehrik-e-Labbaik Pakistan (TLP) and its supporters occupied a road junction (interchange) known as the ‘Faizabad Interchange’, the Hon’ble Supreme Court of Pakistan took suo motu notice as Suo Motu Case No. 7 of 2017 reported as SUO MOTU CASE NO. 7 OF 2017 (PLD 2019 Supreme Court 318). In the said judgment, the Hon’ble Apex Court after taking into consideration all the material facts passed the following declarations and directions:

“53….

(1) …

(2) Every citizen and political party has the right to assemble and protest provided such assembly and protest is peaceful and complies with the law imposing reasonable restrictions in the interest of public order. The right to assemble and protest is circumscribed only to the extent that it infringes on the fundamental rights of others, including their right to free movement and to hold and enjoy property.

(3) Protestors who obstruct people’s right to use roads and damage or destroy property must be proceeded against in accordance with the law and held accountable.

(4) ….

(5) …..

(6) The State must always act impartially and fairly. The law is applicable to all, including those who are in government and institutions must act independently of those in government.

(7) …

(8) ….

(9) ….

(10) ….

(11) ….

(12) ….

(13) Intelligence agencies should monitor activities of all those who threaten the territorial integrity of the country and all those who undermine the security of the people and the State by resorting to or inciting violence.

(14) ….

(15) …..

(16) The police and other law enforcement agencies are directed to develop standard plans and procedure with regard to how best to handle rallies, protests and dharnas, and ensure that such plans/ procedures are flexible enough to attend to different situations. It is clarified that though the making of such plans/ procedures is not within the jurisdiction of this Court however we expect that in the maintenance of law and order every effort will be taken to avoid causing injury and loss of life.

Had the above directions been complied with by the relevant authorities, the present incident would have not happened.

1. In the wake of above discussion, it is observed that though all the entry and exit points which were blocked by the protestors have been opened by their own or with the intervention of the administration during the pendency of these petitions but this would neither absolve the protestors and their allies from criminal liability nor the executive authorities/officers from their failure to discharge their duties. All these petitions are, thus, disposed of with the direction to the officers of Civil Administration, Police, National Highways and Motorway Police, City Traffic Police, Secretaries concerned of the Federal and Provincial Governments to evolve a mechanism for ensuring that no such incident shall take place in future. They shall also adhere the relevant laws in true spirit. All the relevant offices/authorities/officers shall also ensure the compliance of directions of the Hon’ble Supreme Court of Pakistan in the case referred hereinabove.

2. Before parting, it is observed that since the Commissioner, Deputy Commissioner, Regional Police Officer, City Police Officer and Chief Traffic Officer have miserably failed to discharge their official duties in terms of relevant laws and instead acted as privy to the illegal acts, so their matter is referred to the Secretary Establishment, Government of Pakistan and Chief Secretary, Punjab, who shall probe into their conduct and proceed against them strictly in accordance with law. They are directed to hold an inquiry in order to examine the conduct and evaluate the efficiency and discipline of all these officers. The proceedings to this effect shall be initiated and materialized within three months from the date of receipt of instant order under intimation to the Additional Registrar (Judl.) of this Court, who shall on receipt of the report place it before the Court for perusal.

3. Office is directed to circulate this judgment amongst:--

i. Secretary Establishment, Government of Pakistan.

ii. Chief Secretary, Punjab.

iii Secretary Law & Parliamentary Affairs, Punjab.

iv. Inspector General of Police, Punjab.

v. Additional Inspector General of Police, Punjab.

vi. Inspector General of Police, Highways and Motorway Department.

vii. Regional Police Officers in Punjab.

viii. City Police Officers in Punjab.

ix. Chief Traffic Officers in Punjab.

x. Commissioners in Punjab.

xi. Deputy Commissioners in Punjab.

(Y.A.) Petition disposed of

PLJ 2023 Lahore 605

Present: Tariq Saleem Sheikh, J.

MUHAMMAD RAMZAN etc.--Petitioners

versus

STATE etc.--Respondents

W.P. No. 9139 of 2023, decided on 6.6.2023.

Punjab Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)--

----Ss. 3(1) & 26--Criminal Procedure Code, (V of 1898), S. 54--Constitution of Pakistan, 1973, Arts. 4, 9, 10, 10-A, 14, 199--Police Order, (10 of 2002), Art. 4(1)(c)--Preventive detention orders--Detension order was revoked--Petitioners were detained under Section 54 of Cr.P.C.--Delay in identification test--Pre-trial detension--Direction to--Petitioners were initially detained under MPO--Their detention order was subsequently revoked, but police arrested them under Section 54 of Code of Criminal Procedure, 1898 (Cr.P.C.), suspecting that they were actively involved in agitation and wanted in one of FIRs registered--Petitioners claim that they were not involved in incidents of 9th May and seek this Court’s indulgence under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 for an early holding TIP so that they can begin procedures for their release--The Petitioners allege that Government is deliberately delaying TIP to keep them imprisoned--The most painful aspect of pre-trial detention is that it benefits person who is found guilty when criminal litigation concludes rather than one who is determined innocent--TIP has only corroborative value and is not a substantive piece of evidence--Court must carefully examine identification evidence according to criteria elucidated by Supreme Court of Pakistan--The TIP is also important from accused’s point of view--It checks against false implications and becomes necessary when culprits are not nominated--Evidently, current practice for TIPs is inefficient--The delay in conducting test following accused’s arrest also compromises credibility of procedure--Therefore, Courts insist that it should be conducted as early as possible after arrest of accused. Besides causing unnecessary hardship to accused--The constitutional Courts are guardian of Constitution--They are required to review executive actions and conduct of public authorities on touchstone of fairness, reasonableness and proportionality--The police may be reminded that they have a duty under Article 4(1)(c) of Police Order, 2002, to protect legal rights and privileges of person taken into custody--Petitioners have been awaiting TIP since 25.5.2023--Although Respondent No. 2 directed Investigating Officer to get a date from competent Court within three days for TIP, he has not done so--The Petitioners face further delays that infringe on in constitutional rights--Sessions Judge, Multan, is directed to look into matter personally and ensure that Petitioners’ TIP is carried out within two days--Petition disposed of. [Pp. 607, 611, 612, 614, 615, 616 & 617] A, B, C, G, H, I, J, K & L

2008 PCr.LJ 831, 1992 SCMR 2088, PLD 1995 SC 1, 2018 MLD 751, PLD 2020 SC 456 ref.

Constitution of Pakistan, 1973--

----Art. 4--Right to protection--Every citizen, wherever he may be, and every other person for time being in Pakistan, has an inalienable right to enjoy protection of law and to be treated in accordance with law. [P. 612] D

Constitution of Pakistan, 1973--

----Arts. 9 & 10--Right to life--Right to fair trial--Article 9 mandates that no person shall be deprived of life or liberty save in accordance with law--Article 10 provides safeguards against arbitrary and unlawful arrest and detention--Article 10A guarantees right to a fair trial. [P. 612] E

Police Rules, 1934--

----R. 25.2(2)--Detension--No avoidable trouble shall be given to any person from whom enquries are made and no person shall be or unnecessarily detained. [P. 613] F

Malik Sajid Hussain, Advocate for Petitioners.

Mr. Sanam Fareed Khan Baloch, Assistant Advocate General, and Mr Adnan Latif Sheikh, Deputy Prosecutor General for Respondents.

Date of hearing: 6.6.2023.

Judgment

“I know not whether laws be right, Or whether laws be wrong; All that we know who lie in goal Is that the wall is strong, And that each day is like a year, A year whose days are long.”

–– Oscar Wilde

On 9.5.2023, Pakistan Tehreek-i-Insaf (PTI) workers took to the streets across the country to protest against the arrest of the party Chairman. They turned violent, blocked roads, battled with law enforcement agencies and caused extensive damage to public and private property. To quell the situation, the Deputy Commissioners issued preventive detention orders under Section 3(1) read with Section 26 of the Maintenance of Public Order Ordinance, 1960 (MPO), against various people in their respective districts. FIRs were also registered for breaches of law against nominated and unidentified accused.

1. The Petitioners were initially detained under the MPO. Their detention order was subsequently revoked, but the police arrested them under Section 54 of the Code of Criminal Procedure, 1898 (Cr.P.C.), suspecting that they were actively involved in the agitation and wanted in one of the FIRs registered as aforesaid. On 25.5.2023, the police produced the Petitioners before Respondent No. 2 (Magistrate Section-30, Multan) requesting her for their test identification parade (“TIP”) under Rule 26.32 of the Police Rules 1934 and Volume III, Chapter 11, Part-C of the Lahore High Court Rules & Orders. Respondent No. 2 sent them to the New Central Jail Multan and asked the Investigating Officer to obtain a date from the competent Court within three days for holding their identification test. She further directed him to bring the Petitioners back before her on 8.6.2023. The Petitioners claim that they were not involved in the incidents of 9th May and seek this Court’s indulgence under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) for an early holding the TIP so that they can begin the procedures for their release. The Petitioners allege that the Government is deliberately delaying the TIP to keep them imprisoned.

2. The Assistant Advocate General has vehemently denied any wrongdoing on the part of the administration. He states that the 9th May incidents were unprecedented in the country’s history. The people who took to the streets that day were in large numbers, and many were arrested. There is a long waiting list for the TIP, and the Petitioners will be summoned when their turn comes.

3. I have heard the learned counsel at length.

4. Every human being has the right to be treated with dignity and to have his liberty and security respected. Other individual rights become increasingly vulnerable, if not illusory, without an adequate guarantee for human freedom and security.[1] In Siddharam Satlingappa Mhetre v. State of Maharashtra and others (AIR 2011 SC 312), the Indian Supreme Court stated that “life bereft of liberty would be without honour and dignity, and it would lose all significance and meaning, and the life itself would not be worth living. This is why ‘liberty’ is called the quintessence of civilized existence.”

5. The international human rights law recognizes the importance of the right to liberty and security and guarantees it.[2] Nevertheless, it also understands that it cannot be absolute. Therefore, all human rights treaties declare, albeit in a slightly different language, that any constraint on liberty must be in all instances under the law (the principle of legality), and it must not be arbitrary. Regarding the principle of legality, the Human Rights Committee has held that “it is violated if an individual is arrested or detained on grounds which are not clearly established in domestic legislation.” In other words, the grounds for arrest and detention must be “established by law”.[3] The Committee has interpreted the meaning of the phrase “arbitrary arrest” in Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) as follows:

“… ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law ... [T]his means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in the circumstances. Remand in custody must further be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime”.[4]

1. According to the Human Rights Committee, liberty of person refers to freedom from bodily restraint rather than universal freedom of action. Security of person concerns freedom from injury to the body and the mind, often known as physical and mental integrity. Deprivation of liberty involves a more severe restriction of motion within a limited space than mere interference with the freedom of movement. Examples of deprivation of liberty include police custody, remand detention, imprisonment after conviction, house arrest, administrative detention, and involuntary hospitalization. It also includes cases where a person already incarcerated is subjected to further restrictions, such as solitary confinement or physical restraint devices. Deprivation of personal liberty occurs without free consent. If an individual goes to a police station voluntarily to participate in an investigation and knows he is free to leave at any time, he is not being deprived of his liberty.[5]

2. The Human Rights Committee further explains that “arrest” refers to any apprehension of a person that starts a deprivation of liberty. In contrast, “detention” refers to a loss of liberty that begins when the individual is apprehended and continues until his release. An arrest does not have to be formal. When a person who is already in prison is subjected to another deprivation of liberty, such as incarceration on unrelated criminal charges, the beginning of that deprivation also constitutes an arrest.[6] In Mohammed-Holgate v Duke (1984) [1 All ER 1054], while interpreting the word “arrest” in Section 2 of the Criminal Law Act 1967, Lord Diplock stated that “it is a term of art. First, it should be noted that arrest is a continuing act; it starts with the arrester taking a person into his custody (by action or words restraining him from moving anywhere beyond the arrester’s control), and it continues until the person so restrained is either released from custody or, having been brought before a magistrate, is remanded in custody by the magistrate’s judicial act.” In Ch. Muhammad Anwar v Government of West Pakistan (PLD 1963 Lahore 109), a Full Bench of this Court stated that the essence of custody is that there should be a lack of freedom to move about as one wishes coupled with a physical power immediately available to prevent an attempt to break the restraints specified, as opposed to the power afterwards to punish for a breach of these restrictions. If a person is ordered not to go beyond certain boundaries, but there is no physical impediment or threat of physical force to ensure that he does not go outside those boundaries, there would be no confinement and no custody, even though that person may be liable to be punished in due course of law if he does go out. On the other hand, if someone is told not to cross particular boundaries, and he observes or is informed that physical force will be used to stop him if he does, his confinement or custody is not different from that of a person held in jail. There is merely a difference in magnitude. This view was followed in Muhammad Aslam v. Province of West Pakistan (PLD 1968 Lahore 1324) and Begum Nazir Abdul Hamid v Pakistan (PLD 1974 Lahore 7).

3. In the Hostages in Tehran case, the International Court of Justice stated that “wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights, Article 3 of which guarantees ‘the right to life, liberty and security of person’.”[7]

4. Arrest has far-reaching ramifications for the accused, his family, and, in certain cases, the entire community. In Siddharam Satlingappa Mhetre v. State of Maharashtra and others (AIR 2011 SC 312), the Indian Supreme Court stated that great ignominy, shame and disgrace are associated with it. Most people do not differentiate between pre-conviction and post-conviction arrests. The Supreme of Pakistan expressed similar views in Salman Rafique and another v. National Accountability Bureau and others (PLD 2020 SC 456) and added that the power to arrest must be exercised with caution, prudence, and sensitivity. It should not be used to oppress or harass anyone. A person’s arrest must be justified by referring to prima facie evidence and adequate actionable material sufficiently linking him with the alleged offence and by demonstrating that no other less intrusive or restrictive means were available in given circumstances.

5. International human rights law has a particular concern about pre-trial detention. Though definitions may vary, this term signifies the period during which the State detains a person while awaiting trial to determine whether he is innocent or guilty of a crime.[8] The person could be at the “pre-Court” (or the investigation stage) or an under-trial prisoner. Its repercussions are more serious than post-conviction custody. The Indian Supreme Court mentioned some of them in MotiRam and others v. State of Madhya Pradesh (AIR 1978 SC 1594). It stated:

“The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”

1. The most painful aspect of pre-trial detention is that it benefits the person who is found guilty when criminal litigation concludes rather than the one who is determined innocent. On the proof of guilt, an accused may be compensated for his suffering and distress by deducting the duration of custody from the sentence imposed by the Court’s final verdict. As a result, when an accused is convicted and sentenced to imprisonment, the period of pre-trial detention may not bring him any additional harm. However, if the accused is ultimately acquitted, then the entire episode of pre-trial detention remains solely as a trauma, anguish and stigma for him, besides the financial and social costs he has suffered.[9]

2. Despite its serious repercussions, international law and domestic legal systems recognize pre-trial detention as an unavoidable measure. The stated justification is that it safeguards other people’s rights through evidence protection, proper investigation and unhindered trial. It also prevents further violation of law and human rights and ensures the accused’s presence during the investigation and trial process.[10] Nonetheless, according to international legal standards, pre-trial detention is exceptional. Rule 6.1 of Tokyo Rules, 1990, states that “pre-trial detention shall be used as a means of last resort in criminal proceedings, with due regard for the investigation of the alleged offence and for the protection of society and the victim.” Rule 6.2 requires that alternatives to pre-trial detention should be employed as early a stage as possible. Pre-trial detention must not last longer than necessary to achieve the objectives outlined in Rule 6.1. It must be administered humanely and with respect for the inherent dignity of human beings. (Bail, release on recognizance and release under supervision are alternatives to pre-trial detention). The UN Human Rights Committee, while interpreting Article 9(3) of the ICCPR, has stated that pre-trial detention is an ‘exception rather than a rule’.[11]

3. The Constitution of Pakistan (1973) contains several provisions relating to the sanctity and protection of the people’s life, liberty and dignity. Article 4 states 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 the law. In particular, no action detrimental to any person’s life, liberty, body, or reputation shall be taken except in accordance with the law. Article 9 mandates that no person shall be deprived of life or liberty save in accordance with the law. Article 10 provides safeguards against arbitrary and unlawful arrest and detention. Article 10A guarantees the right to a fair trial. Article 14 declares that the dignity of man is inviolable. The Code of Criminal Procedure, 1898, is the main statute that deals with the procedures relating to arrest and detention, including pre-trial detention, under the framework of the Constitution.

4. Chapter V of the Code of Criminal Procedure, 1898, relates to arrest, escape and retaking. Section 54, Cr.P.C. provides that any police officer may, without an order from a Magistrate and a warrant, arrest any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned. Section 55, Cr.P.C. pertains to arrest of vagabonds, habitual robbers etc. Section 60, Cr.P.C. states that when a police officer arrests a person without a warrant, he shall immediately take or send him to the Magistrate having jurisdiction in the case or to the officer-in-charge of a police station. Section 61, Cr.P.C. stipulates that no police officer shall detain a person arrested without a warrant for more than twenty-four hours (excluding the time necessary for the journey from the place of arrest to the Magistrate’s Court), and Section 62, Cr.P.C. mandates that every arrest must be reported to the designated authorities. Section 63, Cr.P.C. talks of the discharge of the person apprehended.[12]

5. Section 167, Cr.P.C. ordains that if police cannot complete the investigation into the alleged offence within twenty-four hours after arresting an accused, they shall present him with the relevant record before the nearest Magistrate and seek his remand. A Magistrate, regardless of whether he has jurisdiction in the case, can remand the accused in police custody for a maximum period totalling fifteen days if the circumstances warrant. If Magistrate lacks jurisdiction to try the case or send it for trial, and considers the accused’s further detention is unnecessary, he may order him to be forwarded to the Magistrate having the jurisdiction. When an accused is not discharged or granted bail, he is sent to judicial lock-up to await trial.

6. Section 169, Cr.P.C. empowers the police officer investigating a case to release an accused from custody if he finds that the evidence against him is insufficient and direct him to appear before the competent Magistrate when required, provided he executes a bond with or without sureties. This is a salutary provision. It may, however, be observed that even when the police officer has released an accused as aforesaid, the Court may summon him to face trial. Section 170, Cr.P.C. authorizes the officer-in-charge of a police station to obtain security from an accused in any bailable offence to appear before a Magistrate without first arresting him.

7. Section 344, Cr.P.C. authorizes the trial Court to remand the accused for up to fifteen days at a time during the trial. Although the law emphasizes that a case should be adjourned only for a “reasonable” time and aims to avoid unnecessary delay and adjournments to ensure quick decisions, a criminal prosecution sometimes takes very long.

8. Rule 25.2(2) of the Police Rules 1934 states that “no avoidable trouble shall be given to any person from whom enquries are made and no person shall be or unnecessarily detained.” Rule 26.1 clarifies that the authority given to the police under Section 54, Cr.P.C. to arrest without a warrant is permissive and not obligatory. Rules 26.2 and 26.9 provide further guidelines to the police officers involved in criminal investigations, requiring them not to interfere with the suspects’ liberty “until the investigation is sufficiently complete” and “the facts justify arrest”. According to Rule 26.1, the facts necessitating an immediate arrest may include the possibility of the suspect evading justice or an inconvenient delay that will result in the police failing to arrest him.

9. A learned Single Judge of this Court considered Section 54, Cr.P.C. in Abdul Qayyum v. SHO, Police Station Shalimar, Lahore (1993 PCr.LJ 91), and held that it must be construed strictly because the powers granted to police officer encroach upon a person’s liberty. The Supreme Court approved this view in GhulamAbbas v. The State (1999 SCMR 944). It further stated that it was impossible to define “reasonable” in Section 54, Cr.P.C. However, there must be some concrete legal evidence upon which the police officer can form an opinion as to whether it is sufficient to establish the reasonableness and credibility of the charge, information or suspicion.

10. Article 22 of Qanun-e-Shahadat 1984 says that the facts which establish the identity of anything or any person whose identity is relevant are admissible in a Court of law. TIP is an investigation tool used by the police to help identify the offender if there was a witness. It involves lining the suspect of a crime with individuals (dummies) who match his description. A witness is then called upon to identify the culprit among those present. The TIPs are usually undertaken when the accused is unknown to the witnesses, and they catch his fleeting glimpse. The Code of Criminal Procedure, 1898 and Qanun-e-Shahadat, 1984, do not specify the procedure for holding the TIPs. However, Volume III, Chapter 11, Part-C of the Lahore High Court Rules & Orders, and Rule 26.32 of the Police Rules 1934 give some guidelines which must be followed. The Supreme Court of Pakistan elaborated them in AzharMehmood and others v. The State (2017 SCMR 135); Hakeem and others v. The State (2017 SCMR 1546); MianSohail Ahmed and others v. The State and others (2019 SCMR 956) and In Re: Kanwar Anwar Ali (PLD 2019 SC 488: PLJ 2019 SC (Cr.C.) 153].[13] It is pertinent to point out that the TIP has only corroborative value and is not a substantive piece of evidence. Furthermore, the Court must carefully examine the identification evidence according to the criteria elucidated by the Supreme Court of Pakistan in the above-mentioned cases.

11. The TIP is also important from the accused’s point of view. It checks against false implications and becomes necessary when the culprits are not nominated.[14]

12. Currently, the procedure from the stage when an accused or suspect is apprehended until the TIP is conducted is mostly governed by practice. Generally, the Sessions Judge designates the judges and magistrates under him for various categories of cases. He gives responsibility for the TIPs to one or more Judicial Magistrates (JM) or Special Judicial Magistrates (SJM), depending upon the workload and the number of police stations in his jurisdiction. After arresting the accused, the Investigating Officer takes him to the Area Magistrate and requests that he may be sent to judicial lock-up and kept there for the TIP. The Area Magistrate grants the request routinely and directs the Jail Superintendent to keep the accused isolated from other prisoners. He also sets a date for production of the accused after TIP proceedings, which is normally between seven to fourteen days. Thereafter, the Investigating Officer applies to the assigned JM/SJM for fixing a date for the TIP, which he does according to his roaster. If more than one JM/SJM is designated for the TIPs, the Investigating Officer files an application before the Sessions Judge, who marks it to one of them and then fixes the date for the TIP. If the complainant and witnesses appear before him on the scheduled date, the JM/SJM completes the proceedings and sends the case file in a sealed envelope to the Sessions Judge; otherwise, he sets another date. When the TIP is done, the Investigating Officer produces the accused before the Area Magistrate for further proceedings.

13. The Special Courts/Anti-Terrorism Court follows a slightly different procedure. When an accused, for example, is arrested in a terrorism-related FIR and his TIP is required, the Investigating Officer brings him before the Judge, who remands the accused in judicial custody. He further directs the Investigating Officer to request the Sessions Judge for the TIP. The Sessions Judge assigns the application to any of the designated JM/SJM, who then follows the procedure outlined in the preceding paragraph.

14. Evidently, the current practice for the TIPs is inefficient. The delay in conducting the test following the accused’s arrest also compromises the credibility of the procedure. Therefore, the Courts insist that it should be conducted as early as possible after the arrest of the accused.[15] Besides causing unnecessary hardship to the accused, such delays impact his fundamental rights to liberty, dignity, due process and a fair trial. In Syed Khursheed Ahmed Shah v.The State (PLD 2022 SC 261), the Supreme Court ruled that depriving the accused person of his liberty and freedom even for a single day is unconscionable and below human dignity. It follows that justice should be served even while an investigation is ongoing.

15. The constitutional Courts are the guardian of the Constitution. They are required to review the executive actions and the conduct of the public authorities on the touchstone of fairness, reasonableness and proportionality.[16] It is necessary to issue the following directives to actualize the rights guaranteed to the accused under Articles 4, 9, 10, 10A and 14 of the Constitution:

i. In all cases where the Area Magistrate commits an accused to jail for the TIP, he shall immediately forward a copy of his order to the Sessions Judge. He shall fix it as a “TIP Case” in his cause list to ensure the accused is produced before him after the TIP.

ii. If, for any reason, the Magistrate who sends an accused to jail for the TIP is not the Area Magistrate, he shall also forward a copy of his order to him.

iii. Immediately on receipt of a copy of the Magistrate’s order as aforesaid, the Sessions Judge shall depute a JM/SJM for holding the TIP, who shall direct the Investigating Officer to take the requisite steps and conclude the exercise within 48 hours.

iv. If the Sessions Judge has designated a JM/SJM in any area for the TIPs, he shall direct him, or if he is not available for any reason, depute another JM/SJM for holding the TIP. Such JM/SJM shall also conclude the exercise within 48 hours.

v. If the TIP is not done within 48 hours as aforesaid, the JM/SJM shall bring the matter to the notice of the Sessions Judge and the Police Head concerned. If he finds any delinquency or dereliction of duty by the Investigating Officer, he shall also recommend action against him. In any case, the JM/SJM shall ensure the TIP is held the next day.

vi. The JM/SJM concerned shall promptly forward his report to the Sessions Judge after the TIP is done.

vii. The Sessions Judge’s office shall prepare a separate file for all TIP requests and place them on the Court’s cause list until the matter is disposed of.

viii. Where the matter relates to a Special Court/Anti-Terrorism Court and the Investigating Officer requests it for the TIP of an accused, it shall also ensure that it is done within 48 hours.

1. The police may be reminded that they have a duty under Article 4(1)(c) of the Police Order, 2002, to protect the legal rights and privileges of the person taken into custody.

2. In the present case, the Petitioners have been awaiting the TIP since 25.5.2023. Although Respondent No. 2 directed the Investigating Officer to get a date from the competent Court within three days for the TIP, he has not done so. The Petitioners face further delays that infringe on their constitutional rights discussed above. Therefore, the Sessions Judge, Multan, is directed to look into the matter personally and ensure that the Petitioners’ TIP is carried out within two days.

3. The Registrar of this Court shall send a copy of this judgment to all the Sessions Judges, the Special Courts in the province, and the Inspector General of Police with direction to follow the directives detailed in Paragraph 26 in all future cases.

4. Disposed of.

(Y.A.) Petition disposed of

[1]. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, Chapter 5, p.161.

[2]. For instance, see Articles 3 & 9 of the Universal Declaration of Human Rights, 1948, Article 9 (1) of the International Covenant on Civil and Political Rights (ICCPR), 1966, Article 6 of the African Charter on Human and Peoples’ Rights, 1981, Article 5 of the European Convention on Human Rights, 1950, Article 7 of the American Convention on Human Rights, 1969. This right is also recognized in the Arab Charter on Human Rights, the ASEAN Human Rights Declaration, and the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms.

[3]. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, Chapter 5, p. 165.

[4]. Communication No. 458/1991, A. W. Mukong v. Cameroon (Views adopted on 21 July 1994), in UN doc. GAOR, A/49/40 (vol. II), p. 181, para. 9.8; footnote omitted from the quotation.

[5]. UN Human Rights Committee, General Comment No. 35 (International Covenant on Civil and Political Rights), paragraphs 3-6. (internal citations omitted) file:///C:/Users/IST/Downloads/G1424451.pdf.

[6]. UN Human Rights Committee, General Comment No. 35 (International Covenant on Civil and Political Rights), paragraphs 13 (internal citations omitted) file:///C:/Users/IST/Downloads/G1424451.pdf

[7]. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), ICJ Reports 1980, p. 42, para. 91.

[8]. Tauqeer Hussain, Pre-Trial Detention and its Compensation in International and Pakistani Law. Policy Perspectives , Vol. 15, No. 3 (2018), pp. 47-66. https://www.jstor.org/stable/10.13169/polipers.15.3.0047.

[9]. ibid.

[10]. ibid.

[11]. UN Human Rights Committee, General Comment No. 35 (International Covenant on Civil and Political Rights), paragraph 38. file:///C:/Users/IST/Downloads/G1424451.pdf.

[12]. Discharge does not amount to cancellation of a case which is dealt with by Rule 24.7 of the Police Rules, 1934. Cancellation terminates further investigation by the police while the discharge does not. In the event of discharge, the FIR remains alive. The police may associate a discharged accused with investigation at any subsequent stage, but if his arrest is required formal permission from the Magistrate should be obtained.

[13]. Notice in compliance with the order dated 12.2.2019 passed in Crl. Appeal No. 259 of 2018 to Mr. Kanwar Anwar Ali, Special Judicial Magistrate on account of dereliction of duty and lack of sufficient legal knowledge.

[14]. Muhammad Sajjad v. The State (2008 PCr.LJ 831).

[15]. Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088); The State v. Farman Hussain and others (PLD 1995 SC 1); Khawand Bux and others v. The State (1997 PCr.LJ 280); Ghulam Nabi v. The State (2002 PCr.LJ 349); and Saifullah v. The State (2018 MLD 751).

[16]. Salman Rafique and another v. National Accountability Bureau and others (PLD 2020 SC 456).

PLJ 2023 Lahore 617 [Rawalpindi Bench, Rawalpindi]

Present:Jawad Hassan, J.

MCB BANK LIMITED--Plaintiff

versus

ADEEL SHAHBAZ STEEL MILLS and others--Respondents

C. Orig. Suit No. 1 of 2022, heard on 7.6.2023.

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

----Ss. 9 & 20--Civil Procedure Code, (V of 1908), O.VII R. 10-- Finance facility--Default in payment--Territorial jurisdiction--Maintainability--Counsel for Defendants stated that this Court lacks territorial jurisdiction for reasons that finance facilities, as alleged by “Plaintiff Bank”, were extended to Defendants at Hattar Industrial Estate, Haripur and agreements pursuant thereto were also executed at Islamabad and Hatter, thus, plaint of this suit is liable to be returned to Banking Court concerned under order VII Rule 10 of “CPC” for its presentation--Finance facilities were extended to “Defendant Company”, its partners and mortgagors after execution of agreements which were executed at Islamabad and Hattar, Defendants are residents of Islamabad and Hattar, correspondence for applying and approving finance facilities were made by parties at Islamabad and Harripur, mortgaged properties were situated at Islamabad and Haripur, hence, this Court has no territorial jurisdiction to pass any judgment and decree against Defendants--As a sequel, plaint is hereby returned under Order VII Rule 10 of “CPC” for presenting it before a Court of Competent Jurisdiction--Plaint returned. [P. 628 & 630] D & E

PLD 2021 Lahore 186.

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

----Ss. 5 & 5(1)--Exercising of jurisdiction-- Banking Court established to exercise its jurisdiction under “Ordinance”--Section 5(1) of “Ordinance” deals with Banking Court to considers necessary to exercise jurisdiction under “Ordinance”. [P. 624] A

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

----S. 2(b)(i)(ii)--Banking Court--Means, a Court established under Section 5 of “Ordinance”, and in respect of any other case, High Court. [P. 626] B

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

----S. 20--Territorial jurisdiction--A suit must be instituted in a Court within local limits of whose jurisdiction Defendant actually and voluntarily resides, or carries on business, or personally works for gain, or where cause of action wholly or in part arises. [P. 627] C

Barrister Sardar Umer Aslam, ASC assisted by Hassan Matiullah, Advocate for Plaintiff.

Mr. Umar Hanif Khichi, Advocate for Defendants No. 1 & 2.

Agha Muhammad Ali Khan, ASC/Amicus Curiae assisted by Waqar Khalid Khawaja, Advocate for Defendants.

Mr. Rashid Mehmood, Research Officer, Lahore High Court, (Rawalpindi Bench).

Date of hearing: 7.6.2023

Judgment

This judgment will decide the suit filed under Section 9 of the Financial Institution (Recovery of Finances) Ordinance, 2001 (the “Ordinance”) whereby an amount of Rs. 103,007,781.63 along with cost of funds from the date of default till realization of debt is claimed by the MCB Bank Limited (the “Plaintiff Bank”) being a financial institution in terms of Section 2(a) of the “Ordinance” from Adeel Shahbaz Steel Mills (the “Defendant Company”) and its partners and guarantors, the Defendants No. 2 to 4. The Defendants No. 1 and 2 filed leave to defend (PLA No. 01 of 2022) while leave to defend (PLA No. 02 of 2022) was filed by the Defendants No. 3 and 4 under Section 10 of the “Ordinance”.

A. BACKGROUND OF THE CASE

1. For swap of its business relationship, the “Defendant Company” vide request letter dated 27.11.2014 approached the “Plaintiff Bank” which extended following facilities:

i. Running Finance Facility (RF) of PKR.100 Million (Rs.75 Million Swapped from Bank of Khyber and Rs. 25 Million fresh sanctioned by the “Plaintiff Bank”), ii. Bank Guarantee (BG) of Rs. 25 Million.

iii. LC sight of Rs. 50.00 Million.

1. The above said finance facilities were secured through execution of documents i.e. Promissory Note dated 08.01.2015, Finance Agreement dated 09.01.2015 and Personal Guarantee dated 09.01.2015. Vide request letter dated 23.04.2015, the “Defendant Company” again approached the “Plaintiff Bank” for enhancement of aforementioned facilities which were approved vide Facility Advising Letter dated 07.05.2015. On 16.09.2019, the “Defendant Company” made request to the “Plaintiff Bank” for restructuring/rescheduling of outstanding amount of Rs. 124,973,072.73 which was accordingly acceded to vide Facility Advising Letter dated 23.09.2019. Due to non-fulfilling financial obligations and default in repayments under the renewed/restructured finance facilities, the “Plaintiff Bank” claimed to recover an amount of Rs. 103,007,781.63 in respect of following finance facilities with breakup as follows:

| | | | | --- | --- | --- | | Account Facility | Amount of Principal Payable | Markup Payable | | DF-Restructured (DF) | Rs.85,689,260.05 | Rs.9,389,465.23 | | Forced Demand Finance (FDF) | Rs.7,929,056.35 | NIL | | Total | 93,618,316.40 | Rs.9,389,465.23 | | Grand Total | Rs.103,007,781.63 | |

B. LEAVE TO DEFEND

1. To refute the claim of the “Plaintiff Bank”, the Defendants filed petition under Section 10 of the “Ordinance” for the grant of unconditional leave to defend the suit (“PLA”). The “Defendants” though denied the liabilities alleged by the “Plaintiff Bank” yet objected to maintainability of suit before this Court on the basis of territorial jurisdiction.

C. SUBMISSIONS OF LEARNED COUNSEL FOR THE PLAINTIFF

1. Barrister Umer Aslam, counsel for the “Plaintiff Bank” inter alia stated that the “Defendant Company” is a partnership concern having business of furnace and re-rolling steel while the Defendant No. 2 is a partner having share ratio of 50%; the Defendant No. 3&4 are also partners having share ration of 25% each and they stood guarantors and furnished their personal guarantees for securing repayments against Restructured Demand Finance (“RDF”) and Forced Demand Finance (“FED”); that the “Defendant Company” vide Facility Advising Letter dated 16.09.2019 requested to the “Plaintiff Bank” for restructuring/rescheduling of outstanding amount of Rs. 124,973,072.73 and same was approved vide letter dated 23.09.2019 and for this purpose, a finance restructuring and rescheduling agreement was executed on 07.10.2019 followed by Addendums for restructuring/rescheduling dated 20.07.2020 and 12.07.2021 respectively; that due to non-fulfilling financial obligations and default in repayments under the renewed/restructured finance facilities, the “Plaintiff Bank” claimed to recover an amount of Rs. 103,007,781.63 in respect of finance facilities with breakup as mentioned in para 2 above.

D. SUBMISSIONS OF THE COUNSEL FOR DEFENDANTS NO. 1 & 2

1. Mr. Umar Hanif Khichi, Advocate filed the “PLA” on behalf of the Defendants No. 1&2 and inter alia submitted that the suit is not maintainable on score of territorial jurisdiction of this Court because the finance facilities, as alleged by the “Plaintiff Bank” were extended to the “Defendant Company” at Hattar Industrial Estate, Haripur, Khyber Pakhtunkhawa and the agreements pursuant thereto were also executed thereat, thus the plaint is liable to be returned to the Plaintiff to be presented before Banking Court at Haripur under order VII Rule 10 CPC; that the suit is liable to be dismissed as the same does not comply with the mandatory requirements of Section 9 of the “Ordinance” more specifically sub Sections (2) and (3) wherein obligations have been casted upon a financial institution to file with the plaint all the relevant documents as well as to give details regarding the finance alleged to have been disbursed, availed and repaid; that the Defendants No. 1&2 have paid the availed amounts under aforementioned facilities but the “Plaintiff Bank” has alleged exaggerated amount, which, under the law, is not tenable; that it is settled law that any suit filed by a financial institution/bank must be supported by a properly verified statement of account on oath, whereas the statements of accounts filed by the “Plaintiff Bank” are not duly verified on oath and they failed to fulfill other requirements of the Bankers Books Evidence Act, 1981 as well, which is a mandatory requirements in terms of Section 9 of the “Ordinance”, thus no presumption of truth can be attached to the same, and in view of such glaring defect in the Statement of Account, the suit of the “Plaintiff Bank” is liable to be dismissed.

D. SUBMISSIONS OF DEFENDANTS No. 3 &4

1. Defendants No. 3&4 filed the “PLA” alleging that they have no concern with the availed finance facilities because they resigned from the partnership after receiving their shares and shifting the liabilities to the new partners.

E. REPLY BY LEARNED COUNSEL FOR THE PLAINTIFF

1. While exercising the right of rebuttal, Barrister Sardar Umer Aslam, Advocate, reiterated the contents of plaint as well as replication to the “PLA” and has urged that the “Defendants” have admitted the execution of finance facilities and security documents as is evident from the Finance Restructuring Agreement dated 07.10.2019, Addendum to Finance Restructuring and Rescheduling Agreement dated 20.07.2020 and 2nd Addendum to Finance Restructuring and Rescheduling Agreement dated 12.07.2021 and it is a well settled law that the admitted facts need not to be proved, therefore, upon admission of the execution of the finances and security documents, the “PLA” cannot be granted on this score alone and the same is liable to be dismissed. Learned counsel further stated that the claim of the “Plaintiff Bank” is genuine, supported by the documents executed by the “Defendants” and Statement of Accounts had been duly signed and certified by the competent persons; all the entries relating to availing of the finance facility and repayments had been duly reflected in the statement of accounts and outstanding balance has also been shown in the said statement. Next maintained that the “Defendants” have not complied with mandatory requirements of Section 10 of the “Ordinance”. With regard to objection qua territorial jurisdiction of this Court, Barrister Umer Aslam, Advocate argued that the registered office of the “Defendant Company” is within the territorial jurisdiction of this Court, office address thereto is that of Rawalpindi, partnership deed was also registered with Registrar of Firms at District Rawalpindi and loan documents executed between the parties also contained address of District Rawalpindi therefore, this Court has jurisdiction to decide the lis in hand.

F. ARGUMENTS OF AMICUS CURIAE

1. Agha Muhammad Ali Khan, ASC/Amicus Curiae argued that a Banking Court in terms of Section 7(2) of the “Ordinance” is empowered to adopt procedure laid down in the “CPC” and for the purpose of determining jurisdiction, Section 20 of the “CPC” confers territorial jurisdiction upon the Banking Court to decide the cases in which the defendant resides, carries on business or personally works for gain, or in which the cause of action arises wholly or partly within the local limits of such Court. He has referred to judgments cited in “Bahoo Dying Industries (Private) Limited versus Sui Northern Gas Pipelines Limited and others” (PLD 2021 Lahore 186), “Messrs Hilite Indus Tries and 4 others versus Muslim Commercial Bank Limited” (2004 CLD 1266) and “Emirates Bank Ltd versus M. Irfan Monno and another” (1993 CLC 2430).

2. I have heard the arguments of the learned counsel for the parties and perused the record.

G. DETERMINATION BY THE COURT ON THE TERRITORIAL JURISDICTION

(i) Maintainability of banking suit at initial stage.

1. When the suit was filed on 29.09.2022 and the Court while confronting the territorial jurisdiction, observed as under:

2. When further confronted how this Court can interfere into the matter as per Section 5 of the Ordinance read with the judgment passed by this Court in the case of “Bahoo Dying Industries (Private) Ltd. versus Sui Northern Gas Pipelines Limited and others” (PLD 2021 Lahore 186), Barrister Umer Aslam, ASC contends that since the registered office of the Company is based at Rawalpindi and the properties are situated nearby, therefore, this Court is fully empowered to execute the decree obtained”.

3. Subject to maintainability of the suit, the Court issued notices to the Defendants to file the “PLA” which was filed on 14.12.2022 raising the preliminary objection qua territorial jurisdiction of this Court to entertain the suit. In response to the said objection, the counsel for the “Plaintiff Bank” filed replication under Section 10(8) of the “Ordinance” wherein it was stated as follows:

“The suit has been properly instituted before this Hon’ble Court, as Defendant No. 1 has a registered office within the territorial jurisdiction of this Hon’ble Court. The partnership deed is registered with the Registrar of Firms, District Rawalpindi. The office address of the Defendant No. 1 is that of Rawalpindi, as show in in the documents appended with suit. The partnership deed also describes the head office of the firm to be located at the address, so mentioned in the plaint (Defendant No. 1). The loan was obtained on documents containing the address of the Rawalpindi”.

1. At the very outset it is observed here that the Supreme Court of Pakistan in its judgment reported as “Zahid Zaman Khan and others vs. Khan Afsar and others” (PLD 2016 SC 409) has held that “the law enjoins a duty upon the Court to settle question about its jurisdiction first because subject to certain exceptions, any decision rendered by the Court having no jurisdiction stands vitiated on that account alone”. In “Government of Sindh through Secretary Education and Literacy Department and others versus Nizakat Ali and others” (2011 SCMR 592) it has held that “every Court prior to taking cognizance and adjudicating upon an issue should first resort to the question of assumption of its jurisdiction and if it comes to the conclusion that jurisdiction can be assumed only then the issue can be adjudicated upon”. Esteemed guideline with regard to deciding question of jurisdiction at very outset of judicial proceedings is enumerated in case titled “Izhar Alam Farooqi, Advocate versus Sheikh Abdul Sattar Lasi and others” (2008 SCMR 240) reading that “notwithstanding the raising of such an objection by the parties, the forum taking cognizance of the matter must at the first instance decide the question of its jurisdiction. There can be no exception to the principle that an order passed or an act done by a Court or a tribunal not competent to entertain the proceedings is without jurisdiction and that it is mandatory for the Court or tribunal as the case may be to attend the question of jurisdiction at the commencement of the proceedings”.

2. Learned counsel for the “Plaintiff Bank” was confronted with the point of territorial jurisdiction before going into the merits of the case and he was asked to first cross the hurdle of maintainability of the suit in view of territorial jurisdiction of this Court. In response thereto, learned counsel for the “Plaintiff Bank” Barrister Umer Aslam, ASC has placed reliance on “Bahoo Dying Industries (Private) Limited versus Sui Northern Gas Pipelines Limited and others” (2021 PLD Lahore 186), “National Bank of Pakistan versus Messrs Kohinoor Spinning Mills and others” (2021 CLD 1112), “Mohammad Afsar versus Mst. Nazir Begum” (2018 CLC 259), “Habib Bank Limited versus Haji Riaz Ahmed” (2017 CLC 1671), “Haji Riaz Ahmed versus Habib Bank Limited” (2012 CLD 491), “Messrs Hi Lite Industries versus Muslim Commercial Bank Limited” (2004 CLD 1266) and “Muhammad Waseem Ghori versus Altaf Hussain Tunio” (2016 YLR 157) and contended that this Court has jurisdiction to decide the lis in hand in view of the referred judgments.

(ii) Legal anatomy of jurisdiction of Banking Court under the Ordinance.

1. The “Ordinance” was promulgated for the recovery of finances and the financial institutions as defined under Section 2(a) of the “Ordinance” which stipulates the transaction of banking business in Pakistan through its branches. The word branches mentioned therein means a branch from where the suit is to be filed before the Banking Court having jurisdiction to entertain it. In this case, the suit was filed by the “Plaintiff Bank” from the registered office at MCB House, 15-D, Main Gulberg, Lahore having one of its branch offices at Hattar Industrial Area and before this Court at Rawalpindi as is evident from paragraph No. 1 of the suit. The “Plaintiff Bank” by complying with requirement of Section 9 of the “Ordinance” attached statement of account verified by the branch manager of MCB Hattar Industrial Estate Branch. Moreover, Section 9(1) of the “Ordinance” stipulates the word Branch Manager which if read with Section 2(a) of the “Ordinance” means that the suit is to be filed by the said branch manager in terms of Section 9(2) and 9(3) of the “Ordinance” which demonstrate the amount availed by the defendant, paid by the defendant to the financial institution and other amounts relating to finance payable by the defendant. If the wording of Section 9 is read with Section 5 of the “Ordinance” it makes clear that the Banking Court established to exercise its jurisdiction under the “Ordinance”. Section 5(1) of the “Ordinance” deals with the Banking Court to considers necessary to exercise jurisdiction under the “Ordinance”. In order to decide the lis in hand, this Court has first to decide the preliminary objection qua territorial jurisdiction as raised by the counsel for the “Defendants”.

(iii) Pathology of Section 10 of the Ordinance.

1. The wording of Section 10(1) of the “Ordinance” states that in any case in which the summons has been served on the defendant under Section 9(5) the defendant shall not be entitled to defend the suit unless he obtains leave from the Banking Court. While Section 10(3) of the “Ordinance” give a chance to the defendants to file leave to defend containing substantial questions of law as well as of fact. In the case in hand, the addresses of the Defendants are mentioned as of Islamabad and Hattar whereas only the registered office of the “Defendant Company” is based on Rawalpindi. As Section 2(a) read with Section 9(5) of the “Ordinance” mentions branch offices, the amount of finance availed, carrying on or transaction of business therefore; the statement of account being sent to the defendants at their addresses would also be taken into consideration while deciding the leave to defend.

2. Pertinently, the “Ordinance” was enacted by the Government to ensure speedier recovery of the finances advanced by the financial institutions and to make the banks recovery law more effective preamble of which reads as under:

WHEREAS it is expedient to repeal and with certain modifications, reenact the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, for the purposes hereinafter appearing;

AND WHEREAS the President is satisfied that circumstances exist which render it necessary to take immediate action;

NOW, THEREFORE, in pursuance of the proclamation of Emergency of the fourteenth day of October, 1999 and Provisional Constitution Order No. I of 1999, read with the Provisional Constitution (Amendment) Order No. 9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance”.

The above extracted preamble clearly provides that the same was enacted to expedite the process of stuck-up loans from the unscrupulous customers/debtors of the banks. Though the preamble to a statute is not an operational part of the enactment but it is a gateway, which discusses the purpose and intent of the legislature to necessitate the legislation on the subject and also sheds clear light on the goals that the legislator aims 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. Reliance in this regard is placed on “Director General, Fia And Others versus Kamran Iqbal and others” (2016 SCMR 447) whereby the Supreme Court held 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”. It would be advantageous to add that the purpose and object of the “Ordinance” has already been elaborated by this Court in the case of “National Bank Of Pakistan versus Messrs Kohinoor Spinning Mills and others” (2021 CLD 1112) in the following manner:

“It is deemed pertinent to take a precise note on the purpose and object of the “Ordinance” and the mechanism provided thereunder to settle the financial disputes between the financial institutions and customers who availed finance facilities therefrom. The Ordinance was promulgated with an aim to streamline and expedite financial disputes between a financial institution and its customers and separate independent forum of Banking Court was also established under the Ordinance to achieve the goal of speedy decisions and a mechanism was devised wherein traditional extensive course of litigation was curtailed to a composite summary procedure to make sure adjudication in expeditious manner but at the same time safeguarding and securing rights of the parties and that is why Banking Courts defined under Section 2(b) and established under Section 5 of the Ordinance is simultaneously vested with powers of a Civil Court under the Code of Civil Procedure, 1908 and powers of a Court of Sessions under the Code of Criminal Procedure, 1898 as per Section 7 of the Ordinance”.

1. Section 2(b) of the “Ordinance” defined the Banking Court, in respect of a case, (i) in which the claim does not exceed hundred million rupees, and for the trial of offences under the “Ordinance”, in terms of Section 2(b)(i), (ii) means, a Court established under Section 5 of the “Ordinance”, and in respect of any other case, the High Court. While Section 5 of the “Ordinance”, enables the Federal Government to establish Banking Courts to exercise jurisdiction under the “Ordinance”. Being creature of the statute, the Banking Courts drive powers/jurisdiction under Section 7 of the “Ordinance” which reads as:

2. Powers of Banking Courts. (1) Subject to the provisions of this Ordinance, a Banking Court shall

(a) in the exercise of its civil jurisdiction have all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908);

(b) …………………………….

(2) A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898).

(3) ………………………………

(4) ………………………………

(5) ………………………………

(6) ………………………………

(7) ………………………………

The above referred provision of law stipulates that the Banking Court, in the exercise of its civil jurisdiction, shall have all powers otherwise available to a Civil Court under the Code of Civil Procedure, 1908 (hereinafter referred to as the “CPC”). By virtue of the said provision, the Banking Court is bound to follow the procedure as provided in the “Ordinance”, however where it is silent, the procedure provided in the “CPC” shall apply. Pertinently, the Banking Courts are creatures of statute and they derive their powers/jurisdiction from Section 7(4) read with Section 9(1), 2(a), 2(c), 2(d), 2(e) and 4 of the “Ordinance” and where the “Ordinance” does not prescribe a particular procedure with respect to a matter, the proceedings under the “Ordinance” are to be governed by the “CPC”) as held by the Supreme Court of Pakistan in a case titled “Habib Bank Ltd. versus Wrsm Trading Company, LLC and others” (PLD 2018 SC 795). Reliance is also placed on “Gulistan Textile Mills Ltd. and another versus Soneri Bank Ltd. And another” (PLD 2018 SC 322) where the Supreme Court of Pakistan has held that “a Banking Court is to follow the procedure laid down in the C.P.C. in all matters with respect to which the procedure has not been provided in the Ordinance”.

1. It is added that Section 20 of the “CPC” contains a general rule regarding territorial jurisdiction which inter alia, enjoins that a suit must be instituted in a Court within the local limits of whose jurisdiction the Defendant actually and voluntarily resides, or carries on business, or personally works for gain, or where the cause of action wholly or in part arises. The explanation to said section prescribes that a corporation shall be deemed to carry on business at its sole or principal office, or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. Since this provision primarily keeps the Defendant in perspective, the corporation spoken of in the Explanation, obviously refers to the Defendant. A plain reading of the said sectionarguably allows the Plaintiff a multitude of choices in regard to where it may institute its lis, suit or action. Corporations and partnership firms, and even sole proprietorship concerns, could well be transacting business simultaneously in several cities. If sub-Sections (a) and (b) of said Section are to be interpreted disjunctively from sub-section (c), as the use of the word ‘or’ appears to permit the Plaintiff to file the suit at any of the places where the cause of action may have arisen regardless of whether the Defendant has even a subordinate office at that place. However, if the Defendants’ location is to form the fulcrum of jurisdiction, and it has an office also at the place where the cause of action has occurred, then the Plaintiff is precluded from instituting the suit anywhere else. Obviously, this is also because every other place would constitute a forum non conveniens.

2. Barrister Umer Aslam, Advocate for the “Plaintiff Bank” argued that this Court has jurisdiction to entertain the suit as the registered office of the “Defendant Company” falls within the territorial jurisdiction of this Court and that the partnership deed was also registered with Registrar of Firms, Rawalpindi. While on the other hand, learned counsel for the Defendants Mr. Umar Hanif Khichi, Advocate stated that this Court lacks territorial jurisdiction for the reasons that finance facilities, as alleged by the “Plaintiff Bank”, were extended to the Defendants at Hattar Industrial Estate, Haripur and the agreements pursuant thereto were also executed at Islamabad and Hatter, thus, plaint of this suit is liable to be returned to the Banking Court concerned under order VII Rule 10 of the “CPC” for its presentation.

3. The concept of jurisdiction has already been elaborated by this Court in the case of “Bahoo Dying Industries (Private) Limited versus Sui Northern Gas Pipelines Limited and others” (2021 PLD Lahore 186) by relying on the judgment of Supreme Court of Pakistan cited in “Messrs Muhammad Tufail and Company through Muhammad Tufail (deceased) through Legal Heirs (PLD 2017 SC 51) where it was held that “Section 20, C.P.C. confers jurisdiction on a Court in two ways. Firstly, on the basis of where a defendant(s) resides, carries on business or works for gain within its local limits. Secondly on the basis of where the cause of action wholly or in part arose within its local limits. Jurisdiction means the authority to decide. The concept of jurisdiction of a Court encompasses (i) territorial jurisdiction, (ii) pecuniary jurisdiction and (iii) subject matter jurisdiction. The concept of jurisdiction has its genesis in the physical power of a Court to issue process to persons within the reach of the Court. Shorn of all extraneous ‘frills’, this is the essence of jurisdiction. A Court is to decide matters when persons relating thereto are within its reach. This basic jurisdiction is then regulated by defining the limits of that ‘reach’ by setting pecuniary limits, or by assigning different ‘subjects’ within one territory to different Courts, for example, by assigning banking and environmental matters to different Courts within one territory.”

4. No doubt, the registered office of a defendant/firm serves as official address for legal and administrative purpose and determines the jurisdiction to which the firm is subject to but at the same time it is important to note that the registered office does not necessarily determines the sole basis for establishing jurisdiction, especially when the cause of action arises in a different location/city and in cases where the cause of action accrues in a different city, such as the location of the contract execution, the place where the cause of action arose, or the defendant’s reside may also be considered in determining the appropriate jurisdiction for legal proceedings.

5. In the present case, Agreement for Financing for Short/Medium/Long Term on Markup basis was executed on 28.02.2019 at Hattar Industrial Estate (Page 45 of the suit) and said agreement was subsequently restructured/rescheduled through Finance Restructuring and Rescheduling Agreement dated 07.10.2019 executed at Islamabad (Page 99 of the suit), 1st Addendum to Finance Restructuring and Rescheduling Agreement executed on 20.07.2020 (Page 148 of the suit), 2nd Addendum to Finance Restructuring and Rescheduling Agreement executed on 12.07.2021 at Industrial Estate Hattar KPK (Page 217 of the suit). In the above-mentioned agreements, the address of registered office of the “Defendant Company” was mentioned as AA-73-737, Hamilton Road, Rawalpindi whereas it evinces from the applications for finance made by the “Defendant Company” on 01.04.2019, 16.09.2019, 08.04.2020, 23.04.2021, 31.05.2021 that all these were addressed to the Manager, MCB Bank Limited, Industrial Estate Hatter. Alongwith these applications, Borrowers Basic Fact Sheets were also appended which showed the office address of the “Defendant Company” as Office Plot No. 31, I-11/3, Near Nescom Hospital, Islamabad while address of Factory was mentioned as Plot 31/I, 34/I-A, 36 & 37, Phase IV, Industrial Estate Hatter, District Harripur. However, the residential address of the Defendant No. 2/Adeel Khan was stated as “House No. 151, High Street No. 77-E, 11, Services Cooperative Housing Society, Islamabad”; the Defendant No. 3/Jehanzaib as “House No. 1570, Street No. 87, I-10/I, Islamabad” and the Defendant No. 4/Muhammad Ashiq was mentioned as “Mohallah sooka Pandak, PO Haripur, District Haripur”. Moreover, the details of mortgaged properties in all the above stated applications were mentioned as (i) Plot No. 34/I-A, 36 & 37, Phase IV, Industrial Estate Hatter, District Harripur and (ii) House No. 151, High Street No. 77, Services Cooperative Housing Society, Sector-E-11/2, Islamabad and the said properties were mortgaged by the Defendant No. 2 and the “Defendant Company” as security. Furthermore, the “Plaintiff Bank” approved various requests of the “Defendant Company” through various facilities advising letters addressed to it at Plot No. 34, I-33/3, Near Nascom Hospital, Islamabad and pursuant to such approval, all undertakings by the “Defendant Company”, promissory notes, letters of hypothecation, personal guarantees of the Defendants and memorandum of deposit of title deeds were executed at Hattar. More impertinently, under Schedule-II of Memorandum of Deposit of Title Deeds, two properties were mortgaged; one property bearing Plot No. 34/1, 34/1-A, 36 & 37 Phase IV Industrial Estate Hattar was mortgaged by the “Defendant Company” whereas property bearing House No. 151, High Street No. 77, Services Cooperative Housing Society, Sector E-11/2, Islamabad was mortgaged by the Defendant No. 2 being the mortgagor.

6. In view of above-mentioned facts and circumstances of the instant case it is obvious that finance facilities were extended to the “Defendant Company”, its partners and mortgagors after execution of agreements which were executed at Islamabad and Hattar, the Defendants are the residents of Islamabad and Hattar, correspondence for applying and approving the finance facilities were made by the parties at Islamabad and Harripur, mortgaged properties were situated at Islamabad and Haripur, hence, this Court has no territorial jurisdiction to pass any judgment and decree against the Defendants. As a sequel, the plaint is hereby returned under Order VII Rule 10 of the “CPC” for presenting it before a Court of Competent Jurisdiction, if the “Plaintiff Company” so desires.

(Y.A.) Plaint returned

PLJ 2023 Lahore 630 [Bahawalpur Bench, Bahawalpur]

Present: Muhammad Sajid Mehmood Sethi, J.

SHAH MUHAMMAD--Petitioner

versus

PROVINCE OF PUNJAB and others--Respondents

C.R. No. 568 of 2014/BWP, heard on7.6.2023.

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

----O.VII R. 11--Specific Relief Act, (I of 1877), Ss. 42 & 54--Suit for declaration and permanent injunction--Ad-interim injunctive order was issued--Appeal--Allowed and plaint was rejected--Pendency of suit--Question of whether appellate Court was competent to reject plaint of suit under O.VII R. 11, CPC while dealing with an appeal filed against grant of ad-interim injunction--Challenge to--It is settled law that plaint can be rejected even before summoning defendants or later-on at any stage of suit proceedings but this power must be exercised by Court where plaint is pending or under challenge because scrutiny is only permissible pertaining to matter pending before that Court--It was not proper to reject plaint of suit under Order VII, Rule 11 C.P.C. while dealing with an appeal filed against order granting or refusing interim injunction--Adjudication upon merits of lis without its pendency before appellate forum is restricted--There is striking difference between scope of proceedings of an application for grant of temporary injunction in a pending proceeding and rejection of plaint under Order VII, Rule 11, C.P.C.--It was not proper for Appellate Court to reject plaint of suit by invoking provisions of Order VII Rule 11, C.P.C., while dealing with an appeal filed against issuance of ad-interim injunctive order, exercise of jurisdiction by Appellate Court to reject plaint of suit not pending before it, being illegal, is liable to be set aside--Petition allowed. [Pp. 633 & 634] A, B, C, D & E

2004 MLD 1809, 2005 YLR 2167, 2013 YLR 484, 2013 MLD 77, 2020 CLC 315 & 1994 SCMR 826 ref.

M/s. Nadeem Iqbal Chaudhary, Muhammad Tayyab Chaudhry, Ch. Muhammad Jamil, Shabana Nadeem, Ali Raza Basra and Dr. Malik Muhammad Hafeez Advocates for Petitioner.

Rai Mazhar Hussain Kharral, Assistant Advocate General for State.

Mr. Tahir Mehmood Jatoi, Advocate for Respondents.

Date of hearing: 7.6.2023.

Judgment

Through instant revision petition, petitioner has challenged judgment dated 29.05.2014, passed by learned District Judge, Bahawalnagar, whereby appeal filed by Respondents No. 2 to 5 against order dated 24.04.2014 suspending implementation of order dated 07.02.2007, regarding change of design and size of outlet in question was allowed and plaint of the suit was rejected under Order VII Rule 11 CPC being barred by law.

1. Brief facts of the case are that petitioner filed suit for declaration along with permanent injunction, which was accompanied by an application for grant of temporary injunction. Learned Trial Court, vide order dated 24.04.2014 issued ad-interim injunctive order thereby suspending implementation of order dated 07.02.2007, which was assailed by Respondents No. 2 to 5 by way of filing appeal. Learned Appellate Court, vide order dated 29.05.2014, proceeded to allow the appeal and rejected the plaint of the suit under Order VII Rule 11 CPC. Hence, instant revision petition.

2. Learned counsel for petitioner submits that impugned judgment rendered by the learned lower Appellate Court is against the law and facts. Adds that even the appeal filed by Respondents No. 2 to 5 was not competent against an interim order and in given circumstances, petitioner’s suit/plaint could not be rejected on the ground of limitation as from the stance taken up by the petitioner, it was for all intents and purposes a mixed question of law and facts, which could only be resolved after framing of issues. He adds that learned lower Appellate Court has misinterpreted and misapplied the applicable law and has committed material irregularity and illegality. In support, he has referred to Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCMR 826), Haji Muhammad Shah v. Sher Khan and others (PLD 1994 Supreme Court 294), Mushtaq Hussain v. Province of Punjab through Collector Jhelum District and 6 others (2003 MLD 109), Anwar Khan v. Abbas Khan (2003 YLR 712), Iftikharul Haq v. District Canal Officer and others (2005 CLC 1740) and Mujahidabad Welfare and Development Organization JUTAL through Members v. Provincial Government through Chief Secretary Gilgit-Baltistan and others (2022 YLR 565).

3. Contrarily, learned Law Officer, while relying upon Kamran Industry (Pvt.) Ltd. v. Industrial Development Bank of Pakistan through Regional Manager, Regional Office, Lahore and 2 others (1994 SCMR 1970), defends the impugned judgment.

4. Arguments heard. Available record perused.

5. Petitioner filed suit for declaration along with permanent injunction contending therein that design and size of petitioner’s outlet No. 12/6-R is approved as 12” dia pipe as per A-Form No. 4054 dated 31.05.2001, whereas A-form No. 512 dated 07.02.2007, whereof design and size of outlet has been altered as OC-OFRB and B=0.20, Y=0.7H, being against the law and facts, record, without issuance of prior notice and based upon mala fide, is liable to cancellation, wherein following ad-interim injunctive order was passed by learned trial Court:

“Preliminary arguments on the application for grant of interim injunction have been heard and record perused. In view of record/documents attached with the suit and affidavit submitted by the petitioner, matter needs consideration, therefore, implementation of order dated 07.02.2007 is suspended. However, this order shall have no affect on any legal proceedings before any competent Court/authority.”

In appeal, learned Appellate Court set aside the above order and rejected the plaint inter alia on the ground that the suit was barred by limitation.

1. The question before this Court is whether the Appellate Court was competent to reject the plaint of the suit under Order VII Rule 11, C.P.C. while dealing with an appeal filed against grant of ad-interim injunction. No doubt an incompetent suit shall be taken off the file at its inception and plaintiff be allowed to retrace his steps. At the same time, it is settled law that plaint can be rejected even before summoning the defendants or later-on at any stage of suit proceedings but this power must be exercised by the Court where the plaint is pending or under challenge because scrutiny is only permissible pertaining to the matter pending before that Court. There is no cavil with the proposition that the plaint of a suit can be rejected by Appellate as well as Revisional Court, however, it was not proper to reject the plaint of the suit under Order VII, Rule 11 C.P.C. while dealing with an appeal filed against the order granting or refusing interim injunction. Admittedly, learned Appellate Court was not seized of the main suit as the same was pending before Learned Trial Court. The scope of appeal before the learned Appellate Court was as to whether the appellant was entitled for the ad-interim injunction in accordance with law or not. In short, adjudication upon merits of lis/suit without its pendency before the appellate forum is restricted/prohibited. Reliance in this regard can also be placed upon has been taken from Nishan Ali v. Sher Muhammad and 3 others (2004 MLD 1809), Muhammad Iqbal v. Lahore Development Authority and others (2005 YLR 2167), Asghar Khan v. National Bank of Pakistan through president and others (2013 YLR 484), Ghulam Farid and others v. Province of Punjab and others (2013 MLD 77) and Malik Waseem Khokhar v. Taimur Kamal and others (2020 CLC 315).

2. Needless to observe here that there is striking difference between the scope of proceedings of an application for grant of temporary injunction in a pending proceeding and the rejection of the plaint under Order VII, Rule 11, C.P.C. on account of failure to disclose a cause of action in the plaint or the plaint being barred under some provision of law. The reason for different approach while rejecting a plaint under Order VII, Rule 11, C.P.C. is quite obvious. In the former proceedings, even if the Court reaches the conclusion that the plaintiff has failed to make out a prima facie case, it can only refuse to grant temporary injunction, but this rejection cannot result in the dismissal of the suit which proceeds to trial notwithstanding a finding by the Court that the plaintiff has failed to make out a prima facie case for grant of temporary injunction. On the contrary, if the Court reaches the conclusion that the plaint failed to disclose any cause of action or suit appears to be barred under some law, the proceedings come to an end immediately and the plaintiff is non-suited before he is allowed an opportunity to lead evidence and substantiate

his allegation made in the plaint. We are, therefore, of the view that the rejection of plaint at a preliminary stage when the plaintiff has not led any evidence in support of his/her case, is possible only if the Court reaches this conclusion on consideration of the statements contained in the plaint and other material available on record before the Court which the plaintiff admits as correct. Reliance is placed upon Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCMR 826).

1. In the present case, matter pertaining to grant of ad-interim injunctive order issued by the Trial Court was called-in-question before the Appellate Court might be on various grounds including non-maintainability of suit in its present form but Court of appeal while deciding the appeal ought to have confined itself relating to availability of its jurisdiction because the plaint was not pending before it, therefore, it should have refrained itself from making any definite opinion regarding the fate of the suit. No doubt, plaint of a suit can be rejected by Appellate as well as Revisional Court, however, it was not proper for the learned Appellate Court to reject the plaint of the suit by invoking the provisions of Order VII Rule 11, C.P.C., while dealing with an appeal filed against issuance of ad-interim injunctive order, thus, exercise of jurisdiction by Appellate Court to reject the plaint of the suit not pending before it, being illegal, is liable to be set aside.

2. Resultantly, instant petition is allowed and impugned judgment dated 29.05.2014, passed by learned District Judge, Bahawalnagar is set aside. Consequently, appeal filed by Respondents No. 2 to 5 shall be deemed to be pending before learned Appellate Court against the order granting ad-interim injunction, which shall be decided within a period of thirty days. Parties are directed to appear before the Court of learned District Judge, Bahawalnagar on 19.06.2023.

(Y.A.) Petition allowed

PLJ 2023 Lahore 634 [Bahawalpur Bench, Bahawalpur]

Present:Muhammad Sajid Mehmood Sethi, J.

PROVINCE OF PUNJAB through EDO (R)--Petitioner

versus

MEHNGA KHAN (deceased) through Legal Heirs, etc.--Respondents

C.R. No. 80-D of 2010, heard on 6.6.2023.

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

----S. 9--Punjab Pre-emption Act, (IX of 1991), S. 13--Colonization of Government of (Punjab) Act, (V of 1912), S. 19--Suit for possession through pre-emption--Decreed--Appeal--Dismissed--Colony land--Suit property was vested with Province of Punjab--Oral sale mutation--Right to acquire or purchase property in colony area--Permission of Commissioner for transfer of colony land--Transfer of property without permission was not pre-emptible--Challenge to--Order under Section 19 was obtained while entering into transaction between Mst. Rashida and Respondents No. 2 to 5, and this fact was admitted and duly narrated by plaintiff in plaint of suit in question--As a necessary consequence so long as a property in colony area is owned by Government and not by a private party, any transaction done under Section 19 of Act of 1912 would not be pre-emptible--Right to occupy land can neither be acquired by automatic sale nor by substitution because in case of substitution, which is right of pre-emption, provisions of Section 19 are violated--A right to acquire or purchase property in colony area is a right specifically permitted by government and it cannot be substituted by ignoring provisions of Section 19 of Act--If not susceptible to substitution, obvious conclusion would be that any such transaction is not pre-emptible--Petition allowed. [Pp. 637 & 638] A, B & C

PLD 2003 SC 588, 2015 SCMR 620, PLD 1969 SC 197 & 2012 SCMR 1387 ref.

Rai Mazhar Hussain Kharral, AAG for Petitioner.

M/s. Muhammad Ibrahim Khan and Shoaib Iqbal, Advocates for Respondents.

Date of hearing: 6.6.2023.

Judgment

Through instant petition, petitioner has assailed vires of judgments and decrees dated 07.3.2009 passed by learned Civil Judge, Ist Class, whereby suit for possession through pre-emption filed by Respondents No. 1 to 6 was decreed and judgment and decree dated 28.10.2009 passed by learned Addl. District Judge, Bahawalnagar, whereby appeal filed by the petitioner was dismissed.

1. Briefly stated the facts of the case are that predecessor of Respondents No. 1-A to 1-F/Mehnga Khan instituted a suit for possession through pre-emption against petitioner and Respondents No. 2 to 5 regarding agricultural land, detailed in Para-1 of the plaint, by contending that Mst. Rashida Begum entered into oral sale Mutation No. 468 attested on 30.12.2003 with defendants against an ostensible price of Rs. 8,20,000/-in order to defeat his superior right of pre-emption. The plaint duly contains the contents regarding alleged performance of Talb-i-Muwathibat and Talb-i-Ishhad. During proceedings of the suit, the defendants/Respondents No. 2 to 5 made statement regarding partial decree of the suit whereas petitioner contested the suit. Learned Trial Court vide judgment and decree dated 07.3.2009 decreed the suit in the following terms:

“The contention of the Province of Punjab is that the Province of Punjab is still the owner of the suit land and proprietary rights of the suit land have not been conferred. As the parties to the lis have entered into compromise and the defendants have got recorded their statements regarding the partial decree of this suit. In such circumstances, the transfer of the land in favour of the plaintiffs would be subject to all limitations and formalities as mentioned by the province of Punjab in his written statement and the plaintiffs would be stepping into the shoes of vendee/defendants. As such, suit of the plaintiffs for pre-emption is hereby partially decreed to the extent of 16-kanals comprising square No. 60 Qilla No. 5-2 Kanal 12 Marlas, Qilla No. 6, 2 Kanals 12 Marlas, Qilla No. 15, 2 Kanal 12 Marlas, Qilla No. 6, 6 Kanals 12 Marlas and Qilla No. 17, 1 Kanal 12 Marlas. While, their remaining prayer is turned down. The plaintiffs are also entitled to collect Zar-e-Soam deposited by them. Decree sheet be drawn. File be consigned to the record room.”

Feeling aggrieved, the petitioner preferred an appeal, which was dismissed by the learned Addl. District Judge, Bahawalnagar vide judgment and decree dated 28.10.2009. Hence, this revision petition.

1. Learned counsel for petitioner contends that land in question is not pre-emptable being a colony land, thus, suit was not maintainable and impugned judgments and decrees are unsustainable in the eye of law.

2. On the other hand, learned counsel for respondents has supported the impugned judgments and decrees.

When confronted as to how right of pre-emption can be claimed when the property vests with the Province of Punjab, learned counsel for respondents submits that suit has been decreed after proving performance of Talb-i-Ishhad and Talb-i-Muwathibat.

1. The law that governed the relationship between the State and the tenants over State land prior to the Colonization of Government (Punjab) Lands Act, 1912 (“the Act of 2012”), was the Government Tenants (Punjab) Act, 1893. However, it was repealed vide Section 2 of the Act of 1912. The legal provision corresponding to Sections 18 and 19 of the Act of 1912 was contained in Section 8 of the Repealed Act of 1893. Section 19 of the Act of 1912 is a more elaborate provision in relation to transfer of tenancy rights declaring the same to be void without the previous consent in writing of the Commissioner or by such officers as he may by written order empower in this behalf. It is, therefore, important that any transfer of tenancy rights be exercised strictly in accordance with the spirit of law as envisaged under this section.

2. The scheme of the Act of 2012 indicates that right to acquire property is a grant by the government and the government has the power to allot or refuse allotment of a property. The discretion of government to select the person as transferee of colony land is so important that even the original allottee cannot transfer or sell the land in his occupation to a third person without obtaining permission by the Collector under Section 19 of the Act, which provides that rights or interests vested in a tenant cannot be transferred without written consent of the Commissioner. Admittedly, in the instant case, order under Section 19 was obtained while entering into transaction between Mst. Rashida and Respondents No. 2 to 5, and this fact was admitted and duly narrated by plaintiff in the plaint of suit in question.

3. Similarly, the cases of tenants under the Schemes where there is an inbuilt concept of conferment of proprietary rights to the extent provided in the Scheme would also be covered subject to continuance of the tenancies as per terms and conditions governing them. Therefore, all Government grants are required to take effect according to their tenor in the statement of conditions governing them. It is difficult to press into service a right of tenant other than that enforceable under the law in accordance with the statement of conditions providing for the same. Such a right or a vested interest in terms of Section 19 of the Act of 1912 is created in a tenant on the examination of his eligibility for conferment of proprietary rights in his favour. As a necessary consequence so long as a property in colony area is owned by the Government and not by a private party, any transaction done under Section 19 of the Act of 1912 would not be pre-emptible. Even otherwise the Supreme Court of Pakistan in Muhammad Aslam and others v. Shabbir Ahmad and others” (PLD 2003 SC 588) held that owing to the non-withdrawal by the Government of Punjab of Notification No. 74 dated 12.06.1944 issued by the Government of Bahawalpur, the land in colony area falling within the ambit of the Act of 1912 remains non-pre-emptible.

4. Needless to say that right to occupy land can neither be acquired by automatic sale nor by substitution because in case of substitution, which is the right of pre-emption, the provisions of Section 19 are violated. In nutshell, a right to acquire or purchase property in colony area is a right specifically permitted by the government and it cannot be substituted by ignoring the provisions of Section 19 of the Act of 1912. If not susceptible to substitution, the obvious conclusion would be that any such transaction is not pre-emptible. Reliance is made on cases law reported as “Muhammad Aslam and others v. Shabbir Ahmad and others” (PLD 2003 SC 588), “Abdul Majeed through L.Rs and others v. Sher Din through L.Rs.” (2015 SCMR 620), “Mst. Rehmat Bibi v. Nathe Khan and others” (PLD 1969 SC 197) and “Muhammad Siddique and others v. Muhammad Sharif and others” (2012 SCMR 1387)

5. In view of above, this petition is allowed and impugned judgments and decrees of the Courts below are hereby set aside. Consequently, suit of respondents for possession through pre-emption stands dismissed.

(Y.A.) Petition allowed

PLJ 2023 Lahore 638

Present:Shujaat Ali Khan, J.

SARFRAZ AHMED--Petitioner

versus

MEMBER (VI), PUNJAB SERVICE TRIBUNAL, LAHORE etc.--Respondents

W.P. No. 38694 of 2023, decided on 13.6.2023.

Constitution of Pakistan, 1973--

----Arts. 199 & 212(2)--Petitioner was serving as Junior Clerk--Transfer of--Departmental appeal--Pendency of appeal--Appeal before PST--Direction to Respondent No. 2 to decide departmental appeal--Maintainability--Remedy of appeal before Apex Court--Remedy of appeal before Apex Court of country against an order of Administrative Tribunal, established through a provincial enactment, is not available until and unless Parliament, by law, extends provisions of Article 212(2) of Constitution to include a Court or Tribunal established under provincial law--Remedy of appeal before Hon’ble Supreme Court of Pakistan is available to petitioner against an order passed by PST and remedy of appeal is also available against Transfer Order, instant petition is not maintainable--Petition dismissed. [Pp. 642 & 643] A & B

Ch. Shahzad Hussain Sangla, Advocate for Petitioner.

Rana Shamshad Khan, Additional Advocate General Respondents.

Date of hearing: 13.6.2023.

Order

C.M. No. 3 of 2023.

Instant application seeking permission to place on record certain documents is allowed subject to all just and legal exceptions.

MAIN CASE.

1. Briefly put, while serving as Junior Clerk in the office of Chief Executive Officer, District Education Authority, Pakpattan (Respondent No. 3) the petitioner was transferred to Government High School, 88/EB, Arifwala, vide order, dated 25.05.2023, against which he filed departmental appeal before the Director Public Instructions (DPI), Secondary Education, Punjab, Lahore (Respondent No. 2). Since the appeal of the petitioner was not being decided he filed appeal (No. 2410/2023) before the Punjab Service Tribunal (PST), Lahore which was decided through order, dated 29.05.2023, directing Respondent No. 2 to decide the departmental appeal of the petitioner. Aggrieved of order, dated 29.05.2023, passed by PST, the petitioner has filed this petition.

2. Learned counsel for the petitioner submits that according to the documents brought on record by the petitioner through miscellaneous application (C.M. No. 3 of 2023), while issuing direction for decision of appeal of an employee the PST held in abeyance the orders challenged in the appeal but in the matter of the petitioner said relief has not been granted, thus, it is case of clear discrimination.

3. When posed with the query as to how instant petition is maintainable as the order passed by PST can be challenged before the Hon’ble Supreme Court of Pakistan in terms of Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution), learned counsel for the petitioner while referring to the case reported as Dean/Chief Executive Gomal Medical College, Medical Teaching Institution, D.I. Khan v. Muhammad Armaghan Khan and others (PLD 2023 SC 190) submits that since appeal before the Hon’ble Supreme Court of Pakistan is not maintainable against an order passed by PST the petitioner has been left with no option but to file instant petition.

4. After hearing learned counsel for the petitioner and going through the documents, appended with this petition, in particular the afore-referred judgment, I have noted that in prayer clause of this petition the petitioner has challenged his Transfer Order, dated 25.05.2023, but at the rostrum learned counsel for the petitioner has also impugned validity of order, dated 29.05.2023, passed by PST.

5. While dealing with question regarding maintainability of appeal against order of a Tribunal, the Apex Court of the country in the referred case has inter-alia held as under:

6. The creation of an Administrative Tribunal is at the discretion of the relevant legislature; it is not mandatory for it to do so. One point to keep in mind is that the (exclusive) jurisdiction conferred on a Tribunal created under clause (1) need not be in respect of all the matters that can come within the scope of para (a); it may be that it is exercised only in relation to some of such matters. But if such a Tribunal is created, that in any case takes the matter to clause (2). This clause also opens with an identically worded non-obstante clause, i.e., it overrides “anything herein before contained”. In respect of a Tribunal created by Federal legislation it has automatic effect, mandatorily excluding the jurisdiction of any other Court to “grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends”. All judicial remedies are therefore closed as soon as the relevant legislation comes into force. The only such door left open is provided by clause (3), which provides for a right of appeal to this Court in terms as stated therein. Federal legislation therefore presents no special problem. The real problem is in relation to a Tribunal created by Provincial legislation. Here, the proviso to clause (2) becomes applicable. This provides that a Provincial Assembly may (but is not required to) pass a resolution asking Parliament to extend clause (2) to the Tribunal created by it, and on such resolution Parliament may (but is not required to) enact the necessary legislation in this regard. If both these stages are crossed the proviso becomes applicable, and the effect then is the same as in the case of Federal legislation: all judicial remedies are closed and the only avenue for redress is an appeal to this Court in terms of clause (3).

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1. The conclusions arrived at above require certain directions to be given, keeping in mind that leave petitions and appeals under clause (3) of Article 212 may well be pending from Tribunals not covered by the proviso to clause (2), and many such petitions and appeals appear to have been decided and disposed of in the past. We are of the view that matters must therefore be regularized in the following terms:

a. It is held that no appeal lies to this Court in terms of Article 212(3) against the decision of a Tribunal created by a Provincial law to which the proviso to clause (2) has not been applied. Any such leave petitions and appeals as are pending, being not maintainable, must be returned forthwith by the Office and no such leave petitions are to be entertained in future;

b. Nothing in sub-para (a) above applies in relation to the following:

i. Leave petitions and/or appeals that already stand decided or disposed of (including by way of having been withdrawn or remanded or otherwise dealt with), whether by way of a detailed judgment or a short order whether announced orally or in writing and regardless of whether in respect of any such matter detailed reasons are awaited, all such matters being regarded as past and closed;

ii. Leave petitions and/or appeals in which judgment is reserved, unless the concerned Bench directs otherwise;

iii. Leave petitions and/or appeals that are part heard, unless the Bench concerned directs otherwise;

iv. Such pending leave petitions and/or appeals as may be directed by the Hon’ble Chief Justice.

c. A litigant to whom a leave petition or appeal has been returned in terms of sub-para (a) or by reason of anything contained in sub-para (b), and who chooses or wishes to avail another remedy before any other forum as may be available under law shall have the benefit of Section 14 of the Limitation Act, 1908 if any question of limitation arises or (as the case may be) equivalent equitable relaxations if any question of delay or laches arises.

d. The Registrar shall ensure that a copy of this judgment is forthwith sent to the registrars of all Tribunals to which sub-para (a) applies and the said registrars shall immediately bring it to the attention of the Chairpersons and members of the said Tribunals. It shall be the responsibility of each Chairperson to ensure that till such time as the proviso to clause (2) of Article 212 becomes applicable to the Tribunal, the following (or similar) legend is suitably incorporated in the title page of each decision thereof for the benefit of all litigants:

“This Tribunal is not covered by the proviso to clause (2) of Article 212 of the Constitution of the Islamic Republic of Pakistan and therefore no leave petition or appeal lies to the Hon’ble Supreme Court of Pakistan in terms of clause (3) of the said Article.”

From the above, it is crystal clear that the remedy of appeal before the Apex Court of the country against an order of Administrative Tribunal, established through a provincial enactment, is not available until and unless the Parliament, by law, extends the provisions of Article 212(2) of the Constitution to include a Court or Tribunal established under provincial law. Insofar as the case in hand is concerned, admittedly, the impugned order has been passed by PST, established pursuant to adoption of a bill by the Provincial Assembly of the Punjab which was assented to by the Governor of Punjab, on 20.06.1974. Now the question further boils down to the effect as to whether clause 2 of Article 212 of the Constitution was extended to PST or not, to see as to whether remedy of appeal, before Hon’ble

Supreme Court of Pakistan, against any order passed by it is available to an aggrieved party or not. The Provincial Service Tribunals (Extension of Provisions of Constitution) Act, 1974 was promulgated, on 02.05.1974, Section 2 whereof reads as under:

“2. Provisions of Article 212(2) to extend to Provincial Service Tribunals: The provisions of clause (2) of Article 212 of the Constitution of the Islamic Republic of Pakistan shall extend to the Service Tribunals respectively established under Acts of the Provincial Assemblies of the North-West Frontier Province, the Punjab and Sind.”

According to the afore-quoted enactment, the provisions of Article 212(2) of the Constitution have been extended to PST, hence, the present case stands distinguished from the referred case inasmuch as the Tribunal, whose order was subject matter of the referred case, was not extended the provisions of Article 212(2) of the Constitution.

1. Since remedy of appeal before Hon’ble Supreme Court of Pakistan is available to the petitioner against an order passed by PST and remedy of appeal is also available against Transfer Order, dated 25.05.2023, instant petition is not maintainable which is accordingly dismissed with the observation that the petitioner would be at liberty to approach the forum concerned, for redressal of his grievance.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 643

Present: Raheel Kamran, J.

SAJID IQBAL SHEIKH--Petitioner

versus

ADJ, LAHORE, etc.--Respondents

W.P. No. 38170 of 2023, decided on 7.6.2023.

Punjab Rented Premises Act, 2009 (VII of 2009)--

----Ss. 10 & 13--Eviction petition--Dismissed--Appeal--Allowed--Oral tenancy agreement--Expiry of agreement--Pendency of suit for specific performance--Denial of agreement to sell by respondent--Relationship of landlord and tenant--Non-revoking of tenancy agreement--Title of Respondent No. 3 over premises in question is not disputed and as plea in rebuttal raised by petitioner is yet to be established, owner of property by virtue of his title would be presumed to be landlord and person in possession of same would be construed as tenant--Tenancy agreement is not necessarily required to be in writing rather it may be oral and implied--Any other agreement between landlord and tenant does not affect their relationship inter se unless tenancy agreement is revoked--There is nothing on record to suggest that oral tenancy agreement between parties was revoked prior to execution of agreement to sell alleged by petitioner--Appellate Court has rightly accepted eviction petition of Respondent No. 3 and I do not find any justifiable reason to interfere with same in exercise of writ jurisdiction--Petition dismissed. [Pp. 645 & 646] A, B, C & D

PLD 2007 SC 45 & PLD 2014 SC 347.

Sheikh Imran Zulfiqar, Advocate for Petitioner.

Date of hearing: 7.6.2023.

Order

The petitioner has invoked the constitutional jurisdiction of this Court to challenge the judgment dated 19.05.2023 passed by the Additional District Judge, Lahore whereby on appeal filed by Respondent No. 3, order dated 24.06.2022 of the Special Judge (Rent), Lahore was set aside and eviction petition was accepted.

1. Brief facts of the case are that Respondent No. 3 filed an eviction petition with the averments that the petitioner obtained the disputed premises from him on monthly rent of Rs. 20,000/-vide oral agreement dated 01.01.2015, which was to expire on 30.11.2015 but after the expiry of the said agreement he neither vacated the disputed premises nor paid the rent. The petitioner/respondent appeared and filed an application for leave to defend the petition on the ground that relationship of landlord and tenant did not exist between him and Respondent No. 3/ejectment petitioner inasmuch as he had purchased the disputed premises from father of Respondent No. 3 vide agreement to sell dated 26.03.2015 against the consideration of Rs. 10,400,000/-out of which Rs. 8,400,000/-was paid and possession was obtained. Said application of the petitioner was allowed and out of the divergent pleadings of the parties, issues were framed. After recording of evidence of the parties, the Special Judge (Rent), Lahore vide order dated 24.06.2022 dismissed the eviction petition. Feeling aggrieved, Respondent No. 3 preferred appeal before the Additional District Judge, Lahore, which was allowed and petitioner was directed to vacate demised premises within a period of 60 days vide judgment impugned herein.

2. Learned counsel for the petitioner contends that the impugned judgment suffers from misreading and non-reading of evidence inasmuch as it only discusses the evidence of RWs and states nothing about the evidence of AWs. Maintains that the Appellate Court while passing the impugned judgment failed to consider that there was no written tenancy agreement rather oral agreement was alleged without mentioning its essential detail including the names of the witnesses, hence, the same has no sanctity in the eye of law. In this regard, he has placed reliance on the case of Muhammad Nawaz through L.Rs. vs. Haji Muhammad Baran Khan through L.Rs. and others (2013 SCMR 1300). Further contends that Respondent No. 3 has not been able to establish the relationship of landlord and tenant between the parties and suit for specific performance of the agreement filed by the petitioner is also subjudice before the Civil Court, therefore, impugned judgment is not sustainable in law.

3. Heard.

4. The petitioner claims to be in possession of the disputed premises on the basis of an agreement to sell, which has been denied by Respondent No. 3. Although a suit for specific performance of the said agreement has been filed by the petitioner, which is subjudice before the Civil Court wherein claim of the petitioner is yet to be proved. However, title of Respondent No. 3 over the premises in question is not disputed and as the plea in rebuttal raised by the petitioner is yet to be established, the owner of the property by virtue of his title would be presumed to be the landlord and the person in possession of the same would be construed as tenant. Moreover, the tenancy agreement is not necessarily required to be in writing rather it may be oral and implied. Reliance in this regard is placed on the case of Shajar Islam vs. Muhammad Siddique and 2 others (PLD 2007 Supreme Court 45).

5. Even otherwise, eviction petition was filed on 09.03.2016 whereas suit for specific performance of contract was subsequently instituted on 18.03.2016. Section 10 of the Punjab Rented Premises Act, 2009 adequately deals with any agreement executed between the landlord and tenant after the tenancy agreement, which is reproduced as under:

“10. Effect of other agreement.--An agreement to sell or any other agreement entered into between the landlord and the tenant, after the execution of a tenancy agreement, in respect of premises and for a matter other than a matter provided under the tenancy agreement, shall not affect the relationship of landlord and tenant unless the tenancy is revoked through a written agreement entered before the Rent Registrar in accordance with provisions of section 5.”

The above provision of law clear indicates that any other agreement between the landlord and tenant does not affect their relationship

inter se unless the tenancy agreement is revoked. However, there is nothing on record to suggest that the oral tenancy agreement between the parties was revoked prior to execution of agreement to sell alleged by the petitioner. In the same situation the Supreme Court of Pakistan in the case of Muhammad Nisar vs. Izahar Ahmad Sheikh and others (PLD 2014 Supreme Court 347) has held as under:

“-----when the tenant put up a plea in an ejectment application that he had purchased the property then he had to file a suit for his remedies and vacate the premises and thereafter if he succeeded, he would be entitled to take possession of the premises again.”

Since the suit for specific performance of agreement to sell filed by the petitioner is pending, he has to vacate the disputed premises and thereafter if he succeeds, he will be entitled to take possession of the same again. The case law relied upon by the learned counsel for the petitioner is quite distinguishable for two reasons, firstly the same pertains to a suit for specific performance of an agreement pending before the Civil Court whereas the instant matter is an eviction petition, and secondly as observed supra, in the absence of contrary evidence with regard to title of the disputed premises the owner of the premises is to be presumed as landlord and the person in its possession is supposed to be tenant.

1. In view of the foregoing reasons, the Appellate Court has rightly accepted the eviction petition of Respondent No. 3 and I do not find any justifiable reason to interfere with the same in exercise of writ jurisdiction. This constitutional petition being devoid of any merit is dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2023 Lahore 646 [Multan Bench, Multan]

Present: Rasaal Hasan Syed, J.

SHABANA KOUSAR--Petitioner

versus

ADDL. DISTRICT JUDGE and others--Respondents

W.P. No. 9656 of 2023, decided on 13.6.2023.

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

----O. XXXIX, R. 1, 2--Specific Relief Act, 1877 (I of 1877), S. 9--Punjab Pre-emption Act, (IX of 1991), S. 13--Application for grant of temporary injunction--Dismissed--Appeal--Dismissed--Bona fide transfer--Construction was already raised on disputed property by respondents--Suit for possession--Pre-emption--Sale-deed-- Constitutional jurisdiction--Mala fide intention--Application is based on vague assertions and assumptions--The only plea raised in paragraph “3” of application under Order XXXIX, Rules 1 and 2, C.P.C. is that respondent with mala fide intended to change nature and condition of suit property and was threatening to raise construction and making further alienation--Entire stance of petitioner for seeking injunction was misplaced and was rightly repelled by Courts below--The plea regarding alleged talbs is just an assertion which is yet to be proved by evidence--As against petitioner, respondents are bona fide transferee for consideration who possibly could not be deprived of their rights of uninterrupted use of their property--Consistent view of Court has been that at instance of pre-emptor who is yet to succeed after proving talbs and qualifying of superior rights, a bona fide purchaser of property could not be restrained from constructing thereupon or be prevented from using property for own purpose as they choose and that any restraint would be violative of fundamental rights--Respondents had already raised construction detailed therein and were using it for commercial purpose while petitioner was unable to show or prove anything otherwise. Being so, application was based on frivolous assertions, petitioner therefore had no prima facie case for grant of injunctive relief while balance of convenience and irreparable loss operated in favour of respondents. The Courts below for valid reasons and on sound premises exercised their discretion against petitioner which does not suffer any legal infirmity, jurisdictional error or arbitrariness and, therefore, does not call for any interference--Petition dismissed.

[Pp. 648, 649, 650 & 651] A, B, C, D & E

Ref. 2015 YLR 1505. 1993 CLC 2541, 1989 MLD 1603, 2007 Lah. 377, 2010 YLR 22, 2014 MLD 1585, 2014 CLC 186.

Mr. Saghir Ahmad Bhatti, Advocate for Petitioner.

Date of hearing: 13.6.2023.

Order

Through the instant constitutional petition orders dated 22.12.2022 and 06.4.2023 of the Courts below have been called into question.

1. Heard.

2. The petitioner instituted a suit for possession through pre-emption wherein the stance taken was petitioner shared common khewat, passages and watercourses and that as such being shafi sharik and shafi khalit was entitled to a superior right of pre-emption and that by sale-deed No. 3935/1 dated 13.9.2022 the property was secretly sold; that she had no information or notice thereof which was subsequently gifted orally to the sons of the respondent vendee and mutation of oral Gift No. 5057 dated 14.9.2022 was also entered and that on coming to know she immediately made the necessary talbs and, thereafter, filed suit in a timely manner. It was also alleged that the transaction had actually been conducted for a total consideration of Rs. 1,65,00,000/- which was exaggeratedly recorded as Rs. 2,00,00,000/-in the sale-deed to repel the claim of the petitioner to pre-emption and that under the circumstances the suit was liable to be decreed in her favour. The claim was resisted through the written statement filed by the other side. Along with the suit the petitioner also filed an application under Order XXXIX, Rules 1 and 2, C.P.C. for grant of temporary injunction to restrain alternation and change to the nature and condition of property pending decision of suit, which after hearing both sides was dismissed by the trial Court vide order dated 22.12.2022. The petitioner preferred an appeal there against which too was turned down by the learned Addl. District Judge vide order dated 06.4.2023. Both these orders declining temporary injunction and dismissal of appeal have now been assailed in the Constitutional jurisdiction.

3. Main stance of the learned counsel is that petitioner being shafi sharik and shafi khalit having performed the requisite talbs has a prima facie case for the grant of temporary injunction and that the Court below incorrectly ignored this aspect of the matter and that the balance of convenience is also in favour of the petitioner and that any change in the nature and condition of the property would result in irreparable loss to the petitioner.

4. Perusal of the application under Order XXXIX, Rules 1 and 2, C.P.C. shows that the application is based on vague assertions and assumptions. The only plea raised in paragraph “3” of the application under Order XXXIX, Rules 1 and 2, C.P.C. is that the respondent with mala fide intended to change the nature and condition of the suit property and was threatening to raise construction and making further alienation. The response given by the respondent to the application is material inasmuch as it is asserted therein that the facts asserted by the petitioner were false; that the respondents were not in breach of any law; that they were peacefully living and law-abiding individuals and that for the purpose of getting benefit out of their property the boundary walls were raised, a gate was installed, a room with other constructions comprising an office and cattle-shed were constructed, water-pump and solar-energy plant were installed at the premises and that they were running their business therein which was not causing any damage to the petitioner. The petitioner did not either specifically controvert these facts nor placed on record any material to controvert the existence of construction at site or the facts as narrated in the reply to the application by the respondent. In view of these facts, the entire stance of the petitioner for seeking injunction was misplaced and was rightly repelled by the Courts below.

5. Even otherwise the factual position at the moment is that the respondents are owners of the property and being bona fide purchaser they had every right to use the property for beneficial purposes while the petitioner at present has no title in the property. The petitioner’s claim is based on pre-emptory right which was dependent on the proof of requisite talbs and other facts to establish superior right of pre-emption. At present the plea regarding the alleged talbs is just an assertion which is yet to be proved by evidence. As against the petitioner, the respondents are bona fide transferee for consideration who possibly could not be deprived of their rights of uninterrupted use of their property. In Zahid Shah v. Shanzeb (2015 YLR 1505) it was observed to the effect that in a suit for pre-emption temporary injunction could not be granted against bona fide purchaser nor he could be restrained from raising construction at his own risk and cost as it would not cause any inconvenience to the plaintiff if he ultimately succeed in the suit inasmuch as the bona fide purchaser had every right to utilize his property until and unless decree was passed against him and that to prohibit the lawful owner of the constitutional guarantee provided under the fundamental rights. In Muhammad Sham and others v. Kaneez Zohra Bibi (1983 CLC 2541) it was observed to the effect that the vendee being the absolute owner has the right to enjoy the possession of the area subject matter of suit so long a decree for pre-emption is not passed against him and it is executed. In HameedullahKhan v. Mst. Shah Jehan Begum and others (1989 MLD 1603) it was observed to the effect that the construction on a portion of property duly allotted under partition decree was not against law and that mere fact the plaintiff could succeed in establishing his right of pre-emption in respect of portion in possession of the opposite side could not debar the defendant in the suit from carrying out construction or improvement in the property unless it was against any specific provision of law. In Muhammad Zahid Pervaiz v. Muhammad Shafqat Iqbal (PLD 2007 Lah. 377) it was observed to the effect that injunctive order could not be lightly granted regarding the construction of the property by the vendee nor could making of improvement in the property could be restrained till the final decision of the case. Even if the pre-emptor has the prima facie case has established its right of pre-emption on record still the owner of property cannot be put under restraint to use his property which may tantamount to the breach of his fundamental right as enshrined by Article 23 of the Constitution of Islamic Republic of Pakistan, 1973. In Muhammad Ashraf v. Naseer Ahmad and and others (2010 YLR 22) it was observed to the effect that the plaintiff in a suit for pre-emption, at best, is claimant of right of pre-emption and has yet to prove his case who cannot be allowed to hold a bona fide purchaser hostage by the reason of such claim and deprive such purchaser of the lawful right to use and enjoy the property purchased by him. In Muhammad Zaman v. Azmat Ullah and another (2014 MLD 1585) it was observed that the right of pre-emption would not be affected in the case of transfer of property or any change in the nature of the same after institution of suit and that at best the plaintiff could be directed to move an application for spot inspection if any construction was made in order to assess whether the improvement was made or otherwise qua the time of such improvement. In Professor Syed Khurshid Alam v. Ch. Muhammad Aslam (2014 CLC 188) it was observed that in a suit for pre-emption if an application under Order XXXIX, Rules 1 and 2, C.P.C. is filed by the pre-emptor to restrain the vendee from alienating the suit property or changing the character thereof during the pendency of suit, the balance of convenience could not be said to allow in favour of the plaintiff before proving the superior right and performance of talbs on the basis of evidence and that question of prima facie case in favour of the plaintiff will be determined after scanning of evidence of parties and that the principle of lis pendens would take care of the alienation of the suit land by the vendee during the pendency of the suit and that any injunctive order would deprive the vendee of his vested right to use the land as its owner according to his own choice.

6. It is clear from the above that the consistent view of the Court has been that at the instance of pre-emptor who is yet to succeed after proving talbs and qualifying of superior rights, a bona fide purchaser/owner of the property could not be restrained from constructing thereupon or be prevented from using the property for own purpose as they choose and that any restraint would be violative of the fundamental rights that have been guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. In the present case the respondents have specifically stated in the reply to application under Order XXXIX, Rules 1 and 2, C.P.C. that they had already raised the construction detailed therein and were using it for commercial purpose while the petitioner was unable to show or prove anything otherwise. Being so, the application was based on frivolous assertions, the petitioner therefore had no prima facie case for the grant of

injunctive relief while the balance of convenience and irreparable loss operated in favour of respondents. The Courts below for valid reasons and on sound premises exercised their discretion against the petitioner which does not suffer any legal infirmity, jurisdictional error or arbitrariness and, therefore, does not call for any interference. Resultantly, instant petition is without any substance is hereby dismissed.

(J.K.) Petition dismissed

PLJ 2023 Lahore 651

Present:Jawad Hassan, J.

SERVICE GLOBAL FOOTWEAR LIMITED and another--Petitioners

versus

FEDERATION OF PAKISTAN and others--Respondents

W.P. No. 58683 of 2022, decided on 27.06.2023.

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

----Ss. 4(c), 74(1) & 74(3)--Constitution of Pakistan, 1973, Arts. 25 & 199--Retrospective application of Section 4C of Income Tax Ordinance--Discrimination--Imposing of super tax--Insertion of Section 4C in Ordinance--Past and closed transaction--Liability of petitioners--Intelligible differentia--Doctrine of textualism--Reducing of super tax--Retrospective application of Section 4C of Income Tax Ordinance, 2001 and vires of First Proviso to Division IIB of Part I of First Schedule of “Ordinance”, introduced through Finance Act, 2022--Petitioners are at liberty to file their return at any date on or before thirtieth day of September following end of tax year to which return relates--It is an admitted position that many a Petitioners operate under normal tax year in terms of Section 74(1) of “Ordinance” while others operate under Section 74(3) of “Ordinance” availing special tax year and availing of such special year is subject to applying in writing to Commissioner to use a twelve months’ period other than normal tax years and that permission is further subject to Section 74(5) of “Ordinance” therefore, availing any special tax year for payment tax liability is just to accommodate that category of Petitioners and not for purpose to evade payment of income tax due in a normal tax year-- Petitioners are only liable to pay Super Tax at rate mentioned in Division IIB of Part I of First Schedule of “Ordinance”, and 4% as reduced by Supreme Court--Writ petitions are partially allowed to extent that First Proviso to Division IIB of Part I of First Schedule of “Ordinance” is declared to be discriminatory, ultra vires to “Constitution” and rate of super tax is reduced to 4% from 10%--Rest of prayers made in petitions are declined being super tax as valid--Petitions partially allowed.

[Pp. 661, 672, 674, 675 & 679] A, B, C, D, E & G

2011 PTD 2229, 2023 PTD 607 Sindh, 2022 SCMR 1994 ref.

Constitution of Pakistan, 1973--

----Art. 25--Distinct treatment--Although Article 25 of Constitution allows for differential treatment of persons who are not similarly placed under a reasonable classification but it is also equally settled that in order to justify this difference in treatment reasonable classification must be based on intelligible differentia that has a rational nexus with object being sought to be achieved--This means that any distinct treatment meted out to a class of persons can only be sustained under Article 25 if aforesaid test is satisfied.

[P. 676] F

Ref. 2022 SCMR 1691, PLD 2010 SC 265, 2022 SCMR 201, 2021 SCMR 747.

M/s. Salman Akram Raja, ASC, Malik Ahsan Mehmood, Arslan Riaz and Barrister Raja Hamza Anwar, Advocates for Petitioners (in W.Ps. No. 58672, 64994, 67221, 65025 of 2023).

Mr. Mansoor Usman Awan, ASC, Haris Irfan and Hamza Shehram Sarwar, Advocates for Petitioners (in W.Ps. No. 12761, 58689, 59245, 59251, 59911 and 12768 of 2023).

Barrister Haroon Dugal, ASC with Subhe Nasib, Advocate (in W.P. No. 75277 of 2022).

Mr. Zoe K. Khan, Advocate for Petitioners (in W.P. No. 75528 of 2022).

M/s. Shazib Masud, ASC, M. Asad Buttar, ASC and Jawad Jamil Mailk, Advocate for Petitioners (in W.Ps. No. 56758, 83260 and 59133 of 2023).

Dr. Mazhar Ilahi, Advocate with Barrister Asfandyar Khan Tareen, Arslan Saleem Chaudhry and M. Siddique Butt, Advocates for Petitioners (in W.Ps. No. 567, 829 and 1043 of 2023).

M/s. Muhammad Shahbaz Butt, ASC with Khurram Shahbaz Butt, Muhammad Hassan Dogar, Advocates for Petitioners (in W.Ps. No. 403, 530, 2452, 4359, 5291, 11364, 11635, 11646, 13559, 13615, 20124, 83497, 67867, 67979, 68023, 68017, 74076, 78120, 79612, 82816 of 2023, 83497 and 83301, 83126, 83311, 5297, 5299, 5347, 83320, 83323 of 2022 and 2023).

M/s. Abdul Waheed Habib, Mirza Mubashar Baig and Jawad Ahmad, Advocates for Petitioners (in W.Ps. No. 404 of 2023 and 83485, 83486 of 2022).

M/s. Munawar-ul-Salam, ASC, Muhammad Shoaib Rashid, ASC and Hassan Pervaiz, Advocate (in W.Ps. No. 60340 and 83294 of 2022).

Mr. Adil Umar Bandial and Sajjad Ali, Advocates for Petitioners (in W.P. No. 82429 of 2022).

Scheherezade Shaharyar, Advocate for Petitioners (in W.P. No. 78882 of 2022).

M/s. Khalil-ur-Rehman, Saad Ullah and Azam Jan Muhammad, Advocates for Petitioners (in W.Ps. No. 93, 8245, 323, 10273, 571, 14746, 17747, 83231, 13464, 83098, 83384, 83484, 83473, 930, 6960, 2359 and 23807 of 2023).

Mr. Muhammad Nauman Yahya and Shakeel Ahmad Basra, Advocates for Petitioners (in W.P. No. 108 and 1211 of 2023).

Bashir Ahmad Khalid and M.A. Rizwan Kamboh, Advocates for Petitioners (in W.Ps. No. 112, 379, 3423 of 2023 and 81874, 82187, 82192, 82187, 81884, 82192, 82187, 82788, 82969, 83482, 83371, 82805 of 2022).

Mr. Jahangir Ahmad, Advocate for Petitioners (in W.Ps. No. 163/23 and 83400 of 2022).

M/s. Nadir Ali Sherazi, Barrister M. Abubakar and Muhammad Usman, Advocates for Petitioners (in W.P. No. 200, 312, 627, 1998, 2531, 5550, 6347, 9987, 20606 of 2023 and 82897, 82899, 82905, 83321, 83293, 82908, 82910, 66947, 82917, 83417, 83418, 83019, 83023, 83025 of 2022).

M/s. Faisal Rasheed Ghouri and Omar Iqbal Khawaja, Advocates for Petitioners (in W.Ps. No. 206, 518, 3455, 2483, 9824, 9825 of 2023 and 67998, 83335, 66678, 68018, 66716, 66947, 67096, 83665, 83667, 83668 of 2022).

Mr. Mustafa Kamal, Advocate for Petitioners (in W.P.s No. 250, 1339, 1837, 2415, 3397, 4958, 5913, 6645, 12858, 13416, 14899 of 2023 and 60348, 64237, 66560, 79617, 80573, 82706, 82905, 83302, 81930, 82935, 83106, 83133, 83322, 83331, 83413, 83446, 83571 of 2022).

Mr. Zia Haidar Rizvi and Zahid Imran Gondal, Advocates for Petitioners (in W.Ps. No. 304 of 2023 and 83590, 83610 of 2022).

Mr. Muhammad Zulqarnain, Advocate for Petitioners (in W.Ps. No. 436, 83503 and 83505 of 2023).

M/s. Muhamad Asif Rana and Amir Khan, Advocates for Petitioners.

Mr. H. M. Majid Siddiqi, Advocate for Petitioners (in W.Ps. No. 497 and 1989 of 2023).

Mr. Muhammad Faisal Hafeez, Advocate for Petitioners (in W.P. No. 556 of 2023).

M/s. Ahmad Yar Khan and Hashim Aslam Butt, Advocates for Petitioners (in W.Ps. No. 557, 1999, 83392, 83410, 83433 of 2023).

Mr. S.M. Raheel, Advocate for Petitioners (in W.P. No. 577 of 2023).

M/s. Mudassar Shujauddin and Shahid Pervez Jami, Advocates for Petitioners (in W.P. No. 653, 655, 2345, 4736, 82430, 82749, 82769, 82980, 83154, 83156, 83477 83480, 2251, 83507, 83508, 83349, 83476, 83510, 83514 of 2023).

M/s. Usman Javaid Qazi, Muhammad Waseem and Javed Iqbal Qazi, Advocates for Petitioners (in W.Ps. No. 820, 3237 and 3302 of 2023).

M/s. Muhammad Zafar Iqbal Mian, Rana Muhammad Ishaq M. Rashid Tobassam and Mar Shoakat Hayat, Advocates for Petitioners (in W.Ps. No. 990 and 83166 of 2023).

M/s. Muhammad Ashraf Chaudhry and Jamil Akhtar Baig, Advocates for Petitioners (in W.P. No. 1012 of 2023).

Mr. Basharat Ali Awan, Advocate for Petitioners (in W.Ps. No. 1137 and 2040 of 2023).

Mr. Muhammad Humzah, Advocate for Petitioners (in W.P. 1195 of 2023).

M/s. Babar Murtaza Khan, Sajjad Ali Chaudhry and Mian Muzaffar Hussain, Advocates for Petitioners (in W.P. No. 1285 of 2023).

M/s. Ch. Qamar-uz-Zaman, M. Waqar Akram, Muhammad Khalid, Rai Inam Qadir, Arif Munir, Zeba Munir, Ali Raza Cheema and Muhammad Bilal, Advocates for Petitioners (in W.Ps. No. 1404, 1409, 83624, 7096 and 1404 of 2023).

Mr. Allah Nawaz Nasir, Advocate for Petitioners (in W.P. No. 1851 of 2023).

Mr. Waqar Hasan, Advocate for Petitioners (in W.Ps. No. 2067 and 2251 of 2023).

M/s. Muhammad Naeem and Muhammad Aslam Sheikh, Advocates for Petitioners (in W.Ps. No. 90, 2362, 5545, 5576 of 2023).

Ch. Anwaar-ul-Haq Arif, and Shahnawaz, Advocates for Petitioners (in W.Ps. No. 76770 and 2399 of 2023).

Rai Amer Ijaz Kharal, Advocate for Petitioners (in W.Ps. No. 3434 and 2403 of 2023).

M/s. Amir Fahim Chaudhry, Abbas Ali Awan, Zaheer Ahmad and Abrar Hussain, Advocates for Petitioners (in W.Ps. No. 2324, 14472, 15259 of 2023).

M/s. Muhammad Ajmal Khan, Khawaja Riaz Hussain, Babar Zaman, Omer Wahab, Rana Usman Habib Khan, Muhammad Ahsan Nawaz and Noureen Fouzia, Advocates for Petitioners (in W.Ps. No. 2429, 5427, 12198, 13955, 14272, 83419, 2630 of 2023).

M/s. Muhammad Naeem Munawar and Farhan Ahmed Jan, Advocates for Petitioners (in W.P. No. 2636, 7192 and 2639 of 2023).

Syed Saif-ur-Rehman Gillani and Asif Hayat Khattak, Advocates for Petitioners (in W.P. No. 2715 of 2023).

M/s. Muhammad Mohsin Virk, Arfan Ahmad Chattha, Syed Tanzeel Haider, Hamza Habib Shaikh, Ch. Shoaib Ilyas, Tahir Shabbir, Waleed Akbar Chattha and Hassan Irtaza Tarar, Advocates for Petitioners (in W.Ps. No. 2726, 81772, 5832 of 2023).

Syed Najaf Hussain Shah, Advocate for Petitioners (in W.Ps. No. 3261, 8371, 7868, 7869, 7872, 7874, 8371 of 2023).

M/s. Ahsan Ahmed Munir, Ghias Ahmad and Ramsha Shahid, Advocates for Petitioners (in W.P. No. 3431 of 2023).

Rana Muhammad Afzal and Matie-ur-Rehman, Advocates for Petitioners (in W.Ps. No. 3442, 83358, 83396, 83422, 83316, 83298, 83223, 83356 of 2023).

M/s. Zeeshan Asif and Rizwan Anwar Baig, Advocates for Petitioners (in W.Ps. No. 3704, 3707 3746, 3750 of 2023).

M/s. Hassan Ali, Waqqas Ahmad Mir, Ahmad Hassan, Momna Taufeeq, Saad Mazhar and Hamza Hayat, Advocates for Petitioners (in W.Ps. 83141 of 2022 and 3743 of 2023).

Mr. Zahid Imran Gondal, Advocate for Petitioners (in W.P. No. 4119 of 2023).

M/s. Mahmood Ahmad, Mehmood Arif and Asmar Tariq, Advocates for Petitioners (in W.Ps. No. 4198 and 5803 of 2023).

M/s. Shafaqat Ali, Hassan Maqsood Ahmad Aujla, Waris Nishaber Ali Cheema and Muhammad Idrees Aslam Chauhan, Advocates for Petitioners (in W.Ps. No. 4615, 9493, 18117, 4839, 5297, 5299, 5347 of 2023).

Sardar Abdul Majeed Dogar, Syed Qasim Askari and Sardar M. Arslan Raza Dogar, Advocates for Petitioners (in W.Ps. No. 4659 and 8111 of 2023).

Mr. Farhan Ahmed Jan, Advocate for Petitioners (in W.P. No. 5454 of 2023).

M/s. M. Zohaib Ali Sidhu, Syed Ali Tarab, Ali Aqib Shah and Usman Latif, Advocates for Petitioners (in W.P. No. 5916 of 2023).

Mr. Zahid Ateeq Choudhary, Advocate for Petitioners (in W.P. No. 6293 of 2023).

Mr. Fahad Majeed Rathor, Advocate for Petitioners (in W.P. No. 6300 of 2023).

M/s. Javed Farooq, Usman Khalil, Shahzaib-ul-Hassan Chattha, Ali Ijaz Shah and Tauqeer Ahmad Ranjha, Advocates for Petitioners (in W.Ps. No. 6549 and 6560 of 2023).

M/s. Mahmood Ahmad, Shahid Rasool and Saad Asif, Advocates for Petitioners (in W.P. No. 6708 of 2023).

Mr. Zahid Ateeq Choudhry, Advocate for Petitioners (in W.P. No. 6925 of 2023).

M/s. Waseem Ahmad Malik, Mahmood Ahmad, Mehmood Arif and Asmar Tariq, Advocates for Petitioners (in W.P. No. 9221, 83548, 83549, 75893 of 2023).

Mr. Zaheer-ud-Din Babar, Advocate for Petitioners (in W.P. No. 11525 of 2023).

M/s. Muhammad Younas Khalid and Umer Farooq, Advocates for Petitioners (in W.P. No. 12485 of 2023).

Syed Zeeshan Ali and Syed Muhammad Baqir Ali, Advocates for Petitioners (in W.P. No. 12800 of 2023).

M/s. Saad Nusrullah, and Irtiza Shoukat, Advocates for Petitioners (in W.P. No. 13276 of 2023).

Mirza Mubasher Baig, Advocate for Petitioners (in W.P. No. 15958 of 2023).

M/s. Hassan Kamran Bashir, Sikandar Ali and Asim Bin Majeed, Advocates for Petitioners (in W.P. No. 13154, 16149, 59809, 78738 and 59809 of 2023).

Mr. Akmal Inayat Butt, Advocate for Petitioners (in W.P. No. 18716 of 2023).

M/s. Shehzad A. Elahi, Mussadiq Islam, Salman Zaheer Khan and Ch. Muhammad Ali, Advocates for Petitioners (in W.Ps. No. 60005 of 2022, 60425, 81376, 81380, 81384, 81390, 68129 of 2023).

Malik Faiz Rasool Rajwana, ASC, Barrister Malik Kashif Rajwana, ASC and Malik Asif Rajwana, Advocate for Petitioners (in W.P. No. 64130 of 2022).

Sheikh Anwar-ul-Haq, Sheikh Naveed Anwaar and Sajjid Ali Baloch, Advocates for Petitioners (in W.P. No. 65256 of 2022).

Mr. Muhammad Asif, Advocate for Petitioners (in W.P. No. 65917 of 2022).

M/s. Naved A. Andrabi, ASC and Khurram Saleem, Advocate for Petitioners (in W.Ps. No. 66055, 82705, 67781 of 2022).

M/s. Ahsan Ahmed Munir, Ghiaz Ahmed and Ramsha Shahid, Advocates for Petitioners (in W.Ps. No. 66883 and 66898 of 2022).

Dr. Ilyas Zafar, ASC with Syed Nasir Ali Gillani, Advocates (in W.P. No. 67937 of 2022).

M/s. Hamad-ul-Hassan Hanjra, Muhammad Nasir Khan and Muhammad Awais, Advocates for Petitioners (in W.P. No. 74210 of 2022).

Sh. Aqeel Ahmad, Advocate for Petitioners (in W.Ps. No. 83411, 83412, 75186 and 83424 of 2022).