PLJ 2024 Judgments

PLJ 2024 Karachi 1 (DB)

Present:Muhammad Ibqal Kalhoro and Arbab Ali Hakro, JJ.

Raja RAFIQUE AHMED--Petitioner

versus

FEDERATION OF PAKISTAN and others--Respondents

Const. P. No. D-707 of 2023, decided on 19.10.2023.

Constitution of Pakistan, 1973--

----Art. 199--Deputation--Deputation was extended--petitioner was applied for permanent absorption--No objection certificate--Seniority list--Petitioner was dropped for time scale promotion--Petitioner was repatriated to his parent department--Parent department was fill seat of petitioner--Petitioner was lien in his parent department--Right to posted--Petitioner was not absorbed in Pakistan Railways, admittedly his lien was not up for termination even with his consent and parent department had no authority to fill seat left vacant by him on his transfer to Pakistan Railways on deputation unless petitioner’s absorption was confirmed to it officially through a requisite notification--Petitioner's lien in his parent department would be deemed to have continued and never terminated leaving post vacant for filling by his parent department--The parent department, without receiving any confirmation through any document or any information about absorption of petitioner in Pakistan Railways, advertised post merely on presumption of petitioner having been absorbed and appointed another person, not realizing that his lien in department was intact and had never been terminated--Petitioner has a right to be posted in his parent department against post, which he had left on his appointment in Pakistan Railways on deputation, with all benefits, when, he after being repatriated from borrowing department--Petition disposed of. [Pp. 9 & 10] A, B, C & D

2015 SCMR 456, 2000 SCMR 1780, 2005 SCMR 716, 2005 SCMR 1212 & 2011 SCMR 442 ref.

Mr. Qurban Ali Malano, Advocate for Petitioner.

Mr. Muhammad Imran Khan, Advocate for Respondent No. 4.

Mr. Dareshani Ali Haider ‘Ada’, D.A.G for Pakistan.

Mr. Abdul Hassain, Assistant Accounts Officer, Pakistan Railways, Sukkur and Irfan Ahmed Shaikh, incharge Science Caravan, Sindh Unit, Sukkur are present.

Date of hearing: 26.9.2023.

Order

Muhammad Iqbal Kalhoro, J.--Petitioner was appointed as Assistant Accounts (BPS-14) in Pakistan Science Foundation, Islamabad in the year 2008. His post was upgraded to BPS-16 in the year 2010. After seven years, in the year 2014, his service was transferred on deputation basis to Pakistan Railways Accounts Department on a requisition letter dated 31.01.2014 for three years. He joined his new assignment on 04.06.2014 at headquarters, Lahore. After three years, his deputation was extended for two years more until 4.6.2019. Before expiry of the period, he applied for permanent absorption in Pakistan Railways. His request was accepted and necessary communique between his parent department and Pakistan Railways was set at motion.

1. His original service record and personal file along with No Objection Certificate (NOC) were duly received by Pakistan Railways from his parent department on 11.10.2019 and processed immediately. After a proper procedure, the Departmental Selection Committee (DSC) issued NOC for permanent absorption of the petitioner. As a result, when seniority list was issued, name of the petitioner was cited at Serial No. 467.

2. Subsequently, when rationalization of Pakistan Railways Accounts Department was undertaken, the petitioner, amongst other officials, was assigned to surplus pool. Then, after sometime, the petitioner was posted in Divisional Accounts Officer, Pakistan Railways vide letter dated 29.04.2022. After having completed ten years in service, the case of the petitioner for time-scale promotion along with other officials was sent to Lahore for approval vide letter dated 20.08.2022. But, when the final seniority list was issued on 27.12.2022, names of the petitioner and one Muhammad Ashraf, Senior Auditor, Sukkur Division were dropped/omitted. Against which, the petitioner filed a departmental appeal, but to no avail.

3. Hence, he filed a C.P. No. D-378 of 2023 before this Court at Sukkur Bench, in which notices were issued to Pakistan Railways. Upon which, seemingly piqued by such development, the petitioner was relieved from the service vide letters dated 17.03.2023 and 27.03.2023 with the direction to report to Pakistan Science Foundation, Islamabad, the parent department. The above said two letters, the petitioner has impugned in this petition with a plea to set aside the same and allow the petitioner to continue his duty at previous place i.e. Divisional Accounts Office Pakistan Railways, Sukkur as Senior Auditor (BPS-16).

4. The case of the petitioner to seek such relief is that after NOC in the year 2019 regarding his permanent absorption in Pakistan Railways, his parent department i.e. Pakistan Science Foundation, Islamabad, under the administrative control of Ministry of Science and Technology, Islamabad, allotted his seat/post, belonging to Sindh-Rural, to Punjab and filled it through an advertisement on regular basis. Said post/seat is no more vacant and the petitioner cannot be repatriated to the parent department as the recruited incumbent is working over there since then. Besides, he, having worked in borrowing department for a number of years, and his request for absorption acceded, may be deemed to have been absorbed in Pakistan Railways.

5. Respondent No. 3 i.e. Accounts Officer/Admn. Pakistan Railways in his comments has admitted the facts, as reiterated by the petitioner, but has taken a plea that vide letter dated 08.06.2017, a copy of which is available in the file, the petitioner after expiry of three years of deputation was repatriated to join his parent department after availing joining time, maximum up-to 08.06.2017, with a warning, that else his absence would be treated as service break. Nonetheless, when learned counsel for Pakistan Railways was quizzed, he admitted that on a verbal request of the petitioner, he was allowed to continue to serve in Pakistan Railways and that that letter dated 08.06.2017 was not enforced. And on 06.05.2019, DAO, Sukkur after necessary formalities including receiving petitioner’s personal file of service from his parent department had forwarded his application for permanent absorption in Pakistan Railways. And that his case was processed and sent to the competent authority i.e. the Controller General of Accounts, Islamabad for such purpose, but without any response. Finally, under the orders of the aforesaid office, the petitioner was repatriated to report to his parent department vide letter dated 17.03.2023 and notification dated 27.03.2023. Further, the petitioner was a deputationist and not a permanent employee, his name was erroneously enlisted in the seniority list. He had no right under the law to continue in Pakistan Railways after completion of deputation period, as it is settled principle of law that a deputationist cannot overstay in the borrowing department after expiry of deputation period.

6. Comments filed by Respondents No. 1&2 viz. Pakistan Science Foundation, Islamabad and Pakistan Science and Technology Department, Islamabad depict express admission of the facts, as narrated above. But, over his joining in the department after repatriation, it has been claimed that Pakistan Science Foundation is a body corporate established under the Pakistan Science Foundation Act, 1973. The post, previously occupied by the petitioner viz. Assistant Accounts (BPS-16), has been filled through a direct recruitment and occupied by another incumbent. The department had received a letter dated 27.03.2023 regarding repatriation of the petitioner and the petitioner also reported his joining on 29.03.2023. But his joining was not accepted due to unavailability of the seat, about which, the petitioner and the Pakistan Railways were duly informed vide letter dated 31.03.2023 with a request that he may not be repatriated in view of such position. Because, meanwhile, upon completion of maximum period of deputation i.e. five years, his lien on the post was terminated and the post was filled through an open advertisement, as it was not possible for the department to retain lien of a deputationist for an unlimited period.

7. Learned counsel for the petitioner citing the background as above in his arguments has prayed for setting aside the impugned letters and direction to the Pakistan Railways to let him stay with it in the same capacity; or in alternate, the Respondents Nos. 1 & 2 to accept joining of the petitioner and issue salaries to him. To support his contentions, he has relied upon the case law as reported in 2018 SCMR 54, 2020 SCMR 251, 2004 SCMR 67, 2009 SCMR 1472, 2005 SCMR 716, 2005 SCMR 716, PLD 1990 SC 998, 2009 SCMR 194, 2011 SCMR 442, 2005 SCMR 1212, 2014 PLC (C.S.) 1077, 2023 PLC (C.S.) 711, 2020 PLC (C.S.) 905, 2018 PLC (C.S.) 1129, 2018 PLC (C.S.) 1161, 2009 PLC (C.S.) 539, and 2009 PLC (C.S.) 936.

8. Learned counsel for Pakistan Railways in his arguments has shown inability of Pakistan Railways to accept the petitioner back in the ranks against the said post, on the ground that his request for permanent absorption was never conceded and finally he was repatriated to join his parent department.

9. Learned DAG has argued that it is the parent department, which in this case has not acted legally in that without receiving a requisite notification from Pakistan Railways permanently absorbing the petitioner, the seat/post left by the petitioner was filled by it, although the petitioner had a lien over it. He further submits that it is vague and not clear as to how the seat was filled, by whom, or by which notification and by what process and by which authority. He, therefore, has requested that petition may be allowed in the terms whereby Respondents No. 1&2 may be directed to accept joining of duty of the petitioner with effect from 29.03.2023, when for the first time, he after being relieved from Pakistan Railways had reported his duty to parent department. He however has conceded that the petitioner has no constitutional right to remain continuously on deputation with Pakistan Railways.

10. We have heard learned counsel for the parties and perused material available on record including the case law cited at bar. Petitioner’s transfer from his parent department and posting on deputation for three years in Pakistan Railways in the year 2014 is an undisputed fact. Issuance of a letter dated 08.06.2017, on expiry of deputation period, by the Pakistan Railways directing the petitioner to report to his parent department is also a part of acknowledged record. Why the petitioner did not abide by it and why the Pakistan Railways let him leeway not abide by it and continue gratuitous working with it is covered under a thick cloud that neither of the counsel for the parties, despite our quarries, were able to disperse. A serious effort by the petitioner to get himself absorbed within the ranks of Pakistan Railways in the year 2019, after 5 year of deputation, seemingly bulwarked by the latter, proved futile, as the competent authority: the Controller General of Accounts, Islamabad apparently refused to concede to it. The petitioner therefore, by citing some vain official communique pursued by Pakistan Railways with his parent department for his absorption, is out of ambit to lead a convincing case, at least on this ground, for seeking declaration of his absorption in Pakistan Railways by this Court.

11. Additionally, it may be pointed out that while discussing points of deputation and absorption of service of a civil servant in other department, the Supreme Court in the case, reported as 2013 SCMR 1752, has observed that term absorption has not been defined in the law. Further, ESTACODE requires that a person who is transferred and appointed on deputation must be a government servant and such transfer should be made through the process of selection. The borrowing government has to establish the exigency in the first place and then the civil servant who is sought to be transferred on deputation must have matching qualification, expertise in the field with required experience. The deputationists, not having matching skill, qualification etc. are liable to be repatriated. Elaborating further, it has been laid down, neither a non-civil servant nor a civil servant from non-cadre post could be transferred to a cadre post in government by way of deputation as the same would affect rights of civil servants already serving in the department and create a sense of insecurity among them.

12. In the case of Ali Azhar Khan Baloch and others vs. Province of Sindh and others (2015 SCMR 456), the Supreme Court has insisted that the law does not confer permanent status on a civil servant on his appointment by transfer nor it contemplates his absorption in the transferee department as a consequence of his appointment. No discretion lies with any government to appoint a person in the civil service against a civil post in the manner other than prescribed by the relevant law. Neither any procedure nor any mechanism is provided in the law to treat appointment of a civil servant by way of transfer as absorption in the transferee department. Neither a person could be absorbed nor could a civil servant/non-civil servant/deputationst be allowed to travel horizontally outside his cadre to penetrate into a different cadre, service or post through an appointment by way of transfer. Such transfer, if any, however, has to be for a fixed term and on expiry of such term the civil servant has to join back his parent department. Further, concept of absorption of a civil servant or a government servant into another department is alien to law. These authoritative pronouncements by the Apex Court of the country are sufficient to frustrate any remaining attempt/contention of the petitioner to get relief of absorption in the Pakistan Railways, as prayed by him, from this Court in the constitutional jurisdiction.

13. The left over question to decide nonetheless would be to determine fate of the petitioner in his parent department after having been repatriated by Pakistan Railways. His regular appointment after fulfillment of all codal formalities there is undisputed. His transfer to Pakistan Railways on deputation on completion of due formalities by both the departments is but an admitted fact. In the comments, the parent department of the petitioner i.e. Pakistan Science Foundation has taken a plea that when initial deputation period of 3 years of petitioner lapsed, upon the request of Pakistan Railways, it was extended for 2 years more vide letter dated 28.08.2017. Later on, Pakistan Railways asked for NOC for permanent absorption of the petitioner along with his entire service record on 07.05.2019, which it obliged in letter and spirit. In the year 2021 it advertised the post of Assistant Accounts (BS-16) left vacant by the petitioner and filled it on a regular basis considering that the petitioner had been absorbed.

14. It may be stated here in the above backdrop that the law provides for lien for a civil servant who by way of transfer is posted on deputation in the borrowing department until the period of deputation expires. Section 2 (b) of the Civil Servants (Confirmation) Rules, 1993 defines lien as the title of a civil servant to hold substantively a post on which he has been confirmed. Regulation 31 of the Civil Service Regulations (C.S.R) explains, when an officer is said to have a lien on any appointment, it is meant that the right of such an officer to resume, on return to duty, a substantive or an acting appointment on which he has a lien is subject to the same condition of conformity, with the interest of the public service, as the tenure of the appointment is. An officer may have a lien on an appointment without having actually joined it. Elaborating the above proposition, the Supreme Court in the case of Secretary Education, Ministry of Education vs. Viqar Ul Haq (2000 SCMR 1780) has observed that lien of a permanent civil servant could not be terminated even with his consent and that the same could be terminated only when he is confirmed against some other permanent post.

15. In the case of Muhammad Israrullah vs Assistant Director, Manpower and others (2005 SCMR 716), the Supreme Court has held that services of a deputationist could not be terminated as he retains his lien in parent department for not having been confirmed in borrowing department. A civil servant can claim his lien on his original post when he has not been permanently absorbed in borrowing department. The Supreme Court in the case of Chief Secretary, Government of NWFP vs Syed Zafarmand Ali (2005 SCMR 1212) has expounded that lien of a civil servant could not be terminated even with his consent, unless he had been confirmed against some other permanent post. It is further held that even in a case of willingness shown by the civil servant to be absorbed in borrowing department, in absence of any order of appointment by transfer and settlement of terms and conditions of such appointment, lien of the civil servant in his parent department would not be terminated.

16. In the case of Engineer Hafeezullah vs. CEO (PTCL) and others (2011 SCMR 442), the Supreme Court has laid down that an employee under Fundamental Rule, 12-A, on substantive appointment to any permanent post acquires a lien on that post and ceased to hold any lien previously acquired on any other post. For a termination of lien of a permanent civil servant from his original department, three prerequisites have to be satisfied: the civil servant concerned has joined other department on regular basis; that the joining to other department was result of his selection; and that the selection was through a regular selection process. Only on satisfaction of these conditions, the civil servant will have no claim about his lien in the previous department.

17. From foregoing quotations, the following conclusions emerge:--

(i) lien means the title of a civil servant to hold substantively a post on which he has been confirmed.

(ii) there is lien for a civil servant who by way of transfer is posted on deputation in the borrowing department until the period of deputation expires.

(iii) when an officer is said to have a lien on any appointment, it is meant that the right of such an officer to resume, on return to duty, a substantive or an acting appointment on which he has a lien is subject to the same condition of conformity, with the interest of the public service, as the tenure of the appointment is.

(iv) Lien of a permanent civil servant cannot be terminated even with his consent and that the same would be terminated only when he was confirmed against some other permanent post.

(v) Services of a deputationist cannot be terminated as he has a right to retain his lien in parent department for not having been confirmed in borrowing department.

(vi) A civil servant can claim his lien on his original post when he has not been permanently absorbed in borrowing department.

(vii) Lien of a civil servant would not be terminated unless he has been confirmed against some other permanent post.

(viii) Even in a case of willingness shown by the civil servant to be absorbed in borrowing department, in absence of any order of appointment by transfer and settlement of terms and conditions of such appointment, lien of the civil servant in his parent department would continue and would not be terminated.

(ix) An employee on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post.

(x) For a termination of lien of a permanent civil servant from his original department, three prerequisites have to be satisfied: the civil servant concerned has joined other department on regular basis; the joining to other department was result of his selection; and that the selection was through a regular selection process. And only on satisfaction of these conditions, the civil servant will have no claim about his lien in the previous department.

These conclusions imply that petitioner in law had interminable lien--the title to hold substantively the post on which he was confirmed in the parent department--up until the period he was to be confirmed in Pakistan Railways. That his lien was not terminable even with his consent and that it could have only be done on his confirmation against some other permanent post in Pakistan Railways. Further, he, being deputationist, cannot be terminated from the service in his parent department either and his left over seat cannot be filled by his parent department as he has a right to retain his lien, for not having been confirmed in borrowing department i.e. Pakistan Railways. And that he has a right to claim his lien on his original post when admittedly he has not been permanently absorbed in borrowing department, despite an attempt aimed at it. Since he was not absorbed in Pakistan Railways, admittedly his lien was not up for termination even with his consent and the parent department had no authority to fill the seat left vacant by him on his transfer to Pakistan Railways on deputation unless petitioner’s absorption was confirmed to it officially through a requisite notification.

1. Next, although he had shown willingness for absorption in Pakistan Railways which also made an attempt in this regard. However, there is nothing on record that such effort had materialized and any order of appointment settling terms and conditions of his appointment was passed. Hence, his lien in his parent department would be deemed to have continued and never terminated leaving the

post vacant for filling by his parent department. For termination of his lien from his original department, the prerequisites--he had joined Pakistan Railways on regular basis; his joining was a result of selection and his selection was through a regular selection process – were never fulfilled, as there is no record to vouch for the same, nor it has been even claimed by any of the parties. The parent department, admittedly without receiving any confirmation through any document or any information about absorption of petitioner in Pakistan Railways, advertised the post merely on presumption of the petitioner having been absorbed and appointed another person, not realizing that his lien in the department was intact and had never been terminated, which act in view of above legal position propositions sanctioned by the Apex Court is illegal and void ab initio, done without a legal sanction and having no consequence whatsoever.

1. We, therefore, hold that the petitioner has a right to be posted in his parent department against the post, which he had left in the year 2014 on his appointment in Pakistan Railways on deputation, with effect from 29.03.2023 with all the benefits, when, he after being repatriated from borrowing department, had for the first time reported joining his duty in his parent department: Pakistan Science Foundation, Islamabad.

The petition is accordingly disposed of in the above terms.

(Y.A.) Petition disposed of

PLJ 2024 Karachi 10

Present:Salahuddin Panhwar, J.

ZULFIQAR AHMED--Appellant

versus

MUHAMMAD NADEEM and others--Respondents

IInd Appeal No. 193 of 2022, decided on 12.7.2023.

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

----O.VII R. 11--Rejection of suit--Suit for damages--Defamation--Appeal--Dismissed--Acquittal in a criminal case--Benefit of doubt--Appellant was faced full dressed trial--An acquittal through benefit of doubt amounting to honourable acquittal--This is not a case where on a plain reading of plaints no cause of action exists for malicious prosecution, especially owing to FIR which was lodged, Appellant faced full-dressed trial, subsequent acquittal and nature of allegations in Plaints--The plaint is not liable to be rejected in a summary manner--Without providing opportunity to Plaintiff to prove his pleadings through evidence, it will not be just and proper to reject plaint--Appeal allowed. [Pp. 12, 17 & 18] A, D & E

PLD 2002 SC 1060, 1994 SCMR 1614, 2012 CLD 6 (SC), 1995 SCMR 1345 and PLD 2001 SC 478 ref. 2022 SCMR 1433, PLD 2008 SC 650.

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

----S. 100--Scope of second appeal--The scope of 2nd appeal is narrow and it could be exercised only if decision is being contrary to law; failure to determine some material issue of law, and substantial error or defect in procedure provided by Code or law for time being in force which may possibly have emanated an error or slip-up in determination or decisiveness of case on merits. [P. 13] B

PLD 1969 SC 617.

Malicious Prosecution--

----Ingredients:

i. That plaintiff was prosecuted by defendant;

ii. That prosecution ended in favour of plaintiff;

iii. That defendant acted without reasonable and probable cause;

iv. That defendant was actuated by malice with improbable motive and not to further ends of justice; and

v. That proceedings had interfered with plaintiff’s liberty and had also affected his reputation and plaintiff had suffered damages. [Pp. 14 & 15] C

Mr. Farjad Ali Khan, Advocate for Appellant.

Nemo for Respondent No. 1.

Mr. Ali Zardari, AAG for Respondents No. 2 & 3.

Date of hearing: 17.5.2023.

Judgment

Through captioned IInd-Appeal, the appellant has challenged judgment dated 08.09.2022, passed in Civil Appeal No. 60/2022, whereby the first appeal was dismissed and order dated 18.02.2022 passed by trial Court in Suit No. 453/2021, whereby the plaint was rejected under Order VII Rule 11 C.P.C was upheld.

1. Briefly facts relevant for disposal of the instant appeal are that the Respondent No. 1 lodged FIR bearing Crime No. 143/2016 at PS FIA, AHT Circle, Karachi for offences under Section 17(2), 22(6) of Immigration Ordinance 1979 against the appellant and others. After full-dressed trial, the appellant was acquitted of the charges vide judgment dated 29.02.2020. After earning acquittal, the appellant filed a suit for “Defamation, Damages, Compensation for malicious prosecution for amount of Rs. 140,00,000/-” against the Respondent No. 1. In the first round, the trial Court rejected the plaint of the Suit vide order dated 02.03.2021, on appeal, vide judgment dated 28.10.2021, the matter was remanded back to the trial Court with direction to decide the queries with regard to jurisdiction and maintainability of suit as afresh in accordance with law after providing opportunity of hearing to the counsel for both the parties. On remand, the plaint was again rejected under Order VII Rule 11 C.P.C and on appeal the said order was upheld, hence this second appeal.

2. Notices were issued to the Respondent No. 1, but he chose to remain absent, therefore after completing all the modes of the service including publication, against the Respondent No. 1, he was proceeded in Ex-parte.

3. Learned counsel for the appellant argued that the impugned judgment/order are passed without taking into consideration the material; that no opportunity was provided to the appellant to adduce the evidence in support of his claim; that no application under Order VII Rule 11 CPC was moved. However, the trial Court by exercising suo moto powers rejected the plaint under Order VII Rule 11 CPC, without any cogent reasons; that false implication of the appellant is apparent from the judgment passed by the learned Special Judge (Central-I), Karachi in Case No. 26/2017; that even in evidence the Respondent No. 1 has taken contradictory version, hence the benefit of doubt was extended in favour of the appellant, who was acquitted by the trial Court; that due to false implication of the appellant, he suffered immense damages mentally as well as he had to face rigors of trial; that the learned appellate Court has also misconstrued that the appellant was not acquitted honourably which finding is alien to the Criminal Procedure Code, 1898 as honourable acquittal is not provided in Code; He maintained that it is held by the apex Court that an acquittal through benefit of doubt amounting to honourable acquittal. In support of his submissions, reliance is placed upon the cases reported as Mumtaz Ali Shah vs. Chairman PTCL, H.Q Islamabad and 6 others (PLD 2002 S.C 1060), Tariq Pervez vs. The State (1995 SCMR 1345), Muhammad Nawaz and others vs. The State (1994 SCMR 1614), Muhammad Yousaf vs. Abdul Qayyum (PLD 2016 SC 478) and 11 (2012 CLD 6 [Supreme Court]).

4. Heard and perused the record.

5. Before going into the merit of the case in hand, I would like to examine the scope of the 2nd Appeal in the matter of conflicting findings of the Courts below.

6. The scope of the 2nd appeal is narrow and it could be exercised only if the decision is being contrary to law; failure to determine some material issue of law, and substantial error or defect in the procedure provided by the Code or law for the time being in force which may possibly have emanated an error or slip-up in the determination or decisiveness of the case on merits, in Gulzar Ahmad[1] the Apex Court has held that:

“7. Compliant with Section 100, C.P.C., the second appeal only lies in the High Court on the grounds that the decision is being contrary to law; failure to determine some material issue of law, and substantial error or defect in the procedure provided by the Code or law for the time being in force which may possibly have emanated an error or slip-up in the determination or decisiveness of the case on merits. Meaning thereby, it does not lie to question the findings on facts. In the case of Madan Gopal v. Maran Bepari (PLD 1969 SC 617), this Court held that if the finding of fact reached by the first appellate Court is at variance with that of trial Court, such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavored in the contrary finding. It was further held that interference would be justified if the decision of the lower Courts is found to be contrary to law or some usage having the force of law has failed to determine some material issue of law. Whereas in another case reported as Amjad Ikram v. Mst. Asiya Kausar (2015 SCMR 1), the Court held that in case of inconsistency between the trial Court and the appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary as has been held by this Court in the judgments reported, as Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others (2013 SCMR 1300).”

[Emphasis supplied]

1. The above legal position, prima facie, makes it clear and obvious that to succeed in second appeal, the appellant must establish that the finding of fact arrived at by the first appellate Court is not found to be substantiated by evidence on the record and is result of its failure in determining the material issue or that conclusions, so drawn, are contrary to settled principles of law.

2. It is pertinent to mention here, that every case, which ends in acquittal, would entitle the guiltless accused to sue for damages, as in that case, the damage caused would be beyond repair and the criminal justice system would come to a halt. As by doing so, the aggrieved parson would suffer at the hands of the incompetent investigation and the people would lose the courage to register their claims and the same would in turn lead to a chaos. The burden is and would be on the person, claiming damages that whether such prosecution was based on malice or not. Malicious prosecution means to obtain a collateral advantage. The act of a defendant is to be seen, whether it was due to ill will or any indirect or improper motive, see Subedar (Retd.) Fazale Rahim[2] case wherein held that:

“Mere fact that prosecution instituted by the defendant against the plaintiff ultimately failed, cannot expose the former to the charge of malicious prosecution unless it is proved by the plaintiff that the prosecution was instituted without any reasonable or probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect.”

1. It is pertinent to mention that the proceedings initiated under this law requires that the original proceedings must have been malicious and without any reasonable and probable cause. Every person in the society has a right to seek protection of his rights, but while doing so, such person should not infringe the corresponding rights of others by instituting improper legal proceedings in order to harass them by unjustifiable litigations. For a claimant to succeed in an action for malicious prosecution, must plead and prove the following ingredients:--

i. That plaintiff was prosecuted by the defendant;

ii. That the prosecution ended in favour of the plaintiff;

iii. That the defendant acted without reasonable and probable cause;

iv. That the defendant was actuated by malice with improbable motive and not to further the ends of justice; and

v. That the proceedings had interfered with the plaintiff’s liberty and had also affected his reputation and the plaintiff had suffered damages.

1. In another case Niaz v. Abdul Sattar[3] it has discussed ‘reasonable and probable cause’ and further in respect of filing and lodging of false FIRs. The relevant observations are that:

“8. The maxim “The reasonable and probable cause” means that it is an honest belief in the guilt of the accused based upon full conviction, based on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true would reasonably lead any ordinary prudent man to the conclusion that the person charged was probably guilty of crime imputed. See (1881) 8 QBD 167 Hicks v. Faulkner. It is also a settled principle of law that if reasonable and probable cause is established, then question of malice becomes irrelevant as observed by Denning L.J. in Tempest v. Snowden (1952) 1 K.B. 130.

“10. We have also re-examined the evidence in the interest of justice and fair play. We are of the view that both the Courts below were justified to award nominal damages to the petitioners. It is a high time to put the nation on a right path to promote the law of tort. According to us in case citizens and the Courts are conscious to save the nation from the agony of telling lies or involving innocent persons in criminal cases, then the only solution to stop this frivolous litigation for the purpose of taking revenge from the other side is to file suits for damages as and when the competent forum has declared the accused persons as innocent acquitted/discharged by the competent Court so that prosecution must lodge genuine cases.”

1. Reverting back to the case in hand it appears that Respondent No. 1 lodged FIR bearing Crime No. 143/2016 at PS FIA, AHT Circle, Karachi for offences under Section 17(2), 22(6) of Immigration Ordinance 1979. According to the appellant due to such criminal case, he lost his reputation in the eyes of general public as well as friends and he was detained in jail also for a sufficient period till he was bailed out by the Court. It is further stated that after full-dressed trial, he was acquitted. However, the learned Appellate Court observed that as the appellant was not acquitted honourably by the trial Court, therefore, the case of the appellant did not fall within the ambit of malicious prosecution, such observation of learned Appellate Court is not tenable for the reason that the word “Honourable acquittal” is alien to the Criminal Procedure Code, 1898 and such word is nowhere provided in the Code. Acquittal is an acquittal simpliciter and must entail upon all consequences of pure acquittal. Clean acquittal and acquittal through benefit of doubt amounting to honourable acquittal. Rightly reliance has been placed upon the case of Mumtaz Ali Shah (supra). However, the Apex Court has held in the case of Abdul Majeed Khan[4] that when claimant is subjected to criminal prosecution and as a consequence of which he loses or risks of losing his liberty and/or his reputation, a remedy in the tort of malicious prosecution will lie. Relevant portion of the judgment of the apex Court passed which reads as:

“20. Where the claimant has been subjected to a criminal prosecution, as a consequence of which he loses or risks of losing his liberty and /or his reputation, a remedy in the tort of malicious prosecution will lie. The institution of a civil action should exceptionally, results in liability under tort, when the claimant loses the suit, the defendant’s reputation is restored and he recovers his cost spent on defending the action ……..”

Underlining is provided for emphasis

1. In the Case of Dr. Muhammad Islam[5] it was held by the Apex Court that:

“Even in the cases where benefit of doubt has been given to the accused, it cannot be said that the charge has been established by the prosecution. The accused are to be treated as innocent unless it is proved on the basis of best possible evidence that they are connected with the Commission of the crime and as such, deserve to be convicted to meet the ends of justice. The doubt itself shall destroy the very basis of the prosecution case. In this view of the matter, the accused shall be deemed to have honourably been acquitted even where the benefit of doubt has been extended to them”.

1. It is observed that at times, while lodging of the criminal cases, widen net is cast to implicate an accused including their other family members to ensure that none of them left free to pursue their case in Court. After trial in many cases the accused who are nominated are acquitted. However, in number of the cases the complainant of the case walks away freely without facing the consequences of a false accusation. The societal propensity towards false accusations in FIRs can potentially be curbed through civil suits for malicious prosecution. In the case reported as Muhammad Yousaf[6] it has been observed by Supreme Court as under:

“11. We cannot help taking notice of the fact that in numerous criminal cases which are initiated through filing of FIRs a wide net is cast to implicate accused persons and their family members particularly able-bodied males. This ordinarily is done to ensure that such able-bodied males are arrested and there is none left free to pursue their case in Court. After trial in many cases the accused who are nominated are acquitted. The accuser/complainant in most cases walks away without facing the consequences of a false accusation. Section 182, P.P.C. quite often is not used even if there is reasonable ground for initiating action under the said provision for prosecuting a person who has filed a false FIR. The societal propensity towards false accusation in FIRs can potentially be curbed through civil suits for malicious prosecution.”

[Emphasis Supplied]

1. In order to find an action for damages for malicious prosecution based upon criminal proceedings, the test would not be whether the criminal proceedings instituted on false and frivolous allegations had reached the Court rather would be that such proceedings had reached a stage at which damage to the plaintiff resulted. In the case of Muhammad Yousaf id, it has been observed that “a tort which provides redress to those who have been prosecuted without reasonable cause and with malice”.

2. This Court has perused the averment of plaint, the impugned orders, as also the judgment of acquittal and is clearly of the opinion that at this stage it would not be possible to say that the plaint does not have any proof of the four elements required in a suit for malicious prosecution. The basic contentions of the Appellant/Plaintiff are clearly contained in the plaint. The question of proof would arise only after issues are framed and the opportunity to lead evidence is given to the parties. The plaint is to contain the facts, which it clearly contains. The manner in which the same would be proved is up to the Appellant/Plaintiff. This is not a case where on a plain reading of the plaints no cause of action exists for malicious prosecution, especially owing to the FIR which was lodged, the Appellant/Plaintiff faced full-dressed trial, the subsequent acquittal and the nature of allegations in the Plaints. Thus, the plaint is not liable to be rejected in a summary manner under Order VII Rule 11 C.P.C. As per provisions of Order VI Rule 2, C.P.C., every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved …….. In view of the provisions of Order VI Rule 2, C.P.C., the pleading is not a substitute of the evidence. In such circumstances, without providing opportunity to the Plaintiff to prove his pleadings through evidence, it will not be just and proper to reject the plaint. In the case of Saleem Malik,[7] it has been held by the Supreme Court of Pakistan that:

“Subject to the certain exception to the general principle, the plaint in the suit cannot be rejected on the basis of defence plea or material supplied by the opposite party with the written statement. This is settled law that in case of controversial questions of fact or law, the provision of Order VII, Rule 11, C.P.C. cannot be invoked rather the proper course for the Court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with law. The rejection of plaint on technical grounds would amount to deprive a person from his legitimate right of availing the legal remedy for undoing the wrong done in respect of his legitimate right, therefore, the Court may in exceptional cases, consider the legal objection in the light of averment of the written statement but the pleading as a whole cannot be taken into consideration for rejection of plaint under Order VII, Rule 11, C.P.C.”

[Emphasis supplied]

1. In the Case of Jewan[8] it has been observed by the apex Court that Courts may not consider the defence brought by the opponent in the following words:

“We are, therefore, of the view that in the above referred cases though the observation was made by the Court that Order VII, Rule 11, C.P.C. is not exhaustive of all situations, but it did not lay down the law that the Court while rejecting the plaint under

Order VII, Rule 11, C.P.C. could take into consideration the plea of Defendant though disputed and denied by the Plaintiff.”

1. Under these circumstances, the instant appeal is allowed, impugned judgment passed by the Appellate Court as well as order passed by the trial Court are set-aside and the case is remanded back to the trial Court with direction to decide the suit afresh after recording evidence of the parties in accordance with law.

(Y.A.) Appeal allowed

[1]. Gulzar Ahmad and others vs. Ammad Aslam and others (2022 SCMR 1433)

[2]. Subedar (Retd.) Fazale Rahim v. Rab Nawaz (1999 SCMR 700).

[3]. Niaz and others v. Abdul Sattar and others (PLD 2006 Supreme Court 432).

[4]. Abdul Majeed Khan vs. Tawseen Abdul Haleem and others (2012 CLD 06).

[5]. Dr. Muhammad Islam v. Government of N.-W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others (1998 SCMR 1993).

[6]. Muhammad Yousaf v. Abdul Qayyum (PLD 2016 S.C 478).

[7]. Saleem Malik v. Pakistan Cricket Board (PCB) and 2 others (PLD 2008 Supreme Court 650).

[8]. Jewan & 7 Others vs. Federation Of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCMR 826).

PLJ 2024 Karachi 19

Present: Salahuddin Panhwar, J.

MUHAMMAD SAMI @ SHABRATI--Petitioner

versus

MODEL CIVIL APPELLATE COURT (MCAC)/DISTRICT JUDGE MALIR, KARACHI and others--Respondents

C.P. No. S-443 of 2022, decided on 30.11.2022.

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

----Ss. 13 & 15--Ejectment application--Allowed--Appeal--Dismissed--Writ petition--Allowed--Matter was remanded--Allowed after post remand proceedings--Default in payment of rent--Personal bona fideneed--Concurrent findings--Unshaken evidence of respondents--Plea of pagri was not raised before rent controller--Challenge to-- no plea of pagri was taken by petitioner before Rent Controller or Appellate Court--Such ground was only taken after remand of case--If it is presumed that pagri amount was paid by petitioner in respect of premises in question, even then it would not debar respondent s to seek eviction of petitioner on ground of personal bona fide need--During cross-examination, petitioner has admitted that that he had not paid rent--Respondents No. 13 & 14 were appeared in witness box, but their evidence remained unshaken and could not be shattered during cross-examination--If statement of landlord comes on oath if consistent with application for ejectment and not shaken in cross-examination, it is sufficient to prove that requirement of landlord is bonafide--Petition dismissed.

[Pp. 28 & 29] B, C, D & E

1987 SCMR 307 & 1996 MLD 1505 ref.

Constitution of Pakistan, 1973--

----Art. 199--Writ of certiorari--Concurrent finding--The finality in rent hierarchy is attached to appellate Court and when there are concurrent findings of both rent authorities scope becomes rather tightened. [P. 21] A

Choudhry Muhammad Iqbal, Advocate for Petitioner.

M/s. Abdul Ghaffar Kalwar & Irshad Ahmed Shaikh, Advocates for Respondents Nos. 3-16.

Date of hearing: 18.11.2022.

Judgment

Through the instant petition, the petitioner has impugned judgment dated 21.11.2021 passed by learned Model Civil Appellate Court/District Judge Malir in FRA No. 62/2021 and order dated 17.07.2021 passed by learned I-Rent Controller Malir, Karachi passed in Rent Case No. 17/2013, whereby the petitioner was directed to vacate the demised shops.

1. It is second round of litigation. In the first round the Respondent No. 3 to 16 filed Rent Case against petitioner and Respondent No. 17 in respect of Shop No. 3 to 5 situated at M. Ahmed Market Quaidabad, Landhi, Karachi under Section 15 of the Sindh Rented Premises Ordinance, 1979 before the learned I-Rent Controller, Malir, Karachi. The case was proceeded and ultimately vide order dated 21.12.2016, rent case was allowed, which order was also maintained by Appellate Court, however, petitioner filed C.P. No. S-904/2017 before this Court, which was allowed vide order dated 13.03.2018 and the matter was remanded to learned Rent Controller to record evidence. After remand, the matter was contested and vide order dated 17.07.2021, learned Rent Controller allowed the rent case on the grounds of personal bona fide need and willful default in payment of rent. On appeal, the Appellate Court dismissed the Rent Appeal with direction to the petitioner to vacate the premises and handover its peaceful possession of the respondents/applicants.

2. Learned counsel for the petitioner contended that learned Rent Controller and learned Appellate Court passed the impugned judgment/order without taking into consideration the material brought before them; that actually the demised premises were obtained on Pagri/good will and thus right of the petitioner cannot be denied, but such plea was not taken into consideration; no default has been committed by the petitioner in payment of monthly rent; that plea of personal need has only been raised to get the petitioner evicted from the demised shops. Lastly, it is argued that the Rent Controller and learned Appellate Court have not applied their mind judiciously while passing the impugned judgment/order, hence he prayed for setting aside the judgment/order of the Rent Controller/Appellate Court.

3. On the other hand learned counsel for the Respondent No. 3 to 16 while supporting the impugned judgment contended that the learned Rent Controller and learned Appellate Court passed well-reasoned judgment/order, which is based on cogent findings and do not require any interference by this Court.

4. Heard and perused the record.

6. Now, before proceeding further, it needs to be reiterated that this Court, normally, does not operate as a Court of appeal in rent matters rather this jurisdiction is limited to disturb those findings which, prima facie, appearing to have resulted in some glaring illegalities resulting into miscarriage of justice. The finality in rent hierarchy is attached to appellate Court and when there are concurrent findings of both rent authorities the scope becomes rather tightened. It is pertinent to mention here that captioned petition fall within the writ of certiorari against the judgments passed by both Courts below in rent jurisdiction and it is settled principle of law that same cannot be disturbed until and unless it is proved that same is result of misreading or non-reading of evidence. The instant petition is against concurrent findings recorded by both the Courts below, thus, it would be conducive to refer paragraphs of the appellate Court, which reads as under:

“14. Applicants have all along taken plea that Maqsood and Maqbool both sons of Wali Muhammad (original owner) who are unemployed require the same shops for starting their business. Moreover, the applicant and Maqsood and Maqbool filed affidavit in evidence and appeared in witness box, and remained unshaken on point of personal requirements. Article 23 of the Constitution provides that every citizen shall have the right to acquire, hold and dispose of the property. Hence, the landlord has the absolute right to deal with his property in the manner best suitable to him. The tenant or anyone on his behalf cannot dictate the owner/landlord or decide what is best for the landlord. I relay on case of Abdul Hafeez v. Muhammad Yousuf & Others (2020 MLD 7) where the Honorable Sindh High Court has given following observations:

“Since prima facie the question of personal bona fide need is involved therefore, I find it in all fairness to refer the relevant provision of Sindh Rented Premises which is Section 15(vii) of the Ordinance which reads as:

“the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children.”

“The words “occupation” and “use”, since not been defined by the Ordinance, hence their ordinary meaning would be taken. Since the terms have deliberately been used independently therefore, prima facie former appears to be relating to a case where eviction is being sought to ‘occupy’ while the later i.e. ‘use’ appears to deal with cases where eviction is being sought for using the premises for purpose business/ earning purpose, as was being used by tenant. At this point, I would insist that the criterion for establishing a case of eviction on count of ‘requirement of premises for his own occupation’ would be much lighter from that of ‘requirement of premises for his own use’ because the landlord has the absolute right to acquire and deal with the property in the manner best suited to him and tenant has no right to disentitle the landlord of his valuable right to acquire, deal and possess his property which right is otherwise guaranteed by Article 23 of the Constitution. Reference may well be made to the case of Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613 wherein it is held as:-

“4. ... It is well-settled that the landlord has the absolute right to acquire and deal with his property in the manner best suited to him and a tenant has no right to disentitle the landlord of his valuable right to acquire, deal and possess his property which right is again guaranteed by Article 23 of the Constitution.”

I would further say that in such like cases the landlord would only require to establish that requirement is reasonable and does not appear to be mala fide one. In such eventuality the initial burden would stand discharged when landlord, having stepped into witness box, reiterated on Oath the reasonableness for such occupation. This would carry presumption of truth hence strong evidence would be required from tenant to rebut it.”

1. While discussing the same point the learned Rent Controller had referred to the evidence of both the side and also relied on case law. Hence, the finding of learned trial Court on this point does not require any interference.

2. Next point of contentions between the parties is default in payment of monthly rent. While discussing the same point the learned Rent Controller had given following observations:

“In discharge of burden to prove, opponent stood in the witness box but he out-rightly & categorically denied relationship of landlord & tenant, but in para-7 of his written statement filed on 30-11-2013, opponent had claimed that he had paid rent for the month of July-2013 and on refusal of rent for the month of August-2013, he sent the same through money Order No. 2756 dated 28-08-2013 and again on refusal to receive money order, he had deposited rent with the Rent Controller in MRC No. 7 of 2013. It is matter of record that Opponent has changed his version in second round of proceedings after remand of matter by Hon’ble High Court of Sindh and denied relationship of landlord & tenant. If somersault of the opponent is presumed true for a while, then question arise why he started depositing rent with the Rent Controller in M.R.C. No. 7 of 2013 voluntarily without any direction of the Rent Controller under Section 16(1) of the Sindh Rented Premises Ordinance, 1979. The divergent versions and conflicting statements makes testimony of the opponent as unreliable, not confidence inspiring and unconvincing. Perusal reveals that though photocopies of Money Order coupon No. 2756 is annexed with amended written statement but same have not been produced in evidence in original which fact is admitted by opponent in cross-examination, rather, in cross-examination opponent conceded that he had not paid rent to the Manzoor since July-2013, therefore, default in payment of rent is stood proved by own admission of the opponent. It would be pertinent to mention that though money order coupons were annexed with amended written statement but opponent’s application for permission to produce original coupons was dismissed and F.R.A. preferred also met the same fate, therefore, photocopies of coupon available on record cannot be considered in evidence.”

1. Again the same discussion and observations are based on record and evidence and do not call for any modification. So, the discussion and findings of the learned Rent Controller do not suffer from any illegality, irregularity or misreading of record. The present point is accordingly replied in negative.”

2. As well it would be conducive to refer relevant paragraphs of the order of the Rent Controller, which is that:

“24. In this regard, perusal reveals that applicants inter alia, sought eviction/ejectment of opponent from demised shops for personal use of Maqsood Ahmed son of late Wali Muhammad and Maqbool Ahmed son of late Wali Muhammad who are arrayed as Applicants No. 2 & 13 respectively. Consequently, it is an application by co-sharer/co-owner within the definition of Section 2(g) of the Sindh Rented Premises Ordinance, 1979, which is reproduced per verbatim as under:

[“personal use” means the use of the premises by the owner, his wife (or husband), sons or daughters”]

1. Now I will advert to the question of bona fide need in good-faith of the demised shops to accommodate Applicant No. 12 & 13, who are proved to be co-owners/co-sharers of the demised shop by way of succession & inheritance. In this regard, Section 15(2)(vi) of the Sindh Rented Premises Ordinance, 1979, reads as under:

[“The Landlord requires premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children].

1. In order to substantiate plea qua need of demised shop in good faith for applicants own use, applicants entered in witness box through their duly constituted attorney namely Manzoor Ahmed son of late Wali Muhammad (who is also one of the legal heir/co-sharer) as well as applicants Maqsood Ahmed and Maqbool Ahmed. The attorney in Para-8 of the affidavit-in-evidence deposed that demised shops are needed by applicants for use of un-employed Maqsood Ahmed (Applicant No. 12) and Maqbool Ahmed (Applicant No. 13) and in cross- examination attorney Manzoor Ahmed remained resolute that Maqbool Ahmed is working at a Shop Bearing No. 18 Salman Tower but it is not his own shop rather working at the shop of one Mansoor Ahmed and further denied that Maqsood Ahmed had a shop at House No. C-15, Street No. 3, near Meezan Bank National Highway Kazafi Town Quaidabad Karachi. The applicant Maqsood Ahmed, in his cross-examination candidly denied having/running a Shop of Generator in Salman Tower, whereas, applicant Maqbool Ahmed only affirmed that he is employed at a shop at Salman Tower. From the testimonies of the applicant, it is established that applicant Maqsood Ahmed and Maqbool Ahmed, for whose personal use the demised shops are being needed/required, are not running/having their own businesses as attributed/alleged by opponent and employment with other does not bars an applicant/owner from seeking eviction of a tenant from premises, where, applicants intends to establish their own business. The precedents set by Hon’ble Apex Courts also supports the plea of applicant, as under the established cannons of law, a landlord in eviction matter is only required to establish that his requirement was reasonable and same did not appear to be mala fide and initial burden stood discharged when landlord stepped into the witness box reiterating on oath the reasonableness for such occupation. Perusal reveals that opponent could not rebut the oral statement on oath of the applicants, therefore, applicants have established need of the demised shops for their personal use in good faith. The Hon’ble Supreme Court of Pakistan in case of M.K. Muhammad and another versus Muhammad Abu Bakar (1993 SCMR 200) has maintained the ground of personal bona fide use when evidence of landlord remained unrebutted. In this regard, I also have strengthen by view from the dictum laid down by Hon’ble High Court of Sindh in case of Abdul Hafeez versus Mohammad Yousuf and others (2020 MLD 7 Sindh )……

30. Sequel of the above, I am of the considered view that applicants have established their locus standi to seek eviction of opponent from demised shops and their bona fide personal need within the definition of Section 2(g) of the Sindh Rented Premises Ordinance, 1979 read with Section 15(2)(vii) of the Sindh Rented Premises Ordinance, 1979, as such, Issue No. 2 is determined as “In Affirmative.”

Issue No. 4.

…. 32. Heard & perused. Perusal reveals that applicant in para-8 of the application and corresponding para-8 of affidavit-in-evidence averred & deposed that applicant approached opponent for vacating the demised shops on ground of personal use of his two brothers Maqsood and Maqbool but opponent flatly refused to vacate the demised sup but deliberately & intentionally made default in payment of rent and has failed to paid the rent for the month of July & August-2013. Since, applicant entered in the witness box and reiterated the default in payment of rent from the months of July & August-2013, therefore, initial burden to prove default stood discharged and burden shifted to the opponent to prove that he had tendered the rent to the applicant but applicants refused to receive the rent with affirmative & convincing evidence. There is no dearth of case law of the Hon’ble Apex Courts relating to shifting of burden on tenant/opponent on the basis of statement on oath of the landlord/applicants. Reliance case be placed on case of Khalid versus VII Additional District Judge, Karachi and 2 others (2015 CLC 570 Sindh) Reliance in this regard is also placed on case of Mst. Sakina through Attorney versus Mst. Yasmin Taj and 2 others (2012 MLD 1081 Karachi), wherein, Hon’ble High Court of Sindh held as under:

“S. 15---Ejectment of tenant on ground of default in payment of rent---Practice and procedure---Initial burden was upon the landlord to discharge that default was committed by the tenant and all that was required of a landlord was to state on oath that rent was not received from the tenant for a given period of time whereafter the burden shifted, under law, upon the tenant, who in his turn had to prove affirmatively, that the payment of rent was made and had to dislodge the claim of default, raised by the landlord, by producing affirmative and convincing evidence.”

1. In discharge of burden to prove, opponent stood in the witness box but he out-rightly & categorically denied relationship of landlord & tenant, but in Para-7 of his written statement filed on 30-11-2013, opponent had claimed that he had paid rent for the month of July-2013 and on refusal of rent for the month of August-2013, he sent the same through money order No. 2756 dated 28-08-2013 and again on refusal to receive money order, he had deposited rent with the Rent Controller in MRC No. 7 of 2013. It is matter of record that Opponent has changed his version in second round of proceedings after remand of matter by Hon’ble High Court of Sindh and denied relationship of landlord & tenant. If somersault of the opponent is presumed true for a while, then question arise why he started depositing rent with the Rent Controller in M.R.C. No. 7 of 2013 voluntarily without any direction of the Rent Controller under Section 16(1) of the Sindh Rented Premises Ordinance, 1979. The divergent versions and conflicting statements makes testimony of the opponent as unreliable, not confidence inspiring and unconvincing. Perusal reveals that though photocopies of Money Order Coupon No. 2756 is annexed with amended written statement but same have not been produced in evidence in original which fact is admitted by opponent in cross-examination, rather, in cross-examination opponent conceded that he had not paid rent to the Manzoor since July-2013, therefore, default in payment of rent is stood proved by own admission of the opponent. It would be pertinent to mention that though money order coupons were annexed with amended written statement but opponent’s application for permission to produce original coupons was dismissed and F.RA. preferred also met the same fate, therefore, photocopies of coupon available on record cannot be considered in evidence.

2. Scanning of pleadings & evidence reveals that there is no written tenancy agreement to believe that a specific date was fixed for payment of monthly rent within the purview of Section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979, therefore, in absence of any agreement rent was required to be paid within 60 days, after the rent has become due for payment. Perusal reveals that on alleged refusal from receiving rent, opponent was required to send rent through money order or deposit the same with Rent Controller under Section 10 of the Sindh Rented Premises Ordinance, 1979 and tendering of rent through money order prior to depositing the same with Rent Controller is not a prerequisite as has been laid down by Hon’ble High Court of Sindh in case of Rajaldas Gianchand versus 1st Additional District Judge Karachi South reported as 2018 CLC N 97 Karachi. In this regard, a report is called from the Court of 2nd Rent Controller Malir where the opponent has been depositing rent in M.R.C. No. 7 of 2013, which shows that M.R. C. was filed on 25-09-2013, after 87 days of the rent for the month of July-2013 become due, therefore, payment of rent through Rent Controller after 87 days of rent due tantamounts to default in payment of rent in the light of settled proposition of law that once default is committed, it cannot be wiped out by subsequent payments as has been held by Honble High Court of Sindh in case of Nizar Noor versus Ameer Ali reported as 2020 CLC 254 Karachi …..

3. In view of the discussion, reasons, law & citation referred above I am of the considered view that applicants have proved the default in payment of rent for the month of July-2013, as such, Issue No. 4 is determined as “In Affirmative”.

Issue No. 5

1. I have perused the evidence & considered the arguments advanced by the learned Advocate for the parties. Perusal reveals that applicant alleged that opponent had sub-let the demised shops to Opponent No. 2 @ Rs. 18,000/-, which assertion & testimony of the applicant of the applicant has been denied by Opponent No. 1 in amended written statement however in previous written statement it was averred that both opponents are jointly running a business of Tiles and Sanitary in the name and style of Qadri Sanitary Tiles. Persual reveals that applicants could not establish that Atif Qadri is running his business as sub-tenant of the demised shops as Applicant’s attorney in cross-examination admitted that they have not produced any documentary evidence regarding sub-let of the demised shop to the Atif Qadri nor applicants have any record to prove that demised shops have been sub-let to Atif Qadir @ Rs. 18,000/-per months. Consequently, Issue No. 5 is determined as “In Negative”.

2. Initially, the petitioner has asserted that the demised shops were obtained on the basis of Pagri, which was allegedly paid by him to the father of the respondents/applicants, hence a right has been created. However, perusal of record reflects that in the first round of litigation no plea of pagri was taken by the petitioner before Rent Controller or Appellate Court. Such ground was only taken after remand of the case. If for the sake of arguments it is presumed that pagri amount was paid by the petitioner in respect of the premises in question, even then it would not debar the respondents to seek eviction of the petitioner on the ground of personal bona fide need. Reliance is placed upon the case of Sheikh Muhammad Yousuf vs. District Judge, Rawalpindi and 2 others (1987 SCMR 307). In the case Mohammad Sharif v. Iftikhar Hussain Khan (1996 MLD 1505) it was held that:

“… Nothing was in law which would bar ejectment under Sindh Rented Premises Ordinance 1979, for personal bona fide need of landlord in case which payment of pagri, he could file

suit for recovery of same in civil Court in accordance with law ... Mere fact that pagri had been alleged to have been paid to landlord would not debar landlord from seeking ejectment of tenant ground of personal bona fide need of his son.”

1. With regard to default in payment of rent, perusal of the record, it reflects that during cross-examination, the petitioner has admitted that that he had not paid rent to Manzoor since July 2013 and he further admitted that he has not filed any proof along with his affidavit-in-evidence any endorsement of money order which, Manzoor has refused to accept the rent. Thus, default in payment of monthly rent stood proved.

2. With regard to the ground of personal bona fide need, Maqsood and Maqbool both sons of Wali Muhammad (original owner) applicant filed their affidavits-in-evidence and stated that being unemployed the demised shops are required for starting their business. They appeared in witness box, but their evidence remained unshaken and could not be shattered during his cross-examination. More so, no any documentary evidence has been brought on record to establish that their demand is not in good faith. It is a general principle that if the statement of landlord comes on oath if consistent with application for ejectment and not shaken in cross-examination, it is sufficient to prove that requirement of landlord is bona fide.

3. For what has been discussed above, I find no illegality in the judgment/order impugned, which are accordingly maintained. Resultantly, the petition in hand is hereby dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Karachi 29

Present: Salahuddin Panhwar, J.

MUHAMMAD SALIK ATHAR--Petitioner

versus

MUHAMMAD OBAID and others--Respondents

Const. P. No. S-306 of 2023, decided on 11.4.2023.

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

----Ss. 13 & 15--Ejectment petition--Allowed--Appeal--Dismissed-- Earlier suit for specific performance was dismissed--Default in payment of rent--Bona fide personal need--Challenge to--Mere bald denial of relationship by petitioner without any cogent evidence could not be given any weight--Ground of personal bonfide need, evidence of Respondent No. 1 remained unshaken and could not be shattered during his cross-examination--No any documentary evidence has been brought on record to establish that demand of Respondent No. 1 is not in good faith--With regard to default, findings of both Courts below are cogent and well-reasoned--It is well settled that default of even a day is sufficient to entitle applicant for ejectment of tenant from rented premises--Petition dismissed. [Pp. 39] C, D, E & F

Right to sue--

----A sale agreement is not a title document but at most grants a right to sue for such title as well rights arising out of such agreement--Such right never comes to an end even if order of ejectment is recorded in Rent jurisdiction nor such order could legally cause any prejudice to legal entitlement of purchaser, if he succeeds in such lis. [P. 37] A

PLD 2009 SC 546 ref.

Good will--

----Goodwill amount was paid in respect of demised shops, even then it would not debar respondent to seek eviction of petitioner on ground of his personal bona fide need. [P. 38] B

1987 SCMR 307 and 1996 MLD 1505 ref.

Qazi Hifz-ur-Rehman, Advocate for Petitioner.

Nemo for Respondents.

Date of hearing: 11.4.2023.

Judgment

This petition assails order dated 27.02.2023 passed by learned District Judge Karachi Central in FRA No. 11 of 2022 and order dated 14.12.2021 passed by learned XII-Rent Controller Karachi Central passed in Rent Case No. 481/2019, whereby, it was inter-alia directed to the petitioner to vacate the demised premises and handover its peaceful possession to the Respondent No. 1.

1. Concise relevant facts are that Respondent No. 1/landlord being owner of Shops No. 6 and 7 situated on Plot No. B-115, Block-H, North Nazimabad, Karachi, filed an application before the learned Rent Controller against the petitioner and one Shamim on the ground of default and, personal bona fide need, which was allowed vide order dated 14.12.2021, hence the same was assailed in FRAs before learned District Judge, Karachi Central, but both the FRAs were dismissed vide impugned order dated 27.02.2023, hence this petition.

2. Learned counsel for the petitioner contended that learned Rent Controller and learned Appellate Court passed the impugned orders without taking into consideration the material brought before them; that there exists no relationship of tenant/landlord between the parties; that the agreement of sale and payment receipts prove the entitlement of petitioner which could not be discarded without reference of tangible material; that the tenancy agreements were dummy in nature; that the Rent Controller and learned Appellate Court have not applied their mind judiciously while passing the impugned orders. It is lastly prayed that impugned orders Rent Controller/ Appellate Court may be set aside.

3. Heard and perused the record.

4. Now, before proceeding further, it needs to be reiterated that this Court, normally, does not operate as a Court of appeal in rent matters rather this jurisdiction is limited to disturb those findings which, prima facie, appearing to have resulted in some glaring illegalities resulting into miscarriage of justice. The finality in rent hierarchy is attached to appellate Court and when there are concurrent findings of both rent authorities the scope becomes rather tightened. It is pertinent to mention here that captioned petition fall within the writ of certiorari against the judgments passed by both Courts below in rent jurisdiction and it is settled principle of law that same cannot be disturbed until and unless it is proved that same is result of misreading or non-reading of evidence. The instant petition is against concurrent findings recorded by both the Courts below, thus, it would be conducive to refer paragraphs of the appellate Court, which reads as under:

“Point No. 1.

As soon as appellant/tenant was served with a notice of rent application, he started pleading that he was not tenant of Respondent No. 1 but claimed to have purchased the premises in question for a huge amount of sale consideration which he claimed to have paid to the Respondent No. 1 on different timings. Learned Rent Controller while discussing the above point of relationship between the parties as landlord and tenant focused on the suit filed by the Respondent No. 1 for Specific Performance of Contract in respect of the same shops, which suit/plaint was rejected U/O VII Rule 11, CPC by the then learned Senior Civil Judge of the same Court. Learned Rent Controller quoted certain answers of the respondent given during course of his evidence that his suit for Specific Performance of Contract met with the fate of rejection of his plaint and that no appeal/revision was filed against such order. Thus order of rejection of the plaint attained the finality.

Learned Rent Controller also discussed certain other aspects of the issue in hand dealing with relationship of the parties. The appellant filed written statement in which annexed an agreement of sale through which he claimed to have purchased the shops in question at Ex.A/6 and annexed a receipt of Rs. 1,00,000/- vide bank cheque of M.C.B. North Nazimabad, Karachi in which it is mentioned that such payment was being made as part payment towards the total goodwill sale amount in respect of Shop No. 6, etc. The agreement of sale upon which the entire structure of the appellant was built, was produced as Ex. A/7 and Paragraph 4 of sale agreement paints a different picture whereby following condition was mentioned:-

(4). That the Vendors and Vendee shall execute Tenancy agreement of Rs. 500/-per month at the time of final payment, also the shall charge 5% of the total goodwill amount being change of receipt”

The above clause clearly suggests that whatever the amount was paid, the same was the goodwill amount.

The goodwill or pugree though remained in practice at some areas of Karachi but it has not been recognized by Sindh Rented Premises Ordinance, 1979, therefore, status of pugree is not more than a tenancy agreement. The receipt, sale agreement and other documents so relied by the appellant duly produced during course of his evidence clearly mentioned the word of goodwill/pugree, which did not make transaction as a sale agreement. Learned Rent Controller has quoted portion of the order of his predecessor, who rejected the plaint, which order, as stated above, has attained the finality, therefore, the question of relationship of the parties was rightly decided by the learned Rent Controller in favour of Respondent No. 1.

It is settled law that where the relationship of landlord and tenant has been denied and the person claiming such claim, failed to establish his claim, there is no need to prove the default. However, in this matter, learned Rent Controller at Pages No. 12 to 15 elaborated the quantum of rent duly paid by the appellant to the Respondent No. 1 and perusal of such observation which was based upon proper appreciation of evidence and the documents so produced by the parties, reflects that the appellant was persistent defaulter, who did not pay rent regularly but had been paying rent in lump sum which otherwise was enough to bring him within the definition of defaulter. The findings of learned Rent Controller are based upon proper appreciation of evidence and law, regarding the default.

The Respondent No. 1 had also claimed the shop in question for his personal bonafide need and in his rent application so also affidavit-in-evidence he mentioned that the same was required for the use of his family members. Such claim was made in Para-8 of his application and the appellant denied contents of Para-8 in Para-6 of his written statement in which, he has not specifically denied the requirement of Respondent No. 1 for personal bonafide need but kept pleading that shops in question were purchased by him from the Respondent No. 1 and his brother Shahzad Arif.

The Respondent No. 1 in his affidavit-in-evidence again reiterated requirement of the shops in question for his personal bonafide need in Para-9. However, it was not confronted nor he was put any question during his lengthy cross-examination conducted by learned counsel for the appellant that the property was not required by the Respondent No. 1 for his personal bonafide need for the use of his family members. Such position, brings concept of admitted position on the part of opponent/appellant as it is settled law that if any person claiming property for his personal need and remained consistent with such plea during course of his evidence he succeeds to establish such plea as the case in hand. Since he was not rebutted/confronted such claim, same deemed to have been admitted. Learned Rent Controller rightly observed the above situation and answered the point of personal need in favour of Respondent No. 1.

It was also the case of Respondent No. 1/ applicant/ landlord that the appellant had sublet his property to one Shamim Akhtar and said Shamim Akhtar has also challenged the findings of learned Rent Controller and filed F.R.A No. 15/2022. When he was asked as to how he could file the appeal when there was no finding against him for subletting the property, Mr. Mubarak Ali, learned counsel contended that since the order of learned Rent Controller was to vacate the premises by the appellant Muhammad Salik Athar who had rented out the property to him, under the terms of his agreement with Respondent No. 1, he is to be effected by the eviction order, therefore he filed separate appeal. Here is very interesting situation with said Shamim Akhtar he claimed that he was put into possession by Muhammad Salik Athar and he had been paying the rent to him regularly for which said Muhammad Salik Athar had consent of landlord/seller of the property Muhammad Ubaid, therefore he was rightly in possession of the shops in question. But quite contrary, appellant Salik Athar levelled allegations against said Shamim Akhtar that he was running business of property with Respondent No. 1, who was given shops to look-after and he had also sublet his Shop No. 7 to one Tariq from whom he got the premises vacated with the help of Rangers. It is pertinent to mention here that that Rangers had no such authority to interfere in civil dispute of parties.

I am afraid that such plea of Shamim Akhtar has no weight at all as despite the fact that point of subletting went against the Respondent No. 1, yet the appellant Muhammad Salik Athar was under his duty to pay the rent of the shops in question to the Respondent No. 1 for which findings of learned Rent Controller are against him, same are based upon proper appreciation of evidence and law, therefore such findings cannot be touched.

On the basis of what has been discussed above, I am of the view that no element of misreading of evidence and pleading, non-reading of any aspect of the matter was found in the findings of learned Rent Controller which are based upon proper appreciation of law, therefore, such findings cannot be called in question in this appeal. I, therefore answer the above point in affirmative.”

1. As well it would be conducive to refer relevant paragraphs of the order of the Rent Controller, which is that:

“Furthermore, the Opponent No. 1 in his written statement/objections and evidence produced through his attorney has admitted that after execution of the Sale Agreements, Opponent No. 1 applied for license of Bar B Q restaurant and for gas meter, but the concerned departments required title documents or tenancy agreement, thereafter, dummy tenancy agreements were issued to the Opponent No. 1 and the Opponent No. 2 submitted the tenancy agreements for license of food and gas meter, on his own name (Opponent No. 1). Such shows that the opponent admitted that the tenancy agreements were executed between the applicant and the Opponent No. 1. So far the excuse taken by the Opponent No. 1 that such rent agreements were dummy rent agreements and were executed to enable the opponents to obtained license of food business and obtaining gas connection, is concerned, I do not see such excuse carries any weight, as at the time of presenting the rent agreements before the relevant food and gas Authorities, the Opponent No. 1 posed the rent agreements to be genuine. Therefore, the opponent cannot be permitted to change his stance about those rent agreements at this stage before this Court, for the reason that the opponents are estopped from doing so. Moreover, the Opponent No. 1, while cross-examining the applicant suggested, which was agreed by the applicant that Ex.A/2 and Ex.A/3 (the rent agreements produced by the applicant in support of his claim) bear signatures of Opponent No. 1, as lessee. Therefore, for the reasons discussed above, I am of the considered view that there exists relationship of landlord and tenant between the applicant and the Opponent No. 1.

Moreover, the Opponent No. 1, while cross-examining the applicant suggested, which was agreed by the applicant, that the Ex.A/10 (letter dated 15.05.2013 of Shakir Athar with photostat copy of cheque dated 15.05.2013 amounting Rs. 94,000/-along with letter and envelop sent by Opponent No. 1 to applicant ) is pertaining to advance rent, property tax and water charges for the year, 2013 and that in the Paragraph No. 8 of affidavit in evidence, the applicant wrote that the Opponent No. 1 did not pay rent since April, 2011, but according to the Ex.A/10, the plaintiff has paid rent for the year 2013. Such suggestion by the Opponent No. 1 shows that the Letter dated 15.05.2013 produced by the applicant (Ex.A/10) is admitted between the parties, according to which, the Opponent No. 1 sent a Cheque of Rs. 94,000/- as advanced rent, property tax, water charges for the months of January, 2013 to December, 2013 for demised shops and also requested the applicant for issuance of such receipt as soon as possible. Such shows that the parties are at agreement that the Opponent No. 1 paid rent to the applicant for the demised shops lastly till the month of December, 2013. Furthermore, no record/receipt has been produced by the Opponent No. 1 to show if he ever paid any rent to the applicant from the month of January, 2014 onwards. Therefore, I am of the considered view that the applicant remained successful in proving that the Opponent No. 1 defaulted in payment of monthly rent.

In support of his claim, the applicant produced his affidavit in evidence as Ex.A/1 and in its Paragraph No. 9 reiterated the same claim of personal need of the demised property for use of his family members, but the opponents even though cross-examined the applicant at length yet not a single question was raised upon the personal bona-fide need of the applicant over the demised shops, due to which such statement of applicant went un-rebutted, hence is deemed to be admitted by the opponents, as it is settled law that the portion of the witnesses’ statement not challenged during cross-examination would be deemed to have been admitted. I find myself guided in my views from the case laws reported as Muhammad Akhtar v. Mst. Manna and 3 others (2001 SCMR 1700) and Chief Engineer Irrigation Department, N.W.F.P. Peshawar and 2 others v. Mazhar Hussain and 2 others (PLD 2004 SC 682). Therefore, the instant point stands answered as affirmative.

POINT NO. 04

This point was formulated from the contents of the application; therefore, the onus of proving this point also lay upon the applicant. In this regard, the perusal of the record reveals that the applicant in the Paragraph No. 07 stated that the Opponent No. 1, without due permission of the applicant also illegally sub-let / handed over the possession of the demised property to the Opponent No. 2. But, contrarily, the applicant during his cross examination, made by the Opponent No. 2 admitted that the Paragraph No. 2 of the Tenancy Agreements authorized to sub-let the premises to anyone. Similarly, the Agreements of Tenancy produced by the applicant Muhammad Ubaid as Ex.A/02 and Ex.A/03, in their Paragraphs No. 2 state that the lessee (tenant) shall use the said premises for his commercial/business purposes only and the lessee (tenant) shall have rights to sub-let the said premises to any other person(s), in this respect owners shall have no objections for the same. Therefore, in view of the above discussed admitted position of record, the point stands answered as negative.

POINT NO. 05

In view of the above made discussion, I am of the view that the applicant has remained successful in proving his case, therefore, the instant application under Section 15 S.R.P.O., 1979 is hereby allowed. Consequently, the opponents are directed to vacate the demised Shop No. 6 and Shop No. 7, situated on Plot No. B-115, Block-H, North Nazimabad, Karachi, within a period of (30) days hereof. The Opponent No. 1 is also directed to pay an amount of Rs. 3,72,000/-as arrears, (at the rate of Rs. 3,000/-per month for each shop), from the month of November, 2016 to the month of December, 2021. The Opponent No. 1 is also directed to pay the future rent at the same rate, till the vacant physical possession of the demised shops is handed over to the applicant. However, there is no order as to costs.”

1. Initially, the petitioner denied relationship of tenant/ landlord between the parties and claimed that he is lawful purchaser/ owner of the demised shops under the Sale Agreements and huge amount of sale consideration was paid to the Respondent No. 1. At this juncture, it would suffice to say that a sale agreement is not a title document but at the most grants a right to sue for such title as well rights arising out of such agreement. Such right never comes to an end even if order of ejectment is recorded in Rent jurisdiction nor such order could legally cause any prejudice to legal entitlement of the purchaser, if he succeeds in such lis. Reference may well be made to the case of Syed Imran Ahmed v. Bilal and others (PLD 2009 SC 546) wherein it is held as:

“5. It is principle too well established by now that a sale agreement did not itself create any interest even a charge on the property in dispute that unlike the law in England, the law in Pakistan did not recognize any distinction between the legal and equitable estates, that a sale agreement did not confer any title on the person in whose favour such an agreement was executed and in fact it only granted him the right to sue for such a title and further that such an agreement did not affect the rights of any third party involved in the matter. It may be added that till such time that a person suing for ownership of a property obtains a decree for specific performance in his favour, such a person cannot be heard to deny the title of the landlord or to deprive the landlord of any benefits accruing to him or arising out of the property which is the subject-matter of the litigation. Postponing the ejectment proceedings to await the final outcome of a suit for specific performance would be causing serious prejudice to a landlord and such a practice, if approved by this Court, would only give a license to un-scrupulous tenants to defeat the interests of the landlords who may be filing suits for specific performance only to delay the inevitable and to throw spanners in the wheels of law and justice.”

1. In another case of Abdul Rasheed v. Maqbool Ahmed and others (2011 SCMR 320), it has been held as:

“5. … It is settled law that where in a case filed for eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and file a suit for specific performance of the sale agreement whereafter he would be given easy access to the premises in case he prevails ……. Consequently, the relationship in so far as the jurisdiction of the Rent Controller is concerned stood established because per settled law the question of title to the property could never be decided by the Rent Controller. In the tentative rent order the learned Rent Controller has carried out such summary exercise and decided the relationship between the parties to exist.”

9. Perusal of record reflects that attorney of the petitioner in the rent case admitted that petitioner filed a suit for specific performance against the Respondent No. 1 but the same was rejected under Order VII Rule 11, CPC by the competent Court of law. In any event, the petitioner along with his written statement annexed sale agreement, wherein it is mentioned that such payment was being made as part payment towards total goodwill sale amount in respect of said shop. The term ‘goodwill’ is not recognized by Sindh Rented Premises Ordinance, 1979, however, the superior Courts have equalized it with term “Pagri”. The plea of tenant that he had paid goodwill for premises, in no manner could succeed as a ground of defence when eviction of tenant was being sought by the landlord as held in the case reported as Nargis Bano v. Rehman Bhai (1993 CLC Karachi 266). However, at this juncture, if for the sake of arguments it is presumed that goodwill amount was paid in respect of demised shops, even then it would not debar the respondent/landlord to seek eviction of the petitioner on the ground of his personal bona fide need. Reliance is placed upon the case of Sheikh Muhammad Yousuf vs. District Judge, Rawalpindi and 2 others (1987 SCMR 307). In the case Mohammad Sharif v. Iftikhar Hussain Khan (1996 MLD 1505) it was held that:

“… Nothing was in law which would bar ejectment under Sindh Rented Premises Ordinance, 1979, for personal bona fide need of landlord in case which payment of pagri, he could file suit for recovery of same in civil Court in accordance with law ... Mere fact that pagri had been alleged to have been paid to

landlord would not debar landlord from seeking ejectment of tenant ground of personal bona fide need of his son.”

1. Therefore, under these circumstances, mere bald denial of relationship by the petitioner without any cogent evidence could not be given any weight.

2. With regard to the ground of personal bonfide need, the evidence of Respondent No. 1 remained unshaken and could not be shattered during his cross-examination and even such claim of the Respondent No. 1 was not specifically denied by the petitioner. More so, no any documentary evidence has been brought on record to establish that the demand of the Respondent No. 1 is not in good faith. It is a general principle that if the statement of landlord comes on oath if consistent with application for ejectment and not shaken in cross-examination, it is sufficient to prove that requirement of landlord is bonafide. With regard to the default, the findings of the both the Courts below are cogent and well-reasoned. It is well settled that default of even a day is sufficient to entitle the applicant for ejectment of tenant from the rented premises.

3. For what has been discussed above, petitioner has failed to make out his case to interfere in the findings recorded by both the Courts below. Resultantly, the instant petition is dismissed in limine. However, six months’ time is granted to the petitioner to vacate the demised shops, subject to deposit of rent amount, as agreed in the tenancy agreements, within one month.

(Y.A.) Petition dismissed

PLJ 2024 Karachi 39

Present:Salahuddin Panhwar, J.

FAZAL MEHMOOD--Appellant

versus

FAISAL IMRAN--Respondent

F.R.A. No. 37 of 2021, decided on 20.10.2022.

Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

----Ss. 13 & 15--Ejectment petition--Denial of relationship--Sale agreement--Suit for declaration and specific performance--Remaining amount was deposit with Nazir of Court--Bona fide purchaser--Agreement to sell was cancelled--Execution of sale agreement--Possession of suit property was handed over to petitioner--Rent Controller has failed to properly evaluate evidence of respondent--Nothing has been brought on record to show that landlord has made any application in suit reflecting that he had not extended any consent for depositing balance sale consideration--High Court is not in agreement with findings of Rent Controller that possession of petitioner over premises was as that of but it was within capacity of buyer--Findings of Rent Controller to that effect are not in accordance with law are reversed accordingly--Judgment passed in rent jurisdiction will not effect upon ipso facto and shall not cause any prejudice to merits of suit, filed by petitioner for Specific Performance of Contract, being an independent proceedings--Petition allowed. [Pp. 48 & 49] A, C & D

Sale agreement--

----The execution of “sale agreement” was always with consent of parties whereby they both from their conduct proved termination of earlier rent agreement. [P. 48] B

Mr. Muhamed Vawda, Advocate for Appellant.

Mr. Zahid Kabeer, Advocate for Respondent.

Date of hearing: 20.10.2022.

Order

This appeal assailed order dated 27th July 2021, passed by learned Additional Controller of Rent concerned in Rent Case No. 05/2019, allowing ejectment application of applicant (respondent herein).

1. Applicant/respondent had filed a rent case against opponent/ appellant with pleas that he is landlord of subject bungalow and appellant is a tenant vide tenancy agreement dated 01.07.2009 with rent of Rs. 100,000/-per month; opponent paid 1st six months’ rent amounting to Rs. 600,000/ in advance besides paying Rs. 200,000/-as fixed security deposit at the time of commencement of tenancy. It was further pleaded that opponent/appellant proved himself a difficult tenant as he never paid monthly rent as agreed; that rent was to be enhanced @ 10% after every eleven months as per Clause-2 of tenancy agreement, but was not; opponent/appellant had failed to pay advance monthly rent since January 2010 onwards inspite of several requests by applicant/respondent; that agreement to sell (part payment) dated 21.07.2009 was executed between the parties but was canceled due to limitation laws because balance payment was not made within time specified hence resultantly advance payment was forfeited; that opponent/appellant had rendered himself to be ejected on ground of default by not paying the rent to the applicant/respondent. It was specifically pleaded that possession of rented property was not handed over under sale agreement; that the property was mortared with Askari Commercial Bank and it was disclosed to opponent at the time of execution of sale agreement and due to non payment of balance sale consideration the property could not get released from bank.

2. Opponent in rent case/appellant herein filed written statement denying his relationship with applicant as a tenant, execution of any tenancy agreement, payment of rent or security deposit and pleaded that alleged tenancy agreement is fake and fabricated, bearing his forged signature. It was pleaded that applicant/ respondent had sold out the subject property to him through sale agreement dated 21.07.2009 against a total sale consideration of Rs. 30 million and at the time of sale agreement peaceful vacant possession was also handed over to him on major part payment of Rs. 20 million made through bank; that he has filed a suit for declaration and specific performance of contract bearing No. 2670/2017 before this Court and in compliance of directions as contained in order dated 12.01.2018, he has deposited remaining amount of Rs. 10 million with the Nazir of this Court; that he is lawful and bonfide purchaser by virtue of referred sale agreement; that sale agreement came to an end and cancelled staying that he was always ready to pay balance amount as per terms and conditions within time but applicant/ respondent had left the country and went abroad with malafide intention and ulterior motives. It was denied that applicant/ respondent had disclosed regarding mortgage of the property with Askari Bank limited or that due to non-payment of the balance of sale consideration, the property could not be got released from the Bank as alleged; he pleaded that clause-10 of the sale agreement is very much clear that property is not mortgaged and it is free from all encumbrances, therefore, the applicant/respondent has raised false and fabricated contention.

3. Learned counsel for appellant contended that no tenancy agreement was ever executed hence there exists no relationship of landlord and tenant between the parties, alleged agreement is fake/ fabricated, signature thereon are not of appellant; that true facts are that respondent had sold out in question property appellant through sale agreement dated 21.07.2009 against total sale consideration of Rs. 30 million, at the time of sale agreement peaceful vacant possession was handed to appellant on major part payment of Rs. 20 million; that appellant had also filed a Suit for declaration and specific performance of contract bearing Suit No. 2670/2017 before this Court whereas in compliance of directions of this Court appellant had also deposited the remaining amount of Rs. 10 million with Nazir of this Court hence appellant is a lawful and bona fide purchaser by virtue of referred sale agreement; that since appellant was always ready to make payment of remainder no question arises of sale agreement being cancelled, that the fact is that respondent had went abroad with malafide intention and ulterior motives; that clause 10 of the sale agreement clarifies that property is not mortgaged and is free from all encumbrances, therefore, respondent had raised false and fabricated contention before trial Court for which he is liable to be prosecuted under Section 193 PPC; that Additional Rent Controller had no jurisdiction to pass eviction order on the basis of false and fabricated rent agreement hence that order is liable to be set aside. He has relied upon 1991 SCMR 850 (Aleemuddin and another vs. Muhammad Aslam and others).

4. Learned counsel for respondent contended that appellant proved himself a difficult tenant and never paid monthly rent as agreed in terms and conditions of tenancy agreement. He further contended that the rent was to be enhanced @ 10% after every eleven months as per Clause-2 of tenancy agreement but the opponent has failed to pay advance monthly rent since January, 2010 to onwards inspite of several requests made by the applicant; that the agreement to sell (Part Payment) dated 21.07.2009 was executed between the parties but the factual and legal position is that the agreement to sell has been canceled as balance payment was to be made within one year from executing of sale agreement dated 21.07.2009 i.e. August, 2010 and after payment of balance amount of Rs. 100,00,000/-the respondent was bound to execute conveyance deed in favour of appellant; that it is clearly mentioned that if the appellant fails to pay balance amount before August, 2010, the advance payment shall be forfeited, hence appellant had no right to defense ejectment proceedings under sale agreement. Furthermore, learned counsel for the respondent contended that appellant entered into tenancy agreement dated 01.07.2009 for rented premises and had rendered himself to be ejected on ground of default by not paying the rent. The property in question was mortgaged with Askari Commercial Bank, which was disclosed to appellant at the time of execution of sale consideration and owing to non-payment of balance sale consideration, the property could not get released from the Bank. Whereafter the applicant arranged funds from his own resources and got released property; that the opponent has filed a Suit No. 2670/2017 in this Court which is pending adjudication, whereas it is settled principle of law tenant cannot resist ejectment proceedings on the basis of unregistered sale agreement.

5. Heard and perused the record.

6. I would take no exception to principle, so laid down in the case of Abdul Rasheed v. Maqbool Ahmed and others (2011 SCMR 320) as:

“5. We have heard both the learned Advocates Supreme Court. It is settled law that where in a case filed for eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and file a suit for specific performance of the sale agreement hereafter he would be given easy access to the premises in case he prevails. In this regard reference can be made to Shameem Akhtar v. Muhammad Rashid (PLD 1989 SC 575), Mst. Azeemun Nisar Begum v. Mst. Rabia Bibi (PLD 1991 SC 242), Muhammad Rafique v. Messrs Habib Bank Ltd. (1994 SCMR 1012) and Mst. Bor Bibi v. Abdul Qadir (1996 SCMR 877). In so far as determination of the relationship of landlord and tenant is concerned, such enquiry by the Rent Controller is of a summary nature. Undoubtedly the premises were taken by the petitioner on rent from the respondent and according to the former he later on purchased the same which was denied by the latter. Consequently, the relationship in so far as the jurisdiction of the Rent Controller is concerned stood established because per settled law the question of title to the property could never be decided by the Rent Controller. In the tentative rent order the learned Rent Controller has carried out such summary exercise and decided the relationship between the parties to exist.”

Accordingly, the factual position had been that:

i) there existed relationship of landlord; and

ii) tenant comes with plea of having purchased the premises which (plea) was denied/disputed by the landlord.

1. It is germane to mention that in existence of above proposition as affirmative there would be no legal option for a tenant but to first vacate the premises and then to file/pursue the suit for Specific Performance of Contract for enforcement thereof which includes possession.

The above principle, however, would not fit in where the sale in favour of a tenant is acknowledged by the owner (landlord) even with a tenant because the law, nowhere, restricts a tenant to lawfully purchase the property in his possession as tenant even. In other words the law does permit turning of status of a tenant into a purchaser and for such right he (purchaser) even can get enforcement of his such right from Court of law, so is evident from referred case laws. However, to avoid delay towards rights of landlord in getting possession of premises from a tenant on such plea of purchase, being easy to be raised, the above principle was so enunciated but while keeping the door wide opened upon such asserter to seek enforcement of such pleaded sale in shape of suit for Specific Performance of Contract.

1. Thus, it can safely be concluded that in a case of tenant, fitting in said two conditions, or where the sale is admitted by seller (landlord) under these peculiar admitted position landlord (seller) would not be legally entitled to invoke the jurisdiction of Rent Controller rather would require to approach Civil Court for determination of their rights and liabilities, arising out of a “contract/ agreement” because their rights and liabilities are, independently, dealt with by the Contract Act.

2. Keeping in view the above, I have perused the Rent application which portrays a different picture. For sake of clarity the relevant para (s) of Rent Application are reproduced hereunder:

“2. That the Appellant entered into an Agreement to Sell dated:21.07.2009 [hereinafter referred to as the “Agreement to Sell”] with the Respondent for the purchase of the Subject Property for a total sale consideration of Rs. 30,000,000/-[Rupees Thirty Million Only]. At the time of the execution of the Agreement to Sell, the Appellant made a payment of Rs. 10,000,000/-(Rupees Ten Million) through two Pay Orders of Rs. 5,000,000/-[Rupees Five Million] each in favour of the Respondent. Accordingly, the Respondent signed a receipt dated: 20.7.2009 which was in the form of a payment voucher of “Red Sea Logistics”. The payment of the aforementioned amount of Rs. 10,000,000- [Rupees Ten Million] is also noted and acknowledged in clause 1 of the Agreement to Sell.

1. That the following aspects are important in relation to clause 2 of the Agreement to Sell:

a. As per clause 2 of the Agreement to Sell, a further payment of Rs. 10,000,000/- [Rupees Ten Million] was to be made by the Appellant to the Respondent in August, 2009, and upon the receipt of such payment, the Respondent was required to hand over vacant, exclusive and peaceful possession of the Subject Property to the Appellant.

b. The remaining amount of Rs. 10,000,000/- [Rupees Ten Million] was to be paid by the Appellant to the Respondent after one year from August, 2009, but the amount would be payable simultaneous to the execution of necessary documents for transfer/conveyance of the Subject Property in favour of the Appellant.

c. The Appellant was required to pay Rs. 50,000/-a month for a period of one year from the date of payment of Rs. 10,000,000-[Rupees Ten Million] which was due as the second installment as per the Agreement to Sell. This amount, which totals Rs. 600,000-for the whole year, is not a part of the total sale consideration.

1. That the Appellant paid the Respondent the second installment of Rs. 10,000,00/-[Rupees Ten Million] as per clause 2 of the Agreement to Sell through three Pay Orders on 17.08.2009 of Rs. 5,000,000/-, 4,000,000/and 1,000,000/-respectively and accordingly, the Respondent issued a receipt dated 17.08.2009 to the Appellant acknowledging receipt of the aforementioned payment. Furthermore, as per clause 2 of the Agreement to Sell, the Respondent also handed over vacant, peaceful and exclusive possession of the Subject Property to the Appellant in August, 2009, and the Appellant and his family have been residing in the Subject Property and enjoying its exclusive possession since 2009 till date. It is submitted that for the sake of brevity, the Appellant has filed some of the original utility bills from August, 2009 till date but is ready and willing to submit the original utility bills for the entire period between August, 2009, till date if and when so Ordered by this Honourable Court.

2. That in compliance of clause 2 of the Agreement to Sell, the Appellant was required to pay an amount of Rs. 50,000/-per month for one year after the payment of the second installment of Rs. 10,000,000-(Rupees Ten Million). Accordingly, the Appellant paid the Respondent the aforesaid amount through four (4) quarterly payments of Rs. 150,000/ each. It is submitted that at the moment the Appellant has filed one receipt along with this Application showing a quarterly payment from September till November, 2009, but the Appellant is in the process of locating the other receipts and will submit these receipts in due course showing the total payment of Rs. 600,000/-to the Respondent.

3. That the Appellant approached the Respondent in August, 2010, and stated that he was ready and willing to pay the remaining balance sale consideration amount of Rs. 10,000,000/-(Rupees Ten Million) but the Respondent informed the Appellant that he was very busy with his work and since there was no rush as possession was with the Appellant, the sale could be completed as per the Agreement to Sell once the Respondent was less preoccupied. The Appellant had also written a letter dated:15.7.2010 to the Respondent in this regard. It is submitted that thereafter the Appellant was not able to get in touch with the Respondent and in the year, 2012,the Appellant Objector sent a Legal Notice dated: 9.03.2012 but the same was returned undelivered. It is submitted that the Appellant therefore, through Letters dated: 2.04.2012 and 4.04.2012 wrote to the Registrar, Clifton Town-1 narrating the above mentioned. The Respondent finally got in touch with the Appellant and disclosed to the Appellant that the reason why he was delaying the finalization of the transaction was because he was in the process of getting the title documents of the Subject Property from the Respondent No. 3 as he had given these documents to the bank pursuant to certain finance facilities availed by him. This fact had not been disclosed by the Respondent to the Appellant and is not mentioned in the Agreement to Sell. Upon learning of this, the Appellant was very apprehensive and anxious but the Respondent gave the Appellant verbal assurances that there was no problem and that it was only a matter of time before the original documents were released by the bank to the Respondent and the sale could be completed as per the agreement to Sell.

4. That the Appellant has paid a sum of Rs. 20,000,000-(Rupees Twenty Million) towards the total consideration of Rs. 30,000,000/- [Rupees Thirty Million] to the Respondent. As evident by the facts narrated above, the Appellant has always been ready and willing to pay the balance sum of Rs. 10,000,000/- [Rupees Ten Million] to the Respondent since August, 2010, as required under clause 2 of the Agreement to Sell and is still ready and willing to pay the balance amount of Rs. 10,000,000/- [Rupees Ten Million] subject to the Respondent fulfilling the terms of the Agreement to Sell by executing necessary documents for the conveyance of the Subject Property in favour of the Appellant.”

5. The above contents are, prima facie, showing that in instant matter the execution of sale agreement between parties was never a matter of dispute therefore, with any prejudice to binding effect of said principle regarding plea of sale by tenant in rent matters, hence suffice to say that such proposition is not applicable to present case.

6. Since it is settled principle of law that it is not the heading or caption of an agreement which exclusively determines the nature of the contract but various clauses thereof would be material in determining the real nature of the agreement. (PLD 2004 SC 860). Keeping above, touchstone of law, I have examined the findings of learned Rent Controller on this point. At this juncture, it is relevant to refer the operative part of findings of Rent Controller on this point:

“I have carefully gone through the case record which reflects that opponent neither produced/exhibited any power of attorney nor exhibited sale agreement. It is also admitted by the opponent’s attorney during Cross-Examination that as per sale agreement, the opponent was under obligation to pay rent in respect of the premises in question @ Rs. 50,000/-per month from August 2009 to August 2010 but the opponent failed to pay the rent to the applicant, which is sufficient proof that the opponent retains the property as tenant and mere execution of unregistered sale agreement does not create any title in the immovable property. The record further reflects that the opponent neither denied execution of tenancy agreement in his Affidavit-in-Evidence nor put any question in this regard to the applicant during his Cross-Examination.

Whereas, the applicant contended that in Para-1 of ejectment application and deposit the same in Para-1 of his Affidavit-in-Evidence that opponent entered into tenancy agreement dated 01.07.2009 with the applicant and failed to pay the rent since execution of the agreement and consistent during Cross-Examination as nothing in rebuttal could be brought on record against execution of tenancy agreement. Besides, the counsel for the opponent neither put any question with regard to tenancy agreement nor on issue of relationship of landlord and tenant between the parties and relied upon sale agreement and emphasized to prove that after execution of sale agreement, the tenancy agreement expired. Furthermore, the opponent also did not deny the execution of tenancy agreement in his Affidavit-in-Evidence.

It is also fact that as per Article-113 of Qanun-e-Shahadat Order, where a fact is not challenged in cross examination, it amounts to admission of part of other side. Reliance on case law (2007 SCMR 518)

Arts. 113&133, Admitted fact. Fact not cross examined ..Effect.. if defense has failed to cross-examine witness about a specific portion of his statement of examination in chief, such unchallenged statement would be deemed to have been admitted by defense.

(2008 CLD 412)

Arts, 113 &133.. Affidavit in evidence and documentary evidence produced by plaintiff mot challenged in his cross-examination by defendant. Effect.. Plaintiff’s case would stand proved and would not require further proof.

In view of above as well as case law relied upon by the applicant, I am of the firm view and hold that there exists relationship between the parties as landlord and tenant and opponent has admittedly failed to pay the rent to the applicant, which he is under obligation to pay as per tenancy agreement dated 01.07.2009. Hence, the Issue No. l is decided in affirmative and against the opponent. As far as the issue of suit for specific performance with regards to the sale agreement is concerned, the same is of civil nature to be decided by the Hon’able High Court.”

1. The learned Rent Controller has failed to properly evaluate the evidence of the respondent/applicant, who during cross examination has admitted that “It is correct to suggest that balance sale consideration has been deposited before the Nazir of Sindh High Court pursuant to sale agreement.” Thus the respondent/landlord has impliedly admitted receiving of Rs. 20 Million from the petitioner/tenant. Though, he raised plea that it was without his consent, however, he admitted that he did not initiate any complaint against his lawyer. Even nothing has been brought on record to show that the landlord has made any application in the said suit reflecting that he had not extended any consent for depositing the balance sale consideration.

2. The execution of the “sale agreement” was always with consent of the parties whereby they both from their conduct proved termination of earlier rent agreement. Not only this, but the landlord also not denied receiving of other amount as part of sale consideration therefore from his conduct and attitude affirmed execution of a valid sale agreement. Thus, I am not in agreement with findings of the learned Rent Controller that possession of the petitioner / tenant over premises was as that of “tenant” but it was within capacity of buyer. Accordingly, findings of Rent Controller to that effect are not in accordance with law hence are reversed accordingly.

3. Thus, it can safely be concluded that findings of Rent Controller below on point No. 1 are neither legal nor in accordance with settled principle of law, therefore, can’t be stamped rather needs to be corrected even while exercising constitutional jurisdiction in rent matter (s). Reference is made to the case of Mst. Mobin Fatima v. Muhammad Yamin and 2 others (PLD 2006 SC 214) wherein it is held as:

“8. The High Court, no doubt, in the exercise of its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can interfere if any wrong or illegal conclusion are drawn by the Courts below which are not based on facts found because such an act would amount to an error of law which can always be corrected by the High Court.

…… The findings of the appellate Court were cogent and consistent with the evidence available on the record. Its conclusions were in accordance with the fats found. The finality was attached to its findings which could not be interfered with merely because a different conclusion was also possible. The High Court, in the present case, in our view, exceeded its jurisdiction and acted as a Court of appeal which is not permissible under the law. Therefore, the High Court ought not to have undertaken the exercise of the reappraisal of the evidence.”

Accordingly, findings on Point No. 1 are hereby set-aside and Point No. 1 is answered in affirmation.

1. In accumulative to what has been discussed above, the instant petition is allowed and ejectment application is hereby dismissed. However, it would be significant to mention that it is settled principle of law that judgment passed in rent jurisdiction will not effect upon ipso facto and shall not cause any prejudice to the merits of the suit, filed by the petitioner for Specific Performance of Contract, being an independent proceedings.

2. These are the reasons for the short order announced on 20.10.2022.

(Y.A.) Petition allowed

PLJ 2024 Karachi 50

Present: Muhammad Faisal Kamal Alam, J.

NINA INDUSTRIES LIMITED--Appellant

versus

BHANERO TEXTILE MILLS--Respondents

Second Appeal No. 03 of 2022, heard on 24.01.2024.

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

----O.XXXVII Rr. 1, 2 & 100--Limitation Act, (IX of 1908), Ss. 3, 19 & 52—Constitution of Pakistan, 1973, Arts. 244, 260--Suit for recovery--Decreed--Concurrent findings--Supply of fabric/cloth--Limitation--Additional land was acquired--Time-barred--Credit card was suspended--Bank issued a letter for recovery of amount--Written statement--Unpaid legitimate claim of a person/ party is also an asset, that is, a property, which is protected under Article 24 of Constitution--A person or an entity cannot be deprived of property on basis of some legal technicalities, except in accordance with law--Both Courts have properly appraised evidence, while handing down Decisions--No other illegality has been successfully pointed out by Counsel for Appellant, justifying interference in impugned Decisions--Appeal dismissed. [P. 53] A & B

M/s. Waqar Ahmed and Abdullah Azzam Naqvi, Advocates for Appellant.

M/s. Danish Nayyer, Zahid Ali Sehto and Qubra Ali, Advocates for Respondent.

Dates of hearing: 10, 24.01.2024.

Judgment

This is the Second Appeal against the concurrent findings of the learned Trial and Appellate Courts, whereby Recovery Suit, filed by present Respondent, was decreed.

1. It is contended by the Appellant’s Counsel, that the present Appeal involves a legal controversy relating to period of limitation, in view of Sections 3, 19 and 52 of the Limitation Act, 1908. Contends that the Suit was based on five different Contracts (undisputed), inter alia, for supply of Fabric/Cloth by the Respondent to the Appellant, against which payment was to be made as per the terms of the Contract(s); referred to Paragraph-14 of the Impugned Judgment, and states that it has based its reasoning on the three documents, appended with the Objections, filed by the present Respondent to the Appeal, which were never exhibited, thus the Appellate Court decided the matter beyond pleadings, consequently, the impugned Judgment may be set-aside; secondly, the Document/Correspondence dated 27.11.2010 (at Page-97 of the Court File) is not an acknowledgment of any liability, but it is stated in the said Letter (on behalf of the Appellant) that the concerned person from the Accounts Department was on leave; even otherwise, the said Correspondence cannot extend the period of Limitation, in view of Section 19 of the above Law. Since issue of limitation was overlooked by both the Courts, in violation of Section 3 of the above Law, therefore, both the impugned Decisions cannot be maintained, but to be set at naught. He has relied upon the Judgment-PLD, 2016 Supreme Court-872 (Khushi Muhammad through L.Rs and others vs. Mst. Fazal Bibi and others), 2010, SCMR-1408 (Government of N.-W.F.P. and others vs. Akbar Shah and others), 2006 CLD-258 [Karachi] (Sahibzadi Shah Bano Khan vs. Messrs Citibank N.A.), PLD 2012, Karachi-182 (M.S. Port Services (Pvt.) Ltd., vs. Port Qasim Authority).

2. While oppposing the above line of arguments, the learned Counsel for the Respondent has stated that Article 52 of the Limitation Law will not apply and the above Correspondence of 27.11.2010 by the Appellant is an acknowledgment. Further contended by referring to the Written Statement of the Appellant (at page-137) in particular Paragaphs-4 and 25 thereof, wherein it is stated that payment upto 24.05.2008 has been made by the Appellant to the Respondent (Plaintiff), and that after the above Correspondence of 27.11.2010, several unsuccessful meetings were held between the Parties hereto. Conversely, it is contended that Article-115 of the Limitation Law will apply, which provides three years’ time to file a case for compensation for the breach of Contract.

3. Arguments heard and record perused.

4. Gist of the cited Case Law (by the Counsel of the Appellant) is that Law of Limitation is a substantive law, which should be strictly interpreted and complied with, thus, there is no room for the exercise of any imagined judicial discretion, no matter whatever hardship may result. Suit of the respondents was decreed, accepting the plea that additional land was acquired by the Appellant-Provincial Government, which was maintained up to the revisional stage; it is held that, the Courts failed to look into the point of limitation in terms of Section 3 of the Limitation Act; consequently, the suit was held to be time-barred, and all the earlier Decisions of the Courts were set aside. Credit Card of the Appellant (of the reported case – Shah Bano supra) was suspended in June, 1998, where after on 19.02.1999, she addressed a letter to the Respondent Bank, but no further Correspondence was addressed between the parties, nor any transaction took place, where after, after three years, Respondent Bank addressed a Notice to the Appellant on 2nd March 2002, for recovery of amount, followed by exchange of Correspondences between the parties, leading to the filing of recovery suit, which was decreed; but, set aside in Appeal; held, that the above Letter of 19.02.1999 was not an unequivocal acknowledgement. In Port Qasim Case (ibid) while interpreting Section-19 of the above Law, this Court is of the view that acknowledgement of liability in pursuance of Section-19 has to be made within the period of limitation, in order to get the extension of a fresh period of limitation; but once the period of limitation itself expired, then such an acknowledgment cannot allow a fresh limitation period to begin.

5. Undisputedly the last delivery / dispatch is of 20.04.2007 (at page-289, produced in the evidence as Exhibit-P/40). However, the matter has not ended there and the undisputed record shows, discussed hereinabove, that the Parties were negotiated in settling the dispute, though unsuccessfully. In the Written Statement (Paragraphs-4 and 25) not only factum of the Letter dated 30.10.2010 [addressed by the Respondent], for payment of outstanding amounts is accepted, but its Reply of 27.11.2010, also. If the arguments of Appellant’s Counsel is accepted that the Correspondence of 27.10.2010 is not an acknowledgement in terms of Section 19 of the Limitation Law, because it does not specify any outstanding amount, but only states that the Accounts Officer is on leave, and limitation will run from the last delivery of the consignment [supra], even then, the pleading / Written Statement of the Appellant cannot be ignored, wherein this fact has been mentioned that the Parties were engaged in negotiations, so also that up to 24. 5.2008, payment of Rs. 407,215,766/-(rupees four hundred seven million two hundred fifteen thousand seven hundred sixty-six only) paid by the Appellant to Respondent (Plaintiff) for delivery of Consignments / Fabric.

In view of the above discussion, in the present Lis, in fact the Written Statement of the Appellant is an acknowledgment, in terms of Section 19 of the Limitation Act. Time period of three years as envisaged in Article 52 [ibid] will run from the above Letter dated 30.10.2010. Suit No. 1335 of 2011 was filed on 23.11.2011, which is within time. Had the facts mentioned in the above two Paragraphs [4 and 25] of the Written Statement not existed, the period of limitation could have been calculated from the date of the last dispatch / delivery of the consignment [supra], followed by the consequence mentioned in the Case Law cited by the Appellants’ Counsel, but, to the facts of present Appeal, the rule laid down in the above Decisions do not apply.

7. Looking at the facts of present case from another angle. Unpaid legitimate claim of a person/ party is also an asset, that is, a property, which is protected under Article 24 of the Constitution of Pakistan, inter alia, because under Article 260 of the Constitution, ‘property’ includes, both, moveable and immoveable. Thus, a person or an entity cannot be deprived of his/her/its property on the basis of some legal technicalities, except in accordance with law [as envisaged in Article 24, ibid].

8. Both Courts have not erred in not applying Section 3 of the Limitation Act. Both the Courts have properly appraised the evidence, while handing down the Decisions. No other illegality has been successfully pointed out by the learned Counsel for the Appellant, justifying interference in the impugned Decisions.

1. Consequently, this Second Appeal is dismissed, with no order as to costs.

(J.K.) Appeal dismissed

PLJ 2024 Karachi 53

Present: Jawad Akbar Sarwana, J.

DUR MUHAMMAD--Appellant

versus

ZAFARULLAH and 3 others--Respondents

C.R. Appln. No. S-78 of 2023, decided on 18.1.2024.

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

----S. 42--Suit for declaration--Decreed--Appeal--Dismissed--Denial of paternity--Concurrent findings--No evidence regarding divorce to mother of respondent--Oral testimony--Documentary evidence by respondent--Appellant did not lead any documentary evidence during trial that he divorced Zulekhan in 1998--Nothing was brought on record to support his contention--When put in witness box, Appellant did not deny Zafarullah’s paternity--Appellant contention based on oral testimony, given available evidence and presumption of law, did not carry weight and was correctly rejected by trial and Appellate Courts--There was nothing available on record to suggest that he had moved either trial or Appellate Courts to conduct DNA testing--Respondent No. 1 relied on documentary evidence, such as his school and educational records disclosing appellant as his father--No jurisdictional error or irregularity in concurrent findings of facts recorded by Court of competent jurisdiction or on point of law had been identified in impugned judgments--Revision dismissed. [Pp. 55 & 56] A, B, C, D, E & F

PLD 2023 SC 461, PLD 2008 Lah. 302, 2003 SCMR 1183, PLD 1986 FSC 10, 2008 SCMR 1707 and PLD 2015 SC 327 ref.

Mr. Abdul Rehman Bhutto, Advocate for Applicant.

Nemo for Respondent No. 1.

Nemo for Respondent No. 2.

Nemo for Respondent No. 3.

Nemo for Respondent No. 4.

Date of hearing: 18.1.2024.

Judgment

Dur Muhammad s/o Sher Dil Malik has filed this Civil Revision Application No. 78 of 2023 aggrieved by the Judgment and Decree dated 01.04.2023 passed by the learned District Judge/MCAC Kashmore at Kandhkot in Civil Appeal No. 24/2023 and the Judgment and Decree dated 30.01.2023 passed by the learned IInd Civil Judge Kashmore in Civil Suit No. 165/2022 filed by Zafarullah (Respondent No. 1) against Dur Muhammad, NADRA, et. al.

1. The brief facts as available in the revision, which the impugned Judgments of the Appellate Court and the trial Court have discussed in detail, are that Zafarullah, aged 22 years (in 2022), filed a civil suit seeking a declaration that he was the son of Dur Muhammad, but Dur Muhammad denied the said paternity. Zafarfullah stated that Dur Muhammad was married to his mother, Zulekhan and had two children, Rehmat Khatoon and Zafarullah. Zafarullah addeded that he was born two years before Dur Muhammad divorced (gave talaq) to Zulekhan in 2002. After their separation, Zulekhan (Plaintiff’s mother) went to live with her parents until she remarried in 2007.

2. The trial Court believed the evidence of Zafarfullah (Ex. No. 16), his Mother, Zulekhan (Ex. No. 17); his Phupi/Buwa/Aunty, Bakht Bhari (Ex. No. 18); and his stepfather, Sanwala Malik (Ex. No. 19). Zafarullah also produced copies of his primary school leaving certificate and examination slip of SSC-II which showed that Dur Muhammad was his father. Accordingly, the trial Court proceeded to decree Zafarullah’s suit and held that he was the son of Dur Muhammad. The Appellate Court concurred with the Judgment and Decree of the trial Court.

3. The learned Counsel for Dur Muhammad argued that both the trial and appellate Courts have misread the evidence. He contended that Dur Muhammad had deposed during the trial that he divorced Zafarullah’s mother, Zulekhan, in 1998, and therefore, Zafarullah, admittedly born in 2000, could not be his son. He urged that the trial Court and the appellate Court should have ordered a DNA test to settle the paternity of Zafarullah.

4. I have heard the learned Counsel, reviewed the file and read the impugned Judgments of the trial and the Appellate Courts.

6. At the outset, Dur Muhammad did not lead any documentary evidence during the trial that he divorced Zulekhan in 1998. Nothing was brought on record to support his contention. Zulekhan deposed that she lived with Dur Muhammad until 2002. Dur Muhammad produced no evidence of the dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939. There is a presumption of marriage based on continued and prolonged cohabitation unless the same is dislodged by cogent evidence.[1] Indeed, when Dur Muhammad was asked in his cross-examination if Zafarullah was his son, he did not deny it but claimed he did not know. A Division Bench of this Court, in High Court Appeal No. 145 of 2018, Cantonment Board Clifton v. Nadim Ahmed Ansari, has held that:

“[i]f, in his cross-examination, a witness states, “I cannot say”, “I cannot say anything”, and “I am not aware of it”, it means that the witness is avoiding telling the truth. Or that he is not sure about his assertions. In either case, he is not a reliable witness.”

7. In view of the above, when put in the witness box, Dur Muhammad did not deny Zafarullah’s paternity. Instead, he claimed that he did not know and the Court correctly drew an adverse presumption from his response.

8. Accordingly, Dur Muhammad’s contention based on oral testimony, given the available evidence and presumption of law, did not carry weight and was correctly rejected by the trial and the Appellate Courts. The two Courts correctly relied on Article 128 of the Qanun-e-Shahadat Order, 1984, which states that where a child is born during the continuance of a valid marriage between his mother and any man and not earlier than the expiration of six lunar months from the date of the marriage or within two years after its dissolution, while the mother remains unmarried, it shall be the conclusive proof that he is the legitimate child of that man. In the present case, Zafarullah was born to Dur Muhammad and Zulekhan two years prior to their divorce. Dur Muhammad had declined to acknowledge his child after more than 18 years. It is a trite principle of Muslim law that the paternity of a child born in lawful wedlock carries the presumption of truth, and it cannot be refuted by simple denial.[2] The law inclines towards the presumption of paternity rather than illegitimacy.[3] Accordingly, a child born during wedlock has the parentage of the husband. There is no need for an express acknowledgement or an affirmation.[4] The legitimacy of a child cannot be questioned merely because of the father’s claim without any evidence to substantiate the same.[5] Dur Muhammad produced no evidence to controvert the evidence produced and relied upon by Zafarullah in support of his contention that he was the son of Dur Muhammad.

9. With regard to Dur Muhammad’s claim for DNA testing, there is nothing available on record to suggest that he had moved either the trial or Appellate Courts to conduct such DNA testing. Even otherwise, the Supreme Court of Pakistan in Muhammad Nawaz v. Additional District and Sessions Judge and others, PLD 2023 SC 461, has held that resort to DNA testing may be made depending on the facts and circumstances of the case where the evidence produced by both parties is evenly balanced that no conclusion can be drawn or where the party upon whom the onus lies has not produced any evidence. In the present case, Zafarullah relied on documentary evidence, such as his school and educational records disclosing Dur Muhammad as his father. In the circumstances brought on record, Dur Muhammad cannot question the paternity of Zafarullah by asking for a DNA test of Zafarullah, notwithstanding Dur Muhammad put up such plea after more than 18 years of his son’s birth[6] and that too before this Court exercising Revisional Jurisdiction.

10. Finally, no jurisdictional error or irregularity in the concurrent findings of facts recorded by the Court of competent jurisdiction or on the point of law has been identified in the impugned judgments that could justify this Court’s interference under Section 115, CPC. The Applicant has not shown that the two Courts have acted in the exercise of jurisdiction illegally or with material irregularity, which calls for any interference by this Court.

1. In view of the above, the revision is dismissed with no order as to costs.

(Y.A.) Revision dismissed

[1]. Abdul Majid Khan v. Anwar Begum, PLD 1989 SC 362; Loung v. Allah Ditto, 2002 CLC 1307.

[2]. Muhammad Arshat v. Sughran Bibi, PLD 2008 Lah 302.

[3]. Muhammad Nazir v. Ali Muhammad, 2003 SCMR 1183.

[4]. Abdul Rashid v. Safia Bibi, PLD 1986 FSC 10.

[5]. Sharafat Ali Ashraf v. Additional District Judge, Bahawalpur, 2008 SCMR 1707.

[6]. See Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan, PLD 2015 SC 327.

PLJ 2024 Karachi 57

Present: Muhammad Shafi Siddiqui, (sic) JJ.

ARSHAD MIRZA--Appellant

versus

DARSYUS T. SETHNA and another--Respondents

1st Appeal No. 59 and C.M.A No. 2418 of 2020, decided on 25.1.2024.

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

----O.XXXVII, R. 4--Negotiable Instrument Act, 1881 (XXVI of 1881), S. 13--Negotiable instrument--Dismissed--Application for setting aside decree—Jurisdiction--Appellant was not signatory of any negotiable instrument--An application was preferred by appellant in terms of Order 37 Rule 4 CPC to set aside decree on ground that he is not signatory of any negotiable instrument and under summary chapter case cannot be proceeded against him--He had raised other grounds therein as well--The application was dismissed--In the instant matter, a decree was passed under summary chapter against an individual who had not executed any negotiable instrument and hence could not had been subjected to summary proceedings--Trial Court had no jurisdiction under special summary chapter to proceed against individual who was not signatory to negotiable instrument--The execution of decree could not be ordered against him--Appeal allowed. [Pp. 57 & 58] A, B & C

Ms. Naila Kausar, Advocate for Appellant.

Syed Fazal-ur-Rehman, Advocate for Respondents.

Date of hearing: 25.1.2024.

Order

Heard learned counsels and perused the available record.

Based on negotiable instrument, allegedly executed by Respondent No. 2, arrayed as Defendant No. 1 in the suit, a suit was filed not only against him but also against the appellant/another individual, who has not executed any negotiable instrument, admittedly. The notices and summons were issued under summary chapter. The appellant’s counsel instead of filing leave to defend application within prescribed time, filed written statement. Consequently, the suit was decreed against both the defendants. One of those defendants is the appellant and other is arrayed as Respondent No. 2 in this appeal.

An application was then preferred by the appellant in terms of Order XXXVII Rule 4, CPC to set aside the decree on the ground that he is not signatory of any negotiable instrument and hence under summary chapter the case cannot be proceeded against him. He has raised other grounds therein as well. The application was heard and dismissed, against which instant appeal is preferred.

There is no cavil to this proposition that under special summary chapter, only special jurisdiction is conferred upon the Court, proceeding whereunder could only be seen under negotiable instruments and any deviation thereof would give rise to an exercise of jurisdiction not vested upon the Court and the order/judgment is only a nullity. In the instant matter, a decree is passed under summary chapter against an individual who has not executed any negotiable instrument and hence could not have been subjected to summary proceedings. Certainly, if the presence of Appellant/Defendant No. 2 was necessary and important in the wisdom of plaintiff/Respondent No. 1, in the sense that he was a guarantor or that amount could be recovered from him, then the case could have been proceeded against them/him under ordinary civil jurisdiction. When confronted, Mr. Fazal ur Rehman that this decree could not have been passed under summary chapter against him and/or could not be executed against the appellant, learned counsel for the respondents though initially insisted that it was a belated attempt on the part of the appellant to raise this point, but later conceded as no limitation would run against an order which is a nullity or without jurisdiction in the eyes of law.

As observed above, trial Court had no jurisdiction under special summary chapter to proceed against the individual who was not signatory to negotiable instrument, hence, in any case, the execution of a decree cannot be extended against him. However, since Mr. Fazal ur Rehman has insisted that the suit ought to be proceeded against them together jointly and severally therefore, he may be given a chance to proceed in this matter under ordinary civil jurisdiction afresh as denovo exercise. The request of the learned counsel is reasonable, hence, not only the impugned order but, as agreed by both the counsel i.e. Ms. Naila Kausar and Mr. Fazal ur Rehman, the judgment and decree are set aside and the matter shall then be considered as one under original civil jurisdiction. The de novo proceedings shall commence once the notices are served upon them and proper issues are framed in terms of pleading. If no written statement is filed by the other respondents, he may be given a chance to file written statement and soon thereafter framing of issues, evidence be recorded. The parties are at liberty to file any such application as deem fit and proper under circumstances of the case. With this understanding, the appeal is allowed.

The surety submitted by the appellant with the Nazir of this Court in pursuance of order of this Court dated 6.4.2021 be returned to the appellant.

(Y.A.) Appeal allowed

PLJ 2024 Karachi 59

Present: Salahuddin Panhwar, J.

NEW METALLURGY HI-TECH GROUP CO. LTD.--Plaintiff

versus

SIDDIQ SONS TIN PLATE LIMITED--Defendant

Suit No. 1098 of 2023 and CMA No. 9890/2023, decided on 26.01.2024.

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

----Ss. 94, 151, O.XXXIX R. 1, O.XXXIII R. 5--Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011, Ss. 6 & 7--United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards, 1958, Arts. IV & V--CRM and ARP contract--Arbitration agreements--Breach of obligations by defendant--Fraudulent encashment of Bank Guarantees--Entitlement of plaintiff to retain amount of CNY—SIAC--Arbitration proceedings--Foreign arbitration award--No payment to plaintiff under arbitration award--Filling of claims by plaintiff--Phased payment--The plaintiff sought an ad-interim injunction on plea that a foreign award was equal to a foreign decree and was to be executed by High Court, though an appeal was pending against same--During that stipulated period, plaintiff had right to protection as he apprehended that defendant may shift liabilities to another company--The seat court has no jurisdiction to examine substantive merits of arbitration--Application allowed.

[Pp. 68 &71] A & B

(2015) 3 SLR 488 (AKN) at (37), 1970 SCMR 65 ref.

Mr. Umer Akram Chaudhray, Advocate for Plaintiff.

Mr. Khalid Jawed Khan, Advocate for Defendants.

Date of hearing: 12.12.2023.

Order

Through instant suit, the plaintiff seeks the recognition and enforcement of the Final Award dated 06.10.2022. By dint of this order, I intend to dispose of application under Section 94 read with Order XXXIX Rules 1 & 2, CPC and Order XXXVIII Rule 5 and Section 151 of CPC filed by the plaintiff.

1. The relevant facts for disposal of listed application are that the Plaintiff is a registered company under the laws of the People’s Republic of China and is principally engaged in technology integration, engineering design, equipment and product manufacturing and technical services in the metallurgical industry. Whereas, the Defendant is a public limited company incorporated under the laws of Pakistan; that the Plaintiff and the Defendant executed the Contract for Cold Rolling Mill Complex for STPL Karachi (hereinafter referred to as CRM Contract and Contract for Acid Regeneration Plant, Karachi) & (hereinafter referred to as ARP Contract). It is further stated that the CRM Contract required the Defendant to pay the Plaintiff a total price of CNY 123,299,385.00 by phased payment in consideration of the Plaintiff’s provision of design, engineering, procurement and supply of equipment and essential parts as well as technical documentation and project management consultancy services necessary for a Cold Rolling Strip Plant at the Defendant’s site. The ARP Contract required the Defendant to pay the Plaintiff a total price of CNY 11,410,740.00 by phased payment in consideration of the Plaintiff’s provision of design, engineering, procurement and supply of equipment and essential parts, as well as technical documentation and project management consultancy services necessary for an Acid Regeneration Plant, which is a component of the Cold Rolling Strip Plant. Although the CRM Contract and the ARP Contract were executed separately, the Parties treated these as part of the arrangement under the CRM Contract, in order to save the additional price payable under the ARP Contract. It is further submitted that after execution of aforesaid contracts, both the parties also executed the Understanding Letter dated 20.09.2018, the Amendment-I dated 29.04.2018 and the Memo. of Meeting dated 30.10.2019, which amended and revised certain provisions of the CRM Contract and the ARP Contract with mutual agreement. Additionally, under Article 40 of the CRM Contract and under Article 39 of the ARP Contract the parties set out arbitration agreements in identical terms. It expressly required the parties to resolve any dispute arising between them in relation to or in connection with the Contracts through arbitration in Singapore, being the seat of arbitration, in accordance with the Arbitration Rules of the Singapore International Arbitration Center (“the SIAC”). Article 40 of the CRM Contract and Article 39 of the ARP Contract constituted the parties agreements to submit to arbitration all or any differences which may arise between them in relation to or in connection with the Contracts in terms of Article II of the Convention. It is further submitted that during performance of the Contracts, certain disputes had arisen between the parties; the Defendant breached its obligations under the Contracts by failing to complete civil construction works on time. In addition, during March to June 2020, the Defendant fundamentally breached and wrongfully repudiated the Contracts by fraudulent encashment of the Bank Guarantees dated 25.01.2019 and the Bank Guarantee dated 20.05.2019 provided by the Plaintiff under the Contracts. The defendant further made fraudulent attempt to cancel the letter of credit established under the CRM Contract and failing to amend and/or reopen the letter of credit under the CRM Contract, as such, due to the Defendant’s wrongful actions, breaches, and failures, the Plaintiff became entitled to retain the amount of CNY 19,517,577.00 already made by the Defendant under the CRM Contract. The Plaintiff also became entitled to receive compensation for the loss and damage suffered owing to the Defendant’s breach of the Contract, which was assessed to be CNY 35,799,296. Further it is submitted that pursuant to the arbitration agreements, the Plaintiff sought the resolution of the disputes by arbitration in Singapore under the Arbitration Rules of the Singapore International Arbitration Centre in accordance with Article 40 of the CRM Contract and Article 39 of the ARP Contract.

2. That, on 27.08.2020, the Plaintiff commenced the arbitration proceedings by filing the Notice of Arbitration under Rule 3.3 of the SIAC Rules. The Plaintiff was deemed to have commenced two arbitrations: the SIAC Arbitration No. 917 of 2020 (ARB 917/20/ DXC) and the SIAC Arbitration No.918 of 2020 (ARB 918/20/DXC). Pursuant to Rules 8.4 and 8.5 of the SIAC Rules, the SIAC Court decided to allow the consolidation of the two arbitrations into one arbitration, being the SIAC Arbitration No. 917 of 2020 (ARB 917/20/ DXC); that, pursuant to the arbitration agreements in the Contracts, the Plaintiff and the Defendant each nominated an arbitrator, and the two co-arbitrators then jointly nominated the presiding arbitrator, which were all confirmed by the Vice President of the SIAC Court under the SIAC Rules. Thus, the Arbitral Tribunal, comprising of two party-nominated arbitrators and the presiding arbitrator, was constituted on 11.11.2020. The Arbitral Tribunal comprised of renowned and eminent international arbitration practitioners from Singapore and Hong Kong. It is further submitted that from November 2020 till August 2022, the Parties, under the directions of the Arbitral Tribunal, engaged in the elaborate arbitral proceedings. During the arbitral proceedings, the Plaintiff filed its claims against the Defendant in the Statement of Claim and the Defendant raised counter claims against the Plaintiff in the Statement of Defense and Counterclaim. In addition to the filing of pleadings, the arbitral proceedings entailed, inter alia, disclosure of documents, presentation of witness statements and expert reports, oral evidential hearing conducted from 03 to 07 January 2022, and legal submissions. The Arbitral Tribunal closed the arbitral proceedings on 04.08.2022 pursuant to Rule 32.1 of the SIAC Rules. The Arbitral Tribunal, after duly considering all the submissions and evidence and following due process, rendered the Final Award dated 06.10.2022, which included detailed reasons. The Final Award has been registered in the Award No.127 of 2022 in SIAC Registry of the Awards; that, subsequently, on the application of the Parties, the Arbitral Tribunal rendered the Correction (to Final Award dated 6 October 2022) dated 25.11.2022 under Rule 33.1 of the SIAC Rules. The Correction only rectified certain computational, clerical, and typographical errors in the Final Award. The Correction has been registered in the Award No.127(a) of 2022 in SIAC Registry of the Award. The Arbitral Tribunal held as follows:

I. The Respondent wrongfully repudiated the Contracts by, inter alia, encashing the Bank Guarantees and attempting to cancel the L/C.

II. The Claimant has the right to retain the payments in the amount of CNY 19,517,577.00 already made by the Respondent under the CRM Contract.

III. The Respondent shall pay to the Claimant the sum of CNY 35,799,296 in damages as compensation for losses suffered as a result of the Respondent’s breaches of the Contracts.

IV. The Respondent shall pay to the Claimant the Claimant’s legal costs and disbursements, being SGD 40,017.74 and CNY 3,111,489-CNY 6,111,189.

V. The Respondent shall pay interest on at the rate of 0.9446% per annum compounded monthly-

a. On CNY 35,799,296 as from 28 August 2020; and

b. On SGD 40,017.74 and CNY 3,111,489-CNY 6,111,189 as from the date of this Award. until the same are fully and finally paid.

VI. The costs of the arbitration amounting to SGD 593,704.56 shall be borne by the Parties equally.

VIII. All other declarations, claims, counterclaims and requests are dismissed.”

1. On 06.10.2022, the parties received the Final Award and the Correction on 25.11.2022; the Arbitration Award and all arbitration-related documents have been duly delivered and served on the Parties in accordance with Rule 2.1 of the SIAC Rules; the Arbitration Award is the full and final settlement of all claims and requests for reliefs submitted before the Arbitral Tribunal. The Plaintiff has not been served with any notice of any proceedings initiated by the Defendant seeking to set aside or to challenge the Arbitration Award in Singapore, which is the seat of arbitration; that the Arbitration Award has conclusively determined the matters submitted before the Arbitral Tribunal and is final and binding on the Plaintiff and the Defendant; that the Arbitration Award was made in Singapore, being the seat of arbitration. Singapore is a signatory to the Convention and is a Contracting State under Section 2(b) of the Act. As the Arbitration Award is made in Singapore, i.e., a Contracting State, the Arbitration Award is a foreign arbitral award under Section 2(e) of the Act; that the Arbitration Award is recognizable and enforceable in Pakistan under Sections 6 & 7 of the Act read with Articles IV and V of the Convention and other applicable provisions of the law. That the Defendant has, so far, not made any payment of the amounts to the Plaintiff awarded under the Arbitration Award. As such the plaintiff has prayed following relief.

(a) Recognition and enforcement the Final Award dated 6 October 2022, corrected through the Correction (to Final Award dated 6 October 2022) dated 25 November 2022, in the SIAC Arbitration No 917 of 2020 (ARB917/20/ DXC), registered as the Award No 127 of 2022 and the Award No 127(a) of 2022, respectively, in SIAC Registry of the Awards, under the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitration Awards) Act, 2011, read with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958;

(b) Payment of the following amounts due under the Final Award dated 6 October 2022, as corrected through the Correction (to Final Award dated 6 October 2022) dated 25 November 2022, by the Defendant to the Plaintiff (as set out at Page 116 of the Final Award):

(i) CNY 35,799,296, being damages as compensation of the losses suffered as a result of the Defendant’s breaches of the Contracts;

(ii) SGD 40,017.74 and CNY 3,111,489, being the Plaintiff’s legal costs and disbursements;

(iii) CNY 976,458.68, being the interest/markup on CNY 35,799,296 from 28 August 2020 till 3 July 2023 (and which shall continue to accumulate in accordance with Para V at Page 116 of the Final Award dated 6 October 2022, as corrected, till full and final payment of due amounts);

(iv) SGD 28229 and CNY 21,874.30, being the interest/markup on SGD 40,017 74 and CNY 1,111,489, respectively, from 6 October 2022 till 3 July 2023 (and which shall continue to accumulate in accordance with Para Vat Page 116 of the Final Award dated 6 October 2022, as corrected, till full and final payment of due amounts), (v) Interest/markup pendente lite on the amounts due under the Final Award, as corrected, in accordance with the terms of Para V at Page 116 of the Final Award dated 6 October 2022, as corrected, to be calculated for the period till full and final payment of the entire amount due under the Final Award dated 6 October 2022, as corrected.

(c) Enforcement and/or execution of the Final Award dated 6 October 2022, as corrected through the Correction (to Final Award dated 6 October 2022) dated 25 November 2022, by such means as are available under the applicable laws;

(d) Attachment of the properties and bank accounts of the Defendant for enforcement and execution of the Final Award dated 6 October 2022, as corrected through the Correction (to Final Award dated 6 October 2022) dated 25 November 2022:

(e) Restraining the Defendant from alienating/disposing-off/selling its immovable properties (including building, plant, and machinery) during the pendency of this Suit, including, but are not limited to:

(i) the Tin Mill Black Plates project for manufacturing of Tin Mill Black Plates/ CRC located at Plot Nos. 272 and 273 Hub City, MouzaBerootPeerkas Road, District Lasbella, Hub Balochistan; and

(ii) (ii) the Tin Plate plant located at Plot No 5, Special Industrial 2Zone, Winder, Distt, Lasbella, L.I.E.D.A, Balochistan.

(f) Grant the costs of this Suit/Application to the Plaintiff.

1. Notices were issued to the defendant, who put appearance through counsel, filed written statement, stating therein that the Defendant under Singapore’s International Arbitration Act, 1994, Section 24, has filed an application before the High Court of Singapore for, inter-alia, setting aside the Final Award. As per Article VI of the Schedule to the Recognition und Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011, if an application for setting aside or suspension of award has been made to a competent authority, this Court may, if it considers proper adjourn the decision on the enforcement of award and may also on the application of the party claiming enforcement of the award, order the other party to give suitable security. It is further submitted that during the course of arguments, the only issue before this Court is the interpretation and scope of Article VI of the Schedule to the 2011 the Act, and whether the Defendant should require to furnish security for adjourning the instant Suit until decision on setting aside Application pending before the High Court of Singapore. It is further submitted that Article VI gives absolute discretion to the Court and such power is a completely discretionary and there is no mandatory requirement for the Defendant to furnish security. It is further stated that under Order XXI Rule 23A of CPC, in case of money decree, it require the judgment debtor to deposit the decreetal amount before the Court considers objections to the decree. However, the Courts in Pakistan have consistently held that this rule, which is otherwise mandatory for local decrees, shall not apply in the case of foreign decrees. Hence, same principles be also applied in this case and the instant Suit may be adjourned without any security until conclusion of the proceedings before the High Court of Singapore. It is further submitted, that the Defendant is a public listed company operating since the year 1996 and is Pakistan’s only tin-plate manufacturing company and if the Defendant continues their operation without any hindrance, they have the financial strength to satisfy the Arbitral Award if it is not set aside and in case the Defendant is directed to furnish security, it would result in the Defendant’s Banks recalling their short-term loans/mortgages, which, in turn, would lead to a reduction in available finances and a liquidity crisis which would irreparably damage the business. It is further submitted, that passing an interlocutory order at the instant stage in the terms as sought by the Plaintiff would also result in spreading panic amongst its shareholders, and its share price on the Pakistan Stock Exchange will plummet. At present the Defendant’s shareholding pattern is such that over 40% is held by the general public that would also see their share value being destroyed. Further it is submitted that the Defendant employs 200 workers in a small area called Winder, Balochistan, and is the sole industrial employer in the area. Grant of an injunction would adversely affect the operations of the Defendant. It is further submitted that Plaintiff will not be prejudiced in any manner if the enforcement is adjourned without security, because if the Final Award is upheld in the High Court of Singapore, then the Defendant has the capacity and ‘sizable assets’ as stated by the Plaintiff to discharge its liabilities. There is delay of 09 months in filing of the instant Suit as Final Award was announced on 06.10.2022, while the instant Suit was filed on 04.07.2023. It is further stated that “Setting Aside Application” was submitted on 05.12.22 and after filing of the said application, the service process is regulated by the Treaty on Judicial Assistance in civil and commercial matters between Republic of Singapore and the People’s Republic of China (the Treaty), which stipulates that documents are to be served through the Singapore Supreme Court and on to the Ministry of Justice in China. The documents are with the Ministry of Justice in China, therefore, there is nodelay on the Defendant’s part. Furthermore, the Plaintiff, through the instant Suit, has obtained notice/knowledge of the Setting Aside Application and is free to contest the same at Singapore. Lastly, it is submitted that Plaintiff has approached this Court with considerable delay. Therefore, in light of the above facts and circumstances, the discretion vested with this Court under Article VI of the Schedule to the 2011 Act, may be exercised in favour of the Defendant and the instant Suit may be adjourned without security till conclusion of the proceedings pending before the High Court of Singapore.

2. Learned counsel for the Plaintiff in support of his contention argued that that the Arbitration Award was issued in Singapore, pursuant to the arbitration agreements executed between the Parties, set out in Article 40 of the Contract for Cold Rolling Mill Complex dated 29th April 2018 (“the CRM Contract”) and Article 39 of the Contract for Acid Regeneration Plant dated 25th May 2018 (“the ARP Contract”). He further contends that Plaintiff has filed instant suit under Section 6 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 (“the Act”)” read with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (“the Convention”). He further added, that the Defendant has apparently filed the Case No: HC/OA 809/2022 before the High Court of Singapore (“the Singapore Proceedings”). In the Singapore Proceedings, the Defendant has sought that the Arbitration Award be set aside under the International Arbitration Act, 1994 of Singapore; Defendant informed the Plaintiff for the first time about the filing of the Singapore Proceedings through the documents appended with the Defendant’s Written Statement; Defendant has not served the documents in the Singapore Proceedings on the Plaintiff as required under the law up till present. He further added that in case this Court is inclined to grant an adjournment as requested by the Defendant, this Court may adjourn the proceedings on the condition of security and for 2a very limited time only (for not more than three (3) months) and direct the Defendant to take all necessary steps for expeditious resolution of the Singapore Proceedings.

3. He further argued that if the Defendant engages in mischief and misconduct during the pendency of these proceedings, the Plaintiff’s hard-earned rights awarded in an arbitration that spanned from 27th August 2020 to 25th November 2022 would be brought to a naught; that Defendant has sought an adjournment under Article VI of the Convention. Although there are no judgments in Pakistan dealing with this provision, this Court may, following the principle of “uniformity in interpretation”. He further contends that the Plaintiff is not entitled to discretionary relief because of the purported delay in the filing of instant Suit. The Defendant’s argument is ironic and distorted because it has itself delayed in the Singapore Proceedings for around one year and kept the Plaintiff in dark about them for eight months by intentionally withholding delivery of the legal documents of the Singapore Proceedings. In support of his arguments learned counsel for the Plaintiff relied upon the case law reported in PLD 2014 Sindh 349 [Re. Abdullah v CNAN], 2021 SCMR 1728 [Re. Orient Power Company (Pvt) Ltd. v. Sui Northern Gas Pipelines Limited], PLD 2014 Sindh 349 [Re. Abdullah v. M/s. CNAN Group SPA through Chief Executive/Managing Director and Another], 2023 CLD 819 [Re. Tradhol International SA Sociedad Unipersonal v. Shakarganj Limited], 2019 CLD 160 [Re. Dhanya Agro-Industrial (Pvt) Ltd Quetta Textile Mills Ltd], PLD 1991 Karachi 252 [Re. Glaya Grou Limited v. Evron (Pvt) Ltd.], AIR 1919 Sind 67 [Re. Louis Dreyfus & Co. v. Ghandamal & Co.].

4. In contra learned counsel for Defendant contends that Defendant under Singapore’s International Arbitration Act, 1994, Section 24, has filed an application before the High Court of Singapore for, inter alia, setting aside the Final Award. He further adds that as per Article VI of the Schedule to the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011, if an application for setting aside or suspension of award has been made to a competent authority, this Court may, if it considers proper adjourn the decision on the enforcement of award and may also on the application of the party claiming enforcement of the award, order the other party to give suitable security; that Article VI is a complete discretionary power, and there is no mandatory requirement for the Defendant to furnish security. He further adds, that the Plaintiff himself admitted in Paragraph 30 of the affidavit that the Defendant has “sizable assets”, which further strengthens the Defendant’s case that at this stage there is no need for any security or injunction as the Defendant is a showing concern which will be able to satisfy the Final Award if it is not set aside by the High Court of Singapore; that Plaintiff has filed Final Award which was announced on 06.10.2022, while the instant Suit was filed on 04.07.2023, which is in delay of about 09 months; that Setting Aside Application was submitted on 05.12.22 and after the filing of the application, the service process is thereafter regulated by the Treaty on Judicial Assistance in civil and commercial matters between Republic of Singapore and the People’s Republic of China (‘the Treaty), which stipulates that documents are to be served through the Singapore Supreme Court and onto the Ministry of Justice in China. In support of his submission he relied upon the case law reported in PLD 2003 Karachi 222, 1993 MLD 1359 Karachi, 2002 CLD 120, Yukos Oil v Dardana [2002] EWCA Civ. 543 and AIC Limited v. Federal Airports Authority Nigeria [2019] EWHC 2212 (TCC).

5. Heard and perused the record.

10. In the present case, through a miscellaneous application, the plaintiff seeks an ad-interim injunction on the plea that a foreign award is equal to a foreign decree and is to be executed by this Court, though an appeal is pending against the same. During this stipulated period, the plaintiff has the right to protection as he apprehends that the defendant may shift liabilities to another company. He has referred to Article 6 of the IPO, wherein the treaty states that during the pendency of an appeal, the matter may be adjourned sine die with the rider of surety; according to counsel, the discretion is of the Court, and no harm will be caused if the defendant submits surety. In contra, learned counsel for the defendant contends that if appeal is not provided, the foreign decree shall be presumed final. However, with regard to the Award in the present case, an appeal is admittedly pending, and the referred clause of the IPO itself states the word “may” therefore, this matter may be adjourned sine die without any stipulation or condition. Further, he contends that admittedly the defendant is the only unique company in the whole of Pakistan, having a worth of billions of rupees, and they are not intending to sell out the assets of the company. However, as and when they will require to sell/transfer/encumber any assets of the company, they will inform this Court beforehand. It is germane to mention that the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) was set forth with the Schedule to the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011. Article VI, of the Convention deals with the adjournment of the decision on the enforcement of the award. Thus it would be conducive to examine and reproduce the Article VI, of the Contention to the Schedule of the Act, 2011 as under:

“If an application for the setting, aside or suspension of the award has been made to a competent authority referred to in Article V(1)(e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security”.

1. Bare reading of the aforesaid Article would show that the word “may” is being used in therein for purpose of rider of the suitable security. Mere use of word “may” or “shall” is not conclusive. The question whether a particular provision of a statute is directory or mandatory cannot be resolved by laying down any general rule of universal application. Such controversy has to be decided by ascertaining the intention of the Legislature and not by looking at the language in which the provision is clothed. And for finding out the legislative intent, the Court must examine the scheme of the Act, purpose and object underlying the provision, consequences likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue.

2. Several statutes confer power on authorities and officers to be exercised by them at their discretion. The power is in permissive language, such as, “it may be lawful”, “it may be permissible”, “it may be open to do”, etc. In certain circumstances, however, such power is “coupled with duty” and must be exercised. It is well-settled that the use of word “may” in a statutory provision would not by itself show, that the provision is directory in nature. In some cases, the legislature may use the word “may” as a matter of pure conventional courtesy and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word “may”, the court has to consider various factors, namely, the object and the scheme of the Act, the context and the background against which the words have been used. The purpose and the advantages sought to be achieved by the use of this word, and the like. It is equally well-settled that where the word “may” involve a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word may’ should be interpreted to convey a mandatory force. As a general rule, the wordmay’ is permissive and operative to confer discretion and especially so, where it is used in juxtaposition to the word ‘shall’, which ordinarily is imperative as it imposes a duty. Cases however, are not wanting where the words “may” “shall”, and “must” are used interchangeably. In order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances. The distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. The distinction reflected in the use of the word `shall’ or “may” depends on conferment of power. Depending upon the context, “may” does not always mean may. “May” is a must for enabling compliance of provision, but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the power, it becomes his duty to exercise that power. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty.

3. The ultimate rule in construing auxiliary verbs like “may” and “shall” is to discover the legislative intent; and the use of words “may” and “shall” is not decisive of its discretion or mandates. The use of the words “may” and “shall” may help the courts in ascertaining the legislative intent without giving to either a controlling or a determining effect. The courts have further to consider the subject matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed. In Case of Muhammad Sadiq and others v. University of Sindh and another (PLD 1996 Supreme Court 182), it was held by the Apex Court that: “May involves a choice and ‘shall’ an order. This is the customary usage of these terms of art when they appear in a statute. Even an enabling word like “may” may become mandatory, when the object of the power is to effectuate a legal right. (See Reg v. Home Secretary (1995) 2 V&R 464, 484 and (1879-80) 5 AC 214, 244)”. It is matter of record that the Article VI, of the Convention does not place stringent condition to require the Defendant (other party) to give suitable security if the decision on the enforcement of the award is adjourned. On the contrary, the word “may” refer to the hallmark of discretionary power as per language used in the aforesaid Article.

4. Adverting to the controversy of the lis, the defendant is seeking sine die adjournment of the decision on the enforcement of the foreign arbitral award without any rider on the ground that they have filed an appeal before the High Court in Singapore, whereas the policy is engendered by considerations of party autonomy and the finality of the arbitral process, dictating that the courts should act with a view to “respecting and preserving the autonomy of the arbitral process”.[1] Thus, curial intervention is warranted only on limited grounds. In Singapore, the grounds on which the seat court can set aside an arbitral award are exhaustively prescribed in sec; 24 of the International Arbitration Act, 1994 (2020 Rev Ed) (“IAA”) and Article 34 of the UNCITRAL Model Law on International Commercial Arbitration, as adopted in Singapore by virtue of sec; 3(1) read together with the First Schedule of the IAA (“the Model Law”).[2]

15. Critically, the seat court has no jurisdiction to examine the substantive merits of the arbitration. As this court stated in AKN and another vs. ALC and others and other appeals [2015] 3 SLR 488 (“AKN”) at [37], an integral feature and consequence of party autonomy is that parties choose their arbitrators and are bound by the decisions of their chosen arbitrators. In Case of Riaz K. Haq and others v. Said K. Haq (1970 SCMR 65), it was held by the Apex Court that: “It becomes necessary to adjourn the hearing of this petition, until the final result of the writ petition is known. If the Registrar’s order is maintained, the petitioner’s could then move for further proceedings in their application before the Civil Judge in respect of the award, once it is registered. It is, therefore, necessary to keep the latter proceedings alive. This petition is adjourned sine die. Either party may apply to have it heard, if and when a decision is reached in the writ petition before the High Court. In the meantime no final order shall be made in the proceedings for making the award a rule of Court, which are pending in the Court of the Civil Judge”.

1. Keeping in view of above legal and factual aspects the instant injunction application filed by the Plaintiff is allowed as prayed, accordingly, Award is adjourned sine die until final hearing, after the decision of Case No. HC/OA 809/2022 pending before the High Court of Singapore.

(Y.A.) Application allowed

[1]. Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 (“Soh Beng Tee”) at [59].

[2]. COT v COU, COV and COW, Court of Appeal/Civil Appeal No.12 of 2022 [2023] SGCA 31, the Republic of Singapore.

PLJ 2024 Karachi 72

Present: Salahuddin Panhwar, J.

AZIZ KHALID and others--Plaintiffs

versus

PROVINCE OF SINDH & others--Respondents

Suit No. 05 and C.M.A No. 21132 of 2023, decided on 26.1.2024.

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

----O. XXXIX, Rr. 1 & 2--Sindh Public Procurement Rules, 2010, R. 25(1)--Publishing of notice for bids--Suspension of Chairman--Allegations of--Temporary charge--Directions for fresh notice for bids--Printing, binding and supply of text books--Cancellation of auction--Writ petition--Dismissed--Enhancement of scale of quality--Power of competent authority--Challenge to-- A procuring agency may cancel bidding process at any time prior to acceptance of a bid or proposal--The plaintiffs could not question such power conferred to competent authority established under Section 3 of Sindh Public Procurement Act and under relevant Rules--Change in specification of paper would provide durability to textbooks for reuse same again--By virtue of impugned Notification and advertisement, Defendant No. 5 had improved and revised quality of paper including paper weight, paper thickness, brightness, burst factor, opacity etc.--In revised bid--non availability of funds was not issue of contractor that was sole responsibility of Govt. and not of any individual--The Plaintiff had remained beneficiary since year by getting contract of paper page books; Plaintiff could be allowed to blow hot and cold in same breath--High Court could not interfere in decision of Authority, which did not appear to be suffering from any illegality, nor appeared to be in violation of Sindh Public Procurement of Rules, 2010--Application dismissed.

[Pp. 75 & 76] A, B, C, D, E & F

Mr. Ahmed Masood, Advocate for Plaintiffs.

Mr. Muhammad Ali Lakhani, Advocate for Defendant No. 5.

Mr. Rajesh Kumar Khagaja, Advocate for Defendant No. 6.

Mr. Pervez Ahmed Mastoi, AAG a/w Taimur Ali Khaskheli, Member/Secretary, Procurement, Committee, Sindh Textbook Board and Hafeezullah, Secretary, Sindh Textbook, Board.

Date of hearing: 17.1.2024.

Order

By the dint of this order, I intend to dispose of listed application.

1. Precisely facts relevant for disposal of listed application are that plaintiffs are owners of publishing houses and running their business in the name and style of M/s Urdu Academy (Sindh), Academic Offset Press and Al Khalid Publishing Company; that the plaintiffs publish textbooks for the Defendant No. 5 as per allocations awarded; that prior to Notice Inviting Tender (NIT) was issued vide Publication dated 29.11.2023 by the Defendant No. 5, wherein an auction with regard to printing, binding and supply of textbooks, which was scheduled to be held on 12.12.2023; that said auction was cancelled vide Cancellation Notice dated 08.12.2023; that vide Notification dated 05.12.2023, an officer of the Defendant No. 3 was appointed as Secretary of the Board. It is further alleged that said appointment was challenged by the Plaintiffs by preferring C.P.No. 5937 of 2023. This Court vide Order dated 08.12.2023 restrained the said Secretary from taking any major decisions. However, even passage of said order, the Original NIT was cancelled; that said Secretary vide Office Orders dated 13.12.2023 and 15.12.2023 took substantive actions with respect to the affairs of the Board; that vide Office Order dated 15.12.2023 one Daryush Kafi was appointed as Director (Academic, Research and Training) of the Board; that upon issuance of Impugned Notification dated 19.12.2023, the Plaintiffs realized that it was done to secure both the said persons as part of the Procurement Committee/Defendant No. 6 in order to, inter alia, rig the auction to be held via the impugned Advertisement; that significant changes were made in the bidding document, revised via the impugned Bid Document in order to exclude certain class of persons from participating in the same; that on account of changes in the technical aspects of the bid, the cost per unit has been increased. Hence the plaintiffs have filed the instant suit for Declaration, Cancellation and Injunction. Along with the suit, the listed application under Order XXXIX Rules 1 and 2, CPC read with Section 151, CPC has been filed wherein it is prayed by the plaintiffs to suspend the impugned Notification dated 19.12.2023, impugned bid document and impugned Advertisement dated 23.12.2023.

2. Notices were issued to the other side. Defendants caused their appearance through their respective counsel.

3. Learned counsel for the plaintiffs, inter alia contended that Notice Inviting Tender (NIT) was issued through Advertisement dated 29.11.2021 for auction scheduled to be held on 12.12.2023, which was malafidely scrapped via Cancelation dated 12.12.2023. Actually Election Commission of Pakistan rejected the Government’s proposal to transfer the sitting Chairman of the Board vide Letter dated 05.12.2023. On the very same day, the Secretary of the Board i.e. the controlling authority with respect to finances of the Board and the tendering process was transferred and one Hafeezullah Abdul Rehman was brought back to the Board in violation of ECP guidelines. It is further contended that a significant change has been brought in bid documents i.e. the paper size of 22x32 has been added to the impugned Bid Document, whereas the paper weight too has been increased to 68 g/m2; that in the Revised Schedule of Requirements (forming part of the Impugned Bid Document) almost 51% of the tender has been advertised with requirement of 22x32, whereas the Original Schedule of Requirements (forming part of the Impugned Bid Document) advertised 80-90% of the bid on the size of 20x30; that said difference makes the entire procurement more expensive and set to result in the same shortage as presently being witnessed; that this is because the budget for the procurement remains at Rs. 2.53 Billion, on the basis of which the province will again fall short of 10 Million books again; that it was done in order to extend favour to the persons controlling the six entities. Thus, via the above changes, 50% of the tender has been pre-booked for the said persons; that since the Impugned NIT has already been acted upon and bids as per the Original Bid Document have been submitted and given the time constraint (start of session on 15 April 2024) and requirement of books it will be impractical and inadvisable to re-advertise the tender; that last year’s tender, which was done on the size of 22x32 at 68 g/m2, had resulted in the present shortage for which the caretaker CM had to sanction additional funds. Lastly, it is submitted that listed application may be allowed as prayed.

4. Learned counsel appearing for the defendants as well as learned AAG contended that a notice was published inviting bids from various publishers to partake in a procurement process; that purpose of the procurement process was to engage publishers to print, bind and supply textbooks through an internationally competitive bidding process as contemplated by law; that owing to grave allegations of mismanagement, maladministration, and misappropriation, the then Chairman was suspended and temporary charge was assigned to one Akhtar Hussain Bughti; that the Sindh Public Procurement Regulatory Authority took exception to the tender invitation published by suspended Chairman and identified irregularities in the process; that the authority had instructed cancellation of the bids and had directed for issuance of a fresh advertisement inviting bids at an enhanced scale of quality; that plaintiffs decided to obstruct essential process by initiating proceedings against Defendant No 5 and filed C.P.No. D-5937/2023 and obtained interim order. However, said proceedings have been dismissed by this Court on 26.12.2023; that plaintiffs also filed Suit No. 2112/2023 challenging therein the Notification of Mr. Bughti as Chairman and obtained interim relief against him as such his appointment has been suspended; that plaintiffs cannot question the procuring agencies desire to seek the highest standard of excellence, as such, it is prayed that listed application may be dismissed with costs.

5. Heard and perused the record.

6. With regard to cancellation of bid, it would be pertinent to mention here that under sub-rule (1) of Rule 25, of the Sindh Public Procurement Rules, 2010 provides that: A procuring agency may cancel the bidding process at any time prior to the acceptance of a bid or proposal”. Sub-rule (2) stipulates that: “The procuring agency shall incur no liability towards the bidders, solely by virtue of its invoking sub-rule (1)”. Sub-rule (3) provides that: “Intimation of the cancellation of bidding process shall be given promptly to all bidders and bid security shall be returned along with such intimation”. Sub-rule (4) provides that: “The procuring agency shall, upon request by any of the bidders, communicate to such bidder, grounds for the cancellation of bidding process, but is not required to justify such grounds”, as such, the plaintiffs cannot question such power conferred to the competent authority i.e. Sindh Public Procurement Regulatory Authority established under Section 3 of Sindh Public Procurement Act and under the relevant Rules. Rule 33, of the Rules, 2010 provides that following actions of the procuring agency shall not be subject to the appeal or review:

“(1) Selection method adopted by the procurement committee.

(2) Decision by the procuring agency under Rule 25 to cancel the bidding process”

1. With regard to the significant change in the bidding document, it is pertinent to mention that change in the specification of paper would provide durability to the textbooks for reuse the same again. Generally speaking, a higher quality paper tends to be heavier

in terms of the gsm [grams per square meter] which makes it feel more substantial to the touch. This additional weight also increases the papers durability and reduces the chances of damage when handling. Normal quality papers will more often than not be lighter and thinner which makes them extremely prone to getting bend marks, damage, tearing, and curling. It is matter of record that by virtue of the impugned Notification and advertisement, the Defendant No. 5 has improved and revised the quality of the paper including paper weight, paper thickness, brightness, burst factor, opacity etc. in revised bid. It is the duty of the concerned Authority to regulate the procurement process in order to satisfy the larger interest of the public. Besides that education department has taken plea to the extent that they are going to introduce policy of book bank, so better book will last longer. On the contrary there is need to more improve the quality of paper, like Oxford and Cambridge based private schools as huge funding is involved in this purpose. Govt. schools, funded by Govt., ultimately face the consequences and how the Plaintiff will suffer irreparable loss. Non availability of the funds is not issue of the contractor that is sole responsibility of Govt. and not of any individual. The Plaintiff has remained beneficiary since year by getting contract of 63 and 68 (gsm) paper page books; therefore, the Plaintiff cannot be allowed to blow hot and cold in same breath.

1. In such circumstances, this Court cannot interfere in the decision of the Authority, which does not appear to be suffering from any illegality, nor appear to be in violation of the Sindh Public Procurement of Rules, 2010. Accordingly, the injunction application being misconceived is hereby dismissed.

(Y.A.) Application dismissed

PLJ 2024 Karachi 76

Present: Salahuddin Panhwar, J.

AZIZ KHALID and another--Plaintiffs

versus

PROVINCE OF SINDH and others--Defendants

Suit No. 2112 of 2023, decided on 22.1.2024.

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

----O.XXXIX, Rr. 1 & 2--Application for grant of temporary injunction--Dismissed--Sindh Textbook Board Ordinance, (XII of 1970), S. 4(2)--Suspension of Chairman Sindh Textbook Board--Additional charge--Stop gape arrangement--Issuance of notification--Writ petition--Dismissed--No cause of action--Plaintiffs were publishers and were participate in bidding process of books--No locus standito challenge notification regarding appointment of Chairman--Plaintiffs who were publishers and were participating in bidding process of books in routine had earlier filed a petition challenging appointment of Secretary Textbook Board, which was dismissed as plaintiffs had failed to satisfy Court regarding maintainability of petition--The plaintiffs had no cause of action to challenge Notification as they were not affectees, on contrary, they were beneficiaries and they could not be allowed to choose officers of their own choice, while bidding process of books was in pipeline and they were participated in such process--The Plaintiffs did not had locus standi to impugn Notification and sought injunctive relief against said Notification--Plaintiffs had failed to established required ingredients for grant of injunctive relief in their favour--Plaintiffs had sought reliefs of “Declarations” in prayer clauses (A) & (B) as well as “Permanent Injunction” in respect of Impugned Notification--Application for grant of injunctive relief at interlocutory stage being bereft of merits was hereby dismissed--Petition dismissed.

[Pp. 80 & 81] B, C, D, E & F

1998 SCMR 68 and 2007 MLD 2019 ref.

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

----O.XXXIX Rr. 1 & 2--Principles of--Temporary injunction--The well settled principles laid down by superior Courts relating to grant or refusal of temporary injunctions are, firstly, whether plaintiff has a prima facie good case, secondly, whether balance of convenience lies in favour of grant of injunction and thirdly, whether plaintiff would suffer irreparable loss if injunction is refused. [P. 80] A

Mr. Ahmed Masood, Advocate for Plaintiffs

Mr. Rajesh Kumar Khagaija, Advocate for Defendant No. 5.

Mr. Muhammad Ali Lakhani, Advocate for Defendants No. 7.

Mr. Aizaz Ahmed advocate for Sindh Education Foundation (SEF) alongwith Mr. Abdul Kabeer Kazi, Managing Director Sindh Education Foundation.

Mr. Mehran Khan, Asstt. A.G. Sindh along with Piyar Ali Lakho, Deputy Secretary (School)/Focal Person.

Date of hearing: 22.1.2024.

Order

By the dint of this order I intend to decide application under Order XXXIX Rules 1 & 2, CPC filed by learned counsel for the plaintiffs.

1. Precisely, the facts are that plaintiffs are owners of M/s. Urdu Academy (Sindh) and Al Khalid Publishing Company; publishing textbooks for the Defendant No. 5 as per allocations awarded. Through, instant suit, the plaintiffs have called in question the illegal appointment of Defendant No 7,vide Notification dated 08.12.2023 on additional charge basis, as Chairman, Sindh Textbook Board; that under Section 4(2) of the Sindh Textbook Board Ordinance, 1970, the power to appoint the Chairman of Sindh Textbook Board vests with the Government i.e. the provincial Cabinet, whereas vide the Impugned Notification the same has been exercised by the Defendant No. 1; that earlier the Defendant No. 4 illegally made appointment of Secretary, Sindh Textbook Board, which appointment was challenged by the Plaintiffs by preferring C.P.No. D-5937 of 2023, wherein vide Order dated 08.12.2023 restraining orders have been issued; that though Election Commission of Pakistan has imposed Ban whereby restraining the Defendants No 1 to 4 from postings and transfers without prior approval of the Defendant No. 6 in accordance with Section 230(2)(e) and (f) of the Elections Act, 2017, that in numerous judgments, this Court has taken note of such illegalities being committed within the Sindh Textbook Board and has directed that appointment to the offices of the Defendant No. 5 in accordance with law, but even then additional charge of Chairman, Sindh Textbook Board has been given to Defendant No. 7 through impugned Notification, which is sheer violation of the law and the orders passed by this Court, hence, through listed application, the plaintiffs prayed that defendants may be restrained from giving effect to the impugned Notification.

2. Notices of the applications were issued to the other side. Defendants caused their appearance through their respective counsel.

3. Learned counsel for the plaintiffs contended that in the first attempt, Sindh Government approached the Election Commission of Pakistan (ECP) and sought permission with regard to transfer of the Chairman, Sindh Textbook Board but such permission was declined, hence, Chairman was suspended and in order to facilitate Defendant No. 7, he has been assigned Additional Charge of Chairman, Sindh Textbook Board which cannot be allowed. He has referred to the Notifications with regard to the ban issued by the Election Commission as well as by the Sindh Government. He has also referred to the order passed in CP.No. D-3133 of 2013 while arguing that in the case of Khawaja Muhammad Asif reported as (2013 SCMR 1205), the apex Court, while referring to paragraph 30(a) of the impugned notification, held that during the election process, appointment and transfer orders by the caretaker government are void and having no legal effect. On that analogy, the referred petition was disposed of. In the present case, despite the ban imposed by the Election Commission of Pakistan and Sindh Government, Defendant No. 7 has been assigned Additional Charge. He has referred to the judgment passed by this Court in CP.No. D-33 of 2023, whereby in Paragraph Nos. 13, 14, 15 and 16, categorical directions were issued that the Sindh Government shall appoint Chairman Sindh Textbook Board on permanent basis. Accordingly, the Notification was suspended. He has also contended that Sindh Textbook Board Ordinance, 1970 does not contain any provision authorizing appointment on acting charge basis and according to the counsel, Secretary Textbook Board has maneuvered second auction and ultimately, plaintiffs have no other remedy to redress such illegality as the Chairman of the Grievance Committee will be Defendant No. 7. In supporting of his submissions, he has relied upon decisions reported in 2007 Karachi 11, PLD 2019 Sindh 785 and 2011 CLC (CS) 956.

4. In contra, counsel for Defendant No. 7 contended that plaintiffs have no cause of action; they are publishers, hence, they cannot challenge the Notification whereby Defendant No. 7 has been assigned the additional charge of Chairman; that suspension of ex-Chairman has been challenged by the ex-Chairman himself in a Constitution Petition, therefore, it would be appropriate to adjudicate the issue in that jurisdiction and not through instant Suit; that permission of the Election Commission was irrelevant as the Notifications of suspension of ex-Chairman and assignment of additional charge were issued as stopgap arrangement in public interest, therefore, the same cannot be termed as illegality. He further contended that the plaintiffs filed a Constitution Petition No. 5937/2023,whereby they challenged the Notification of appointment of Secretary Textbook Board but the same has been dismissed vide order dated 26.12.2023; hence, the plaintiffs have approached this Court with clean hands. In support of his submissions, he has relied upon paragraph 11 of 2023 SCMR 162.

5. Counsel for Defendant No. 5 adopted the arguments of learned counsel for the Defendant No. 7. Whereas, learned Asst. A. G. Sindh while relying upon the above referred arguments, contended that the plaintiffs are defaulters of Rupees 18 Million as they were contractors in the last year and they had to provide the books but they failed to provide the same.

6. At this juncture, Managing Director Sindh Education Foundation (SEF) contended that the tenure of Sindh Textbook Board has ended in March 2023, since then the Board is not operational and the students getting education in the SEF Education System are also facing hardship due to shortage of books. He has pointed out that under what manner, officers are running the day-to-day work of the Board without having any Board.

7. Heard and perused the record.

8. The well settled principles laid down by the superior Courts relating to grant or refusal of temporary injunctions are, firstly, whether the plaintiff has a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of injunction and thirdly, whether the plaintiff would suffer irreparable loss if the injunction is refused. However, in the present case, perusal of record reflects that this Court in CP.No. D-33 of 2022, issued directions regarding permanent appointment of Chairman of Sindh Textbook Board; but, Sindh Government has failed to comply with such directions. Admittedly, the plaintiffs, who are publishers and are participating in the bidding process of books in routine had earlier filed a petition challenging the appointment of Secretary Textbook Board, which was dismissed as the plaintiffs had failed to satisfy the Court regarding maintainability of the said petition. However, the plaintiffs, having knowledge regarding dismissal of such petition, have now assailed the appointment of Chairman, Sindh Textbook Board by approaching this Court through instant Suit and vide order dated 26.12.2023, the impugned Notification was suspended. Admittedly, the Chairman was suspended by the Worthy Chief Minister Sindh as per his mandate, nevertheless, in view of the amendment in Act 2022 and as a stop-gap arrangement, Defendant No. 7 has been assigned additional charge; Ex-Chairman also challenged his suspension in writ jurisdiction by filing petition, which petition is still pending and yet to be adjudicated; hence, there appears no illegality in making stop-gap arrangement in order to run day-to-day affairs of the Board. In any event, the plaintiffs have no cause of action to challenge the Notification as they are not affectees, on the contrary, they are beneficiaries and they cannot be allowed to choose the officers of their own choice, while bidding process of books is in pipeline and they are participating in such process. The Plaintiffs have nothing to do with the appointment of the Chairman and they are not “aggrieved parties” of the Notification issued by the Defendant No. 7; therefore, the Plaintiffs do not have locus standi to impugn the Notification issued regarding appointment of the Chairman of the Sindh Textbook Board and seek injunctive relief against the said Notification. Thus, plaintiffs have failed to establish the required ingredients i.e. prima facie case, balance of convenience and irreparable loss for grant of injunctive relief in their favour. In Case of Messrs Maxim Advertising Company (Pvt.) Ltd. v. Province of Sindh and 4 others (2007 MLD 2019), it was held by a division bench of this Court that: “Manifestly, contracts involving collection of monetary benefits, which themselves have been obtained on specific monetary considerations, on principle, cannot involve irreparable loss because such loss, inherently, means and implies only such loss as is incapable of being calculated on the yardstick of money. Unless all the required ingredients of prima facie case, balance of convenience and irreparable loss to the aggrieved party are found to subsist, no injunction under Order XXXIX, Rules 1 and 2, C.P.C. can [be] issue[d]”.

The underlining is supplied

1. Perusal of record further reveals that the Plaintiffs have sought reliefs of “Declarations” in prayer clauses (A) & (B) as well as “Permanent Injunction” in respect of Impugned Notification dated 08.12.2023 to the extent of “Restraining the Defendants and other persons acting on their behalf or under them from giving effect to, in any form or manner, the Impugned Notification dated 08.12.2023” and the relief sought in the present application is also same. Thus, if the injunctive relief to the extent of that prayer is granted, it would amount to grant of main relief without recording evidence of the parties, which could not be undertaken at this interlocutory stage. In Case of United Bank Limited and others v. Ahsan Akhtar and others (1998 SCMR 68), it was held by the Apex Court of Pakistan that: “Another well-settled principle of legal jurisprudence is that generally a Court cannot grant an interlocutory relief of the nature which will amount to allowing the main case without trial/hearing of the same”.

2. In view of above, the plaintiffs have failed to make out a prima facie arguable case in their favour. Accordingly, the application for grant of injunctive relief at interlocutory stage being bereft of merits is hereby dismissed. The interim Order dated 26-12-2023 is hereby recalled. The parties to lis are left to bear their own costs.

While parting this order it is pertinent to mention that Governing Body of Sindh Textbook Board ended in March 2003, yet Government has not appointed members therefore, same can’t be left upon the mercy of Chairman and Secretary, hence, Sindh Government shall issue Notification as per the order within fifteen days. Secretary Education and Chief Secretary Sindh shall ensure compliance report.

(Y.A.) Petition dismissed

PLJ 2024 Karachi 82 (DB)

Present: Muhammad Shafi Siddiqui and Omar Sial, JJ.

CEDAR (PVT.) LIMITED--Appellant

versus

SONERI BANK LIMITED and others--Respondents

High Court Appeal No. 234 of 2023, decided on 23.1.2024.

Sindh Rent Controller Premises, (XVII of 1979)--

----S. 12--Specific Relief Act, 1877 (I of 1877), Ss. 31, 42 & 54--Tenancy agreement--Advance cheque--Modification in injunctive order--Direction to deposit amount of cheques in Court--Rent was not deposited--Ceiling of rental premises was collapsed--It was claimed that premises was handed over to tenant on “as is where is” basis, as could be seen from second recital of tenancy agreement, as it was on concessional rate--The subject matter of suit was not just simply a negotiable instrument but it was rent of subject period which was not paid, there is no logic that Rent Controller could not pass any order on “negotiable instrument”, therefore suit was filed--Once rent was deposited pursuant to orders of Court, which appellant had not deposited till date-- rent of premises could be withheld unless order as required under Section-12 of SRPO, 1979 was passed entitling landlord to carryout repairs and amount as adjudged and only then tenant be permitted to withheld amount subject to condition that such amount as adjudged was actually spent.

[Pp. 84, 85 & 86] A, B, E & F

Sindh Rent Controller Premises Ordinance, 1979 (XVII of 1979)--

----S. 12--Jurisdiction--S. 12 of SRPO, 1979 does not empower civil Court to adjudge necessary repairs to be carried out by landlord.

[Pp. 85 & 86] C

Injunction--

----It is the discretion of Court to grant injunction on a reasonable condition, considering the relief claimed. [P. 86] D

M/s. Haider Waheed and Aadil Channa, Advocates for Appellant.

M/s. Ovais Ali Shah and Jahanzeb Balouch, Advocates for Respondent No. 2.

Dated of hearing: 23.1.2024.

Judgment

Muhammad Shafi Siddiqui, J.--The appellant, being a tenant of the premises, has filed a suit for declaration, cancellation, injunction and damages.

1. The appellant was inducted in the premises by virtue of a tenancy agreement reduced into writing. The monthly advance cheques were handed over to the landlord. The tenancy was disclosed to be of 11 months from 15.03.2021 till 14.02.2022. The cause for filing of the suit arose when purportedly some structure/ ceiling of rental premises collapsed. It is claimed that the said incident was communicated to the respondent and consequently the referred suit was filed with the following prayer:-

(i) declare that the Demised Premises, rented out to be used as a school by the plaintiff, is unfit for such a purpose as the structure of the same is damaged and is unfit for such use or habitation;

(ii) cancel the cheques enumerated in paragraph 10 above drawn on the Defendant No. 2 as the same cannot be encashed as there is no corresponding obligation, within the meaning of the agreement dated 4.12.2020 or Section 489-F of the PPC, to honour the same;

(iii) award compensation to the Plaintiff for incurring expenditure of Rs. 350,000,000/-that went to waste as part of the refurbishment and retrofitting activity upon the Demised Premises;

(iv) award damages to the Plaintiff for the misrepresentation and breach of warranties by the Defendant No. 1 that caused loses and inconvenience to the Plaintiff;

(v) award compensation to the Plaintiff to the tune of Rs. 20,000,000/-as restitution for arranging alternate venue in place of the Demised Premises to resume teaching;

(vi) grant injunction against presentation of cheques forming matter of the instant suit;

(vii) award damages to the tune of Rs. 200 million along with such further sum as may be determined at the time of hearing/ disposal;

(viii) direct the Defendant No. 1 to return Rs. 84,00,000/-deposited with it as Fixed Security Deposit in terms of the Agreement dated 4.12.2021;

(ix) award cost and special costs; and

(x) any other additional/alternate relief as this Court may deem fit and appropriate.

1. The injunctive order in the suit was passed on 14.03.2022 whereby the Respondent No. 2 (disclosed in the plaint as Defendant No. 1), was restrained from presenting and entertaining cheques disclosed in the application and further from initiating criminal proceedings against the appellant and the directors for the aforementioned cheques which covers the rent of the relevant period. On receipt of notices/summons, application under Order-VII Rule-11, CPC was also filed challenging the jurisdiction of the learned single Judge apparently in terms of Section-12 of the Sindh Rented Premises Ordinance, 1979 [SRPO, 1979]. On 10.5.2023 the injunctive order of 14.03.2022 was modified to the extent that appellants were directed to deposit the amount of cheques, disclosed in the application, with the Nazir of this Court within four weeks’ time of the order and the said amount on deposit to be invested in a profit bearing scheme. Apparently the restraining order to initiate criminal proceeding against directors was not disturbed. The said order in terms of above modification is challenged in this Appeal.

2. It is appellant’s case that there is sufficient evidence available before the learned single Judge to adjudge that the ceiling was collapsed and the premises, at least some part of it, was rendered uninhabitable; and that the cheques were not presented for encashment for six months and the rent case on account of such default was filed after six months of such cause, which delay shows the understanding of parties. It is further claimed that a security in the sum of Rs. 8,400,000/- is available with the landlord and the outstanding amount in terms of arrears is only Rs. 14,300,000/-, the substantial amount is covered by security. It is claimed that the impugned order was passed without prejudice to the merits of the case and that means that the appellants were condemned unheard.

3. Mr. Ovais Ali Shah, learned counsel for Respondent No. 2 submits that without prejudice to the substance of the order impugned in this appeal, the learned single Judge had no jurisdiction to entertain the suit which is otherwise vested with the Rent Controller in terms of Section-12 of the SRPO, 1979. It is claimed that the premises was handed over to the tenant on “as is where is” basis, as could be seen from the second recital of the tenancy agreement, as it was on the concessional rate. It is also claimed that the appellants are blowing hot and cold, as at one hand they are saying that the Rent Controller had the jurisdiction, who had already passed the order to deposit the rent in terms of Section-16(1) of the SRPO, 1979; which order has also been challenged in a writ petition on the count of pendency of suit and orders passed, and on the other hand objected the impugned order of learned single Judge in this appeal. Thus, they have avoided to deposit and secure the amount in the suit proceedings as well as in the rent proceedings.

4. We have heard learned counsel for the parties and perused the material available on record.

5. An application under Order-VII Rule-11, CPC is otherwise pending adjudication and hence we would not like to comment as far as the jurisdiction of the learned single Judge is concerned, however, there are certain questions which requires consideration of this Court.

6. The subject matter of the suit is not just simply a negotiable instrument but it is the rent of the subject period which was not paid, therefore, there is no logic in saying that since the Rent Controller could not pass any order on “negotiable instrument”, therefore, the suit was filed. The subject matter of the suit relates to the outstanding rent which was to be paid through cheques and that is it. It could have been paid through other modes however the subject is rental outstanding. Section-12 of the SRPO, 1979 encompasses the issue of repair of premises and apparently gives a responsibility to the landlord to make necessary repairs other than the structural alteration to a premises. On failure of such obligations, such question could be raised apparently before the Rent Controller by tenant by moving an application, and Rent Controller may direct the landlord after an inquiry, as required and deemed necessary by the Rent Controller and if the Rent Controller thinks necessary that such repairs may be made by the tenant, only then the cost thereof may be deducted from the rent which is payable by him (tenant) and not otherwise. In the same way it is also to be seen what “as is where is basis” means, by a Court.

7. In the instant matter though the application was not preferred by the tenant in this regard but the eviction application was filed by the landlord on account of alleged default of the rent payable in advance for the period in relation to which the suit was filed and injunctive order was obtained exparte. Section-12 of the SRPO, 1979 does not empower the civil Court to adjudge necessary repairs to be carried out by the landlord; neither an application was filed by the tenant in this regard. The said proceedings in the suit includes an independent claim of compensation on account of the fact disclosed therein but in the same breath the suit also seeks an injunctive order that the subject cheques for rent, may not be encashed which relates to a period when the premises was claimed to be uninhabitable and they had to resort to an alternate and suitable premises and additional rent was paid.

8. The question before us as insisted by Mr. Haider Waheed is that the interim order as granted on 14.03.2022 should not have been modified on 10.05.2023 without considering the merit of the case. We are not in agreement with Mr. Haider Waheed’s contention. It is the discretion of the Court to grant injunction on a reasonable condition, considering the relief claimed. Injunction involved a considerable amount to be paid by the tenant towards rent and consequently it (the Court) felt necessary that the said finances should have been secured with the Nazir of this Court and that was rightly adjudged, at least as an interim measure, subject to the decision of the learned Judge while disposal of the pending applications, as it may deemed fit and proper, however, once the rent is deposited pursuant to the orders of the Court, which the appellant had not deposited till date, the tenant/ appellant will “not” be under the obligation to deposit the arrears of rent in compliance of Section-16(1) of the SRPO, 1979, as the tenant cannot be waxed twice. Security would not come in the way unless the tenant vacates the premises.

9. We were told that as against an order under Section-16(1) of the SRPO, 1979 in Rent Case No. 983/2022, a direct petition has been filed, which is pending adjudication. It is up to the learned single Judge to decide fate of that petition, however, insofar as the impugned order is concerned, we do not see any reason to interfere and object in the interim order as modified. To conclude the instant case, we may sum-up that the rent of the premises cannot be withheld unless the order as required under Section-12 of the SRPO, 1979 is passed entitling him (landlord) to carryout repairs and the amount as adjudged and only then tenant be permitted to withhold the amount subject to the condition that such amount as adjudged was actually spent.

10. With this understanding the appeal merits no consideration and is dismissed. Learned single Judge may dispose of the applications pending at the earliest.

(J.K.) Appeal dismissed

PLJ 2024 Karachi 87 (DB)

Present: Muhammad Junaid Ghaffar and Adnan-ul-Karim Memon, JJ.

HABIB NASIR SIDDIQUI and 9 others--Petitioners

versus

FEDERATION OF PAKISTAN and others--Respondents

Const. P. 4216 of 2022, decided on 27.3.2024.

CAA Employees Pay and Pension Regulations, 2014--

----Regln. 46(10)--Constitution of Pakistan, 1973, Art. 25, 199--Retirement from service--Withdrawl of orderly allowance--Discrimination--Violation of--Question of whether respondent CAA can rescind orderly allowance to petitioners without providing petitioners with a meaningful hearing--It is well-settled now that rights once accrued cannot be wiped out by a prospective amendment and benefits cannot be taken away by an amendment with retrospective effect--Respondent CAA had taken away Orderly Allowance with retrospective effectwhich action on part of respondent was not appreciated at all for reason that once beneficial provision was in favour of petitioners, same could not be rescinded without providing an opportunity of hearing to persons affected by such omission--CAA had left present petitioners as well as petitioners in CP No. D-580/2020 in lurch under garb of purported amendment, though contempt proceedings were reported to be pending against CAA in aforesaid petition--Discriminatory attitude on part of CAA could not be appreciated at all which decision needs to be set at naught as same was violative of Article 25 of Constitution--Any discrimination in payment of orderly allowance after retirement amongst both these Executive Groups did not appear to be fair and justified--Petition allowed.

[Pp. 94, 95 & 96] D, E & F

Ref. 1991 SCMR 1041.

Words & Phrases--

----Intelligible differentia--expression “intelligible differentia” means difference capable of being understood, a factor that distinguishes a class from another which is capable of being understood. [P. 94] A

Constitution of Pakistan, 1973--

----Art. 25--Right to equality--Which guarantees to every person right to equality before law and equal protection of laws. [P. 94] B

Words & Phrases--

----Equal before law--The Supreme Court further held that expression “equal before law” is a declaration of equality of all persons irrespective of gender, race, religion, colour, caste, creed, status language etc, implying thereby absence of any privilege in favour of any individual. [P. 94] C

Mr. Aamir Saleem, Advocate for Petitioners.

Mr. Khalid Mehmood Siddiqui Advocate for Respondents No. 2 to 5.

Mr. Kashif Nazir, Assistant Attorney General for Respondent No. 1.

Date of Hearing: 12.3.2024.

Judgment

Adnan-ul-Karim Memon, J.--Petitioners are retired employees of the Civil Aviation Authority (‘CAA’) and seeking a declaration to the effect that they are entitled to an Orderly Allowance to be added to their pension. Additionally, they are also seeking annulment of the decision taken in the 191st meeting of CAA Board dated 25.03.2022 as well as Admin Order No. 16/2022 dated 22.06.2022, whereby Orderly Allowance with effect from 25.03.2022 was denied to them by cancelling the earlier Admin Order No. 15/2022 dated 20.06.2022.

1. The grievance of the petitioners is that they retired after 1st August 2019 in EG-07 (Executive Group) as Additional Directors from CAA and after the transformation of the new service structure under Para 13 of CAR’s-2014, they were allowed Orderly Allowance in addition to their entitled pension. Per petitioners, the respondent CAA has discontinued their Orderly Allowance by omitting Regulation No. 46(10) of Chapter IV (Emoluments) of CAA Employees Pay and Pension Regulations, 2014 (‘CAA Regulations-2014’) vide Admin Order dated 16/2022 dated 22.06.2022. As per petitioners, all the retired employees from EG-08 and above are still receiving such allowance except the petitioners, whereas EG-07 & EG-08 positions are of the same Executive Group, which is discriminatory treatment and as per the decision of 179th PCAA Board meeting held on 01.08.2019, the petitioners cannot be deprived of their vested right of pensionary benefits.

2. Mr. Aamir Saleem learned counsel for the petitioners has submitted that the colleagues of the petitioners filed C.P No. D-580 of 2020 before this Court (re-Syed Mansoob Ahmed Bukhari and 28 others v Civil Aviation Authority and others) which was disposed of with the following direction:-

“In the light of the foregoing discussion, the matter of the Petitioners is referred to the Competent Authority of Respondents on the issue of inclusion of Orderly Allowance in pensionable; emoluments of the petitioners under law and dicta laid down by the Honorable Supreme Court of Pakistan, in the above-referred matter, as well as the observation made in the preceding paragraphs, within two months from the date of receipt of the order of this Court.

On 25.08.2021, after hearing the arguments, we have allowed this petition and these are the reasons for the same.”

1. As per learned counsel in compliance with the aforesaid order the CAA took the following decision in its 191st meeting dated 25.03.2022 and issued Admin Order No. 16/2022 dated 22.06.2022, whereby omitted Regulation 46(10) of the CAA Regulations, 2014 and declined Orderly Allowance to the petitioners with effect from 25.03.2022:-

“Decision

1. After undertaking a comprehensive review of its earlier decisions on the matter, the CAA Board decided to withdraw the admissibility of Orderly Allowance to retiring/retired Additional Directors (EG-07)”

2. Learned counsel further submitted that the petitioners are also affected by the aforesaid decision of the CAA Board withdrawing the Orderly Allowance to retiring/retired Additional Directors (EG-07) who have filed this petition based on discrimination; that the CAA is allowing the same Orderly Allowance to EG-08 retiring officers and above in addition to their pension, who retired after first August 2019; that CAA to circumvent the order dated 25.08.2021 passed in C.P. No. D-580/2020 have issued the Admin Order No. 16/2022 dated 22.06.2022 whereby petitioners were disallowed to receive Orderly Allowance with effect from 25.03.2022 by omitting the Regulation No. 46(10) of CAA Employees pay and pension Regulation 2014 (Revised Version 2019) and cancelled earlier Admin Order No. 15/2022 dated 20.06.2022 without amending the law. For convenience sake, an excerpt of Regulations No. 46 (9 & 10) is reproduced as under:-

3. CALCULATION OF EMOLUMENTS

(1) -------

(2) -------

(3) ------

(4) -------

(5) -------

(6) ------

(7) -------

(8) -------

(9) Employees of EG-08 and above shall be entitled to orderly allowance in addition to entitled pension.

(10) Employees of EG-07 and above shall be entitled to orderly allowance in addition to entitled pension.

1. At this juncture, we enquired from the learned counsel for the petitioners as to how this petition is maintainable against the vires of law i.e. amendment made by the CAA Board by omitting Regulation 46(10) of Employees Pay and Pension Regulation, 2014.

2. The learned counsel for the petitioners has submitted that all retired employees in the EG-07 Category are aggrieved by the omission of Regulation 46(10) of Employees Pay and Pension Regulation 2014 vide Admin Order 16/2022. He further contended that petitioners stood retired before the cut-of date i.e. 01.08.2019 and they were being paid the pension, including the Orderly Allowance, which has now been declined with effect from 25.03.2022 as per Admin Order 16/2022 dated 22.06.2022 and this was the reason the colleagues of the petitioners filed the C.P. No. D-580/2020 before this Court which was disposed of with a direction to the Competent Authority of CAA to decide the issue of inclusion of Orderly Allowance in pensionable; emoluments of the petitioners in the aforesaid case under law and dicta laid down by the Honorable Supreme Court of Pakistan in the case of I.A Sherwani & others v Government of Pakistan 1991 SCMR 1041. However, the CAA to avoid paying the Orderly Allowance to the pensioners amended Regulation 46(10) of Employees Pay and Pension Regulation 2014, by denying the same benefit to the petitioners who were earlier receiving the Orderly Allowance, which is a discriminatory action on the part of CAA and in violation of the dicta laid down by the Supreme Court in the case of I.A Sherwani as the retired officer(s) of EG-08 are already receiving the Orderly Allowance in addition to their pension however the officers who retired after 01.08.2019 have been left out. Per learned counsel, the EG-07 and EG-08 service group positions are of the same Executive Groups and referred to the (Classification of post) as disclosed in the memo. of the petition and submitted that petitioners have been discriminated against. For convenience sake, the Table of Service Group of CAA Employees is reproduced as under:

| | | | | --- | --- | --- | | Existing Pay Group | Revised CAA Pay Group | Service Group | | P.G-01 | SG-01 | Support Staff Group | | P.G-02 | SG-02 SG-03 | | P.G-03 | SG-04 | | P.G-04 | SG-05 SG-06 | T&A Staff Group | | P.G-05 | SG-07 SG-08 SG-09 | | P.G-06 | SG-10 SG-11 | | P.G-07 | EG-01 EG-02 | Executive Group | | P.G-08 | EG-03 EG-04 | | P.G-09 | EG-05 EG-06 | | P.G-10 | EG-07 EG-08 | | P.G-11 | EG-09 | | ---- | EG-10 |

1. At this stage, learned counsel for the respondent CAA has submitted that EG-07 is a junior position i.e. Additional Director/ TATCO Grade II whereas EG-08 position is Senior Additional Director/ TATCO grade -1 therefore there is much difference between the two positions i.e. EG-07 and EG-08.

2. To the aforesaid assertion, learned counsel for the petitioners has submitted that EG-8 is equivalent to EG-07 and there is only a post of Additional Director EG-07, whereas there is no post of Senior Additional Director EG-08 in rules, which is only a move-over incentive given to EG-07 officers on seniority basis; and is not a promotion post as both EG-07 and EG-08 are same Executive Group as well as of Service Group as shown in the aforesaid Table; that as per Admin Order 04/2018 dated 19.02.2018 the retired officers of EG-08 and above are granted Orderly Allowance in addition to their entitled pension and this was the reason the CAA Board in its 179th Board Meeting amended CAA Regulation 2014 to 2019 extended Orderly Allowance to EG-07; again vide Admin order No. 27 of 2019 dated 06.09.2019 the retired officers of EG-07 were given Orderly Allowance with rider that the officers who had retired on or after 01.08.2019. Learned counsel also referred to the order 29.06.2022 passed by the Single Bench of the Islamabad High Court Islamabad in Writ Petition No. 2440 of 2022 (re-Muhammad Anwar Khattak and others v Civil Aviation Authority and others) as well as the order dated 07.07.20222 passed by this Court in C.P. No. D-580 of 2020 and submitted that the Admin Order No. 16/2022 dated 22.06.2022, terminating the entitlement of retired employees in EG-07 to the Orderly Allowance with effect from 25-03-2022 and the resultant deductin of the Orderly Allowance already paid have been suspended and the matter is pending adjudication on the subject issue as such the respondent CAA cannot take resort to the subject Admin Order and refuse the Orderly Allowance to the petitioners based on such discriminatory amendments made in Regulation No. 46(10) of CAA Employee’s Pay and Pension Regulation, 2014 without proper amendment as provided under the law by issuing the Executive order. He prayed for annulment of the purported amendment and Admin Order No. 16/2022 with direction to the CAA to pay the Orderly Allowance to the petitioners from the date of entitlement.

3. On the contrary, learned counsel representing the CAA has referred to the objections/comments filed on behalf of respondents Nos. 2 to 4 and has submitted that the CAA Board had approved Orderly Allowance to the retired EG-07 officers with effect from 01.08.2019 in addition to entitled pension but withdrew the same from 25.03.2022 which explicitly show the said allowance had never been part of the entitled pension and was extended as an additional benefit and it is prerogative of the CAA to omit/amend the law and the petitioners have no right to call in question such amendment through this petition which even otherwise the Admin Order is issued without discrimination as per policy decision made by CAA on the point of similarity of EG-07 and EG-08, he submitted that both categories of officers are not of the same group as portrayed by the petitioners as the said allowance was never a part of the pension of the petitioners as officers of EG-07. He has further contended that Regulation No. 46(10) has been omitted as such the petitioners are no longer entitled to ask for Orderly Allowance. On the point of approval of Finance Division, he submitted that there is no requirement of law that amendment so made through minutes of the meeting of CAA Board to be approved by the Finance Division as representative of the Finance Division is the member of CAA Board.

4. Learned Deputy Attorney General representing respondent No. 1, has adopted the arguments of learned counsel representing respondent-CAA.

5. We have heard the learned counsel for the Petitioners, learned counsel for the Respondent-CAA, and learned AAG for Respondent No. 1 and have perused the material available on record minutely with their assistance.

6. In view of the above position of the case, the questions involved in this petition are four-fold:-

(i) Whether this Court while exercising the power of judicial review has the authority to interfere in policy matters of the CAA whereby they have decided to omit Regulation 46(10) of the civil Aviation Authority Employees Pay and Pension Regulations, 2014 (Revised version 2019).

(ii) Whether there was/is classification in EG-07 and EG-08 Executive Service Group was based on intelligible differentia and contrary to Article 25 of the Constitution of the Islamic Republic of Pakistan, (iii) Whether the CAA can classify and sub-classify EG-07 and EG-08 Executive Group to grant Orderly Allowance.

(iv) Whether the CAA can nullify the effect of the order dated 25.08.2021 passed by this Court in C.P. No. D-580 of 2020 by amending the CAA Regulations.

1. Primarily, we have to determine whether there is a classification between two Executive Groups i.e. EG-7 and EG-8 based on intelligible differentia. On this issue, the Supreme Court in the case of House Building Finance Company Ltd. v. Muhammad Irfan Khan (2020 SCMR 98) has discussed the issue of ‘intelligible differentia’, and held that the word “differentia” means an attribute that distinguishes one entity from another, especially an attribute that distinguishes one species from others of the same genus. The expression “intelligible differentia” means difference capable of being understood, a factor that distinguishes a class from another which is capable of being understood. The Supreme Court has also dilated upon Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973, which guarantees to every person the right to equality before the law and the equal protection of the laws. The Supreme Court further held that the expression “equal before the law” is a declaration of equality of all persons irrespective of gender, race, religion, colour, caste, creed, status language etc, implying thereby the absence of any privilege in favour of any individual.

2. Coming to the main issue, it appears that through the impugned decision in its 191st meeting dated 25.03.2022, the CAA Board withdrew the Orderly Allowance to the petitioners / retiring/ retired Additional Directors (EG-07). The reason as furnished by the CAA is that they are paying to the petitioners pension, and the Orderly Allowance is meant for senior positions, i.e. Senior Additional Directors (EG-08), hence, the petitioners are not liable to pay the Orderly Allowance to them, after their retirement from service; that there is difference between EG-08 and EG-07 Executive group; that the competent authority can amend the Regulation 46 (10) whereby employees of EG-07 and above were earlier held entitled to Orderly Allowance in addition to their entitled pension and now in view of recent amendment in sub-regulation (10) of Regulation 46, the petitioners are no more entitled to Orderly Allowance with effect from 25.03.2022.

3. We have scanned the documents and noticed that the Government of Pakistan Finance Division (Regulations) vide Office Memorandum dated 24.12.2012 took the policy decision and approved that the retired officers in BPS-20 and above shall be paid special additional pension equal to the Orderly Allowance admissible to the serving officers with effect from 01.01.2013. Consequently, the CAA issued Admin Order 27/2019 dated 06.09.2019 allowed the employees of EG-7 and above who stood retired on or after 1st August 2019 to the benefit of Orderly Allowance in addition to their entitled pension which continued till they took a U-turn and decided to withdraw admissibility of Orderly Allowance to the petitioners/retired Additional Directors (EG-7).

4. The question is whether the respondent CAA can rescind the Orderly Allowance to the petitioners without providing the petitioners with a meaningful hearing. It is well-settled now that rights once accrued cannot be wiped out by a prospective amendment and the benefits that were acquired under existing rules cannot be taken away by an amendment with retrospective effect. However, the respondent CAA has taken away the Orderly Allowance with retrospective effect vide Admin Order No. 16/2022 dated 22.06.2022 which action on the part of respondent CAA is not appreciated at all for the reason that once beneficial provision was in favour of the petitioners, the same could not be rescinded without providing an opportunity of hearing to the persons affected by such omission.

5. The analogy so put forward by the respondent-CAA has already been discarded by this Court in C.P. No. D-580/2020 because the Respondent-CAA imposed a rider in the earlier Admin order concerning retirement age of employees of EG-07 on or before 1st August 2019, as such it does not absolve them from paying separately the “Orderly Allowance”, which was being paid to the petitioners in EG-07 as such it will not be just and proper to decline the relief to the petitioners on the above technical aspect that CAA has omitted the provision of the Orderly Allowance to be paid to the petitioners. Additionally, to deprive the petitioners in CP No. D-580/2020 against the decision that came in favour of those petitioners and now the CAA authority has also deprived the petitioners who were already receiving the Orderly Allowance and on that analogy, the petitioners in CP No. D-580/2020 filed the petition, which was allowed.

19. From the above facts and circumstances of the case, it is inferred that the CAA has left the present petitioners as well as petitioners in CP No. D-580/2020 in lurch under the garb of purported amendment, though the contempt proceedings are reported to be pending against CAA in the aforesaid petition. This discriminatory attitude on the part of CAA cannot be appreciated at all which decision needs to be set at naught as the same is violative of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973.

1. In the present case, the petitioners stood retired before the cut-off date as discussed supra, however, the orderly allowance was being paid to the employees of EG-08 and above, and thus, the classification made cannot be regarded as reasonable as discussed supra. This Act of CAA being discriminatory to the present Petitioners serving in Executive Group-07 is further evident from the fact that initially EG-07 and EG-08 were in same Pay Group i.e. PG-10. Though subsequently, Pay Group PG-10 has been now bifurcated into EG-07 & EG-08; however, the various allowances which are admissible to both these categories of employees as per the Second Schedule (Regulation-16 of the CAA) Service Regulations, 2014 (Revised version-2019) are identical in a all respect. For example, EG-07 & EG-08 are entitled to an entertainment allowance of Rs. 4500/-each. Similarly, both these Executive Groups are further entitled for a project allowance for up to Rs. 65000/-per month and in the same line the instructional allowance for these groups is also the same i.e. up to Rs. 65000/-per month. Going down further in the head of ancillary grant and cost EG-07 and EG-08 have been bracketed together for a similar/ identical benefit in the following manner:-

“2. EG-07 to EG-08

a. Cost of one Split A/C (energy saver), Refrigerator (energy saver) and laptop once in 5 year as determined by the concerned Directorate from time to time.

b. Rs. 80,000/-be paid as furnishing grant once in EG-07 & EG-08 c. Cell phone minimum of 64 GB capacity

d. One club membership”

1. The above categorization of both these Executive Groups at par in various allowances clearly reflects that all along they were bracketed in the same Pay Group and despite splitting PG-10 in EG-07 & EG-08, most of the allowances are identical and equal. Therefore, any discrimination in the payment of orderly allowance after retirement amongst both these Executive Groups does not appear to be fair and justified; rather amounts to discrimination, for no plausible reason whatsoever by non-inclusion of orderly allowance in their monthly pensionary benefits has been assigned. As the principle of equality before the law has been applied by the Supreme Court of Pakistan in matters of pay and pension in the case of I.A. Sherwani supra.

22. Touching to the last proposition, it is well-settled law that a legislative act to nullify a judgment, without taking away its basis, is an impermissible exercise. Whereas in the present case, this Court in the case of Syed Mansoob Ahmed Bukhari and 28 others as discussed supra, directed the Competent Authority for inclusion of Orderly Allowance in pensionable; emoluments of the petitioners under law and dicta laid down by the Honorable Supreme Court of Pakistan, in the above-referred matter, as well as the observation made in the preceding paragraphs, however the respondent CAA without taking away the basis of the order omitted sub-regulation 10 of Regulation 46, which exercise amounts to nullify the effect of the order, which is not permissible under the law.

1. In view of the above facts and circumstances of the case, this petition is allowed with the direction to place the case of petitioners at par with EG-08 retired officers and allow the Orderly Allowance to them from the date when they were receiving the said allowance, without discrimination.

(Y.A.) Petition allowed

PLJ 2024 Karachi 97

Present: Yousuf Ali Sayeed, J.

HARBIN ELECTRICAL INTERNATIONAL COMPANY LIMITED and another--Plaintiffs

versus

SIDDIQ SONS LIMITED and another--Defendants

Suit No. 575 of 2021, heard on 6.3.2024.

Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 (XVII of 2011)--

----S. 4--Execution of engineering, procurement and construction of infrastructure projects--Supply contract--Supply of coal-based power project--Construction contract--Project coordination agreement--Certain work was carried out--Non-obtaining of requisite regulatory approvals--Termination of contracts--Acknowledgement of work--USD component was remained outstanding--Application for stayed suit proceedings--Arbitration clause--Parties must abide by chosen method for resolution of disputes as per arbitral mechanism laid down in arbitration agreement and a Court of contracting State dealing with such a matter was mandatorily required to refer matter to arbitration at request of one of parties to that agreement--The arbitration clause in TSA had already been set out and relevant words thereof were “any controversy or claim of any nature arising out of relating to that Agreement” should be finally settled by arbitration in accordance with Rules for Arbitration of International Chamber of Commerce, at London, thus providing for as broad a scope as was conceivable--Mere fact that suit was necessitated reflects that there was a dispute, and plea taken on part of Plaintiffs by way of opposition to Application at hand on that score was misconceived--Application allowed. [Pp. 101, 102] A, B & C

Mr. Muhammad Shahzad and Muhammad Abdullah, Advocates for Plaintiffs.

Mr. Muhammad Umer Soomro and Danish Nayyar, for Defendants.

Date of Hearing: 6.3.2024.

Order

The Plaintiffs have brought this Suit claiming an amount of US Dollars 3.8 Million or equivalent amount in Pak rupees in terms of a Termination and Settlement Agreement dated 02.03.2018 executed between them and the Defendants (the “TSA”), who have since come forward through an Application under Section 4 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards), Act, 2011 (the “2011 Act”), with a motion that the Suit be stayed in view of Clause 7 of the TSA, encapsulating an Arbitration Agreement between the parties.

1. The Plaintiff No. 1 is said to be an engineering company incorporated under the laws of the People’s Republic of China, engaged in the execution of engineering, procurement and construction of infrastructure projects internationally, whereas the Plaintiff No. 2 and as well as the Defendants No. 1 and 2 are limited companies incorporated in Pakistan. The State Bank of Pakistan, albeit originally arrayed as a defendant, was omitted from the proceeding on the statement made by counsel for the Plaintiff that the Suit was not being pressed to its extent.

2. The backdrop to the Suit, as extrapolated from a reading of the Plaint, is that the Defendants entered into a Supply Contract with the Plaintiff No. 1 on 16.02.2016 (as then amended vide Amendment No. 1 dated 15.04.2016) for the procurement of supplies for purpose of a 350MW coal-based power project sought to be developed at the time at Port Qasim, Karachi, as well as a Construction Contract with the Plaintiff No. 2 of the same date for the construction of that project. It is said that the parties also contemporaneously entered into a
Project Coordination Agreement, and the Plaintiffs thus stood appointed as the engineering, procurement, and
construction contractors of that project. It is said that pursuant to those, the Plaintiffs carried out certain works for the project and incurred costs in that regard, however the same came to be abandoned as the Defendants were unable to obtain the requisite regulatory approvals. As such, those contracts were terminated, with the parties entering into the TSA wherein the Defendants acknowledged the work done by the Plaintiffs and whereby the parties agreed to settle the claim equivalent to sums of PKR 50,000,000/-along with USD 3,800,000/-to be paid by the Defendants to Plaintiffs. Per the Plaintiffs, the Rupee amount was paid, however the USD component remains outstanding despite various reminders, hence the Suit.

3. Proceeding with the submissions, learned counsel for the Defendants invited attention to Clauses 6 and 7 of the TSA, which provide as follows:-

“6. GOVERNING LAW

6.1 This Agreement shall be governed by and shall be construed in accordance with the laws of England and Wales.

1. CLAIMS, DISPUTES AND ARBITRATION

7.1 In the event the Parties are unable to resolve any controversy or claim of any nature arising out of relating to this Agreement, the controversy or claim shall be finally settled by arbitration in accordance with the Rules for Arbitration of the International Chamber of Commerce, as in effect on the date of this Agreement (the “ICC Rules”), by three (3) Arbitrators, each Party shall appoint one Arbitrator whereas the third Arbitrator shall be appointed as the Chairman in accordance with the ICC Rules. No arbitrator appointed pursuant to this Section shall be a national of the jurisdiction of either Party nor shall any arbitrator be an employee or agent or former employee or agent of the Parties. Arbitration in accordance with this Section shall be the exclusive method for dispute relation.

7.2 The arbitration under this Section shall be conducted in London. The language of the arbitration shall be English. The award rendered shall apportion the costs of the arbitration. The Parties agree that the arbitrator need not be bound by strict rules of law where they consider the application thereof to particular matters to be inconsistent with the spirit of this Agreement and the underlying intent of the Parties, and as to such matters their conclusions shall reflect their judgment of the correct interpretation of the relevant terms hereof and the correct and just enforcement of this Agreement in accordance with such terms.”

7.3 The award rendered shall be in writing and shall set forth in reasonable detail the facts of the Dispute and the reasons for the arbitrator’s decision. The decision of the arbitrators shall be final and binding upon the Parties. The prevailing Party may enforce such award in any jurisdiction, including any jurisdiction where the other Party’s assets may be located. Except as the Parties otherwise agree in writing pending the final resolution of any claim or controversy or arbitration proceeding.”

1. He submitted that the claim for recovery under the TSA fell within the scope of Clause 7 and the Suit accordingly ought to be stayed in terms of Section 4 of the 2011 Act in view of that clause.

2. Conversely, learned counsel for the Plaintiffs sought to contend that Section 4 of the Act was not attracted under the circumstances, as there was no dispute between the Parties to be referred to arbitration as the Defendants had not denied execution of the TSA or their obligations thereunder building up to the Suit, but had merely forestalled performance in fulfilment thereof on one pretext or the other. He submitted that even during the course of the Suit no denial of liability had come to the fore.

3. Having considered the arguments advanced in the matter, it merits consideration that the 2011 Act was promulgated in order to give legislative effect to the New York Convention, Section 4 of which (corresponding to Article II of the Convention) stipulates that:

4. Enforcement of arbitration agreements.--(1) A party to an arbitration agreement against whom legal proceedings have been brought in respect of a matter which is covered by the arbitration agreement may, upon notice to the other party to the proceedings, apply to the Court in which the proceedings have been brought to stay the proceedings in so far as they concern that matter.

(2) On an application under sub-section (1), the Court shall refer the parties to arbitration, unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed.

1. In the same vein, Paras 2 and 3 of Article II of the 2011 Act provide as follows:-

2. The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.

3. The Court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.”

4. As is apparent, in Section 4, the legislature has used both the expressions “may” and “shall” in different parts thereof so as to enjoin an obligation on the Court of a contracting State to refuse to entertain an action in a matter in respect of which the parties have made an agreement in writing to refer disputes which may arise between them. As such, a Court concerned with a case arising under that Section is to stay the proceedings in the suit where the specified conditions are satisfied, and has no discretion in the matter unless the case falls within the excepted categories mentioned in the Section itself.

5. The conditions as are required to be fulfilled for invoking Section 4 are:

(1) there must be an agreement to which Article II of the Convention set forth in the Schedule applies.;

(2) a party to that agreement must commence legal proceedings against another party thereto;

(3) the legal proceedings must be in respect of any matter agreed to be referred to arbitration in such agreement, in as much as the Court has to be satisfied that there are disputes between the parties with regard to matters agreed to be referred. This relates to the scope and effect of the arbitration agreement, touching the issue of the arbitrability of the claim.

1. Conversely, the exceptions that can be spelt out from Paras 1 and 3 of Article II, on the basis of which a Court can refuse enforcement, are that:-

(1) the subject matter of the dispute is not capable of settlement by arbitration;

(2) the agreement is null and void;

(3) the agreement is inoperative; and

(4) the agreement is incapable of being performed.

1. There is no other exception that can be gathered from Article II, in pursuance of which the Court can decline to recognise and enforce an arbitration agreement in terms of Section 4. Therefore, except for one of the specified contingencies, the parties must abide by the chosen method for resolution of disputes as per the arbitral mechanism laid down in the arbitration agreement and a Court of the contracting State dealing with such a matter is mandatorily required to refer the matter to arbitration at the request of one of the parties to that agreement.

2. Here, it has not been disputed that Clause 7 of the TSA constitutes an arbitration agreement to which Article II of the Convention set forth in the Schedule applies. Nor is it disputed that the Plaintiffs and Defendants are parties to that agreement and that this Suit has been brought in respect of the TSA so as to enforce the same against the Defendants. As it stands, the only contention of counsel for the Plaintiff in opposition to the Application under Section 4 is that the claim advanced through the Suit does not present any dispute that can be referred to arbitration, with it being contended that this is so as no issue has been raise at any stage so as to cast doubt that the sum claimed by the Plaintiffs is due and payable by the Defendants, with the case simply being one of their unwillingness to pay.

3. Normally, the answer to the question of whether a dispute is referrable would depend upon (a) what disputes are covered by the arbitration agreement and (b) what is the real nature of the claim(s) advances. The first aspect obviously depends upon the language used in the arbitration agreement, whose construction would be relevant for deciding whether it embraces even questions of its existence, validity and scope, particularly the last, which bears on the arbitrability of the claims, and secondly whether the claims fall within its scope or purview. In other words, is the language of the arbitration agreement wide enough to cover either or both of the questions.

4. The arbitration clause in the TSA has already been set out herein above and the relevant words thereof are “any controversy or claim of any nature arising out of relating to this Agreement” shall be finally settled by arbitration in accordance with the Rules for Arbitration of the International Chamber of Commerce, at London, thus providing for as broad a scope as is conceivable.

5. Furthermore, the question at hand does not require much analysis as a dispute is nonetheless a dispute between the parties and remains so even though there may be no valid defence in law to the claim being made in the legal proceedings that have been commenced. Suffice it to say that the mere fact that the suit was necessitated reflects that there is a dispute, and the plea taken on the part of the Plaintiffs by way of opposition to the Application at hand on that score is misconceived.

6. In view of the foregoing, the Application under Section 4 of the 2011 Act is allowed with the result that the Suit stands stayed and with the parties being referred to arbitration in accordance with Clause 7 of the TSA.

(Y.A.) Application allowed

PLJ 2024 Karachi 103 (DB)

Present: Muhammad Saleem Jessar and Jawad Akbar Sarwana, JJ.

MUNAWAR ALI SOOMRO--Appellant

versus

NATIONAL BANK OF PAKISTAN and other--Respondents

1st Civil Appeal No. D-05 of 2020, decided on 27.3.2024.

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

----Ss. 3(2), 9 & 10--Staff Service Security Rules, 1973, R. 38--Finance facility--Default in payment obligations--Suit for recovery--Leave to defend--Dismissed--Suit was decreed--Appellant was cash custodian--Embezzlement of bank funds--Suspension--Writ petition—Allowed--Appeal--Dismissed--Civil litigation--Issuance of demand notices--Compromise--Challenge to--There absolutely no ground for Appellant-Customer to claim that he was not been heard when Banking Court had considered his Application for Leave to Defend and dismissed same--Both Appellant and his Counsel remained absent during hearing of leave to defend application--Banking Court had no reason to traverse beyond scope and subject matter of Banking Suit while deciding application for leave to defend--At that time, Respondent-Bank was not interested in any settlement and Banking Court, exercising special jurisdiction under FIO, 2001, had no reason to decide Application for Leave to Defend beyond parameters of FIO, 2001--Counsels for parties have accepted certain settlement terms--Appeal partly allowed.

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

Mr. Ashique Hussain Kalhoro, Advocate for Appellant.

Mr. Bashir Ahmed Dargahi, Advocate for Respondent Nos. 1

& 2.

Mr. Oshaq Ali Sangi, Assistant Attorney General.

Date of hearing: 28.2.2024.

Judgment

Jawad Akbar Sarwana, J.--Through this 1st Civil Appeal, the appellant, Munwar Ali Soomro s/o Lal Muhammad Soomro (hereinafter referred to as the “Appellant-Customer”), has challenged the impugned Judgment and Decree dated 11.02.2020 passed by the Banking Court No. 1 at Larkana in favour of National Bank of Pakistan Limited (“NBP”)(hereinafter referred to as “Respondent-Bank”) in Banking Suit No. 74/2009 filed jointly and severally against the Appellant-Customer, and his two Guarantors of the said finance facility, namely, Ashraf Ali s/o Arbab Ali Abbasi and Khalid Hussain s/o Muhammad Qasim Soomro (hereinafter referred to singly as “the Guarantor” and jointly as “the two Guarantors”) under the Financial Institutions (Recovery of Finances) Ordinance (“FIO”), 2001. The Appellant-Customer should have impleaded the two Guarantors as Respondents in the titled Appeal, which he has not.

1. The brief facts of the case are that the Appellant-Customer was a former employee of the Respondent-Bank working as O.G.-1/Cash Custodian at the Respondent-Bank’s Naudero Branch. On 18.04.2012, the Appellant-Customer availed finance facility from the Respondent-Bank towards a house-building loan. The loan was to be repaid over a period of 15 years by 15.04.2027; however, the Appellant-Customer defaulted on the repayment of his financial obligations to the Respondent-Bank.

2. In May 2013, the Respondent-Bank alleged that the Appellant-Customer committed fraud, embezzled bank funds, and suspended him from service. Aggrieved by this Suspension Order dated 13.05.2013, the Appellant-Customer filed C.P. No. D-180/2015 in the High Court of Sindh Circuit Court Larkana and obtained a favorable Order dated 26.01.2017 from the Division Bench directing the Respondent-Bank to clear all his dues for the period from 13.05.2013 to 31.08.2016 in accordance with law. The Respondent-Bank filed an appeal to the Supreme Court of Pakistan, CPLA No. 979/2017, which was dismissedvide the Supreme Court’s Order dated 08.01.2016 with the following observation:

“4. A look at the impugned Order would reveal that it was passed with the consent of the petitioner [NBP]. The points raised before us have neither been raised in the comments filed by the petitioner nor at the time the impugned order was passed, When this being the case, we wont reverse or upset the impugned order on the basis of the grounds which appear to have surfaced during the course of arguments addressed at the bar before this Court.”

1. During the above-mentioned civil litigation between the Appellant-Customer and the Respondent-Bank, the Bank issued demand Notices on 10.08.2016, 26.10.2016 and 27.03.2017, asking the Appellant-Customer to fulfill his payment obligation under the finance, but to no avail. Accordingly, on 26.08.2019, the Respondent-Bank filed the above-mentioned Banking Suit No. 74/2019. After dismissing the application for leave to defend vide Order dated 16.01.2020 and recording of evidence, the Banking Court No. 1 at Larkana passed the impugned Judgment and Decree dated 11.02.2020 in the sum of Rs. 4,534,734/-plus costs and cost of funds as admissible as per law till the realization of the above amount.

2. The learned Counsel for the Appellant-Customer contended that the Banking Court did not give him an opportunity to be heard and did not consider the impact of the Order dated 26.01.2017 passed by the Division Bench of this Court in CP No. D-180/2015 against the Respondent-Bank. Hence, he claimed that the impugned Judgment and Decree were liable to be set aside.

3. The learned Counsel for the Respondent-Bank argued that the Appellant-Customer was its former employee who had committed fraud and embezzled the bank. The Counsel contended that the Appellant-Customer was a habitual defaulter and that apart from Banking Suit No. 74/2019 decreed against him (the subject matter of this Appeal), several other decrees were pending against him in the Banking Court No. 1 at Larka No. He submitted the following details by way of a Statement dated 28.02.2024, which included a Statement prepared by the AVP/Chief Branch Manager, NBP, Main Branch Larkana:

| | | | --- | --- | | (i) Ex. No. 48/2020: Decreetal amount Rs. 3,883,106.75 as per Judgment and Decree dated 28.09.2020 passed by the Banking Court No. 1 at Larkana, including cost of funds upto 31.07.2022 (House Building Finance Loan in Banking Suit No. 74/2019 . . . . . . . | Rs. 4,534,734.00 | | (ii) Decreetal amount Rs. 1,270,526 as per Judgment and Decree dated 28.09.2020 passed by the Banking Court No. 1 at Larkana, including cost of funds upto 31.07.2022 (Motor Car Purchase Loan) in Banking Suit No. 42/2020 . . . . . . . . | Rs. 1,326,908.00 | | (iii) Decreetal amount of Rs. 120,148 as per Judgment and Decree dated 28.09.2020 passed by the Banking Court No. 1 at Larkana, including cost of funds upto 31.07.2022 (Computer Purchase Loan) in Banking Suit No. 41/2020. . . . . . . | Rs. 1,25,512.00 |

1. The learned Counsel for the Appellant-Customer was supplied a copy of the above Statement, and he did not object to its contents. Mr. Bashir Ahmed Darghai, representing the Respondent-Bank, conceded that the Respondent Bank, as of 28.02.2024, owed the Appellant-Customer Rs. 3,131,709.75 as per Rules 38 of SSR (Staff Service Rules, 1973) Statutory Rules. He proposed that the Respondent-Bank would adjust/set off the sum of Rs. 3,131,709.75 against the Decretal amount outstanding against the Appellant-Customer. He added that the Bank would reserve the right to pursue recovery of the balance decretal amount against the Appellant-Customer before the Executing Court in Execution Application No. 48/2020 pending before the Banking Court No. 1 at Larkana. The learned Counsel for the Appellant-Customer did not object to the proposal made by the Respondent-Bank’s Counsel, as noted above and pleaded that this bench first determine the legality of the impugned Judgment and Decree challenged in this appeal, and if this Court concluded that the impugned Judgment and Decree were in accordance with the law, then the terms and conditions of compromise were acceptable to him subject to such adjusted/modified balance decretal amount be subject to further adjustment/setoff in terms of the simple interest payable on the Appellant-Customer’s dues of salary payable from the date of the Order of the High Court of Sindh Circuit Court Larkana in CP No. D-180/2013, i.e. Order dated 26.01.2017 till realization. This bench’s Order dated 28.02.2024 recorded proceedings as follows:

“... Mr. Dargahi, also submits another simple statement showing claim of Petitioner in terms of his salaries and perks as decided by this Court on 26.1.2017 in the Const. Petition No. D-180 of 2015. He confirms that this amount payable by the Bank to the Appellant is Rs. 3,131,709.75 as of 28.02.2024. The Counsel for the Respondent Bank. . .will be satisfied if by deciding this Appeal the executing Court may be directed to adjust/ set-off the decreetal amount which includes principle markup and cost of funds up-to-date payable by the Appellant/customer to the Bank against the amount of salaries of the Appellant as per the Judgment dated 26.01.2017 payable by the Bank to the Customer including simple interest for delayed payment. After adjustment of the above sums by the Executing Court the Bank shall be at liberty to pursue its balance decreetal claim as per the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The executing Court may consider submissions of the Appellant in terms of today’s order including options for deferred payment, if any, as agreed between the parties. ...”[1]

1. We have heard the learned Counsels for both parties and the Assistant Attorney General and perused the appeal file and the R&P of Banking Suit No. 74/2019.

2. At the outset, the Appellant-Customer has identified neither any material irregularity or illegality in the impugned Judgment and Decree dated 11.02.2020. There is absolutely no ground for the Appellant-Customer to claim that he has not been heard when the Banking Court has considered his Application for Leave to Defend and dismissed the same with reasons vide its Order dated 16.01.2020. The Appellant-Customer did not raise any substantial questions of law or fact. Further, both the Appellant-Customer and his Counsel remained absent during the hearing of the leave to defend application. Further, when the Respondent-Bank in exparte evidence filed affidavit in evidence, none was present on behalf of the Appellant-Customer and no intimation was received from him. The Bank’s witness could have been cross-examined by the Appellant-Customer but he chose not to do so. Ultimately, the Banking Court passed the impugned Judgment with reasons and decreed the Banking Suit No79/2019 against the Appellant-Customer and the two (2) Guarantors.

3. The Banking Suit No. 74 of 2019 was defended by the Appellant-Customer and Khalid Hussain Soomro (Defendant No. 3/Guarantor), who filed a Leave to Defend Application. Meanwhile the matter proceeded ex-parte against Ashraf Ali Abbasi (Defendant No. 2/Guarantor). The two Guarantors did not file any appeal against the Impugned Judgment and Decree and have accepted their liability. The Appellant-Customer alone preferred an appeal under Section 22 of FIO, 2001.

4. Additionally, the learned Counsel for the Appellant-Customer’s plea that the Banking Court should have adjusted the impugned judgment and decree against the amount payable by the Respondent-Bank to the Appellant-Customer is not persuasive. The Appellant-Customer had no reason to claim set-off in the Banking Suit No. 74/2019 against the Order dated 26.01.2017 passed by the High Court of Sindh Circuit Court Larkana in CP No. D-180/2013. The Banking Court was tasked to decide Banking Suit No. 74/2019 under the FIO, 2001. The Banking Court had no reason to traverse beyond the scope and subject matter of the Banking Suit while deciding the application for leave to defend. Further, at that time, the Respondent-Bank was not interested in any settlement and the Banking Court, exercising special jurisdiction under FIO, 2001, had no reason to decide the Application for Leave to Defend beyond the parameters of Section 10 of FIO, 2001. Additionally, even after deciding the leave to defend application and recording evidence, the Division Bench Order dated 26.01.2017 was alien to the proceedings before the Banking Court, and in the facts and circumstances of the case, the Banking Court rightly did not take up the issue. We are at ad idem with the decision of the Banking Court. The subject matter of the Division Bench’s Order dated 26.01.2017 in writ jurisdiction has no nexus with the financial obligation of the Appellant-Customer under the banking jurisdiction. Accordingly, the impugned Judgment and Decree passed by the Banking Court is proper and does not call for any interference.

5. We now come to the next aspect of the matter. While at this stage, we are inclined to accept the impugned Judgment and Decree dated 11.02.2020, we are cognizant that the Counsels for the parties have accepted certain settlement terms, inter se, that will modify the decree dated 11.02.2023 passed by the Banking Court No. 1 at Larkana. We recorded these in this Bench’s Order dated 28.02.2024 (reproduced in paragraph 7 above), which are now part of this Appellate Judgment.

6. For the reasons recorded herein above, we are inclined to partly allow the 1st Appeal No. D-05/2020 to the extent of the compromise between the parties as recorded herein. Further, while exercising powers under Section 151, CPC read in the light of Section 7 of FIO, 2001 and as agreed between the contesting parties during their submissions, we order that the decretal amount payable by the Appellant-Customer to the Respondent Bank, including yet to be calculated cost of funds to be determined under Section 3(2) of FIO, 2001 and costs from the date of the impugned Judgment, i.e. 11.02.2020 to the date of realization payable by the Applicant-Customer to the Respondent-Bank are adjusted/set off against the sum of Rs. 3,131,700.75 as per Rule 38 of the SSR, 1973 (Statutory Rules) payable by the Respondent-Bank to the Appellant-Customer. Additionally, the simple interest of 5% is deemed to be the reasonable rate of interest as determined by us under Section 34, CPC and will be applicable on this amount payable by the Respondent-Bank to the Appellant-Customer from 26.01.2017 upto the date of the realization. We note that the Appellant-Customer has agreed to waive his total claim for entitlement as per Rule 38 of SSR, 1980 (non Statutory Rules) of Rs. 4,142,736 as suspension pay/allowance.

7. Given the above, the Impugned Judgment and Decree stands modified in the above terms with directions to the Executing Court in Execution No. 48/2020 to adjust the decretal amount as above.

8. If after the adjustment/setoff, as above, the Appellant-Customer still has an outstanding liability payable to the Respondent-Bank against the modified decree as above, then the Respondent-Bank shall be at liberty to pursue and prosecute the same against the Appellant-Customer, in execution proceedings, in accordance with law. Office is directed to issue notice to the Banking Court No. 1 at Larkana, along with a certified copy of the Judgment, to re-commence execution proceedings in terms of this Judgment.

9. Parties shall bear their own costs.

(Y.A.) Appeal partly allowed

[1]. There are certain inadvertent typographical errors in the Order of 28.02.2024, which we have removed by placing the ellipses.

PLJ 2024 Karachi 109 (DB)

Present: Muhammad Saleem Jessar and Jawad Akbar Sarwana, JJ.

SAFDAR ALI--Appellant

versus

ZARAI TARAQIATI BANK LIMITED--Respondent

1st Civil Appeal No. S-02 of 2022, decided on 26.03.2024.

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

----Ss. 9, 10(4) & 10(12)--Finance facility--Default in payment--Suit for recovery--Application for leave to defend--Dismissed--Powers of banking Court--Proper application of law--Challenge to--SAJ miserably failed to raise his defence in terms of FIO, 2001, which required him to expressly set out amount of finance availed by him, amounts paid by him to ZTBL, identify amount actually payable, identify disputed amount, etc. application filed by SAJ was silent on all these points--Where application for Leave to Defend is rejected or where a defendant fails to fulfil conditions attached to grant of leave to defend Banking Court shall forthwith proceed to pass judgment and decree in favor of Plaintiff and against Defendant--Accordingly, in instant--When Banking Court rejected SAJ’s Leave to Defend application, it was well within its powers to pass judgment and decree in ZTBLs Banking suit--The impugned Judgment and Decree had been passed on proper appreciation of facts and law--Single Judge had not made any error while passing impugned Judgment and Decree, which required interference--Appeal dismissed. [P. 111] A, B & C

Mr. Abdul Rehman A. Bhutto, Advocate for Appellant.

Mr. Niaz Ali Ansari, Advocate for Respondent.

Mr. Oshaque Ali Sangi, Asstt. Attorney General.

Date of hearing: 21.2.2024.

Judgment

Jawad Akbar Sarwana, J.--The Appellant, Safdar Ali Jalbani (‘SAJ”), a customer of the Respondent, Zarai Taraqiati Bank Limited (“ZTBL”), has filed this 1st Civil Appeal against the impugned judgment dated 20.01.2020 and decree 21.01.2022, passed by Banking Court-I, Larkana Division in Banking Suit No. 162/2021 dismissing the Application for Leave to Defend filed by SAJ under Section 10 of the Financial Institutions (Recover of Finances) Ordinance (“FIO”), 2001.

1. The brief background of the case is that SAJ availed finance from ZTBL, securitized by a mortgage over SAJ’s properties. SAJ defaulted on his payment obligation, leading ZTBL to file a suit for recovery of finance under Section 9 of the FIO, 2001. SAJ filed an Application for Leave to Defend, and after hearing the parties, the learned Judge of the Banking Court dismissed the said Application and passed the impugned Judgment and Decree.

2. The learned Counsel for SAJ submitted a copy of the loan application under the cover of a Statement dated 21.02.2024, which was taken on record. He submitted that, as per these papers, the loan was advanced to SAJ in the year 2017, but ZTBL claimed the charge for the period pertaining to the year 2016. Therefore, ZTBL cannot claim the same for the period not availed by him. He further argued that the Banking Court dismissed his Application for Leave to Defend, and judgment was announced on the same day, which resulted in SAJ being unable to adduce evidence and defend the suit. Hence, the exparte Judgment may be set aside, and the case may be remanded to the trial Court.

3. The learned Counsel for ZTBL opposed the appeal on the ground that after the pronouncement of the alleged exparte judgment, the execution proceedings have been initiated by the Bank; therefore, at this juncture, remand of the case would be a waste of time.

4. We have heard the learned Counsels for both parties and the Assistant Attorney General and perused the appeal file and the R&P of Banking Suit No. 162/2021.

5. After ZTBL filed its banking suit against SAJ, the latter was required to raise substantial questions of law or fact in its Application for Leave to Defend, failing which the Banking Court would pass judgment and decree against SAJ. We have perused the Leave to Defend application and note that SAJ miserably failed to raise his defence in terms of Section 10(4) of FIO, 2001, which required him to expressly set out the amount of finance availed by him, the amounts paid by him to ZTBL, identify the amount actually payable, identify the disputed amount, etc. The application filed by SAJ was silent on all these points.

6. We have examined the Plaint and the supporting documents filed by ZTBL, including, inter alia, the Statement of Account duly verified under the Bankers Books Evidence Act, 1891. According to the Statement of Account, the finance was disbursed to SAJ’s bank account on 15.03.2017 in the sum of Rs. 500,000. This opening entry is reflected in the Statement as the first credit entry. There is no carry forward entry in the account, negating Counsel for SAJ’s submission that ZTBL was claiming finance advanced in prior years. Therefore, SAJ’s plea that the banking suit pertained to the finance of previous years carries no weight.

7. The learned Counsel of SAJ’s second argument that the dismissal of the leave to defend application and the passing of the judgment and decree on the same date constituted an irregularity has no legs to stand. Section 10(12) of FIO, 2001 clearly states, in no uncertain terms, that where the application for Leave to Defend is rejected or where a defendant fails to fulfil the conditions attached to the grant of leave to defend the Banking Court shall forthwith proceed to pass judgment and decree in favor of the Plaintiff and against the Defendant. Accordingly, in the instant banking suit, when the Banking Court rejected SAJ’s Leave to Defend application, it was well within its powers to pass judgment and decree in ZTBLs Banking Suit No. 162/2021.

8. We are satisfied that the impugned Judgment dated 20.01.2022 and Decree 21.01.2022 have been passed on proper appreciation of facts and law. The learned Single Judge did not make any error while passing the impugned Judgment and Decree, which requires interference. Accordingly, the 1st Appeal No. D-02/2022 is dismissed.

The parties are left to bear their own costs.

(Y.A.) Appeal dismissed

PLJ 2024 Karachi 112 (DB)

Present: Mohammad Abdur Rahman, (sic) J.

ABDUL FATTAH--Petitioner

versus

KARACHI DEVELOPMENT AUTHORITY (KDA)--Respondent

Const. P. D-5268 of 2019, decided on 19.2.2024.

Constitution of Pakistan, 1973--

----Art. 199--Amenity plot--No indenture of lease was issued in respect of two sale agreements--Issuance of mutation orders--Cancellation of allotments--Availability of remedy to petitioners--Alternative plot Direction to--The remedy that each of Petitioners would have had would be as against Ms. Naheed Jafery to maintain a claim for damages for breach of a term as to “good title” as contained in each of Agreements of Sale--Petitioners having elected not to sue Ms. Naheed Jafery for amount paid under Agreement of Sale was instead, on basis of having acquired purported rights to each of Properties, now seeking to enforce a representation made by KDA as to “good title” and instead of claiming damages were contending that they should be awarded an alternative plot--High Court did not see how for a breach of such a representation, a claim, for an alternative plot could be maintained--The remedy that would be available to Petitioner for breach of that representation would be to recover amount that was paid to KDA for allotment of each of Properties along with mark up at prevalent bank rate--Petition partially allowed. [P. 114] A, B & C

Ref. 2016 SCMR 101.

Mr. Muhammad Ali Lakhani, Advocate for Petitioner.

Mr. Khurram Ghayas, Advocate for Respondent.

Date of hearing: 19.2.2024.

Order

Mohammad Abdur Rehman, J.--Through this Petition, maintained under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the Petitioners are seeking a declaration that they are entitled to an alternative plot in an equivalent location and of an equivalent financial value in comparison to two immovable properties bearing Kiosk No. 9, Block 3, Karachi Development Authority Scheme No. 5, Karachi admeasuring 150 square yards (hereinafter referred to as the “First Property”) and Kiosk No. 10, Block 3, Karachi Development Authority Scheme No. 5, Karachi admeasuring 150 square yards (hereinafter referred to as the “Second Property”).

2 The facts in this Petition are not in dispute. The Karachi Development Authority (hereinafter referred to as the “KDA”) by virtue of two separate allotment orders, each dated 23 February 1976, allotted the First Property and the Second Property to one Ms. Naheed Jafrey. It is apparent that no Indenture of Lease had been issued in respect of either the First Property or the Second Property in favour of Ms. Naheed Jafery. Two Separate Agreements of Sale were executed by Ms. NaheedJafery in respect of each of the properties inasmuch as in March 1993, Ms. Naheed Jafery agreed to sell the First Property to the Petitioner No 1 and in April 1993 Ms. Naheed Jafery agreed to sell the Second Property to the Petitioner No. 2. As no Indenture of Lease had been executed or registered in respect of either the First Property or the Second Property by the KDA, mutation orders were issued by the KDA in favour of the Petitioner No. 1 and the Petitioner No. 2 in respect of the First Property and the Second Property respectively.

1. The KDA at some point realised that each of the properties were located within the perimeters of an armenity plot bearing Plot No. 15, Block No. 3, KDA Scheme No. 5, Karachi and which plot was designated as an amenity plot meant for park and which has since been developed as a park under the name of “Bagh-e-Ibne Qasim”. It is thus apparent that at the time when Bagh-e-Ibn Qasim was being developed it was discovered that the First Property and the Second Property had been illegally “carved out” of the amenity plot and the allotments of which were cancelled by the KDA.

2. Mr. Muhammad Ali Lakhani, has entered appearance on behalf of the Petitioners and has contended that as the KDA had illegally allotted the Said Property, he should, at the very least, be entitled to claim the market value of the First Property and the Second Property from the KDA on account of the incorrect representations that have been made by the KDA to Ms. Naheed Jafery.

3. Mr. Khurram Ghayas, has entered appearance on behalf of the KDA and while conceding to the contention that each of the properties have been illegally allotted by the KDA has relied on the reported judgement of the Honourable Supreme Court of Pakistan in the case of Province of Sindh through its Chief Secretary and 8 others vs. Syed Kabir Bokhari[1] wherein in respect of Kiosks that had been allotted to some others person, again within the perimeters of the Bagh-e-Ibn Qasim, and wherein a similar plea for an alternative plot of an equivalent value was made by the Petitioners in that Petition, the Honourable Supreme Court of Pakistan declined to direct that an alternative plot should be provided and instead directed KDA to “refund” the allotment price along with mark up.

4. We have heard Mr. Muhammad Ali Lakhani and Mr. Khurram Ghayas and have perused the record. Admittedly each of the Petitioners have no legal right, title and interest in the Said Property as it was carved out illegally from an amenity plot. That being the case we are of the opinion that the remedy that each of the Petitioners would have had would be as against Ms. Naheed Jafery to maintain a claim for damages for breach of a term as to “good title” as contained in each of the Agreements of Sale.

5. The Petitioners having elected not to sue Ms. Naheed Jafery for the amount paid under the Agreement of Sale is instead, on the basis of having acquired the purported rights to each of the Properties, now seeking to enforce a representation made by the KDA as to “good title” and instead of claiming damages are contending that they should be awarded an alternative plot. While we acknowledge, as admitted by Mr. Khurram Ghayas, that there is no dispute as between the Petitioners and the KDA that the allotment of each of the properties was illegal, that being the case we are clear that the KDA has breached its covenant as to “good title” as contained in the Indenture of lease. We do not see how for a breach of such a representation, a claim, for an alternative plot an be maintained. The remedy that would be available to the Petitioner for the breach of that representation would be to recover the amount that was paid to the KDA for the allotment of each of the Properties along with mark up at the prevalent bank rate as was held by the Honourable Supreme Court of Pakistan in Province of Sindh through Chief Secretary and 8 others vs. Syed KabirBokhari[2] and wherein it was considered that:

“5. On perusal of the record, we find that in the revised layout plan of Kehkashan, Scheme 5, Clifton, Karachi made in the year 1972, a copy of which is attached with CMA No. 4472/2011 filed by the counsel for respondent, does not anywhere reflect availability of any land or plots for the purpose of kiosks. There is land showing cross lining in front of which is an open land. In this open land perhaps the petitioner in his own hardwiring has shown to be having the deputed plots of two kiosks. Yet another copy of another revised layout plan of 1975 is attached with the same CMA, which also reflects that the similar position of land, which is shown in the revised plan of 1972 except that there is an insertion of two squares, which are shown to be located outside the cross lining area. The respondent in his letter dated 10.7.2003 addressed to the District Executive Officer, Master Plan Group of Office, CDGK has himself stated that due to error the KDA at the time of making the Master Plan of Kehkashan Clifton Scheme 5 Karachi two kiosks were not included in the master plan and requested for their incorporation in the master plan. This very letter of respondent lend support to the fact that in the master plan of Kehkashan, Scheme 5, Clifton, Karachi there was no existence of any plot for kiosks.

1. It is not the case of respondent before us that the disputed plots allotted to the respondent were the plots meant for commercial use and such also does not appear to be the position emerging on examining the two master plans as referred above. The master plan shows that the land having cross lines apparently is meant for amenity land for public use and not a space/land meant for allotment for use in commercial venture. Depiction of two squares in the revised master plan of 1975 is outside the lined area does not appear to be factually correct as has become known from the two reports; one submitted by the Deputy Nazir of High Court of Sindh and the other of Office Incharge of this Court in which the disputed plots are shown to be part and parcel of parking lot of CDGK and not out side it. The land immediately outside the parking lot is a beach, which become submersible by sea water on high tide.

2. All these factors show that the disputed plots allotted to the respondent were carved out from amenity plot/land for public use and such allotment being admittedly made for commercial use was directly in conflict with the Article 52-A of the KDA Order, 1957 which specifically provided for procedure for seeking of conversion of amenity plot for other use. Admittedly, there is no order whereby use of plot from that of amenity to that of commercial was sanctioned by competent authority in respect of disputed plots....

3. Despite the above discussion, it is clear that it was the KDA who has offered the disputed plots to the respondent who through a bidding process has made the highest offer and on acceptance of such offer has got allotment of disputed plots in his favour. He has also paid whole of occupancy value/price of disputed plots and has obtained their possession, which possession letter represented giving of lease of 99 years of disputed plots on receipt of full occupancy value/price. The respondent cannot be squarely blamed for illegal conduct of officials of the KDA in making of allotment of amenity plot/land for public use to the respondent. The respondent admittedly has paid substantial amount in the shape of whole occupancy value/price of disputed plots and thus cannot be deprived of his funds so paid by him to the KDA now the CDGK. Although the respondent did not acquire any title to the disputed plots but the fact remains that he did pay for disputed plots and such was done by him on illegal and unlawful conduct of officials of then KDA. The Government and its department are bound to act justly and fairly with the citizens of the country and in case of illegal and unlawful conduct of the government and its officials of department any loss is caused to the citizen of this country, same is appropriately be compensated. This is a fundamental rule and also principle of equity. The learned ASC for the respondent during the course of hearing of this appeal has contended that in case the respondent is found not entitled to the disputed plots of the two kiosks, the respondent be paid compensation at the prevailing market rate of the disputed plots and in this respect has referred to the advertisement published in daily newspaper Dawn dated 16.11.2005 in which offer of public auction of plots by the CDGK on the Clifton Beach for setting up stalls etc on short lease of ten years with a bid price of Rs.15,00,000/- per year. Similar position has been taken by the respondent in his CMA No. 581/2015. We have already noted above that the land, on which the disputed plots were allotted to the respondent, was an amenity plot/land for public use and thus not available for being allotted for commercial exploitation. No lease of 99 years was made in favour of the respondent. The respondent himself did not utilize the two plots for almost 29 years though in possession Although, on the basis of fundamental rules so also principle of equity the respondent is entitled to be compensated but the compensation as is claimed by the respondent is not what in the facts and circumstances of the present case such principle will admit. The offer of plot by public auction by the CDGK in 2005 at the rate of Rs. 15,00,000/- per year never materialized and thus it cannot form basis for granting of compensation. Yet the illegality committed by the officials of KDA in dolling out the disputed plots out of the amenity plot/land for public use cannot give advantage to the respondent so as to enrich himself from such illegality. In all fairless, the respondent can well be compensated by directing refund of the amount received from him as the occupancy value/price of land by the appellant along with interest/markup at the rate of 18% per annum from the date of the receipt of occupancy values/price of land until it is actually refunded Consequently, the appeal is partly allowed by setting aside the impugned judgment with directions to the appellants Government of Sindh/CDGK to refund to the respondent all the amount of occupancy value of disputed plots along with markup at the rate of 18% per annum from the date of occupancy amount received till the amount is actually paid to the respondent.”

The Petition must therefore be allowed to that limited extent.

1. For the foregoing reasons, and in terms of the decision of the Honourable Supreme Court of Pakistan reported as Province of Sindh through Chief Secretary and 8 others vs. Syed Kabir Bokhari[3] we hereby direct each of the Petitioners, within a period of one week of the date of this Order, to deposit all the original title documents that are in her custody in respect of the Said Property with the Nazir of this Court and further direct the KDA to deposit with the Nazir of this Court, within a period of one month, an amount equivalent to the allotment charges along with mark up thereon at the prevailing bank rate. On the amount being so deposited with the Nazir, the original title documents should be released into the custody of the KDA and the amount deposited can be received by the Petitioners from the Nazir against proper identification. The Petition is partially allowed in the above terms, with no order as to costs.

(Y.A.) Petition partially allowed

[1]. 2016 SCMR 101.

[2]. Op cit.

[3]. Op cit.

PLJ 2024 Karachi 118 (DB)

Present: Nadeem Akhtar and Mohammad Abdur Rahman, JJ.

RAMEEZ AHMED--Petitioner

versus

PROVINCE OF SINDH and others--Respondents

C.P. No. D-5876 of 2023, heard on 26.1.2024.

Sindh Building Control Ordinance, 1979 (V of 1979)--

----S. 6(1)--Karachi Building & Town Planning Regulations, 2002, Regln. 25-9.1, 25-9.2, 25-9.3, 25-9.4 & 25-9.5--Approval for construction--Deviation from approved plan--Compulsory open space--Encroachment by respondent No. 6--No exemption from maintaining prescribed compulsory open space--Direction to--While deviation to arcade, Champfer and partition walls had been removed, COS that was required to be maintained had been completely covered and it was to be considered whether same had to be demolished or not--Provisions of Regulation of 25-9.6.2 of KB&TRP could not be pressed into service to exempt COS at rear of plot from being maintained--The provisions of 25-9.6.6 of KB&TRP would not come to rescue of Respondent No. 6 to exempt them from maintaining prescribed COS--The illegality of construction having been established High Court left to consider as to whether deviations were of a nature that can or could not be regularised under provisions of SBCO, 1979 or KB&TRP, 2002--SBCA had to regularise did not include right to reguarlise a change in amount of storeys of building as that would change “complexion” of i.e. face of it and also did not include a change in “character” of building i.e. they could not convert nature of approval e.g. from a residential bungalow to apartments or to shops or offices--SBCA while considering an application to regularise a construction to not mechanically look at matter from a mathematical point of view to an extent of a percentage in deviation but rather to examine regularisation application maintained by owner of construction and to see as to whether regularisation--Deviation from approved plan by encroachment of construction into compulsory open space, and by which entire compulsory open space had been covered would both change complexion of construction and would also had an impact on third parties i.e. owner of neighbouring plot as entire construction would be now placed literally on their boundary wall and which would also restrict movement of air as between two buildings. [Pp. 119, 121, 122, 125 & 126] A, B, C, D, E, F & G

PLD 1994 SC 512 ref.

Mr. Muhammad Siddique Kaladia, Advocate for Petitioner.

Mr. Jawwad Dero, Additional Advocate General Sindh for Respondent No. 1.

Mr. Dhani Buksh Lashari, Advocate a/w Jahangir Khan, Deputy Director SBCA Karachi East for Respondents No. 2-3.

Nemo for Respondents No. 4-5.

Mirza Shouja Baig, Advocate for Respondents No. 6.

Date of hearing: 26.1.2024.

Order

Muhammad Abdur Rehman, J.--The Petitioner through this Petition, maintained under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has impugned the construction that has been carried out by the Respondent No. 6 on Plot No. 18 Survey Sheer No. RS-4, admeasuring 207 square yards (hereinafter referred to as the “Said Property”).

1. The SBCA has filed its comments confirming that an approval for construction on the Said Property was sanctioned under sub-section (1) of Section 6 of the Sindh Building Control Ordinance, 1979 for a ground plus three storey structure and that the construction that has been carried out by the Respondent No. 6 is in deviation of the approval in as much as:

(i) the Arcade has been completely covered, (ii) the champfer, on the corner of the plot, to allow for traffic management on the road, has not been maintained;

(iii) there are partition walls that have been incorrectly raised; and

(iv) the entire Compulsory Open Space (hereinafter referred to as the “COS”) throughout the entire building has been encroached.

While the deviation to the arcade, the Champfer and the partition walls have been removed, the COS that was required to be maintained has been completely covered and it is to be considered whether the same has to be demolished or not.

1. The building being constructed is a residential cum commercial building and is located in an area of Karachi called Ramaswami Quarters and which is part of what has come to be known as the “Old City Area” of Karachi. While generally constructions under the Karachi Building and Town Planning Regulations, 2002 (hereinafter referred to as the “KB and TPR, 2002”) of residential and commercial plots are regulated by either Regulation 25-2 or Regulation 25-3 of the KB & TPR, 2002, as excepted in each of those regulations, where the provisions of those regulations are “in conflict” with Regulation 25-9 of the KB and TPR, 2002. As such to the extent of any conflict, the provisions of Regulation 25-9 of the KB and TPR, 2002 will apply and override Regulation 25-2 and Regulation 25-3 of the KB and TPR, 2002.

2. In respect of the Floor Area Ratio (hereinafter referred to as the “FAR”) to be maintained, Regulations 25-9.1, 25-9.2, 25-9.3, 25-9.4, 25-9.5 of the KB and TPR, 2002, permit a deviation from the FAR required to be maintained under Regulation 25-2 or Regulation 25-3 of the KB & TPR, 2002. In addition, while on account of Regulation 25-9.6.1 of the KB & TRP, 2002, the other conditions of Regulation 25-1 of the KB & TRP, 2002 would continue to apply, the provision of the COS in respect of a construction of a building in the “Old City Areas” are superimposed on Regulation 25-2 or Regulation 25-3 of the KB & TPR, 2002 and which to the “extent of a conflict” will be regulated by Regulation 25-9.6.2, 25-9.6.6 and 25-9.6.7 of the of the KB&TRP, 2002 and which reads as under:

“ … 25-9.6.2. In case the depth of the plot is less than 25ft.(7.6m) it would be exempted from the rear COS.

…

25-9.6.6. For all residential plots facing more than 30ft.(9.13m) road / street width, the minimum COS and foot print as prescribed in Clause 25-2 shall be applied except the part of old city including following area.

Lyari Quarters (LY), Lea Quarters, Keamari Quarters, KPT area, Serai Quarters (SR), Railway Quarters (RY), Saddar Bazar Quarters (SB), Preedy Quarters (PR), Artillary Maidan (AM), Ghulam Hussain Kasim Quarters (GK), Old Town Quarters (OT), Bundar Quarters (BR), Market Quarters (MR), Napier Quarters (NP), Tahil Ram Quarters (TL), Wadhomal Oddahram Quarters (WO), Ranchore Line Quarters (RC), Ramsawami Quarters (RS), Lawrance Quarters (LR), Harchand Rai Vishandas Quarters (HV), Soldier Bazar Quarters (Sol.B), Aram Bagh Quarters (RB).

25-9.6.7. For all commercial/residential-cum- commercial plots facing more than 10m. road/street width the minimum COS and foot print as prescribed in Clause 25-3 shall be applied.”

As is apparent the compulsory open space that has to be maintained under these regulations is controlled by three factors:

(i) the size of the plot on which the construction is being carried out, (ii) the size of the roads located about the plot on which the construction is being carried out; and

(ii) the nature of the construction i.e. residential or residential cum commercial.

A literal interpretation of these regulations leads to the conclusion that:

(i) if the depth of the plot is less than 25 feet, regardless of the nature of the construction being carried out being residential or residential cum commercial or commercial, the compulsory open space at the rear of the building need not be maintained;

(ii) If the road facing the plot on which the construction is being raised is more than 30 feet, the minimum COS as prescribed in Regulation 25-2 for a purely residential building will be applied “except the part of old city” and which as per the listing given includes “Ramaswami Quarters” and therefore where the plot is located in a part of the “Old City Area” listed in that regulation and the road facing the plot is more than 30 feet, then no COS is required to be maintained;

(iii) if the construction is residential cum commercial and the road facing the plot is more than 10m. the minimum COS and foot print as prescribed in Clause 25-3 shall be applied.

1. We have examined the abovementioned regulations in the context of the construction that is being carried out on the Said Property. The plot is a rectangular shaped plot and the depth of the plot is indicated as 39 feet 8 Inches. The depth of the plot being excess of 25 feet we are clear that the provisions of Regulation of 25-9.6.2 of the KB&TRP cannot be pressed into service to exempt the COS at the rear of the plot from being maintained. Admittedly, the construction that currently exists on the COS at the rear of the Said Property has apparently completely been completely covered.

2. In addition, as the construction that exists on the Said Property is a residential cum commercial construction, the provisions of 25-9.6.6 of the KB&TRP would not come to the rescue of the Respondent No. 6 to exempt them from maintaining the prescribed COS and instead as per 25-9.6.7 of the KB & TPR, 2002 the provisions of Regulation 25-3 of the KB&TRP would continue to apply.

3. In the circumstances, the illegality of the construction having been established we are left to consider as to whether deviations are of a nature that can or cannot be regularised under the provisions of the SBCO, 1979 or the KB&TRP, 2002.

4. What is referred to as a right to “reguarlise” a deviation of an approved plan that has been sanctioned by the SBCA under Sub-Section (1) of Section 6 of the SBCO, 1979 is found in clause (c) of Regulation 3-2-20 of the Karachi Building and Town Planning Regulations, 2002 and which reads as under:

“… 3-2.20. Regularization of Works Carried out in Violation of Regulations.

3-2.20.1. If the building works are commenced or carried out contrary to the provisions of these regulations the Authority shall,--

(a) by written notice require the person who is carrying out such building works forthwith to stop all works;

(b) by written notice require the person who is carrying out or has carried out such building works on or before such day as shall be specified in such notice by a statement in writing given by him or by an agent duly Authorized by him and addressed to the Authority to show sufficient cause why such building works or such part thereof should not be removed or altered to comply with these regulations;

(c) require the said person on such day at such time and place as shall be specified in such notice to attend personally or through an agent duly authorized by him and show sufficient cause why such building works or part thereof should not be removed or altered

3-2.20.2. If such person fails to show sufficient cause to the satisfaction of the concerned Authority why such building works or part thereof should not be removed or altered, the Sindh Building Control Authority may take the following actions.

(a) require the person who has carried out the works against the provisions of these regulations or any other statute, to demolish the whole building or part thereof;

OR

(b) to alter the works so as to bring it into conformity with these regulations;

OR

(c) Regularize the violations in the existing structure after realization of regularization fee as per Table I & II, depends on the nature and merits of the case, provided that no violation shall be regularized:

(i) Which have environmentally degrading activities such as manufacturing, storage of dangerous or inflammable or hazardous materials or Cater to the service of transport sector until such activities are removed;

(ii) Building constructed within 3/4 mile (1.2 Km) radius of Quaid-e-Azam Mausoleum above podium level of 91 feet (27.72 meter) from the mean sea level;

(iii) Where parking space has not been provided or is intended for misuse for other purposes, until such space is restored to its original purpose;

(iv) Which has been constructed in violation of the reservation or road widening scheme or property line, or is in any hazardous use;

(v) If the building works or part thereof exceed the maximum permissible height and number of stories;

(vi) Ifthe violations/deviations in building works do not exceed beyond Twenty percent of the permissible limit in respect of compulsory open space/covered area;

(vii) If the building work extends beyond the property limits except otherwise provided in pro- vision No. 9-5 KB&TPR-2002:

(viii) If the building work or part thereof violated fire or any other safety requirements;

(ix) For any other violation of the Master plan not falling in the above category.

(x) (a) Where approved arcade has not been provided or is misused for other purposes, until such space is restored to its original purpose.

(b) However recreation already approved may be allowed to be shifted/ relocated to any other suitable space, but it shall not be in basement and over parking space. Such shifting/relocation shall only be allowed provided that activity on approved non- saleable/exempted area is maintained within such building.

(xi) Where approved passage and stairs have been altered or misused for other purpose until such space is restored to its original purpose as per approved plan, however alteration/addition/ variation upto 10% of the combined total exempted spaces as mention in Proviso 25-1.7.1(b) & 25. 1.7.2(b) shall be considered for completion/regularization.

(xii) Where approved air raid shelter has been altered or misuse for other purpose until such space is restored to its original purpose as per approved plan. Furthermore owner/builder shall hand over the possession of the air raid shelter to the association of flats/units allottees.

(d) The building which has already been considered/ approved for Regularization/Revision/Addition Alteration under the KB & TP Regulations, 1979 shall not be further considered for regularization/ addition/ alteration/revision/extra floors on the existing building as per KB & TP Regulations, 2002 except residential bungalow upto 399 Sq. Yds. subject to stability certificate duly signed by Licensed Structural Engineer and for amenity plots subject to stability certificate by a Licensed Structural Engineer duly endorsed by a "A" category Proof Engineer. However, other than above categories, the plan approved under regulations, 1979 shall only be considered under the same regulations viz. 1979.”

1. The Honourable Supreme Court of Pakistan came to consider the authority of the SBCA to regularise such construction in the decision reported as Abdul Razak v. Karachi Building Control Authority and others,[1] and Ardeshir Cowasjee vs. Karachi Building Control Authority (KMC), Karachi[2] wherein it was held that:

(a) the SBCA has a right to regularise construction which does not change the “complexion” or “character of the originally proposed construction”?;[3] and

(b) the SBCA does not have a right to regularise construction which would “prejudice the rights of third parties”[4]

The expression “complexion” has been defined in the Oxford English Dictionary[5] to mean:

“ … the natural colour, texture of the skin, esp of the face.”

The expression “Character”[6] has also been defined in the Oxford English Dictionary to mean:

“ … the collective qualities or characteristics , esp. mental and moral that distinguish a person or thing.”

The meaning of these expressions must be interpreted in light of the decisions in Abdul Razak v. Karachi Building Control Authority and others,[7] In that case against a permission for the construction of a ground plus two storey structure for a house the construction was converted into a ground plus two structure containing flats and which declined by both this Court and by the Honourable Supreme Court of Pakistan as incapable of being regularised. It would therefore seem that where approval is given of a structure, the authority that the SBCA has to regularise does not include the right to reguarlise a change in the amount of storeys of the building as that would change the “complexion” of the i.e. the face of it and also does not include a change in the “character” of the building i.e. they cannot convert the nature of the approval e.g. from a residential bungalow to apartments or to shops or offices. In addition, and as held by the Honourable Supreme Court of Pakistan[8] the construction raised could not prejudice the rights of third parties and which as identified therein would mean that it was incumbent on the SBCA while considering an application to regularise a construction to not mechanically look at the matter from a mathematical point of view to an extent of a percentage in deviation but rather to examine the regularisation application maintained by the owner of the construction and to see as to whether the regularisation would or would not:

“… ensure safe and hygienic conditions of living for the citizens in general. They do not concern any one individual alone.”[9]

The Honourable Supreme Court elaborated this point in the decision reported as Ardeshir Cowasjee vs. Karachi Building Control Authority (KMC), Karachi[10] wherein it was held that:

“… The Regulations should be applied for the benefit of the public and not for favouring an individual. Simpliciter the factum that on account of tremendous increase in 'the population in Karachi the situation demands raising of high-rise buildings, will not justify the conversion of residential plots originally intended to be used for building ground-plus-one and allowing the raising of high-rise buildings thereon without providing for required water, electricity, gas, sewerage lines, streets and roads etc.”

1. We have been furnished with a report, which is not disputed that all the violations that existed have been removed sans the violation that exist in the compulsory open space of the building. We have considered the issue and are of the opinion that a deviation from the approved plan by encroachment of the construction into the compulsory open space, and by which the entire compulsory open space has been covered would both change the complexion of the construction and would also have an impact on third parties i.e. the owner of the neighbouring plot as the entire construction would be now placed literally on their boundary wall and which would also restrict movement of air as between the two buildings. The remaining deviation that has been made in the construction on the said Property therefore cannot be regularised.

2. For the foregoing reasons, we direct the concerned Director and Deputy Director of the SBCA to ensure that the deviation in the

construction that exists on the Said Property is removed by demolishing the entire encroachment made by the Respondent No. 6 in the area that was marked as Compulsory Open Space in the plan approved for construction on the Said Property. The Petition is allowed in above terms and all listed applications are disposed of with no order as to costs.

(Y.A.) Petition allowed

[1]. 1 PLD 1994 SC 512.

[2]. Op Cit.

[3]. Op Cit at paragraph 21.

[4]. Op Cit at paragraph 17.

[5]. Persall J and Trumble B. (2008) Oxford Reference Dictionary OUP, Delhi.

[6]. Ibid.

[7]. PLD 1994 SC 512.

[8]. Op Cit at paragraph 17.

[9]. Op Cit at paragraph 16 as approved in Paragraph 17.

[10]. Op Cit at paragraph 21.

PLJ 2024 Karachi 127 (DB)

Present: Aqeel Ahmed Abbasi, C.J. and Abdul Mobeen Lakho, J.

CHINA TEXTILE CURTAINS & BLANKET INDUSTRY and another--Petitioners

versus

FEDERATION OF PAKISTAN and others--Respondents

C.P. No. D-1705 of 2024 and C.M. No. 10072/2024, decided on 7.6.2024.

Customs Act, 1969 (IV of 1969)--

----Ss. 45(2) & 138--Registration of FIR at Peshawar--Initiationing of adjudication--Name of petitioners and consignee were not mentioned in FIR--Consignment were laying at port--Application for change name of consignee--Pendency of order--Withholding of amendment in IGM--Direction to--Petitioner had made out a case seeking review of order which appears to had been passed on account of incorrect factual position intimated by counsel for Customs--Subject consignment was lying at Port, whereas, request of petitioner seeking amendment in IGM in terms of Section 45(2) read with Section 138 of Customs Act, 1969, which had been decided by customs authorities without assigning any reason--Subject consignment in respect of GD could not be filed on account of inaction on part of customs authorities, who had not allowed change of name of consignee in IGM inspite of fact that all relevant documents, including original bill of lading, commercial invoice, certificate of origin, packing list, etc. available with petitioner and there seems no legal impediment to allow amendment in IGM while changing name and address of consignee--Petition disposed of.

[Pp. 129 & 130] A & B

2015 PTD 761 ref.

Mr. Javed Farooqui, Advocate for Petitioners.

Mr. Khaleeq Ahmed, D.A.G.

Mr. Muhammad Afzal, Advocate holding brief for Mr. Khalid Rajpar, Advocate for Respondent No. 2.

Date of hearing: 7.6.2024.

Order

Learned counsel for the Petitioners submits that on account of mis-statement on behalf of learned counsel for the Customs Department on 30.04.2024 i.e. alleged registration of FIR and initiation of adjudication proceedings at Peshawar, instant petition was disposed of with the directions to the petitioners to seek remedy before appropriate forum in accordance with law, whereas, the subject consignments are still lying at port and not part of subject matter of any FIR or adjudication proceedings at Peshawar, which pertains to some earlier consignments in the name of Premier Textile Blanket Industry (Consignee) and the petitioners i.e. China Textile Curtains & Blanket Industry, have no nexus with such consignments or FIR/adjudication proceedings.

1. According to learned counsel for the petitioners, even in the reply submitted by the Customs authorities on the review application filed in the instant matter, there is no mentioning of the name of petitioners, nor the subject consignments of instant petition are subject matter of FIR/adjudication proceedings at Peshawar, for the reasons that unless GD is filed and these consignments after release by customs authorities reach at Dry Port Peshawar, no offence whatsoever can be made out under the Customs Act, 1969. Learned counsel for the petitioners further submits that from the perusal of the comments filed on behalf of the respondents it further transpires that the basis of registration of FIR in respect of earlier consignments at Dry Port Peshawar is exemption from payment of duties and taxes under Export Facilitation Scheme by exporter was claimed without any legal basis by the importer i.e. Premium Textile Blanket Industry, whereas, in the instant case, the petitioners have not claimed any exemption from payment of duties and taxes and have made a request for the amendment i.e. change of name of consignee in respect of subject frustrated consignments in terms of Section 45(2) read with Section 138 of the Customs Act, 1969, therefore, there is no possibility of any misuse or violation of aforesaid scheme. Learned counsel for the petitioners submits that petitioner have filled two applications each dated 29.03.2024 before Collector Customs, MCC-Appraisement (West) for seeking amendment in the IGM under Section 45(2) of the Customs Act, 1969, within stipulated period of time, after compliance with all codal formalities, however, no order has been passed by the Collector Customs thereon, therefore, instant petition was filed. Per learned counsel, all the original documents with regard to import of 28 consignments, including Bill of Lading, commercial invoice, certificate of origin, packing list, etc. are in the name and possession of the petitioners, which will be produced before the Customs Authorities, therefore, requests that Collector Customs, MCC Appraisement (East) may be directed to allow the petitioners’ application for the change of name of consignee in the IGM in respect of 28 consignments, subject matter of instant petition, in terms of Section 45(2) read with Section 138 of the Customs Act, 1969.

2. Learned counsel for petitioners has further argued that under similar circumstances in respect of 09 consignments of the same petitioners, while seeking amendment in the IGM in similar terms such request has been allowed, therefore, withholding such amendment in the IGM for change of name of consignee in respect of subject 28 consignments is otherwise illegal and based on mala fide. Per learned counsel, similar controversy agitated through instant petition has already been decided by Division Bench of this Court in the case of Belal Mostafa Sadeqi Ltd. v. Deputy Collector Of Customs and 4 others [2015 PTD 761] as well as in the case of C.P.No. D-4612/2018 [Re: M/s. Saiban International v. The Federation of Pakistan & others] vide judgment dated 07.08.2018, copy of said judgment has been placed on record.

3. After hearing the learned counsel for the parties and from perusal of the record and the provisions of Section 45 read with Section 138 of the Customs Act, 1969, it appears that contentions of the learned counsel for the petitioner appears to be correct, whereas, petitioner has made out a case seeking review of order dated 30.04.2024, which appears to have been passed on account of incorrect factual position intimated by the learned counsel for Customs Department. Admittedly, in the instant case, subject consignment is lying at Port, whereas, the request of petitioner seeking amendment in the IGM in terms of Section 45(2) read with Section 138 of the Customs Act, 1969, which has been decided by the customs authorities without assigning any reason. It has also come on record that subject consignment in respect of GD could not be filed on account of inaction on the part of the customs authorities, who have not allowed change of name of the consignee in the IGM inspite of the fact that all the relevant documents, including original bill of lading, commercial

invoice, certificate of origin, packing list, etc. available with the petitioner and there seems no legal impediment to allow the amendment in IGM while changing the name and address of the consignee in terms of Section 45(2) read with Section 138 of the Customs Act, 1969. Prima facie, the case of the petitioner is covered by the aforesaid judgment of this Court. Accordingly, review application bearing CMA No. 10072/2024 is allowed and consequently petition is disposed of with direction to the respondents to decide the application of the petitioner seeking amendment in the IGM in the aforesaid terms and submit compliance within a period of two weeks from the date of receipt of this order, whereafter, application shall be furnished to this Court through MIT within two weeks.

1. At this juncture, learned counsel for the petitioner submits that respondents may also be directed to issue delay detention certificate as consignment is not being allowed by the customs authorities. Order accordingly.

2. Instant Constitution Petition stands disposed of in above terms alongwith listed application.

(Y.A.) Petition disposed of

PLJ 2024 Karachi 130[Election Tribunal]

Present:Adnan Iqbal Chaudhry, J.

IRFANULLAH KHAN MARWAT--Petitioner

versus

ELECTION COMMISSION OF PAKISTAN and others--Respondents

Election Petition No. 4 of 2024, heard on 13.6.2024.

Election Act, 2017 (XXXIII of 2017)--

----Ss. 144, 144(1)(b), 144(2)(b) & 145(1)--Civil Procedure Code, (V of 1908), S. 139 & O.VI R. 15--Election petition--Application for summary rejection of election petition--Preliminary issue--Requirements of--Oath was administered to petitioner on verification clause of petition by registrar of High Court--Ex-officio Oath Commissioner--Identification section--Oath may be administered by any officer whom a High Court may appoint, and Order VI Rule 15 CPC which sets out manner of verification and oath--Affidavit manifests that oath was administered to Petitioner on verification clause of petition by Assistant Registrar of Identification Section of High Court--The case of Ghazanfar Abbas Shah also holds that administration of oath can reflect on affidavit filed in support of petition--The print of affidavit was then annexed to pleading of a party and forwarded to relevant Branch of High Court--Therefore, both verification clause of petition and oath administered thereon comply with section 139 and Order VI Rule 15 CPC--Petition dismissed. [Pp. 132, 133 & 134] A, B & C

2016 SCMR 875, 2016 SCMR 750 & 2015 SCMR 1186 ref.

Mr. Muhammad Aziz Khan, Advocate assisted by M/s. Aamir Raza and Hassan Shams Dar, Advocates for Petitioner.

Ms. Alizeh Bashir, Assistant Attorney General for Pakistan alongwith M/s. Abdullah Hanjrah, Deputy Director (Law) & Sarmad Sarwar, Assistant Director (Law), ECP, Karachi for Respondent No. 1.

M/s. Agha Shahzaib & Mukesh Kumar, Advocates for Respondent No. 2.

Nemo for Respondents No. 3-32.

Date of hearing: 13.6.2024.

Order

CMA No. 1468/2024 is for summary rejection of the election petition under section 145(1) of the Election Act, 2017. In view of the case of Zia-ur-Rehman v. Syed Ahmed Hussain (2014 SCMR 1015), the objections raised by the application are treated as a preliminary issue and decided at the outset.

1. Of the objections taken in the application, learned counsel for the Respondent No. 2 (returned candidate) presses two objections emanating from section 144 of the Election Act, and submits that the failure to fulfill those requirements attracts the penal consequence of rejection provided in section 145(1) of the Election Act. On the other hand learned counsel for the Petitioner submits that the required compliance had been made and that is why the Tribunal was inclined to issue notice.

2. Heard learned counsel and perused the record.

3. The first objection is that the petition does not give “full particulars” of the “corrupt and illegal practice or other illegal act” alleged in the petition, and does not enclose documentary evidence in support thereof as required by section 144(1)(b) and 144(2)(b). To illustrate his point, learned counsel for the Respondent No. 2 places reliance on the case of Usman Dar v. Khawaja Muhammad Asif (2017 SCMR 292). However, that case was on the provisions of the Representation of the People Act, 1976 [ROPA]. Under ROPA, unlike the Election Act 2017, the failure to give full particulars of the corrupt or illegal practice was not a ground under section 56 thereof for dismissal of the petition at the outset. Rather, it was a ground for dismissal at the trial under section 63 ROPA i.e. when the Tribunal had the occasion to appraise some evidence brought in support of the allegations. Even in Usman Dar, the election petition was not dismissed for failure to give full particulars, but it was dismissed on the merits after trial. Therefore, the case of Usman Dar is distinguishable. Having said that, the requirement of “full particulars” in section 144(1)(b) of the Election Act appears to be explicit. Therefore, if the petition is vague in that regard, it can be rejected summarily under section 145(1).

4. In paras 2, 3 and 9 of the petition, the Petitioner has pleaded precise facts and figures with dates and the number of polling stations where rigging was allegedly carried out at the behest of the returned candidate. In paras 10 to 13 it is categorically pleaded that the polling agent of the Petitioner was ousted from the consolidation proceedings and the Forms 45 released to the Petitioner do not reconcile with the consolidation of the count in Form 48. In support of those allegations, Forms 45 and Form 48 have been filed, so also the affidavit of the polling agent. Now, whether the alleged acts fall within the special definitions of “corrupt practice” and/or “illegal practice”, or whether those acts could be construed as “other illegal act” which is undefined, that is a different matter and one which will be examined in due course of these proceedings. For the time being, it cannot be said that the petition does not give full particulars of the offending acts. Therefore, the petition complies with the requirements of section 144(1)(b) and 144(2)(b) of the Election Act and cannot be rejected on that score.

5. The second objection is that the petition is not verified as required by section 144(4) of the Election Act which reads as follows:

“An election petition and its annexures shall be signed by the petitioner and the petition shall be verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings.”

The relevant provisions of the CPC are section 139, which provides that oath may be administered by any officer whom a High Court may appoint, and Order VI Rule 15 CPC which sets out the manner of verification and oath.

1. Learned counsel for the Respondent No. 2 relies on the case of Ghazanfar Abbas Shah v. Khalid Mehmood Sargana (2015 SCMR 1585), which is the leading case on the objection to the verification of an election petition, and where it was held that “verification of an election petition is mandatory and a petition which lacks proper verification shall be summarily dismissed by the tribunal, even if the respondent has not asked for or prayed for its dismissal.” At that time, provisions similar to sections 144(4) and 145(1) of the Election Act existed in sections 55(3) and 63 of the ROPA.

2. The aforesaid objection is premised on the fact the verification clause at the end of the petition, though signed by the Petitioner and the Assistant Registrar, Affidavit & Identity (A.S.) of the High Court, it does not bear the note that oath was administered to the Petitioner. However, on the very next page is the following affidavit:

“AFFIDAVIT IN SUPPORT OF VERIFICATION OF PETITION

Mr. A son of B resident of X affirmed on oath before me at Karachi on this day-month-year in the Identity Section of this Court.

Assistant Registrar Affidavit & Identity (A.S.) High Court of Sindh Karachi

(-sd-) COMMISSIONER FOR TAKING AFFIDAVIT”

The above affidavit manifests that oath was administered to the Petitioner on the verification clause of the petition by the Assistant Registrar of the Identification Section of the High Court. The case of Ghazanfar Abbas Shah also holds that administration of oath can reflect on the affidavit filed in support of the petition.

1. Ever since the implementation of the Identification Section Management System (ISMS) in the High Court of Sindh in the year 2012, which linked the Identification Section to the data-base of NADRA, the Assistant Registrars of that Identification Section were appointed as ex-officio oath commissioners by the High Court.[1] Since then, all pleadings intended for use in any of the High Courts in the

country are brought to the said Identification Section for administering oath to the deponent on the verification clause. The affidavit above is in the form prescribed by the High Court and it is generated by the ISMS itself once oath is administered. The print of the affidavit is then annexed to the pleading of a party and forwarded to the relevant Branch of the High Court. Therefore, both the verification clause of the petition and the oath administered thereon comply with section 139 and Order VI Rule 15 CPC. Reliance can be placed on the cases of Muhammad Nawaz Chandio v. Muhammad Ismail Rahu (2016 SCMR 875); Feroze Ahmed Jamali v. Masroor Ahmad Khan Jatoi (2016 SCMR 750); and Zawwar Hussain Warraich v. Muhammad Aamir Iqbal (2015 SCMR 1186).

1. Learned counsel for the Respondent No. 2 points out errors in the numbers of paragraphs mentioned in the verification clause. That is at best a typographical error which is not of any material affect.

2. When confronted with the above affidavit of verification and the oath administered thereon, the objection of learned counsel for the Respondent No. 2 recedes to the following observation in Ghazanfar Abbas Shah viz. that “the affidavit, must record and endorse verification/attestation that the oath has been actually, physically and duly administered to the election petitioner/deponent.” But then, the fact that the affidavit of verification also carries the photograph, finger print and signature of the deponent taken on the spot at the time of administering oath, again manifests that the oath was actually, physically and duly administered.

3. For the foregoing reasons, none of the objections taken for rejection of the petition have any force. CMA No. 1468/2024 is therefore dismissed.

(Y.A.) Petition dismissed

[1]. Circular No. HC/I.T./SA/290 dated 02.07.2012, and Notification No. Admin/X.B.9(b)(1) dated 11.09.2012.

PLJ 2024 Karachi 134 (DB)

Present: Aqeel Ahmed Abbasi, CJ and Abdul Mobeen Lakho, J.

IMDAD HUSSAIN KHOSO--Petitioner

versus

PROVINCE OF SINDH and others--Respondents

C.P. No. D-2784 of 2024, and CMA No. 12659/2024, decided on 11.6.2024.

Constitution of Pakistan, 1973--

----Art. 199--Deployment of police guards and gunman--Retired Judge of Anti-Terrorism Court--Withdrawal of gunman and police guard--Serious threats to life of petitioner--Specific directions of Supreme Court--Direction to--There had been various instances reported regarding arbitrary and illegal decision withdrawal of police guards, gunmen and escorts from residences even of serving and retired Judges of High Court, as well as Judges of Anti-Terrorism Courts--Hon’ble Supreme Court of Pakistan through respective Committee had issued specific directions to concerned departments to provide complete security to serving Judges and their families of Superior Courts--We would directed Secretary, Home Department, Government of Sindh and Inspector General of Police, Sindh Karachi to ensure that gunmen, police guards and escorts deployed at residences of serving as well as retired judges of High Court, as well as judges of Anti-Terrorism Courts and Judicial Officers of District Judiciary, as per their entitlement, shall not be withdrawn without permission of respective Hon’ble Judge and Registrar of High Court--Petition disposed of. [Pp. 137 & 138] A & B

PLD 1999 SC 504 ref.

Mr. M. Saad Siddiqui, Advocate for Petitioner.

Mr. Saifullah, Asst. A.G. Sindh for Respondents.

Date of hearing: 11.6.2024.

Order

1. Through instant Constitutional Petition, the petitioner, a retired Judicial Officer, has expressed his grievance against arbitrary and illegal withdrawal of gunman and police guard deployed at the residence for security purposes, whereas, contention of learned counsel for the petitioner was recorded in the order dated 04.06.2024 in the following terms:

“3-4. Through instant petition, the petitioner, who is a retired Judicial Officer and was posted as Judge of Anti-Terrorism Court-VIII, Karachi from August 2014 to September 2015, has expressed his grievance against the arbitrary decision by the Police Department, who have withdrawn the gunman and security guards given to the petitioner pursuant to a Letter dated 26.11.2011 issued by the Home Department, Government of Sindh, copy of which is available at Page: 307 as Annexure 'P/10' and the Judgment of the Superior Court to this effect, wherein, it has been held that an ATC Judge is entitled to security even after retirement till execution of the sentences awarded during tenure as ATC Judge. Per learned counsel, there are serious threats to the life of the petitioner, whereas, law and order situation in the Province is already deteriorated, therefore, such act on the part of the Police is unwarranted and contrary to the law as laid down by the Superior Courts. He has referred to the Judgment of the Hon'ble Supreme Court in the case of Liaquat Hussain & others v. Federation of Pakistan through Ministry of Justice & Parliamentary Affairs, Islamabad & others [PLD 1999 SC 504], copy of which is available at Page: 31 113 as Annexure 'P/3' and a judgment dated 09.02.2018 passed by a Division Bench of this Court in Constitutional Petition No D-6228 of 2017 [Re: Arshad Noor Khan v. Government of Sindh through Home Secretary & others), copy of which is available at Page: 291-297 as Annexure “P/8.

Let pre-admission notice be issued to the respondents as well as Advocate General Sindh, to be served through first three modes, for 11.06.2024, when comments/reply/ objection, if any, shall be filed with advance copy to the learned counsel for petitioner. In the meanwhile, in order to preventing and to avoid any untoward incident, respondents are directed to post/provide gunman and guard, which were already posted at the residence of the petitioner immediately and submit compliance on the next date of hearing.

Mr. Saifullah, learned Assistant Advocate General Sindh present in Court, waives notice of instant petition, claims copy alongwith annexure and request for time to seeks instructions and to file comments/reply, to which, learned counsel for the petitioner undertakes to supply the same during course of the day.

Let copy of this order be supplied cover-in-hand to the learned AAG for onward transmission to the concerned quarters to ensure compliance.”

1. Pursuant to Court’s directions, SSP Security-I, Mr. Asghar Usman, has shown appearance and filed compliance report alongwith copy of letter dated 07.06.2024 issued from the office of Inspector General of Police, Sindh Karachi addressed to the Additional Inspector General of Police, Karachi Range and SSP Security-I, Karachi with reference to instant petition directing the concerned officials to ensure compliance of the directive of the Court’s order in letter and spirit. Same is taken on record, copy of which has been supplied to the learned counsel for peAtitioner, who under instructions submits that only one gunman, namely, Shakir has been deployed at the residence of the petitioner, whereas, directions in this regard have already been issued in the case of Arshad Noor Khan v. Government of Sindh through Home Secretary and others passed by the learned Divisional Bench of this Court vide judgment dated 09.02.2028, whereas, the guard, namely, Fahad Ali has not been deployed. SSP Security-I submits that as soon as order of this Court was communicated both the gunman and guard have been deployed at the residence of the petitioner. Guard Fahad Ali is present in Court.

3. While enquired as to why without seeking permission from the Registrar of this Court or the respective Judge such deployment was withdrawn inspite of various Notifications/letters from the department and from the office of IG P and Registrar of Sindh High Court to this effect, in response to such query, SSP Security-I submits that on account of some confusion with regard to the status of the retired judge, such deployment has been withdrawn on the instructions of the Divisional Threats Assessment Committee, who were of the view that petitioner was not the Judge of the Anti-Terrorism Court. However, after ascertainment of the facts and pursuant to the order passed by this Hon’ble Court on 04.06.2024, such deployment has been restored.

1. It has been observed that there have been various instances reported regarding arbitrary and illegal decision withdrawal of police guards, gunmen and escorts from the residences even of the serving and retired/former Judges of this Court, as well as the Judges of the Anti-Terrorism Courts, inspite of the fact that the Hon’ble Supreme Court of Pakistan through respective Committee has issued specific directions to the concerned departments/authorities to provide complete security to the serving Judges and their families of the Superior Courts, whereas, Home Department and the Police Department pursuant to directions issued from time to time by the Chief Justice of this Court through Registrar has deployed the gunmen/police guards (1+3) at the residences of Judicial Officers of District Judiciary, retired judges of this Court as well as judges of Anti-Terrorism Courts, their security has been compromised while withdrawing the same on one pretext or the other, which leaves the judges exposed to serious life threats and any untoward incidence by the terrorist and criminal elements of the society. Moreover, this aspect of the matter has also been dealt with our judicial side as well in the cases as referred in the order dated 4.6.2024 as well as in CP No. D-1311/2020 (Re: Advocate Ghulam Murtaza v. Province of Sindh and others].

5. Accordingly, while disposing of instant petition, we will direct the Secretary, Home Department, Government of Sindh and the Inspector General of Police, Sindh Karachi to ensure that gunmen, police guards and escorts deployed at the residences of the serving as well as retired judges of this Court, as well as the judges of Anti-Terrorism Courts and Judicial Officers of District Judiciary, as per their entitlement, shall not be withdrawn without permission of the respective Hon’ble Judge and Registrar of this Court. In case of any violation of such directions, concerned Authority/Officials shall expose themselves to initiation of contempt of Court proceedings.

Since the guards/gunmen withdrawn from the petitioner’s residence have been restored, therefore, instant petition is disposed of in the above terms alongwith listed applications.

Let copy of this order may be supplied cover-in-hand to the learned AAG for onward transmission to all the respondents and also the concerned quarters, including law enforcement agencies, including Rangers through D.G. Rangers, Sindh to ensure compliance.

(Y.A.) Petition disposed of

PLJ 2024 Karachi 138 (DB)

Present:Aqeel Ahmed Abbasi, CJ and Abdul Mobeen Lakho, J.

Dr. SHEHZAD NASIM and another--Petitioners

versus

FEDERATION OF PAKISTAN and others--Respondents

Const. P. 2735 of 2024, decided on 12.6.2024.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 87, 88 & 512--Issuance of non-bailable warrants--Proclaimed offenders--Foreign national--Initiationing of process for red notices--In case of petitioners for issuance of Notices had been initiated in absence of any order from competent Court of jurisdiction while filing an application to that effect, seeking permission for issuance of Notices in accordance with law and procedure to be adopted for such purpose--It was admitted position that no order had been passed by trial Court in terms of Sections 87/88 read with Section 512, Cr.P.C. against petitioners--There seems no ambiguity as to adopt legal course and procedure prescribed by law to secure appearance of absconding accused person(s) before trial Court--The impugned letters were without lawful authority--Petition disposed of.

[Pp. 141 & 143] A, B & C

Mr. Shaukat Ali Shehroze, Advocate for Petitioners.

Mr. Khaleeq Ahmed, DAG alongwith Ms. Shireen Hina, Section Officer, FIA (Policy), Ministry of Interior, Islamabad.

Date of hearing: 12.6.2024.

Order

1. Through instant petition, petitioners through attorney have sought following relief:

“It is most respectfully prayed on behalf of the petitioners above named that this Hon'ble Court may be pleased to restrain the respondents from issuing Interpol Red notices/warrants and taking any further action in connection with the impugned letters against the petitioners as well as to recall/set aside and suspend the operation of Letter No. AA/25(RD)NCB/2024-5312 dated: 29.04.2024 & Letter No. AA/25(RD)NCB/2024-5314 dated: 29.04.2024 issued without following mandatory procedure and adopting legal requirements as required by law.

Any other relief(s) may deem fit and proper under the circumstances of the case.”

1. On 30.05.2024, when the matter was fixed in Court, contention of learned counsel for the petitioners was recorded and Notices were issued in the following terms:-

“3-4. Through instant Petition, the Petitioners who are reportedly residing at Singapore, have filed instant Petition through their attorney, namely, Nudrat Mand Khan who is present in Court along with the learned counsel for the Petitioners, and have expressed their grievance against issuance of two letters dated 29.04.2024, available at [Pages-15-17 of Court File] issued by the Assistant Director, NCB-Interpol addressed to the Section Officer [FIA], Ministry of Interior, [Mol], Islamabad, with a request for issuance of Interpol Red Notices of Proclaimed Offender/Accused Dr.Nasim Shahzad and Muhammad Umar Shehzad in FIR No. 14 of 2023 of CBC Karachi, on the grounds that such authority is not vested in the FIA or any other Agency, unless an Order to this effect is passed by the Competent Court of jurisdiction in a criminal case to ensure appearance of any Accused/Proclaimed offender, whereas, according to learned counsel, in the instant case admittedly no Order has been passed by the Presiding Officer of Special Courts (Offences in Banks) -Ministry of Law and Justice. According to learned counsel for the Petitioners, Petitioners will seek remedy against the criminal proceedings before the Competent Court of jurisdiction by filing Transitory/Protective Bail so that Petitioners will be enable to defend their position, however, through instant Petition, the Petitioners have sought a declaration with regard to impugned letters which have been issued without lawful authority in violation of law.

Let pre-admission Notice be issued to the Respondents as well as DAG to be served through first three modes for 12.06.2024, when reply/ objections, if any, shall be filed with advance copy to learned counsel for the Petitioners. In the meanwhile, Respondents are restrained from taking any further adverse/coercive action against the Petitioners pursuant to impugned letters, as referred to hereinabove, till next date of hearing. Learned DAG present in Court in some other cases waives notice of instant Petition, claims its copy and seeks time to file comments. Learned counsel for the petitioner has supplied copy of the same to the learned DAG in Court. Let the reply/comments, if any, be filed before next date with advance copy to the learned Counsel for Petitioner.”

1. Pursuant to Court’s Notices, Ms. Shireen Hina, Section Officer, FIA (Policy), Ministry of Interior, Islamabad, has shown appearance alongwith learned DAG and has filed parawise comments along with report on behalf of Respondents No. 1 to 4, which are taken on record, copy thereof has been supplied to the learned counsel for petitioners, who after perusal of the same submits that there is no order of the Court for issuance of Red Warrant/Notice against the petitioners, who are foreign national, whereas, according to learned counsel for the petitioners, legal requirements, including initiation of proceedings under Section 87/88 Cr. P.C. read with Section 512 Cr. P.C. have not yet been undertaken in the instant matter. However, Assistant Director, NCB-Interpol has issued the impugned two (02) Notices, both dated 29.04.2024 addressed to the Section Officer (FIA), Ministry of Interior, (MOL), Islamabad, requesting for issuance of Interpol Red Notices against the proclaimed Offender/Accused Dr. Nasim Shahzad & Muhammad Omar Shahzad – Case FIR No. 14/2023 of CBC Karachi, which is totally illegal and without lawful authority.

4. While confronted with hereinabove factual and legal position, as stated by learned counsel for the petitioners, Section Officer, FIA (Policy), Ministry of Interior, Islamabad, present in Court and the learned DAG could not controvert such position, however, submitted that only a process for issuance of Red Notices has been initiated against the accused absconders, whereas, trial Court has already issued non-bailable warrant of arrest against both the accused, who are petitioners in the instant case. Learned counsel for the petitioners in response to such contention submits that there is no provision under the law for issuance of Red Warrants/Notices without orders of the competent Court of jurisdiction after proceedings under Sections 87/88, read with Section 512, Cr.P.C, therefore, prays that impugned Notices may be declared to be illegal and without lawful authority.

5. Heard the learned counsel for the petitioners as well as learned DAG and the Section Officer appearing on behalf of the Respondents No. 1 to 4, perused the record with their assistance as well as relevant provisions of law relating to issuance of non-bailable warrants of arrest declaring the accused nominated in FIR as absconders/pro-claimed offenders and issuance of Red warrants/ Notices through concerned Ministry to secure appearance of absconding accused after his arrest, in Court. Prima-facie, the proceedings initiated by the respondents/NCB-Interpol, FIA, Islamabad, in the case of petitioners for issuance of Red Warrants/ Notices have been initiated in the absence of any order from the competent Court of jurisdiction while filing an application to this effect, seeking permission for issuance of Red Warrants/Notices in accordance with law and the procedure to be adopted for such purpose. It is admitted position that no order has been passed by the learned trial Court in terms of Sections 87/88 read with Section 512, Cr.P.C. against petitioners in the above case. It has been further noted that alongwith comments filed by the respondent, a copy of letter dated 08.05.2011 issued from Ministry of Interior, Government of Pakistan has been attached, which is reproduced hereunder for relevance to the proceedings under consideration:

No. 6/30/2011-FIA GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR

\\

Islamabad, the 6th May, 2011

| | | | --- | --- | | 1. The Home Secretary, Government of Punjab,Lahore | 9. The Provincial Police Officer, Punjab, Lahore. | | 2. The Home Secretary,Government of Sindh, Karachi. | 10. The Provincial Police Officer, Sindh, Karachi. | | 3. The Home Secretary, Government of Balochistan, Quetta. | 11. The Provincial Police Officer, KPK, Peshawar. | | 4. The Home Secretary, Government of KPK,Peshawar. | 12. The Provincial Police Officer, Balochistan, Quetta. | | 5. The Chief Secretary, Gilgit-Baltistan, Gilgit. | 13. The Inspector General of Police, Azad Jammu & Kashmir, Muzaffarabad. | | 6. The Chief Secretary,Azad Jammu & Kashmir, Muzaffarabad. | 14. The Inspector General of Police, Gilgit-Baltistan, Gilgit. | | 7. The Chairman, National AccountabilityBureau, Islamabad. | 15. The Director (NCB) FIA Headquarters,Islamabad | | 8. The Director General, FIA Headquarters,Islamabad. | |

SUBJECT: ISSUANCE OF RED WARRANT/NOTICE AND EXTRADITION ORDER

I am directed to say that the Minister for Interior has directed that no Red Warrant/Notice and Extradition Order shall be issued without approval of the Minister vide Ministry of Interior letter No. 6/3/2011-FIA dated 28-03-2011.

1. It is requested that requests for issuance of Red Notice to the accused person may please be routed through the Ministry of Interior, Islamabad for approval and onward processing by the NCB-INTERPOL in future.

2. It is further requested that the following documents in duplicates (two separate sets) dully attested by the concerned D.P.O. may please be furnished to this Ministry alongwith request, otherwise no action will be taken on incomplete documents:

| | | | --- | --- | | i. | Red Notice application form indicating date ofbirth on the format of the INTERPOL duly filled by District Police Officer etc. | | ii. | Copy of FIR in English translation | | iii. | Statement of witnesses u/s 161 Cr.P.C. | | iv. | Summary/History of the case in English | | v. | 1st warrant for arrest of accused U/S 204 CrPC-issued by the Court. | | vi. | Proclamation order against accused U/S 87, 204 Cr.P.C by the court to be published in the Newspaper for appeared before the court withinone month. | | vii. | Perpetual warrant of arrest under u/s 512Cr.P.C issued by the court. | | viii. | PISCES verification/travel history. | | viii. | Photograph (4x4) | | ix. | Verisys information (CNIC)/copy of CNIC orCNIC No. |

Sd/- (ABDUL HANAN) Section Officer (FIA) Tele: 051-9207862”

1. The legal position as stated above is duly acknowledged by the Ministry of Interior in aforesaid letter, therefore, there seems no ambiguity as to adopt the legal course and procedure prescribed by law to secure the appearance of absconding accused person(s) before the trial Court.

2. In view of hereinabove facts and circumstances of instant case, the impugned letters are without lawful authority, hence of no legal effect. However, respondents are at liberty to pursue the matter before the relevant forum/Court and after obtaining the appropriate orders may take further step to secure the production of the absconding accused persons before the Court, in accordance with law. The petitioners are also at liberty to seek appropriate remedy by approaching the relevant forum/Court to join the trial in accordance with law.

8. Instant Constitution Petition stands disposed of in the above terms along with listed application.

(Y.A.) Petition disposed of

PLJ 2024 Karachi 144 (DB)

Present: Muhammad Junaid Ghaffar and Adnan-ul-Karim Memon, JJ.

MUMTAZ ALI PANHWAR and others--Petitioners

versus

PROVINCE OF SINDH and others--Respondents

C.P. Nos. D-2628 & 3301 of 2022, decided on 4.6.2024.

Constitution of Pakistan, 1973--

----Art. 199--Appointment on contingency basis--Specified project--Terms and conditions were accepted by petitioners--No vested right--Petitioners were filed writ petition for regularization--Dismissed--Res-judicata--Petitioner had been engaged as Naib Qasid on contingency basis for a period of 89 days on various terms and conditions--Petitioners had accepted those terms and conditions--The claim of Petitioners Counsel that they had been in employment continuously was not substantiated from record placed before High Court--The project in question was ever accorded permanence by Government or was made part of regular budget--Posts in question had never been made regular or permanent posts falling within budget of Government--Petition dismissed.

[P. 149] A, B & C

2020 SCMR 507 and 2021 SCMR 675 ref.

M/s. M. M. Aqil Awan & Danish Rashid, Advocates for Petitioners (in both Petitions).

Mr. Ali Safar Deeper, AAG for Respondents (in both Petitions).

Date of hearing: 26.3.2024.

Order

Muhammad Junaid Ghaffar, J.--Through this Petition, the Petitioners have sought the following relief(s):-

“a. That Respondents may be directed to give the same treatment to the Petitioners as has been accorded to the contingency employees of Left Bank Out fall Drainage project through legislation or otherwise.

b. That this Honorable Court would be pleased to declare that all the appointments made on contract/contingent basis being violative of Article 4. 38 and the pronouncement made by the Honorable Supreme Court on this subject, are illegal and unlawful with the further restraint that no such appointment would be made in future exception the regular appointment.

c. That Respondents may kindly be restrained in future from converting the permanent/regular work in the form of project and all the regular works of the type involved in defunct NPIW and SIAPEP may be carried out on regular basis through regular employees by the concerned department itself.

d. That this Honorable Court may be pleased to direct the Nazir of this Honorable Court to release the salaries of the Petitioners deposited with the Nazir with effect from October 2014 to June 2015, after their due verification and in accordance in Law and procedure.

e. That this Honorable Court would be pleased to declare that the appointment made of the Petitioners against the post of Naib Qasid, Rodman and Chowkidar with the prefix of contingent basis is treated in Law as regular appointment on regular basis.

In Alternate

f. That this Honorable Court would be pleased to direct the Respondents to finalize the proceedings in the light of initiatives and direction mentioned in Para 19 and 20 of this Petition and pass the final order of regularization of Petitioners within a shortest possible period.

g. That this Honorable Court would be pleased to direct the Respondents to regularize services of Petitioners with effect from their date of appointment on contingent basis made in the year 2007 or in alternate with effect from the year 2019 or with effect from the time as deem fit and proper to this Honourable Court with all consequential service benefits.

h. That Respondents may kindly be restrained from passing any adverse order against the Petitioners as a counter blast on filing of this Petition and be restrained specifically from terminating their services or stopping their salaries during pendency of this Petition.

i. Any other relief(s) this Hon’able Court may deem fit and proper in the facts and circumstances of the case may kindly granted.

j. Cost of the petition to be borne by the Respondents.”

2. Learned Counsel for the Petitioners has contended that the Petitioners were appointed as Naib Qasid and Drivers on Contingency basis for a period of 89 days and in support thereof he has referred to Page 297 which is an appointment order of one of the Petitioners dated 22.08.2019. According to him, though these appointments were made for a specified project; however, these posts are permanent in nature as without such appointments and permanency, no project can proceed or materialize. Per learned Counsel, in terms of Article 4 of the Constitution it is the right of every citizen to be dealt with in accordance with law, whereas, repeatedly the Petitioners have been appointed for a period of 89 days which is not sanctioned by law, and therefore, the Petitioners must be deemed to be appointed on permanent basis. He has contended that the project known as “National Programme for improvement of Water Courses” is a permanent project, being dependent on foreign funding, and different names are assigned to this programme. According to him, on such basis, instead of appointing the Petitioners on permanent basis, a contingency employment is offered so as to deprive the Petitioners from their rights of a permanent job. To further support his arguments, reliance has also been placed on PC-I available at Page 119. Per learned Counsel, the moot question is that whether this ad-hocism amounts to exploitation, and whether, it is in consonance with any law or not. According to him this needs to be addressed by this Court as time and again the Respondents have indulged into such contingency and temporary appointments depriving the citizens of this country to have any permanent employment. Per learned Counsel, there is a series of Judgments, wherein, the Courts have time and again regularized the services of such category of employees and the present set of Petitioners are also fully entitled for such benefit as their case is identical on facts. He has placed reliance on various reported cases.[1]

1. On the other hand, learned Assistant Advocate General has opposed the Petitions on the ground that the primary prayer of regularization cannot be granted as recently the Hon’ble Supreme Court in Vice Chancellor Agricultural University[2] has been pleased to hold that in absence of any Policy, Rules or Law, Courts cannot grant the relief of regularization to any employee, and therefore, these Petitions are liable to be dismissed. He has further contended that it was repeatedly claimed that the Petitioners are in service for many years; however, the last appointment placed on record is of the year 2019 which has no concern or connection with the earlier appointments, whereas, the conditions stipulated in the appointment order have been accepted by the Petitioners and therefore, no vested right is created in their favor. According to him, there is no compulsion in law for the Government to make appointments only on permanent basis as according to him, it is purely a matter of policy and is dependent on the funding as well as the projects conceived from time to time. He has prayed for dismissal of instant Petitions.

2. Heard learned Counsel for the Petitioners as well as learned AAG and perused the record. Before proceeding further, it would be advantageous to refer to the appointment order available at Page 297 in respect of one of the Petitioners which reads as under: -

“DIRECTORATE GENERAL OF FARM WATER MANAGEMENT, SINDH HYDERABAD.

NO.DG/OFWM/SIAPEP/Admin(M-114)/ 188 /2019 Hyderabad dated the 22/08/2019

OFFICE ORDER

With the approval of Competent Authority Mr. Mumtaz Ali Panhwar S/o Ameer Bux Panhwar having CNIC No. 41201-0979260-7 is hereby engaged as Naib Qasid on contingency basis for the period of 89 Days, in District Dadu and conditions with immediate effect till further orders.

• That the engagement on contingency basis is subject to fresh approval on expiry of every 89 days.

• That he will be paid fixed salary amounting to Rs. 15000/- per month.

• His engagement will be purely on Contingency basis for 89 days.

• His engagement could be discontinued at any time without any notice

• His engagement is subject to the availability of funds

• If at any stage it is found that the incumbent in unwilling and habitual absconder or violates the Government rules and regulations then his engagement will be discontinued without issuing any prior notice.

“If all terms and conditions mentioned above are accepted, the incumbent should join duty within 10 days in concerned district office.”

Sd/- (THARU MAL DODANI) DIRECTOR GENERAL”

==============

1. Form perusal of the above order, it reflects that the Petitioner has been engaged as Naib Qasid on contingency basis for a period of 89 days in District Dadu on various terms and conditions which include that the engagement is on contingency basis and is subject to fresh approval on expiry of every 89 days. The condition further provides that the engagement can be discontinued at any time without notice, whereas, this will also be subject to availability of the funds. As to the above, even there appears to be no dispute that Petitioners have accepted these terms and conditions. The claim of the Petitioners Counsel that they have been in employment continuously is not substantiated from the record placed before us and when confronted, learned Counsel has relied upon another appointment order of the year 2007, and on perusal thereof, it does not reflect that both these appointments have any nexus with each other. Therefore, as to the claim of the Petitioners that they have been regularly employed for a continuous period is also not borne out from the material placed before us. As to the contention that these posts are permanent in nature including the project in question it will suffice to observe that no supporting material to that effect has been placed before us. It is not the case of the Petitioners that they were appointed against vacant posts of any permanent nature. It is also not borne out from the record that the project in question was ever accorded permanence by the Government or was made part of the regular budget. In the same manner, the posts in question have never been made regular or permanent posts falling within the budget of the Government. They are admittedly dependent on the funds provided by the loan giving or donor agencies. Mere prolongation of the project does not ipso-facto demand that the posts and appointment shall be mandatorily regularized. The law in this regard is settled that such project employees are not entitled for any regularization after completion of the project. In our opinion, insofar as it relates to contract employees of the project, it is the prerogative of the project management to determine which employees are required for the extended period and stage of the project for effective implementation of the same. No vested right exists in favour of a particular employee to insist that the management should be directed to retain his services and extend his contract. The argument of the learned Counsel for the Petitioners that a direction be issued to the Respondent for legislation allowing regularization of the Petitioners as has been done in case of some other employees does not appear to bear any merit inasmuch as the Courts are not required to issue any direction to the executives for carrying out any such legislation. It is purely a policy matter and the prerogative of the executives as to whether a set of employees are required to be regularized or not.

2. It is also a matter of record that these Petitioners as well as some other employees approached this Court by way of C. P. No. D-764/2013 and other connected matters wherein, their case was that they are all engaged as part of the project known as “National Programmer for improvement of Water Courses” and were appointed on contingency basis and sought a declaration that they are entitled to be regularized. The learned Division Bench of this Court in a detailed opinion dated 18.05.2017 has considered the entire case law which has also been relied upon in the instant matter and was pleased to dismiss the said Petitions with certain observations as to future employments. The said Judgment admittedly, and as stated at the bar, (except one disabled petitioner who otherwise was also unsuccessful on merits) was never impugned by the present set of Petitioners any further. Therefore, the petition is otherwise (at least to the extent of common petitioners) is also hit by Resjudicata as the facts and issue, including the name of the project in hand were same.

3. On 12.03.2024, an order was passed by this Court whereby, the Petitioners Counsel was confronted that the case of Vice Chancellor Agricultural University Peshawar (supra) which is the latest view of the Hon’ble Supreme Court in respect of regularization of contract or temporary employees, and today while arguing learned Counsel has not been able to distinguish the said judgment except that this judgment is per in-curium. We are least impressed by this argument inasmuch as even an obiter dicta is binding on High Courts under Article 189 of the Constitution. Not only this, even otherwise, the argument as to the said view of the Supreme Court is per in-curium is misconceived and liable to be discarded. It would be advantageous to refer to Para 6 & 7 of the said Judgment which reads as under:

“6. It is well settled that the re is no vested right to seek regularization for employees hired on contractual basis unless there is any legal or statutory basis for the same.[3] The process of regularization requires backing of any law, rules or policy.[4] It should adhere to the relevant statutory provisions and government policies.[5] In the absence of any of the same, a contractual employee cannot claim regularization. Applying the principles settled by this Court to the proposition at hand, it becomes clear that the Respondents have no automatic right to be regularized unless the same has specifically been provided for in law or policy which in the present case is not available. Any regularization without the backing of law offends the principles of fairness, transparency and meritocracy and that too at the expense of public exchequer. The Impugned Judgment has also erred in law by failing to take into account that where a contractual employee wishes to be regularized, he must demonstrate statutory basis for such a claim, in the absence of which, relief cannot be granted solely on the principle of “similarly placed persons.[6]” Article 25 of the Constitution has no application to a claim based upon other unlawful acts and illegalities. It comes into operation when some persons are granted a benefit in accordance with law but others, similarly placed and in similar circumstances, are denied that benefit. But where a person gains, or is granted, a benefit illegally, other persons cannot plead, nor can the Court accept such a plea, that the same benefit must be allowed to them also in violation of law.[7] Thus, the ground of discrimination also does not stand, because in order to establish discrimination it is important to show that the earlier act was based on law and policy, which has not been the case here. Thus, with respect to the first question raised, we are of the view that the regularization of the Respondents cannot take place without the backing of any law, rule or policy and without an open and transparent process based on an objective cirteria, as discussed above.

1. At this juncture, it is underlined that the process of regularization is a policy matter and the prerogative of the Executive which cannot be ordinarily interfered with by the Courts[8] especially in the absence of any such policy. It does not befit the Courts to design or formulate policy for any institution, they can, however, judicially review a policy if it is in violation of the fundamental rights guaranteed under the Constitution. The wisdom behind non-interference of Courts in policy matters is based on the concept of institutional autonomy which is defined as “a degree of self-governance, necessary for effective decision making by institutions of higher education regarding their academic work, standards, management, and related activities ...”[9] Institutional autonomy is usually determined by the level of capability and the right of an institution to decide its course of action about institutional policy, planning, financial and staff management, compensation, students, and academic freedom, without interference from outside authorities.[10] The autonomy of public institutions is not just a matter of administrative convenience, but a fundamental requirement for the effective functioning of a democratic society, as public sector organizations are guardians of the public interest. Democracy, human rights and rule of law cannot become and remain a reality unless higher education institutions and staff and students, enjoy academic freedom and institutional autonomy.[11] More recently, the concept has in its longstanding and idealized form been well captured in the Magna Charta Universaitum 2020 that states “... intellectual and moral autonomy is the hallmark of any university and a precondition of its responsibilities to society.[12]”

2. From perusal of the aforesaid observations, it clearly reflects that all the arguments which have now been raised by the Petitioners Counsel including discrimination and applicability of Article 25 of the Constitution has been dealt with by the Hon’ble Supreme Court and has been pleased to hold that any regularization without the backing of law offends the principles of fairness, transparency and meritocracy and that too at the expense of public exchequer. It has been further observed that any contractual employee who wishes to be regularized, has to demonstrate statutory basis for such a claim and in absence of which the relief so prayed for cannot be granted solely on the principle of “similarly placed persons”. It has been held that where a person gains or is granted a benefit illegally, other persons cannot plead, nor can the Court accept such a plea, that the same benefit must be allowed to them also in violation of law. The Hon’ble Supreme Court has perhaps, set the controversy at naught through the above judgment and now any regularization can only be ordered by a Court when there is some law, rule or policy duly adopted and issued by the Government and only then its enforcement can be sought and done by the Court. There appears to be no exception any more insofar as the claim of regularization is concerned.

3. Despite being confronted with the aforesaid observations of the Supreme Court and the fact that the said judgment in now in field, Petitioner’s Counsel has made his best possible efforts to argue and buttress his submissions with numerous judgments of the Courts as reproduced hereinabove which has consumed considerable time of this Court, which otherwise, could have been spent on deciding other important matters. As already observed, even an obiter dictum, at times is also a binding precedent and this Court must not presume that Supreme Court in Vice Chancellor Agricultural University Peshawar (supra) was not aware of the earlier precedents being relied upon by the Petitioner’s Counsel. Such line of arguments is misconceived; hence, liable to be discarded. In view of these observations, this appears to be a fit case to impose heavy costs on the Petitioners; however, showing restraint, we deem it not to do so; however, the Petitioners are warned to be careful in future as apparently, in their earlier effort before this Court, they had remained unsuccessful as well.

4. In the case of Province of Punjab[13] in somewhat identical circumstances, a set of Petitioners claiming to be contract employees under the World Bank (IDA) assisted project titled “Punjab Irrigated Agriculture Productivity Improvement Project” during continuance of their employment approached the learned High Court seeking regularization of their contractual employment against project posts. The petitions were disposed with directions to the Secretary Agriculture to treat the petitions as representations and decide the same after affording an opportunity of hearing them. The said representations were rejected, which was impugned by way of fresh petitions and the same were allowed against which Intra Court Appeals were also dismissed. The Government of Punjab approached the Supreme Court and while setting aside the order of regularisation and allowing the Appeals it was observed as follows:

5. It is clear and obvious from the record that the respondents were appointed afresh under the World Bank assisted development project w.e.f. 01.07.2012 on contract basis, initially for a period of three years. Under condition XVIII titled “Tenure”, the project posts were sanctioned only for the period and the period of employment was to be automatically terminated if not extended on expiry of the contract period. It appears that the gestation period of PIPIP expired on 30.06.2017, therefore, services of the respondents automatically stood terminated. Although the World Bank has provided additional financing to PIPIP from 30.06.2017 till 30.06.2021, on the basis of the terms of conditions of such extension, the contracts of some of the employees were not extended. We do not find any force in the argument of learned counsel for the respondents that they were discriminated against in so far as contracts of some of the contract employees were extended while those of others were not. In our opinion, in so far as it relates to contract employees of the project, it is the prerogative of the project management to determine which employees are required for the extended period and stage of the project for effective implementation of the same. No vested right exists in favour of a particular employee to insist that the management should be directed to retain his services and extend his contract.

6. In the case of Government of Khyber[14] again in somewhat similar circumstances, the case of project employees landed in Supreme Court and while once again deciding the issue against such set of employees the Supreme Court held as under:

8. A bare perusal of the appointment orders of the Respondents reveal that they were appointed on contractual basis in the Skill Development Centers by TUSDEC, a fully owned subsidiary of PIDC which is a state corporation working under the Ministry of Industries and Production. It was deal from the outset that the Respondents were temporary employees of the project authorities and hence were not the employees of the Department. Subsequently, the project was handed over to the Provincial Government, which upon taking charge of the said project advertised various posts for making ad hoc appointments. It is pertinent to note that the Respondents did not apply to the advertised appointments and instead filed constitutional petitions before Peshawar High Court.

1. It is well settled law that where a project employee is recruited by a Company for a definite period of time, such an employee does not under any circumstances either directly or by implication become an employee of the provincial government. Therefore, it is apparent that the cases of the respondents clearly fall outside the ambit of the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 as they were all hired against project posts by TUSDEC and the project itself was to be executed by the Company under the control of the Federal Government for a requisite period of time before it was handed over to the Provincial Government. For the said Act to apply, it is the Provincial Government that must employ the individual. We are therefore, in no manner of doubt that there is a qualitative and conceptual difference between contract employees covered by the provisions of the 2009 Act and the temporary employees hired by TUSDEC during the time they operated the project before handing it over to the provincial government. Such employees cannot by any stretch of the language be termed or treated as employees hired by the KP Government. In these circumstances, the benefit of the Regularization Act, 2009 was not available to them.

12. Lastly, Petitioners Counsel has also placed reliance on some interim orders of the Supreme Court dated 23.8.2016 and 20.03.2017 in Civil Appeal No. 33-K & 34-K of 2016 (Province of Sindh v Dr. Bashir Ahmed & Others) and contended that taking guidance from the same, this Court must proceed further in accordance with such observations and call explanation and record from the Respondents. To that we may observe, that such observations of the Supreme Court were interim in nature and are not a binding precedent, whereas, admittedly the said case was finally withdrawn vide order dated 29.08.2017 and was never decided finally. In the case of Umar Farooq,[15] the Supreme Court has been pleased to dilate upon the effect of its interim orders and their applicability as a precedent for future purposes. It has been held that it would give such orders a degree of permanence and continuity quite contrary to its stated interim nature and it would be as though the matters in which the order was made had been finally decided and disposed of. This according to the Supreme Court is never the spirit of their interim orders. Therefore, the contention of the Petitioner’s Counsel on this account as well seems to be farfetched and without any legal or justifiable basis.

1. In view of hereinabove facts and circumstances, in our considered view, no case of indulgence or exercising any discretion is made out, whereas, the issue now finally stands decided against the Petitioners by the Apex Court, these Petitions being misconceived are hereby dismissed.

(Y.A.) Petition dismissed

[1]. Muhammad Jan and 3 others v. The Government of Baluchistan and another (2017 PLC (C.S.) 1471), Messrs State Oil Company Limited v. Bakht Siddique and others (2018 SCMR 1181), Gul Muhammad and 4 others v. Province of Sindh and 4 others (2010 PLC (C.S.) 1169), Naveed Iqbal Wadho and others v. Province of Sindh and others (2010 PLC (C.S.) 1395), Government of NWFP (Now KPK) and others v. Kaleem Shah and others (2011 SCMR 1004), Board of Intermediate and Secondary Education, Multan and another v. Muhammad Sajid and others (2019 PLC (C.S.) 539), Chairman, Pakistan Railways and others v. Arif Hussain and others (2008 PLC (C.S.) 240), Pir Imran Sajid and others v. Managing Director / General Manager (Manager Finance) Telephone Industries of Pakistan and others (2015 SCMR 1257), Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others (NLR 1999 Lahore 59), Water & Power Development Authority v. Abass Ali Malano & Others (NLR 2004 Service 12), Water & Power Development Authority v. Abass Ali Malano & Others (2004 SCMR 630), Jawaid Ghafoor v. Pakistan Civil Aviation Authority and another (2010 PLC (C.S.) 276), Ayaz Ahmed Memon v. Pakistan Railways, Ministry of Railway, Islamabad and another (2011 PLC (C.S.) 281), Government of North West Frontier Province and others v. Abdullah Khan and others (2011 PLC (C.S.) 775), Secretary, Ministry of Defence, Rawalpindi and others v. Muhammad Miskeen (1999 SCMR 1296), Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others (2011 PLC (C.S.) 367), Pakistan Telecommunication Company Limited and another v. Muhammad Zahid and 29 others (2010 SCMR 253), Abdul Rehman and others v. National Bank of Pakistan and others (2011 PLC (C.S.) 234), Pakistan Muslim League (N) and others v. Federation of Pakistan and others (PLD 2007 SC 642), Shah Nawaz and 36 other v. Province of Sindh and 4 others (C.P. No. D-7529/2018), Secretary (Schools), Government of Punjab, Education Department and others v. Yasmeen Bano (2010 SCMR 739), Dr. Bashir Ahmed and others v. Province of Sindh and others (2016 PLC (C.S.) 179), Sarfraz Ahmed v. Government of Sindh (2006 PLC (C.S.) 1304), Pakistan Railways and another v. Zafarullah, Assistant Electrical Engineer and others (1997 SCMR 1730), Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 PLC (C.S.) 69), Ikram Bari and others v. National Bank of Pakistan and others (2005 PLC (C.S.) 915), Shamsul Haque Mahar and others v. Province of Sindh and others (2013 PLC (C.S.) 1046).

[2]. Vice Chancellor Agricultural University of Peshawar, v. Muhammad Shafiq (2024 SCMR 527).

[3]. Faraz Ahmed v. Federation of Pakistan (2022 PLC 198); Government of Khyber Pakhtunkhwa v. Sher Aman and others (2022 SCMR 406); Vice Chancellor, Bacha Khan University Charsadda, Khyber Pakhtunkhwa v. Tanveer Ahmad (2022 PLC (C.S.) 85; Pakistan Telecommunciation Company Ltd. v. Muhammad Samiullah (2021 SCMR 998); Messrs Sui Northern Gas Company Ltd. v. Zeeshan Usmani (2021 SCMR 609); Khushal Khan Khattak University v. Jabran Ali Khan (2021 SCMR 977); Pakistan Telecommunication Company Ltd. v. Muhammad Samiullah (2021 SCMR 998); Government of Khyber Pakhtunkhwa v. Saeed-Ul-Hassan (2021 SCMR 1376); Muzaffar Khan v. Government of Pakistan (2013 SCMR 304); Government of Balochistan, Department of Health v. Dr. Zahid Kakar (2005 SCMR 642).

[4]. Government of Khyber Pakhtunkhwa v. Sher Aman and others (2022 SCMR 406); Government of Khyber Pakhtunkhwa, Workers Welfare Board v. Raheel Ali Gohar (2020 SCMR 2068).

[5]. Government of Khyber Pakhtunkhwa v. Intizar Ali (2022 SCMR 472); Pir Imran Sajid v. Managing Director Telephone Industries of Pakistan (2015 SCMR 1257).

[6]. Deputy Director Finance and Administration FATA v. Dr. Lal Marjan (2022 SCMR 566).

[7]. Muhammad Yasin v. D.G. Pakistan, Post Office (2023 SCMR 394).

[8]. Waqas Aslam v. Lahore Electric Supply Company Limited (2023 SCMR 549); Province of Punjab through Chief Secretary, Lahore v. Prof. Dr. Javed Iqbal (2022 SCMR 897).

[9]. Chapter V, Recommendation concerning the Status of Higher-Education Teaching Personnel (1997) UNESCO < https://en.unesco.org/about-us/legal-affairs/recommendation-concerning-status-higher-education-teaching-personnel?>

[10]. OECD, Governance and Quality Guidelines in Higher Education: A Review of Governance Arrangements and Quality Assurance Guidelines (2005).

[11]. Khyber Medical University v. Aimal Khan (PLD 2022 SC 92).

[12]. Principles, Values and Responsibilities, Magna Charta Universaitum (2020).

[13]. Province of Punjab v Muhammad Arif (2020 SCMR 507).

[14]. Government of Khyber Pakhtunkhwa v Shahzad Iqbal (2021 SCMR 675).

[15]. Umar Farooq v Sajjad Ahmed Qamar order dated 30.1.2024 I CPLA No. 210 of 2024 and other connected matters.

PLJ 2024 Karachi 156 (DB)

Present: Yousuf Ali Sayeed and Arbab Ali Hakro, JJ

Syed SAULAT HUSSAIN NAQVI--Petitioner

versus

FEDERATION OF PAKISTAN and others--Respondents

C.P. No. D-3201 of 2024, decided on 19.9.2024.

Companies Act, 2017 (XIX of 2017)--

----S. 166(2)--State Owned Enterprises Act, 2023, S. 29--Recruitment for post of CEO--Constitution of Board--Appointment of independent directors--Increase of size of board-Power of Federal Government--Challenge to--Respondent No. 3, S. 29 of SOE Act empowered Federal Government to exercise all powers and rights of shareholders with Respondent No. 3 being entirely owned by Federal Government and its shareholding vesting solely in President of Pakistan, which factual aspect remained unrefuted--As such, the argument that an AGM ought to had been called for approving the increase in the size of its Board appeared fallacious and misconceived--A series of disparate allegations had been conflated so as to cobble together a case against recruitment process, which, on examination, did not suffer from any contravention of law, rule, policy so as to warrant interference in exercise of constitutional jurisdiction of High Court--Petition dismissed. [Pp. 160 & 161] A & B

Mr. Ahmed Masood, Advocate for Petitioner.

Mr. Zahid F. Ebrahim, Advocate for Respondent No. 3.

Mr. Zehrah S. Vayani, Assistant Attorney General for Pakistan.

Dates of hearing: 06.09.2024, 11.09.2024 and 19.09.2024.

Order

Yousuf Ali Sayeed, J.--The Petitioner is an aspirant to the post of Chief Executive Officer (“CEO”) of the National Insurance Company Limited (“NICL”), arrayed as the Respondent No. 3, having applied for that post in pursuance of an Advertisement dated 18.05.2024 issued by the Board of Directors for inviting applications in that regard. Be that as it may, he has since preferred this Petition under Article 199 of the Constitution so as to challenge the criteria and process for recruitment to that post along with the Advertisement itself while impugning the very composition and intent of the Board.

1. The essence of the grievance espoused by the petitioner is encapsulated in Paragraph 5 of the Memo of Petition, where it has been stated that the same “emanates from Respondent No. 3’s issuance of the impugned Advertisement dated May 18, 2024 through which Respondent No. 3’s Board has solicited applications for the position of its Chief Executive Officer. The Petitioner also seeks to apply for the said position. Nonetheless, given the malafide and the illegalities which have been symptomatic of Respondent No. 3’s Board, the Petitioner most respectfully submits that the Petitioner’s fate has been entrusted to an unlawfully constituted Board”. Be that as it may, a host of prayers have been advanced through the Petition, with it being sought inter alia that this Court be pleased to:

I. Declare the appointment of Respondents No. 4 and 5 vide the Impugned Notification dated 08.08.2023, to be violative of law and hence the same is liable to be set aside;

II. Declare that the number of Board Members of the Respondent No. 3 has been increased vide the Impugned Notification dated 08.08.2023, without conducting an Annual General Meeting and hence, the same is liable to be set aside;

III. Declare that the Management of the Respondent No. 3 is to be appointed through the Board of the Respondent No. 3 meaning thereby that the Respondents No. 3 has circumvented the Statutory Regulations in place by appointing the Respondent No. 6 as the Company Secretary through the Impugned Office Order dated 10.08.2023 and hence the same is liable to be set aside;

IV. Declare that the selection and appointment method for the post of Chief Executive of the Respondent No. 3 is to be in accordance Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015 and Insurance Companies (Sound and Prudent Management) Regulations, 2012;

V. Declare that the Impugned Advertisement dated 18.05.2024 is illegal, mala fide, arbitrary and ultra vires of the Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015 and Insurance Companies (Sound and Prudent Management) Regulations, 2012;

VI. Direct the Respondents No. 1 to 3 to appoint the Chief Executive of the Respondent No. 3 in accordance with the Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015 and Insurance Companies (Sound and Prudent Management) Regulations, 2012;

VII. Suspend the operation of the Impugned Notification dated 08.08.2023;

VIII. Suspend the operation of the Impugned Office Order dated 10.08.2023;

IX. Suspend the operation of the Impugned Advertisement dated 18.05.2024;

X. Restrain the Respondents, their officers, agents or anyone acting on their behalf from implementing the Impugned Advertisement dated 18.05.2024 and/or in any manner appoint any person as the Chief Executive of the Respondent No. 3 in accordance with the same before first ensuring compliance with the Statutory Framework in Place with regards to the Management of the Company and the Board of the Company;”

1. Proceeding with the matter, learned counsel for the petitioner submitted that NICL was a State Owned Enterprise (“SOE”) within the contemplation of the State Owned Enterprises Act, 2023 (the “SOE Act”) and the size of its Board had been increased from 7 to 8 vide the impugned Notification dated 08.08.2023 issued by the Federal Government in purported exercise of power under that statute but without the concurrence of its General Body, which offended Clauses 54 and 55 of its Memorandum and Articles.

2. He further submitted that the Respondents Nos. 4 and 5 who were brothers inter se, had also thereby been inducted as independent directors, contrary to Section 166(2) of the Companies Act 2017 (the “Companies Act”), and the composition of the Board was defective for that reason as well as due to the absence of female representation in terms of Section 154 thereof. He argued that the Board had then issued the Advertisement while setting an experience requirement of 15 years and an upper age limit of 62 years with mala fide intent at the behest of the incumbent CEO so as to facilitate his reappointment, with it being alleged that the incumbent had engaged in various acts of malfeasance during his tenure. It was submitted that the entire matter had been orchestrated so as to ensure that the Board was hand in glove with the present CEO so as to perpetuate his tenure for their personal gain to the detriment of NICL. He conceded that the age requirement had been changed for the first time by the Respondent No. 3 in the advertisement published on 03.12.2020, being the previous time that the post had been advertised, but submitted that in the earlier two advertisements published on 05.09.2020 and 27.01.2019, the age limit set had been in the range of 45-57 years. He argued that it had then been changed on the next occasion so as to cater to the current CEO. He contended further that the aforementioned factors constituted irregularities that evidenced collusion of the Respondents Nos. 4 and 5 to ensure that the incumbent CEO was re-appointed and argued that as the constitution of the Board was questionable, any recruitment and appointment would be illegal, hence, the process ought to be reinitiated after an an Annual General Meeting had been convened in order to constitute a lawful board that could then initiate a fresh advertisement in the matter.

3. Responding to those assertions, learned counsel for the Respondent No. 3 pointed out that while the tenor of the Petition and the arguments advanced in the matter gravitated around the incumbent CEO, who was said to be the architect of an enterprise to further entrench him in that capacity within NICL, he had not even been arrayed as a respondent. Furthermore, the allegations regarding the Board and its composition being engineered so as to undertake a recruitment process skewed to favour the CEO were wildly fanciful and remained wholly unsubstantiated.

4. He submitted that the Notification dated 08.08.2023 issued by the Ministry of Commerce, Government of Pakistan reconstituting the Board was a valid exercise of power and authority under the SOE Act, which had then been approved by the SECP through its letter dated 26.10.2023, and only brought into question over a year later, that too by someone who himself was merely an aspirant to the post to which the Advertisement related.

5. He argued that Section 166 (2) (e) of the Companies Act did not preclude the Respondents Nos. 4 and 5 from being appointed as independent Directors as their relationship inter-se sans a relationship to the promoters/shareholders did not bar their appointment. He submitted that Section 153 of the Companies Act did not spell out such a disqualification. He argued that as an SOE, the Respondent No. 3 was to be to be governed in terms of the SOE Act, which was a special law.

6. He also pointed out that while the Petition was replete with references to a sixth respondent and to the office/role of the Company Secretary, with the Impugned Office Order dated 10.08.2023 pertaining to that functionary and Prayer Clauses III and VIII being related thereto, only 5 respondents had been arrayed in the matter, rendering such averments and prayers superfluous, to which learned counsel for the Petitioner responded by submitting that such grounds and prayers as related to the matter of the Company Secretary were not being pressed

7. Having considered the argument advanced, it merits consideration that while Section 166 (2) of the Companies Act states that “For the purpose of this section, an independent director means a director who is not connected or does not have any other relationship, whether pecuniary or otherwise, with the company, its associated companies, subsidiaries, holding company or directors; and he can be reasonably perceived as being able to exercise independent business judgment without being subservient to any form of conflict of interest”, with the proviso to that Section going on to clarify that one of the circumstances were a director would not be considered to be independent is where “he is a close relative of the company’s promoters, directors or major shareholders”, with the term “close relative” being explained as meaning “spouse(s), lineal ascendants and descendants and siblings”, we are of view that the provision does not serve to preclude two or more persons who are related inter se but as are otherwise unrelated to the sponsors/shareholders or directors representing otherwise representing their interests from being appointed as independent directors of a company.

8. As regards the matter of female representation on the Board, it merits consideration that while the proviso to Section 154 of the Companies Act envisages “… that public interest companies shall be required to have female representation in their board as may be specified by the Commission” it was denied that any such requirement had been imposed and learned counsel for the Petitioner was also unable to point to any notification or directive in that regard.

9. Furthermore, as pointed out by learned counsel for the Respondent No. 3, S. 29 of the SOE Act empowers the Federal Government to exercise all the powers and rights of shareholders with the Respondent No. 3 being entirely owned by the Federal Government and its shareholding vesting solely in the President of Pakistan, which factual aspect remained unrefuted. As such, the argument that an AGM ought to have been called for approving the increase in the size of its Board appears fallacious and misconceived.

10. Through his arguments, learned counsel appearing on behalf of the Petitioner painted NICL to be rife with malfeasance, with its incumbent CEO being at the epicentre thereof and to have so entrenched himself within the organisation so as to be able to

orchestrate his own continuity in that role. However, it falls to be considered that when those contentions are examined, the suggestion that emerges is that the Federal Government has conspired so as to expand the size of the Board and induct handpicked persons for the role of independent directors while excluding female representation for the ulterior motive of then tailoring the Advertisement to fit the specifications met by the incumbent so as to pave the way for his reappointment, all of which is far-fetched to say the least. As it stands, it appears that a series of disparate allegations have been conflated so as to cobble together a case against the recruitment process, which, on examination, does not suffer from any contravention of law, rule, policy so as to warrant interference in exercise of the constitutional jurisdiction of this Court.

1. It is for the foregoing reasons that the Petition was dismissed vide a short Order made in Court upon culmination of the hearing on 19.09.2024.

(Y.A.) Petition dismissed

PLJ 2024 Karachi 161 (DB)

Present:Yousuf Ali Sayeed & Arbab Ali Hakro, JJ.

Syed MEHMOOD ALI--Appellant

versus

AMJAD YOUSUF--Respondent

HCA Nos. 205 & 293 of 2018, decided on 11.10.2024.

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

----O.XXXVII, Rr. 1,2 & O.XIV R. 5--Suit for recovery--Partially decreed--Sale agreements--Issuance of receipts--Cheque was dishonoured--Additional issues were framed on application of plaintiff--Exclusion of additional issue from judgment--Natural justice and fairness--Challenge to--An application under Order 14 Rule 5, C.P.C. was submitted, which was allowed with concurrence of parties by virtue of an Order--The impugned Judgment was cited and deliberated upon former issues framed in impugned Judgment, while no findings or discussion were rendered on additional issues framed and same remained unadjudicated--Additional issues were crucial to case, and their exclusion from Judgment undermines comprehensiveness and fairness of judicial process--It was obligated to provide findings and reasons for each issue, including additional ones, to ensure a just and equitable resolution of case--The failure to do so contravenes provisions of Order XX Rule 5, C.P.C.--Appeals disposed of. [P. 166] A, B & D

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

----O.XX & R. 5--Framing of issues--In suits where issues have been framed, Court must state its findings or decisions and reasons for each separate issue--This provision ensures that Court addresses all issues raised or framed during trial comprehensively and transparently. [P. 166] C

Mr. Shahenshah Hussain, Advocate for Appellant.

Ch. Abdul Rasheed, Advocate for Respondent.

Dates of hearing: 21.8.2024 & 19.9.2024.

Judgment

Arbab Ali Hakro, J.--These two appeals were instituted to impugn the Judgment dated 28.5.2018 (“Impugned Judgment”), and the Decree formulated in consequence thereof dated 12.06.2018, rendered by a learned Single Judge of this Court in Suit No. 963 of 2013 (“Suit”). Given that the crux of the controversy in all these appeals is contingent upon the Impugned Judgment, the said appeals shall be adjudicated upon through this consolidated Judgment.

1. A succinct exposition of the factual matrix pertaining to the extant appeals is delineated in chronological sequence herein below:-

i. The appellant of HCA 205/2018 instituted a suit for the recovery of PKR 53,000,000/-against the respondent, alleging therein that the respondent, being his confidant, solicited financial assistance for constructing a multi-storeyed edifice on Plot No. B-29, situated on the main Shahrah-e-Faisal, Sindhi Muslim Cooperative Housing Society, Karachi. The respondent requested the provision of funds by agreeing to sell two premises, admeasuring 1670 Square Feet and 1667 Square Feet, on the second floor of the proposed building for a total sale consideration of PKR 10,000,000/-(Rupees One Crore) each. The appellant in the suit averred that the respondent assured him of repurchasing both premises at an enhanced price of PKR 8000 per square feet within one year. Consequently, two separate agreements dated 11.05.2012 with the appellant and 24.10.2012 with

his son, Syed Faisal Ali, were executed, and PKR 20,000,000/-(Rupees Two Crore) were disbursed. It was further contended that the respondent, also being a money changer, offered to sell USD 300,000/-in the fourth week of December 2012 at PKR 95 per USD, equivalent to PKR 28,500,000/-(Rupees Two Crore Eighty-Five Lac), and as an inducement, asked the appellant to pay a discounted price of PKR 27,900,000/-(Rupees Two Crore Seventy-Nine Lac), which was paid on 25.12.2012. Three receipts were issued in the names of the appellant, his son Syed Faisal Ali, and his wife Mst. Zahida Begum for an amount of PKR 9,500,000/-(Rupees Ninety-Five Lac) each. However, despite the payment, the dollars were neither issued nor delivered, and the respondent continued to seek further time but never repaid the amount. Subsequently, upon persistent demands, the respondent issued a cheque dated 30.06.2013, drawn on Meezan Bank for PKR 37,900,000/-(Rupees Three Crore Seventy-Nine Lac), which was dishonoured upon presentation due to insufficient funds.

ii. The appellant of HCA No. 293/2018, who is also the respondent in the lead HCA, impugned the Judgment and alleged in his appeal that he is engaged in the construction business under the name and style of Zam Zam Builders & Developers. One Zulfiqar Ali Abbasi, being the owner of Plot No. B-29, situated on the main Shahrah-e-Faisal, Sindhi Muslim Cooperative Housing Society, Karachi, engaged his services in the construction of a project on the aforementioned plot. The respondent approached the appellant in April 2012, expressing his willingness to invest in the project and purchase a certain portion of the project. Consequently, agreements (details of which are delineated in the preceding HCA) were executed. The appellant claims that the respondent insisted on being provided with a post-dated cheque as security, to which Cheque No. A-9944601 was handed over to the respondent by the appellant. According to the appellant, he had returned an amount of PKR 10,000,000/-to the respondent, and the portion of the second floor was also retained by the respondent. Hence, no claim whatsoever arises against the appellant. However, the respondent, having concocted a false and fictitious story regarding money exchange, obtained the impugned Judgment and Decree.

1. The evidence was adduced solely by the plaintiff, and upon the culmination of the final arguments in the suit, the Impugned Judgment and Decree was rendered.

2. The learned Single Judge of this Court, vide the Impugned Judgment, was pleased to partially decree the suit for the recovery of PKR 13,336,000/-(Rupees One Crore Thirty-Three Lacs and Thirty-Six Thousand Only) with simple profit at the rate of 6% per annum (not on a compound basis), from 23.10.2013 (i.e., after one year) until its realization. However, for the remainder of the claim, the suit was dismissed.

3. The appellant of HCA No. 205/2018, being the plaintiff, impugned the Judgment and Decree based on which the suit was partially decreed, and he beseeched the setting aside of the Impugned Judgment and Decree and prayed for the Decree of the suit as originally prayed. Conversely, the appellant of HCA No. 293/2018 beseeched the setting aside of the impugned Judgment and Decree.

4. It is against this backdrop that detailed arguments were advanced by the respective learned counsel on the issue of whether the Impugned Judgment and Decree were rendered in consonance with the law.

5. It is deemed prudent to elucidate here that the appellant Syed Mehmood Ali in HCA No. 205/2018 is the respondent in HCA No. 293/2018, whereas the appellant Amjad Yousuf in HCA No. 293/2018 is the respondent in HCA No. 205/2018. Given that the subject matter of these HCAs, as well as the parties involved, are identical, and to obviate any potential confusion, Syed Mehmood Ali (appellant) shall be referred to as the “plaintiff” in this edict, whereas Amjad Yousuf (respondent) shall be referred to as the “defendant”.

6. Learned counsel for the plaintiff has contended that ample grounds, supported by the ratio decidendi of sound judgments of the Superior Courts, were present to demonstrate that the plaintiff was entitled to the Decree as prayed in the suit. He has argued that the learned Single Judge misinterpreted the prescriptions of Order XXXVII Rule 1 & 2, C.P.C. in the Impugned Judgment and Decree, as the opportunity and remedy for resolving grievances lie at the discretion of the litigating parties. He has further submitted that the burden of proof rested on the defendant and not on the plaintiff, as the plaintiff had introduced documentary evidence corroborated by oral evidence through the production of witnesses. However, the Defendant Neither ventured into the witness box nor led any evidence in his defence, yet the learned Single Judge partially decreed the appellant’s claim instead of decreeing it in its entirety. He also submitted that although the defendant introduced his written statement on record, he failed to adduce evidence. It is a trite law that written statements or pleadings of the parties cannot be treated as evidence unless a party enters the witness box and leads evidence in support of his claim. Furthermore, the defendant admitted the appellant’s claim (particularly the signing of agreements and issuance of receipts regarding the US$ exchange) in his written statement filed in the suit. Once a fact is admitted in a written statement does not require further proof. He has also added that the learned Single Judge framed the additional issue and the burden upon the defendant, but he did not discharge. Therefore, the learned Single Judge didn’t need to give findings on that additional issue. However, the learned Single Judge erred in rendering the Impugned Order, whereby the claim of the plaintiff was partially decreed rather than as prayed. In support of his contentions, he placed reliance on PLD 1982 Khi 745, 1994 CLC 2103, 2007 SCMR 1820, 1999 SCMR 283, PLD 2010 S.C. 604, and 2024 SCMR 771.

7. In contra, it was contended by the learned counsel for the defendant that the HCA filed by the appellant is liable to be dismissed, and the HCA filed by him challenging the legality of the impugned Judgment and Decree be allowed. He contended that it was demonstrated by the record that the plaintiff neither proved the stance of issuing receipts for money exchange nor introduced on record through evidence that the defendant had issued such money exchange receipts. He further contended that the affidavit-in-evidence filed by the plaintiff in the suit was beyond his pleadings, and several improvements were made by the plaintiff in his affidavit-in-evidence, which improvements per se are not admissible. He also contended that the plaintiff sought to implead Meza Currency Exchange as a party being Defendant No. 2 through a CMA in the suit, which was allowed, but the said impleading order was set aside in HCA 95/2014. Therefore, the claim of the plaintiff whatsoever is not sustainable, and the impugned Judgment and Decree ought not to be sustained. He further submitted that the plaintiff admitted to having received an amount of PKR 10,000,000/-on behalf of the defendant, which was the actual invested amount of the plaintiff, and that the plaintiff acquired a portion of the second floor in the project as its profit. Therefore, no claim whatsoever arises against the defendant, and the impugned Judgment and Decree are liable to be set aside. He relied upon the case laws reported as 2019 SCMR 1726 and 1982 SCMR 816.

8. We have scrupulously considered the submissions advanced by the learned counsel for the plaintiff and defendant and have meticulously examined the impugned Judgment rendered by the learned Single Judge, including material available on record.

9. Upon meticulous scrutiny of the record, it is manifest that the initially by virtue of an Order dated 22.10.2014, predicated upon the pleadings of the parties, delineated the ensuing issues:-

i. Whether the amount as claimed in the suit is due and outstanding against the defendants?

ii. Whether the Defendant No. 2 is liable to pay the amount as claimed or any other amount to the plaintiff?

iii. What should the Decree be?

1. The record further elucidates that an application under Order 14 Rule 5, C.P.C. was submitted, which was allowed with the concurrence of the parties by virtue of an Order dated 04.12.2014. Consequently, in addition to the aforementioned issues, the following additional issues were delineated:

i. Whether the suit is maintainable or not? If so, its effect?

ii. Whether Defendant No. 1 had issued/delivered post-dated cheque No. A-9944601 dated 30.6.2013 for Rs. 37,900,000/-in favour of the plaintiff as security or not? If so, its effect.

1. However, a meticulous perusal of the impugned Judgment reveals that it is cited and deliberated upon the former issues framed on 22.10.2014 in the impugned Judgment, while no findings or discussion were rendered on the additional issues framed on 04.12.2014, and same remained unadjudicated. These are material issues in this case. The provisions of Order XX Rule 5, C.P.C. stipulate that “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 these circumstances, the learned Single Judge was to provide reasons for his decision on the aforementioned additional issues.

2. Order XX Rule 5, C.P.C., mandates that in suits where issues have been framed, the Court must state its findings or decisions and the reasons for each separate issue. This provision ensures that the Court addresses all the issues raised or framed during the trial comprehensively and transparently. The rationale behind this rule is to provide clarity and justification for the Court’s decisions, thereby upholding the principles of natural justice and fairness. In the present case, additional issues were crucial to the case, and their exclusion from the Judgment undermines the comprehensiveness and fairness of the judicial process. It was obligated to provide findings and reasons for each issue, including the additional ones, to ensure a just and

equitable resolution of the case. The failure to do so contravenes the provisions of Order XX Rule 5, C.P.C.

1. For the foregoing reasons, we ascertain that the impugned Judgment contravened the imperative stipulations of Order XX Rule 5, C.P.C. Consequently, we deem it judicious and equitable that the matter be remitted for a de novo adjudication on merits and in strict conformity with the law. With these pronouncements, both the instant appeals stand conclusively disposed of.

(Y.A.) Appeal disposed of

PLJ 2024 Karachi 167 (DB)

Present: Yousuf Ali Sayeed & Arbab Ali Hakro, JJ.

ZEESHAN MUGHAL--Appellant

versus

EXPORT PROCESSING ZONE AUTHORITY and others--Respondents

HCA Nos. 45, 46 & 47 of 2022, decided on 11.10.2024.

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

----O.XXXIX & Rr. 1 & 2--Application for interim injunctive relief--Dismissed--Appointment on daily wages--Board meeting--Condition of NTS for permanent appointment--Policy matter--Non-filing of objections by defendants--Opportunity of hearing--Challenge to--When Single Judge passed Impugned Order, no Counter Affidavits were filed by opposite party against Injunction applications--The absence of Counter Affidavits/ Objections from respondents deprived Court of a comprehensive understanding of matter, thereby necessitating a reconsideration of Injunction Applications in light of relevant documents and after providing an opportunity for both parties to present their arguments--The matter necessitate a thorough examination of documents--High Court it appropriate to remand case to Single Judge for a fresh adjudication of Injunction Applications--That should be done after providing an opportunity for hearing to both parties and inviting Counter Affidavits/Objections from respondents in light of documents or any other relevant documents that parties may wish to present if deemed necessary for proper disposal of matter in accordance with law--Appeals disposed of. [Pp. 169 & 170] A, B & C

Mr. Mohsin Kadir Shahwani, Advocate for Appellant (in all HCAs).

Mr. Sanaullah Noor Ghori, Advocate for Respondent (EPZA in all HCAs).

Mr. Munir Ahmed, Advocate for Respondent No. 5/NTS.

Dates of earing: 19.8.2024 & 11.9.2024.

Judgment

Arbab Ali Hakro, J.--These three High Court Appeals challenge the same Order dated 17.01.2022 (“Impugned Order”), rendered by a learned Single Judge of this Court in Suit Nos. 1058, 1059, and 1090 of 2015 (“Suits”), whereby the applications seeking injunctive relief were dismissed. The learned Single Judge, vide the Impugned Order, denied the grant of interim injunction sought by the present Appellants. Since all these connected appeals pertain to a common order and raise the same question of law, they shall be collectively decided through this common Judgment.

1. The facts pertaining to HCA No. 45/2022 (“Lead Appeal”) represent the facts related to the remaining appeals listed supra. Consequently, it shall suffice to predicate the factual discourse upon the controversy delineated in the Lead Appeal.

2. The Appellants had instituted individual suits against the present Respondents, alleging therein that they were appointed by Respondents No. 1 to 3 (Export Processing Zone Authority “EPZA”) on the dates mentioned in their respective suits and had been working and serving the EPZA as probationers/daily wagers. The Appellants contend that, as employees of the EPZA, they are not liable to undertake the screening/subjective test to be conducted by the NTS, as resolved by the EPZA in its 109th Meeting, purportedly held on 24.12.2014. Such actions on the part of the EPZA for conducting the test of the Appellants through NTS for their permanent appointment in the EPZA were impugned by the Appellants by filing suits. The injunctive relief prayed for by the Appellants in the interim applications, which are the subject matter of the Impugned Order, sought a restraining order. However, the learned Single Judge dismissed the applications for interim injunctive relief. The present High Court appeals were filed assailing the Impugned Order.

3. Mr. Mohsin Kadir Shahwani, learned counsel for the Appellants in all HCAs, submitted that the conditions imposed by EPZA for conducting the NTS test in its Board Meeting cannot be given effect retrospectively. The decision to conduct the NTS test taken by the EPZA has deprived the Appellants of their vested rights, as they have been serving the EPZA for a decade. He further submitted that the learned Single Judge, in the Impugned Order, has not appreciated that the Appellant Zeeshan Mughal was recruited through the proper course and procedure and was never a daily wager. The learned Single Judge did not consider the actual aspect and rendered the Impugned Order, which ought not to be sustained. He further submitted that the condition of undertaking an NTS test was never mentioned in the appointment letter of Appellant Zeeshan; therefore, he is not required to undertake such a test. He also submitted that the EPZA Employees Services Rules do not mention the condition of publication for the appointment of daily wagers. However, the learned Single Judge haphazardly rendered the Impugned Order without considering the statutory provisions of the EPZA Employees Services Rules. Per Rule 7(a)(vii), for the appointment of a post of BPS-6, a publication is required to be issued. The Appellants in HCA 46/2022 are daily wagers; therefore, the condition of either publication or the NTS test does not arise. By way of illustration, learned counsel referred to the 109th Meeting of the EPZA, wherein the condition of the test was imposed for fresh hiring. However, the Appellants’ probation period has been completed with successive ACRs issued by the EPZA. The Impugned Order does not disclose any fact established in the suits by the Appellants; hence, the Impugned Order ought not to be sustained. He placed reliance on the precedents reported as 2019 CLC 362, PLD 1977 S.C. 182, 2000 CLC 1722, PLD 1996 Karachi 365 and 1996 SCMR 1217.

4. In response to the arguments advanced by the learned counsel for the Appellants, Mr. Sanaullah Noor Ghori, learned counsel for the EPZA, submitted that the Impugned Order is in due accordance with the law. Per learned counsel, the condition of the NTS test is an internal policy matter of the EPZA which cannot be assailed. He further contended that several candidates undertook the NTS test and, having qualified for the same, were appointed by the EPZA. However, the present Appellants avoid appearing in the NTS test, and if any permission is accorded to the Appellants, it would be considered discriminatory. While concluding his submissions, learned counsel submitted that the appointment of the Appellants is under enquiry being conducted by the FIA as the same does not meet the requisite criteria. He placed reliance on the precedents reported as 1990 SCMR 1321, PLD 2006 S.C. 697, 2014 CLC 600, 2021 MLD 453, 2021 SCMR 1230 and 2024 PLC(CS) 979.

5. Learned counsel for Respondent No. 5/NTS adopted the arguments advanced by the learned counsel for the EPZA.

6. We have heard the learned counsel and perused the record, including the Impugned Order. It is a matter of record that when the learned Single Judge passed the Impugned Order, no Counter Affidavits/Objections were filed by the opposite party against the Injunction applications. The main contention of the learned counsel for the Appellants is that in the 109th Meeting of the EPZA, the condition of the test was imposed for fresh hiring, while the Appellants’ probation period had already been completed with successive ACRs issued by the EPZA. He referred to the Termination Letters of the Appellants, issued by the EPZA in May, June, and July 2013, respectively. These letters state that the probation period of the Appellants was terminated on satisfactory performance under the rules. He also referred to the 109th Board Meeting of EPZA dated 24.12.2014, which states that fresh hiring, whenever conducted, shall be made through a written screening test by NTS, and all those employees who are still on probation will have their probation period terminated after being declared successful by NTS in the said written test.

7. When declining the Injunction Applications vide the Impugned Order, the learned Single Judge has not considered or discussed the aforementioned documents. Additionally, no Counter Affidavits/Objections were filed by the respondents against the Injunction Applications at that time. Consequently, it was not possible to ascertain whether the appellants had established all three mandatory ingredients in their favour, i.e., prima facie case, balance of convenience, and apprehension of irreparable loss or legal injury. The absence of Counter Affidavits/Objections from the respondents deprived the Court of a comprehensive understanding of the matter, thereby necessitating a reconsideration of the Injunction Applications in light of the relevant documents and after providing an opportunity for both parties to present their arguments.

8. In view of the aforementioned facts, we consider that the matter necessitates a thorough examination of the above documents. Therefore, in the interest of substantial justice in the instant matter, we deem it appropriate to remand the case to the learned Single Judge for a fresh adjudication of the Injunction Applications. This should be done after providing an opportunity for hearing to both parties and inviting Counter Affidavits/Objections from the respondents in light of the documents discussed above or any other relevant documents that the parties may wish to present if deemed necessary for the proper disposal of the matter in accordance with the law. Consequently, the present Appeals stand allowed by setting aside the Impugned Order of the learned Single Judge dated 17.01.2022. These High Court Appeals are hereby disposed of along with the pending application(s) in the aforementioned manner.

(Y.A.) Appeal disposed of

PLJ 2024 Karachi 171 (DB)

Present: Yousuf Ali Sayeed and Arbab Ali Hakro, JJ.

FAIQUE ALI--Petitioner

versus

LYARI DEVELOPMENT AUTHORITY--Respondent

C.P. No. D-6283 of 2019, decided on 11.10.2024.

Lyari Development Authority (Probation Confirmation, and Seniority Regulation, 1999--

----Reglns. 3, 4--Constitution of Pakistan, 1973, Art. 199--Appointment as Naib Qasid on daily wages appointment as Junior Clerk on temporary basis--Claim for grant of due seniority & back benefits--Maintainability--Laches--Contempt application--Dismissed--The petitioner claimed retrospective seniority and back benefits from when he was appointed Naib Qasid on a contingent basis with a fixed lump sum salary--However, in accordance with regulations, petitioner’s seniority should be reckoned from date of his regular appointment as Junior Clerk, as per Regulation No. 3--The petitioner’s initial appointment as Naib Qasid on a contingent basis could not be regularized retrospectively, as per Regulation No. 4--Consequently, petitioner was not entitled to claim retrospective seniority from time he was appointed as Naib Qasid on a contingent basis--Therefore, petitioner could not claim back benefits and arrears for period preceding his regular appointment-- The mere existence of an appointment order was insufficient to establish that analogous benefits were extended to other employees unless it explicitly articulates so--The instant petition filed by petitioner was vitiated by laches--Petition dismissed. [Pp. 175 & 176] A, B & C

Mr. Sharafuddin Mangi, Advocate for Petitioner.

Mr. Nadir Khan Burdi, Advocate for Respondents No. 1 & 2.

Mr. Kafeel Ahmed Abbasi, A.A.G for Respondents No. 3 & 4.

Date of hearing: 18.9.2024.

Judgment

Arbab Ali Hakro, J.--This Constitutional Petition under Article 199 of the Constitution of Pakistan of Pakistan, 1973 (“the Constitution”) has been filed by the petitioner, seeking the following reliefs:-

a) To direct the Respondent No. 2 to post him in his original Secretariat Department and grant him due seniority according to his service of initial appointment.

b) To grant him arrears of all allowances and difference which were due to him after his promotion and regularization as result of enhancement of his salary as per Court orders and directions.

c) To grant him all relevant pecuniary and other fiscal benefits as per service law from his re-appointment to the qualified post in BPS-7 as Junior Clerk for which the petitioner is entitled.

d) Any other relief.

e) Cost.

1. The brief facts leading to the filing of this petition are that the petitioner is an employee of Lyari Development Authority, Karachi (“LDA”). He was appointed as a Naib Qasid in LDA on 31.01.2000 on daily wages, temporary, and contingent basis. Subsequently, in the same department, LDA, the petitioner was appointed as a Junior Clerk on 14.9.2001 on a temporary and contingent basis. It is further stated that the petitioner was appointed 20 years ago in the year 2000 on a daily wages, temporary, and contingent basis, whereas other employees were appointed on a permanent and regular basis in the same department during the same time by the respondents. When the respondents decided to remove the petitioner from the service, the petitioner knocked on the door of this Court by filing C.P No. D-2505/2010, in which an order dated 22.01.2013 was passed in favour of the petitioner with directions to the respondents not to remove the petitioner from his service, but to regularize him and grant him due service benefits. The petitioner further stated that in light of the above directions, he moved several applications to Respondent No. 3 for regularization of his service and due benefits, but no action was taken. Consequently, the petitioner filed a Contempt Application against the respondents in the above Constitutional Petition, wherein the petitioner was directed to contact the relevant authorities for redressal of his grievance and other job-related problems. Afterwards, the petitioner moved an application to Respondent No. 2 to redress his grievance, but Respondent No. 3 advised him to address the application directly to him. As such, the petitioner wrote an application addressing the same to Respondent No. 3, but no heed was paid to the petitioner’s application, nor was his grievance resolved. Hence, he filed the present petition.

2. The notice of this petition was issued to the respondents. In response, Respondent Nos. 1 and No. 2 filed their para-wise comments, wherein they denied the petitioner’s claim and raised legal objections that the petition is barred by laches as the petitioner was regularized on 21.11.2012, while he preferred this petition on 02.10.2019. The petitioner is seeking retrospective seniority from 31.01.2000, which is not permissible under the law.

3. At the outset, the learned counsel representing the petitioner has argued that many employees in LDA were restored and regularized, and they were also given due service benefits and seniority, but the petitioner has been denied such benefits by the respondents. He has argued that the junior employees to the petitioner were promoted and shown as senior. He has also argued that the petitioner has not been given his due back benefits and arrears, which the concerned authorities were bound to give him as per orders dated 22.01.2013 and 14.10.2015, passed in C.P No. D-2505/2010.

4. Conversely, the learned counsel representing Respondents No. 1 and No. 2 contended that this petition is not maintainable as the same is hit by laches since the petitioner was regularized on 21.11.2012 and filed this petition on 02.10.2019, after more than six years. He has contended that the petitioner is claiming retrospective seniority, which is not permissible under the Lyari Development Authority (Probation, Confirmation, and Seniority) Regulation, 1999 (the “Regulation, 1999”). He further contended that the contempt application moved by the petitioner in C.P No. D-2505/2010 was dismissed and that no dues remained for the petitioner against the department. Finally, he concluded that the petitioner is regularly paid his salary after regularization. In support of his contentions, he relied upon the 2022 SCMR 897, 2000 SCMR 352, and 2010 PLC (CS) 1254 cases.

5. Learned A.A.G, representing Respondents No. 3 and No. 4, has adopted the arguments of the learned counsel for Respondents No. 1 and 2.

6. We have meticulously examined the submissions of the learned counsel for the petitioner, the respondents, and the Assistant Advocate General and have scrupulously reviewed the record with their assistance. The petitioner predicates his claim on the orders dated 22.01.2013 and 4.10.2015, rendered in C.P No. D-2505/2010, instituted by the petitioner. Consequently, it is incumbent upon us to reproduce the pertinent operative portions of these orders as follows:

ORDER DATED 22.01.2013

“Today Mr. Munawwar Malik has shown copy of Office Memorandum dated 21.11.2012, issued by the Lyari Development Authority from which it is evident that the relief sought by the petitioner for regularization has been granted and the petitioner has been regularized”.

In view of the above, this petition is disposed off. In case there is any dispute with regard to past salaries and emoluments the petitioner shall be free to agitate the same before the concerned authority.”

ORDER DATED 14.10.2015 PASSED ON CONTEMPT APPLICATION

“It is not in dispute that the petitioner has been regularized. It appears that the petitioner has made some representation with regard to the issue of past salaries and emoluments and grievance is that representation has not been properly addressed. Be that as it may, in these proceedings, we are only concerned with proper implementation of the order dated 22.01.2013. We have been assisted by the learned counsel and have gone through the contempt application. With respect, we are unable to see any disregard or disobedience of the order of the Court. This contempt application is therefore misconceived, and is accordingly dismissed without prejudice to the right of the petitioner to seek such remedy as may be available to him under the law in terms of any matter to which the last paragraph of the order dated 22.01.2013 relates, but we emphasize that a contempt application is not the proper remedy. File to be consigned to record.”

1. The above Orders neither explicitly state that the petitioner is to be given back benefits and arrears. However, both orders provide a framework for the petitioner to pursue these claims through the appropriate legal channels. The petitioner was advised to address any disputes regarding past salaries and emoluments with the concerned authority and seek remedies through proper legal processes.

2. In the instant case, the petitioner asserts that he has been deprived of his rightful back benefits, arrears, and seniority. However, the petitioner has failed to elucidate or provide a detailed account of the benefits allegedly withheld from him subsequent to his regularization and appointment as a Junior Clerk, pursuant to the Office Memorandum dated 21.11.2012. The record further indicates that, upon the recommendation of the Departmental Promotion/ Selection Committee, the petitioner was promoted to Senior Clerk (BPS-14) via an Office Order dated 17.9.2020. It appears that the petitioner is seeking retrospective seniority and back benefits from the period when he was appointed as Naib Qasid on a contingent/ temporary basis with a fixed lump sum salary of Rs. 1500/-per month. Seniority is delineated in Part-IV of the Regulations, 1999, Regulation/ Rule No. 3 and 4, which stipulate that:

3. The seniority of an employee shall be reckoned from the date of his regular appointment. This provision implies that an employee’s seniority is computed from the date of their formal and regular appointment to their position. Any tenure served in a temporary or contingent capacity is excluded from the calculation of seniority.

4. No appointment made on an ad-hoc basis shall be regularized retrospectively. This provision denotes that any appointment effected on an ad-hoc or temporary basis cannot be retroactively converted into a regular appointment. In essence, the duration served in an ad-hoc position is not considered part of the regular service period.

5. In the present case, the petitioner claims retrospective seniority and back benefits from when he was appointed Naib Qasid on a contingent/temporary basis with a fixed lump sum salary of Rs. 1500/-per month. However, in accordance with the regulations, the petitioner’s seniority should be reckoned from the date of his regular appointment as Junior Clerk, which is 21.11.2012, as per Regulation No. 3. The petitioner’s initial appointment as Naib Qasid on a contingent/temporary basis cannot be regularized retrospectively, as per Regulation No. 4. Consequently, the petitioner is not entitled to claim retrospective seniority from the time he was appointed as Naib Qasid on a contingent/temporary basis. His seniority should be computed from the date of his regular appointment as Junior Clerk on 21.11.2012. Therefore, the petitioner cannot claim back benefits and arrears for the period preceding his regular appointment.

6. The petitioner has further contended that other employees within the LDA were reinstated and regularized and were concomitantly accorded due service benefits and seniority. However, in this context, the petitioner has failed to produce any substantial documentary evidence to corroborate his assertion. The sole document tendered by the petitioner is an appointment order dated 23.02.2011 pertaining to one Muhammad Ilyas, which has been appended to the petition. This appointment order, however, does not evince that Muhammad Ilyas was conferred back benefits and seniority. The dearth of concrete evidence to substantiate the petitioner’s allegations enfeebles his position. In judicial proceedings, it is incumbent upon the petitioner to furnish clear and cogent evidence to buttress his claims, particularly when alleging disparate treatment or discrimination. The mere existence of an appointment order is insufficient to establish that analogous benefits were extended to other employees unless it explicitly articulates so. Consequently, in the absence of supplementary documentation or records that unequivocally indicate the reinstatement and regularization of other employees and the conferment of back benefits and seniority, the petitioner’s claim remains unsubstantiated. The onus probandi rests with the petitioner to demonstrate that a precedent exists for granting such benefits to other employees under analogous circumstances. Absent such proof, the petitioner’s allegations cannot be accepted at face value, and the claim for similar treatment remains unproven.

7. Furthermore, the instant petition filed by the petitioner is vitiated by laches, as he was regularized on 21.11.2012 and filed this petition on 2.10.2019. Laches is a legal doctrine that precludes a claimant from obtaining relief if they have inexcusably delayed in asserting their claim, and such delay has prejudiced the opposing party. In the realm of jurisprudence, the principle of laches is invoked to ensure that claims are prosecuted within a reasonable temporal framework and to avert the inequity that may ensue from the resuscitation of moribund claims. The doctrine is anchored in the maxim, “Equity aids the vigilant, not those who slumber on their rights.” In this matter, the petitioner was regularized on 21.11.2012, yet he procrastinated for nearly seven years before instituting the present petition on 02.10.2019. This protracted delay in seeking judicial redress casts aspersions on the petitioner’s diligence in vindicating his rights. Absent a cogent justification for the delay, the petitioner’s claim is liable to be scrutinized with circumspection, and the Court may be predisposed to dismiss the petition on the grounds of laches.

8. In light of the foregoing, the petition at bar warrants no further deliberation and is accordingly dismissed.

(J.K.) Petition dismissed

PLJ 2024 Lahore 1

Present: Ali Zia Bajwa, J.

SAKINA BIBI--Petitioner

versus

ADDITIONAL SESSIONS JUDGE, etc.--Respondents

W.P. No. 56691 of 2022, decided on 1.6.2023.

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

----Ss. 22-A (6), 154, 156,177, 178 to 185--Constitution of Pakistan, 1973, Art. 199--Police Rules, 1934, Rr. 25.1 to 25.8--Order passed by ex-officio Justice of Peace--Office of JOP is a quasi-judicial forum--Article 199 of Constitution petitioner has assailed vires of impugned order passed by ex-officio Justice of Peace, whereby application under section 22-A(6) of Cr.P.C. filed by her for registration of a criminal case was dismissed--Only jurisdiction which can be exercised by JOP under section 22-A(6) of Code is to examine whether information disclosed by applicant did or did not constitute a cognizable offence--To direct concerned SHO to register an FIR, without going into veracity of information in question--Office of JOP is a quasi-judicial forum and functions performed by it cannot be termed judicial or of a Court--Statutory provisions embodied in Code and The Police Rules, 1934 governing such situations are self-explanatory and unambiguous--Generally occurrence is to be investigated at a place where it ordinarily occurs--Word ordinarily means that it is a general principle--General rule are contained in Code itself in contents of succeeding sections from 178 to 185 of Code--The cumulative effect of sections 156(1) and 179 of Code is that an offence can be investigated by police officer having territorial jurisdiction over area where an act is committed or where consequence of that act ensues--Proposed accused abducted son of petitioner which was seen by eyewitnesses from territorial jurisdiction of police station--His dead body was found hanging on a tree within territorial jurisdiction of Police Station, District Sahiwal--A criminal case qua abduction and murder of son of petitioner can be registered at any of Districts, from where deceased was abducted or from where his dead body was recovered--Petition allowed.

[Pp. 3, 4, 5 & 6] A, B, C, D, E, F & G

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

----Ss. 22-A (6), 154, 156,177, 178 to 185--Guidelines--

(i) When information regarding commission of cognizable offence is furnished to SHO of Police Station, in whose territorial jurisdiction offence has been committed, he is bound to register criminal case immediately.

(ii) A criminal case can be registered and investigated in a police station where a cognizable offence is committed or where its consequences ensue.

(iii) In case, where clearly a police station has no jurisdiction to investigate a cognizable offence and information of same is received, such information shall be recorded in daily diary and sent to Officer Incharge of relevant police station--Meanwhile, all possible lawful measures shall be taken to secure arrest of offender and detection of offence.

(iv) After registration of a criminal case and start of investigation by a police officer, if it transpires that police station lacks territorial jurisdiction, information shall be sent to Officer Incharge of relevant police station in that regard promptly, who shall take over investigation without delay.

(v) When a case is transferred from one police station to another due to lack of territorial jurisdiction or convenience of investigating officer having lawful authority to investigate that case, crime report registered in original police station shall be canceled by Superintendent of Police concerned--The complete record of case shall be sent to police station where case is transferred.

(vi) When there is a dispute qua territorial jurisdiction of two police stations, criminal case shall be registered at police station where information of cognizable offence is received first--The investigation shall be carried out jointly by police officers of both police stations until question of jurisdiction has been settled and acknowledged. [Pp. 8 & 9] H

Mr. Shakeel Ahmad Malik, Advocate for Petitioner.

Mr. Shahid Nawab Cheema, AAG & Mr. Hafiz Asghar Ali DPG with Shahida S.P (Investigation) Pakpattan along with report and Ashiq Abid, S.I/SHO for State.

Rana Muhammad Shahid, Advocate for Respondents.

Date of hearing: 1.6.2023.

Judgment

Through this writ petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter “the Constitution”), the petitioner has assailed the vires of the impugned order dated 15.08.2022 passed by the ex-officio Justice of Peace (hereinafter “the JOP”), Pakpattan Sharif, whereby the application under Section 22-A(6) of the Code of Criminal Procedure, 1898 (hereinafter “the Code”) filed by her for registration of a criminal case was dismissed.

1. Arguments heard and the record perused.

2. The record reflects that the petitioner filed an application under Section 22-A (6) of the Code for registration of a criminal case before the JOP with the allegation that Respondents No. 5 to 9 abducted her son namely Muhammad Usman on 03-11-2021 at gunpoint from the territorial jurisdiction of police station Chak Badi District, Pakpattan and took him away to an unknown place. The occurrence was witnessed by Munir Ahmad and Khadim. The petitioner further alleged that on 13.11.2021, she received the information that the dead body of her son was lying in DHQ Hospital, Sahiwal. On reaching the hospital, she was informed by the police of Police Station Ghalla Mandi, District Sahiwal that the dead body was hanging on a tree. JOP dismissed the application of the petitioner with findings as infra:

“that alleged occurrence qua abduction of son of petitioner has not taken place within District, Pakpattan Sharif and resultantly this Court is not inclined to order for registration of FIR. Hence, instant petition is hereby dismissed accordingly.”

1. It has been straightaway observed by this Court that the JOP dismissed the application of the petitioner mainly on the grounds that no evidence could be brought on the record that son of the petitioner was abducted from District Pakpattan and since the dead body was found in District Sahiwal, therefore, direction for registration of criminal case cannot be issued. There are two important legal questions involved in this writ petition which are formulated as infra:-

A) Whether JOP had any jurisdiction to render his finding qua the veracity of the allegations leveled against the proposed accused; and

B) In a case where the abduction took place in District Pakpattan Sharif and the dead body was found in District Sahiwal, where the criminal case can be registered and investigated.

1. As far as the first question is concerned, it is a settled proposition of law as enunciated by the Supreme Court of Pakistan that the only jurisdiction which can be exercised by JOP under Section 22-A(6) of the Code is to examine whether the information disclosed by the applicant did or did not constitute a cognizable offence and if it did, then to direct the concerned Station House Officer to register an FIR, without going into the veracity of the information in question and no more.[1] The JOP traveled beyond his mandate while holding in the impugned order, in an unequivocal manner, that the son of the petitioner was not abducted in the manner alleged by her. Such findings of the JOP are touching the merits and veracity of allegations, hence, utterly unwarranted and not sustainable in the eye of the law. These findings would have the effect of burying the case of the petitioner at its very inception, which is yet to be registered, investigated and tried. It has also been observed that the JOP while passing the impugned order used the word ‘Court’ for him, which is highly misconceived and misunderstood, as it is trite law that the office of JOP is a quasi-judicial forum and functions performed by it cannot be termed judicial or of a Court.[2]

2. Now I would like to take up the next vital question, which in my humble view is not a complicated one, as the statutory provisions embodied in the Code and The Police Rules, 1934 (hereinafter the „Rules) governing such situations are self-explanatory and unambiguous. It shall be appropriate to reproduce the relevant Sections of the Code for better comprehension. Sections 156, 177 & 179 of the Code are of utmost importance and relevance, hence, have been reproduced hereinafter: -

Section 156 of the Code

Investigation into cognizable cases. (1) Any officer-incharge of a police-station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.

(2)…….

(3)…….

(4)…….

Section 177, Cr.P.C.

Ordinary place of inquiry and trial -Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed.

Section 179, Cr.P.C.

Accused triable in district where act is done or where consequence ensues. When a person is accused of the commission of offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done, or any such consequence has ensued.

Section 156(1) of the Code contemplates that any officer-in-charge of a police station can investigate a cognizable offence, which a Court having jurisdiction over the local area within the limits of such police station would have the power to inquire into or try under the provisions of Chapter XV of the Code relating to the place of inquiry or trial. A bare perusal of Sections 156(1) and 177 of the Code makes it abundantly clear that as a general rule, a criminal case should be registered and investigated by the police station, within the local limits of whose jurisdiction such offence was committed. Keeping in perspective the word “ordinarily” in Section 177 read with Section 156(1) of the Code, it is apparent, that generally the occurrence is to be investigated at a place where it ordinarily occurs, so the word ordinarily means that it is a general principle. The exceptions to that general rule are contained in the Code itself in the contents of the succeeding Sections from 178 to 185 of the Code. For the purpose of lis in hand, the relevant provision of law is Section 179 of the Code.

1. The cumulative effect of Sections 156(1) and 179 of the Code is that an offence can be investigated by the police officer having territorial jurisdiction over the area where an act is committed or where the consequence of that act ensues. Sections 156(1) and 177 of the Code provide for the simplest cases and perhaps the cases which most frequently occur, namely, of an offence committed entirely within a single jurisdiction. On the other hand, Section 156(1) read with Section 179 of the Code enlarges as much as possible the ambit of the sites in which the criminal case can be registered and investigated to minimize, as much as possible, the inconvenience caused by a technical plea of want of territorial jurisdiction of a police station. The wisdom of lawmakers to extend the jurisdiction to various police stations, where an information qua the cognizable offence can be registered and investigated, is to provide against an accused escaping guilt. The general rule of lex fori[3] has been relaxed by Section 156(1) of the Code.

2. Mere depiction of the occurrence, as stated in the applications filed before the police, reveals that the proposed accused abducted the son of the petitioner namely Usman at gunpoint which was seen by the eyewitnesses from the territorial jurisdiction of Police Station Chak Bedi, District PakPattan Sharif. Subsequently, his dead body was found hanging on a tree within the territorial jurisdiction of Police Station Ghalla Mandi, District Sahiwal. In view of the above-discussed legal position, a criminal case qua the abduction and murder of the son of the petitioner namely Usman can be registered at any of the Districts, from where the deceased was abducted or from where his dead body was recovered. As the application was filed by the petitioner at Chak Bedi, District Pak Pattan Sharif, therefore, SHO of that police station was under a bounden duty to register the criminal case but unfortunately needful was not done.

3. It would not be out of place to observe here that in a number of cognizable offences, registration of crime reports is delayed on the pretext of lack of territorial jurisdiction of a particular Police Station. Such conduct of police officers not only results in the loss of valuable evidence due to delay but also provides an opportunity for accused persons to escape their criminal liability. Law on the subject is very clear that if information regarding a cognizable offence is received, the same cannot be neglected on the pretext of lack of territorial jurisdiction. Relevant rules of the Rules governing such situations have been reproduced for better understanding as infra:-

25.3. Action when offence occurring in another police station is reported.-

When the occurrence of a cognizable offence in another police station jurisdiction is reported, the fact shall be recorded in the daily diary and information shall be sent to the officer-in-charge of the police station in the jurisdiction of which the offence was committed. Meanwhile, all possible lawful measures shall be taken to secure the arrest of the offender and the detection of the offence.

25.4. Where offence appears to have occurred in other police station. -

(1) If a police officer after registering a case and commencing and investigation discovers that the offence was committed in the jurisdiction of another police station he shall at once send information to the officer-in-charge of such police station.

(2) Upon receipt of information such officer shall proceed without delay to the place where the investigation is being held and undertake the investigation.

25.5. Disputes as to jurisdiction.

Should the officer who is thus summoned to the spot dispute the jurisdiction, both officers shall jointly carry on the investigation under the orders of the senior officer and neither shall leave until the question of jurisdiction has been settled and acknowledged. The case record shall be kept at the police station where the information was first received until the question of jurisdiction has been decided.

25.8. Cases which may be lawfully investigated in more local areas than one. –

(1) If the case is one which the officer in charge of the police station may lawfully investigate, but which may also be lawfully and more successfully investigated in another police station, such officer while continuing his investigation, shall refer the matter to the Superintendent, who shall transfer the case or not as he sees fit.

(2) If it is desired to transfer the case to a police station in another district, the Superintendent shall refer the matter to the District Magistrate and move him to act according to the orders contained in Chapter 26, Volume III, of the Rules and Orders of the High Court.

(3) When an investigation has been transferred from one district to another the police files with original first information report shall be forwarded to the Superintendent of the district to which the transfer is made.

The abovementioned rules are self-explanatory and clearly lay down an effective mechanism and the duties of a police officer in case of uncertainty regarding the territorial jurisdiction of a particular police station. The scheme of law provided under the rules clearly reflects the intention of the legislature that a blind eye cannot be turned to the information of the commission of a cognizable offence on the pretext of lack of territorial jurisdiction. For convenience following guidelines can be articulated:-

I. When the information regarding the commission of the cognizable offence is furnished to the SHO of the Police Station, in whose territorial jurisdiction the offence has been committed, he is bound to register the criminal case immediately.[4]

II. A criminal case can be registered and investigated in a police station where a cognizable offence is committed or where its consequences ensue.[5]

III. In the case, where clearly a police station has no jurisdiction to investigate a cognizable offence and information of the same is received, such information shall be recorded in the daily diary and sent to the Officer Incharge of the relevant police station. Meanwhile, all possible lawful measures shall be taken to secure the arrest of the offender and the detection of the offence.[6]

IV. After registration of a criminal case and the start of the investigation by a police officer, if it transpires that the police station lacks territorial jurisdiction, information shall be sent to the Officer Incharge of the relevant police station in that regard promptly, who shall take over the investigation without delay.[7]

V. When a case is transferred from one police station to another due to lack of territorial jurisdiction or convenience of investigating officer having lawful authority to investigate that case,[8] the crime report registered in the original police station shall be canceled by the Superintendent of police concerned.[9] The complete record of the case shall be sent to the police station where the case is transferred.[10]

VI. When there is a dispute qua the territorial jurisdiction of two police stations, the criminal case shall be registered at the police station where the information of cognizable offence is received first. The investigation shall be carried out jointly by the police officers of both police stations until the question of jurisdiction has been settled and acknowledged.[11]

1. In the sequel to above, I am of the considered view that the impugned order dated 15.08.2022 passed by the JOP is not sustainable in the eye of the law, therefore, while allowing this writ petition, the same is set aside with a direction to Respondent No. 4 i.e. SHO Police Station Chak Bedi, District PakPattan Sharif to record the version of the petitioner under Section 154 of the Code and register a criminal case. It goes without saying that the investigation, in this case, should be conducted on merits after bringing on the record the evidence of both sides strictly in accordance with the law without getting

prejudiced from any finding rendered in the impugned order. The investigating agency shall file its report under Section 173 of the Code after completing the investigation expeditiously within the stipulated time in the spirit of verdict of Supreme Court of Pakistan rendered in Hakim Mumtaz Ahmad.[12]

(K.Q.B.) Petition allowed

[1]. PLD 2007 SC 539.

[2]. PLD 2018 SC 595.

[3]. According to Advanced Law Lexicon, Volume 3, published by LexisNexis, Lex fori means ‘The law of the forum of Court.

[4]. Section 154 of the Code & Rule 25.1 of The Police Rules, 1934.

[5]. Section 156(1) read with Section 179 of the Code & Rule 25.8 of The Police Rules, 1934.

[6]. Rule 25.3 of The Police Rules, 1934.

[7]. Rule 25.4 of The Police Rules, 1934.

[8]. Rule 25.8 of The Police Rules, 1934.

[9]. Rule 25.7 of The Police Rules, 1934.

[10]. Rule 25.8 of The Police Rules, 1934.

[11]. Rule 25.5 of The Police Rules, 1934.

[12]. Hakim Mumtaz Ahmad & another vs. The State-PLD 2002 Supreme Court 590.

PLJ 2024 Lahore 10

Present: Sultan Tanvir Ahmad, J.

Mst. KHURSHEED BEGUM (deceased) through Legal Heir--Appellant

versus

ABDUL WAHID NASIM and 3 others--Respondents

R.S.A. No. 43 of 2014, decided on 7.7.2023.

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

----Ss. 39 & 42--Benamidar--Sale-deeds--Suit for declaration, cancellation--Defendant No. 1 was also filed suit for possession--consolidated judgment--Suit for declaration was dismissed while suit for possession was decreed--On same day third suit for declaration filed by benamidar was also dismissed through separate judgment--Appeals--Dismissed--Benami transaction--Motive--Elements of benami transaction were not proved--Limitation--Challenge to--Untruthful witnesses--‘Motive’, which is one of most important elements to establish benami transaction, no special reason is set-up in plaint or brought on record as evidence, to hold or purchase property in name of Muhammad Afzal--Appellant failed to prove that suit property was in name of benamidar provisionally or for some particular reason--The reproduced statement of appellant is further belied by school certificate and Family-Form B where date of birth of Muhammad Afzal is (Benamidar) recorded as 25.11.1960--No explanation could be given as to this inconsistency--The evidence of appellant is based on inconsistent statements--The elements to establish benami transaction could not be proved with required level of cogency--The decisions of two Courts below, in first two suits are not found against any law or usage having force of law or defective in any manner, which is essential to successfully maintain a regular second appeal--Not just conduct of benamidar is unconscionable, who maintained two different stances in two suits, disentitling him from equitable relief but at same time his case is badly barred by limitation--Appeal dismissed.

[Pp. 16, 17, 18, 19, 20 & 23] A, B, C, D, E, F & H

PLD 2010 SC 569, PLJ 2023 SC 255, 2014 SCMR 1469, 2011 SCMR 1545 ref.

Limitation Act, 1908 (IX of 1908)--

----Ss. 3, 4 to 25--Limitation--Duty of Court--Section 3 of Limitation Act commands that subject to sections 4 to 25 every suit after period of limitation prescribed in first schedule has to be dismissed irrespective of fact if limitation is set-up as a defence or not--Section 3 ibid imposes duty on Courts themselves to look into matter and when from statement in plaint it is undoubtful that suit is time barred then to proceed to reject it--The Judge cannot on equitable grounds enlarge time provided by law. [P. 22] G

PLD 1985 SC 153 ref.

M/s. Sheikh Naveed Shehryar and Sheikh Usman Karim-ud-Din, Advocate for Appellant.

Ms. Safina Safdar Bhatti, Advocate for Petitioner (in Civil Revision No. 663 of 2014).

Malik Ghulam-us-Syeddain, Advocate for Respondent No. 1 (in R.S.A. No. 43 of 2014 and Civil Revision No. 663 of 2014).

Rana Sher Zaman Akram, Assistant Advocate General for Respondent No. 2 (in Civil Revision No. 663 of 2014).

Proceeded ex parte vide order dated 17.6.2014 for Respondent

No. 2 (in R.S.A. No. 43 of 2014).

Date of hearing: 19.6.2023.

Judgment

The captioned regular second appeal and Civil Revision No. 663 of 2014, having common subject matter, shall be decided through this judgment.

1. Mst. Khursheed Begum widow of Jamat Ali instituted suit titled “Khursheed Begum vs. Muhammad Afzal & another” (No. 52/2011) dated 31.10.1998 claiming that she is actual owner of house measuring 3 Marla No. 4/230 (previously 4/237), Muhallah Qilla Shah, Gujrat as further described in the suit (the ‘suit property’); that she purchased the suit property for Rs. 9,000/- in the name of her real son Muhammad Afzal as benamidar through sale-deed No. 2430 dated 23.05.1979, who has stolen the title documents and managed to sell the suit property to Abdul Wahid Nasim son of Abdul Wahab through sale-deed No. 3414 dated 19.10.1998. Mst. Khursheed Begum prayed to annul the said deeds being ineffective to her rights in the suit property. As consequential relief she requested restraining the defendants of suit from interfering in her possession over the suit property. Muhammad Afzal filed written statement substantially conceding the averments in the plaint. Abdul Wahid Nasim filed contesting written statement and also filed suit titled “Abdul Wahid Nasim vs. Muhammad Afzal and another” (No. 53/2011) dated 18.07.2000 seeking possession of the suit property on the strength of deed No. 3414 dated 19.10.1998. This suit was also contested and written statements were filed. The divergence in the pleading resulted into framing of following seventeen (17) issues:--

2. Whether the plaintiff purchased the disputed property in the year 1979 for a consideration of Rs:9000/-and took over possession after the sale transaction and built the disputed house at her own expenses? OPP

3. Whether the plaintiff is owner in possession of the disputed house? OPP

4. Whether the disputed property was transferred in favour of Defendant No. 1 being son of the plaintiff as a Benamidar vide document No. 2430 dated 23.05.1979? OPP

5. Whether the registered deed No. 2430 dated 23.05.79 in favour of Defendant No. 1 and the registered deed No. 3414 dated 19.10.1998 by Defendant No. 1 in favour of Defendant No. 2 are void and ineffective upon the rights of the plaintiff? OPP

6. Whether the plaintiff is entitled to the decree for declaration, permanent injunction and consequential relief as prayed for? OPP

7. Whether the plaintiff has no locus standi and cause of action to file the suit? OPD-2

8. Whether the suit of the plaintiff is based upon mala fide? OPD-2

9. Whether the suit of the plaintiff is collusive? OPD-2

10. Whether the disputed house was sold by defendant No. 1 to Defendant No. 2 vide registered sale-deed No. 3414 dated 19.10.98 and possession was delivered to the Defendant No. 2 before the completion and attestation of the said sale-deed? OPD-2

11. Whether the Defendant No. 2 gave one room of the disputed house to the plaintiff and Defendant No. 1 for temporary residence at their request? OPD-2

12. Whether the Defendant No. 2 is entitled to the decree for possession and consequential relief as prayed for? OPD-2

13. Whether the consolidated civil suit No. 240/48 of 18.07.2000/28.01.2001 is not maintainable in its present form? OPP/OPD-1

14. Whether the Defendant No. 2 has no cause of action and locus standi to file civil suit No. 240/48 of 18.07 2000/28.01.2001? OPP/OPD-1

15. Whether the consolidated civil suit No. 240/48 of 18.07.2000/28.01.2001 has been filed as a counter blast? OPP-OPD-1

16. Whether the defendant is estopped by his words and conduct to file the consolidated suit? OPP-OPD-1

17. Whether the consolidated suit is based upon mala fide and the plaintiff is entitled to recover special costs? OPP

18. Relief.

19. From the side of Mst. Khursheed Begum three witnesses appeared as PW-1 to PW-3 and Exh.P-1 to Exh.P-8 were brought on the record as documentary evidence. Muhammad Afzal appeared as DW-1. One Hadi Hussain appeared as DW-2 and Abdul Wahid Nasim appeared as DW-3.

20. Substantial steps towards the progress and completion of trial were taken in the above two suits before the learned trial Court when Muhammad Afzal, after about 12 years of the above suits, filed third suit titled “Muhammad Afzal vs. Province of Punjab and another” (No. 416/2010) dated 07.01.2010, somehow, seeking declaration in his favour vis-à-vis the suit property and claiming cancellation of deed No. 3414 dated 19.10.1998. Facing this new situation and the third suit, Abdul Wahid Nasim filed written statement, resulting into framing of following issues in this suit:-

21. Whether plaintiff is entitled to a decree for declaration of his title over the suit property along with consequential relief for cancellation of sale-deed No. 3414 dated 19.10.1998 as prayed for? OPP

22. Whether suit of the plaintiff is badly time barred? OPD

23. Whether plaintiff is estopped from his words and conduct to file the present suit? OPD

24. Whether plaintiff has not approached the Court with clean hands? OPD

25. Whether suit of the plaintiff is frivolous and vexatious, hence liable to be dismissed with special cost under Section 35-A CPC? OPD

26. Relief.

27. In the third suit Muhammad Afzal himself appeared as PW-2 and produced one Malik Muhammad Daud as PW-1. Exh.P-1 was brought on the record as documentary evidence. On the other hand, Abdul Wahid Nasim appeared as DW-1 and Exh.D-1 to Exh.D-7 were brought on the record as documentary evidence.

28. On 29.07.2011, in the suit instituted by Mst. Khursheed Begum (No. 52/2011 dated 31.10.1998) and the suit of Abdul Wahid Nasim (No. 53/2011 dated 18.07.2000), the learned trial Court gave consolidated judgment and decree, and after giving issue-wise findings, reached to the following conclusion:

“Resume of the above discussion is that the plaintiff has failed to prove her claim of ownership over the disputed house, therefore, her suit for declaration is dismissed while suit of Defendant No. 2 for possession stands proved therefore, decreed in his favour against the plaintiff and the Defendant No. 1. The plaintiff and Defendant No. 1 are directed to vacate the house within one month of this order. Parties are left to bear their own costs. Copy of this consolidated judgment be placed on the record of suit file titled “Abdul Wahad vs. Muhammad Afzal & Khurshid Begum”(suit for possession of house). File be consigned to record room after its due completion.”

The suit of Mst. Khursheed Begum (No. 52/2011) was dismissed and suit of Abdul Wahid Nasim (No. 53/2011) was decreed in his favour. On the same day through separate judgment and decree suit of Muhammad Afzal (No. 416/2010) was dismissed.

1. Mother and son (Mst. Khursheed Begum and Muhammad Afzal) instituted appeals. Appeal No. 02/2011 was filed by Mst. Khursheed Begum against judgment and decree dated 29.07.2011 passed in first two suits. Appeal No. 03/2011 was filed by Muhammad Afzal against the judgment and decree dated 29.07.2011 in the third suit titled “Muhammad Afzal vs. Province of Punjab and another” (No. 416/2010).

2. The learned first Appellate Court found no mistake in the judgments of the learned trial Court and vide separate judgments and decrees (both dated 11.02.2014) dismissed the appeals. Aggrieved from the same, Mst. Khursheed Begum has filed the captioned regular second appeal and Muhammad Afzal has filed civil revision No. 663 of 2014.

3. Sheikh Usman Karim-ud-Din learned ASC, on behalf of Mst. Khursheed Begum, has submitted that original title deed was stolen by Muhammad Afzal and handed over the same to Abdul Wahid Nasim; that Muhammad Afzal was drug addict, who was lured to do the said act. He relied on utility bills in the name of Mst. Khursheed Begum that are on record as Exh.P-3 to Exh.P-5. Sheikh Usman Karim-ud-Din-learned ASC, has explained that Muhammad Afzal was minor, having no source of income at the given time and out of love the mother/Mst. Khursheed Begum purchased the suit property in his name. He has further submitted that Abdul Wahid Nasim has failed to prove the consideration, allegedly paid to purchase the suit property.

4. Ms. Safina Safdar Bhatti, learned Advocate on behalf of Muhammad Afzal, has contended that upon denial of execution, Abdul Wahid Nasim being beneficiary of deed No. 3414 dated 19.10.1998 was required to prove the execution of the deed but he miserably failed to do the same; that articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 have been adhered; that the transaction lacks consideration; that no one from registrar’s office was produced. She has further submitted that Muhammad Afzal was addicted to alcohol and Mst. Khursheed Begum was subjected to fraud. In course of arguments she has relied upon cases titled “Jan Baz and 10 others vs. Shah Nawaz and 2 others” (2017 YLR Note 215), “Abdul Qadeer vs. Ashiq Ali and 2 others” (2006 YLR 2900), “Jhanda and 3 others vs. Maulvi Mukhtar Ahmad and another” (2007 YLR 2493) and “Muhammad Qasim vs. Wazir through L.Rs” (2007 MLD 1086).

5. Conversely, Malik Ghulam-us-Syeddain, learned Advocate for Respondent No. 1, has submitted that rival party adopted stance that Muhammad Afzal was minor at the time of registration of deed No. 2430 dated 23.05.1979 (Exh.P-2), however, their falsehood is evident from school certificate and Family Form-B where his age is recoded differently and these documents clearly suggest that in year 1979 he was more than 18 years old; that the entire evidence led by other side is full of contradictions; that Mst. Khursheed Begum never purchased the suit property from her own sources; that the necessary elements to obtain decree of declaration on the basis of benami are missing. To the extent of suit of Muhammad Afzal (No. 416/2010), it is submitted that this suit is badly time barred. In course of arguments Malik Ghulam-us-Syeddain-learned Advocate has relied upon cases titled as “Dr. Muhammad Javaid Shafi vs. Syed Rashid Arshad and others” (PLD 2015 Supreme Court 212), “Nasrullah Khan and another vs. Mst. Khairunnisa and others” (2020 SCMR 2101), “Pir Bux and others vs. Ghulam Rasool and others” (NLR 1997 Civil 468), “Muhammad Nawaz Minhas and others vs Mst. Surriya Sabir Minhas and others” (2009 SCMR 124) and “Hameeda Begum vs. Farzand Ali” (2002 YLR 1311).

6. Rana Sher Zaman Akram, learned Assistant Advocate General, has submitted that frivolous allegations have been levelled against Government officials but no proof to substantiate such allegations could be given by Mst. Khursheed Begum and Muhammad Afzal during the trial. It is added that presumption of correctness is attached to sale-deeds in question which were registered by the concerned officials in course of their duties, who otherwise have no interest in the transactions.

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

8. In order to prove ‘motive’, which is one of the most important elements to establish benami transaction, no special reason is set-up in the plaint or brought on record as evidence, to hold or purchase the property in the name of Muhammad Afzal, besides claiming that Muhammad Afzal was drug addict. Skeleton arguments have been submitted by Sheikh Usman Karim-ud-Din-learned ASC, in which reason of benami is stated as love and affection of Mst. Khursheed Begum for her son, Muhammad Afzal. Learned counsel argued that the suit property was purchased in the name of Muhammad Afzal temporarily, whereas, reading of evidence given by Mst. Khursheed Begum leads to strong inference that the suit property was purchased in the name of Muhammad Afzal with positive application of mind for his welfare and to be held by him for good. Mst. Khursheed Begum failed to prove that the suit property was in the name of Muhammad Afzal provisionally or for some particular reason. In this regard the following guidance in case titled “Ghulam Murtaza vs. Mst. Asia Bibi and others” (PLD 2010 Supreme Court 569), is relevant:

“… A transaction cannot be dubbed as benami simply because one person happened to make payment for or on behalf of the other. We come across innumerable transactions where a father purchases property with his own sources for his minor son or daughter keeping in mind that the property shall vest in the minor. Such transaction subsequently cannot be challenged by father as benami simply because the amount was paid by him. There are people who, with positive application of mind, purchase properties in the name of others with intention that the title shall vest in that other.

1. As said earlier, there are certain transactions in peculiar circumstances of those peculiar cases where, for reason of certain emergencies or contingencies, the properties are purchased in the name of some other person without the intention that the title shall so vest permanently. If such motive is available and also is reasonable and plausible, a transaction can be held as benami, otherwise not. A property purchased with ones own sources in the name of some close relative like wife, son or daughter cannot be dubbed as benami when purchased with full intention of conferring title to the purchaser shown. If this principle is denied and that of benami attracted simply because the sources of consideration could not be proved in favour of the named vendee, it would shatter the most honest and bona fide transactions thereby bringing no end to litigation …”

(Underlining is added)

1. Somehow to prove that at the material time Muhammad Afzal was not earning anything different stances, which are contradictory to documentary evidence, have been adopted. Mst. Khursheed Begum tried to establish that Muhammad Afzal was minor at the time of the transaction/sale-deed No. 2430. Mst. Khursheed Begum, when appeared as PW-1, in her examination-in-chief stated that Muhammad Afzal at the time of registration of deed No. 2430 dated 23.05.1979 was about 14 to 15 years old. In her cross-examination she remained reluctant to tell the year of birth of her own son. It is appropriate to reproduce following extracts from her examination:

| | | | --- | --- | | Examination-in-Chief | Cross-examination | | “۔۔۔ رجسٹری کروانے کے وقت مدعا علیہ نمبر 1 کی عمر 14، 15 سال تھی۔ اُس وقت مدعا علیہ نمبر 1 کا کوئی ذریعہ آمدن نہ تھا ۔۔۔۔” | “۔۔۔ یاد نہ ہے کہ مدعا علیہ نمبر 1 کب پیدا ہوا تھا۔ علم نہ ہے کہ مدعا علیہ نمبر 1 1960 میں پیدا ہوا تھا۔ غلط ہے کہ مدعا علیہ نمبر 1 کے حق میں جو رجسٹری ہوئی تھی اس میں وہ خود پیش ہوا تھا ۔۔۔” |

It is not possible that a mother cannot recall even tentatively the year when her son was born. Even the illiterate or simplistic people used to relate years of births of their dears with some events to recall the same. The above reproduced statement of Mst. Khursheed Begum is further belied by school certificate (Exh.P-6) and Family-Form B (Exh.P-7) where date of birth of Muhammad Afzal is recorded as 25.11.1960. No explanation could be given as to this inconsistency.

1. Mst. Khursheed Begum and Muhammad Afzal were well aware that producing title document in evidence is an important factor. They, therefore, adopted stance that Muhammad Afzal was drug addict. Mother deposed that Muhammad Afzal was trapped. Muhammad Afzal deposed that to steal the title document he was paid Rs. 2,000/-and then Rs. 3,000/-. He stated that after theft he was paid Rs. 7,000/-further. However, no criminal prosecution was lodged against Abdul Wahid Nasim. Mst. Khursheed Begum failed to depose or plead the date of theft; the place where she kept the documents or from where the deed was stolen. I asked questions to Sheikh Usman Karim-ud-Din, learned Advocate as to above aspects but he also avoided to answer the said questions and tried to take the case in other and irrelevant directions.

2. Mst. Khursheed Begum admitted in her cross-examination that her husband was working abroad from where he used to send money. She admitted that she never remained in any employment or worked for earnings. To demonstrate source of purchase, she claimed that the suit property was partly purchased from the sources of her husband and partly from sale of her jewelry but failed to state as to the amount she fetched through such sale or date of sale of jewelry or amount that she contributed towards the purchase of the suit property. It is also apparent from record that main source of payment of sale consideration was the amounts sent by the father of Muhammad Afzal when he was working abroad. Mst. Khursheed Begum admitted in her cross-examination, which took place in the year 2002/2003, that father died 17/18 years ago. This means that father lived for considerable time after deed No. 2430 dated 23.05.1979 but he never claimed Muhammad Afzal as benamidar.

3. The learned trial Court reached to the conclusion that the case set-up by Mst. Khursheed Begum is nothing more than a pack of lies. The learned first Appellate Court found that the mother and son, in league with each other, are misleading the Courts. I have gone through record very minutely and my conclusion is not different. The evidence of Mst. Khursheed Begum is based on inconsistent statements. Mother and son both kept developing their case. Dents in the statements of the witnesses of mother were unsuccessfully attempted to be repaired by cross-examination conducted by son’s lawyer. The case set-up by them is highly unbelievable. The elements to establish benami transaction could not be proved with required level of cogency.

4. Being aware of above all, Muhammad Afzal went on to file suit titled “Muhammad Afzal vs. Province of Punjab and another” (No. 416/2010), after 12 years of her mother’s suit, to deprive Abdul Wahid Nasim from the possession of the suit property. Muhammad Afzal jumped from one stance to another. His statement as witness in one suit manifestly contradicts his statement in another as to same set of facts and transactions. In the latter suit he deviated from his support to his mother as to plea of benami. The stances in the pleadings and evidence of first two suits are in many-fold varying from the stance(s) in suit filed by Muhammad Afzal. It appears that in order to maintain possession over the suit property they were not reluctant even to mislead the Courts and they remained successful in this design for 25 years. The miseries of execution are yet to start. The witnesses of Mst. Khursheed Begum and Muhammad Afzal are found highly untruthful. They, by jumping from one stance to another and by giving implausible as well as self-contradictory statements, lost credibility and on the basis of such evidence any finding in their favour would have been unsafe. Reference can be made to cases titled “Muhammad Ghaffar (deceased) through LRs and others vs. Arif Muhammad” (PLJ 2023 SC 255), “Mst. Zaitoon Begum vs. Nazar Hussain and another” (2014 SCMR 1469) and “Ghafoor Khan (deceased) through LRs. vs. Israr Ahmed” (2011 SCMR 1545). It will be beneficial to reproduce para 14 of “Mst. Zaitoon Begum” case (supra), which reads as follows:

“… 14. True that the law since long, developed by the Superior Courts, provides maximum protection to illiterate ladies, to ensure that no one could practice fraud upon them and to deprive them of valuable property rights. However, under the garb of that protection or privilege, such ladies could not be given free licence to tell lie, by misusing such privilege or protection, allowed to them under the law. It is well embedded principle of law that “one who makes statements, mutually inconsistent statements in the same matter, at two occasions, with regard to the same issue, is not entitled to be listened to”. because the credibility of the person, giving testimony on oath, is shaken to a great extent, once she is found indulging in jumping from one stance and catching on another stance, such eventuality would give rise to strong presumption that under the garb of protection given to illiterate lady, she is herself indulging in misrepresentation and attempting to mislead the Court to reach at a patently wrong conclusion. In any case, Courts are required to deal with each individual case according to facts and circumstances and evidence adduced therein and in no manner, to widen the scope of the protection/privilege, given to illiterate ladies in the matter of such transaction…”

(Emphasis supplied)

The decisions of the learned two Courts below, in the first two suits (Khursheed Begum vs. Muhammad Afzal & another and Abdul Wahid Nasim vs. Muhammad Afzal and another), are not found against any law or usage having force of law or defective in any manner, which is essential to successfully maintain a regular second appeal, under section 100 of the Code of Civil Procedure, 1908.

1. The suit titled “Muhammad Afzal vs. Province of Punjab and another” (No. 416/2010) was instituted by Muhammad Afzal on 07.01.2010 to seek declaration against agreements and deed pertaining to the year 1998. In paragraph No. 6 of the suit, it is asserted that the cause accrued in his favour on 19.10.1998 and then lastly few days before filing the suit. He failed to mention in the pleadings or establish in evidence as to how this last cause accrued in his favour, as stated in the said paragraph. The limitation for such suits is provided in Article 120 of the first schedule of Limitation Act, 1908 (the ‘Limitation Act’), which reads as follows:-

| | | | | | --- | --- | --- | --- | | 120 | Suit for which no period of limitation is provided elsewhere in this schedule. | Six years | When the right to sue accrues. |

The time under above article of the Limitation Act runs from the date when the ‘right to sue’ accrues. The words ‘right to sue’ means that when a person has ‘right to seek relief’ under the relevant law. In cases titled “Saadat Khan and others vs. Shahid-ur-Rehman and others” (PLD 2023 Supreme Court 362) and “Mst. Rabia Gula and others vs. Muhammad Janan and others” (2022 SCMR 1009) the provision of Article 120 of the Limitation Act and section 42 of the Specific Relief Act, 1877 are analyzed/dealt in detail and it has been concluded that right to sue accrues to a person against the other for declaration of right vis-à-vis a property when latter actually denies rights or when he is interested to deny in the sense of threat of denial. The denial when actual it obligates the claimant to bring action, within the period of limitation given in the Limitation Act. When alleged wrongdoer or the one denying the right has done something explicitly to deny the rights by doing overt act that amounts to actual denial for which if the claimant has gained definite knowledge, then plea of threat of denial, cannot revive limitation. In cases of mere threat of denial, each threatened denial gives rise to fresh cause. It is settled that when right to sue arises largely depends upon the circumstances of each case. Here I would like to reproduce para 8.13 of “Mst. Rabia Gula and others” case (supra):

“… 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 …”

(Emphasis supplied)

1. It is often observed that despite actual denials, giving rise to right to sue, the belated cases are filed on the basis of alleged threat of denial. Generally, at the ends of plaints in addition to the actual denial a sentence is added that ‘the cause again accrued just few days ago’. This is being done without pleading actual date of threatened denial or any prima facie proof thereof. In some of these cases, mostly the actual denials are through positive act(s) which are self-evident, patent and manifest. The present case is classical example of such cases. The agreement and deed, in question, pertain to the year 1998, which were assailed in the year 1998 by Mst. Khursheed Begum in suit titled “Khursheed Begum vs. Muhammad Afzal and another” (No. 52/2011), in which Muhammad Afzal filed written statement in 1999 pleading that the relevant documents were signed by him and claiming that this was done under intoxication. The written statement and evidence of Abdul Wahid Nasim expressly denied the claimed rights. Muhammad Afzal appeared as DW-1 in the said suit (No. 52/2011) and repeatedly admitted having knowledge of acts and documents forming basis of his suit titled “Muhammad Afzal vs. Province of Punjab and another” (No. 416/2010). Yet he filed this suit for declaration, which amounts to double version, attracting estoppel and the suit is fallacious on the face of it. He undeniably had knowledge from beginning of the complained acts and actual denial of his rights by Abdul Wahid Nasim. Ms. Safina Safdar Bhatti, learned Advocate, could not disagree this position either when she was arguing this case for Muhammad Afzal.

2. Section 3 of the Limitation Act commands that subject to Sections 4 to 25 every suit after the period of limitation prescribed in first schedule has to be dismissed irrespective of the fact if the limitation is set-up as a defence or not. Section 3 ibid imposes duty on the Courts themselves to look into the matter and when from the statement in the plaint it is undoubtful that the suit is time barred then to proceed to reject it. The Judge cannot on equitable grounds enlarge the time provided by the law. Where the question of law of limitation is not a mixed question of law and fact as well as the suit on the face of the record is hit by limitation and when it became apparent or undoubtful to the Court, it becomes incumbent on the Court, whether the limitation is pleaded or not by litigant, to discharge the duty to reject the case. In case titled “Hakim Muhammad Buta and another vs. Habib Ahmad and others” (PLD 1985 Supreme Court 153), a bench of Honourable five members of Supreme Court of Pakistan settled the issues as follows:

3. The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, rule 11, C. P. C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority, and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts them-selves. In Sitharama v. Krishnaswami (I), where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the amount in resisting the plaintiff's application in a previous suit, were estopped on

general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that “the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation” and that “the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by it”. (Emphasis supplied)

Not just the conduct of Muhammad Afzal is unconscionable, who maintained two different stances in two suits, disentitling him from equitable relief but at the same time his case is badly barred by limitation. Revision-petition of Muhammad Afzal must, therefore, fail.

1. For all that has been discussed above, the regular second appeal and the civil-revision being meritless are dismissed. No order as to costs.

(Y.A.) Appeal dismissed

PLJ 2024 Lahore 23

Present: Asim Hafeez, J.

Dr. UMMARA MUNIR--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Ministry of National Health Services, Regulation & Coordination (NHRSR&C), Government of Pakistan, Islamabad and others--Respondents

W.P. No. 82061 of 2022, decided on 28.4.2023.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Exemption from requirement of FCPS--Eligibility for exemption--Request was declined--Absence of specific representation--Issuance of equivalence certificate--No vested right--Legitimate of expectation--Discriminatory dispensation--Absence of specific representation is lacking, petitioners are required to fulfil requirement of detrimental reliance – instance of purported detriment caused due to reliance upon alleged representation--Neither doctrine of procedural legitimate expectation nor substantive legitimate expectation is attracted--No purpose would be achieved by referring matter to PM&DC or CPSP, in absence of fulfilment of relevant qualifications and changed circumstances-- Allowing exemption to petitioners from requirements of FCPS Part-1 examination would otherwise tantamount to discriminatory dispensation, putting other Medical graduates--No specific, clear and unambiguous assurance/ representation was made by CPSP to petitioners, nor any such assurance was pleaded-- legitimacy of expectation is not established, and consequently doctrine is not available--Petitions dismissed.

[Pp. 31 & 32] A, B, C & D

(2002) 1 WLR 273 ref.

Mr. Muhammad Nadeem Iqbal Zahid, Advocate for Petitioner.

Mr. Waseem Majeed Malik, Addl. A.G, Mr. Sheraz Zaka, Assistant Attorney General for Respondents.

M/s. Mudassar Naveed Chattha and Javed Gill, Advocates for Respondents No. 2 and 3.

Hafiz Muhammad Asad Muneer representative of PM&DC/Respondent No. 6 along with Dr. Habib Ullah, AR PM&DC Regional Officer, Lahore.

Date of hearing: 6.4.2023.

Judgment

This and connected constitutional petitions, bearing W.P. No. 82054/2022 and W.P. No. 82066/2022 raise common questions of law, and are decided collectively through this single decision.

Controversy in nutshell:

1. Grievance summed up is that petitioners, who claimed to have had acquired the qualification of MCPS, seek exemption from requirements of FCPS Part-1 (‘exemption claimed’), claiming that upon lapse of 5 years, after having the qualification of MCPS, petitioners become eligible for exemption. Petitioners claimed that Pakistan Medical and Dental Commission (PM&DC) considers and acknowledges the qualification(s) of MCPS, being equivalent to M.Phil., therefore, in acknowledgment of such equivalence, College of Physicians and Surgeons of Pakistan (CPSP) shall also consider and acknowledge the equivalence of MCPS as M.Phil., for the purposes of allowing the exemption claimed by petitioners, in the disciple of ‘Forensic Medicine’. Petitioners had requested for grant of exemption from the requirements of FCPS Part-I but declined, thorough intimation dated, 31.05.2021, by CPSP in wake of change in the exemption rules, notified through Notification No. Ref # CPSP/Sect/202/70 dated 26th February 2020 (‘Impugned Notification’). Petitioners seek judicial review of the decision(s) of CPSP under the doctrine(s) of ‘legitimate expectation/promissory estoppel’.

Respective Submissions by learned counsels:

1. Primarily, petitioners claimed that respective qualification(s) achieved entitle them for grant of exemption from the requirements of FCPS Part-I, claiming that qualification of MCPS be treated as equivalent to M.Phil., being recognized by PM&DC, and after lapse of five years petitioners be declared eligible for grant of the exemption claimed.

Learned counsels refer to documents showing acknowledgement on the part of PM&DC, affirming date(s) of achievement of qualification(s) of MCPS by each of the petitioners, including certificate(s) of experience issued to each of the petitioners. Adds that requisite fee was deposited with CPSP, hence, enforceable rights accrued in favour of the petitioners, which rights are enforceable in law under the doctrine of legitimate expectation, and same cannot otherwise be rendered ineffective upon claiming change in the policy regarding the exemption rules. Learned counsels refer to the decisions in the cases of “Pakistan Through Secretary Ministry of Commerce and 2 others. vs. Salahud Din and 3 others” (PLD 1991 SC 546), “Hashwani Hotels Limited vs. Federation of Pakistan and others” (PLD 1997 SC 315), “Mst. Fatima Faryad and others vs. Government of Punjab and others” (2020 CLC 836) and “Dewan Salman Fibre Ltd. and others vs. Federation of Pakistan, through Secretary, M/O Finance and others” (2015 PTD 2304).

On the issue of equivalence, petitioners relied upon and referred to the ‘Regulations for the Appointment/Promotion of Faculty/ Teaching Staff/Examiners/Principals/Deans/Vise Chancellors in Undergraduate & Postgraduate Medical & Dental Institutions/medical Universities of Pakistan 2018 (Section – II thereof) (the ‘Regulations 2018’). And plead continuity of policy qua the exemption allowable under the erstwhile exemption rules/policy, with respect to the requirements from FCPS Part-1.

1. Report and para-wise comments on behalf of Respondents No. 2, 3, 6 and 7 are available on record, and comments submitted by CPSP, and PM&DC are relevant for the purposes of present controversy.

2. In nutshell, it is the case of CPSP – [which authority, besides performing other functions, is exclusively entrusted with the powers to prescribe and regulate qualification(s) and requirements for the purposes of grant of Membership of College of Physicians and Surgeons (MCPS) and Fellowship of College of Physicians and Surgeons (FCPS)] – advocated by learned counsel that no right had arisen, nor could any right be claimed in the absence of any specific representation(s) made, promise(s) undertaken or assurance(s) provided to the petitioners, individually. Adds that exemption rules vary from time to time and no permanence, in respect thereof, could be claimed. Adds that petitioners are eligible to seek qualification of FCPS Part-I upon fulfilling revised requirements. It is reiterated that no direct or specific representation was addressed that terms of exemption rules would not alter/change, which variation was a routine matter hence, no prejudice could be alleged upon change in criterion/policy, enforced through Notification of 26.02.2020. Adds that change in the policy was guided by overriding public interest and intended to forestall depreciating academic standards, to make specialist studies competitive and achieve academic excellence. Learned counsel for CPSP submits that no violation of doctrine of legitimate expectation/promissory estoppel was committed, which doctrine(s) are not attracted to the cases of the petitioners.

3. The nub of the case, on behalf of PM&DC, is that qualification(s) and equivalence claimed by the petitioners in terms of Regulations 2018 are not relevant for the purposes of claiming exemption from the requirements of FCPS Part-I. It is categorically asserted in the report/para-wise comments, submitted on behalf of PM&DC, that no equivalence certificate was ever issued/granted to the petitioners for the purposes of exemption from the requirements of FCPS Part-I.

Determination:

1. At the outset, authority/domain of the CPSP to frame, introduce and amend exemption rules is not disputed under the purview of Pakistan College of Physicians and Surgeons Ordinance 1962. Policy/exemption rules were not impugned, nor any jurisdictional error pointed in respect thereof. No document is available on record to demonstrate specific representation made or assurance extended to the petitioners by CPSP or to establish that exemption was ever granted and withdrawn thereafter. Nothing is available on record to demonstrate that petitioners had, forthwith upon acquiring the qualification of MCPS, ever sought assurance or conveyed their willingness to seek exemption from the requirement of FCPS Part-I. Petitioners approached CPSP few months before change was affected in the exemption rules. Mere filing of application would not per se entitle petitioners to claim exemption from the requirements of FCPS Part-I. It is inferred from the record that petitioners approached CPSP, which directed them to produce documents, including equivalence certificate(s) issued by PM&DC.

When asked, learned counsel for the petitioners referred to certificate(s) of Recognition of Experience allegedly issued by PM&DC, and addressed to concerned institutions/hospital(s), where petitioners were serving/employed. It is notable that such certificates were issued after change in the exemption rules – Notification was dated 26th February 2020.

1. Certificates of recognition of experience are examined. Petitioners have misconstrued contents of those certificates, which cannot be construed as equivalence certificate(s) – otherwise being deficient in material details and contained no reference to the factum of the equivalence claimed. Certificates procured cater for the requirement of certain appointment(s). Petitioners’ counsel emphasized that qualification(s) of MCPS be treated equivalent to M.Phil., based on Regulations 2018, which assertion made ignores the scope and context of the Regulations 2018. I am afraid that argument must fail, being misconceived. It is not for this Court to ascertain and determine the equivalence of qualifications claimed upon construing the Regulations 2018, when PM&DC itself had categorically denied status of said certificates as equivalence certificates. It is expedient to reproduce relevant paragraph of the report/para-wise comments, which reads as:

“6. That the contents of paragraph No. 6 are incorrect hence vehemently denied. Petitioner is trying to mislead this honourable Court. PM&DC never issued equivalence to the petitioner regarding his qualification i.e. MCPS (Forensic Medicine and Toxicology) with M.Phill (Forensic Medicine & Toxicology). The referred letter in this paragraph in this para only petitioner’s experience certificate not equivalence certificate. “

[Emphasis supplied]

1. There is another aspect of the matter. Certificates were issued after revision in the exemption rules – details are provided hereinbelow.

| | | | | --- | --- | --- | | Sr. No. | Petition. | Recognition of experience (date of certificate and length of experience) | | 1. | W.P. No. 82061/2022 | 10.06.2020 (showing experience of 05 years and 04 days) | | 2. | W.P. No. 82066/2022 | 08.09.2020 (showing experience of 04 Years 4 Months 28 days) | | 3. | W.P. No. 82054/2022 | 15.07.2020 (showing experience of 05 Years 01 Month and 13 days) |

1. Notification was issued on 26th February 2020. In these circumstances, no vested right could be claimed to have been accrued in favour of the petitioners. Even the requirement of experience of five years was not achieved by the date of the notification of change in the exemption rules.

2. Petitioners claim immunity from application of revised exemption rules based on doctrine of legitimate expectation, both procedural and substantive legitimate expectation. Applicability of doctrine of legitimate expectation is subject to the fulfilment of certain conditions, exceptions and relevant qualifications. Requisite conditions/requirements for determining the applicability of doctrine of legitimate expectation, under judicial review jurisdiction, are summed up as; making of specific representation, likely recipient of the representation made, either an individual or group of persons, detriment caused in wake of reliance on the representation, circumstances/factors for change/withdrawal of representation, if so made and acted upon, overriding public interest in case promise is reneged, case of apparent unfairness unreasonableness and misuse of power. In the case of, R v North and East Devan Health Authority, ex parte Coughlan ([2001 QB 213; [2000] 2 WLR 622) three probable scenarios were discussed in the context of plea of legitimacy of expectation, relevant paragraph is reproduced hereunder, (para 57):

“There are at least three possible outcomes. (a) The Court may decide that the public authority is only required to bear in mind its previous policy or other representations, giving it the weight it thinks right, but no more, before deciding whether to change course. Here, the Court is confined to reviewing the decision on Wednesbury grounds (Associated Provincial Picture Houses Ltd. v Wednesbury Corpn [1948] 1 KB 223). This has been held to be the effect of changes of policy in cases involving the early release of prisoners; see In re Findlay [1985] AC 318; R v Secretary of State for the Home Department, Ex p Hargreaves [1997] 1 WLR 906. (b) On the other hand the Court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the Court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629) in which case the Court will itself judge the adequacy of the reasons advanced for the change of policy, taking into account what fairness requires. (c) Where the Court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the Court will in a proper case decide whether the frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the Court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”

1. Lis at hand is examined in the context of the requisite conditions/situations narrated in the case of ‘Coughlan’ (supra) – situation depicted in first category is attracted as legitimacy of expectation is not established. Question of applicability of legitimate expectation is considered in the proximity of the facts involved.

I find specific representation, promise or assurance conspicuous by its absence. Exemption rules were changed, and such change was not directed towards the petitioners specifically, but the policy was revised in general, applicable to a class/category of persons – aspirants for achieving FCPS Part-I. No individual prejudice is caused or convincingly pleaded. It is for the petitioners to prove entitlement before seeking benefit of doctrine of legitimate expectation. Petitioners failed to establish such entitlement. Certificate(s) of recognition of experience are found deficient, even if representation or assurance, was presumed to have had been conveyed in terms of erstwhile exemption rules. Petitioners claimed that vested rights accrued were frustrated by the change in policy, relating to the exemption rules, which claim in the wake of non-fulfilment of relevant qualifications does not attract doctrine of legitimate expectation/promissory estoppel. The claim of vested rights is erroneous. It is not the case of the petitioners that exemption rules were changed after the grant of exemption from FCPS Part-I or after registering the petitioners for FCPS Part-II. CPSP considered the request of the petitioners and declined to entertain request in wake of absence of any existing rights qua revised exemption rules. Merely seeking of requisite documents by CPSP for considering eligibility for exemption claimed does not give rise to any alleged vested or enforceable right. None of the petitioners had any existing right to seek enforcement of erstwhile exemption rules, in absence of specific representation/assurance extended.

1. Learned counsel insisted that change in the policy was petitioners specific and same had prejudiced their careers. It is appropriate to discuss the rational pleaded to change in policy, though neither any specific representation was found, nor presence of requisite conditions are present, attracting doctrine of legitimate expectation. Representatives of CPSP were present and pleaded that change in the exemption rules was made based on and guided by public interest considerations, i.e., to elevate and improve the standards of specialized studies by introducing undertaking of examination. Whether requisite conditions for meeting public interest were sufficiently met before changing exemption rules? Rationality and legality qua claimed public interest need to be examined in the context of denial on the part of PM&DC. When confronted, learned counsel for the petitioners failed to establish relevance and applicability of Regulations 2018 for the purposes of present controversy, which regulations cater for appointment/promotion in Medical and Dental Institutions – PM&DC otherwise disowned granting of equivalence certificate.

2. The scope of judicial review jurisdiction can certainly be extended to adjudge factum of allegations of unreasonableness – comparatively in the context of principles of Wednesbury reasonableness test, articulated in the case of Associated Picture Houses Ltd. v Wednesbury Corp. [1948] 1 K.B.223] – or abuse of authority and unfairness in the purported exercise of authority by the public body, affecting alleged private rights, but not otherwise. And unwarranted intrusion in the policy domain, in exercise of judicial review jurisdiction, would be construed as fetter on the exercise of discretion, which encroachment is deprecated. Elements of unreasonableness, abuse of authority, act of discrimination and instances of arbitrary change in the exemption rules are conspicuously missing – change in exemption rules was not directed towards the petitioners but a consequence of change in the policy and thinking, influenced by public interest – betterment of academic excellence and raise in standard of specialist studies. If argument of the petitioners is accepted it would imply that every medical graduate, having acquired qualification of MCPS, even a day before the issuance of Notification regarding revision of exemption rules, would continue to claim exemption from FCPS Part-I exams, under the doctrine of legitimate expectation, for next five years. This is absurd. This position, if acknowledged, would place unnecessary and unreasonable restraint/fetter on the power of the CPSP to modify/change the policies, claimed to be guided by overriding public interest. No such constraints/restrictions could be imposed to circumvent the discretion extended to CPSP through statutory sanction. In the cases at hand absence of specific representation/assurance is lacking, hence, petitioners are required to fulfil requirement of detrimental reliance – instance of purported detriment caused due to reliance upon alleged representation. To elaborate the necessity of detrimental reliance, in the context of the present controversy, reference is made to the views expressed by Prof. Paul Craig in the Textbook, Administrative Law (Sweet & Maxwell) Seventh Edition 2012 at page 688, and cited in the case of R. (Bibi) v. Newham London Borough Council [2002] 1 WLR 237] Para 30 thereof, reproduced hereunder as:

But he gives the following instance of a case where reliance is not essential.

“Where an agency seeks to depart from an established policy in relation to a particular person detrimental reliance should not be required. Consistency of treatment and equality are at stake in such cases, and these values should be protected irrespective of whether there has been any reliance as such.”

1. I do not find the necessity to reconcile contrast in the pleas respectively raised by CPSP and PM&DC. PM&DC took the position that no equivalence certificate was issued to the petitioners, and reliance on the certificate of recognition of experience was misplaced, CPSP dismissed request in wake of change in the exemption rules -CPSP applied criterion prescribed in terms of revised rules and did not consider the eligibility claimed as relevant factor, based on recognition of experience certificate(s) otherwise issued, after revision in the exemption rules. On shaper focus, pleas raised are not found mutually destructive. Petitioners made twofold submissions. Firstly, they claimed eligibility based on certificate(s) of recognition of experience, and secondly, sought protection against change in the exemption rules on the premise of doctrine of legitimate expectation. Petitioners failed on both counts. Claim of eligibility was knocked down by PM&DC, which disowned issuance of equivalence certificate(s) and claim of legitime expectation fails on merits, in wake of the circumstances/facts narrated and discussed. Hence, no vested right could be claimed to displace the effect of revised exemption rules. In view of the facts of the instant case, neither the doctrine of procedural legitimate expectation nor substantive legitimate expectation is attracted. No purpose would be achieved by referring the matter to PM&DC or CPSP, in absence of fulfilment of relevant qualifications and changed circumstances – whereby the exemption rules were revised/changed. Petitioners are still capable of acquiring fellowship qualification(s) upon fulfilling requirements/qualifications for FCPS Part-1, as prescribed in the impugned Notification and notifications issued subsequently. Allowing exemption/walk-over to the petitioners from the requirements of FCPS Part-1 examination would otherwise tantamount to discriminatory dispensation, putting other Medical graduates, who have or likely to appear in FCPS Part-1 examination, in disadvantageous/unequal position – upon extending unwarranted preference to the petitioners in the absence of any enforceable right. Petitioners are required to prove legitimacy of expectation, purportedly resulting in frustration of the doctrine of legitimate expectation, but same are unsuccessful. The case-laws referred by the counsel for petitioners is examined and found inapplicable to the facts of the case, when relevant qualification(s), as claimed by the petitioners, are lacking and additionally the legitimacy of expectation is conspicuously wanting.

16. While looking for the case law on the subject, I lay hands on judgment reported as “Regina (Patel) v. General Medical Council” ([2013] 1 WLR 2801); [2013] EWCA Civ. 327), wherein claim of legitimate expectation was allowed. It is apt to discuss the circumstances in which the claim was allowed, and how instant petitions are distinguishable on facts. Claimant sought enforcement of assurance, extended by General Medical Council (GMC), body responsible for registering and regulating the doctors in United Kingdom, with respect to provisional registration of the claimant, based on the qualifications achieved upon seeking assurance from the Council. Facts are that claimant approached GMC and asked specifically, whether if the claimant completes the pre-clinical course by distance learning from foreign university, would he be provisionally registered. GMC responded in writing – through email -and assured the claimant that the Council accepts the primary medical degree from the University in question for the purpose of provisional registration. This assurance was specifically addressed to the claimant, which assurance was materially relied upon. And in these circumstances, claim based on doctrine of legitimate expectation was allowed. Comparison of the facts of said case with the facts of the cases at hand establish that no specific, clear and unambiguous assurance/ representation was made by CPSP to the petitioners, nor any such assurance was pleaded. Hence, legitimacy of expectation is not established, and consequently the doctrine is not available. No support could be drawn from the ratio of decision in the case of ‘Regina (patel) v General Medical Council’ (supra).

1. In view of the reasoning narrated hereinabove, I am not persuaded to invoke judicial review jurisdiction and procced to review the legality of decision of the CPSP. All these petitions fail on merits and same are, hereby, dismissed. No order as to the costs.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 33

Present: Anwaar Hussain, J.

AKASH MASIH--Petitioner

versus

SENIOR SUPERINTENDENT OF POLICE, etc.--Respondents

W.P. No. 59263 of 2022, heard on 12.10.2023.

Constitution of Pakistan, 1973--

----Art. 199--Advertisement for post of constable--Refusal to appointment--Conviction in criminal case--Representation--Rejected--Constitutional jurisdiction--Observation of magistrate--Petition was on payrol--High Court finds it hard to align itself to such a view--High Court in Constitutional jurisdiction cannot sit over wisdom of department reflected in a policy unless same is found to be violative of fundamental rights or based on mala fide--Judicial magistrate has made observations that sending petitioner on parole would have no bearing on his recruitment to any department in future whereas there is possibility that some other judicial magistrate in such like case(s) may not make any such observations with respect to some other applicant--It is left to Police Department to scrutinize cases of candidates, on individual basis, in accordance with its policy, envisaged under Standing Order, without any discrimination--Petition dismissed.

[Pp. 37 & 38] A, B & C

Mr. Muhammad Talha Mushtaq, Advocate, Mr. Muhammad Sajjad Zaidi, Advocate and Mr. Khawar Shabbir Khan, Advocate for Petitioner.

Mr. Imran Khan, Assistant Advocate General, Muhammad Nawaz, DSP, Office of CPO, Gujranwala, Shabbir, Inspector, Office of DPO, Gujranwala and Ali Shan, S.I., Office of CPO, Gujranwala for Respondents.

Date of Hearing: 12.10.2023.

Judgment

By way of factual background, it has been noted that in response to an advertisement published by the Police Department regarding the appointment to the post of Constable in District Gujranwala (“Police Department”), the petitioner applied for the said post, vide application Form No. 1837, and successfully completed all formalities, however, the appointment was refused on the ground that, subsequent to the submission of his application, an FIR bearing No. 68/2021, dated 11.01.2021, under Sections 427/182 of Pakistan Penal Code, 1860 (“the PPC”) and 29-D of the Telegraph Act, 1885 was found to be registered against him at Police Station Sadar, Gujranwala.

1. The petitioner approached this Court through a constitutional petition bearing W.P. No. 49792/2022 while laying challenge to rejection of his application in which the Police Department submitted a report, perusal whereof depicts that the petitioner has been refused appointment on the strength of Standing Order No. 06/2015 dated 09.07.2015 (“Standing Order”), which contemplates that a candidate having criminal record shall not be appointed. In the said round of litigation, the petitioner produced an order dated 03.06.2021 passed by the learned Judicial Magistrate, Gujranwala whereby the petitioner was convicted and was placed on probation for a period of one year and it was specifically observed that the petitioner shall not be disqualified for any Government job or appointment in future. The rejection order was set aside by this Court and the matter was remitted to the Police Department for re-examination, keeping in view the finding of the learned Judicial Magistrate recorded in order dated 03.06.2021 as well as the object of the Probation of Offenders Ordinance, 1960 (“the Ordinance”). Upon re-consideration, the Police Department has passed the impugned order dated 19.09.2022 whereby the representation of the petitioner has been turned down on the strength of the Standing Order.

2. M/s. Muhammad Talha Mushtaq, Muhammad Sajjad Zaidi and Khawar Shabbir Khan, Advocates, learned counsel for the petitioner submit that, while passing the impugned order, the object of the Ordinance has not been considered, purpose whereof is to provide an opportunity to the individuals, like the petitioner who are not hardened criminals, to reform themselves and, in this regard, places reliance upon case reported as “Inspector-General of Police Punjab, Lahore and others v. Mahmood Ikram” (1998 SCMR 765). Reliance has also been placed upon the reported judgment of this Court, dated 12.09.2023, passed in W.P. No. 50582 of 2022 titled “Syed Ali Hassan Naqvi v. Senior Superintendent of Police, etc.”, (2023 LHC 4701) in which the Standing Order came under discussion and the said petition was allowed, with the averments that the same is applicable to the present case on all fours.

3. Conversely, Mr. Imran Khan, Assistant Advocate General submits that the case of the petitioner is distinguishable from that of Syed Ali Hassan Naqvi supra, inasmuch as, this Court has not struck down the departmental policy envisaged under the Standing Order rather has affirmed the same. He further contends that the facts of the present case are distinguishable from case of Syed Ali Hassan Naqvi supra. Elaborating his stance, learned Law Officer submits that in the said case, the petitioner therein was acquitted on merits by the learned Trial Court in a case registered against the said petitioner, whereas in the instant case, the petitioner, having been nominated in the FIR registered against him after submission of the application, confessed his crime and was accordingly convicted. Therefore, his candidature has been rightly rejected by the Police Department. Concludes that in case of Syed Ali Hassan Naqvi supra, this Court has held that opinion of the Investigating Agency should not be given preference over the acquittal on merits by the Court of competent jurisdiction, whereas, in the instant case, there is no acquittal rather the petitioner was set free on parole under the Ordinance after he confessed his guilt.

4. Arguments heard. Record perused.

5. This Court has already expressed its opinion as regards the scope of Standing Order in case of Syed Ali Hassan Naqvi supra and while reading down the applicable policy of the Police Department, envisaged thereunder, this Court held that the opinion of the Investigating Officer cannot be given preference over the judicial findings of acquittal of an accused applicant on the merits of the case. However, before rendering opinion in the instant case, it will be in fitness of things to reproduce relevant part of the instructions dated 29.07.2022, admittedly forming part of the Standing Order that reads as under:

“III) All those candidates who during character verification have been found involved in criminal cases (either under trial or acquitted on multiple grounds) shall not be appointed in Police Department as constable, in the light of instructions issued vide this Office No. SE-IV/7317-70/II, dated 26.06.2014.

IV) All the candidates submit an affidavit for non-involvement in criminal cases at the time of submission of application forms and if the case is registered against an applicant after the last date of submission of application form, but the applicant is not challaned & declared innocent; then that would not be ground for rejection of an applicant. However DPO must examine that case is not cancelled or accused declared innocent due to compromise between parties in the light of Para 23 of Standing Order No. 06/2015 amended vide No. SE-III/1105-60/XV dated 01.06.2018.”

(Emphasis supplied)

1. This Court in case of Syed Ali Hassan Naqvi supra observed as under:

“9. It has become stone-etched principle of law that mere registration of FIR does not render a person guilty of commission of a crime, under the law. Registration of FIR is merely a step to put the investigative machinery of the state into motion to collect the evidence, which may culminate into the acquittal or conviction of the accused by the competent Court of law, exercising judicial power of the state. While at the one end of the spectrum lies the fundamental rights of the petitioner to pursue a profession and/or business of his choice and to be dealt with in accordance with law, as envisaged under Article 4 of the Constitution, the need to maintain the police department as a disciplined force tasked with the obligation to maintain law and order in the society lies at the other end. Hence, any aspirant to join police force must not have criminal antecedents as the same may result in recruiting of such personnel who may create difficulties in maintaining the force as disciplined one.”

1. It is clear that this Court in case of Syed Ali Hassan Naqvi supra read down the Standing Order in the manner that if the acquittal by the judicial limb of the State is on merit, a candidate should not be non-suited on the basis of the opinion of the investigating agency. While reading down the Standing Order in the stated manner, this Court was conscious of the balance required to be struck between the two opposite spectrums i.e., right of a citizen to join profession and/or calling of one’s own choice and to be dealt with in accordance with law on the one end and the public policy to maintain the police as a disciplined force by not recruiting those who possess criminal antecedents on the other. Therefore, this Court in case of Syed Ali Hassan Naqvi supra has not ruled that the candidates who have been guilty and/or convicted on the basis of confession or otherwi\se are entitled to the recruitment in the Police Department.

9. Moreover, it needs reiteration as well as elucidation that this Court saved the Standing Order in case of Syed Ali Hassan Naqvi supra by extending deference to the departmental policy incorporated therein by reading it down in the manner that acquittal by the Court of competent jurisdiction, on merits, cannot be overridden by the findings of the investigating officer as was the situation in Syed Ali Hassan Naqvi case and this aspect gets support from part IV of the Standing Order quoted hereinabove. Thus, the Standing Order, as a departmental policy, holds the field which is required to be given due deference unless found to be perverse and violative of the fundamental rights.

10. Above discussion also entails the question whether a departmental policy, like the Standing Order, can be nullified or made redundant by the observations made by a Judicial Magistrate while releasing the accused/petitioner on parole after his confession with the observation that this conviction shall not have any impact on the appointment to any government job in the future without looking into the nature of the policy(ies) of a particular department. This Court finds it hard to align itself to such a view. Even this Court in Constitutional jurisdiction cannot sit over the wisdom of the department reflected in a policy unless the same is found to be violative of fundamental rights or based on mala fide as observed hereinabove. In addition, such an observation may hold some persuasion in any other department but not in police force. Standard expected of a person intending to join a uniformed service like the Police Department is quite distinct, from other services, which is required to be more disciplined institution and inclusion of person having criminal antecedents could have bearing on the discipline of the force that is tasked to maintain law and order in the society.

11. Moreover, besides the lack of jurisdiction of judicial magistrate to nullify or make redundant the policy of the Police Department, there is another aspect of the matter from which this case can be examined. In the instant case, the learned judicial magistrate has made observations that sending the petitioner on parole would have no bearing on his recruitment to any department in future whereas there is possibility that some other judicial magistrate in such like case(s) may not make any such observations with respect to some other applicant. This would engender a discrimination of its own kind having no lawful justification and possibility thereof cannot be ruled out. This also necessitates that in such eventualities it is left to the Police Department to scrutinize the cases of candidates, on individual basis, in accordance with its policy, envisaged under the Standing Order, without any discrimination.

12. Learned counsel for the petitioner argued with full vigour and vitality that under Section 11 of the Ordinance, the conviction and release on probation does not have any bearing on eligibility of the petitioner to the post of Constable and placed reliance on case of Inspector General of Police, Punjab supra. Therefore, it would be convenient to have a look at Section 11 of the Ordinance in general and its sub-section (2) in particular, which is reproduced as under:

“11. Effects of discharge and probation.–

(1) A conviction of an offence, for which an order is made under Section 4 or Section 5 for discharging the offender after the due admonition or conditionally or placing him on probation, shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the provisions of this Ordinance: Provided that where an offender, being not less than eighteen years of age at the time of his conviction of an offence for which an order discharging him conditionally or placing him on probation is made, is subsequently sentenced under this Ordinance for that offence, the provisions of this sub-section shall cease to apply to the conviction.

(2) Without prejudice to the foregoing provisions of this section, the conviction of an offender who is discharged after due admonition or conditionally, or who is placed on probation, shall in any event be disregarded for the purposes of any law which imposes any disqualification or disability upon convicted persons, or authorizes or requires the imposition of any such disqualification or disability.”

This provision has been interpreted by the Supreme Court of Pakistan in case of Inspector General of Police, Punjab supra wherein it has been observed as under:

“14. ... Bare perusal, disclose that disqualification or disability mentioned therein is not directly relateable to conviction for an offence wherein offender has been granted probation but contemplates any disqualification or disability specifically provided or something attached to such law which should be ignored while applying abovereferred provisions of the Ordinance. Therefore, for all practical purposes the facility of probation does not altogether obliterate the conviction, but eliminates its impact by lifting away disqualification attached to any other law.”

After scanning catena of judgments on the object and scope of the Ordinance, the Supreme Court conclusively held as under:

“19. On considering the principle of law discussed above, we feel inclined to hold that by virtue of Section 11(2) Probation of Offenders Ordinance, 1960, the offender gets an opportunity of rehabilitation in the society without stigma of conviction provided the offence is not repeated and terms of bond furnished by him for good conduct and peace are honoured till stipulated period; nevertheless in case of Government servant without prejudice to benefit available under aforesaid enactment, the Departmental Authority is not precluded from initiating action for misconduct under relevant Efficiency and Discipline Rules.”

(Emphasis supplied)

It is well evident from the above that in case of Inspector General of Police Punjab, supra the appeal of the Police Department was accepted and the department was held to be not precluded to proceed against the delinquent serving Police Officer even after his Probation under the Ordinance. Therefore, if the Police Department was allowed to proceed on account of misconduct in respect of a serving Police official under the applicable service rules, it cannot be construed that the Police Department, on the same analogy, cannot reject the candidature of an applicant on the basis of departmental policy envisaged under the Standing Order.

13. Even otherwise and without prejudice to the above, if the contention and reliance of the counsel of the petitioner on case of Inspector General of Police Punjab, supra is considered the way the counsel of the petitioner pleaded and wants this Court to read, even then the same is of no help to the petitioner as the Standing Order was not in field at the time when the decision was rendered in referred case and never came under discussion before the Supreme Court of Pakistan. Hence, the reliance is misplaced on this ground as well.

1. In view of the above discussion, this Court is of the opinion that the present petition has no merit and hence, dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 40

Present: Shahid Jamil Khan, J.

Syed ALI RAZA NAQVI, etc.--Petitioners

versus

CHAIRMAN PPSC, etc.--Respondents

W.P. No. 43082 of 2023, heard on 17.10.2023.

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

----S. 24-A--Constitution of Pakistan, 1973, Arts. 18, 25 & 199--Constitutional petition--Non-issuance of appointment letters--Recommendations for appointment--Petitioners were named in FIR’s--Discretion of appointing authority--Fundamental right--Non-availability of criminal record--Exercise of discretion is declared against spirit of judgment in Faraz Naveed Case and violative of Section 24-A of General Clauses Act, 1897--The discretion cannot be exercised in mechanical way, when future of a citizen is at stake--The petitioners, being citizens, have constitutional and fundamental right under Articles 18 and 25 of Constitution against discrimination and for choice of occupation and profession--Petitioners were named in FIRs arising out of some family dispute--No evidence or information of their other criminal record is available--Any law abiding citizen, by fate, can be entangled in any criminal case, his future and fundamental rights under Constitution cannot be compromised by a rule of thumb--Petition allowed. [P. 43] A, C & D

Constitution of Pakistan, 1973--

----Art. 27--Protection from discrimination--A person qualified for appointment is protected from any discrimination, which in this Court’s opinion, includes denial for appointment on conjectures and surmises. [P. 43] B

M/s. Muhammad Shabbir Hussain, Muhammad Adnan Afzal, Rana Rafaqat Ali, Mehar Ahsan Javed and Usman Haider Toor, Advocates for Petitioners.

Mr. Waseem Majeed Malik, Additional Advocate General, Punjab for Respondents.

Mr. Ijaz Ahmad Awan, Law Officer, PPSC.

Mr. Javeed Dogar, DSP/Legal, Capital City Police Officer.

Date of Hearing: 17.10.2023.

Judgment

Petitioners are aggrieved of non-issuance of appointment letters despite recommendations (Annex-B) by Punjab Public Service Commission (“PPSC”), where petitioners are appearing at Serial Nos. 18 and 75 respectively.

Learned counsel for the petitioners submitted that they were informed verbally about non-issuance of appointment letters due to criminal cases, in which petitioners have already been acquitted. Contended that as per Respondent No. 4/CCPO, the acquittal is in absence of evidence, therefore, petitioners cannot be appointed.

Learned counsel for the petitioners has placed reliance on number of judgments i.e Muhammad Ayaz Khan v. Government of Sindh and others (2007 PLC (C.S) 716), Dr. Abid Ali and 5 others v. Government of Khyber Pakhtunkhwa through Secretary, Health Peshawar and 3 others (2014 YLR 1322), Inamullah v. Government of KPK through Chief Secretary and 3 others (2017 PLC (C.S.) 926), Waseem Yaqoob v. Government of Punjab and others (2018 PLC (C.S) 454), Abdus Salam v. Inspector General of Police , Punjab and 2 others (2019 PLC (C.S.) 503), Attaullah Sheikh v. WAPDA and others (2001 SCMR 269) and Mumtaz Ali Shah v. Chairman, Pakistan Telecommunication Company Ltd., H.Q., Islamabad and 6 others (PLD 2002 SC 1060).

1. Learned Additional Advocate General assisted by DSP Legal submits that in presence of criminal record the respondents have discretion to refuse appointment letter despite recommendation by PPSC. He has placed reliance on Paragraph No. 23 of Standing Order No. 6 of 2015 issued by Inspector General of Police, Punjab, relevant part of which is reproduced:

“BACKGROUND INVESTIGATION:

The District Police Officer, shall send the requisite information of the successful candidates to the Addl. Inspector General of Police, Special Branch and also to the concerned Police Station of the District where the candidate resides.

The two offices i.e. Addl. IGP Special Branch and District Police Officer concerned shall put every effort to verify the personal character, academic certificates and other relevant facts of the successful candidates.

The verification reports shall be minutely scrutinized by the DPO before issuing appointment letter.

Candidates having criminal record or affiliation with any prescribed organization shall not be appointed.”

[Emphasis supplied]

He has also placed reliance on judgment by the Apex Court in Faraz Naveed v District Police Officer Gujrat and another (2022 SCMR 1770) and has read Paragraph No. 17 of the judgment, which is reproduced:

“17. The police force is a disciplined force with cumbersome accountability and responsibility of maintaining law and public order in the society and populace, therefore, any person who wants to be part of the disciplined force should be a person of utmost integrity and uprightness with unimpeachable/spotless character and clean antecedents. Despite acquittal, it is the privilege and prerogative of the employer which is in this case “Punjab Police Force”. So, it is for the department to examine fairly and equitable whether the petitioner has been completely exonerated or not and his further induction may not become a constant threat to the discipline of the police force and public confidence and may also not demoralize and undermine the environment and frame of mind of the upright and righteous members of the force, therefore, a person having criminal antecedents would not be fit to be restored or reinstated to his previous position or post.”

[Emphasis supplied]

Submits that petitioners’ name in the FIRs falls within the mischief of criminal record, therefore, following the rule of thumb and in the light of judgment, ibid, the appointment letters are not being issued.

Learned AAG has not denied that petitioners are named in the FIRs arising out of some family disputes. It is also not denied that petitioners have successfully qualified the process and recommendations for their appointment have been made by PPSC.

1. Heard. Record Perused.

2. Perusal of the reply by respondents and assistance by learned AAG does not show that the parameters and dictum laid down by August Supreme Court has been followed while declining the appointment letter.

The judgment in Faraz Naveed Case (supra) required the relevant authority to form an opinion fairly and equitably that despite exoneration the criminal record suggests that the candidate is a constant threat to the discipline of the police force, police confidence and may demoralize and undermine the environment in department etc. The judgment does not support the rule of thumb that in presence of an FIR, even after acquittal the successful candidate recommended

by PPSC shall be refused appointment letter. The rule of thumb is not even supported by the Standing Order No. 6 of 2015 which envisages “candidates having criminal record”. The term “criminal record”, denotes a consistent involvement in criminal activities.

This exercise of discretion is declared against the spirit of the judgment in Faraz Naveed Case (supra) and violative of Section 24-A of General Clauses Act, 1897. The discretion cannot be exercised in mechanical way, when future of a citizen is at stake. The petitioners, being citizens, have constitutional and fundamental right under Articles 18 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”) against discrimination and for choice of occupation and profession. In particular under Article 27 of the Constitution, a person qualified for appointment is protected from any discrimination, which in this Court’s opinion, includes denial for appointment on conjectures and surmises. For having a criminal record opinion, the authority must disclose the reasons, as envisaged in Faraz Naveed Case (supra), based on material gathered from Special Branch or concerned Police Station. The rule of thumb followed by the respondents to refuse appointment is declared ultra-vires of the Constitution.

Admittedly, the petitioners were named in the FIRs arising out of some family dispute. No evidence or information of their other criminal record is available. Acquittal for no evidence means that the allegation in FIR was false. Any law abiding citizen, by fate, can be entangled in any criminal case, therefore, his future and fundamental rights under the Constitution cannot be compromised by a rule of thumb.

1. The petition is allowed. Respondent No. 4 is directed to issue appointment letters to the petitioners in absence of any adverse opinion in light of the judgment in Faraz Naveed Case (supra).

(Y.A.) Petition allowed

PLJ 2024 Lahore 43

Present: Muhammad Amjad Rafiq, J.

PARVEZ ELAHI--Petitioner

versus

CARE TAKER GOVERNMENT OF PUNJAB etc.--Respondents

W.P. No. 45360 of 2023, decided on 13.7.2023.

Constitution of Pakistan, 1973--

----Arts. 199 & 199(1)(c)--Registration of certain FIR’s and pendency of inquiries--Submission of report--Arrest of petitioner in unknown criminal cases--Uncalled practice--Arrest after arrest--Denial of fundamental right--Direction to--If accused is arrested in another case when he was on interim pre-arrest bail in one case, his petition should not be dismissed due to want of appearance--In this digital age when sharing information is so simple and cheap, its dissemination has become so rapid and effective either through social media account or online information available at respective Police Information System Software, record of criminal cases of an accused can be obtained easily--Arrest after arrest or successive remands in different cases amounts to denial of fundamental rights to life and liberty and also opposes to principle of due process--Arrest in different cases is not being sought for purpose of investigation but to keep accused in physical custody of law enforcement agency for a longer period in order to kneel down him to their terms, then it is not only illegal but an offence, and bona fide of police for arrest in different cases is reflected if they put remand request with criminal record of accused--Petitioner shall not be arrested in any blind or unknown FIRs or in pending inquiries which shall be completed after providing statement of allegations and opportunity of hearing to petitioner under Punjab Anti-Corruption Rules, 2014 or Federal Investigation Agency Act, 1974--Petition allowed. [Pp. 48, 52 & 54] A, E, F, G & I

Constitution of Pakistan, 1973--

----Art. 199(1)(c)--Powers of High Court--The High Court under Article 199(1)(c) of Constitution is competent to pass appropriate orders on application of any aggrieved person yet this appropriation must not violate any provision of law. [P. 49] B

PLD 1993 SC 473.

Uncalled practice--

----The uncalled practice for arrest after arrest cannot be weighed in light of object of law enforcement agencies, rather from actions which speak intentions, alive in this case, and many others, they were so prompt and swift so as to leave desperation as foot prints in book of history-- Such practice is a source of nuisance and causes harm to mind and reputation of a person which in turn is synonymous to causing hurt. [Pp. 50 & 51] C & D

PLD 2018 SC 595 & 1994 SCMR 1283.

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

----S. 54--Powers of police--Section 54 of Cr.P.C. empowers police to arrest without a warrant any person required in nine situations mentioned therein but it is only permissible and cannot be used as substitute of might is right. [P. 52] H

M/s. Asif Mehmood Cheema and Amir Saeed Rawn, Advocates for Petitioner.

Mr. Muhammad Anwar Khan, Assistant Attorney General.

Mr. Ghulam Sarwar Nahung, Additional Advocate General, Mr. Sittar Sahil, Assistant Advocate General, Mr. Imran Abbas Sahi, AAG and Mr. M. Farrukh Khan, AAG for Respondents.

Malik Khuda Yar, Inspector Legal.

Ahmad Waqar, Inspector, FIA/AML/Lahore, Shouzab, SI. Ch. Riaz, Deputy Director Legal Anti-corruption and Waseem Sadiq, Assistant Superintendent District Jail, Lahore.

Date of hearing: 13.7.2023.

Order

Through this writ petition, the petitioner has requested for information about details of criminal cases and pending inquiries against him with further prayer to supply copies of said FIRs and inquiries; get the petitioner’s Stress Nuclear Sestamibi scan done; provision of well-ventilated vehicle for transportation to the concerned Courts and finally that the petitioner may not be arrested in unknown criminal cases with ensued consequences for grant of opportunity to approach the concerned Court, if any cases are found registered.

1. Learned Counsel (s) for the petitioner contend that as a last hope they have knocked the door of this Court and invoke the extra ordinary jurisdiction under Article 199 (1)(c) of the Constitution of the Islamic Republic of Pakistan, 1973 which authorizes to pass an appropriate order on the application of any aggrieved person for enforcement of his fundamental rights, and the petitioner being in the age of 76 years beseeching the grandeur of this Court, as in pain due to tyrant act of caretaker government making him prey of political victimization. He is being traumatized through registration of successive FIRs and once, he succeeds to obtain bail or discharge order in any case he is immediately arrested in other cases there and then and this trauma is continued for the last 1½ months. Learned counsel (s) have submitted in a chronological order the facts of petitioner’s arrest, his appearance before the Court, grant of bail or discharge order and re-arrest soon after every expedition; however, state that as per list of cases provided by the respondents, all FIRs against the petitioner have almost been exhausted wherein he has successfully obtained release orders except in two cases i.e., FIR No. 5/23 P/S ACE Gujrat and FIR No. 1150/2023 P/S Ghalib Market, Lahore. Though he had applied for pre-arrest bail in case FIR No. 1150/2023 P/S Ghalib Market, Lahore but it was dismissed due to non-prosecution; therefore, later he applied for post arrest bail in such FIR but application was dismissed on the stance of police that he is not under arrest in such case. They further state that at present petitioner is behind the bars in FIR registered at FIA, Lahore but has also succeeded to obtain bail in that case wherein his release order is being processed through dialogue between concerned Court and Superintendent Jail, but petitioner apprehends that the moment he comes out of the jail, he would be arrested in FIR No. 5/23 ACE, Gujrat and FIR No. 1150/2023, P/S Ghalib Market, Lahore. Apprehension is further extending to the pending inquiries which can be formalized into an FIR at any moment of time by Anti-corruption establishment; though he has not been associated in such inquiries nor he knows about nature of allegations therein, therefore, he has made above submissions/prayers mentioned in the opening paragraph of this Petition. Learned counsel (s) have relied on case titled “Ali Muhammad Khan Versus Director Anti-Corruption Mardan and other” passed in Writ Petition No. 2790-P/2023 by the Peshawar High Court, Peshawar whereby an interim restraining order dated 05.07.2023 has been passed in favour of the petitioner therein, as not to arrest him in unknown FIRs. The learned Counsel (s), In the meantime, have also placed on record copy of order dated 11.05.2023 passed in petition for pre-arrest bail filed by the petitioner before the learned ATC, Lahore in case FIR No. 1150/2023 P/S Ghalib Market, Lahore supra.

2. On the other hand, Mr. Ghulam Sarwar Nehung, learned Additional Advocate General states that every time petitioner brings a lis before this Court with one pretext or the other without any substantive ground or material. Further states that no law prohibits the law enforcement agencies to arrest the accused in number of cases one after another and passing of omnibus order for not arresting the petitioner in any unknown FIRs is without any legal justification.

3. Arguments heard. Record perused.

4. Perusal of report submitted by the Director General Anti-Corruption Establishment Punjab, Lahore shows that certain FIRs are registered and some inquiries are pending against the petitioner which are as follows:

Similarly, Director FIA, Lahore Zone has submitted report that the petitioner is involved in following two FIRs:-

1. FIR No. 18/2023 dated 20.06.2023 u/S. 161,162 PPC, 5(2)47 PCA, 5,23 FERA r/w section 3/4 AMLA, PS FIA AMLC Lahore;

2. FIR No. 3/2023 dated 13.02.2023 u/S. 3/4 AMLA 2010, PS FIA AMLC Lahore.

As per report submitted by the AIG/Legal for Inspector General of Police Punjab Lahore, the petitioner is involved in case FIR No. 1150/23 u/S. 324/353/506-B/440/436/ 427/212/ 186/147/148/149 PPC, 7-ATA Police Station Ghalib Market, Lahore.

1. The petitioner has secured bail or discharge order in all cases registered by the Punjab Anti-Corruption Establishment except in FIR No. 5/23 ACE, Gujrat whereas in two cases of FIA, he has also secured bail, yet in one case his release is under process. One case behind him is the FIR No. 1150/2023 P/S Ghalib Market, Lahore in which he earlier approached the Anti-terrorism Court Lahore but on chase by police in another case he could not appear on 11.05.2023 before the Court, therefore, his petition for pre-arrest bail was dismissed due to non-prosecution. Order of Learned Judge Anti-terrorism Court was examined which shows that dispensation was sought on medical grounds, learned Court though tentatively assessed the medical certificate yet neither provided opportunity to place on record the proof in respect of such contention nor summoned the accused. Learned Additional Advocate General says that there is no law for summoning of accused on the eve of his absence in above proceedings, and petitioner was not under arrest on the day when he absented himself from the Court; therefore, cannot be considered as in captivity. It is not necessary that one must be in the captivity to define it as in custody, rather restriction on his freedom of movement due to fear of arrest or threat to life amounts to, as in the custody. Full Bench of this Court in a case reported as “Shabbir Ahmad versus The State” (PLD 1981 Lahore 599) explains this term with following expression:

“I would like to explain here the word `custody'. It should not be construed as physical custody. If a person is in restraint or he apprehends arrest in a case which is cognizable obviously his custody is intended by the Police Officer who can arrest him without warrant.”

Therefore, when one cannot reach to the Court due to fear of arrest, his absence be given an opportunity for an explanation particularly in sheer or extreme cases of real exigency. The opportunity for explanation has been focused in cited case in following terms:

“The absence of the accused for a genuine cause has to be taken into consideration by the Court and it should not take hasty steps without affording a reasonable opportunity of showing cause for his absence.”

Similar view was expounded by the Supreme Court in a case reported as “Shahzaib and others versus The State” (PLD 2021 Supreme Court 886) which is as follows:

“However, in case some explanation is furnished for his nonappearance, the Court may, if it finds that explanation to be satisfactory, exempt his presence for that day and adjourn the hearing of the petition for a short period.”

Even if the accused is arrested in another case when he was on interim pre-arrest bail in one case, his petition should not be dismissed due to want of appearance rather a direction be passed for his production before the Court as held by this Court in a case reported as “Farhan Masood Khan versus State etc.” (PLJ 2021 Cr.C. (Lahore) 550); therefore, contention of learned Additional Advocate General is without any legal force, and learned ATC, Lahore had also lost sight of above dictum of the Superior Courts.

1. The practice of police to arrest the accused intermittently at their wish in different cases one after another for conducting investigation separately amounts to denial of fundamental rights to life and liberty. It has also taken notice of Honourable Supreme Court of Pakistan and expressed serious concerns in a case reported as “Government of Sindh through The Chief Secretary, Karachi and 4 others versus Raeesa Farooq and 5 others” (1994 SCMR 1283); it dictates that when action of law enforcement agencies by their act seems mala fide, High Court must come into the rescue of an aggrieved person; such dictates of Hon’ble Supreme Court is cited as follows:

“Where the action and proceedings are not bona fide and with ulterior motive to obtain information about an absconding accused and arrest after arrest is made involving same person in different blind reports lodged much earlier and no explanation is provided for such series of actions in seriatum one after the other, the High Court is empowered to afford protection to the citizen against frivolous and mala fide actions by imposing conditions on the erring authorities and agencies.”

The High Court under Article 199(1)(c) of the Constitution of the Islamic Republic of Pakistan, 1973 is competent to pass appropriate orders on the application of any aggrieved person yet this appropriation must not violate any provision of law. However, when there is no express provision in the context of remedy sought for or which could cater to a situation as the justice demands then the Court can exercise powers ex debito Justitiae and can grant a relief not specifically prohibited by law; reliance is on case reported as “Mian Muhammad Nawaz Sharif versus President of Pakistan and other” (PLD 1993 Supreme Court 473). Ex debito Justitiae means “of or by reason of an obligation of justice” and it commands that the way of justice is paved with truth (Justitiae via strata veritate). This Court in a case reported as “Muhammad Naeem versus The State” (1980 P Cr. L J 377) (Lahore) while exercising powers ex debito justitiae granted interim bail to the accused and held that this power can be invoked under Article 203 of the Constitution.

1. In a case reported as “Mst. Razia Pervaiz and another versus The Senior Superintendent of Police, Multan and 5 others” (1992 PCr.LJ 131), this Court has embarked upon the practice of police to arrest the accused in more than one cases one after another and declared as under:

“Before parting with the judgment, I feel constrained to observe that the provisions of Section 54, Cr.P.C. relating to the arrest of the accused by the police and the provisions of Section 167, Cr.P.C. pertaining to the remand of the accused person to police custody have been misused and old unwarranted police tactics of arresting the accused person repeatedly in more than one cases, have been played in the instant case, although the law does not authorise the police to arrest an accused required in more than one cases, in one case and to wait for his arrest in the other case till the expiry of the period of remand under Section 167, Cr.P.C. or till he is released on bail in the first case. This commonly committed mischief not only defeats the object of Section 167, Cr.P.C. of limiting the period of physical detention of an accused person to fifteen days but is obviously a joke with the powers of the Magistrate in the matter of remand and custody of an accused person.”

(Emphasis supplied)

The matter of blind FIRs was also subject of a case reported as “Jam Saqi versus Province of Sindh through Secretary, Home Department, Karachi and 6 others” (2005 PCr.L.J 1626) wherein the Hon’ble Division Bench has observed that If an action is taken with mala fide intention then the powers exercised by the State functionaries cannot be treated as the powers they can exercise with bona fide intentions in ordinary course of law. The Division Bench finally directed in following terms:

“We direct that the entire police administration in the whole of Province of Sindh shall not arrest the petitioners and Mst. Akhtar Sultana in any blind FIR or in any FIR which is pending for more than one year against the petitioners and Mst. Akhtar Sultana until and unless the necessary particulars of FIR are placed before this Court and appropriate orders are sought from this Court.”

Almost a similar view was already in place which was reported through case titled as “Maulana Abdus Sattar Khan Niazi versus The State” (PLD 1974 Lahore 324); the case deals with an injunctive order, as not to arrest the petitioner in unknown cases; which High Court declared can be passed under Article 102 of the Constitution of Pakistan, 1962. In the recent case “Ali Muhammad Khan Versus Director Anti-Corruption Mardan and other” passed in Writ Petition No. 2790-P/2023 by the Peshawar High Court, Peshawar, an interim injunctive order was passed as not to arrest the petitioner therein in unknown FIRs.

1. The uncalled practice for arrest after arrest cannot be weighed in the light of object of law enforcement agencies, rather from the actions which speak intentions, alive in this case, and many others, they were so prompt and swift so as to leave desperation as foot prints in the book of history. Without collecting proper information and sufficient material rushing for an arrest stands in complete negation of dictum of Honourable Supreme Court in a case reported as “Mst. Sughran Bibi versus The State” (PLD 2018 Supreme Court 595) which otherwise is binding on every organ of the State as per Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973. Any deflection of such dictum in the given situation amounts to a mala fide action couched in ulterior motives for keeping the petitioner behind the bars at every cost. The Honourable Supreme Court in supra case Government of Sindh etc. versus Raesa Farooq (1994 SCMR 1283) regarded that such like actions of police are for extorting confession or information from accused through ulterior motives. Such practice is a source of nuisance and causes harm to mind and reputation of a person which in turn is synonymous to causing hurt; according to Section 332 PPC hurt includes injury, and injury defined in Section 44 PPC means “any harm whatever illegally caused to person, in body, mind, reputation or property”. Therefore, causing injury for extorting information or confession is an offence u/S. 337-K PPC which is reproduced for reference:

337K. Causing hurt to extort confession, or to compel restoration of property: Whoever causes hurt for the purpose of extorting from the sufferer or any person interested in the sufferer any confession or any information which may lead to the detection of any offence or misconduct, or for the purpose of constraining the sufferer, or any person interested in the sufferer, to restore, or to cause the restoration of, any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property, or valuable security shall, in addition to the punishment of qisas, arsh or daman, as the case may be, provided for the kind of hurt caused, be punished, having regard to the nature of the hurt caused, with imprisonment of either description for a term which may extend to ten years as ta'zir.

(Emphasis supplied)

Putting somebody in captivity with threatened incarceration, of course indicate design either to obtain required information or to secure forced confession of alleged or supposed crime. People resist against injustice with inner strength both physical and mental but are prone to rely on support from outside world like friends, relatives, colleagues, community or general masses; therefore, captivity, particularly illegal, disconnects the person from outside world and breaks him down so badly as to accept everything before him to avoid danger to his health, mind, property and most of all the family. Producing such effects amounts to commission of offence u/S. 337K of PPC which is a cognizable offence; therefore, arrest after arrest also falls in the same category.

1. In the light of above discussion, it can be said that in this digital age when sharing information is so simple and cheap, its dissemination has become so rapid and effective either through social media account or online information available at respective Police Information System Software, the record of criminal cases of an accused can be obtained easily. Even otherwise, a Crime Investigation Agency (CIA) is in existence whose primary duty is collection of information relating to investigation of every case registered in the district that does include information of arrest as per Rule 21.35 of Police Rules, 1934 and it also talks about arrest of accused in all cases and not in one. On receiving an information of arrest of an accused CIA is duty bound to inform the Incharge Police Station about any other cases registered against him in the district; therefore, Station House Officer can also develop contact with CIA of other districts or provinces so as to collect information about number of cases registered against him throughout the country. Therefore, once an accused is arrested, he can be put into investigation for all cases registered against him and if the investigation cannot be completed within stipulated period during a physical remand, it can well be continued during judicial custody of accused in the jail with all just legal exceptions, of course with the permission of concerned Magistrate; therefore, arrest after arrest or successive remands in different cases amounts to denial of fundamental rights to life and liberty and also opposes to principle of due process. It is held that if it spurs out from the record that arrest in different cases is not being sought for the purpose of investigation but to keep the accused in physical custody of law enforcement agency for a longer period in order to kneel down him to their terms, then it is not only illegal but an offence, and bona fide of police for arrest in different cases is reflected if they put remand request with criminal record of accused.

2. It is trite that Section 54 of Cr.P.C. empowers the police to arrest without a warrant any person required in nine situations mentioned therein but it is only permissible and cannot be used as substitute of might is right, therefore, for effecting arrest, a warrant should be obtained and as per Section 75(2) of Cr.P.C. it remains operative until executed or cancelled by the Magistrate/Court concerned therefore, whenever any arrest is required, law enforcement agencies are duty bound to submit information of all cases in which the arrest of accused is being sought. This command of law in fact provides opportunity to ensure the compliance of dictum laid down by Honourable Supreme Court in “Sughran Bibi Case” supra for collection of sufficient material before making arrest. The concerned Magistrate/Court are the Guardian of the Constitution and shall accord permission to arrest only if it does not oppose to fundamental right to ‘safeguards as to arrest and detention’ as enshrined in Article-10 of the Constitution. The request of police must be supplemented by an opinion of concerned prosecutor so as to convince the Magistrate/Court that material is or isn’t available to give a go to the request of police. Mentioning the criminal antecedents of an accused in a request of remand helps the police to obtain physical custody and also resist bail there or at subsequent stage because maintaining criminal history is one of the grounds to decline bail to the accused, as being hardened or dangerous, in order to avoid repetition of the offence; therefore, non-mentioning of record sometimes gives premium to accused to seek bail successfully, that irks the police to obtain successive remands.

3. So far as the request of learned counsel(s) for the petitioner that the protective bail may be granted in remaining two cases i.e., FIR No. 5/23 P/S ACE, Gujrat and FIR No. 1150/2023 P/S Ghalib Market, Lahore. which was seriously opposed by the learned Additional Advocate General that petitioner is not before the Court therefore, he cannot be granted protective bail which was responded by the other side that the petitioner being in jail is in the notice of Court, therefore, he can be summoned before this Court or he can be treated like an accused who applies bail for landing into the country in order to surrender before the Court of law and Court usually grants such opportunity as held in case reported as “Sharjeel Inam Versus Federation of Pakistan and others” (2017 YLR 2423). The request of learned counsel (s) for the petitioner is acceded to, petitioner is granted protective pre-arrest bail for approaching to the Court concerned within 10 days after his release from the jail. Earlier the petition for pre-arrest bail of the petitioner in case FIR No. 1150/2023 P/S Ghalib Market, Lahore was dismissed due to non-prosecution; though as per ratio in above Case laws the petition should be considered as pending but as said order of dismissal has not been challenged, therefore, while relying on case laws cited above, it is directed that petitioner shall not be arrested in case FIR No. 1150/2023 P/S Ghalib Market, Lahore who shall approach the concerned Court with a fresh application within a period cited above which shall be decided in accordance with law. The petitioner shall submit personal surety bond in the sum of Rs.50,000/- each in above FIRs, for the satisfaction of Deputy Registrar (Judl.) of this Court.

4. The net result of above discussion is that this writ petition is allowed in the above terms with the direction that petitioner shall not be arrested in any blind or unknown FIRs or in pending inquiries which shall be completed after providing statement of allegations and opportunity of hearing to the petitioner under the Punjab Anti-Corruption Rules, 2014 or Federal Investigation Agency Act, 1974. The matter for his Stress Nuclear Sestamibi scan and provision of well-ventilated vehicle for transportation to the concerned Courts is forwarded to the Additional Chief Secretary (Home) for decision in accordance with law.

(Y.A.) Petition allowed

PLJ 2024 Lahore 54

Present:Jawad Hassan, J.

Ch. UMER AFTAB DHILLU and another--Petitioners

versus

ELECTION COMMISSION OF PAKISTAN and others--Respondents

W.P. No. 287 of 2024, decided on 3.1.2024.

Constitution of Pakistan, 1973--

----Arts. 17 & 199--Election Act, (XXXIII of 2017), Ss. 215 & 215(5)--Constitutional petition--Submission of nomination papers--Non-eligibility to obtaining of election symbol of BAT--Submission of certificate regarding holding of intra-party elections--Rejected--Jurisdiction--Identical matter was sub-judice before Peshawar High Court--Conflicting opinions--Level paying field--Suspension of order of Election Commission of Pakistan by Peshawar High Court--Maintainability-- Supreme Court of Pakistan has taken exception to any move which could directly or indirectly delay holding of General elections in a number of recent pronouncements--Peshawar High Court, has already taken up same matter wherein Court has suspended an order of Election Commission and matter is still pending adjudication there--Agitating same matter before two parallel forums may result in conflicting opinions thereby undermining judicial process besides resulting in multiplicity of litigation which may result in delaying elections--Claim of Petitioners in instant writ petition is that a level playing field has been denied to political party of Petitioners by depriving it for its symbol “BAT” under cover of intra party election thereby discriminating against all other political parties who were not so denied their respective symbols despite fact that other parties followed less onerous processes of holding intra party election in accordance with their respective Constitutions--It is well settled that fundamental rights of freedom of association under Article 17 of “Constitution” is subject to reasonable restrictions imposed by law--Taking up a matter which has already been suspended by another Court of competent jurisdiction, would be against judicial propriety as it has potential to result in conflicting judgments on a particular matter--Petition dismissed.

[Pp. 58, 60 & 62] A, B, C, D, E & G

2023 SCP 337, 2023 SCP 394, PLD 2008 SC 80, PLD 2022 Lahore 817, 2019 PTD 903, 2019 SCMR 1146, PLD 2019 Lahore 407 ref. PLD 2019 SC 318.

Interim Relief--

---- Even otherwise, it is a well settled principle of law that when vires of law is challenged, interim relief cannot be granted. [P. 62] F

Mr. Muhammad Wasim Sandhu, Advocate alongwith Petitioner No. 2 Bilal Nazir Cheema, in person.

Mr. Asad Ali Bajwa, Deputy Attorney General for Pakistan with Ijaz Rehmat Basra, Assistant Attorney General for Federation of Pakistan for Respondents.

Mr. Khurram Shehzad Chughtai, Assistant Advocate General for Respondent No. 4/Government of Punjab.

Date of hearing: 3.1.2024.

Judgment

Ch. Umer Aftab Dhillu and Bilal Nasir Cheema (the “Petitioners”) have filed this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) calling in question order dated 22.12.2023 (the “impugned order”) passed by the Election Commission of Pakistan (the “ECP”)/Respondent No. 1. Operative part thereof is reproduced hereunder:

“So keeping in view the clear mandate of Elections Act, 2017 read with PTI Constitution 2019, and for reasons mentioned hereinabove, it is held that PTI has not complied with our directions rendered therein order dated 23rd November, 2023 and failed to hold intra-party election in accordance with PTI prevailing Constitution, 2019 and Election Act, 2017 and Election Rules, 2017. Therefore, the certificate dated 4th December, 2023 and Form-65 filed by the alleged Chairman, is hereby regretted and rejected accordingly. The provisions of Section 215 of the Election Act, 2017 are hereby invoked and PTI is hereby declared ineligible to obtain the Election Symbol for which they have applied for”.

Pursuant to above said observations, the Petitioners have made following prayers in order to:

declare that the impugned order of ECP dated 22.12.2023 is without jurisdiction, without lawful authority and illegal and as consequence thereof set it aside forthwith;

suspend the impugned order dated 22.12.2023 forthwith and direct the election commission of Pakistan to forthwith “publish the certificate of PTI on website of ECP” as required by S.209(3) in the interest of justice and to restore its election symbol forthwith;

declare that ‘Election Symbol’ has been illegally and unlawfully been withdrawn which is, inter- alia, violation of fundamental rights of the petitioners including Art. 17 and Art. 25 of the Constitution;

direct the Respondents to entertain the grievance of the petitioners in the light of order dated 26.12.2023 passed by the Hon’ble Peshawar High Court, in the supreme interest of justice and fair play;

declare that the Election Commission has no jurisdiction to decide that whether intra party elections, held on the direction of Election Commission were according to party Constitution or not; and.

publish the list of women candidates for PTI’s reserve seats in Punjab.

A. BRIEF BACKGROUND

1. As stated in the petition, the Petitioner No. 1 namely Ch. Umer Aftab Dhillu is president of Pakistan Tehreek-e-Insaaf (the “PTI”) District Sheikhupura and is contesting election of Member National Assembly and Member Provincial Assembly with electoral symbol “BAT”, while the Petitioner No. 2 Bilal Nasir Cheema is Ex-General Secretary of the “PTI” District Gujranwala who is contesting election for Member Provincial Assembly. They submitted their nomination papers which were accepted but through the impugned order they have been declared ineligible to obtain election symbol of “BAT” for the General Elections 2024 going to be held on 08.02.2024, hence this petition.

B. PETITIONERS ARGUMENTS

1. Learned counsel for the Petitioners inter alia argues that the “ECP” has no jurisdiction to declare internal appointments of officials of the “PTI” as void hence the “impugned order” is mala fide; that the “impugned order” has been passed in a discriminatory manner as the “ECP” never examined even a single political party who follow less onerous processes of holding intra party elections in accordance with their own Constitutions; that intra party elections were conducted on 02.12.2023 and all relevant documents were submitted after complying with provisions of the “Act” therefore, there was no justification to declare the political party ineligible to obtain election symbol and to reject certificate submitted by it in terms of Section 209 of the “Act”; that Section 215 of the Election Act, 2017 (the “Act”) depends upon filing of a certificate and statements referred to in Sections 202, 206, 209 and 210 of the “Act” and said certificate was submitted after holding intra party elections on 02.12.2023; that after fulfilling all requirements of law, the “ECP” was mandated to publicize the certificate on its website; that right to contest election under a common symbol (BAT) cannot be taken away by the “ECP” thus the “impugned order” is harsh, irrational and unsustainable; that a level playing field is essential for the healthy competition, ensuring that the elections are a true reflection of the people’s choice rather than the result of manipulation or coercion.

C. RESPONDENTS ARGUMENTS

Arguments on behalf of Federation of Pakistan

1. Learned law officers objected to maintainability of the petition inter alia on the grounds that the Petitioners have no locus standi to file this petition as the issue raised in this petition has already been dealt with by Peshawar High Court, Peshawar in W.P. No. 6173 of 2023 wherein the Court passed interim order dated 26.12.2023; that the Petitioners have challenged to Section 215(5) of the “Act” on the touchstone of Article 17 of the “Constitution”; that on identical issue with regard to general elections 2024 the Supreme Court of Pakistan has already taken cognizance of the matter in Constitutional Petitions No. 2 of 2022, 4 of 2023, 47 of 2023 and Civil Petitions Nos.4565 of 2023 and 4305 of 2023 and passed various orders which are binding on this Court under Article 189 of the “Constitution”; that the Election Commission of Pakistan has rightly passed impugned order invoking provisions of the “Act” and the Rules framed thereunder.

Arguments on behalf of Government of Punjab

1. Learned Assistant Advocate General for Punjab also objected to maintainability of the petition inter alia on account of lack of jurisdiction to interfere in the issue which is already pending before the Supreme Court of Pakistan; that there is no direct grievance regarding allocation of symbols asserted against the Respondent No. 4 by the Petitioners; that even otherwise Section 215(5) of the “Act” empowers the “ECP” to withhold symbol publication under certain conditions; that the Petitioners have not exhausted alternate remedies within the “ECP” before the relevant forum.

D. DETERMINATION

1. From the contents of the petition and arguments of the parties, the following points have arisen for determination by this Court:

2. Whether the issue of level playing field and election process, already pending before the Supreme Court of Pakistan, can be interfered with at this stage?

3. Whether on the facts and circumstances of the case, this Court can intervene in a matter subjudice before another High Court which has already granted interim relief?

Point No. 1

1. At the outset, it is pertinent to mention here that the Supreme Court of Pakistan has taken exception to any move which could directly or indirectly delay the holding of General elections in a number of recent pronouncements. The Supreme Court of Pakistan in “Supreme Court Bar Association of Pakistan through its Secretary, Islamabad and others etc. versus Federation of Pakistan through Secretary, Cabinet Division, Islamabad and others” (2023 SCP 337) has held that “The President of Pakistan and the ECP have announced the date for holding of general election to the National Assembly and to the provincial assemblies. The Federal Government, the Provincial Governments and the Islamabad Capital Territory have concurred. The matter of the holding of general election on 8 February 2024 stands resolved. No one should now put forward any pretext to derail democracy.” It has further been observed that “Constitutional office holders must adhere to the Constitution; fulfil the duties assigned to them as a sacred trust, and divest themselves from all that is outside their constitutional domain; only then do they serve the people of Pakistan. Pakistan was established democratically, is a democracy and must remain one. When general elections are due they have to be held. We are humbled in facilitating the President and the ECP to do right by the people of Pakistan.” Subsequently, in “Election Commission of Pakistan through its Secretary, Islamabad and another versus Barrister Umair Khan Niazi and others” (Civil Petition No. 4365 of 2023), the Supreme Court of Pakistan held that even filling of writ petition resulting in derailing of the process of elections, is contempt of order of the Court in Supreme Court Bar Association Case supra. The Supreme Court while seeking explanation from the counsel for the writ petitioner before the High Court regarding contempt of said order of Supreme Court observed as under:

“The Respondent No. 1 is stated to be a barrister and as such expected to be well-conversant with the Constitution and to have read the judgment of this Court which had clearly stipulated that, ‘no one should be allowed to put forward any pretext to derail democracy’. However, one individual appears to have just done that and it is indeed a matter of considerable regret that he claims to belong to a political party and we are told that he has served as an Additional Advocate-General, Punjab when the said political party was in Government. In view of the conduct of the Respondent No. 1 we call upon him to submit an explanation why action for contempt of Court should not be initiated against him under the Contempt of Court Ordinance, 2003 read with Article 204 of the Constitution.”

Similarly, in “Gul Khan and others versus Saeed-ur-Rehman and others” (2023 SCP 394), the Supreme Court while deciding the matter of delimitation and while referring to the observations in Supreme Court Bar Association Case supra further observed that:

“Elections play a crucial role in upholding the principles of democracy; they ensure that the will of the people is respected and that leadership is accountable to the public. When election programme is announced, it is important for any litigation or legal challenges related to elections to be resolved promptly. Delaying elections or prolonging legal disputes can undermine public confidence in the electoral process and the democratic system as a whole. It can also create uncertainty and potentially destabilize the political environment.”

The Court further observed in Supreme Court Bar Association Case supra, that the principle of proportionality and the concept of the larger good demand that general elections be given primacy. It has been held that:

“The importance of elections in a democracy and the fulfillment of the larger objective of holding a timely election should be given due consideration to ensure that the Court remains within its democratic remit, which in the present case necessitates organizing and conducting of free, fair and timely elections by the ECP.”

Even otherwise, it is also noteworthy that the Peshawar High Court, Peshawar vide its order dated 26.12.2023 passed in Writ Petition No. 6173-P/2023 has already taken up the same matter wherein the Court has suspended an order of the Election Commission and the matter is still pending adjudication there. In these circumstances, agitating same matter before two parallel forums may result in conflicting opinions thereby undermining the judicial process besides resulting in multiplicity of litigation which may result in delaying the elections. Such an endeavour indicates an attempt to undermine judicial process by sidestepping the express directions given by the Supreme Court in Supreme Court Bar Association Case supra.

1. The main claim of the Petitioners in the instant writ petition is that a level playing field has been denied to the political party of the Petitioners by depriving it for its symbol “BAT” under the cover of intra party election thereby discriminating against all other political parties who were not so denied their respective symbols despite the fact that the other parties followed less onerous processes of holding intra party election in accordance with their respective Constitutions. Importantly, the senior party members already went to the Supreme Court of Pakistan in Constitutional Petition No. 47/2023 titled “Gohar Ali Khan versus Federation of Pakistan etc.” and the Supreme Court vide its order dated 22.12.2023 directed the “ECP” to ensure equal opportunity for candidates of all political parties to participate in the election process. The Supreme Court further observed that the importance of free and fair elections, and maintaining a level playing field during elections, cannot be overstated. However, despite of clear direction of the Supreme Court of Pakistan the said level playing field has been denied to the Petitioners’ political party by way of subsequent denial of the allocation of symbol of “BAT”. This particular claim of the Petitioners regarding denial of level playing field in different forms has already been agitated before the Supreme Court of Pakistan in the shape of a contempt petition in reference to the above referred Constitutional Petition No. 47/2023 titled “Gohar Ali Khan versus Federation of Pakistan etc.” regarding which the Supreme Court has already taken cognizance and matter is pending adjudication there. Moreover, another Bench of the Peshawar High Court, Peshawar has also reserved its judgment regarding the order of Single Bench of Peshawar High Court, Peshawar on the same subject dated 26.12.2023. Therefore, any adjudication on this matter in the given circumstances would tantamount to interference in an issue which is pending adjudication before the Supreme Court of Pakistan besides the possibility of conflicting judgments on the same subject.

2. In view of the above, it is evident that the Supreme Court of Pakistan has already taken cognizance of timely conduct of General Elections in the country vide its judgment dated 03.11.2023, and contempt proceedings, referred to above, are also pending in connection therewith including the matter of level playing field. It is not out of place to mention here that this Court in “Mubashir Javed etc versus Province of Punjab etc” (PLD 2022 Lahore 817), held that High Court cannot assume jurisdiction in a matter already pending before the Supreme Court. Furthermore, the Supreme Court of Pakistan in similar situation has made an observation in “Water And Sanitation Agency, Lahore through M.D. versus Lottee Akhtar Beverages (Pvt.) Ltd. Lahore and others” (2019 SCMR 1146) that the High Court cannot assume jurisdiction in a matter already pending before the Supreme Court. Relevant part thereof is reproduced as under:

“Instead of bringing their objections before the Implementation Bench, the respondents chose to file a writ petitions before the learned Lahore High Court to express their misgivings. By entertaining and adjudicating such a challenge to the LDA notification, the learned High Court has surprisingly and to our disappointment assumed jurisdiction over a lis that is sub judice before this Court. Such course of action clearly offends the settled norms of judicial propriety and comity, which is disapproved”.

Point No. 2

1. Learned law officers also objected to maintainability of the petition by submitting that fundamental right of freedom of association is subject to reasonable restrictions imposed by law which in the instant case is the “Act” and the rules framed thereunder, more specifically Sections 208 and 215 of the “Act” and therefore, without challenging the vires thereof and declaration of the same being ultra vires Article 17 of the “Constitution”, the relief claimed cannot be granted.

2. The learned counsel for the Petitioners, when confronted, whether the Petitioners have challenged vires of Section 215(5) of the “Act” read with Article 17 of the “Constitution”, he replied that the same has been challenged before the Peshawar High Court, Peshawar. It is well settled that the fundamental rights of freedom of association under Article 17 of the “Constitution” is subject to reasonable restrictions imposed by law as held in Suo Motu Case No. 7 of 2017 (PLD 2019 Supreme Court 318). Pertinently, the matter is pending before the Peshawar High Court, Peshawar which has already taken the cognizance of the matter under the provisions mentioned under Chapter XI and XII of the “Act” will be interpreted by the competent Court. In view of the aforesaid, the relief claimed by the Petitioners cannot be granted without declaring the said provisions of the “Act” ultra vires Article 17 of the “Constitution”. Even otherwise, it is a well settled principle of law that when vires of law is challenged, interim relief cannot be granted. Reliance in said regard is placed on “Dr. Mubashir Hassan and others versus Federation of Pakistan and others” (PLD 2008 Supreme Court 80), “Federation of Pakistan versus Aitzaz Ahsan and another” (PLD 1989 Supreme Court 61), “Azee Securities (Pvt.) Ltd. through Authorized Officer versus Federation of Pakistan through Secretary of Finance, Revenue Division and 3 others” (2019 PTD 903) and “Chempak (Pvt.) Limited and another versus Sindh Employees’ Social Security Institution (Sessi) and another” (2003 PLC 380). It is also evident from the record that the Petitioners have also appended with this petition copy of the “impugned order”, copy of interim order dated 26.12.2023 of Peshawar High Court, Peshawar alongwith copy of Writ Petition No. 6173-P/2023 titled “Pakistan Tehreek-e-Insaaf (PTI) etc versus Election Commission of Pakistan through its Secretary, ECP House etc”. However, in the instant case, perusal of the contents of the petition as well as prayers clearly indicates that the Petitioners, in substance, are seeking two reliefs. Firstly, to suspend the “impugned order” of the “ECP” and secondly as an alterative relief, to implement order of the Peshawar High Court, Peshawar by issuing a direction to the Respondents to entertain the grievance of the Petitioners in the light of said order dated 26.12.2023.

3. As far as second point is concerned, suffice it to note that firstly the said order has already been suspended by another Court of competent jurisdiction wherein all the major stakeholders are party to the proceedings therefore, taking up a matter which has already been suspended by another Court of competent jurisdiction, would be against the judicial propriety as it has the potential to result in conflicting judgments on a particular matter. Moreover, the said order has already been challenged before another Bench of the same Court and the judgment is reserved therein while the case is also fixed for regular hearing for 09.01.2024 before the Division Bench of the same

Court. Secondly, as far as the matter with regard to implementation of the order of Single Bench of Peshawar High Court, Peshawar dated 26.12.2023 is concerned, such an order being passed by another High Court can only be implemented by that High Court and its implementation/execution cannot be agitated before this Court.

E. CONCLUSION.

1. In light of the dictums laid down by the Supreme Court of Pakistan and peculiar facts and circumstances of the case especially the pendency of same proceedings before different Benches of the Peshawar High Court, Peshawar, this petition is not maintainable at this stage, hence it is dismissed in limini under the doctrine of “Limine Control” as developed by this Court in “Asif Saleem versus Chairman BOG University of Lahore and others” (2019 PLD Lahore 407).

(Y.A.) Petition dismissed

PLJ 2024 Lahore 63 (DB) [Multan Bench, Multan]

Present: Sardar Muhammad Sarfraz Dogar and Shakil Ahmad, JJ.

IMRAN MUSTAFA--Petitioner

versus

GOVERNMENT OF PUNJAB, etc.--Respondents

W.P. No. 16629 of 2023, decided on 21.11.2023.

Control of Narcotic Substances Act, 1997 (XXV of 1997)--

----Ss. 9(A)(1) & 9-C--Constitution of Pakistan, 1973, Art. 199--Insertion of Section 9(A)(1) through Amendment Act, 2022--Remissions--Contention and sentence--Retrospective effect--Effect after amendment--Convict having been booked in case u/S. 9(c) of CNSA Act, 1997 and tried was convicted--His conviction and sentence before High Court by way of filing Criminal Appeal which was dismissed--No remission could have been awarded to him--Section 9(A)(1) was introduced by virtue of an amendment through Amended Act 2022--Provisions of Section 9(A) (1) of amendment Act, 2022 from their bare reading are prospective in nature and same cannot be given effect retrospectively by placing any sort of embargo on right of a convict qua earning remissions who had been arrested, indicted and even convicted prior to insertion of Section 9(A) (1) through amendment Act, 2022--Convict entitled to earn remissions albeit insertion of Section 9(A) (1) in CNSA, 1997 through Amendment Act, 2022--Petition is allowed.

[Pp. 64, 65, 66 & 68] A, B, C, D, E, F

PLD 2009 SC 460; PLD 2010 SC 1021; PLD 2011 Lahore 323; 2002 SCMR 1023; PLD 1971 SC 252; PLD 1975 SC 1 ref.

Mr. Muhammad Usman Sharif Khosa, Advocate for Petitioner/Convict.

Miss Samina Mahmood Rana, Assistant Advocate General with Dr. Qadeer Alam, AIG (Prison), Punjab.

Mr. Muhammad Ali Shahab, Deputy Prosecutor General.

Kizar Abbas, SO (Legal), Home Department, South Punjab.

Date of hearing: 21.11.2023.

Order

Instant is a petition that has been filed by Imran Mustafa (convict herein) under Article 199(1)(ii) of the Constitution of Islamic Republic of Pakistan 1973 (hereinafter referred to as the “Constitution”) with the supplication that reads:

“… awfully implored that instant solicitation be approved and application of newly inserted Section 9(A)1 be declared as having no legal effect on the petitioner/convict as he was charge sheeted under Section 9-C Control of Narcotic Substances Act, 1997 prior to promulgation of Narcotic Substances Amended Act, 2022 dated 5th September, 2022.

It is correspondingly prayed that Respondent No. 2 be directed to award all special remission earned by the petitioner on special occasions since his arrest on 12.11.2020 till to date and his sentence be reduced accordingly.

It is correspondingly prayed that Respondent No. 2 be directed to award all monthly, quarterly as well as annually ordinary remission earned by the petitioner since his arrest on 12.11.2020 till to date and his sentence be reduced accordingly.

Any other relief ………..”

1. Facts in brief giving rise to the filing of instant petition are that convict having been booked in case F.I.R. No. 810 of 2020 dated 12.11.2020, under Section 9(c) of the Control of Narcotic Substances Act, 1997 (“CNSA, 1997”), registered at Police Station Qutabpur, Multan was sent to face the trial and after being indicted and tried was convicted under Section 9(c) of CNSA, 1997 and sentenced to ten years and six months rigorous imprisonment with fine of Rs.50,000/-, in default of payment of fine to further undergo simple imprisonment for eight months.

2. Convict assailed his conviction and sentence before this Court by way of filing Criminal Appeal No. 514/2022 which was dismissed vide judgment dated 15.12.2022 by maintaining his conviction, however, sentence awarded to him by learned trial Court was reduced to rigorous imprisonment for six years by also maintaining the amount of fine and imprisonment in default whereof. Convict who was rounded up on 12.11.2020 in above referred case requested the respondents for his release but was informed that owing to insertion of Section 9(A)(1) through an Act namely Control of Narcotic Substances (Amendment) Act, 2022 (Act No. XX of 2022) (hereinafter referred to as the “Amendment Act, 2022), no remission could have been awarded to him and his probable date of release as told was 24.01.2025. Hence, this petition.

3. Report was requisitioned from Respondent No. 2 and same was submitted containing their stance precisely that in view of insertion of Section 9(A) (1) through an amendment promulgated under Amended Act, 2022, no remission in sentence for the prisoners convicted under CNSA, 1997 could have been granted.

4. Learned counsel for the convict contended that when convict was booked in the case and even when was indicted and convicted, provisions of Section 9(A) (1) were not inserted in CNSA, 1997 and even the provisions of Section 9(A) (1) of Amendment Act, 2022 had no retrospective effect as the said section do not contain any provision signifying the intention of legislature qua its applicability with retrospective effect. Learned counsel by placing reliance on “Shah Hussain v. The State” (PLD 2009 SC 460) and “Nazar Hussain and another v. The State” (PLD 2010 SC 1021) argued that convict is entitled to earn remissions.

5. Learned Law Officers argued that in reply to the guidance sought by Inspector General of Prisons, Punjab, Lahore from Government of Punjab, Law and Parliamentary Affairs Department through Letter No. OP:15-11/2023/5503 dated 28.09.2023, opined that the principle of grant of no remissions in sentence seems to be applicable in all cases from the date of insertion of the Amendment Act, 2022 notwithstanding anything contained in Prison Rules, 1978. Learned Law Officers, however, when confronted with the query put by us that where certain rights were available with the convict qua his entitlement to get the benefit of remissions in accordance with existing law when he was arrested, tried and convicted, how he can be deprived of getting remissions in view of insertion of Section 9(A) (1) through Amendment Act, 2022 that was inserted subsequent to his conviction and sentence, failed to meet the point.

6. Heard either of the sides and record perused.

7. The moot point that requires our consideration and its decision is that whether the provisions of Section 9(A) (1) of the Amendment Act, 2022 have retrospective effect and in turn depriving of the convict who has been arrested, indicted and convicted before 06.09.2022 when the said section was inserted. Undeniably convict was rounded up on 12.11.2020 in case F.I.R. No. 810/2020 dated 12.11.2020, under Section 9(c) of CNSA, 1997, registered at Police Station Qutabpur, Multan and after having been sent to face trial, was indicted on 23.12.2020 and was convicted and sentenced on 10.05.2022. There is also no denial to the fact that Section 9(A) (1) was introduced by virtue of an amendment through the Amended Act 2022 dated 06.09.2022. Provisions of Section 9(A) (1) are reproduced hereunder for the facility of ready reference:

“9(A)(1) Notwithstanding anything contained in any other law or prison rules for the time being in force, no remissions in any sentence shall be allowed to a person, who is convicted under this Act:

Provided that in case of a juvenile or female convicted and sentenced for an offence under this Act, remission, may be granted as deemed appropriate by the Federal Government.”

Bare perusal of above would vividly suggest that same have given no retrospective effect by the legislature. Even it does not transpire therefrom that the rights available to an accused involved in case falling within the purview of CNSA, 1997 prior to the amendment made on 06.09.2022 have been taken away in any manner whatsoever. The provisions of Section 9(A) (1) of Amendment Act, 2022 from their bare reading are prospective in nature and same cannot be given effect retrospectively by placing any sort of embargo on the right of a convict qua earning remissions who had been arrested, indicted and even convicted prior to insertion of Section 9(A) (1) through Amendment Act, 2022. Almost similar sort of point in issue was taken up and dealt with by this Court in case “M. Aslam Mouvia v. Home Secretary and others” (PLD 2011 Lahore 323), wherein after having referred to good number of case laws on the moot point by the apex Court, this Court resolved the same in the following terms:

“20. The trial of the petitioner commenced before insertion of Section 21-F of the ATA. Certain rights had already accrued in favour of the petitioner by way of his entitlement to the benefit of remissions in accordance with law in the field at the relevant time i.e. the time that the alleged offence was committed, F.I.R. was registered against him, he was arrested and his trial commenced. Any subsequent changes in law would not have the effect of depriving him of the rights which were available to him at the time when the offence was committed and the trial commenced. In addition, there is nothing in Section 21-F of ATA to indicate even remotely that it has retrospective operation or that it has the effect of taking away the rights that were available to certain convicts under the prevalent law when the offenc e was committed, the F.I.R. was registered or the trial commenced. Looked at from this point of view, the provisions of Section 21 -F are prospective in nature and, therefore, cannot take away or affect the rights which were available to the petitioner at the relevant time. In support of this contention, reliance may also usefully be placed on the dictum of the honourable Supreme Court of Pakistan in the case of Commissioner Sindh Employees etc. (2002 SCMR 39).

1. In the case of Pakistan Steel Mills (2002 SCMR 1023), the honourable Supreme Court of Pakistan has held that any amendment in law will not take away, empower, nullify or destroy a vested right, which has attained finality and has become past and closed transaction. Admittedly, registration of the case against the petitioner, his arrest and initiation of his trial were all prior to the insertion of Section 21-F. As a result, the dictum of the honourable Supreme Court of Pakistan in the aforesaid cases is clearly applicable to the facts and circumstances of the present case. In Muhammad Rafi-ud-Din’s case reported as PLD 1971 SC 252 and Hassan’s case reported as PLD 1975 SC 1, it has clearly and unambiguously been laid down that where a law was altered during pendency of an action, the rights of the parties are to be decided according to the law as it existed when the action was initiated and not under the law prevailing on the date of the judgment/order. Looked at from this angle also, the act of the respondents whereby the petitioner has been denied the benefit of remissions under the Pakistan Prisons Rules is neither legally justified nor sustainable.

(Underlining is to supply emphasis).

The dicta laid down in case referred supra is squarely applicable to the facts and circumstances of the instant case on its all fours and we see no reason to take a different view.

1. As natural and logical corollary to the above discussion, we hold the convict entitled to earn remissions albeit insertion of Section 9(A) (1) in CNSA, 1997 through Amendment Act, 2022. Petition in hand is allowed with the direction to Respondent No. 2 to grant remissions to the convict in accordance with law and rules. Office is directed to transmit copies of this order to the Additional Chief Secretary (Home), Government of the Punjab, Home Department, Lahore and I.G. Prisons, Punjab, Lahore, who in turn will circulate this order to Superintendents of all the Jails in the Province of Punjab for compliance.

(KQB) Petition allowed

PLJ 2024 Lahore 68 [Rawalpindi Bench, Rawalpindi]

Present: Ch. Abdul Aziz, J./A.T.

WAJID UR REHMAN--Appellant

versus

ELECTION COMMISSION OF PAKISTAN etc.--Respondents

E.A. No. 150 of 2024, decided on 4.1.2024.

Election Act, 2017 (XXXIII of 2017)--

----S. 62--Constitution of Pakistan, 1973, Arts. 62 & 63(1)(c)--Submission of nomination papers--Rejection of--Dual nationality--Appellant submitted his nomination papers--During scrutiny process, carried out under Section 62 of Election Act, 2017, nomination papers of appellant met fate of rejection vide impugned order dated 30.12.2023-- There is no denial from appellant that he is a dual nationality holder having in his possession passport issued by Government of United Kingdom--Appeal dismissed.

[P. 70] A & B

Election Act, 2017 (XXXIII of 2017)--

----S. 60--Nomination papers-- For contesting election, a candidate has to submit his nomination papers in accordance with requirement of Section 60 of Election Act, 2017. [P. 70] C

Constitution of Pakistan, 1973--

----Art. 63(1)(c)--Disqualification--A person is held disqualified from being elected or chosen as member of parliament if he ceases to be a citizen of Pakistan or acquires citizenship of a foreign State.

[P. 70] D

Constitution of Pakistan, 1973--

----Art. 218(3)--Duty of election commission--It is duty of Election Commission of Pakistan to organize elections and for ensuring that it is conducted honestly, justly, fairly and in accordance with law while guarding corrupt practices. [P. 72] E

Election Act, 2017 (XXXIII of 2017)--

----S. 62--Primary duty--This is primary duty of Returning Officer to ensure that no person who by law is not eligible to contest elections be ousted from electoral process at very initial stage of scrutiny under Section 62 of election Act, 2017--While scrutinizing nomination papers Returning Officer must make a just, fair and unbiased assessment about credentials of candidate for making decision that he is qualified or not to contest elections. [P. 72] F

PLD 2010 SC 817.

Ms. Zunehra Taj, Advocate for Appellant.

Mr. Tayyab Bilal Pakhral, Assistant Attorney General for Pakistan on Court’s call.

Date of hearing: 4.1.2024.

Order

The appeal in hand is aimed at calling in question the legality of order dated 30.12.2023 passed by the Returning Officer of PP-24 Jhelum-I, whereby the nomination papers of Wajid-ur-Rehman (appellant) were rejected.

1. The facts forming basis of instant election appeal can be summarized to the effect that with the desire to contest upcoming elections of Punjab Provincial Assembly, Wajid-ur-Rehman (appellant) filed his nomination papers in PP-24; that during scrutiny process it unearthed that the appellant is in possession of a passport No. 560993251 issued by the Government of United Kingdom; that on this score alone, the Returning Officer rejected the nomination papers of the appellant vide order dated 30.12.2023, which is impugned herein.

2. Learned counsel for the appellant argued that the impugned order passed by the Returning Officer is contrary to law on the subject; that the appellant has already initiated the process to surrender his foreign nationality on 26.09.2023; that the moving of application by the appellant manifests his intention to relinquish UK Nationality, thus rejection of his nomination papers was uncalled for; that even otherwise Article 63(1)(c) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) was wrongly interpreted by the Returning Officer; that for giving effect to the afore-mentioned Article accusation of foreign nationality is to be read in conjunction with the condition that the citizen has ceased to be a Pakistani national and that since the impugned order suffers from perversity, thus is to be set-aside.

3. On the other hand, learned Assistant Attorney General for Pakistan entered appearance on Court’s call and supported the order passed by the Returning Officer while placing reliance upon Article 63(1)(c) of the Constitution with the argument that its language is unambiguous, thus is to be given effect.

4. Arguments heard. Record perused.

5. In an urge to contest upcoming general election of Punjab Provincial Assembly, Wajid-ur-Rehman (appellant) submitted his nomination papers before the Returning Officer of PP-24 Jhelum-I. During scrutiny process, carried out under Section 62 of the Election Act, 2017, the nomination papers of the appellant met the fate of rejection vide impugned order dated 30.12.2023. The solitary reason which prompted the Returning Officer to reject the nomination papers of appellant was his foreign nationality.

6. There is no denial from the appellant that he is a dual nationality holder having in his possession passport No. 560993251 issued by the Government of United Kingdom. For contesting election, a candidate has to submit his nomination papers in accordance with the requirement of Section 60 of the Election Act, 2017. The detail of documents forming part of the nomination papers is mentioned in sub-Section 2 of Section 60 which includes a declaration by the candidate that he fulfills the qualification specified in Article 62 of the Constitution and does not come within the disqualification enumerated in Article 63 of the Constitution. According to Article 63(1)(c) a person is held disqualified from being elected or chosen as member of parliament if he ceases to be a citizen of Pakistan or acquires the citizenship of a foreign State.

7. I have attended to the arguments of learned counsel for the appellant with utmost circumspection whereby she made an endeavour to convince this Tribunal that a foreign national will become disqualified from contesting election only if he ceases to be a citizen of Pakistan. Learned counsel mainly focused on the ground that the word ‘or’ used in Article 63 between the condition of ceasing of Pakistan nationality and accusation of foreign citizenship in fact is to be read as ‘and’. Suffice it to say in this regard that the question raised today by learned counsel for the appellant has already been dealt by the Supreme Court of Pakistan in Suo Motu case No. 8 of 2018 reported as PLD 2019 Supreme Court 201 through which the fate of four Senators in reference to their membership of Parliament was decided. The Supreme Court of Pakistan after examining Article 63(1)(c) of the Constitution, Section 14(3) of the Pakistan Citizenship Act, 1951 and conjunctive and disjunctive use of word ‘or’ and word ‘and’ in Para-25 observed as under:

“Thus, the conclusion drawn by this Court in the case reported as Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089), that the word ‘or’ used in Article 63(1)(c) of the Constitution is disjunctive and that a person holding a dual nationality of a foreign State though legally in view of Section 14(3) of the Act of 1951, nevertheless will not be entitled to be elected or chosen as, or hold the Office of a Member of Parliament, is correct interpretation of the Constitution and does not merit any reconsideration. Incidentally, the aforesaid view has been reiterated by this Court in its judgments reported as Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan through Secretary, Ministry of Law, Islamabad and others(PLD 2013 SC 413) and Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and others (2013 SCMR 1246).”

With the afore-mentioned interpretation of Article 63(1)(c) of the Constitution the Senators with dual nationality were de-seated by the Supreme Court of Pakistan.

1. I have also given a considered thought to the stance of the appellant that he has initiated the process for the relinquishment of his foreign nationality and indeed has moved an application in this regard. In support of such claim, a document purported to be a print out of Email dispatched by the appellant is annexed with the instant appeal. I have carefully scanned the document and it evinces therefrom that the particulars of the recipient of the Email are not mentioned therein. Even if the credentials of the print out annexed with the appeal are above board, still it only depicts that the appellant has initiated the process of renunciation of his foreign nationality which has yet not attained finality. Inexorably, Wajid-ur-Rehman (appellant) is a foreign national even today as his request for relinquishment of UK nationality is still awaited. As a necessary consequence, it can unambiguously be gathered that the appellant is still enjoying his foreign nationality, thus his nomination papers are hit by the impediment contained in Article 63(1)(c) of the Constitution. In support of the view so formed by this Tribunal an observation of the Division Bench of this Court given in case reported as Sayed Anwar Hasanat v. Returning Officer PP-27, Jhelum (IV) (2013 CLC 1821) is being quoted hereunder:

“We are afraid we are unable to agree with the contentions of the learned counsel for the appellant for the reasons that firstly the appellant has only moved an application for renouncing/surrendering his U.S Citizenship. The said application was made on 25-3-2013. The U.S. Authorities are still to pass an order upon the appellant’s application. As such as at the date of filing of his nomination papers as also on the date of the scrutiny the appellant was/is still a U.S Citizen. Even today the learned counsel for the appellant has been unable to show us any document from U.S. Authorities showing that the appellant’s application for surrendering/ renouncing U.S Citizenship has been accepted.”

While taking advantage of the proposition in hand, I also deem it appropriate to mention here that in accordance with Article 218(3) of the Constitution, it is the duty of the Election Commission of Pakistan to organize elections and for ensuring that it is conducted honestly, justly, fairly and in accordance with law while guarding the corrupt practices. In reference to Article 218(3) the role of Returning Officer in holding of general elections is of pivotal importance. This is the primary duty of Returning Officer to ensure that no person who by law is not eligible to contest elections be ousted from the electoral process at the very initial stage of scrutiny under Section 62 of the election Act, 2017. While scrutinizing the nomination papers the Returning Officer must make a just, fair and unbiased assessment about the credentials of the candidate for making decision that he is qualified or not to contest the elections. The Supreme Court of Pakistan highlighted the role of the Returning Officer in the case of Nawabzada Iftikhar Ahmad Khan v. Chief Election Commissioner Islamabad and others (PLD 2010 Supreme Court 817) in the following manner:

“A perusal of the relevant constitutional and statutory provisions would reveal that a Returning Officer appointed under section 7 of the Representation of the People Act of 1976 is the key-man in the entire exercise of conducting an honest, a just and a fair election in accordance with law, as commanded by Article 218 of the Constitution. Needless to add that the first and most crucial step towards the attainment of the said commanded goal is to ensure that no person who is not constitutionally and legally qualified to contest any such election is allowed to enter the arena.”

1. In the light of what has been discussed above, the instant Election Appeal having no merits is dismissed in limine.

(Y.A.) Appeals dismissed

PLJ 2024 Lahore 73 [Rawalpindi Bench, Rawalpindi]

Present: Mirza Viqas Rauf, J.

Chaudhary ABDUL MAJEED--Petitioner

versus

LEARNED EX-OFFICIO JUSTICE OF PEACE RAWALPINDI and 6 others--Respondents

W.P. No. 3343 of 2023, heard on 15.11.2023.

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

----Ss. 22-A/22-B & 154--Constitution of Pakistan, 1973, Art. 199--Police report--On receipt of petition under Section 22-A/22-B of “Cr.P.C”. Ex-Officio Justice of Peace requisitioned report from police wherein it is mentioned that dispute interse petitioner and “respondent” is relatable to land and no such incident as reported by “respondent” has taken place--After requisitioning a report from police, Ex-Officio Justice of Peace is not expected to brush aside such report without assigning any lawful reasoning--There is property dispute interse “respondent” and petitioner for resolution of which they have already approached civil court--Petition was allowed. [Pp. 75, 76 & 77] A, C & E

PLD 2016 SC 581; 2021 SCMR 468; PLD 2016 SC 581; PLD 2010 SC 691 ref.

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

----Ss. 22-A/22-B--Quasi-judicial in nature--Executive/ administrative or ministerial--Functions performed by Ex-Officio Justice of Peace under section 22-A of “Cr.P.C” are quasi-judicial in nature and it cannot be termed as executive/ administrative or ministerial.

[P. 75] B

Civil and Criminal Proceedings--

----Administration of justice--Civil and criminal proceedings--There is no cavil to proposition that civil and criminal proceedings can move side by side but one cannot be allowed to shift civil liability into criminal one. [P. 77] D

Mr. Muhammad Faisal Malik, Advocate for Petitioner.

Mr. Muhammad Shahid Munir, Assistant Advocate General Punjab alongwith Hasnain Sub-Inspector/Station House Officer, Police Station Dhamial, District Rawalpindi for Respondents No. 1 & 3 to 7.

Mr. Muhammad Zaheer, Advocate for Respondent No. 2.

Date of hearing: 15.11.2023.

Judgment

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 assails the vires of order dated 06th October, 2023, whereby the Ex-Officio Justice of Peace, Rawalpindi proceeded to direct the Station House Officer (SHO) Police Station Dhamial, Rawalpindi to record statement of Respondent No. 2 (hereinafter referred to as “respondent”) under Section 154 of the Code of Criminal Procedure, 1898 (hereinafter referred to as “Cr.P.C.”) and to proceed further in accordance with law.

1. Facts forming background of this petition are that the “respondent” moved a petition under Section 22-A/22-B of the “Cr.P.C.” stating therein that initially he moved an application to Respondent No. 7 complaining the commission of offence by the petitioner but he turned deaf hear. It is asserted that though the petitioner voiced his grievance before Respondents No. 3 to 6 but remained unsuccessful. While proceeding with the petition under Sections 22-A/22-B of the “Cr.P.C.” the Ex-Office Justice of Peace requisitioned a report from the concerned police, which was accordingly submitted. On receipt of report and after hearing the parties the Ex-Officio Justice of Peace passed the impugned order.

2. Learned counsel for the petitioner contended that the matter in issue relates to enforcement of contractual obligations. He added that though the “respondent” initially moved an application to Respondent No. 7 but it was not disclosing commission of any cognizable offence. It is argued with vehemence that the Ex-Officio Justice of Peace proceeded in a mechanical manner. Learned counsel submitted that civil litigation is already pending between the petitioner and the “respondent” but he converted the same into criminal one. Emphasized that the impugned order is not tenable being illegal and unlawful. In support of his contentions, learned counsel placed reliance on Jamal Khan versus Secretary Home Department (2021 SCMR 468) and Younas Abbas and others versus Additional Sessions Judge, Chakwal and others (PLD 2016 Supreme Court 581).

3. Conversely, learned counsel for the “respondent”, while defending the impugned order submitted that criminal and civil litigation can go side by side. He added that the petitioner while using the heavy machinery demolished the room constructed upon the plot by the “respondent”. It is contended that the Ex-Officio Justice of Peace was justified in the circumstances to direct Respondent No. 7 to proceed in terms of Section 154 of the “Cr.P.C.”.

4. Learned Law Officer also argued in support of the impugned order.

5. Heard. Record perused.

6. It is an admitted position on the record that the “respondent” initially moved the application available at page No. 15 of this petition to Respondent No. 7. From perusal of the application it clearly reveals that the petitioner was not named therein. The application also comprises of bald and general allegations. It is also an undeniable fact that the petitioner and “respondent” are entangled in litigation before the Civil Court. There is no cavil that Ex-Officio Justice of Peace is vested with the power to direct the police to proceed in terms of Section 154 of the “Cr.P.C.” if some cognizable offence is apparently made out from the allegations leveled by the petitioner in application under Section 22-A of the “Cr.P.C.”.

7. As already observed that initially the “respondent” moved an application to Respondent No. 7 which was founded on general and bald allegations and the petitioner was even not named in the said application as perpetrator of the alleged offence. On receipt of petition under Section 22-A/22-B of the “Cr.P.C.” Ex-Officio Justice of Peace requisitioned report from the police wherein it is mentioned that the dispute interse petitioner and “respondent” is relatable to land and no such incident as reported by the “respondent” has taken place.

8. It is trite law that functions performed by the Ex-Officio Justice of Peace under Section 22-A of the “Cr.P.C.” are quasi- judicial in nature and it cannot be termed as executive/administrative or ministerial. At the same time powers exercised by the Ex-Officio Justice of Peace are neither unbridled nor indefinite. While exercising powers under Section 22-A(6) of the “Cr.P.C.” the Ex- Officio Justice of Peace is not supposed to proceed mechanically and in vacuum. After requisitioning a report from the police, Ex-Officio Justice of Peace is not expected to brush aside such report without assigning any lawful reasoning. In the case of Younas Abbas and others versus Additional Sessions Judge, Chakwal and others (PLD 2016 Supreme Court 581), while examining the scope of sub-section (6) of Section 22-A of the “Cr.P.C.” the Supreme Court of Pakistan laid down certain guidelines for the Ex-Officio Justice of Peace. The relevant extract from the same is reproduced below:

“2. ...... In such a milieu, powers given to an ex-officio Justice of the Peace under subsection (6) of Section 22-A, Code of Criminal Procedure, to issue appropriate directions on a complaint filed by an aggrieved person for registration of a criminal case (Clause-i) and for transfer of investigation from one police officer to another (Clause-ii) though efficacious and expeditious besides being at the doorstep, but at the same time, these provisions should not be unbridled or open-ended. These provisions must be defined, structured and its contour delineated to obviate misuse by influential and unscrupulous elements. Therefore:-

(i) The ex-officio Justice of the Peace, before issuance of a direction on a complaint for the non-registration of a criminal case under subsection (6)(i) of Section 22-A, Code of Criminal Procedure must satisfy himself that sufficient material is available on the record, such as application to the concerned SHO for registration of the criminal case and on his refusal or reluctance, complaint to the higher police officers i.e. DPO, RPO etc., to show that the aggrieved person, before invoking the powers of ex-officio Justice of the Peace, had recourse to the high ups in the police hierarchy.

(ii) So far as transfer of investigation of a criminal case from one police officer to another police officer is concerned, a complete mechanism has been provided in the Police Order, 2002.

However, Clause (ii) of Subsection (6) of Section 22-A, Code of Criminal Procedure has given power to the ex-officio Justice of the Peace to issue appropriate direction to the concerned police authorities for the transfer of investigation of a case from one police officer to another, but it does not prescribe a criterion or mechanism in so many words as to what might be the standard or what reasons should prevail with the ex-officio Justice of the Peace while issuing such a direction. To issue a direction regarding transfer of investigation by ex-officio Justice of the Peace without taking into consideration the attending circumstances of the case may be counter-productive and may defeat the purpose of the mechanism as provided in the Police Order, 2002, thus may result into unnecessary interference with the working of an agency. Therefore, it would be appropriate for the ex-officio Justice of the Peace, before issuance of any direction regarding the change of investigation, to satisfy himself from the available record that the grievance of the aggrieved person (who has filed the application for this purpose) has not been redressed by the Police Officers/ authorities as provided in the Police Order, 2002.”

After having an overview of the principles laid down in the judgment supra when the order of the Ex-Officio Justice of Peace is examined on the touchstone of said principles, there remains no hint of doubt that the Ex-Officio Justice of Peace failed to adhere the well- recognized principles.

10. Perusal of petition under Section 22-A/22-B of the “Cr.P.C.” reveals that it is lacking any detail of alleged incident. There is no cavil to the proposition that civil and criminal proceedings can move side by side but one cannot be allowed to shift the civil liability into criminal one. Prima facie there is property dispute interse the “respondent” and the petitioner for the resolution of which they have already approached the Civil Court. In the circumstances the “respondent” is precluded to resort to the Ex-Officio Justice of Peace under Sections 22-A & 22-B of the “Cr.P.C.”. Even otherwise impugned order is completely non-speaking. Guidance in this respect can be sought from Rai Ashraf and others versus Muhammad Saleem Bhatti and others (PLD 2010 Supreme Court 691) and Jamal Khan versus Secretary Home Department (2021 SCMR 468).

1. For the foregoing reasons, this petition is allowed,consequently impugned order dated 06th October, 2023 passed by the Ex-Officio Justice of Peace, Rawalpindi is set aside being illegal and unlawful with no order as to costs.

(KQB) Petition Allowed

PLJ 2024 Lahore 78 [Rawalpindi Bench, Rawalpindi]

Present: Ch. Abdul Aziz, J./A.T.

Raja SAFEER AKBAR--Appellant

versus

RETURNING OFFICER NA-60 JHELUM-I--Respondent

E.A. Nos. 29 & 30 of 2024, heard on 4.1.2024.

Election Act, 2017 (XXXIII of 2017)--

----Ss. 62 & 62(9)(c)--Filing of nomination papers--Rejection of--Unsigned nomination papers--No appearance before RO for affixing sign and verification--Challenge to--Rejection was mainly structured upon ground that nomination papers were not personally signed by appellant and instead needful was done by his attorney--Requirement of signing nomination papers and declarations by contestant is mandatory in nature and cannot be relaxed--Nomination papers of appellant were not in consonance with legal requirement thus as a necessary consequence same were rightly rejected by Returning Officer in accordance with Section 62(9)(c)--It is settled principle of law that if law requires things to be done in particular manner then these must be done accordingly--Appeals dismissed. [Pp. 79, 80 & 81] A, C, E & F

Election Act, 2017 (XXXIII of 2017)--

----S. 60(2)--Nomination papers--Nomination papers along with declarations ought to be signed by candidate, desirous of contesting election. [P. 80] B

Election Act, 2017 (XXXIII of 2017)--

----S. 62(9)(c)--Rejection of nomination papers--Nomination papers can be rejected if filed without adhering to provisions of Section 60 and 61 of Act. [P. 80] D

Syed Shajaat Hussain Kazmi, Advocate for Appellant.

Mr. Zulqarnain Haider Gondal, Assistant Director (Law) assisted by Mr. Tayyab Bilal Pakhral, Assistant Attorney General for Pakistan on Court’s call for ECP.

Date of hearing: 4.1.2024.

Judgment

Through this single judgment, I intend to decide Election Appeal No. 29 of 2024 & Election Appeal No. 30 of 2024 since both are tied with the common knot of similar facts and background in which the Returning Officers rejected the nomination papers of Raja Safeer Akbar (appellant) from two different constituencies of Jhelum.

1. The brief facts which led to the filing of afore-mentioned Election Appeals are to the effect that Raja Safeer Akbar (appellant) submitted his nomination papers from NA-60 Jhelum-I and PP-24 Jhelum-1 for contesting election of National Assembly and Provincial Assembly in accordance with the schedule given by the Election Commission of Pakistan; that Raja Safeer Akbar (appellant) mentioned all the details required to be furnished through his nominees duly authorized in this behalf; that during security, the nomination papers of the appellant were rejected mainly on the ground that he did not sign his nomination papers nor sworn affidavit by himself; that the appellant even did not appear before the Returning Officer for affixing sign or verification and in consequence thereof the nomination papers of Raja Safeer Akbar (appellant) were rejected by the Returning Officer NA-60 Jhelum and Returning Officer PP-24 Jhelum through orders dated 30.12.2023.

3. Learned counsel for the appellant argued that the impugned orders are passed without adhering to the provisions of Section 62 of the Election Act, 2017; that admittedly, the appellant mentioned all the necessary details in Form-A & Form-B annexed with the nomination papers; that the appellant fully authorized his agent to sign, file, present and plead his case before all election authorities and that since the impugned orders are contrary to law on the subject, thus are to be set-aside.

4. Assistant Director (Law) Election Commission of Pakistan and the Assistant Attorney General for Pakistan vociferously argued that the impugned orders are in accordance with the Election Act, 2017 and do not suffer from any perversity.

5. Arguments heard. Record perused.

1. A wade through the record reveals that for contesting upcoming election, Raja Safeer Akbar (appellant) filed his nomination papers from NA-60, Jhelum-I and PP-24 Jhelum-I. The nomination papers in both the constituencies were signed and submitted by Muhammad Waseem as attorney. During scrutiny carried out in terms of Section 62 of the Election Act, 2017, the nomination papers of Raja Safeer Akbar (appellant) were rejected by both the Returning Officers through separate orders dated 30.12.2023. The perusal of impugned orders reveal that rejection was mainly structured upon the ground that nomination papers were not personally signed by Raja Safeer Akbar (appellant) and instead the needful was done by his attorney Muhammad Waseem.

2. According to the scheme of things provided in the Election Act, 2017, the nomination papers along with declarations ought to be signed by the candidate, desirous of contesting the election, as is evident from Section 60(2) which for reference sake is being reproduced hereunder:

“Every nomination shall be made by a separate nomination paper on Form-A signed both by the proposer and the seconder and shall on solemn affirmation made and signed by the candidate, be accompanied by ….”

(emphasis provided)

The language of Section 60(2) ibid is explicit in sense and leaves no room for discussion that the nomination papers (Form-A) and declarations are required to be submitted in terms of clause (a) and (b) of the foregoing provision ought to be signed by none other than the candidate himself. From the use of word shall in Section 60(2) it can be gathered that requirement of signing the nomination papers and declarations by the contestant is mandatory in nature and cannot be relaxed. The Supreme Court of Pakistan in a case reported as “Province of Punjab through Secretary Excise and Taxation Department, Lahore and others vs. Murree Brewery Company Limited (MBCL) and another” (2021 SCMR 305) interpreted the word shall in following words:

“The test to determine whether a provision is directory or mandatory is by ascertaining the legislative intent behind the same. The general rule expounded by this Court is that the usage of the word ‘shall’ generally carries the connotation that a provision is mandatory in nature.”

I feel a pressing need to mention here that the power of Returning Officer to reject the nomination papers are embedded in Section 62 (9) of the Election Act, 2017. According to Section 62(9)(c) of the Election Act, 2017, the nomination papers can be rejected if filed without adhering to the provisions of Section 60 and 61. In the backdrop of Section 60(2) it can inevitably be gathered that the nomination papers of the appellant were not in consonance with the legal requirement thus as a necessary consequence the same were rightly rejected by the Returning Officer in accordance with Section 62(9)(c).

8. During arguments, learned counsel in pursuance of a query raised by the Tribunal candidly conceded that even at present Raja Safeer Akbar (appellant) is abroad. The learned counsel, however, made a last- ditch effort for the acceptance of instant appeal with the arguments that the needful of signing nomination papers can be done by an authorized person through the enabling provision of Section 60(3) of the Election Act, 2017. The submission so made by the learned counsel for the appellant since runs contrary to the framework of Election Act, 2017 thus is destined to be discarded. Section 60(3) of the Election Act, 2017 upon which learned counsel for the appellant placed reliance does not deal with the signing of the nomination papers rather pertains to their submissions before the Returning Officer. For the clarity of proposition sub-section (3) of Section 60 of Election Act, 2017 is referred hereunder:

“Every nomination paper shall be delivered to the Returning Officer by the candidate or his proposer or seconder or if so authorized in writing by the candidate, by his nominee and the Returning Officer shall acknowledge receipt of the nomination paper specifying the date and time of receipt.”

(emphasis provided)

I have also pondered upon the “Explanation” given in Section 60 by the legislature which is annexed with sub-Section 3 thus the authorization in favour of an Advocate is restricted only to the extent of submission of nomination papers and cannot be stretched to an extent of permitting a person other than the candidate to sign the document required to be submitted in terms of sub-Section 2. The learned counsel for the appellant was confronted with all the aforementioned facts and legal provisions upon which he went speechless. It is settled principle of law that if the law requires things to be done in particular manner then these must be done accordingly. This rule emanates from the maxim “a communi observantia non est recedendum.” which is even acknowledged by the Supreme Court of Pakistan in the case titled as “Muhammad Akram vs. Mst. Zainab Bibi” (2007 SCMR 1086), wherein the Supreme Court of Pakistan held as under:

“When the law requires a thing to be done in a particular manner then it would be a nullity in the yes of law, if not performed in that very prescribed manner.”

1. For what has been discussed above the titled election appeals are dismissed.

(Y.A.) Appeal dismissed

PLJ 2024 Lahore 82 [Rawalpindi Bench, Rawalpindi]

Present: Jawad Hassan, J.

GHULAM SHABBIR--Petitioner

versus

Mst. TANZEELA NUSRAT etc.--Respondents

W.P. No. 2669 of 2023, heard on 12.9.2023.

Contract Act, 1872 (IX of 1872)--

----S. 128-- Civil Procedure Code, (V of 1908), S. 145--Constitution of Pakistan, Art. 199--The petitioner stood surety for judgment debtor and submitted surety bond accordingly--Suit for recovery of maintenance allowance--Decreed--Concurrent Judgments--Petitioner stood surety for Respondent No.2 and submitted a surety bond to this effect--When a person becomes surety for performance of any decree or its part, or restitution of any property taken in execution of decree or payment of any money under an order of Court in any suit or proceedings, decree can be executed against him, to extent for which surety has rendered himself personally liable in manners provided therein--Petitioner himself made him liable to pay decretal amount in place of judgment debtor on his failure to satisfy decree--When a factual controversy had been settled by two courts below, unless and until there were compelling reasons shown for mis-reading and non-reading of evidence in findings arrived at by courts below or there was a visible irregularity while deciding dispute, High Court cannot interfere with that findings--No illegality having been found in impugned concurrent judgments of courts below--Both Courts exercised jurisdiction vested in them, without violating any principles governing assessment and appraisal of evidence--Petition was dismissed. [Pp. 83, 84, 85, 86 & 87 ] A, B, C, D, E, F, G, H

2015 CLC 1704; 2014 MLD 1809; 2002 CLD 623; 2016 SCMR 451; 2005 SCMR 72; PLD 2020 Lahore 350; 2023 CLC 702; 2021 CLC 805; 2020 CLC 970; 2006 SCMR 619; PLD 2017 Peshawar 203; 2023 SCMR 246; 2023 SCMR 1434; 2011 SCMR 1325; 2009 SCMR 1243; 2015 CLC 1704 ref.

Mr. Shahid Mehmood Abbasi, ASC for Petitioner.

Mirza Asif Abbas, Advocate and Mr. Arshad Mehmood Malik, Assistant Attorney General for Respondents.

Date of hearing: 12.9.2023.

Judgment

The petitioner namely Ghulam Shabbir through instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) calls in question the order dated 01.08.2023 passed by the Additional District Judge, Pind Dadan Khan, District Jhelum, whereby while dismissing civil revision of the petitioner, order dated 25.07.2023 passed by the learned Civil Judge, Class-I, Pind Dadan Khan, District Jhelum was affirmed.

1. Precisely the facts necessary for adjudication of instant petition are that Respondent No. 1 instituted a suit for recovery of maintenance allowance against her husband namely Abdul Khaliq, who is Respondent No. 2 in the instant petition. The suit was ultimately decreed vide judgment and decree dated 01.04.2017. An execution petition was filed and during the proceedings Respondent No. 2 was asked to pay the decretal amount but on his failure, he was sent to civil prison. The petitioner stood surety for the judgment debtor and submitted surety bond accordingly, however, on failure by the judgment debtor to satisfy the decree, proceedings were initiated against the Petitioner (surety) and due to non-fulfillment of his undertakings, he was sent to civil prison and his property was ordered to be attached through order dated 25.07.2023. This followed civil revision before the Additional District Judge, Pind Dadan Khan, District Jhelum but same was dismissed by way of order dated 01.08.2023.

2. Learned counsel for the Petitioner inter alia contends that impugned orders are the result of mis-reading and non-reading of material available on record; that the Petitioner stood surety only for an amount of Rs.300,000/- which has already been paid by him before the Executing Court but instead of discharging him from responsibility, he was sent to civil prison for one year while his property was also attached; that the judgment debtor/Respondent No. 2 has been released from the prison after serving out one year imprisonment thus he should satisfy the decree by paying the decretal amount and his property should have been attached instead of the Petitioner/surety. He relied on “Ahmad Ali and another versus Sheikh Amman Elahi” (2015 CLC 1704), “Shafqat Ibrar versus Judge Family Court and another” (2014 MLD 1809) and “Mirza Shahid Brig versus National Bank of Pakistan and 8 others” (2002 CLD 623).

3. Conversely, learned counsel for Respondents supports the impugned orders and contends that the Petitioner has undertaken to pay the decretal amount in the surety bond and has categorically and unequivocally stated before the Executing Court that he was responsible for the decretal amount, which was also recorded at the back of surety bond. He further contends that there is no ambiguity in the statement of the Petitioner/surety given before the Executing Court therefore, the impugned orders do not require any interference by this Court. He relied on “Industrial Development Bank of Pakistan versus Hyderabad Beverage Company Private Limited and others” (2016 SCMR 451), “Rafique Hazquel Masih versus Bank Alfalah Ltd. and others” (2005 SCMR 72), “Zulfiqar Ali and others versus Liaqat Ali and others” (PLD 2020 Lahore 350), “Muhammad Akram versus Additional District Judge and 5 others” (2023 CLC 702) and “Khadim Hussain versus Muhammad Tariq and others” (2021 CLC 805).

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

6. It is an admitted position on the record that suit instituted by the Respondent No. 1 for the recovery of maintenance allowance was decreed by way of judgment dated 01.04.2017. In execution proceedings, the judgment debtor (Respondent No. 2) paid certain amounts on different dates however, on account of failure to pay, he was sent to civil prison for one year vide order dated 04.07.2022. Thereafter, the proceedings were initiated against the Petitioner/surety for satisfaction of the decree but he raised an objection that he had bound himself only to the extent of Rs.3,00,000/- which he has already paid and as such he is not liable to pay any further amount. The said objection had already been turned down by the executing Court vide order dated 24.02.2023 and thereafter, due to non-payment of decretal amount, the Petitioner/surety was sent to civil prison for one year and his property was also attached vide order dated 25.07.2023. Admittedly, the Petitioner stood surety for the judgment debtor/Respondent No. 2 and submitted a surety bond to this effect, which is available at page No. 21 of the instant petition. The relevant extract from the said surety bond/undertaking is reproduced below:

1. It is quite obvious from the contents of above said undertaking that he himself bound to pay the decretal amount in case of default of the judgment debtor. His statement to this effect is also recorded on the back side of above said surety bond which reads as:

1. From the above, it is manifestly clear that while submitting surety bond, the Petitioner has undertaken to satisfy the decree if the judgment debtor fails to satisfy the same and he had no objection on selling, auction or attachment of his property for the satisfaction of the decree. Section 145 of the Code of Civil Procedure, 1908 deals with the proposition in hand which reads as under:

“145. Enforcement of liability of surety.--Where any person has become liable as surety--

(a) for the performance of any decree or any part thereof, or

(b) for the restitution of any property taken in execution of a decree, or

(c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an Order of the Court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees and such person shall, for the purposes of appeal, be deemed to be a party within the meaning of Section 47

Provided that such notice as the Court in each case thinks sufficient has been given to the surety.

1. Bare reading of said provision of law reflects that when a person becomes surety for performance of any decree or its part, or restitution of any property taken in execution of decree or payment of any money under an order of the Court in any suit or proceedings, the decree can be executed against him, to the extent for which surety has rendered himself personally liable in the manners provided therein. After default has occurred there is no reason to absolve the Petitioner from his liability to pay the agreed amount which had become due against him in view of principles laid down in Section 128 of the Contract Act, 1872 and Section 145, C.P.C. Reliance in said regard may be placed on “Muhammad Muzamal Riaz versus Additional District Judge, Shorkot , District Jhang and 6 others” (2020 CLC 970).

2. It is argued by learned counsel for the Petitioner that the Petitioner stood surety only for an amount of Rs.3,00,000/- which amount has already been paid by him during execution proceedings therefore, he is liable to be released and his property should also be detached.

11. Record reveals that the judgment debtor (Respondent No. 2) was sent to civil prison due to non-payment of decretal amount vide order dated 04.07.2022 and thereafter, the Petitioner/surety was summoned to satisfy the decree. It is also evident from the contents of surety bond that the Petitioner himself made him liable to pay the decretal amount in place of the judgment debtor on his failure to satisfy the decree. He thus now cannot wriggle out of his own undertaking. It is settled law that decree can also be executed against a surety. Reliance in this regard is placed on “Messrs State Engineering Corporation Ltd. versus National Development Finance Corporation and others” (2006 SCMR 619) and “Shafiullah versus Saifullah and 7 others” (PLD 2017 Peshawar 203).

1. Even otherwise, there are concurrent findings of facts recorded by both the learned Courts below which apparently do not suffer from any legal infirmity. Furthermore, when a factual controversy had been settled by the two Courts below, unless and until there were compelling reasons shown for mis-reading and non-reading of evidence in the findings arrived at by Courts below or there was a visible irregularity while deciding the dispute, this Court cannot interfere with that findings. Evidence on record shows that findings recorded by the Family Court later concurred by the lower Appellate Court are in accordance with the evidence/law. Neither any jurisdictional error of the Courts below has been challenged, nor conduct of proceedings by the Courts below has been called in question. No illegality having been found in the impugned concurrent judgments of the Courts below, same could not be interfered with especially when these are based upon substantial evidence to which the Petitioner has not been able to controvert during the trial. Both the Courts have recorded findings of facts assigning cogent and sound reasoning which do not warrant any interference by this Court. Reliance is placed on “Mst. Tayyeba Ambareen and another versus Shafqat Ali Kiyani and another” (2023 SCMR 246) whereby the Supreme Court of Pakistan has held that “the appraisal of evidence is primarily the function of the Trial Court and, in this case, the Family Court which has been vested with exclusive jurisdiction. In constitutional jurisdiction when the findings are based on mis-reading or non-reading of evidence, and in case the order of the lower fora is found to be arbitrary, perverse, or in violation of law or evidence, the High Court can exercise its jurisdiction as a corrective measure. If the error is so glaring and patent that it may not be acceptable, then in such an eventuality the High Court can interfere when the finding is based on insufficient evidence, mis-reading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where an unreasonable view on evidence has been taken.”. In “M. Hamad Hassan versus Mst. Isma Bukhari and 2 others” (2023 SCMR 1434), the Supreme Court of Pakistan further held that “once a matter has been adjudicated upon on fact by the trial and the appellate Courts, constitutional Courts should not exceed their powers by reevaluating the facts or substituting the appellate Court’s opinion with their own - the acceptance of finality of the appellate Court’s findings is essential for achieving closure in legal proceedings conclusively resolving disputes, preventing unnecessary litigation, and upholding the legislature’s intent to provide a definitive resolution through existing appeal mechanisms”. Reliance is also placed on “Mst. Nusrat and others versus Dr. CAP. Shahzad Riaz and others” (2011 SCMR 1325) and “Waqar Haider Butt versus Judge, Family Court and others” (2009 SCMR 1243). This Court is also not ordinarily inclined to interfere with the findings of fact recorded by the learned Courts below, particularly when they are not shown to be contrary to record or arbitrary or whimsical. In the instant case, apart from the bald assertions, no specific instance was brought to the notice of the Court that might be regarded as a case of misreading or non-reading of material evidence, having direct and decisive bearing on the issues. Both the Courts exercised the jurisdiction vested in them, without violating any principles governing the assessment and appraisal of evidence.

2. In view of above, this petition holds no merit hence the same is hereby dismissed. However, the Executing Court is directed to decide the objection petition of surety, if any, pending, after framing of issues, recording of evidence of parties regarding the amount paid or to be paid by the Petitioner to the Respondent No. 1 and affording opportunity of hearing to the parties in the light of judgment in the case of “Ahmad Ali and another versus Sheikh Amman Elahi” (2015 CLC 1704).

(Y.A.) Petition dismissed

PLJ 2024 Lahore 88 [Bahawalpur Bench, Bahawalpur]

Present: Sultan Tanvir Ahmad, J.

SAJJAD AHMAD--Appellant

versus

RETURNING OFFICER, NA-174, RAHIM YAR KHAN and 4 others--Respondents

E.A. No. 19 of 2024, heard on 4.1.2024.

Election Act, 2017 (XXXIII of 2017)--

----S. 63--Election Rules, 2017, R. 54--Rejection of nomination papers--Allegations of--Registration of FIR--Defaulter of agriculture tax--No notice for demanding of tax--No proceedings u/S. 87 & 88 of Cr.P.C. against appellant--Incorrect imposition of law--Appeal--Rejected--Challenge to-- It is not denied by respondent-side that proceedings u/S. 87 of Cr.P.C. 1898 were never initiated against appellant--Returning Officers have reached to their conclusion to hold appellant as fugitive of law in summary proceeding, in absence of order of Magistrate or Court of competent jurisdiction, is not tenable--No proceedings under section 87 and 88 of Code have been taken against appellant--The demand of agriculture income tax, is apparently not based on proper assessment, which even otherwise can be challenged in appeal under Punjab Land Revenue Act, 1967, same cannot be termed as a default for purpose of rejection of nomination papers--Rejection of nomination papers of appellant from constituencies mentioned above through impugned orders is based on erroneous assumption of facts and incorrect exposition of law--Appeal allowed. [Pp. 90 & 91] A, B, C, D & E

PLD 2010 SC 959, 2019 MLD 541 & 2019 YLR 643 ref.

Mr. Muhammad Munir Gondal, learned Advocate for Appellant.

Mr. Zafar Iqbal Awan, learned Additional Advocate General for Respondents.

Mr. Mukhtar Ahmad Muchar, learned Assistant Attorney General.

Muhammad Jaffar, Assistant Director (Law), Election Commission of Pakistan.

Mr. Ashraf Saleh, Returning Officer NA-174(VI) Rahim Yar Khan.

Mr. Amjad Javaid, Returning Officer PP-265(XI), Rahim Yar Khan.

Mr. Abdul Majid Khan, PP-266(XII), Rahim Yar Khan.

Date of hearing: 4.1.2024.

Judgment

Through this judgment, titled appeal along-with election appeals bearing E.A No. 12 of 2024 and E.A No. 10 of 2024, filed under Section 63 of the Elections Act, 2017 (the ‘Act’) read with rule 54 of the Election Rules, 2017 (the ‘Rules’), against orders dated 28.12.2023, 29.12.2023 and 30.12.2023 (the ‘impugned orders’), shall be decided. All these appeals are filed by the appellant against rejection of his nomination papers, for almost identical reasons, from NA-174(VI|), Rahim Yar Khan, PP-265(XI) and PP-266(XII), Rahim Yar Khan.

1. The nomination papers of the appellant have been rejected by the concerned Returning Officers for the reasons that (i) FIR No. 322 of 2023 is registered against the appellant and (ii) the appellant is defaulter of Land-Based Agriculture Tax for which allegedly Assistant Collector, Sadiqabad issued an order to deposit an amount of Rs. 964,500/- but the appellant failed to clear the same.

2. Mr. Muhammad Munir Gondal, learned counsel for the appellant has submitted that the impugned orders are against the law and the nomination papers have been rejected simply on the basis of a letter issued by District Police Officer, Rahim Yar Khan with regard to FIR No. 322 of 2023, however, earlier the appellant was not aware about this FIR and soon after gaining knowledge of the same, the appellant obtained protective bail and he has given full disclosure as per his knowledge and belief in the nomination papers as well as the affidavit attached. It is submitted by the learned counsel for the appellant that the appellant is not fugitive of law and he has already approached the learned Court of competent jurisdiction, which has granted him pre-arrest bail; that he has also contacted the investigation officer to join the investigation. To the extent of allegation of not paying the agriculture income tax, the learned counsel for the appellant relied upon the certificate issued by Assistant Collector, Sadiqabad bearing No. TDR /SDK/745 dated 05.12.2023 and subsequent no demand certificate issued by concerned Assistant Commissioner.

3. Conversely, Mr. Zafar Iqbal Awan, learned Additional Advocate General and Mr. Muhammad Jaffar, Law Officer / Assistant Director (Law) Election Commission of Pakistan have opposed these appeals. They have stated that the appellant is fugitive of law and he is tax defaulter as reported to the concerned Returning Officers.

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

5. It is not denied by the respondent-side that proceedings under section 87 of the Code of Criminal Procedure, 1898 (the ‘Code’) were never initiated against the appellant. The Returning Officers are also present in the Court with the relevant record and they have stated that no proclamation in this respect or any order of the learned concerned Magistrate regarding the statement of Investigation Officer is in their record. This is further confirmed by the learned Additional Advocate General, Punjab, after obtaining instructions. The part of the impugned orders based on the alleged absconsion of the appellant, in the absence of any order of the relevant learned Court declaring the appellant proclaimed offender or actual proclamation(s), is based on incorrect facts and exposition of law. The Returning Officers as well as this Tribunal cannot go into the facts that entail detailed enquiry. The letter written by District Police Officer Rahim Yar Khan vide No. 3846-SB on 25.12.2023, on the basis of which the Returning Officers have reached to their conclusion to hold the appellant as fugitive of law in summary proceeding, in the absence of order of the learned Magistrate or the learned Court of competent jurisdiction, is not tenable. In this regard, the Supreme Court of Pakistan in case titled “Muhammad Afzal Khan Dhandla and 03 Others versus Election Tribunal and Others” (PLD 2010 Supreme Court 959) observed as follows:

“6. As regards the absconsion of the respondents is concerned, the petitioners were not able to place before the Returning Officer or even before the High Court any order of the Court which declared them to be the proclaimed offenders. The learned High Court has considered this aspect of the matter in the impugned judgment exegetically and has, rightly, held that such order at the level of the investigating agencies in terms of section 512, Cr.P.C. was not legally passed, the reference in this behalf can be made to paragraph 11 thereof, wherein the correct exposition of law has been rendered in the context of this case and held “since no proceedings under section 87, 88 had been taken by the Court against the respondents, therefore, they could not have been declared as absconders and no case was pending trial against them prior to the submission of nomination papers. Therefore, there was no concealment in filing the nomination papers. They did not conceal this fact.”

1. Mr. Zafar Iqbal Awan learned Additional Advocate General, Punjab, while relying upon the cases titled “Mian Shafique Ahmed and another versus Federation of Pakistan through Secretary Election Commission of Pakistan Islamabad and 5 Others” (2017 MLD 1975), “Hussain Bux and another versus District & Sessions Judge / District Returning Officer and Appellate Authority, Sanghar and 3 Others” (2002 CLC 281) [Karachi] and “Muzafar Abbas versus Maulana Muhammad Ahmad Ludhianvi and 31 Others” (PLD 2017 Lahore 394) has vigorously argued that the case of the appellant is at par with the candidates involved in the above said cases, wherein, the learned Courts have dismissed the petitions / appeals against rejection of nomination paper. I have gone through the said judgments. The nomination papers and / or the petitions were rejected in the particular circumstances, when the candidates deliberately failed to surrender followed by orders under section 87 and 88 of the Code as well as proceedings on the basis of reports/challans submitted before the learned Courts of competent jurisdiction. The facts and circumstances of the present case are clearly distinguishable from the cases relied by the learned Additional Advocate General. In the present case, no proceedings under section 87 and 88 of the Code have been taken against the appellant. As a matter of fact, the appellant has surrendered before the learned Court of competent jurisdiction and obtained his ad-interim pre-arrest bail vide order dated 02.12.2023.

2. The next reason for rejection of the nomination papers is default of payment of agriculture tax of Rs. 964,500/. The Returning Officers have reached to their conclusion on the basis of a letter / order of the Assistant Collector, Sadiqabad that was issued during the period of scrutiny for which no notice issued to the appellant, demanding this tax, is on record. Somehow, the Assistant Collector, Tehsil Sadiqabad, District Rahim Yar Khan has also issued a certificate that no amount of water rate and agriculture income tax land base is outstanding towards the appellant. The demand of Rs. 964,500/- as agriculture income tax, is apparently not based on proper assessment, which even otherwise can be challenged in appeal under the Punjab Land Revenue Act, 1967, therefore, the same cannot be termed as a default for the purpose of rejection of nomination papers. Reference can be made to the cases titled “Abdul Sattar Bachani versus Returning Officer and 04 Others” (2019 MLD 541) and “Syed Shafqat Hussain Shah versus Returning Officer and another” (2019 YLR 643).

3. For what has been discussed above, I am of the considered opinion that rejection of nomination papers of the appellant from the constituencies mentioned above through the impugned orders is based on erroneous assumption of facts and incorrect exposition of law.

Consequently, the titled appeal along-with election appeals bearing E.A No. 12 of 2024 and E.A No. 10 of 2024 are allowed. The impugned orders are set-aside and the nomination papers of the appellant in NA-174(VI), Rahim Yar Khan, PP-265(XI) and PP-266(XII), Rahim Yar Khan stand accepted. Copies of this judgment be sent to the office of the concerned Returning Officers, to do the needful.

(Y.A.) Appeal allowed

PLJ 2024 Lahore 92

Present: Anwaar Hussain, J.

ASMAT BIBI--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 50316 of 2023, decided on 15.11.2023.

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

----O.XXXIX Rr. 1 & 2--Dismissal of application for temporary injunction--Petitioner was not arrayed sublings as party in suit--Dominus litis--Challenge to--Appellate Court has dismissed application of petitioner, under Order XXXIX Rules 1 & 2, CPC on ground, that petitioner has not arrayed her other siblings in suit as defendants, which is alien to ingredients required for grant or refusal of temporary injunction--General rule is that plaintiff in a suit is dominus litis and may choose person against whom he wishes to litigate and cannot be forced to sue a person against whom he does not seek any relief--Appellate Court lost sight of settled legal position regarding distinction between non-joinder who ought to have been joined as a party--Petitioner is not claiming any right against her siblings who have not been arrayed as defendants, disputed property, forming part of inheritance share of petitioner in property left by her father, is being claimed by respondents and not said other siblings of petitioner--Petition allowed.

[Pp. 95 & 96] B, C & D

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

----O.XXXIX, Rr. 1 & 2--Ingredients of temporary injunction--In order to succeed in obtaining temporary injunction in a case, a plaintiff has to establish co-existence of three conditions/ingredients i.e., (i) prima facie case; (ii) possibility of suffering irreparable loss if temporary injunction is declined; and (iii) that balance of convenience leans in favour of plaintiff. [P. 94] A

Mr. Nasir Abbas Zafar Malik, Advocate for Petitioner.

Ms. Rabia Bajwa, Advocate for Respondents No. 3 to 5.

Date of hearing: 15.11.2023.

Judgment

This constitutional petition is directed against judgment dated 06.07.2023, passed by the Additional District Judge, Ferozewala, who proceeded to accept the appeal of Respondents No. 3 to 5 and has upended the order dated 15.12.2022, passed by the Civil Judge 1st Class, Ferozewala and the application of the petitioner, under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908 (“CPC”), filed alongwith her suit for declaration and cancellation of the document as also recovery of possession and permanent injunction, was dismissed.

1. By way of factual background, it has been noted that the petitioner, deceased Muhammad Sharif [(predecessor-in-interest of Respondents No. 3(a) to 3(f)], deceased Nazir Ahmad [(predecessor-in- interest of Respondents No. 4(a) to 4(g)] and Manzoor Ali, were real brothers and sister who were children of one Noor Din. For facility of reference, predecessors of Respondents No. 3(a) to 3(f), 4(a) to 4(g) and Respondent No. 5, are collectively referred as “the respondents”.

2. The dispute relates to part of total property, measuring 40-Kanals, detail whereof is given in the headnote of the plaint of the suit which was owned by Noor Din. Apart from the petitioner and the respondents, Noor Din also had other children namely, Munawar Bibi, Zuhran Bibi and Bashiran Bibi. The petitioner instituted the suit laying challenge to the oral gift mutation bearing No. 86 dated 28.04.1984, in favour of the respondents, on ground of fraud as a result of which the petitioner was deprived from her share of inheritance in the property left by her father, Noor Din.

3. Learned counsel for the petitioner submits that findings of the Courts below are at variance and well-reasoned order of the Trial Court has been upset by the Appellate Court below merely on the technical ground that while laying challenge to the impugned oral mutation in favour of her brothers (the respondents), the petitioner has not arrayed other legal heirs of Noor Din in her suit, as defendants, which is not a plausible ground for dismissing the application of the petitioner, under Order XXXIX, Rules 1 & 2, CPC as said legal heirs of Noor Din are neither necessary party nor any relief was claimed against them.

4. Conversely, learned counsel for the respondents submits that the petitioner has failed to establish a prima facie case as she intentionally has not arrayed her other siblings as defendants. Adds that the respondents are in possession of the disputed property for the last 38- years and nothing has been brought on record to establish as to when the petitioner came to know about the sanctioning of impugned oral gift mutation and whether the petitioner was ever given any share in the produce (حصہ بٹائی). Places reliance upon cases reported as “Mst. Sheedan Begum and others v. Muhammad Usman Khan and others” (2021 MLD 1937) and “Ashiq Muhammad and others v. Mst. Suhagan” (2023 SCMR 1171) in support of her contentions.

5. Arguments heard. Record perused.

6. It is settled principle of law that in order to succeed in obtaining temporary injunction in a case, a plaintiff has to establish co-existence of three conditions/ingredients i.e., (i) prima facie case; (ii) possibility of suffering irreparable loss if temporary injunction is declined; and (iii) that the balance of convenience leans in favour of the plaintiff. Of the above referred three conditions, existence of prima facie case is foundational and the other two conditions are considered only once the plaintiff establishes a prima facie case in his favour. This assessment is to be carried out by the learned Trial Court while examining the pleadings of the parties. In plaint of her suit, the petitioner alleged commission of fraud by stating that she had not transferred the disputed property by way of oral gift to the respondents and when written statement was filed, plea was taken that the share of the petitioner in the property left by the father of the petitioner was purchased by the respondents. Para No. 5 of the written statement is reproduced hereunder:

(Emphasis supplied)

There is an apparent disconnect, in respect of the nature of the transfer by the petitioner in favour of the respondents, between the impugned gift mutation in favour of the respondents and the stance taken by the respondents in written statement that clearly establishes the existence of prima facie case in favour of the petitioner as there was no justification for the respondents for getting the impugned oral gift mutation sanctioned in their favour instead of a sale mutation if the petitioner received price of her share and sold the disputed property. The petitioner being weaker segment of the society has been deprived of her share in inheritance in the property left by her father. She will certainly face inconvenience due to multiplicity of litigation if interim relief is not granted restraining the respondents from further alienating the disputed property and creating third party interest in respect thereof.

This fact had rightly been appreciated by the learned Trial Court, vide order dated 15.12.2022, operative part whereof is reproduced hereunder:

“4…..In the instant case, plaintiff has called in question the transaction whereby she has been deprived of her rights to property and onus is shifted upon defendants to prove genuineness of transaction through cogent and convincing evidence. Moreover, it is settled practice in our society that females are deprived of their rights to property by their family as well as close male relatives. Perusal of mutation shows that the same has been sanctioned on basis of oral gift whereas defendants in their written statement took stance that they purchased property after payment of its value. In cases of gift, no value is to be paid. Transaction of sale and gift are totally different to each other. Thus stance taken by defendants is ambiguous and against revenue record. Hence plaintiff has proved her prima facie case. If temporary injunction is not granted and property is further alienated, plaintiff would face irreparable loss and it would give birth of future complications and multiplicity of litigation.”

(Emphasis provided)

1. On the contrary, the Appellate Court below has dismissed the application of the petitioner, under Order XXXIX Rules 1 & 2, CPC on the ground, that petitioner has not arrayed her other siblings in the suit as defendants, which is alien to the ingredients required for grant or refusal of the temporary injunction. The said siblings, at the most, were proper parties and non-impleading thereof is an irregularity, which is not a non-curable defect. Needless to mention that the general rule is that the plaintiff in a suit is dominus litis and may choose the person against whom he wishes to litigate and cannot be

forced to sue a person against whom he does not seek any relief. Even otherwise, the learned Appellate Court below lost the sight of settled legal position regarding the distinction between the non-joinder who ought to have been joined as a party and the non-joinder of a person whose joinder is only a matter of convenience or expediency, as is the position in the instant case where the petitioner is not claiming any right against her siblings who have not been arrayed as the defendants, since the disputed property, forming part of the inheritance share of the petitioner in the property left by her father, is being claimed by the respondents and not the said other siblings of the petitioner. Judgments relied upon by the respondents’ side, having been considered, are found distinguishable, on account of facts as well as legal question involved.

1. In view of the above discussion, this constitutional petition is allowed and the impugned judgment of Appellate Court below is set aside and the order passed by the Trial Court is upheld. No order as to costs. Before parting with, it is also made clear that the observations and findings in this judgment are tentative in nature and made for deciding the application of the petitioner for grant of interim injunction, only. The learned Trial Court shall not be prejudiced by the said observations while finally deciding the suit of the petitioner.

(Y.A.) Petition allowed

PLJ 2024 Lahore 96 [Rawalpindi Bench, Rawalpindi]

Present:Mirza Viqas Rauf, J./A.T.

EMAN WASEEM--Appellant

versus

RETURNING OFFICER, NA-50, ATTOCK-II, ATTOCK and 2 others--Respondents

E.A. No. 16 of 2024, decided on 4.1.2024.

Election Act, 2017 (XXXIII of 2017)--

----S. 63--Rejection of nomination papers--Objections of--Proclaimed offender--Forged signatures of proposer and seconder--Validity of objections--Defaulter of agriculture income tax--No notice for payment of tax--No assessment of tax--Mere registration of a criminal case against a candidate or his purported abscondence would not impede as disqualification in his way to contest election--If there arises a question about genuineness of signature of proposer or seconder before “R.O.”, he has to conduct a summary enquiry for his satisfaction--No such enquiry was ever conducted rather “R.O.” proceeded to reject nomination papers only on ground that candidate, proposer and seconder are not present which lends support to objection of objector that their signatures are not genuine--“R.O.” was not supposed to carry objection filed by objector and pave way for him to knockout candidate at his whims and capricious without conducting any enquiry--Objection was raised by Respondent No. 2 being hand in gloves with adversaries of appellant to craft a ground for rejection of her nomination papers--Appellant has expressed serious complaint against highhandedness of law enforcement agencies to stop her at any cost to contest election due to political rivalry--Appeal Allowed.

[Pp. 101, 103, 104 & 106] A, B, C, D & E

2016 SCMR 733, 2017 MLD 282 and PLD 1999 Quetta 78 ref.

2013 CLC 1481.

M/s. Tanvir Iqbal and Nasir Iqbal, Advocates for Appellant.

Mr. Muhammad Siddique Awan, Additional Attorney General for Pakistan with Zulqarnain Hyder Gondal, Assistant Director (Law), Election Commission of Pakistan for Respondents No. 1 & 3.

Mr. Haider Mehmood Mirza, Advocate for Respondent No. 2.

Date of hearing: 4.1.2024.

Judgment

This appeal under Section 63 of the Elections Act, 2017 (hereinafter referred to as “Act, 2017”) arises out of order dated 30th December, 2023, whereby the Returning Officer (hereinafter referred to as “R.O.”) NA-50 Attock-II proceeded to reject the nomination of the appellant on the following grounds :-

“As per letter No. 9885/Security/DPO dated 27.12.2023 received from the District Police Officer, Attock, Mst. Eman Waseem has been declared “Proclaimed Offender”.

It is further added that as per Judgment Raees Gul vs. RO etc. CP No. (s) 87/2022 dated 12.05.2022. Honorable Baluchistan High Court, quoted “it is settled principle of law that an proclaimed offender, who is fugitive of law has no right of audience”, unless he surrenders himself before the Court, while in case in hand till filing of the instant petition on the petitioner being fugitive of law in case FIR No. 49 of 2000 levies station Jhal Magsi has not surrendered before any Court of law, and, consequently has no right to contest the election”

In addition to mentioned above, the candidate, proposer and the Seconder were called to appear in person on scrutiny date but candidate, proposer and seconder did not appear before the undersigned on said date and time. Due to absence of candidate, proposer and seconder, the veracity of their signatures cannot be determined.

WHEREAS Mst. Eman Waseem is owner of land 311 Kanal 5 Marla but she did not deposit AIT in Government treasury and she herself acknowledged on affidavit submitted by the candidate as mentioned at Clause M of said affidavit.”

1. Heard. Record perused.

2. In order to contest the upcoming election 2024 for the National Assembly Seat (NA-50 Attock-II), the appellant submitted her nomination paper before the “R.O.”. The Respondent No. 2 being a voter member of the said constituency filed objection to the candidature of the appellant on the ground that signatures of her proposer namely Sajjad Haider Khan and seconder namely Muhammad Rafique Khan are forged, which should be verified and during scrutiny the “R.O.” proceeded to reject the nomination paper of the appellant on the grounds mentioned hereinabove.

3. Before adjudging the validity of the objection or the propriety of the impugned order, it would be advantageous to first have an overview of the provisions of law prescribing disqualifications for membership of the Majlis-e-Shoora (Parliament). To this effect first of the series is Article 63 of the Constitution of the Islamic Republic of Pakistan, 1973, which reads as under:

“63. (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if--

(a) he is of unsound mind and has been so declared by a competent Court; or

(b) he is an undischarged insolvent; or

(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or

(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or

(e) he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or

(f) being a citizen of Pakistan by virtue of Section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or

(g) he has been convicted by a Court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or the integrity, or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has lapsed since his release; or

(h) he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or

(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or, controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct, unless a period of five years has elapsed since his dismissal; or

(j) he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct, unless a period of three years has elapsed since his removal or compulsory retirement; or

(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or

(l) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government:

Provided that the disqualification under this paragraph shall not apply to a person--

(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him;

(ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or

(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest; or

Explanation.--In this Article “goods” does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply; or

(m) he holds any office of profit in the service of Pakistan other than the following offices, namely :--

(i) an office which is not whole time office remunerated either by salary or by fee;

(ii) the office of Lumbardar, whether called by this or any other title;

(iii) the Qaumi Razakars;

(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or

(n) he has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off; or

(o) he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months, at the time of filing his nomination papers; or

(p) he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force.

Explanation.--For the purposes of this paragraph “law” shall not include an Ordinance promulgated under Article 89 or Article 128.

(2) If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and if he fails to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission.

(3) The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.”

Adverting to the grounds prevailed upon the “R.O.” to reject the nomination of the appellant, it is observed that first ground was that the appellant is proclaimed offender as per report of the District Police Officer, Attock. It is manifestly clear that mere registration of a criminal case against a candidate or his purported abscondence would not impede as disqualification in his way to contest the election. Reliance in this respect can be placed on Sheikh Muhammad Akram versus Abdul Ghafoor and 19 others (2016 SCMR 733).

1. So far failure by the appellant, her proposer and seconder to appear before the “R.O.” is concerned, suffice to observe that Chapter V of the “Act, 2017” deals with the conduct of elections of the assemblies. Section 60 of the Act ibid provides the manner for nomination for election and in terms thereof any voter of a constituency, may propose or second the name of any qualified person to be a candidate for Member for that constituency. In terms whereof, the appellant submitted her nomination papers whereas Sajjad Haider Khan and Muhammad Rafique Khan stood her proposer and seconder, respectively. Section 62 of the “Act, 2017” provides the procedure for scrutiny of nomination papers and in terms of sub-section (1) any voter of a constituency may file objections to the candidature of a candidate of that constituency who has been nominated or whose name has been included in the party list submitted by a political party for election to an Assembly before the “R.O.” within the period specified by the Election Commission for the scrutiny of nomination papers of candidates contesting election to an Assembly. The Respondent No. 2 being the voter of the constituency filed the objections mentioned hereinabove.

6. There is no cavil that in terms of the “Act, 2017”, the “R.O.” is empowered to reject the nomination papers of a candidate if he is satisfied that the signature of the proposer or the seconder is not genuine. Sub-section (2) of Section 62 of the “Act, 2017” ordains that the candidates, their election agents, the proposers and seconders and one other person authorized in this behalf by each candidate, and a voter who has filed an objection under sub-section (1), may attend the scrutiny of nomination papers, and the “R.O.” shall give them reasonable opportunity for examining all the nomination papers delivered to him under Section 60. From the whole reading of Section 62, one thing becomes crystal clear that the presence of the proposer and seconder before the “R.O.” is not mandatory, rather it is optional for them to be present at the time of scrutiny of the nomination papers.

1. Sub-section (9) of Section 62 of the “Act, 2017” has direct relevance to the proposition in hand. For ready reference and convenience same is reproduced below :-

“62. Scrutiny. (1)

(2) -------------------------------------------------------------------------

(3) -------------------------------------------------------------------------

(4) -------------------------------------------------------------------------

(5) -------------------------------------------------------------------------

(6) -------------------------------------------------------------------------

(7) -------------------------------------------------------------------------

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

(b) ----------------------------------------------------------------------------

(8) --------------------------------------------------------------------------------------

(9) Subject to this section, the Returning Officer may, on either of his own motion or upon an objection, conduct a summary enquiry and may reject a nomination paper if he is satisfied that--

(a) the candidate is not qualified to be elected as a Member;

(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;

(c) any provision of Section 60 or Section 61 has not been complied with or the candidate has submitted a declaration or statement which is false or incorrect in any material particular; or

(d) the signature of the proposer or the seconder is not genuine:

Provided that--

(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper; or

(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll.

(Underlining supplied for emphasis)

It is thus manifestly clear from the above that if there arises a question about the genuineness of the signature of the proposer or the seconder before the “R.O.”, he has to conduct a summary enquiry for his satisfaction. Admittedly no such enquiry was ever conducted rather the “R.O.” proceeded to reject the nomination papers only on the ground that the candidate, proposer and seconder are not present which lends support to the objection of the objector that their signatures are not genuine. The “R.O.” in the circumstances should have employed necessary measures for the production of the proposer and seconder if he was desirous to satisfy himself about the genuineness of their signatures. “R.O.” was not supposed to carry the objection filed by the objector and pave way for him to knockout the candidate at his whims and capricious without conducting any enquiry. Reference to this effect can be made to Mukhtar Ahmad versus Returning Officer and others (2017 MLD 282) where in similar facts and circumstances it is held as under:

“7. Plain reading of the above rule 3(d) would show that the Returning Officer is empowered to reject nomination paper of a candidate if he is satisfied that signature or thumb impression of the proposer or the seconder is not genuine. This means that if an objection is raised that the signature or thumb impression of the proposer or the seconder is not genuine the Returning Officer should satisfy him with regard to genuineness of the allegation and in this regard he can conduct a summary inquiry. The impugned order does not reveal that any such inquiry was conducted. So it cannot be inferred as to from which source the Returning Officer satisfied him that the signatures of the proposer and seconder were bogus. Once the law has provided a summary inquiry it was incumbent upon the Returning Officer to hold a (summary) inquiry to satisfy his conscience about genuineness of the signatures especially keeping in view peculiar facts and circumstances of this case and keeping in view earlier allegation by the petitioner that his proposer and seconder had been abducted and later that they have been won over by his rival candidates. In view of well established principle reiterated by the Hon’ble Supreme Court in Mst. Aziz Begum v. Federation of Pakistan and others (PLD 1990 SC 899) that the “law may be blind but the Judge is not”, the most significant fact of this case which must not lose sight is that most of the population in rural areas of our country comprise of rustic humble families living under the influence of their masters/land lords and become easy prey and surrender to the pressure of the landlords. In view of the fact that after submission of a nomination paper the same cannot be changed at the time of scrutiny it may become very easy for a rival to defeat a candidate on technical ground by winning over his proposer or seconder because at this stage the candidate becomes helpless. Perhaps in order to cope with such situation, the legislature empowered a Returning Officer to conduct summary inquiry.

Article 84 of the Qanun-e-Shahadat provides a mechanism for verification of signatures/thumb impressions in summary proceedings/inquiry. It says as under:

“84. Comparison of signature, writing or seal with others admitted or proved.---(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

(3) This Article applies also, with any necessary modifications, to finger-impressions.

Bare reading of this Article would make it clear that in order to ascertain the genuineness or otherwise of the signatures, the Courts have been empowered to make the comparison of the signatures, words or figures written over the disputed documents with those of the admitted one and to exercise their judgments of resemblance of admitted writing on record. It appears that this provision of law escaped notice of consideration by the respondents which could be very helpful in checking the genuineness of signatures of the proposer and seconder in summary proceedings. While dealing with Article 84 of Qanun-e-Shahadat Order, 1984 the Hon’ble Supreme Court in the case titled Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others (1999 SCMR 85) held as under:--

“It is settled principle that in certain eventualities Court enjoins plenary powers to itself compare the signature along with other relevant material to effectively resolve the main controversy.”

Under the aforementioned provision of law empowering the Court to itself compare the signatures and the dictum laid down by the apex Court in this regard, I have carefully gone through the process. Both the proposer and the seconder are present in person. With the assistance of learned counsel for the parties, both Muhammad Maqbool, proposer/ Respondent No. 3 and Irfan Ali, Seconder/Respondent No. 4 have been directed to put their signatures and thumb impressions on the plain white papers given to them. Muhammad Maqbool respondent has put his thumb marks on the given paper whereas Irfan Ali respondent has put his thumb mark and also signatures on the other paper given to him. I have put both these papers carrying signatures/thumb mark and the disputed one on the nomination paper, in juxtaposition and found after comparison that these thumb marks/signatures have more than 95% similarity and resemblance. Even learned counsel for the private respondents could not deny this resemblance. These papers have been Marked-A, B & C, signed by me and placed on the file. In this view of the matter possibility of Respondents Nos. 3 and 4 having been won over by the rival candidate of the petitioner after putting their signatures/thumb marks on nomination paper, cannot be ruled out.”

Reference to the above effect can also be made to Abdul Karim versus The Returning Officer/The Assistant Commissioner, Hub At Hub and another (PLD 1999 Quetta 78).

1. Even otherwise apparently the question with regard to the genuineness or otherwise of the signatures/handwriting of a person ordinarily cannot be agitated by a third person having no acquaintance with the signature/handwriting of such person. The objector has failed to demonstrate as to what made him to believe that the signatures of proposer and seconder are not genuine. It appears that the objection was raised by Respondent No. 2 being hand in gloves with the adversaries of the appellant to craft a ground for rejection of her nomination papers. In case of a question about genuineness of signatures of a proposer or seconder they are the most relevant persons who can blow the whistle but neither the proposer nor the seconder has complained till date that they have not consented for such status.

2. There is yet another important aspect that the appellant has expressed serious complaint against the highhandedness of the law enforcement agencies to stop her at any cost to contest the election due to political rivalry. Learned counsel for the appellant though during hearing made an offer that the appellant can produce the proposer and seconder if they be given necessary protection to approach the Tribunal but learned Law Officer when confronted has expressed his inability to this effect, which tentatively justifies the apprehension expressed by the appellant that if the proposer and seconder emerge in the scene, they shall be dealt with illegally and unlawfully.

3. Adverting to the question of default in payment of Agricultural Income Tax (AIT) in government treasury is concerned, it is observed that to this effect neither any assessment was made nor the appellant was served with any notice to pay the amount in question, which even otherwise is undetermined so far. In the case of Nadeem Sarwar versus Election Commission of Pakistan through Election Commissioner, Punjab and 3 others (2013 CLC 1481) a similar question came under consideration before a Larger Bench and it was ruled as under :-

“8. Perusal of nomination paper indicates that there are four columns in item 14 of the nomination paper which is as under:

| | | | | | --- | --- | --- | --- | | Tax Year | Land Holding | Agricultural Income | Total Agricultural Income Tax Paid | | | | | | | | | | |

The third and fourth columns are of significance. Third column requires the candidate to disclose his agricultural income. The word “agricultural income” and “total agricultural income” have been separately defined in the Act in the following manner:--

2(1)(a) any rent or revenue derived from land which is situated in the Punjab and is used for agricultural purposes;

2(1)(k) “total agricultural income’ means the total amount of agricultural income, computed in the matter laid down in this Act.

1. The significance of the difference in the above provisions is highlighted in Section 3(3) of the Act which provides that agricultural income tax is to be charged on “total agriculture income” and not on agriculture income. This legal position is also admitted by the respondents. Column three of the nomination paper is ambiguous and does not clearly show whether the candidate is to declare his “agricultural income” or “total agricultural income”.

2. Sections 3(3), 4 and 4-A of the Act read with Rules 5, 9, 10, 12, 13 of the Rules, 2001 reveal that the assessee has to work out the “total agricultural income” and then submit his return which has to be duly assessed by the Collector. It is after assessment of the return that the liability of an assessee can be determined. Hence the question of default, if any, can only arise post assessment.

3. The other dimension is where an assessee fails to furnish his return. Under section 8 of the Act the assessee is slapped with a penalty. Penalty can also be imposed for concealments of cultivated land or default in payment of tax under sections 9 and 10 of the Act. These penalties can only be imposed after a reasonable opportunity is granted to the assessee of being heard. In the present case, neither the assessment has taken place nor any penalty for lack of furnishing a return, has been imposed on the petitioners.

4. In this background, we called Member (Taxation), Board of Revenue. He stated that the Agricultural Tax even though levied under the Act, has not taken root on an operational level due to lack of proper infrastructure. On a question posed by the Court he submitted that there have been no assessments of agricultural tax in Punjab according to his record and same is the case with the imposition of penalties under the Act. The statement made by the Member (Taxation) made it clear that the Agricultural Tax has not been operationalized in the field and is presently source than a still- born tax which needs to be properly enforced. The Member failed to show any record of recovery maintained under Section 6 of the Act read with Rule 19 of the Rules to establish that the agricultural tax is being collected under the Act. With this ground reality, it cannot be held by this Court with any level of certainty that the petitioners had committed default in the payment of agricultural income tax.

5. Even for the sake of arguments, if there was ambiguity in the interpretation of the third column, benefit of the same is to go to the candidate-assessee, whose fundamental right to contest election under Article 17(2) of the Constitution is at stake (reliance is placed on, Workers’ Party Pakistan through Akhtar Hussain, Advocate-General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681) and just on the basis of the technicalities, he cannot be thrown out of the election process.

6. This Court is hopeful that in future, the Election Commission of Pakistan will establish better co-operation with the Revenue authorities and reframe Column No. 14 soliciting

correct information from a prospective candidate in accordance with the Act.”

1. It appears that the “R.O.” while rejecting the nomination of the appellant rested his findings on judgment from the Balochistan High Court passed in CP No. 87 of 2022 on 12th May, 2022, perusal whereof reveals that the judgment is relatable to candidate contesting the local government elections under the Balochistan Local Government Act, 2010 specifying different disqualifications for the candidates contesting such election. Facts of the said case and even principles laid down therein are thus clearly distinguishable.

2. For the foregoing reasons, impugned order cannot sustain, resultantly while allowing this appeal, order of the “R.O.” dated 30th December, 2023 is set aside, as a sequel whereof, nomination papers of the appellant shall stand accepted. Office to transmit the copy of this judgment to the “R.O.” concerned for its compliance in terms of Rule 54(5) of the Election Rules, 2017.

(Y.A.) Appeal allowed

PLJ 2024 Lahore 109 (DB)

Present:Ali Baqar Najafi and Muhammad Amjad Rafiq, JJ.

Mian ARIF SAID--Appellant

versus

PROVINCE OF PUNJAB etc.--Respondents

W.P. No. 37087 of 2023, decided on 26.6.2023.

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

----Ss. 302, 324, 395, 436, 452, 440, 427, 353, 186, 290, 291, 153, 153, 148, 149, 147, 109, 505, 120-B--Anti-Terrorism Act, (XXVII of 1997), S. 7--Jinnah house attack--Arrest of accused persons--Identification parade was conducted--No denial of identification parade--Evidentiary value--Writ of state was challenged--Arrest of accused and identification parade was challenged--Alternate remedies--Neither proceedings of test identification parade are placed before High Court to ascertain their veracity nor it is denied by counsels--The petitioner has alleged malafide against IO and police in general terms which will not be sufficient as it has to be specifically pleaded against government officials-- A person alleging malafide against government should not be allowed a roving enquiry into files of government for fishing out some kind of a case--Unfortunate occurrence of 9th of May, 2023 has not only challenged civil judicial system of Pakistan but has also exposed level of intolerance and dangerous fanatic condition of a charged mob psychology-- Not only writ of State was challenged but also State was directly targeted--Police promptly reacted and registered FIR, whereafter investigation was started and whosoever was found involved was supposedly identified in accordance with law and their arrest should have been regularized keeping in view mandates of law--There are certain alternate remedies available to petitioners which they may resort to--High Court does not find any reason to declare arrest and detention of detenues as illegal and to allow these petitions--Petitions were dismissed.

[Pp. 116, 118 & 119] A, E, F, G, H, I & J

PLD 1974 SC 151, 1996 PCr.LJ 1455 and 2019 SCMR 2033 ref.

Constitution of Pakistan, 1973--

----Art. 199--Object and scope of--Object and scope of Article 199 of Constitution 1973 is enforcement of a right and not establishment of a right, such right must not only be cleared and complete simplicitor but there must be an actual infringement of such right--A writ jurisdiction cannot be expanded on solitary resolution or treatment for un-doing wrong doing, anguishes, or suffering of a party, regardless of having an equally efficacious, alternate and adequate remedy provided under law which cannot be bypassed to attract writ jurisdiction. [P. 118] B

2023 SCMR 316 ref.

Constitution of Pakistan, 1973--

----Art. 199--Powers of High Court--Powers of High Court under Article 199 are different than apex Court of Country under Article 187, while exercising them parameters of jurisdiction must be kept in mind according to which only powers conferred by Constitution have to be exercised subject to constitution only where there is no adequate remedy is available--On application of an aggrieved person High Court can direct that a person in custody be brought before to satisfy Court that person was not held in custody without lawful authority or in an unlawful manner and can pass order to enforce fundamental right. [P. 118] C

PLD 2014 SC 1 ref.

Maxim--

----Ubi jus ibi remedium--The famous maxim ubi jus ibi remedium; when there is a right there is a remedy, is recognized in command of jurisdictive procedure and Courts show restraint directing parties to first take recourse to an alternative and equally efficacious mechanism and framework of remedy provided rather than to take departure in order to surpass or circumvent such remedy. [P. 118] D

2022 SCMR 25.

Kh. Adnan Ahmed, Advocate for Petitioner (in W.P. No. 37087 of 2023).

Mr. Sameer Khosa, Advocate for Petitioner (in W.P. No. 36750 of 2023).

Mr. Iftikhar Ullah Dhillon, Advocate for Petitioner (in W.P. No. 36897 of 2023).

Mr. Safdar Abbas Khan, Advocate for Petitioner (in W.P. No. 36923 of 2023).

Ch. Ghulam Sarwar Nehang, Addl. A.G. Sittar Sahil, Falaksher Bakhsh Gill, Idrees Bhatti and M. Farrukh Khan, AAGs.

Date of hearing: 26.6.2023.

Order

This order shall dispose of the instant writ petition as well W.P. No. 36750 of 2023 titled “Jahanzeb Amin etc versus Province of Punjab etc” W.P. No. 36897 of 2023 titled “Ahsan Malik versus Govt. of Punjab etc”, and W.P. No. 36923 of 2023 titled “Rizwan Zia Khan versus The State etc” as common questions of law and facts have been raised therein.

1. Through these Constitutional petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners have challenged the continued illegal custody/detention of the detenue/wife of the petitioner (in W.P. No. 37087 of 2023) namely, Huma Saeed, as well as wife of the petitioner (in W.P. No. 36750 of 2023) namely, Khadia Shah, with Respondent No. 4/Superintendent Central Jail, Kot Lakhpat, Lahore seeking further direction to produce them before this Court and then set them at liberty. In W.P. No. 36897 of 2023 the detenue namely, Zubair Malik and brother of the petitioner in W.P. No. 36897 of 2023 namely, Rizwan Zia Khan, are also sought to be released and set at liberty. It was further prayed that order dated 31.05.2023 passed by Judge Anti-Terrorism Court-III, Lahore whereby it gave the judicial remands be declared as illegal, without lawful authority, Coram non judice in the eyes of law and of no legal effect having been passed in blatant disregard of the judgements reported as The State versus Nasir Javed Rana, Civil Judge, Ist Class/Magistrate Section 30, Rawalpindi (PLD 2005 Supreme Court 86) Asma Khatoon versus Syed Shabbir Hussain Shah, A.C.M. & F.C.M. COURT-IV Karachi West and 2 others (PLD 1996 Karachi 51) and Senator Asif Ali Zardari versus The State (2000 MLC 921). It is still further prayed that the test identification parade conducted on 01.06.2023 is sham, bogus, fraudulent in nature and, therefore, be declared void ab-initio, inoperative, inalienable to the fundamental rights of the detenues. He also prayed for setting aside of the order dated 03.06.2023 passed by Respondent No. 7/Administrative Judge, Anti-Terrorism Court, Lahore whereby the physical remand of the detenue for 5 days was granted as well as the order dated 08.06.2023 whereby further physical remand was given for photogrammetric tests and recovery of mobile phones.

2. Brief facts giving rise to the filing of the present Writ Petitions are that the detenues (mentioned therein) were arrested from their houses on 23.05.2023 in connection with FIR No. 96 dated 10.05.2023 registered at Police Station Sarwar Road, Lahore at the instance of Respondent No. 6/Muhammad Ishfaq Rana, Deputy Superintendent of Police, North on the allegation, inter alia, of rioting, chanting anti- State slogans, staging violent protests by the political activist/supporters of Pakistan Tehreek-e-Insaf (PTI) on 09.05.2023 and marching towards and converged at Jinnah House located in Cantt, Lahore from different directions whereafter it was ransacked and burnt. The case of the petitioners are that the detenues are innocent as they all hold the State institutions of Islamic Republic of Pakistan in highest esteem and could not possibly think of indulging in any anti-State activities or participation in any violent protest etc.

3. The case of the petitioner (in W.P. No. 37087 of 2023) is that since detenue namely, Mrs. Huma Saeed, resides almost at a stone’s throw distance from the alleged place of occurrence she, on watching the live coverage on electronic media televised on different channels, went near the place of occurrence out of sheer curiosity and noticed that different roads leading towards the said venue were swarmed by the host of people marching by foot as well as on vehicles. She just stood empty-handed at the pavement of the road opposite to Jinnah House for a while as a bystander/spectator but when she preempted the law and order situation started getting worst, she immediately left for her home much before the sun set whereafter riots erupted in and around the vicinity of the said venue in Cantt.

4. According to all the petitioners, their detenues were neither political activists nor had affiliation with any political party, therefore, their mere presence alongside the pavement on the stated places does not bring home guilt against them in the absence of any pre-consulted or joint criminality of intention with the alleged participators which proves the absence of Corpus Delicti for want of positive evidence to connect them with the occurrence. The trumped-up identification parade would not be of any evidentiary value as the detenues could not be saddled with any vicarious liability in the absence of any positive evidence.

5. On factual premise, the detenues were produced before the Judge ATC-I, Lahore on 24.05.2023 by Respondent No. 7/ Investigating Officer through an application requesting for the grant of judicial remand for identification parade whereafter 6 days judicial remand was given with a view to conduct the test identification parade and to produce her before the Court on 30.06.2023. When the test identification parade was not conducted until 30.05.2023, it is the case of the petitioners, their further detention in the jail was in violation of their fundamental rights under Articles 4, 9 and 10-A guaranteed under the Constitution. On 30.05.2023, Respondent No. 7 hampered the Court proceedings and requested the extension of time to comply with the said order but did not produce the detenue before the Court. On 31.05.2023, sub-ordinate of Respondent No. 4/ Superintendent Kot Lakhpat Jail, Lahore through an application/warrant paper dated 30.05.2023 did attend the Court of Respondent No. 8 to seek extension of judicial remand. However, associate of the learned counsel for the petitioner (W.P. No. 37087 of 2023) namely, Raees Ahmed, Advocate present inside the Court room saw police official carrying with him the application/ warrant who took the photograph of the warrants form at 09:33 a.m. which revealed the pasting/affixing of the photograph of the detenue (Huma Saeed) on the left top corner. Likewise, on 02.06.2023 he again took the photograph of the warrant from mobile phone at 08:46 a.m. which also revealed her photographs. This affidavit, according to learned counsel, fulfills the requirement of Article 46-A and 164 Qanun-e-Shahadat Order, 1984. According to the petitioners on 02.06.2023 the detenues were not produced and on 03.06.2023 they were brought in the Court premises at 08:30 a.m. and shifted them to the lock up situated inside the Court premises and when they remained confined till 03:15 p.m. the detenues were produced before the Administrative Judge, ATC and then again after marking their presence they were bungled into the prison. An application was made for the physical remand of the detenue to conduct photogrammetric and audio-sonic test besides the recovery of mobile phone from their possession. According to the learned counsels, under Rule 25.56 of the Police Rules, 1934 the application was to be moved by the Investigating Officer and it is reliably learnt that mobile phone of the detenues had already been taken by the I.O. As there was no need for the physical remand, therefore, it was resisted but was unlawfully granted. It is the case of the petitioner that in the absence of any supplementary statement the remand could not be granted. According to the learned counsel, the said identification parade is void ab-initio.

6. Learned counsel for the petitioners argued that neither the names of the detenues were mentioned in the said FIR nor any descriptions of their person were disclosed with particular reference to the features; no overt act was attributed to them; illegal detention of the detenues is in violation of Articles 9, 10-A and 14 of the Constitution; one Naveed posted at Police Station Millat Park, took the detenues from their houses on the pretext of some incriminating material which was not brought before the Court, hence prays for the relief claimed for.

7. Conversely, the learned law officer contends that the occurrence is un- precedented in the history yet all the legal rights of the accused persons have been duly protected despite their hateful acts committed against the public properties having sentiment symbolic values. The physical remands were obtained when required under the law. The non-production of the detenues on 30.05.2023 was beyond the control of I.O. since he had presented the file before this Court and to produce them simultaneously was not humanly possible and that no prejudice has been caused to the detenues. Even then they were produced before the trial Court as required under Section 344, Cr.P.C. and that the I.O. was not lethargic in performing his legal duties. Adds that the superior Courts have time and again observed that Courts should not interfere in the investigation. It is also submitted that judicial remand can be granted for maximum period of 15 days and so the case with physical remand by the Anti-Terrorism Court. According to him, the test identification parade has been conducted for the accused persons which is corroborative piece of evidence and not a substantial/conclusive evidence. Maximum safeguards have been privded to conceal the identity of the detenues. According to him, as per the practice, in 95% cases the allegation to disclose the identity is always levelled but their veracity is determined at the relevant time. The fair trial shall be ensured to the accused person. Places reliance upon Dossani Travels (Pvt.) Ltd and others versus Messrs Travel Shop (Pvt) Ltd. and others (PLD 2014 Supreme Court 1) Sana Jamali versus Mujeeb Qamar and another (2023 SCMR 316) and Government of The Punjab through Secretary, Schools Education Department, Lahore and others versus Abdur Rehman and others (2022 SCMR 25).

8. It is notable that when initially Writ Petition No. 37087 of 2023 was filed on 31.05.2023 the prayer was only to the extent of challenging the illegal detention and setting the detenues at liberty but later vide application bearing C.M. No. 1 of 2023 under Order 6 Rule 17, CPC was allowed and amended memo. of writ petition was placed on record. Likewise, in Writ Petition No. 36887 of 2023 similar applications were allowed.

9. It is further noteworthy that Huma Saeed and Zubair Malik, have been granted bail for sure and the other detenues namely, Khadija Shah and Rizwan Zia Khan, are statedly behind the bars.

10. Arguments heard. Record perused.

11. After hearing the learned counsels for the parties, the learned law officers and perusing the record, it is straightway observed that FIR No. 96 of 2023 dated 10.05.2023 under Sections 302, 324, 395, 436, 452, 440, 427, 353, 186, 290, 291, 153, 152, 148, 149, 147, 109, 505, 120-B, PPC read with Section 7 of Anti-Terrorism Act, 1997 was registered at Police Station Sarwar Road, Lahore on the allegation that on 09.05.2023 at 05:00 p.m. information was passed on through the police that 1400 to 1500 workers of PTI armed with weapons, dandas, sotas, bricks, petrol bombs included Mian Mahmood-ur-Rasheed and Mian Aslam Iqbal, both armed with fire arm weapon were leading the mob. They moved from Upper Mall Road through Rahat Bakery towards Jinnah House and started destroying the public property, creating terrorism, vandalism and resorted to firing and the mob was raising slogans

یہ جو دہشت گردی ہے اس کے پیچھے وردی ہے۔ عمران خان کو رہا کرو

They extended threats that their leadership namely, Imran Khan, Shah Mahmood Qureshi, Farrukh Habib, Hamad Azhar, Musarrat Jamshed Cheema, Jamshed Cheema, Zubair Niazi, Akhtar Zaman, Murad Saeed, Ali Amin Gandapur and others have ordered them to make a horrible example of the Military installations and the government buildings. They are directed to desist from their illegal design but they ignored and attacked upon the police officers with their respective weapons and injured many of them. According to the police, they all were identified by the police in the light. The injured police officials were sent to the hospital and meanwhile, 400/500 persons had broken the door of Jinnah House and forcibly entered there and started torturing the employees present therein. Meanwhile, the fire of Mian Mahmood-ur- Rasheed had hit Abdul Qadeer and the fire of Mian Aslam Iqbal, hit another person namely, Muhammad Abdullah Wazir, who died. The charged people had removed the equipments, furniture and other expensive items from Jinnah House and then set them on fire which valued about Rs. 1,50,00,000/-, hence this FIR.

12. On 23.05.2023, the above said detenues were arrested and on 29.05.2023 were produced before the Administrative Judge, ATC Lahore. On the request of the Investigating Officer Khadija Shah and Huma Saeed, in custody of the police/muffled faces were sent for the judicial remand for 6 days to conduct their test identification parade. The I.O. was directed to keep their faces muffled when exposed to the public. He was further directed to file an application to fix a date for identification parade. On 30.05.2023 the said detenues could not be produced before the ATC Court and a rapt in this behalf was written. On 31.05.2023 the remand paper was placed before the duty/ Administrative Judge, ATC, Lahore since Ms. Abher Gul Khan, Administrative Judge ATC, Lahore was on leave. The I.O. stated that the accused persons could not be produced before the ATC Court due to the fact that identification parade is in progress in jail premises and record of the case is also with I.O. present inside the jail premises. The learned counsel for 125 suspects argued about illegal custody of their clients. They also stated that a writ petition No. 35551 of 2023 titled “Arshad Virk versus Inspector General of Police etc” had been filed and that the record has been produced before this Court. The learned Court, therefore, had given no comments about their non-production on 30.05.2023 before the Court. It was, however, observed that since the suspects were behind the bars, therefore, Investigating Officer as well as the Area Magistrate were required to expedite the proceedings of test identification parade. The accused, therefore, were directed to present them before the Anti-Terrorism Court on 02.06.2023.

1. Meanwhile, the present Writ Petition was filed on 01.06.2023 and it was directed to be enlisted for 05.06.2023 on which Writ Petition No. 36923 of 2023 titled Rizwan Zia Khan versus The State etc was also filed.

2. The learned counsels for the petitioners have greatly emphasized on conducting of test identification parade and also on non-production of the accused on 30.05.2023 before the Anti-Terrorism Court. It is notable that neither the proceedings of test identification parade are placed before this Court to ascertain their veracity nor it is denied by the learned counsels that on 30.05.2023 Writ Petition No. 35551 of 2023 titled Arshad Virk versus Inspector General of Police etc has been pending before this Court in which the order was passed to the following effect:

“30.05.2023 Mr. Ali Imran Rao, Advocate for the petitioner.

M/s. Ghulam Sarwar Nehang, Addl. Advocate General, Muhammad Akram Khaksar, Assistant Advocate General and Sittar Sahil, Assistant Advocate General.

In view of the fact that the alleged detenue has been arrested in case/F.I.R. No. 96 dated 10.05.2023, under Sections 302/34/395/436/452/440/505/109/147/148/149/152/153/290/291/ 186/353/427, PPC and 7 of ATA, 1997, Police Station Sarwar road, learned counsel for the petitioner in order to avail alternate remedy does not press this petition, however reserved the right of agitating the excess/high handedness made by the respondents.

1. Disposed of accordingly.”

The legal requirement regarding test identification parade has been greatly focused by the learned counsels and they have relied upon Fazal Elahi versus The Crown (PLD 1953 FC 35), Ibrahim Bhak versus The State (PLD 1955 FC 113), Muhammad Bashir Alam versus The State (PLD 1958 Supreme Court 1), Lal Pasand versus The State (PLD 1981 Supreme Court 142), Muhammad Afzal versus The State (1982 SCMR 129), Ghulam Rasul versus The State (1998 SCMR 557), Shafqat Mehmood versus The State (2011 SCMR 537), Sabir Ali alias Fauji versus The State(PLD 2011 Supreme Court 401), Javed Khan alias Bacha versus The State (2017 SCMR 524), (PLD 2019 Supreme Court 488), Mian Sohail Ahmed versus The State (2019 SCMR 956), Muhammad Yaqoob versus The State (1989 P.Cr.L.J. 2227), Kirir versus The State (PLD 1996 Karachi 246), Shafique Ahmed versus The State (2002 P.Cr.L.J. 518), Wahid Iqbal versus The State (2003 P.Cr.L.J. 1928) Muhammad Imran versus The State (2009 P.Cr.L.J., 997), Mansoor Ahmad alias Shahzad alias Sheeri versus The State (2012 YLR 2481), Ameer Bux versus The State (2012 P.Cr.L.J. 500), Nadeem versus The State (PLD 2021 Lahore 415), Fidaullah versus The State (2016 P.Cr.L.J. 1584), and Adnan versus The State (2018 MLD 43) which relate to the conduct of test identification parade and its evidentiary value. The other set of referred judgments are in respect of involvement of the mobs and selection of the accused person which are not relevant at this stage when the investigations are underway. Reliance has been placed upon Fazal Elahi versus The Crown (PLD 1953 FC 35), Muhammad Altaf versus The State (2002 SCMR 189) and Ramachandran versus The States of Kerala (2012 SCMR 1152) which authorities are relevant for the test identification parade of the accused person. At this point of time, when the arrest and detention of the detenues has been challenged, the only relevant argument might be the non-appearance of the accused persons on 30.05.2023 before the Administrative Judge, ATC Lahore which according to the learned counsel for the petitioner would make the entire edifice of arrest illegal and will crumble to the ground. However, it is not denied that on the said date a writ petition was pending before this Court and a rapt was already prepared to this effect and, therefore, the remand paper had to be presented without the accused persons.

1. Undoubtedly, the object and scope of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is the enforcement of a right and not establishment of a right, therefore, such right must not only be cleared and complete simplicitor but there must be an actual infringement of such right. A writ jurisdiction cannot be expanded on the solitary resolution or treatment for un-doing the wrong doing, anguishes, or suffering of a party, regardless of having an equally efficacious, alternate and adequate remedy provided under the law which cannot be bypassed to attract the writ jurisdiction. Reliance is placed upon Sana Jamali versus Mujeeb Qamar and another (2023 SCMR 316). Powers of this Court under Article 199 are different than the apex Court of the Country under Article 187, therefore, while exercising them the parameters of jurisdiction must be kept in mind according to which only the powers conferred by the Constitution have to be exercised subject to the constitution only where there is no adequate remedy is available. However, on the application of an aggrieved person this Court can direct that a person in custody be brought before to satisfy the Court that the person was not held in custody without lawful authority or in an unlawful manner and can pass the order to enforce the fundamental right under Chapter I Part II, as interpreted by the Supreme Court of Pakistan in case titled Dossani Travels (Pvt.) Ltd. and others versus Messrs Travel Shop (Pvt) Ltd. and others reported as (PLD 2014 Supreme Court 1). The famous maxim ubi jus ibi remedium; when there is a right there is a remedy, is recognized in the command of jurisdictive procedure and the Courts show restraint directing the parties to first take recourse to an alternative and equally efficacious mechanism and framework of remedy provided rather than to take departure in order to surpass or circumvent such remedy. Reliance is placed upon Government of The Punjab through Secretary, Schools Education Department, Lahore and others versus Abdur Rehman and others (2022 SCMR 25). The petitioner has alleged malafide against the Investigating Officer and the police in general terms which will not be sufficient as it has to be specifically pleaded against the government officials. However, it is most difficult to prove and the onus is always upon the person alleging as there is a presumption of regularity in all official acts and until that is rebutted, the action cannot be challenged. Specific pleadings must be made with reference to particular malafide, which is not interchangeable with any other kind of malafide. A person alleging malafide against the government should not be allowed a roving enquiry into the files of the government for fishing out some kind of a case. Reliance is placed upon The Federation of Pakistan Through The Secretary, Establishment Division, Government of Pakistan Rawalpindi versus Saeed Ahmad Khan and Others (PLD 1974 SUPREME COURT 151). Under the concept of separation of powers, the investigation of a criminal case falls in the domain of the police. If independence of judiciary was a hallmark of a democratic dispensation then on the other hand independence of the investigation agency was equally important to the concept of rule of law. Undue interference in each other’s role destroyed the concept of separation of powers and will go towards the defeating of jurisdiction. Reliance is placed upon Muhammad Hanif versus The State (2019 SCMR 2033). An illegal detention, if it was, is regularized where the cognizance has already been taken by the Magistrate whereafter he has passed the remand order in the absence of the detenues, but subsequently passed the order in their presence. The detention cannot be regarded as illegal. Reliance is placed upon Safia Bibi versus The Superintendent of Camp/Central Jail, Lahore and another (1996 P.Cr.L.J. 1455).

2. Last but not least is the fact that the unfortunate occurrence of 9th of May, 2023 has not only challenged the civil judicial system of Pakistan but has also exposed the level of intolerance and dangerous fanatic condition of a charged mob psychology. Until this incident, our country-men have never witnessed this type of ransacking of undisputed like the Jinnah House; a symbol of Unity, Faith and Discipline. The wrath of people was aimed at the leadership both civilian and Military but what happened on the said fateful day is unexplainable. Not only the writ of State was challenged but also the State was directly targeted. After all, the State has to protect itself and also its subject individual and to protect them the system of administration of justice, Alhamd-o-Lillah, is very much in place. It is with this background, that the police promptly reacted and registered the above said FIR, whereafter the investigation was started and whosoever was found involved was supposedly identified in accordance with law and their arrest should have been regularized keeping in view the mandates of law. Of course, the accused persons have valuable legal rights which are to be protected by the Courts and this Court has no doubt that our legal system is capable not only of protecting them but also uphold the rule of law in the society through our efficient judicial system. Normal recourse to the law will be the best advised strategy for the petitioners. Bypassing the whole procedure and methodology will not help the petitioners. There are certain alternate remedies available to the petitioners which they may resort to. At this stage, this Court does not find any reason to declare

the arrest and detention of the detenues as illegal and to allow these petitions.

1. For the above stated reasons, these writ petitions have been found meritless and are, therefore, dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 120 [Rawalpindi Bench, Rawalpindi]

Present: Ch. Abdul Aziz, J./A.T.

IMRAN AHMED KHAN NIAZI--Appellant

versus

RETURNING OFFICER etc.--Respondents

E.A. No. 151 of 2024, decided on 10.1.2024.

Election Act, 2017 (XXXIII of 2017)--

----S. 62--Constitution of Pakistan, 1973, Art. 63(1)(h)--Rejection of nomination papers--Conviction and sentence--Disqualification--Charge of corrupt practice--Jurisdiction--Moral turpitude--Challenge to--The judgment of conviction was passed by a Court beyond territorial and legal limits of this Tribunal, act of expounding upon legality of such decision amounts to expanding jurisdiction--Definition of a moral turpitude is to be assessed in reference to moral fibers appellant had to demonstrate according to office of Prime Minister which he held--Finding of conviction given against appellant is to be seen which admittedly is in field even at present--Notification of ECP disqualifying appellant for contesting election was challenged through W.P. which is still pending decision at Principal Seat of LHC--Returning Officer was legally competent to examine candidature of appellant while subjecting his nomination papers to scrutiny on touchstone of Section 62 of Elections Act, 2017--Appeal dismissed.

[Pp. 124,127 & 129] A, F, G, H & I

Montangue (1897) LRICD 1897 and PLD 2017 SC 265 ref.

Constitution of Pakistan, 1973--

----Art. 63(1)(h)--Conviction--It explicitly implies from Article 63(1)(h) that conviction in an offence of moral turpitude with sentence of not less than two years disqualifies a person from being elected as a member of parliament and even to remain as such. [P. 124] B

Moral turpitude--

----As per well-embedded rule of interpretation, dictionary meanings of expression “moral turpitude” are to be borrowed. [P. 125] C

PLD 2016 SC 534 ref.

Words and Phrases--

----According to Ramantha Aiyer’s Law Lexicon, expression “moral turpitude” is defined in following manner:

“anything done contrary to justice, honesty, principle or good morals; an act of baseness, vileness or depravity in private and social duties which a man owes to his fellow men, or to society in general, contrary to accepted and customary rule or right and duty between man and man”. [P. 125] D

Moral Turpitude--

----In Law Lexicon with Legal Maxims, revised by Justice M.C. Desai, Ex-Chief Justice, Allahabad High Court, moral turpitude was defined to following effect:

The examination of above-mentioned definitions and meaning of expression “moral turpitude” lead us to a conclusion that action of a person would fall under ambit of “moral turpitude” if his action injures, his moral fibers, lowers him down in moral values, it involves an act of inherent baseness in private, social or public duties which one owes to his fellow man, to his society, to his country, his institutions and his Government.

[P. 125] E

1987 SCMR 468 and 2023 SCMR 803 ref.

Conviction--

----The conviction means a guilty verdict pronounced by Court in reference to delinquency attributed to accused, whereas sentence denotes quantum of punishment. [P. 130] J

PLD 1990 SC 823 and 2019 SCMR 382 ref.

M/s. Barrister Ali Zafar, Mian Arshad Ali Mahar, Rai Muhammad Ali, Barrister Usman Niazi, Malik Jawad Baig, Dilpazeer Butt, Malik Tariq Noon and Malik Jawad Asghar, Advocates for Appellant.

Mr. Tayyab Bilal Pakhral, Assistant Attorney General for Pakistan with Muhammad Kafatullah RO-87 for On Court’s call.

Muhammad Arshad D.G (Law) ECP, Khurram Shahzaed ADG (Law) ECP, Zulqarnain Haider, Assistant Director (Legal), Zaigham Anees Assistant Director (Law) ECP and Falak Sher Khokhar Legal Consultant ECP.

Date of hearing: 7.1.2024.

Judgment

Through the instant election appeal, Imran Ahmed Khan Niazi (appellant) called in question the legality of order dated 30.12.2023 passed by the Returning Officer of the constituency NA-89, Mianwali-I whereby his nomination papers were rejected.

1. The brief facts which gave rise to the filing of instant election appeal can be summarized to the effect that in accordance with the schedule announced by the Election Commission of Pakistan, Imran Ahmed Khan Niazi (appellant) filed his nomination papers for contesting election of National Assembly from NA-89, Mianwali-I; that during the scrutiny process carried out under Section 62 of the Elections Act, 2017, the nomination papers of the appellant were rejected by the Returning Officer through his order dated 30.12.2023 which is referred hereinafter as the Impugned Order.

2. It is contended by learned counsel for the appellant that the Impugned Order is factually incorrect and contrary to the law on the subject; that though the appellant was handed down guilty verdict in a case but the accusations against him do not give rise to an offence of moral turpitude; that the appellant was charged under Section 167 of the Elections Act, 2017 which is an offence of Corrupt Practice, having not even a distinct nexus with moral turpitude; that even otherwise the judgment of conviction passed against the appellant is factually and legally incorrect; that the Returning Officer while passing the Impugned Order got unduly influenced from notification No. F.17(4)/2023.Coord dated 08.08.2023 issued by the Election Commission of Pakistan whereby the appellant was disqualified to become a member of Parliament for the period of five years; that according to scheme of the Elections Act, 2017 no power vests in the Election Commission of Pakistan for issuance of such notification; that it is evident from Section 232 of the Elections Act, 2017 that no mechanism is provided for disqualifying a person under Article 63 of the Constitution of Islamic Republic of Pakistan, 1973 for contesting election of the parliament; that even otherwise, this was not within the domain of Returning Officer to pass an order against the appellant for rejection of nomination papers by holding him disqualified under Article 63(1)(h) of the Constitution; that the conviction so awarded to the appellant cannot be used as an impediment for contesting election as it has been suspended by the Islamabad High Court through order dated 28.08.2023; that the suspension of sentence of the appellant is a fact sufficient enough to hold that the conviction of appellant is not in field and that since the Impugned Order is patently illegal and factually incorrect, thus is to be set-aside. In support of his submission, learned counsel placed reliance upon Imtiaz Hussain Phulpoto v. Returning Officer and others (1987 SCMR 468), Saeed Ahmad Khan v. Government of N.W.F.P and 4 others (PLD 1989 Peshawar 112), Khawaja Muhammad Asif v. Muhammad Usman Dar and others (2018 SCMR 2128) and Nasir Mehmood and another v. Umer Sajid (2019 SCMR 382).

3. On the other hand, Muhammad Arshad Director General (Law) ECP assisted by the team of law officers vociferously urged for the dismissal of the appeal on the grounds that the appellant stands convicted with imprisonment of three years under Section 167 of the Elections Act, 2017 under the charge of Corrupt Practice; that from the allegations and conviction it implies that appellant was found guilty of a misdeed coming within the definition of moral turpitude; that the Returning Officer rightly held the appellant disqualified from contesting election under Article 63(1)(h) of the Constitution; that this is the incumbent duty of the Returning Officer under Section 62(9) of the Elections Act, 2017 to ensure that the candidate is qualified or disqualified to contest election and whether his nomination papers are submitted while adhering to the provisions of Sections 60 & 61; that admittedly the sentence of the appellant was suspended by Islamabad High Court but his conviction is still intact; that Election Commission of Pakistan was legally competent to issue the notification against the appellant for his disqualification to become member of parliament and that since the Impugned Order suffers from no perversity, thus the appeal in hand merits dismissal.

4. Arguments heard. Record perused.

5. It is discernable from record that Imran Ahmed Khan Niazi (appellant) in an urge to contest election of National Assembly, submitted his nomination papers from the constituency NA-89 Mianwali-I. The nomination papers of Imran Ahmed Khan Niazi (appellant) met the fate of rejection through the Impugned Order passed by the Returning Officer during the process of scrutiny carried out in terms of Section 62 of the Elections Act, 2017. The order of Rejection of the nomination papers is mainly structured upon the ground that since the appellant stands convicted in a case with sentence of three years, thus is disqualified under Article 63(1)(h) of the Constitution for becoming a member of parliament.

6. The appellant admittedly was handed down guilty verdict by Additional Sessions Judge, Islamabad upon a reference placed before him by the District Election Commissioner, Islamabad under Section 190 of the Elections Act, 2017 after having been indicted for the offence of Corrupt Practice under Section 167 of the same Act. Though the learned counsel for the appellant during arguments enrouted through the judgment of conviction passed against the appellant and canvassed that it is legally and factually incorrect but being cognizant of jurisdictional limitation, it will be a fallacious approach for this Tribunal to comment upon the merits of that case while exercising altogether a different legal and territorial jurisdiction. This Tribunal is created under Section 63(1) of the Elections Act, 2017 having powers limited only to examine the legality of orders passed by the Returning Officers under Section 62. The term “jurisdiction”, stands for the legal authority vested in a Court or forum to decide the controversy placed before it and is to be exercised within the legal sphere, in accordance with some express provision of law. Section 63 of the Elections Act, 2017 places a clog upon this Tribunal to decide only the legality of the finding given by the Returning Officer regarding the rejection or acceptance of nomination papers. The judgment of conviction was passed by a Court beyond the territorial and legal limits of this Tribunal, thus the act of expounding upon the legality of such decision amounts to expanding the jurisdiction. The concept of jurisdiction was best defined by Kekewich J. in re Montagu (1897) LR 1 CD 1897 in the following manner:

“It is part of my duty to expand the jurisdiction of the Court. It is no part of my duty to expand it.”

1. In the wake of facts mentioned above, firstly I deem it appropriate to have a look upon Article 63(1)(h) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) which for convenience sake is referred hereunder:

“63.(1) A person shall be disqualified from being elected or chosen as, and from being, a member of Majlis-e-Shoora (Parliament) if-

(h) he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release.”

It explicitly implies from Article 63(1)(h) that conviction in an offence of moral turpitude with sentence of not less than two years disqualifies a person from being elected as a member of parliament and even to remain as such. A person, even if elected as a member of Parliament can subsequently be de-seated on account of the disqualification mentioned in Article 63(1)(h). The expression “moral turpitude” used in Article 63(1)(h) of the Constitution is of vital importance for examining the grievance of Imran Ahmed Khan Niazi (appellant) voiced through the instant election appeal. It is evident from the examination of judicial archives that the expression “moral turpitude” always remained a problematic question due to its legal definition and the case in hand is of no exception. The expression “moral turpitude” is neither defined in Section 2 of the Elections Act, 2017 nor in the definition clause of the Election Rules, 2017. In the given circumstances, as per well-embedded rule of interpretation, the dictionary meanings of the expression “moral turpitude” are to be borrowed. While holding so, the wisdom is derived from the case reported as Chairman, Pakistan Railway, Government of Pakistan, Islamabad and others v. Shah Jahan Shah (PLD 2016 Supreme Court 534), the relevant portion of which is as under:-

“When a word has not been defined in the statute, the ordinary dictionary was to be looked at.”

Accordingly, different dictionaries are consulted to extract the meanings of moral turpitude. According to Ramantha Aiyer’s Law Lexicon, the expression “moral turpitude” is defined in the following manner:

“anything done contrary to justice, honesty, principle or good morals; an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule or right and duty between man and man”

In Law Lexicon with Legal Maxims, revised by Justice M.C. Desai, Ex-Chief Justice, Allahabad High Court, moral turpitude was defined to the following effect:

“The examination of above-mentioned definitions and meaning of expression “moral turpitude” lead us to a conclusion that the action of a person would fall under the ambit of “moral turpitude” if his action injures, his moral fibers, lowers him down in moral values, it involves an act of inherent baseness in private, social or public duties which one owes to his fellow man, to his society, to his country, his institutions and his Government.”

The Supreme Court of Pakistan in the case of Imtiaz Hussain Phulpoto v. Returning Officer, P.S.26-A Khairpur-I/S.D.M, Khairpur and others (1987 SCMR 468) approved the definition of expression “moral turpitude” given by an Election Tribunal with the following observation:

“The learned Tribunal after making reference to the meaning and connotation of the expression ‘moral turpitude’ as contained in some authoritative work and in some decided cases came to the following conclusion:-

“The principles emerge appear to be that the question whether a certain offence involves moral turpitude or not will necessarily depend on the circumstances in which the offence is committed. It is not every punishment that can be considered to be an offence involving moral turpitude had that been so, the qualification ‘involving moral turpitude’ would not have been used by the Legislature and it would have disqualified every person who had been convicted of any offence. The test which should ordinarily be applied for judging whether a certain offence does or does not involve moral turpitude appeal to be:

(1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general;

(2) Whether the motive which led to the act was base one; and

(3) Whether on account of the act having been committed perpetrator could be considered to be a depraved character or a person who was to be looked down by the society.”

Although the afore-reproduced categorization may not be exhaustive in so far as it goes by and large there is nothing about it.”

In a recent case reported as Divisional Superintendent, Postal Services, D.G. Khan v. Nadeem Raza and another (2023 SCMR 803), the Supreme Court of Pakistan discussed the expression “moral turpitude” and observed to the following effect:

“Moral turpitude was defined in Imtiaz Ahmad as “the act of baseness, vileness or depravity in private and social duties which man owes to his fellow man, or to society in general contrary to accepted and customary rules of right and duty between man and man.” In Ghulam Hussain, it was held that moral turpitude includes anything which is done contrary to the goods principles of morality, any act which runs contrary to justice, honesty, good moral values or established judicial norms of a society.”

In the above backdrop, it can well be concluded that in reference to the particular facts of the case, the definition of a moral turpitude is to be assessed in reference to the moral fibers appellant had to demonstrate according to the office of Prime Minister which he held. Likewise, the delinquency attributed to the appellant culminating in the judgment of conviction is to be adjudged in reference to the prospect of lowering his status and the office of Prime Minister. The applicability of moral turpitude is to be gauged in accordance with morals an ordinary citizen is required to demonstrate, besides in consonance with legal requirement pertaining to a parliamentarian and in particular to a Prime Minister for declaration of his assets. For the afore-mentioned purpose, the finding of conviction given against the appellant is to be seen which admittedly is in field even at present. For that matter, I feel pressing need to reproduce hereunder Para No. 36 of the judgment dated 05.08.2023 passed by the Additional Sessions Judge, Islamabad which became root cause of his disqualification:

“All these factors when considered in juxtaposition establish beyond any doubt that failure of accused to disclose these assets in relevant Forms-B, which forms were executed by the accused on solemn affirmation, were based upon mala fide intents and intentional dishonesty on his part. Thus, the accused being dishonest and deceitful, made false declarations in his Forms-B for the financial years 2018-2019, 2019-2020 and 2020-2021, and thereby committed the offence of Corrupt Practice under Section 167(a) read with Section 173 of the Elections Act, 2017.”

The use of words “dishonesty” and “deceitful” in the judgment dated 05.08.2023 has inexorably brought the conviction of Imran Ahmed Khan Niazi (appellant) within the ambit of moral turpitude, attracting the mischief of Article 63(1)(h) of the Constitution. I have also scanned the case law upon which the learned counsel for the appellant placed reliance. In Imtaiz Hussain Phulpoto’s case, conviction was awarded for public disorder, whereas in Saeed Ahmed Khan’s case, the indictment was made for the recovery of a proscribed Russian book and written substance in support of communism. Likewise, in Khawaja Muhammad Asif’s case and Nasir Mehmood’s case the allegation was of concealment of assets.

1. So far as, the Notification No. F.17(4)/2023.Coord, dated 08.08.2023 of ECP disqualifying the appellant for contesting election is concerned, it is informed that such notification was challenged through W.P. No. 332 of 2023 which is still pending decision at the Principal Seat of Lahore High Court. It will not be in fitness of things, in the given circumstances, to comment upon the legality of such notification as it can give rise to possible conflicting decisions. Even otherwise, this is not within the domain of the jurisdiction vested in this Tribunal to ponder upon the legality of the notification, since it established with limited scope mentioned in Section 63 of the Elections Act, 2017.

2. I have also given a considered thought to the argument of learned counsel for the appellant whereby he canvassed that the Returning Officer while passing the Impugned Order travelled beyond his powers while rejecting the nomination papers in accordance with Article 63(1)(h) of the Constitution. According to the legal scheme, an individual can be ousted from the electoral process by rejection of his nomination papers. Even a returned candidate can be de-seated through an election petition in accordance with Chapter-IX of the Elections Act, 2017, if his nomination papers are later found to be not in consonance with Section 60. The filing of a writ of quo warranto is another way out if subsequently it transpires that the returned candidate was not qualified to become a member of parliament. I am mindful of the fact that the appellant is ousted from the electoral process through rejection of his nomination papers, thus intend to remain confined only to this extent.

3. The nomination papers are filed under Section 60 of the Elections Act, 2017 and the detail of the documents required to be annexed therewith is mentioned in its subSection 2(a)(b)(c)(d). The declaration required to be filed under Section 60(2)(a) pertains to the qualifications and disqualifications of the candidate for being elected as member of the Parliament. These nomination papers are to be scrutinized by the Returning Officer and his powers of rejection are enumerated in Section 62(9) of the Elections Act, 2017 and the foregoing provision on account of its importance is referred hereunder:

“(9) Subject to this section the Returning Officer may, on either of his own motion or upon an objection, conduct a summary inquiry and may reject a nomination paper if he is satisfied that--

(a) The candidate is not qualified to be elected as a member;

(b) The proposer or seconder is not qualified to subscribe to the nomination paper;

(c) Any provision of Section 60 or Section 61 has not been complied with or the candidate has submitted a declaration or statement which is false or incorrect in any material particular.”

The combined perusal of Section 60(2)(a) and Section 62(9)(a)(c) leaves no room for discussion that on one hand, the candidate is required to execute a declaration that he is not disqualified under Article 63 of the Constitution to contest election and on other hand this is the incumbent responsibility of the Returning Officer to ensure that such aspirant suffers from no disqualification to participate in the election. If the argument that the Returning Officer has no domain to dilate upon the disqualification of a candidate under Article 63 of the Constitution is accepted then I am afraid the provisions of Sections 60(2)(a) and 62(9)(a)(c) of the Elections Act, 2017 will become redundant. The purpose of filing a declaration under Section 60(2)(a) of the Elections Act, 2017 is aimed at enabling the Returning Officer for giving a finding about the legal competency of a candidate to contest election. I have no scintilla of reluctance to hold that the Returning Officer was legally competent to examine the candidature of Imran Ahmed Khan Niazi (appellant) while subjecting his nomination papers to scrutiny on the touchstone of Section 62 of the Elections Act, 2017. The view so formed is amply supported from the observation of the Supreme Court of Pakistan given in para-20 of the case reported as Imran Ahmed Khan Niazi v. Mian Muhammad Nawaz Sharif (PLD 2017 Supreme Court 265) which for reference sake is being reproduced below:

“The next question emerging for the consideration of this Court is what are the fora provided by the Constitution and the law to deal with the questions emerging from Articles 62(1)(f) and 63(2) of the Constitution. To answer this question, we will have to fall back upon Articles 62 & 63 of the Constitution. A careful reading of the Articles would reveal that the one deals with the qualification of a person to be elected or chosen as a member of Parliament while the other deals with qualification of a person not only from being elected or chosen but also from being a member of Parliament. If a candidate is not qualified or is disqualified from being elected or chosen as a member of Parliament in terms of Articles 62 and 63 of the Constitution, his nomination could be rejected by the Returning Officer or any other forum functioning in the hierarchy.”

1. I have also dilated upon the argument of learned counsel for the appellant that after the suspension of sentence, the conviction of appellant cannot be treated to be in the field. Against the conviction, the appellant filed Criminal Appeal No. 273 of 2023 in Islamabad High Court which was accompanied by a petition for suspension of sentence numbered as C.M.No. 01/2023. For properly attending to the argument of learned counsel for the appellant, it appears to be in fitness of things to reproduce the prayer clause of the petition for suspension of sentence placed before Islamabad High Court:

“It is therefore, prayed most respectfully that pending final disposal of the Appeal, the sentence of the applicant may very kindly be suspended, and he be released on bail.”

The sentence of the appellant was suspended by a Division Bench of the Islamabad High Court vide order dated 28.08.2023 and its concluding para having pivotal importance is referred as under:

“For the above reasons, the instant application is allowed and the sentence awarded by the Trial Court vide judgment dated 05.08.2023 is suspended; consequently, the applicant is ordered to be released on bail in the instant matter subject to furnishing bail bonds in the sum of Rs.1000,000/- with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court.”

From the prayer clause of the petition moved under Section 426, Cr.P.C. and the concluding para of order dated 28.08.2023 of Islamabad High Court, it unambiguously emerges that neither any request for suspension of conviction was made nor an order in this regard was passed. Even otherwise, the conviction and sentence are two different terms; the former pertains to the guilty verdict and the latter stands for the rigors which follow from conviction. The conviction means a guilty verdict pronounced by the Court in reference to the delinquency attributed to accused, whereas sentence denotes the quantum of punishment. Section 426, Cr.P.C. is an enabling provision which brings a convict out of the rigors of undergoing the sentence awarded to him but keeps the conviction intact. The difference between the conviction and sentence was exhaustively explained in the case of Abdul Kabir v. The State (PLD 1990 Supreme Court 823) in the following manner:

“A conviction is complete as soon as the person charged has been found guilty by a competent jurisdiction. During the pendency of an appeal, appellate Court may suspend the sentence under Section 426, Cr.P.C. So execution of sentence of petitioner is suspended and not his conviction which remains operative till it is set-aside by the higher appellate Courts. Pendency of the appeal for decision does not ipso facto means that the conviction is wiped out. The appellate Court has no authority under Section 426 to suspend the conviction. Conviction and sentence connote two different terms. Conviction means proving or finding guilty. Sentence is

punishment awarded to a person convicted in criminal trial. Conviction is followed by sentence. It cannot be accepted as principle of law that till matter is finally disposed of by Supreme Court against convicted person, the conviction would be considered as held in abeyance. This interpretation is not in consonance with the spirit of law and against logical coherence. The suspension of sentence is only a concession to an accused under Section 426, Cr.P.C but it does not mean that conviction is erased.”

Similar view was expressed in another case reported Nasir Mehmood and another v. Umer Sajjad and others (2019 SCMR 382).

1. The afore-mentioned reasons explicate that the nomination papers of Imran Ahmed Khan Niazi (appellant) were rightly rejected by the Returning Officer of NA-89, Mianwali-I; as a necessary consequence, the instant election appeal stands dismissed.

(Y.A.) Appeal dismissed

PLJ 2024 Lahore 131

Present: Shahid Jamil Khan, J.

M/s. HADI DEVELOPERS PRIVATE LIMITED--Appellant

versus

GOVERNMENT OF THE PUNJAB etc.--Respondents

W.P. No. 70681 of 2023, heard on 15.11.2023.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Local Government Act, (XXXIII of 2022), Ss. 166 to 169--Permission for private housing scheme--Domain of--Interim setup--Restraining from any decision of permanent nature--Binding of judgments of Apex Court--The judgments by Hon’ble Supreme Court, are also an existing law of land, plea that judgment is suspended, cannot be taken as law laid down is suspended, is binding on Administrators and other officials working in and for interim setup--Any violation can lead to legal consequence against delinquents--Respondent Local Government and other Local Governments, cannot exercise powers, meant to be exercised by elected Local Government--Petition dismissed. [P.135] A & B

PLD 1989 SC 61 ref.

M/s. Muhammad Usman Gondal and Ali Raza Warraich, Advocates for Petitioner.

Mr. Wasim Majeed Malik, Additional Advocate General Punjab for Respondents.

Date of hearing: 15.11.2023.

Judgment

Petitioner seeks direction for decision on applications (Annex-B & C) for Preliminary Planning Permission of a Private Housing Scheme. The applications are addressed to Administrator, Town Municipal Administration Sargodha and Chief Officer, District Council Sargodha.

1. Learned AAG submits that Deputy Commissioners are working as Administrators for the Local Government and after promulgation of Punjab Local Government Act, 2022 (“PLG Act of 2022”) the process of allowing a Private Housing Society is being finalized. However, he has produced copy of letter dated 17.08.2023 issued by the Election Commission of Pakistan, whereby the Provincial Government and respective Administrators of Local Government are restrained from taking any decision of permanent nature. Contends that through applications the approval sought is of permanent nature, which is exclusive domain of the Elected Body of Local Government.

2. This Court has already held in M/s. Mallik Mazhar Hussain Goraya v. Govt. of Punjab, etc. (PLD 2023 Lahore 257) that Administrator can deal only with day-to-day affairs. Relevant part is reproduced:

“9. ….

It is reiterated that the Administrator is appointed only for continuation of public service, based on the powers exercised by Defunct Local Government. The Development Funds, if already identified, approved through budget and released in accordance with law, can be expended, to maintain continuity, by the Administrators. The Administrator, appointed in accordance with law, can expend only eight percent per month, from the budget approved for a financial year, under Section 75(7), which is reproduced for facility:-

“(7) Where a new local government is to take over during a financial year as a result of fresh elections, the outgoing local government shall not spend funds or make commitments for any expenditure under any Demand for Grant or Appropriation in excess of eight percent per month of the budgeted funds for the remainder of its term in office in that financial year.”

1. The existing PLG Act of 2022, does not conceive development expenditures outside the approved budget in a financial year, as is discernable from a collective reading of Sections 205 and 75. On maturity of elected representative’s term, the next elected Local Government must be constituted without a break, which is the spirit/scheme of the Act of 2022, in consonance with the command by Article 140A of the Constitution. Under inevitable circumstances, if the next elected Local Government is delayed, provisions of Sections 205 and 71 would come into play, which need to be construed narrowly for performance of function only and not exercise of power vested in elected Local Government.

The powers are required to be exercised by the elected office bearers within Local Government Structure, under Section 13. Chapter XI Part 2 of the Act of 2022 provides the powers and duties of Local Government Functionaries. Section 33 prescribes the powers and duties of Head of Local Government, as defined by Section 2(1)(rr) are Lord Mayor, City Mayor, District Mayor and Chair Person of a union council. The Head of Local Government, under sub-section (2) of Section 33, is answerable for exercise of powers to the House of elected representatives, by submitting a report. In case of unsatisfactory performance, the House may send its recommendation to the Secretary Government of Punjab for appropriate action. These powers could not, by any stretch of interpretation, be given to an Administrator, in a Notification of appointment by the Chief Minister under Section 71 read with Section 205(1), which envisage only, “providing public services in their respective local areas without any interruption till such time new local governments are established under this Act”. The function and powers, to maintain continuity, cannot be notified by the Chief Minister without prior approval of the Cabinet.

1. It is a general principle, laid down as law by constitutional Courts, that in interim setup, function and exercise powers should be to carry out day-to-day affairs. August Supreme Court of Pakistan in judgment Fauji Sugar Mills v. Market Committee, Tando Muhammad Khan and another (1988 SCMR 155) held, “It is also manifest that the levy of a fee can only be in exercise of power and not exercise of functions”. Exercise of powers by Caretaker Government, in interim setup, was examined in Khawaja Muhammad Asif v. Federation of Pakistan and others (2013 SCMR 1205), when transfer posting and appointments were challenged under Article 184(3) of the Constitution. It was pleaded that caretaker government has to confine itself to ‘day to day’ routine matters, a controversial decision, irreversible by the forthcoming elected government should be avoid. The August Court held.

“28. In light of discussion made hereinabove, we hold that:-

(a) The Caretaker Cabinet/Prime Minister appointed under Article 224(1)(2) or 224A, as the case may be, is empowered to carry out only day-to-day affairs of the State with the help of the available machinery/ resources/manpower and also to watch national interest against war or national calamity or disaster faced by the nation, including terrorism, etc.

(b) The civil servants who have already been appointed in accordance with the rules/regulations on the subject ought not to be posted/transferred, etc., except in extraordinary circumstances, that too, temporarily.

(c) Major policy decisions including making of appointments, transfers and postings of the Government servants should be left to be made by the incoming government in view of the provisions of Constitution that the affairs of the State are to be run by the chosen representatives of the people.

(d) As newly elected Government is mandated to perform its functions of achieving the object and purpose of welfare of the people for which it has been duly appointed, therefore, caretaker Cabinet/ government/Prime Minister, having no mandate of public support, is only caretaker set up and due to this connotation should detach itself from making permanent policies having impact on future of the country.’

[emphasis supplied]”

1. It is apprised that the judgment in Malik Mazhar Hussain’s Case (supra) is suspended by learned Division Bench of this Court at Multan. Suspension of judgment has effect only to the extent of the case, i.e., in personum. The law or its interpretation, (the laid down law) cannot be suspended, being in rem, unless the law is otherwise interpreted and overruled by the Bench of higher strength. The

principle that law cannot be suspended, unless declared ultra vires, is enshrined in Federation of Pakistan v. Aitzaz Ahsan and another (PLD 1989 Supreme Court 61). The judgment in Malik Mazhar Hussain’s Case (supra) interprets the PLG Act of 2022, by referring to various provisions, which are unambiguous. The judgments by Hon’ble Supreme Court, referred therein, are also an existing law of the land, therefore, the plea that judgment is suspended, cannot be taken as the law laid down is suspended, hence, is binding on the Administrators and other officials working in and for the interim setup. Any violation can lead to legal consequence against the delinquents.

1. So far the instant petition is concerned, the request for Preliminary Planning Permission by the petitioner falls under Part 9 of the PLG Act of 2022 having caption Planning and Development and its Chapter XXVIII, captioned Planning Development and Land Use in Metropolitan Corporation and District Council. Sections 166 to 169, under this Chapter envisage a procedure to be carried out by the Head of Local Government with other elected office bearers.

It is, therefore, held that the law laid down in Malik Mazhar Hussain’s Case (supra) is applicable and respondent Local Government and other Local Governments, cannot exercise powers, meant to be exercised by the elected Local Government.

The permission for Preliminary Planning, being outside the powers of interim Local Government, cannot be directed, therefore, this petition is dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 135

Present: Shahid Jamil Khan, J.

MAHNOOR SHABBIR--Appellant

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 62482 of 2022, decided on 12.12.2023.

MuhammadanLaw--

----Para 337--Constitution of Pakistan, 1973, Art. 199--Suit for maintenance--Decreed--Appeal--Allowed--Paternal uncle--Distant relative--Inheritance of paternal uncle--Poor instant relative--Counsel for petitioner was asked whether Section 373 of Muhammadan Law is a statutory provision, answer was in negative--He was also asked to produce any judgment where decree of maintenance against distant relative is issued on basis of Section 373, he could not produce-- The petitioner could not establish before Appellate Court that she would get inheritance from estate of respondent on his death--Petitioner could not prove herself to be poor distant relative--The reasons for claiming maintenance from grandfather in absence of father are on different premises whereas claim of maintenance from a relative under Section 373 and different principles of Islamic jurisprudence--If suit was filed to claim maintenance from grandfather after death of father, paternal uncle could not have been replaced as defendant in shoes of grandfather--Petition dismissed.

[Pp. 137, 138 & 139] A, B, C & D

PLD 2021 FSC 1.

M/s. Waqas Umer Sial, Ch. Muslim Abbas and Abbas Sheheryar Chaudri, Advocates for Petitioners.

Nemo for Respondents.

Date of hearing: 12.12.2023.

Judgment

Petitioner has assailed judgment dated 08.06.2022 passed by Additional District Judge, Lahore, exercising appellate jurisdiction, whereby suit of the petitioner for maintenance against her paternal uncle has been dismissed by reversing the judgment and decree by the trial Court.

1. Learned counsel for the petitioner submits that appeal of respondents is time barred but no finding in this regard is available in the impugned judgment.

On merits, he apprised that the suit was originally against grandfather and after his death, the paternal uncle was substituted as defendant. The claim of maintenance allowance is based on Section 337 of Muhammadan Law and the petitioner claim herself to be a poor distant relative, who would get inheritance from the property of paternal uncle, received by him as a consequence of death of his father and petitioner’s grandfather. Also submits that grandfather had inherited some property on death of petitioner’s father which has further been devolved to the respondent-uncle.

1. Operative part of the Appellate Court’s judgment deciding the legal question is reproduced hereunder:

“7. The observation of learned Trial Court qua fixation of liability on the Appellants/Defendant Nos. 3 & 4 being fallen under prohibited degree of other/poor relative was although without any support of statutory law or case law yet it seems that probably the provision of Section 373 of Muhammadan Law was in the mind of learned Trial Court which reads:

373. Maintenance of other relations

“Persons who are not themselves poor are bound to maintain their poor relation within the prohibited degrees in proportion to the share which they would inherit from them on their death. A father is not bound to maintain his son’s widow.”

1. Thus, as above the relatives having prohibited degree can be burdened to pay maintenance allowance to their poor relatives proportionately as per their share of inheritance of such poor relatives. Although it is not debatable at all that the appellants being real paternal uncles of the respondent/plaintiff do fall in her prohibited degree yet it is also indisputable that they will not get any share of inheritance of the estate of late father Shabbir Ramzan of the respondent/defendant for being survived through his parents, wife and children and therefore, his real brothers could not be considered his beneficiary legal heirs and they will also not get any share of estate (God forbid) of the respondent or her mother, in the attending situation. Therefore, the Court is of humble but firm view that no benefit of said provisions of Section 373 of Muhammadan Law can be extended in favour of the respondent/plaintiff against the Appellants/Defendants Nos.3&4.

2. Besides above, the Appellants/Defendants Nos.3&4 could be burdened to pay maintenance allowance to the respondent/plaintiff, had she had no resources or only being poor and unable to meet both ends together to carry on her mundane life. However, learned Trial Court itself noted at lower part of its finding in earlier quoted Paragraph No. 6, at the cost of repetition again, as under:

“It is ineluctable to highlight there that minor/plaintiff is getting education and her monthly paid fees slips are available on record in this regard. It clearly unveils that minor/Plaintiff mother is also in good stable condition who is rendering quality of education to her daughter.”

[Emphasis supplied]

1. Learned counsel for the petitioner is asked whether Section 373 of Muhammadan Law is a statutory provision, the answer is in negative. He is also asked to produce any judgment where decree of maintenance against the distant relative is issued on the basis of Section 373, he could not produce.

Federal Shariat Court in its judgment Messrs Najaat Welfare Foundation through General Secretary v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and four others (PLD 2021 FSC 1) has opined on the issue in following words:

“There is a plethora of judgments of the superior Courts of Pakistan, where they have differed from the so-called text books of Muhammadan Law including Mulla’s book. This trend was initiated soon after independence of Pakistan. Although, in a very limited way and sporadically, this trend was there even in pre-partition era of British India. After the independence of Pakistan, this trend became a norm by the superior Courts of Pakistan to evolve their own jurisprudence inter alia in the matters of Muslim Personal law also. For example; It was stated in a judgment very clearly while deciding a matter of Hisanat, which is an issue of Muslim Personal Law as:

“It would be permissible for the Courts to dif fer from the rules of Hisanat as quoted or stated in the text books like book of Mulla”. [Reference PLD 1965 W.P. Lahore 695]. This trend kept on evolving, and is still evolving. This process is primarily based on following factors:

(i) the superior Courts are clearly of the view that the opinion contained in text book of so - called Muhammadan Law, are neither final nor binding upon the superior Courts of Pakistan. While discussing paragraphs 352 and 354 of Mulla’s book the Supreme Court held:

“It has been construed by the Courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact, which the Court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody.” (2014 SCMR 343 para 13)

(ii) It is clearly mentioned in number of judgments that the book of D.F. Mulla is just a reference and not a statutory law applicable in Pakistan, so it is optional upon the Courts to consult this book while examining any matter in issue related to Muslim Personal Law. While dilating upon paragraph 113 of the Mulla’s book it was held:

___________

“Mulla’s “Principles of Muhammadan Law” is a reference or a text book as some times referred in our judgments like other books of this category and not a statutory book. Usually, when the Courts consult it, this exercise is just like consulting a b ook where the opinions of the great Muslim jurists are easy to get because opinions are mentioned in English language in an over simplified language and paragraphs of the book are numerically marked. The very style of composition of this book often create a confusion amongst the reader that it is a statute book which it is not. Perhaps this is the reason why the petitioner states in his petition that the book of D.F. Mulla comes within the purview of custom and usage which is absolutely wrong and incorrect.”

[Emphasis supplied]

D.F Mulla’s Muhammadan Law is just a text book, which can be referred or relied upon by Courts like any other text book. Being neither a statute nor a custom or usage, the opinion in it is not binding.

1. Without prejudice to the legal position, ibid, in this Court’s opinion, the findings given by the Appellate Court are factual and based on the Section 373 holding that conditions of this Section of the text book are not met. The petitioner could not establish before the Appellate Court that she would get inheritance from the estate of her respondent-paternal uncle on his death.

The Appellate Court also determined that the petitioner could not prove herself to be poor distant relative. The reasons for claiming maintenance from grandfather in absence of father are on different premises whereas claim of maintenance from a relative under Section 373 and different principles of Islamic jurisprudence.

1. In this Court’s opinion, if suit was filed to claim maintenance from grandfather after death of father, the paternal uncle could not have been replaced as defendant in the shoes of grandfather.

No case for interference is made out, therefore, the petition is dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 140

Present: Shahid Jamil Khan, J.

Syed ALI RAZA NAQVI, etc.--Appellants

versus

CHAIRMAN PPSC, etc.--Respondents

W.P. No. 43082 of 2023, heard on 17.10.2023.

Constitution of Pakistan, 1973--

----Arts. 18, 24-A, 25 & 99--Non-issuance of appointment letters--Recommendation of PPSC--Family disputes--Petitioners was nominated in FIR’s--Discretion to refusal of appointment letters--Constitutional and fundamental right--Non-availability of criminal record of petitioners--Rule of thumb--The petitioners, being citizens, have constitutional and fundamental right under Articles 18 and 25 of Constitution against discrimination and for choice of occupation and profession--The petitioners were named in FIRs arising out of some family dispute--No evidence or information of their other criminal record is available--Acquittal for no evidence means that allegation in FIR was false--Any law abiding citizen, by fate, can be entangled in any criminal case, his future and fundamental rights under Constitution cannot be compromised by a rule of thumb--Petition allowed. [P.143] A & C

2022 SCMR 1770 ref.

Constitution of Pakistan, 1973--

----Art. 27--Protection from discrimination--A person qualified for appointment is protected from any discrimination, which in this Court’s opinion, includes denial for appointment on conjectures and surmises--For having a criminal record opinion, authority must disclose reasons. [P. 143] B

M/s. Muhammad Shabbir Hussain, Muhammad Adnan Afzal, Rana Rafaqat Ali, Mehar Ahsan Javed and Usman Haider Toor, Advocates for Petitioners.

Mr. Waseem Majeed Malik, Additional Advocate General, Punjab for Respondents.

Mr. Ijaz Ahmad Awan, Law Officer, PPSC.

Mr. Javeed Dogar, DSP/Legal, Capital City Police Officer.

Date of hearing: 17.10.2023.

Judgment

Petitioners are aggrieved of non-issuance of appointment letters despite recommendations (Annex-B) by Punjab Public Service Commission (“PPSC”), where petitioners are appearing at Serial Nos. 18 and 75 respectively.

Learned counsel for the petitioners submitted that they were informed verbally about non-issuance of appointment letters due to criminal cases, in which petitioners have already been acquitted. Contended that as per Respondent No. 4/CCPO, the acquittal is in absence of evidence, therefore, petitioners cannot be appointed.

Learned counsel for the petitioners has placed reliance on number of judgments i.e Muhammad Ayaz Khan v. Government of Sindh and others (2007 PLC (C.S) 716), Dr. Abid Ali and 5 others v. Government of Khyber Pakhtunkhwa through Secretary, Health Peshawar and 3 others (2014 YLR 1322), Inamullah v. Government of KPK through Chief Secretary and 3 others (2017 PLC (C.S.) 926), Waseem Yaqoob v. Government of Punjab and others (2018 PLC (C.S) 454), Abdus Salam v. Inspector General of Police , Punjab and 2 others (2019 PLC (C.S.) 503), Attaullah Sheikh v. WAPDA and others (2001 SCMR 269) and Mumtaz Ali Shah v. Chairman, Pakistan Telecommunication Company Ltd., H.Q., Islamabad and 6 others (PLD 2002 SC 1060).

1. Learned Additional Advocate General assisted by DSP Legal submits that in presence of criminal record the respondents have discretion to refuse appointment letter despite recommendation by PPSC. He has placed reliance on Paragraph No. 23 of Standing Order No. 6 of 2015 issued by Inspector General of Police, Punjab, relevant part of which is reproduced:

“BACKGROUND INVESTIGATION:

The District Police Officer, shall send the requisite information of the successful candidates to the Addl. Inspector General of Police, Special Branch and also to the concerned Police Station of the District where the candidate resides.

The two offices i.e. Addl. IGP Special Branch and District Police Officer concerned shall put every effort to verify the personal character, academic certificates and other relevant facts of the successful candidates. The verification reports shall be minutely scrutinized by the DPO before issuing appointment letter.

Candidates having criminal record or affiliation with any prescribed organization shall not be appointed.”

[Emphasis supplied]

He has also placed reliance on judgment by the Apex Court in Faraz Naveed v District Police Officer Gujrat and another (2022 SCMR 1770) and has read Paragraph No. 17 of the judgment, which is reproduced:

“17. The police force is a disciplined force with cumbersome accountability and responsibility of maintaining law and public order in the society and populace, therefore, any person who wants to be part of the disciplined force should be a person of utmost integrity and uprightness with unimpeachable/spotless character and clean antecedents. Despite acquittal, it is the privilege and prerogative of the employer which is in this case “Punjab Police Force”. So, it is for the department to examine fairly and equitable whether the petitioner has been completely exonerated or not and his further induction may not become a constant threat to the discipline of the police force and public confidence and may also not demoralize and undermine the environment and frame of mind of the upright and righteous members of the force, therefore, a person having criminal antecedents would not be fit to be restored or reinstated to his previous position or post.”

[Emphasis supplied]

Submits that petitioners’ name in the FIRs falls within the mischief of criminal record, therefore, following the rule of thumb and in the light of judgment, ibid, the appointment letters are not being issued.

Learned AAG has not denied that petitioners are named in the FIRs arising out of some family disputes. It is also not denied that petitioners have successfully qualified the process and recommendations for their appointment have been made by PPSC.

1. Heard. Record Perused.

2. Perusal of the reply by respondents and assistance by learned AAG does not show that the parameters and dictum laid down by August Supreme Court has been followed while declining the appointment letter.

The judgment in Faraz Naveed Case (supra) required the relevant authority to form an opinion fairly and equitably that despite exoneration the criminal record suggests that the candidate is a constant threat to the discipline of the police force, police confidence and may demoralize and undermine the environment in department etc. The judgment does not support the rule of thumb that in presence of an FIR, even after acquittal the successful candidate recommended by PPSC shall be refused appointment letter. The rule of thumb is not

even supported by the Standing Order No. 6 of 2015 which envisages “candidates having criminal record”. The term “criminal record”, denotes a consistent involvement in criminal activities.

This exercise of discretion is declared against the spirit of the judgment in Faraz Naveed Case (supra) and violative of Section 24-A of General Clauses Act, 1897. The discretion cannot be exercised in mechanical way, when future of a citizen is at stake. The petitioners, being citizens, have constitutional and fundamental right under Articles 18 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”) against discrimination and for choice of occupation and profession. In particular under Article 27 of the Constitution, a person qualified for appointment is protected from any discrimination, which in this Court’s opinion, includes denial for appointment on conjectures and surmises. For having a criminal record opinion, the authority must disclose the reasons, as envisaged in Faraz Naveed Case (supra), based on material gathered from Special Branch or concerned Police Station. The rule of thumb followed by the respondents to refuse appointment is declared ultra-vires of the Constitution.

Admittedly, the petitioners were named in the FIRs arising out of some family dispute. No evidence or information of their other criminal record is available. Acquittal for no evidence means that the allegation in FIR was false. Any law abiding citizen, by fate, can be entangled in any criminal case, therefore, his future and fundamental rights under the Constitution cannot be compromised by a rule of thumb.

1. The petition is allowed. Respondent No. 4 is directed to issue appointment letters to the petitioners in absence of any adverse opinion in light of the judgment in Faraz Naveed Case (supra).

(Y.A.) Petition allowed

PLJ 2024 Lahore 143

Present: Masud Abid Naqvi, J.

Dr. ASGHAR ALI—Plaintiff/Petitioner

versus

MUHAMMAD ALI--Defendant

C.R. No. 42583 of 2022, heard on 10.5.2023.

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

----S. 12--Sale agreement--Earnest money was paid--Suit for specific performance--Dismissed--Balance sale consideration was not deposited in Court--Withdrawal of suit to extent of Defendant No. 1--Legal obligation of trial Court--Direction to--Trial Court directed petitioner to deposit balance sale consideration amount but petitioner failed to deposit same--After statement of counsel of petitioner for withdrawal of suit to extent of Defendant No. 1, trial Court was under legal obligation to deduct amount as was attributed to Defendant No. 1 and should have directed petitioner to deposit specific amount to extent of share of Respondent--Instead of passing any order to clarify specific balance sale consideration amount by deducting amount to extent of share of Defendant No. 1, trial Court passed judgment for not depositing total consideration amount--Trial Court failed to pass an order for deposit of specific remaining amount alongwith consequences of non-compliance of order with clarity in advance before passing impugned judgment and decree--Civil revision accepted. [P.145] A, B, C & D

2023 SCMR 555 ref.

Mian Zulfiqar Ali, Advocate for Petitioner.

Mr. Rizwan Hayat Bajwa, Advocate for Respondent.

Date of hearing: 10.5.2023.

Judgment

Brief facts of this civil revision are that the plaintiff/petitioner filed a suit for specific performance of an agreement to sell with the averments that he entered into an agreement dated 01.03.2017 with respondent/defendants for purchase of land properly mentioned in plaint, situated in Chak No. 6/GB Faisalabad for a sale consideration of Rs. 70,00,000/-per acre and paid Rs. 40,00,000/-as an earnest amount. The date for completion of agreement was settled as 01.03.2018. The plaintiff arranged the balance sale consideration amount of Rs. 1,28,72,865/-and contacted the defendants/respondent to comply with the terms of agreement, however, the respondent/defendants refused, which necessitated filing of instant suit. The defendants/respondent contested the suit by raising preliminary objections. The learned trial Court vide order dated 23.11.2021 directed the plaintiff/ petitioner to deposit the remaining sale consideration amount but the plaintiff/ petitioner failed to comply with the Court’s order and ultimately on 19.02.2022 learned trial Court dismissed the suit due to non-deposit of remaining consideration amount in the Court. Against that order, the plaintiff/petitioner filed an appeal and the same was dismissedvide ex-parte judgment and decree dated 24.05.2022. Feeling aggrieved, the petitioner/plaintiff has filed the instant civil revision and challenged the validity of the judgments and decree passed by the learned Courts below.

1. I have heard the arguments of the learned counsel for the parties and perused the available record as well as have minutely gone through the impugned judgments and decree of learned Courts below.

3. Perusal of record reveals that plaintiff/petitioner filed a suit for specific performance of an agreement to sell against the Defendants No. 1 and 2 and learned trial Court directed the plaintiff/petitioner on 23.11.2021 to deposit balance sale consideration amount but the plaintiff/ petitioner failed to deposit the same till 19.02.2022. On 19.02.2022, learned counsel for plaintiff/petitioner recorded statement and withdrew the suit to the extent of Defendant No. 1 namely Shaukat Ali but the learned trial Court passed the impugned judgment and decree dated 19.02.2022 and dismissed plaintiff’s suit for non-deposit of balance total sale consideration amount of Rs. 1,28,72,865/-. After the statement of learned counsel of plaintiff/petitioner for withdrawal of suit to the extent of Defendant No. 1, the learned trial Court was under the legal obligation to deduct the amount as is attributed to Defendant No. 1 and should have directed the plaintiff/petitioner to deposit the specific amount to the extent of share of Defendant No. 2/Respondent namely Muhammad Ali and with assistance of both the learned counsels for the parties, said amount is computed as Rs. 80,93,750/-. Instead of passing any order to clarify the specific balance sale consideration amount by deducting the amount to the extent of share of Defendant No. 1, learned trial Court passed the judgment for not depositing the total consideration amount of Rs. 1,28,72,865/-. It is also important to mention here that learned trial Court failed to pass an order for deposit of specific remaining amount alongwith the consequences of non-compliance of the order with clarity in advance before passing the impugned judgment and decree dated 19.02.022 and learned appellate Court has also failed to appreciate the above mentioned facts while dismissing the plaintiff/petitioner’s appeal. The order passed by the learned civil judge as discussed above clearly indicates that neither the learned civil judge computed the correct balance sale consideration to be deposited by the plaintiff/petitioner nor passed any order alongwith consequences of non-compliance of the order with clarity in advance before passing the impugned judgment and decree. In this regard, guidance is provided in recent judgment of the Hon’ble Supreme Court of Pakistan reported as Messrs DW Pakistan (Private) Limited Lahore vs. Begum Anisa Fazl-i-Mahmood (2023 SCMR 555 ), wherein the August Supreme Court, after discussing plethora of judgments of the Hon’ble Superior Courts has held as under:

“While passing the order for deposit of sale consideration or balance sale consideration by the trial Court, some reasonable

time to deposit the money in Court should also be afforded for compliance of the order alongwith the consequences of non-compliance of the order with clarity in advance.”

1. In view of the above discussion, this civil revision is accepted and the impugned judgments and decrees of the learned Courts below are set-aside and the lis is remanded back to the learned trial Court for decision afresh. The petitioner/plaintiff is also directed to deposit balance sale consideration amount of Rs. 80,93,750/-before the learned trial Court within 03-Weeks and in case of failure of plaintiff/petitioner to deposit the said balance sale consideration amount, within specified period, suit of the plaintiff/petitioner shall be dismissed due to non-deposit of remaining consideration in Court. The contesting parties are directed to appear before the learned Senior Civil Judge (civil jurisdiction) Faisalabad on 18.05.2023, who will either himself adjudicate upon the matter or entrust the same to a Court of competent jurisdiction for adjudication.

(Y.A.) Civil revision accepted

PLJ 2024 Lahore 146

Present: Masud Abid Naqvi, J.

ABDUL SHAKOOR deceased through his Legal Heirs etc.--Petitioners

versus

Rana ABID MAHMOOD etc.--Respondents

C.R. No. 63321 of 2020, heard on 13.4.2023.

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

----Ss. 9 & 12--Agreement to sell--Sale consideration was paid--Death of seller before execution of sell agreement--Suit for specific performance--Decreed--Appeal--Dismissed--Receipt of balance sale consideration, witnesses of receipt and witnesses of sale agreement were produced by respondent--Onus to prove--Concurrent findings--Challenge to--The Respondent No. 1 exhibited receipt of balance sale consideration and also produced witnesses of receipt--By producing two attesting witnesses of agreement to sell alongwith Bank Manager & two attesting witnesses of receipt of balance sale consideration both documents were proved by petitioner--No one else appeared on behalf of petitioners in support of stance of Defendant petitioners--Predecessor in interest of petitioners was legally authorized to execute 2nd agreement to sell in favour of respondent and after executing 2nd agreement to sell voluntarily by predecessor his successors in interest petitioners cannot wriggle out of commitment of predecessor--Courts below had properly discussed in detail pleadings as well as oral and documentary evidence adduced by both parties and had elaborately discussed factual as well as legal controversy between parties and arrived at right conclusion, hence, findings of Courts below were hereby upheld--Revision petition dismissed. [Pp.149, 150 & 151] A, B, C, D & E

PLD 2007 Lahore 467, PLD 2021 SC 434, 2013 SCMR 146 & 2012 SCMR 730 ref.

Mr. Naveed Khalid, Advocate for Petitioners.

Mr. Waqas Haider Saqi, Advocate for Respondent No. 1.

Mr. Atif Sattar Arieen, Advocate for Respondent No. 3.

Proceeded against Ex-parte vide order dated 7.6.2021for Respondent No. 2.

Date of hearing: 13.4.2023.

Judgment

Brief facts necessary for the adjudication of this lis are that the plaintiff /Respondent No. 1 filed a suit for specific performance and possession with the averments that Defendant No. 9/Respondent No. 2 was the owner of disputed plot which was purchased by the predecessor in interest of Defendant Nos. 1 to 8/petitioners namely Abdul Shakoor through agreement to sell dated 20.11.2008 after paying the total sale consideration. Thereafter, the predecessor in interest of Defendant Nos. 1 to 8/petitioners namely Abdul Shakoor agreed to sell the same plot to the plaintiff/Respondent No. 1 through agreement to sell dated 25.01.2011 by receiving an amount of Rs. 5000/-cash & Rs. 495000/-through cheque which was duly encashed as earnest money and also received the balance sale consideration on 16.11.2011 with the promise to transfer the title of disputed plot, after completion of process of LDA on his agreement to sell dated 20.11.2008. After his death, the plaintiff repeatedly asked the Defendant Nos. 1 to 8/petitioners to execute the sale deed but they refused, hence the suit. The Defendant Nos. 1 to 8/petitioners contested the suit by filing written statement and raising certain legal as well as factual objections while Defendant No. 9/Respondent No. 2 was proceeded against ex-parte by the learned trial Court.

1. Out of divergent pleadings of the parties, issues were framed by the learned trial Court. The parties produced their respective evidence and after recording the same, learned trial Court decreed the suit of the plaintiff/Respondent No. 1 vide judgment and decree dated 23.10.2018. Feeling aggrieved, the Defendant Nos. 1 to 8/petitioners filed an appeal and learned Additional District Judge vide judgment & decree dated 17.11.2020 dismissed the appeal. Being dissatisfied, the petitioners/Defendant No. 1 to 8 have filed the instant Revision Petition and challenged the validity of the judgments and decrees passed by the learned Courts below.

2. Learned counsel for the Defendant Nos. 1 to 8/petitioners primarily argued that the predecessor in interest of Defendant Nos. 1 to 8/petitioners namely Abdul Shakoor was not legally entitled to execute the disputed agreement to sell on the basis of agreement to sell, without being owner of disputed plot while the Learned counsel for the plaintiff/Respondent No. 1 fully supported the judgments and decrees of learned Courts below and learned counsel for LDA/ Defendant No. 10/Respondent No. 3 also supported the arguments of learned counsel for the petitioners and the Defendant No. 9/Respondent No. 2 was proceeded against ex-parte on 07.06.2021.

3. 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.

4. The disputed plot was originally owned by Muhammad Bilal/ Defendant No. 9/Respondent No. 2 as admitted by all the contesting parties including Lahore Development Authority/ Defendant No. 10/ Respondent No. 3 and agreement to sell dated 20.11.2008, executed by the Muhammad Bilal/ Defendant No. 9/Respondent No. 2 in favour of the predecessor in interest of Defendant Nos. 1 to 8/petitioners namely Abdul Shakoor is also an admitted document and has not been challenged by either of the contesting party and in written statement, LDA/Defendant No. 10 acknowledged the filing of transfer application by Muhammad Bilal/Defendant No. 9/Respondent No. 2 in favour of the predecessor in interest of Defendants No. 1 to 8/petitioners namely Abdul Shakoor. Assistant Director LDA appeared as DW-1 and conceded in cross examination that predecessor of the Defendants No. 1 to 8/ petitioner namely Abdul Shakoor also submitted set of documents for transfer of plot on 08.10.2011 which includes affidavits of Abdul Shakoor and Muhammad Bilal and same are available in the record of LDA.

Now the onus to prove Issue No. 3 about the valid execution of agreement to sell dated 25.01.2011/Ex.P-2 lies on the plaintiff/ Respondent No. 1 which was allegedly executed by the predecessor in interest of Defendant Nos. 1 to 8/petitioners in favour of plaintiff/ respondent. There is no denial of the fact that the predecessor in interest of Defendant Nos. 1 to 8/petitioners namely Abdul Shakoor received an amount of Rs. 4,95,000/-through cheque No. 723191 which was duly encashed. Although, Defendant No. 1/Petitioner No. 1 conceded in cross examination that he read the bank statement of his late father but has not specifically denied the receipt of amount through cheque by his father in cross-examination as DW-2 and the plaintiff/respondent exhibited his Bank statement/Ex.P-3 to prove that an amount of 4,95,000/-was withdrawn from his account through cheque No. 723191. The plaintiff/Respondent No. 1 himself appeared as PW-1 & produced two attesting witnesses namely Rana Zahid Hussain & Fiaz Bajwa as PW-2 & PW-3 to prove the execution and contents of agreement to sell as well as payment of an amount of Rs. 5000/-in cash & Rs. 4,95,000/-through cheque No. 723191. The plaintiff/Respondent No. 1 also produced Manager of Bank as PW-6 and after checking/examining the bank record, he deposed about the clearance of Cheque No. 723191 in favour of predecessor in interest of Defendant Nos. 1 to 8/petitioners namely Abdul Shakoor. The plaintiff/ Respondent No. 1 also exhibited the receipt of balance sale consideration of Rs. 850000/-as Ex.P-1 and also produced the witnesses of receipt namely Faisal Sadique & Manzoor Hussain as PW-4 & PW-5 to prove the execution and contents of receipt as well as payment of balance sale consideration of an amount Rs. Rs. 8,50,000/-. By producing two attesting witnesses of agreement to sell dated 25.01.2011/Ex.P-2 alongwith the Bank Manager & two attesting witnesses of receipt of balance sale consideration/ Ex.P-1, both the documents are proved by the plaintiff/petitioner in accordance with the requirements of Article 79 of the Qanoon-e-Shahadat Order 1984.

After successfully proving the Ex-P-1 & Ex.P-2, the onus shifts on the Defendant Nos. 1 to 8/petitioners to negate the claim of plaintiff/Respondent No. 1 but only the Defendant No. 1/Petitioner No. 1 appeared as DW-2 and no one else appeared on behalf of Defendant Nos. 1 to 8/petitioners in support of the stance of Defendant Nos. 1 to 8/petitioners.

In admitted agreement to sell dated 20.11.2008 executed by the Muhammad Bilal/Defendant No. 9/Respondent No. 2 in favour of the predecessor in interest of Defendant Nos. 1 to 8/petitioners namely Abdul Shakoor, the executant namely Muhammad Bilal specifically allowed Abdul Shakoor to execute another agreement to sell with someone else on the basis of agreement to sell dated 20.11.2008 and to receive earnest money. Relevant portion of the said agreement is reproduced hereunder:

یہ کہ مقرالیہ اقرار نامہ معاہدہ بیع ہذا کی رو سے کسی بھی دیگرے سے معاہدہ بیع کر سکتا ہے زر بیعانہ وصول کر سکتا ہے جس پر من مقر کو اعتراض نہ ہو گا۔

The predecessor in interest of Defendant Nos. 1 to 8/petitioners namely Abdul Shakoor acted in accordance with stipulated terms & conditions of 1st agreement to sell dated 20.11.2008 by executing the 2nd agreement to sell dated 25.01.2011/Ex.P-2 in favour of plaintiff/respondent and the predecessor in interest of Defendant Nos. 1 to 8/petitioners namely Abdul Shakoor was legally authorized to execute the 2nd agreement to sell in favour of plaintiff/respondent and after executing the 2nd agreement to sell voluntarily by late Abdul Shakoor, his successors in interest/Defendants No. 1 to 8/petitioners cannot wriggle out of the commitment of late Abdul Shakoor as argued by the learned counsel for the petitioners or pleaded in Para VI of the grounds of instant civil revision. In this regard guidance is sought from the following reported judgments:-

(i) Muhammad Jalil and 4 others vs. Muhammad Sami and 8 others (PLD 2007 Lahore 467)

“the second party, (فریق دوئم), had specifically been granted authority to enter into an agreement with a third party without the intervention of the original owners. The said clause in effect amounted to the purchaser being an authorized attorney of the original owners, capable of executing agreements as of right, in favour of third parties.”

(ii) Mst. Jaiwanti Bai vs. Messrs Amir Corporation and others (PLD 2021 Supreme Court 434)

“22. An assignment, in cases relating to immovable property, takes place when one party to an existing contract (as in this instant case the under the agreement to sell) conveys all the obligations, rights and interest under the agreement to another person.”

(iii) Nisar Ahmed Afzal vs. Muhammad Taj and 7 others (2013 SCMR 146)

“In law, there is no bar for a prospective purchaser under a sale agreement, from alienating his interest in immovable property acquired by virtue of a sale agreement to any other person through another sale agreement.”

1. Both the learned Courts below have properly discussed in detail the pleadings as well as oral and documentary evidence adduced by both the parties and have elaborately discussed the factual as well as legal controversy between the parties and arrived at right conclusion, hence, the findings of the learned Courts below are hereby

upheld/confirmed. Even otherwise, with respect to interference in concurrent findings of the Courts below, the Hon’ble Supreme Court of Pakistan in a case reported as Administrator, Thal Development through EACO Bhakkar and others vs. Ali Muhammad (2012 SCMR 730) held that:

“Concurrent findings of the trial Court and appellate Court in favour of appellants were based on proper appreciation of evidence therefore, the same were not open to interference by the revisional Court in exercise of its jurisdiction under Section 115, C.P.C. which is primarily meant for correction of jurisdictional defect/error and material illegalities/ irregularities, resulting in miscarriage of justice to a party.”

1. Neither any misreading or non-reading of evidence on record nor any infirmity, legal or factual, has been pointed out in the impugned judgments and decrees passed by the learned Courts below, therefore, this revision petition is dismissed.

(Y.A.) Revision petition dismissed

PLJ 2024 Lahore 151

Present: Masud Abid Naqvi, J.

NAVEED AHMED etc.--Petitioners

versus

Sheikh AMJAD SAEED deceased through his Legal Heirs etc.--Respondents

C.R. No. 3093 of 2012, heard on 1.3.2023.

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

----Ss. 12 & 54--Sale agreement--Earnest money was paid--Suit for specific performance and permanent injunction--Decreed--Appeal--Dismissed with slight modification--Validity--Ejectment petition against plaintiffs during pendency of ejectment petition--Petitioners No. 1, 2 were agreed to sell suit property on their on and on behalf of their sister and mother--Ejectment petition was not withdrawn after receiving of amounts--Concurrent findings--Challenge to--Even after execution of agreement to sell and receipt of amount(s) before Rent Controller, petitioners not only failed to withdrawn ejectment petition as is specifically agreed in agreement to sell between plaintiffs and petitioners which was dismissed by Rent Controller after discussing all questions of facts and law but also filed an appeal against judgment which was also dismissed--Courts below had granted relief by considering conduct of parties, principles of equity, fairness and good conscious by appreciating pleadings of parties as well as oral and documentary evidence of parties and thereafter reached at conclusion regarding controversy, findings of Courts below were hereby maintained--Neither any misreading or non-reading of evidence on record nor any infirmity, legal or factual, had been pointed out in impugned judgments and decrees passed by Courts below--Civil revision dismissed.

[Pp.155] A, B & C

PLD 2011 SC 540, PLD 1983 SC 78, PLD 2015 Lah. 75 & 2012 SCMR 730 ref.

Mr. Zaheer-ud-Din Babar and Agha Arshian Khan, Advocates for Petitioners.

Malik Muhammad Afzal Baloch, Advocate for Respondents.

Date of hearing: 1.3.2023.

Judgment

Brief facts of this civil revision are that the plaintiffs namely Sheikh Amjad Saeed/predecessor in interest of the Respondent No. 1 and Sheikh Maalik Saeed/Respondent No. 4 (hereinafter called the “plaintiffs”) filed a suit for specific performance with permanent injunction with the averments that the petitioners/Defendants No. 1 & 2 alongwith their brother namely Mohammad Saeed, sister/Defendant No. 3 & mother/Defendant No. 4 were the owners of 11 Marlas land on which a shop also exists. The three brothers i.e. petitioners/Defendants No. 1, 2 & Mohammad Saeed agreed to sell the suit property on their behalf and on behalf of their sister & mother for a sale consideration of Rs. 15,50,000/-(Fifteen Lacs and Fifty Thousand) vide agreement to sell dated 25.08.2004. An amount of Rs. 50,000/-(Fifty thousand only) was received as earnest money and the balance consideration of Rs. 15,00,000/-was agreed to be paid on or before 28.11.2004 at the time, the sale deed would be registered. When the plaintiffs asked the defendants to receive the remaining balance sale consideration amount and to execute the sale deed, only Mohammad Saeed performed his part of contract while the Defendants No. 1 to 4 plainly refused. Hence, the plaintiffs were constrained to institute the instant suit for specific performance of contract against Defendants No. 1 to 4 about the property, described in the headnote of plaint by deducting the already sold share of Muhammad Saeed. The defendants contested the suit by way of filing written statement and written reply and by raising certain legal as well as factual objections. Out of divergent pleadings of the parties, issues were framed by the learned trial Court. The parties produced their respective evidence and after recording the same, the learned trial Court decreed the suit only against Defendants No. 1 and 2 subject to payment of Rs. 10,00,000/-vide judgment and decree dated 23.09.2011. Feeling aggrieved, the Defendants No. 1 to 4 filed an appeal challenging the said judgment and decree dated 23.09.2011 and the learned Additional District Judge, Sheikhupura dismissed the appeal vide judgment and decree dated 07.07.2012 with slight modification by specific finding that since the Defendants No. 3 and 4 were not party to the sale agreement, the suit as against them stood dismissed. Being aggrieved, only the Defendants No. 1 & 2/petitioners have filed the instant civil revision and challenged the validity of the impugned judgments and decrees passed by the learned Courts below while the plaintiffs also filed a Regular Second Appeal No. 189/2012 against the sister/Defendant No. 3 & mother/Defendant No. 4.

1. During the arguments, learned counsel for plaintiffs/ respondents wants to withdraw the connected Regular Second Appeal No. 189/2012 and same is dismissed as withdrawn vide separate order of even date passed in connected appeal. The learned counsel for the petitioners/Defendants No. 1 & 2 mainly argues that the time was the essence of the contract as has been specifically pleaded in written statement by the petitioners/ Defendants No. 1 & 2 on the failure of the plaintiffs to pay the balance amount within the stipulated period. However, the learned counsel for the plaintiffs fully supports the impugned judgments and decrees of the leaned Courts below.

2. I have heard the arguments of learned counsels for the parties and minutely gone through the record as well as the impugned judgments and decrees of the learned Courts below.

3. An agreement to sell with respect to shop was allegedly executed between the plaintiffs namely Sheikh Amjad Saeed/ predecessor in interest of the Respondent No. 1 & Sheikh Maalik Saeed/ Respondent No. 4 & Mohammad Yousaf /predecessor in interest of the petitioners/ defendants on 31.08.1998 after receiving an amount of Rs. 100,000/-as earnest money out of a total sale consideration of Rs. 500,000/-(Five Lacs). After the death of Mohammad Yousaf/ predecessors in interest of the petitioners/defendants, all the defendants filed an ejectment petition against the plaintiffs on 27.06.2003 but during the pendency of that ejectment petition, three brothers i.e. Petitioners/Defendants No. 1, 2 & Mohammad Saeed agreed to sell the suit property on their behalf and on behalf of their sister & mother to the plaintiffs for a sale consideration of Rs. 15,50,000/-(Fifteen Lacs and Fifty Thousand) vide agreement to sell dated 25.08.2004, after receiving the earnest money of Rs. 50,000/-(Fifty thousand only). Muhammad Saeed, brother of the Petitioners/Defendants No. 1 & 2 performed his part of contract and was not impleaded in instant suit and the Petitioners/Defendants No. 1 & 2 although conceded the execution of agreement to sell dated 25.08.2004 but refused to execute sale deed on the ground of alleged failure of the plaintiffs to pay the balance amount within specified time i.e. 28.11.2004. During the pendency of ejectment petition, an amount of Rs. 4,00,000/-was paid by the plaintiffs to Mohammad Saeed on 29.03.2005 before the learned Rent Controller and he executed the sale deed in favour of plaintiffs to the extent of his share in suit property while time of execution of sale deed was extended by the rest of executants of agreement to sell, after recording the statements before the learned Rent Controller. The learned counsels for the contesting parties also recorded second statements on 09.05.2006 before the learned Rent Controller, Sheikhupura, wherein the Defendants No. 1 & 2 / petitioners acknowledged the receipt of another amount of Rs. 1,00,000/-. Hence, after the receipt of additional two payments of Rs. 5,00,000/-(Five Lacs) by the executants of agreement to sell and extending time of execution of sale deed twice, the Defendants No. 1 & 2/petitioners cannot agitate the legal proposition that the time was the essence of the contract. By receiving above said amount(s), Defendants No. 1 & 2/Petitioners No. 1 & 2 mutually agreed with the plaintiffs to extend time in agreement to sell therefore time does not remain as an essence of the contract. The Hon’ble Supreme Court of Pakistan in a case reported as Hafiz Shaikh Anwar-Ul-Haque through L.Rs vs. Jehan Khan and others (PLD 2011 SC 540) held that:

“……. In law, if time is extended for performance of a contract pertaining to immovable property, then time can never be enforced as of contract …….”

The Hon’ble Supreme Court of Pakistan in a case reported as Ghulam Nabi and others vs. Seth Muhammad Yaqub and others (PLD 1983 SC 78) also held that:

“…….Though time is not ordinarily considered as being of the essence of the contract involving transaction of immovable property but the true intention of the parties can be gathered from the terms of contract and facts and circumstances of the case and mere mention of time in the contract for its performance does not necessarily mean that time was the essence of contract…..”

In a case reported as Faryad Ali vs. Rehmat Ali (PLD 2015 Lahore 75), it has been held that:-

“……In this contract as I have noticed that the defendant/respondent himself is receiving the money and extending the period and further that the defendant/respondent has never given any notice for termination of the contract on the basis that the time was essence of the contract and the plaintiff/petitioner could not perform his part of the contract…...”

1. It is important to mention here that even after execution of agreement to sell and receipt of amount(s) before the learned Rent Controller, the petitioners not only failed to withdraw the ejectment petition as is specifically agreed in agreement to sell between the plaintiffs and Defendants No. 1 and 2/petitioners which was dismissed by the learned Rent Controller after discussing all the questions of facts and law vide judgment dated 22.02.2007 but also filed an appeal against the judgment which was also dismissed. The learned Courts below have granted relief by considering the conduct of the parties, the principles of equity, fairness and good conscious by appreciating the pleadings of the parties as well as oral and documentary evidence of the parties and thereafter reached at the conclusion regarding the controversy, therefore, findings of learned Courts below are hereby maintained/ upheld.

2. Even otherwise, with respect to interference in concurrent findings of the Courts below, the Hon’ble Supreme Court of Pakistan in a case reported as Administrator, Thal Development through EACO Bhakkar and others vs. Ali Muhammad (2012 SCMR 730) held that:-

“Concurrent findings of the trial Court and appellate Court in favour of appellants were based on proper appreciation of evidence therefore, the same were not open to interference by the revisional Court in exercise of its jurisdiction under Section 115, C.P.C. which is primarily meant for correction of jurisdictional defect/error and material illegalities/ irregularities, resulting in miscarriage of justice to a party.”

1. Neither any misreading or non-reading of evidence on record nor any infirmity, legal or factual, has been pointed out in the impugned judgments and decrees passed by the learned Courts below, therefore, this civil revision is hereby dismissed.

(Y.A.) Civil revision dismissed

PLJ 2024 Lahore 156

Present: Masud Abid Naqvi, J.

IJAZ AHMAD KHAN--Petitioner

versus

MUHAMMAD BOOTAY KHAN deceased through his Legal Heirs etc.--Respondents

C.R. No. 78446 of 2023, decided on 5.12.2023.

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

----S. 12(2)--Qanun-e-Shahadat Order, (10 of 1984), Art. 129(c)--Constitution of Pakistan, 1973, Art. 150--Ex-parte decree--Filling of application for set aside ex-parte decree--Dismissed--Submission of wakalatnama and written reply by petitioner--Suit was decreed on merits--Appeal--Modification in judgment--Appeal was accepted ex-parte decided--Authentiaty of judicial record--Challenge to--Limitations--Petitioner had alleged in petition under Section 12(2) of CPC that he neither received any notice in suit nor he filed written statement--Record negates council’s allegations as present petitioner was arrayed as Defendant No. 11 in suit, wherein, he submitted Wakalatnama and also submitted his written statement and written reply duly signed by him through his counsel and ultimately suit was decreed on merits--The petitioner had alleged fraud and representation against respondents without any solid proof--Mere allegation not supported by any material would not invariably warrant inquiry or investigation--Counsel for petitioner failed to satisfy judicial conscious of Court as presumption of truth was attached to record of Court--Authenticity of judicial record could not be doubted without any solid proof and only on oral arguments of counsel--Petition dismissed.

[Pp.157, 159 & 160] A, B, C, D, E & F

PLD 2019 SC 504, 2006 SCMR 1931, 2002 SCMR 1554 and 2011 SCMR 8 ref.

Sh. Naveed Shahryar, Advocate for Petitioner.

Date of hearing: 5.12.2023.

Order

Brief facts necessary for the adjudication of this lis are that the petitioner/applicant filed an application under Section 12(2) CPC to challenge the order & decree dated 11.02.2017 with the averments that the petitioner/applicant had no knowledge about the pendency of appeal as no notice/summon was served to the applicant and neither the applicant appeared before the learned appellate Court nor appointed any counsel. Hence, order & decree dated 11.02.2017 is result of fraud, mis-representation having no effect upon the rights of the petitioner and further prayed that judgment & decree dated 17.09.2013 passed by learned trial Court may also be set aside. The said application was contested by the then Respondents No. 1-A, 1-B, 1-E, 1-F to H by filing written reply while learned counsel for Respondents No. 5 to 9 had no objection to the acceptance of the application however Respondents No. 2, 4, 6 to 8 & 10 to 15 were proceeded against ex-parte. After hearing the arguments advanced by the contesting parties, the learned District Judge Faisalabad vide order dated 17.10.2023 dismissed the application. Feeling aggrieved, the petitioner/applicant has filed the instant civil revision and challenged the validity of the impugned order passed by the learned District Judge Faisalabad.

1. I have heard the arguments of learned counsel for petitioner and gone through the record.

3. Perusal of record reveals that petitioner has alleged in the petition under Section 12(2) of CPC that he neither received any notice in the suit nor he filed written statement and Respondent No. 1 in the petition filed forged written statement & reply to application with forged signature of petitioner and his counsel neither cross examined the witnesses of Respondent No. 1 nor produced evidence of petitioner just to give favour to Respondent No. 1/plaintiff, however, record negates his allegations as the present petitioner was arrayed as Defendant No. 11 in the suit, wherein, he submitted Wakalatnama and also submitted his written statement and written reply duly signed by him through his counsel and ultimately the suit was decreed on merits vide judgment and decree dated 17.09.2013 which was not challenged by the present petitioner before any higher forum. In so far as the appeal is concerned, the petitioner alleged that he was not served notice therefore he has no knowledge about the pendency of appeal, however, record contradicts his stance as in appeal petitioner’s name is mentioned as Respondent No. 3 and his address is the same in appeal as he has mentioned in petition under Section 12(2) CPC and also in the instant civil revision i.e. Chak No. 207-RB, Abadi Gujjar Khan Wala, Tehsil & District Faisalabad. The petitioner/applicant was issued notice by adopting due process and even after publication of advertisement in newspaper on 26.11.2013 but he did not appear before the learned appellate Court and ultimately proceeded against ex-parte and thereafter on the basis of statements of the contesting parties, the appeal was accepted by modifying the judgment and decree of the learned trial Court dated 17.09.2013 vide order & decree dated 11.02.2017. All the parties to the suit and appeal are closely related to each other and close relatives of petitioner. Hence, it cannot be believed that petitioner was not aware of the proceedings in suit and appeal.

It is also proper to mention here that against the judgment and dated 11.2.2017 passed by the learned appellate Court, the then Defendant No. 28 namely Farman Ullah Riaz S/O Rana Riaz Ahmad filed W.P.No. 30245-2017 titled Muhammad Farman Ullah Riaz vs. Muhammad Bootay Khan etc wherein the present petitioner was impleaded as Respondent No. 3. Notice was issued by this Court in above mentioned writ petition which was personally served through process server to the present petitioner on 13.07.2017 but present petitioner never appeared before this Court in the above mentioned writ petition and the same was dismissed through judgment dated 11.10.2018 by this Court. The then petitioner namely Farman Ullah Riaz preferred C.A. No. 90 of 2021 before the Hon’ble Supreme Court of Pakistan which was also dismissed as withdrawn.

What has been discussed in above paras, petition under Section 12(2) CPC is also dismissed being barred by limitation because even in the W.P.No. 30245-2017, notice was again served on 13.07.2017 to the present petitioner and present petitioner filed application under Section 12(2) CPC before the learned District Judge on 16.07.2022 while period of limitation to file an application under Section 12(2) CPC is three years from the date of knowledge of previous litigation. In this regard reliance is placed on the judgment reported as Bashir Ahmed through Legal Representative and others vs. Muhammad Hussain and others (PLD 2019 Supreme Court 504), which holds as under:

“A careful reading of the above provision clearly reveals that the period of limitation to file an application under Section 12(2) of the C.P.C. would be three years, and the crucial starting point for the period of limitation would be when the right to apply accrues to the aggrieved applicant, which in case of an application under Section 12(2) of the C.P.C. would be the date when the impugned decision based on fraud and concealment was passed In case the aggrieved person has, by means of fraud, been kept from the knowledge of decision of the Court, he may then seek the extension of the commencing point of the period of limitation of three years from the date of decision under Article 181 of the Act, to the date of knowledge of the said decision under Section 18 (supra).

Reliance is also placed on the cases reported as Faizum alias Toor vs. Nander Khan and others (2006 SCMR 1931) & Fida Hussain vs. Ghulam Sarwar (2002 SCMR 1554).

1. Law of limitation is considered to be preventive in nature which serves as a major deterrent against the factors and elements which can affect peace, tranquility and due order of State and society and bar of limitation in litigation also brings forth valuable rights in favour of other party. The law of limitation requires that a person must approach a Court of law and take legal remedies with due care, diligence and within the time provided by the law, which is not the case in hand, hence, the application under Section 12(2) of C.P.C. was/is hopelessly time barred.

2. As regards the contention of the learned counsel for the applicant/petitioner that limitation is a mere technicality, the same is not tenable. While dealing with the afore-noted question, the Supreme Court of Pakistan has held that the question of limitation cannot be termed to be a mere technicality and cannot be ignored while deciding cases. For reference reliance can be placed on Mst. Musarat Parveen v. Muhammad Yousaf and others (2023 SCMR 1665), Messrs Pak Suzuki Motors Company Limited through Manager v. Faisal Jameel Butt and another (PLD 2023 S.C. 482), Muhammad Anwar (decd) through L.Rs. and others v. Essa and others (PLD 2022 S.C. 716), Abdul Sattar v. Federation of Pakistan and others (2013 SCMR 911) and Muhammad Islam v. Inspector General of Police, Islamabad and others (2011 SCMR 8).

3. The petitioner has alleged fraud and representation against the respondents without any solid proof. Mere allegation not supported by any material would not invariably warrant inquiry or investigation. All these abovementioned facts negate the claim/ground as written in application for setting aside the impugned judgment. Therefore, plea being raised by the petitioner/ applicant at this stage has no force. Learned counsel for the petitioner/applicant failed to satisfy the judicial conscious of the Court as presumption of truth is attached to the record of the Court under Article 129 (e) of the Qanun-e-Shahadat Order, 1984 and Article 150 of the Constitution of Islamic Republic of Pakistan, 1973. Authenticity of the judicial record cannot be doubted without any solid proof and only on the oral arguments of the learned counsel. Learned counsel for petitioner/ applicant has not been able to point out any plausible ground due to which he is seeking setting aside of the impugned order, hence, he is not entitled to any relief. It is a well settled principle that once the dispute is settled, the same cannot be allowed to be set at naught through the malafide act of the aggrieved party.

4. In view of the foregoing discussion, this Court is of the considered view that learned District Judge has rightly dismissed the application of the petitioner. The impugned order has been passed

after properly discussing in detail the un-rebuttable facts of the case and keeping in view the settled law. No infirmity, legal or factual, has been pointed out in the impugned order, requiring interference, therefore, this petition is dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 160

Present: Shahid Bilal Hassan, J.

Mst. NAWAB BIBI (deceased) through L.Rs.--Petitioners

versus

HAKIM ALI and others--Respondents

C.R. No. 2312 of 2014, heard on 4.10.2023.

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

----S. 42--Inheritance--Sole legal heir--Determination of faith--Hearsay evidence--Pedigree table--Concurrent findings--Suit for declaration--Entitlement for 1/2 share--Deprivation from lawful right--Challenge to--There is no principle of universal application to determine faith of a person except direct disclosure by words from mouth of deceased, circumstantial evidence of conduct of deceased and opinion of witnesses--When predecessor in interest of present petitioners had failed to prove that Shera was professing Shia faith during his life time, ultimate result would be that he was Sunni by faith and same had rightly been determined and declared as such by Courts below--Predecessor of petitioners in connected revision petition knowingly and deliberately did not disclose name of daughter of deceased Shera only to deprive her from her lawful right--Courts below have rightly adjudged that Mst. Nawab Bibi being daughter and legal heir of Shera was entitled to inherit 1/2 of disputed property, owned by Shera--The findings recorded on this score being based on proper appreciation of evidence were upheld and maintained--Courts below had committed no illegality, irregularity and wrong exercise of jurisdiction--Revision petition dismissed. [Pp.162 & 163] A, B, C, D & F

PLJ 2023 SC 8, 2014 SCMR 1469, 2014 SCMR 161, 2017 SCMR 679, PLD 2022 SC 13 and PLD 2022 SC 21 ref.

Limitation--

----When question of inheritance is involved limitation does not run--Moreover, when foundational transaction is based on fraud and mala fide, subsequent superstructure built thereon cannot be allowed to stand and ultimately collapses. [P. 163] E

Mr. Ijaz Hussain, Advocate for Petitioners.

Syed Kaleem Ahmad Khurshid and Sultan Mehmood, Advocates for Respondents No. 4 to 9.

Respondents No. 1 to 3 Ex parte on 3.10.2016.

Date of hearing: 4.10.2023.

Judgment

This single judgment shall decide the captioned revision petition and connected C.R.No. 1992 of 2014, as both are outcome of one and the same impugned judgments and decrees.

1. Purportedly, Mst. Nawab Bibi was the sole legal heir of her father namely Shera son of Allah Din and being his sole legal heir, she was entitled to inheritance of legacy of the said Shera but the predecessors in interest of the Respondents Namely Fazal Din, Elahi Bukhsh, Allah Dad, Roshan and Jhanda got incorporated a false, bogus and fraudulent Mutation No. 80/437 of inheritance of deceased Shera by showing therein that deceased Shera had one brother and one daughter but both had died prior to death of Shera and in the absence of other legal heirs, above said Fazal Din, etc. were entitled to inherit the property of deceased Shera; therefore, the above said inheritance mutation was sanctioned by the revenue officer on 03.12.1955. In 1993, the predecessor in interest of the petitioner(s) namely Mst. Nawab Bibi daughter of Shera came to know about the alleged fraudulent, forged and frivolous mutation of inheritance ibid and instituted suit for declaration by challenging the validity of the same. The Defendants Namely Azmat Bibi, Hakim Ali, Rajoo Bibi, Bashir Ahmad, Nazir Ahmad, Ghafoor and Manzoor submitted their conceding written statements, whereas the Defendants No. 5 to 9 and Defendants No. 3-A to 3-C contested the suit. The divergence in pleadings of the contesting parties was summed up into issues by the learned trial Court. Evidence of the parties in pro and contra was recorded. On conclusion of trial, the learned trial Court dismissed the suit vide judgment and decree dated 21.11.2000. An appeal was preferred by the aggrieved party, which was allowed on 14.06.2001 and case was remanded to the learned trial Court for decision afresh. After remand, the learned trial Court vide judgment and decree dated 19.01.2002 decreed the suit in favour of Mst. Nawab Bibi. Bashir Ahmad, etc. being aggrieved preferred an appeal which was dismissed on 06.01.2003. Revision petition was filed, which was allowed vide order dated 12.03.2012 and the case was remanded to the learned trial Court for decision afresh. The learned trial Court framed additional Issue 1-A (Whether the deceased father of deceased plaintiff was Shia by faith? OPP). After this, evidence of the parties was recorded on additional issue. The learned trial Court vide impugned judgment and decree dated 21.02.2013 decreed the suit of the petitioner(s)/plaintiff(s) to the extent of 1/2 share as inheritance from the legacy of the deceased Shera. The petitioner(s)/plaintiff(s) being aggrieved preferred an appeal but the same was dismissed vide impugned judgment and decree dated 02.05.2014; hence, the instant revision petition by Mst. Nawab Bibi through her legal heirs with the prayer that she is entitled to inherit half property of deceased Shera as sharer and half as return, whereas the petitioners in connected C.R.No. 1992 of 2014 have prayed for setting aside the impugned judgments and decree and dismissal of the suit of Mst. Nawab Bibi.

2. Heard.

3. Every Muslim in the sub-continent is presumed to belong to Sunni sect, unless ‘good evidence’ to the contrary is produced by the party contesting the same. The judicial determination of whether the said presumption of faith of a party, positively stands rebutted, would be adjudged by the Court on the principle of preponderance of evidence produced by the parties. No strict criteria can be set to determine the faith of a person and therefore to pass any finding thereon, the Courts are to consider the surrounding circumstances i.e. way of life, parental faith and faith of other close relatives. Reliance in this regard is placed on Mst. Chanani Begum (Deceased) through LRs. v. Mst. Qamar Sultan (2020 SCMR 254) and Abdul Rehman and others v. Mst. Allah Wasai and others (2022 SCMR 399). Further reliance in this regard can also be placed on judgment reported as Ghulam Shabbir and others v. Mst. Bakhat Khatoon and others (2009 SCMR 644). A detailed analysis in this regard, by referring the least precedents rendered by the Privy Council and Courts, has been made by this Court in judgment reported as Tahira Bibi v. Muhammad Khan, etc. (PLJ 2019 Lahore 829), which does not need to re-discussed here again as the crux of the observation is that there is no principle of universal application to determine the faith of a person except direct disclosure by words from the mouth of deceased, circumstantial evidence of the conduct of deceased and opinion of witnesses.

In the present case, the Issue No. 1-A is pivotal which was framed with regards to faith of the deceased Shera. The deposition of P.W.1 is hearsay as he, during cross examination, deposed that daughter of Shera told him that Shera was Shia by faith, so his evidence has rightly been discarded. P.W.2 namely Haji Ejaz deposed that he did not know Shera and never saw him, so his evidence has also no value in the eye of law. Evidence of P.W.3 is not worthy of credence because admittedly Shera died in 1949 and at that time age of this P.W. has rightly been counted as seven(7) years because he mentioned his age as 71 years at time of recording his evidence. Moreover, his deposition is beyond the pleadings when he deposed that Shera died in the year 1956, whereas the same has been pleaded as 1949. P.W.4 deposed that he did not know Shera. It means that the depositions of all the P.Ws. is based on hearsay and is not based on personal knowledge; therefore, the same is rightly been discarded and disbelieved. When the predecessor in interest of the present petitioners namely Mst. Nawab Bibi has failed to prove that Shera was professing Shia faith during his life time, the ultimate result would be that he was Sunni by faith and the same has rightly been determined and declared as such by the learned Courts below while passing the impugned judgments and decrees.

1. So far as the claim of the petitioners in connected revision petition is concerned, it is observed that pedigree table prepared by the revenue authority during mutation proceedings, on the information provided by the predecessor in interest of the petitioners, in connected revision petition, which divulges that Shera had a daughter but she was shown to be dead and her name was not disclosed. Meaning thereby the predecessor of the petitioners in connected revision petition knowingly and deliberately did not disclose name of Mst. Nawab Bibi, daughter of the deceased Shera only to deprive her from her lawful right. Therefore, in presence of admission of D.W.1 that Shera was original owner of the disputed property and Mst. Nawab Bibi was the only daughter and legal heir of the said Shera, the learned Courts below have rightly adjudged that Mst. Nawab Bibi being daughter and legal heir of Shera is entitled to inherit 1/2 of the disputed property, owned by Shera. The findings recorded on this score being based on proper appreciation of evidence are upheld and maintained.

2. Question of limitation has also rightly been adjudicated upon by the learned Courts below because fraud vitiates the most solemn transaction and in such like position, when question of inheritance is involved the limitation does not run. Moreover, when the foundational transaction is based on fraud and mala fide, the subsequent superstructure built thereon cannot be allowed to stand and ultimately collapses. Furthermore, the concurrent/coexisting possession of the deceased petitioner Mst. Nawab Bibi and after her demise, that of the present petitioners, her successors, would be considered.

3. Pursuant to the above, it is held that the learned Courts below have committed no illegality, irregularity and wrong exercise of jurisdiction, rather after evaluating evidence on record have reached to a just conclusion that the petitioners/defendants have miserably failed to prove their case through trustworthy and reliable evidence. The impugned judgments and decrees do not suffer from any infirmity rather law on the subject has rightly been construed and appreciated. As such, the concurrent findings on record cannot be disturbed in exercise of revisional jurisdiction under Section 115 of Code of Civil Procedure, 1908. Reliance is placed on judgments reported as 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), Muhammad Farid Khan v. Muhammad Ibrahim, etc. (2017 SCMR 679), Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 Supreme Court 13) and Mst. Zarsheda v. Nobat Khan (PLD 2022 Supreme Court 21) wherein it has been held that:

‘There is a difference between the misreading, non-reading and misappreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law. This Court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) held that the concurrent findings of three Courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage.’

Further in judgment reported as Salamat Ali and others v. Muhammad Din and others (PLJ 2023 SC 8), it has invariably been held that:

‘Needless to mention that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below.’

1. For the foregoing reasons, the revision petition in hand and connected C.R. No. 1992 of 2014 come to naught and the same stand dismissed. No order as to the costs.

(Y.A.) Revision petition dismissed

PLJ 2024 Lahore 165

Present: Shahid Bilal Hassan, J.

MUHAMMAD AWAIS--Petitioner

versus

ZAHIDA PARVEEN--Respondent

C.R. No. 44034 of 2019, heard on 5.10.2023.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Muslim Family Laws Ordinance, (VIII of 1961), Ss. 7(1) & 10--Civil Procedure Code, 1908, S. 115--Suit for recovery of gold ornaments and damages on account of divorce--Condition of divorce was mentioned in Nikahnama--Suit was dismissed--Appeal--Allowed--Writ petition--Accepted--Matter was remanded--Decreed--Nikahnama was not challenged by appellant--Entitlement for gold ornaments--Absolute right of divorce--Jurisdiction concurrent findings--Nikahnama was per se admissible in evidence and entries of same had not been challenged by petitioner before any forum at relevant time--The petitioner’s side could not shake veracity of testimonies of P.Ws. rather witnesses remained firm and unscathed--It can safely be concluded that respondent had rightly been held entitled to recover 8-tolas gold ornaments from petitioner as agreed by him at time of Nikah--Findings of Courts below to this extent were upheld and maintained--A husband has an absolute right to divorce his wife--No condition is described in Shariah as well as in codified law--Courts below had failed to adjudicate upon matter in hand to extent of question of compensation in lieu of divorce by appreciating law on subject; High Court was vested with ample jurisdiction and authority to undo concurrent findings in exercise of revisional jurisdiction--Revision petition partially allowed. [Pp.167 & 168] A, B, C, D & E

2008 SCMR 186, 2012 CLC 837, 2018 CLC 1884 Lah., PLJ 2021 Lahore 485, 2022 CLC 24 Lah., 1993 SCMR 321, 2010 SCMR 1630, 2004 SCMR 1001, 2020 CLC 1039 Lah. ref.

Sardar Abdul Majeed Dogar, Advocate for Petitioner.

Mr. Sukrat Mir Basit, Advocate for Respondent.

Date of hearing: 5.10.2023.

Judgment

Tersely, the respondent instituted a suit for recovery of gold ornaments weighing 8-tolas and Rs. 500,000/-as damages on account of divorce, against the present petitioner. It was maintained that her Nikah was solemnized on 25.11.2008 with the present petitioner and dower amount was fixed at Rs. 1,000/-. In Column No. 17 of the Nikahnama special condition was mentioned that the petitioner/ defendant would give 8-tolas gold ornaments to the respondent/ plaintiff which would be property of the respondent/plaintiff; that it was also mentioned in Nikahnama if that the petitioner/defendant divorces the respondent/plaintiff, he would pay Rs. 500,000/-as compensation. It was averred that the petitioner/defendant divorced the respondent on 15.01.2009; therefore, she instituted suit. The learned trial Court dismissed the suit on 12.02.2010. The respondent/plaintiff being aggrieved preferred an appeal, which was accepted on 02.06.2010 and case was remanded to the learned trial Court. The petitioner/defendant challenged the said remand order through writ petition which was accepted by this Court on 25.11.2011 and decision of the learned Judge Family Court was restored. Therefore, the respondent/plaintiff filed a suit for recovery of 8-tolas gold ornaments and Rs. 500,000/-before the Civil Court. The petitioner/defendant contested the suit by submitting written statement. Divergence in pleadings of the parties was summed up into issues and evidence of the respondent/plaintiff was recorded. The petitioner/defendant could not produce evidence so his right to lead evidence was closed and suit of the respondent/plaintiff was decreed vide judgment and decree dated 09.01.2018. The petitioner/ defendant being aggrieved preferred an appeal but the same was dismissed vide impugned judgment and decree dated 11.06.2019; hence, the instant revision petition.

1. Heard.

2. It is claim of the respondent that Nikah inter se the parties was solemnized on 25.11.2008 and at the time of Nikah, the present petitioner agreed to give 8-tolas gold ornaments to the respondent/ plaintiff and a stipulation was imposed on the right of divorce of the present petitioner that if he divorces the respondent, he will pay Rs. 500,000/-in lieu thereof. Now, the petitioner has divorced the respondent and has not paid the above said gold ornaments and compensation in lieu of divorce therefore, the respondent is entitled to the same. The petitioner/ defendant denied the averments of the plaint and contended that he did not enter into nuptial tie with the respondent with his free will rather his thumb impression was obtained by force.

3. In order to substantiate her claim, the respondent produced Nikah Khawan, witnesses of marriage besides her own deposition in the witness box. All the witnesses have corroborated the stance of the respondent with regards to the entries made in the Nikahnama germane to gold ornaments and stipulation as well as restriction on right of divorce by the petitioner, which have been mentioned in columns No. 17 and 19 of the Nikahnama. The petitioner could not lead evidence as to obtaining of his thumb impression on the Nikahnama by force and under undue influence by the respondent and even the same does not appeal to prudent mind. The Nikahnama is per se admissible in evidence and entries of the same have not been challenged by the petitioner before any forum at the relevant time. Even otherwise, the entries of the Nikahnama have been proved by the respondent by producing oral as well as documentary evidence. As against this, the petitioner could not lead evidence in rebuttal as his right to produce evidence was closed by the learned trial Court and he remained unsuccessful in getting the said order reversed by the higher Courts despite availing of the remedy provided under law. Meaning thereby the evidence of the respondent on this point is unrebutted and even during cross examination, conducted on the P.Ws. the petitioner’s side could not shake the veracity of the testimonies of the P.Ws. rather the witnesses remained firm and unscathed. Therefore, it can safely be concluded that the respondent has rightly been held entitled to recover 8-tolas gold ornaments from the petitioner as agreed by him at the time of Nikah with the respondent, by the learned Courts below. As such, the findings of the learned Courts below to this extent are upheld and maintained.

4. So far as the claim of the respondent for recovery of Rs. 500,000/-as compensation in lieu of divorce is concerned, it is observed that in the Holy Quran in Surah Al-Baqra and Surah Talaq the delegation of right of divorce has been described in detail. Similary, section 7(1) of the Muslim Family Laws Ordinance, 1961 deals with the matter of Talaq. The provision of Section 105 of the Code of Muslim Personal Laws also caters this thing that a husband has an absolute right to divorce his wife. In this respect, no condition is described in Shariah as well as in the codified law. Reliance in this regard is placed on judgment reported as Muhammad Bashir Ali Siddiqui v. Muhammad Sarwar Jahan Begum (2008 SCMR 186), wherein it has been observed that no condition can be imposed on the husband if he desires to divorce his wife, because the right of divorce has been given by Almighty Allah to the husband and this proposition has been discussed in detail. The said view has been adopted in judgment reported as Mst. Zeenat Bibi v. Muhammad Hayat and 2 others (2012 CLC 837-Lahore) on this point and most recent this view has been reiterated in judgments reported as Muhammad Asif v. Mst. Nazia Riasat and 2 others (2018 CLC 1844-Lahore), Muhammad Sajjad v. ADJ etc. (PLJ 2021 Lahore 485) and Mujahid Karman v. Mst. Saira Aziz and 2 others (2022 CLC 24-Lahore) by this Court. In Muhammad Bashir Ali Siddiqui’s case supra, the Apex Court of the country has held that:-

‘His only contention was that such condition was embodied in the Nikahnama by way of safety and for prolongation of marriage contract, as it would deter both the parties from bringing an end to the marriage contract. This contention to say, the least is absolutely frivolous as it is against the basic principle of law which require the parties to remained in marital ties in a peaceful and tranquil atmosphere and are not required to be bound by stringent conditions to remain in marriage bond.’

The principles laid down by the Apex Court of the country in the judgment of Muhammad Bashir Ali Siddiqui ibid shall prevail in view of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, it is observed without any hesitation that the learned Courts below have failed to adjudge the case on the point of compensation of Rs. 500,000/-in lieu of divorce as per settled principles and norms. Therefore, to this extent the impugned judgments and decrees are not sustainable in the eye of law.

1. For the foregoing reasons, it is observed that the learned Courts below have failed to adjudicate upon the matter in hand to the extent of question of compensation in lieu of divorce by appreciating law on the subject; therefore, this Court is vested with ample jurisdiction and authority to undo the concurrent findings in exercise of revisional jurisdiction under Section 115, Code of Civil Procedure, 1908 as has been held in Mst. Nazir Begum v. Muhammad Ayyub and another (1993 SCMR 321), Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630), Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCMR 1001) and Muhammad Khubaib v. Ghulam Mustafa (deceased) through LRs (2020 CLC 1039-Lahore). Resultantly, the revision petition in hand is allowed partially and impugned judgments and decrees to the extent of awarding compensation in lieu of divorce is set aside, consequent whereof the suit of the respondent to this extent stands dismissed. No order as to the costs.

(Y.A.) Revision partially allowed

PLJ 2024 Lahore 169

Present: Shahid Jamil Khan, J.

MUHAMMAD RAZZAQ, etc.--Petitioners

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. No. 5973 of 2017, heard on 16.11.2023.

Police Order, 2002 (10 of 2002)--

----S. 37--Constitution of Pakistan, 1973, Art. 199--Police reforms--Writ petition--Direction to comply with mandatory provisions of law--No compliance--Recommendations of standing committee--Statutory obligation--Direction to--The decision by Cabinet and recommendations of Standing Committee, did not show a plausible reason under law for abdicating responsibility--The excuse placed before High Court by AG Punjab was not in accordance with spirit of Constitution and law, was rejected--In absence of newly elected representation, representatives lastly elected by people should continued to represent people unless newly elected representatives replace them--There could be a gap for people to exercise sovereignty through their elected representation--Petition disposed of. [Pp. 172 & 174] A, D & E

Constitution of Pakistan, 1973--

----Art. 5--Violation of law--Any public authority if overlooks or abdicates a statutory duty, is violating law and Article 5 of Constitution--The loyalty of public servant has to be with State without any political tilt or influence. [P. 173] B

Police Order, 2002 (10 of 2002)--

----S. 37--Constitution of Pakistan, 1973, Art. 140-A--Public chak--A public check, through their chosen representatives, is envisaged on misuse of power by police. [P. 174] C

Mr. Usama Khawar Ghumman, Advocate assisted by Hasan Safdar Khan, Rana Zohaib, Asfand Javed, Rai Riaz Ahmad, Zohaib Ali Sidhu, Syed Ali Talab, Ch. Aqib Ali, Ch. Muslim Abbbas, Dabeer Ali Awan, Abbas Shehryar Ch. and Muhammad Afzal Dharala, Advocates for Petitioners.

Syed Sajjad Haider Rizvi, Assistant Attorney General for Federation.

Mr. Khalid Ishaq, Advocate General, Punjab for Province.

Mr. Waseem Majeed Malik, Additional Advocate General, Punjab.

Mr. Muhammad Afzal Bashir, Deputy Secretary (Law) Home Department.

Syed Tahir Raza, Section Officer (P-III), Home Department.

Date of hearing: 16.11.2023.

Judgment

This judgment shall decide captioned writ petition along with W.P. No. 24512 of 2019, which have been filed in public interest regarding police reforms under the provisions of Police Order, 2002. It is alleged that statutory bodies i.e. Provincial Public Safety Commission and District Public Safety Commission have not been constituted.

1. This Court in number of orders passed directions to the respondents to comply with the mandatory provisions of law. In response a report in compliance of direction by this Court was submitted, which is reproduced:-

COMPLIANCE REPORT

The report is being filed in compliance with the order dated 22.05.2023 passed by this Honorable Court which is reproduced as under:

“Additional Secretary (Police), Home Department, present before the Court, is confronted about constitution of District Public Safety Commission and Police Complaint Commission. He could not show from record and requests for some time for proper assistance. Also submits that due to non-availability of elected representatives for constitution of Commissions, it has been deferred when moved for placement before the Cabinet.

1. The forums, meant for relief or enforcement of public rights, cannot be kept non-functional or non-constituted on mere technicalities and for non-availability of some of the members.

2. Learned AAG shall assist the Court, by referring to relevant provisions and rules, why these Commissions cannot be constituted. The Additional Secretary is directed to move a summary, to be placed before the Cabinet and Cabinet decide regarding constitution of the Commissions, at first instance.”

3. In pursuance of the above directions of the Honourable Court, a meeting of the Committee constituted by the Chief Ministervide Notification dated 04.11.2020 (Annex-A) to review the matter of establishment of institutions / commissions / authority / committee envisaged under Police Order, 2002, was convened on 05.06.2023 under the Convenership of Advisor to Chief Minister for Law & Parliamentary Affairs Department to deliberate upon the matter.

4. After detailed deliberations, the Committee unanimously decided that in compliance with Honourable Lahore High Court, Lahore’s order dated 22.05.2023 a Summary for Chief Minister may be moved requesting for placing the matter before the Caretaker Provincial Cabinet for appropriate decision.

5. Accordingly, in compliance with the above order dated 22.05.2023 of this Honourable Court, a Summary for Chief Minister has been initiated / moved on 07.06.2023 requesting to place the matter before the Caretaker Provincial Cabinet for appropriate decision. This Honourable Court will be apprised about the decision taken by the Caretaker Provincial Cabinet as soon as arrived.

6. Foregoing in view, the direction of the Honourable Lahore High Court to move a Summary for Chief Minister has been complied with in letter and spirit.

7. Submitted please.

Learned Law Officer also placed on record the Cabinet’s decision, relevant paragraph of which is reproduced:

“The Cabinet unanimously ratified minutes of subject agendas of 4th meeting of the Caretaker Standing Committee of Cabinet on Legislative Business & Privatization held on 11.07.2023.”

While ratifying the decision of Caretaker Standing Committee of the Cabinet, it was decided that matter shall be taken up by the new government based on elected representatives. The recommendations of the Standing Committee are also reproduced:-

“The Standing committee of Cabinet on Legislative Business and Privatization considered and recommended that the matter of the establishment of Provincial Public Safety Commission and District Public Safety may be placed before the new elected Provincial Assembly/Chief Minister as and when formed after forthcoming elections.”

1. Bare perusal of the recommendations shows that no law has been referred for deferring the matter, showing incompetence by the Caretaker Government. The Provincial Public Safety Commission and District Public Safety Commission are to be constituted by the Provincial Government under Section 37 of The Police Order 2002, which is reproduced:

“37. Establishment of District Public Safety and Police Complaints Commission. (1) The Provincial Government shall establish a District Public Safety and Police Complaints Commission in every District, including Capital City District, consisting of nine members one of whom shall be the Chairperson.

(2) The Commission shall have its independent budget under a separate budgetary head of account, Drawing and Disbursing Officer and the Chairperson of the Commission shall be its Principal Accounting Officer.”

It is statutory duty of the Provincial Government to comply with the provisions, enforcement of which is sought through this writ petition. The decision by the Cabinet and recommendations of the Standing Committee, as noted above, do not show a plausible reason under the law for abdicating the responsibility. The Advocate General, Punjab was directed to assist the Court regarding consequence of denying to comply with statutory obligation by the Provincial Government which may be a Caretaker Government.

4. Learned Advocate General, Punjab has shown Provincial Government’s incapacity for establishment of District Public Safety Commission and Provincial Public Safety Commission for the reason that elected Members of the Zila Councils for the District and Capital City are not available.

He is confronted that establishment of Commission and notification of the members are two different steps. Under Subsection (2) of Section 37 of the Police Order 2002, independent budget has to be allocated whereafter notification of the Members shall be a routine wherein elected members can be notified or re-notified from time to time. It is admitted position that since promulgation of Police Order 2002, the Public Safety Commission has never been established. The excuse of leaving this matter for elected government is that elected Members for constitution of the Commission are not available. The rational behind presence of elected Members is only representation of the public for whose safety, these Commissions are to be constituted. The purpose of the Commissions is to have check on the discretionary powers of the police. Unfortunately, the statutory obligation has been overlooked by the elected as well as caretaker governments. The excuse of absence of elected representation could not have been taken after establishment of the Commission. This Court has no hesitation and doubt to observe that any public authority if overlooks or abdicates a statutory duty, is violating the law and Article 5 of the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”). The loyalty of the public servant has to be with the State without any political tilt or influence.

1. Sovereignty stemming from the Constitution is exercised by the public authorities in their respective domains by the respective laws. The law imposes an obligation upon the public officers, abdication of which, without excuse, necessarily raises question about their loyalty to the State and in particular for public or the State.

The sovereignty is best defined in the Constitution, declaring that it belongs to Allah Almighty and is sacred trust to be exercised by the people of Pakistan through chosen representatives. Unfortunately, there is and has been absence in continuity of chosen representation in the country. In particular, right of the people to govern themselves through chosen representation at local government level has always been ignored for one reason or the other. Even after insertion of Article 140A in the Constitution, the spirit is not being followed for the last thirteen years. Article 140A is reproduced:

“140A.(1) Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local government. (2) Elections to the local governments shall be held by the Election Commission of Pakistan.”

Article 140A envisages establishment of local government and thereafter devolution of political, administrative and financial responsibility and authority to the elected representatives of the local governments.

In this Court’s opinion, devolution of political, administrative and financial responsibility and authority is one time act which cannot be withdrawn after insertion of the Article 140A. There is difference between delegation and devolution. The delegation is a power of the superior forum like provincial government, which can be withdrawn at

any time. The devolution of responsibility and authority under the Constitution once given cannot be revoked. Through the dissolution of local government and role of the provincial government after devolution is not directly in question yet in this Court’s opinion, there has to be a continuity for elected representation of the people which is essence of the Constitution for exercising sovereignty. Section 37 of the Police Order 2002, if read with the preamble and Article 140A of the Constitution, clarifies without any doubt that a public check, through their chosen representatives, is envisaged on the misuse of power by the police.

1. In this Court’s opinion, the excuse placed before this Court by learned Advocate General, Punjab is not in accordance with the spirit of the Constitution and the law, therefore, is rejected.

It is, therefore, held at least for the purpose of the Section 37 that in absence of newly elected representation, the representatives lastly elected by the people shall continue to represent the people unless newly elected representatives replace them. It is reiterated that there cannot be a gap for the people to exercise sovereignty through their elected representation. The provincial government is directed to comply with the obligation of Section 37 of the Police Order 2002 within 30-days, without fail by nominating amongst last representatives of the respective local government.

So far allocation of fund or budget is concerned, that can be followed by establishment of Commission’s notification and hardship being faced by the caretaker government to be placed before this Court along with compliance report.

Disposed of.

(Y.A.) Petition disposed of

PLJ 2024 Lahore 174

Present: Shahid Bilal Hassan, J.

CHAIRMAN, NATIONAL HIGHWAY AUTHORITY through G.M. and another--Appellants

versus

ABDUL HAMEED and another--Respondents

F.A.O. No. 5549 of 2023, heard on 13.2.2024.

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

----O.V R. 20 & O.IX R. 13--Land Acquisition Act, (I of 1894), Ss. 4 & 18--Process fee and talbana was not deposited--Issuance of notices through publication--Ex-parte decree--Application for setting aside ex-parte decree--Dismissed--Violation of law--Substituted service was resorted by trial Court--Acquisition of land--Filing of reference--Award for acquisition of land--When position remained as such, act of Court for resorting to substituted service could not be said more than an illegality and nullity in eye of law--It is a settled principle of law that unless all efforts to effect service in ordinary manner are verified to have been failed, substitute service cannot be resorted to--Substituted service being in violation of law and rule laid down by Honourable Supreme Court could not be deemed to be valid service--When basic order for initiating ex parte proceedings against present appellants has no backing of law and had been passed without adopting due process of law, superstructure and edifice built thereon could not stand because if same is allowed to hold field, it would definitely infringe rights of appellants’ inalienable right of defending case and would amount to condemn appellants without affording an opportunity of hearing--Appeal accepted. [P. 177] A, B & C

2001 SCMR 99 and 1996 SCMR 1703 ref.

M/s. Azmat Hayat Khan Lodhi and Hafiz Sohaib Raza, Advocates with Muhammad Ali, D.D. Legal NHA for Appellants.

Hafiz Shaukat Ali Wains, Advocate for Respondents.

Date of hearing: 13.2.2024.

Judgment

Tersely, the facts of the case relevant for the disposal of this appeal are that a Notification under section 4 of the Land Acquisition Act, 1894 dated 26.05.2007 was issued for the construction of Habibabad Flyover Bridge, Tehsil Pattoki, District Kasur. Later on, Notification under Section 17(4) and 6 of the Act dated 3.10.2014 was also issued. After following all the procedural and codal formalities, the Award for the acquisition of the land measuring 285-Kanals was announced on 17.03.2015 whereby the acquired land of the respondents was evaluated at Rs. 75,000/- per marla alongwith 15% requisition costs and 8% compound interest. Additionally, Rs. 1,458,000/- was adjudicated as compensation for the building. Being dissatisfied with the quantum of the evaluation in the Award dated 17.03.2015, the Respondent No. 1 filed a reference under Section 18 of the Act, challenging the Award, on 23.04.2015. Alongwith the reference, the Respondent No. 1 also filed an application under Section 5 of the Limitation Act, 1908 for the condonation of delay. The reference was entrusted to the learned trial Court on 20.06.2015, wherein notices were issued to all the appellants initially vide order dated 20.06.2015. The Respondent No. 1 did not deposit the process fee and Talbana and the similar position remained till 16.06.2016. However, on 27.06.2016, ignoring the fact that the Respondent No. 1 did not deposit the process fee and Talbana, the learned trial Court resorted to issuance of notice through publication in newspaper and adjourned the case for 29.07.2016 and on the said date the present appellants were proceeded against ex parte. Eventually, the reference was decreed ex parte after recording evidence vide ex parte judgment and decree dated 09.11.2021.

The appellants on gaining knowledge on 20.11.2021 filed an application under Order IX, Rule 13, Code of Civil Procedure, 1908 for setting aside ex parte proceedings dated 29.07.2016 and decree dated 09.11.2021. The Respondent No. 1 contested the said application by filing its written reply. The learned trial Court vide impugned order dated 24.10.2022 dismissed the said application. The appellants earlier filed a writ petition against the said order but the office raised objection which was sustained vide order dated 20.01.2023; hence, the instant appeal.

1. Heard.

3. Considering the arguments and going through the record, it is observed that the matter requires consideration with regard to the applicability of the provisions contained under Order V, Rule 20, C.P.C. Record divulges that the learned trial Court ordered to issue notices to the appellants subject to deposit of process fee and Talbana by the Respondent No. 1 but the same was not deposited despite grant of different dates and the learned trial Court without considering the same resorted to substituted service through publication of court notice in the newspaper. Even if for the sake of arguments it is presumed that the process purportedly issued for the service upon the present appellants was served or refused to be accepted, the learned trial Court, before resorting to substituted service under Rule 20 of Order V, Code of Civil Procedure, 1908, could not satisfy itself by recording statement of the process server as required under Rule 19 of the Order V of the Code, 190, which stipulates:

‘19. Examination of serving officer. Where a summons is returned under Rule 17, the Court shall, if the return under that rule had not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be examined by another Court, touching hi proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.’

When the position remained as such, the act of the Court for resorting to substituted service cannot be said more than an illegality and nullity in the eye of law. It is a settled principle of law that unless all efforts to effect the service in the ordinary manner are verified to have been failed, substitute service cannot be resorted to. There is a series of authorities on this proposition of law. However, the reference can be made to Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan (2001 SCMR 99) and Haji Akbar and others v. Gul Baran and 7 others (1996 SCMR 1703). I have no, slightest doubt in holding that the orders for substitute service were passed in a mechanical fashion and without proper application of mind. Such orders were passed without ascertaining the reasons for non-service and without verifying the factum as to whether all other modes of service were exhausted and were rendered futile. In such circumstances the substituted service being in violation of the law and the rule laid down by the Honourable Supreme Court as referred above could not be deemed to be valid service. Therefore, when the basic order dated 29.07.2016 for initiating ex parte proceedings against the present appellants has no backing of law and has been passed without adopting due process of law, the superstructure and edifice built thereon i.e. subsequent ex parte decree dated 09.11.2021 cannot stand because if the same is allowed to hold field, it would definitely infringe the rights of the appellants’ inalienable right of defending the case and would amount to condemn the appellants without affording an opportunity of hearing. The above fact is sufficient to condone the delay in filing the application under Order IX, Rule 13, Code of Civil Procedure, 1908.

1. In view of the above, the appeal in hand is accepted, impugned judgment and decree dated 09.11.2021 and order dated 29.07.2016 are set aside, consequent whereof the application under Order IX, Rule 13, Code of Civil Procedure, 1908 moved by the appellants stands allowed. The trial Court is directed to proceed with the reference after obtaining reply from the present appellant and conclude the same preferably within a period of three months, even if it has to fix the case on day to day basis.

(Y.A.) Appeal accepted

PLJ 2024 Lahore 178 (FB)

Present: Muhammad Ameer Bhatti, C.J, Masud Abid Naqvi and Raheel Kamran, JJ.

MUHAMMAD ASLAM--Petitioner

versus

JUDGE FAMILY COURT, FEROZEWALA, etc.--Respondents

W.P. No. 126306 of 2017, decided on 13.2.2024.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14(2)(b)(c)--Curtailment of right of appeal--Meager amount in aggregate--Ouster clause--Object of curtailing right of appeal--Basic condition for maintenance--Plea of petitioners that curtailment of right of appeal under Section 14(2)(c) of Act was confined to a decree, which is cumulatively for an amount of Rs. 5000/- or less per month was not supported by very language of said provision--It was nowhere specified in clause 14(2)(c) that no appeal should lie from a decree cumulatively for an amount of Rs. 5000/- or less per month-- It is trite law that reading in of words or meaning into a statutory provision is not permissible when its meaning is otherwise clear-- When amount of Rs. 5000/- or less was not specified in Section 14(2)(c) to be in aggregate, decree passed for such an amount for each of claimants remains not appealable--High Court was unable to declare provision of Section 14(2)(c) of Act to be repugnant to injunctions of Islam--Order accordingly.

[Pp. 186, 187 & 190] B, C, D & G

1998 PTD 2999, PLD 2017 SC 105, 2022 SCMR 566 ref.

Constitution of Pakistan, 1973--

----Arts. 9 & 14--Family Courts Act, (XXXV of 1964), S. 14(2)(c)--Curtailing of right of appeal-- Maintenance is a basic condition for subsistence with dignity, as guaranteed under Articles 9 and 14 of Constitution--The decree for maintenance, if any, is for benefit of wife or a child--The purpose or object of curtailing and restricting right of appeal against a decree qua maintenance under Section 14(2)(c) of Act is to ensure that disputes qua maintenance are resolved expeditiously and benefits conferred through such decree reach decree holder(s) without being frustrated. [P. 185] A

PLD 1990 SC 295 ref.

Constitution of Pakistan, 1973--

----Art. 10-A--Right to fair trial--While Article 10A of Constitution guarantees right to fair trial and due process for determination of civil rights and obligations of a person, there is nothing in language of said article that guarantees at least one right of appeal against all such determinations. [P. 189] E

Constitution of Pakistan, 1973--

----Art. 203-D--Authority of Federal Shariat Court--It is essentially authority of Federal Shariat Court, if any, to declare any law repugnant to injunctions of Islam and jurisdiction of High Court in that regard is indeed expressly barred under Article 203D of Constitution. [P. 190] F

Family Courts Act, 1964 (XXXV of 1964)--

----S. 17-A(3)--Annual increase--The 17-A(3) provision comes into operation where Family Court has failed to prescribe annual increase in maintenance while passing judgment and decree--Annual increase under said provision does not form part of adjudication resulting in decree, same is automatically enforceable by operation of law, it cannot be taken into consideration for purpose of Section 14(2)(c) of Act. [Pp. 190 & 191] H

Constitution of Pakistan, 1973--

----Art. 199--Effectiveness of remedy--Remedy under Article 199 of Constitution cannot be equated with right of appeal provided under any law inasmuch as former is confined to interference in cases of violation of law whereas latter includes arriving at any point of view after reappraisal of evidence. [P. 191] I

PLD 2007 SC 45, 2023 SCMR 246 and 2023 SCMR 1434.

Mr. Muhammad Asif Mian, Advocate for Petitioner.

M/s. Muhammad Shan Gul and Qamar Zaman Qureshi, Advocate General and Additional Advocate General respectively for Govt. of Punjab.

M/s. Abaid Ullah Bhatti, Adnan Tariq, Muhammad Asif Chohan and Mian Muhammad Sajid, Advocates for Respondents No. 3 & 4.

M/s. Muhammad Shahzad Shaukat, Zafar Iqbal Kalanori, Khalid Ishaq and Malik Muhammad Awais Khalid, Advocates for Amici Curiae.

Date of hearing: 7.3.2023.

Judgment

Raheel Kamran, J.--This judgment shall deal with ten petitions brought under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (‘the Constitution’) i.e. W.P.No. 126306 of 2017, W.P.No. 7911 of 2017, W.P.No. 98903 of 2017, W.P.No. 119360 of 2017, W.P.No. 159598 of 2018, W.P.No. 1594 of 2019, W.P.No. 61038 of 2019, W.P.No. 1807 of 2021, W.P.No. 308 of 2022 and W.P.No. 8768 of 2023, as these involve similar questions in controversy.

1. Primarily, the following two questions are under consideration for decision in these petitions:-

2. Whether a decree for maintenance granted for an amount less than Rs. 5000/- per month to each of the plaintiffs is appealable under Section 14(2)(c) of the Family Courts Act, 1964 by the judgment debtor if the aggregate amount of the decree is more than Rs. 5000/- per month?

3. Whether Clauses (b) and (c) of sub-section (2) of Section 14 of the West Pakistan Family Courts Act, 1964 are not ultra vires to the Constitution of Islamic Republic of Pakistan, 1973 after insertion of Article 10-A in the Constitution?

4. Learned counsel for the petitioners contend that legislative intent for enactment of provisions of clauses (b) & (c) of subsection (2) of Section 14 of the Family Courts Act, 1964 (‘the Act’) was to curtail the right of appeal for meager amount of Rs. 5000/- in aggregate. According to them, such curtailment is flooding this Court with challenges. The wisdom that at least one appeal must be provided is jurisprudentially well recognized in law. If there are more than one children and the decree, even if for less than Rs. 5000/- per child may adversely affect for being beyond financial resources of the defendant without judicial scrutiny in appeal. They finally contend that such interpretation has to be adopted as would advance the remedy of appeal. Reliance in this regard has been placed on the case of Abdul Rahim and 2 others vs. Messrs United Bank Ltd. of Pakistan (PLD 1997 Karachi 62).

5. Mr. Muhammad Shahzad Shaukat ASC, learned Amicus Curiae, contends that the ouster of appeal under Section 14 of the Act is not against any party to the proceedings but a decree which is indivisible. He maintains that if a decree is cumulatively for an amount Rs. 5000/- or less per month, the right of appeal under clause (c) of Section 14(2) of the Act is curtailed. He adds that judgment in the case of “Sarfraz vs. Additional District Judge and 5 others (2017 YLR 1684) is not supported by the text of Section 14(2)(c) of the Act. He emphasizes that at least one right of appeal against a judgment and decree of the Family Court is a vested right and ouster of such right under Section 14(2)(c) ibid renders the provision repugnant to injunctions of Islam and abridges the fundamental right to fair trial as enshrined in Article 10A of the Constitution. In support of his contentions, reliance has been placed on the cases of Messrs Chenab Cement product (Pvt.) Ltd. and others vs. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672), Pakistan through Secretary, Ministry of Defence vs. the General Public (PLD 1989 SC 6) and Ali Azhar Khan Baloch and others vs. Province of Sindh and others (2015 SCMR 456).

6. Mr. Shan Gull, learned Advocate General, Punjab, while endorsing arguments of Mr. Muhammad Shahzad Shaukat, Advocate Supreme Court maintains that the ouster of appeal visualized under Section 14(2)(c) of the Act is in relation to a decree for maintenance of Rs. 5000/- or less per month and not in relation to maintenance per person. He adds that being an ouster clause, the same has to be construed strictly. He further contends that Article 3 of the Constitution mandates elimination of exploitation and Section 14(2)(c) ibid does not deprive a poor of his right of appeal. He finally contends that the fundamental right to a fair trial was added to the Constitution after insertion of clause (c) in Section 14(2) of the Act and such post-amendment clause has to be construed keeping in view the doctrine of eclipse. Reliance in this regard has been placed on the cases of Bhikaji Narain Dhakras and others vs. State of Madhya Pradesh and another (A.I.R. 1955 SC 781), Thomas Dana vs. State of Punjab (A.I.R 1959 SC 387) and Saiyyid Abula’la Maudoodi and 2 others vs . The Government of West Pakistan and another (PLD 1964 SC 673).

7. Mr. Zafar Iqbal Kalanori ASC, learned Amicus Curiae, has taken the position on Question No. 1 that the amount of Rs. 5000/- or less specified in clause (c) of Section 14(2) of the Act, for the purpose of exclusion of right of appeal, is cumulative. In support of such plea, he has placed reliance on the case of Muhammad Latif Kashif vs. Judge Family Court/Civil Judge, 1st Class, Bahawalpur and 3 others (PLD 2005 Lahore 296). According to him, the right of at least one appeal is a universally recognized principle, be it inquisitorial jurisdiction or adversarial jurisdiction. He emphasizes that the object of an appeal is to provide a possibility for correction of an error in appeal arising from a judgment and decree determining right and civil liability by the Family Court. He adds that the remedy under Article 199 of the Constitution is not an alternate of appeal for such remedy is a matter of discretion of the Court. He finally contends that the right to fair trial includes one right of appeal and clause (c) of Section 14(2) of the Act, in so far as it takes away the right of appeal, is void being in violation of Article 10A of the Constitution and the same is discriminatory inasmuch as the Appellate Court shall legitimately consider if any interim relief against the decree is available against women and children and on what terms?

8. Mr. Khalid Ishaq ASC, learned Amicus Curiae, contends that one right of appeal is not, of necessity, part of the right to fair trial enshrined in Article 10A of the Constitution. He emphasizes the distinction between a right of appeal being curtailed or prohibited and the right of appeal being regulated. Further contends that no mala fide could be attributed to the legislature, however, the bona fides of the legislature as also the purpose and object of a statute may be considered in determination of the vires of a statute. As regards interpretation of Section 14(2)(c) of the Act, he contends that purposive rather than a literal approach to the interpretation is to be adopted while construing the said provision and only such construction was permissible as would advance the purpose of the provision enacted rather than interpretation which would defeat its objects. Being a beneficial provision in the Act, he adds, the same must be interpreted liberally in a manner so that the benefit conferred was advanced rather than frustrated or subverted. He finally contends that Article 25(3) of the Constitution unequivocally allowed for special provisions to be made for the benefit of women and children as an exception to the general rule of equal treatment and the said article clearly allowed positive discrimination in favour of women and children, therefore, Section 14(2)(c) of the Act is a valid piece of legislation enacted for the benefit of women and children to regulate the right of appeal against meager amount of maintenance decreed per month in their favour. He places reliance on the case of Shaukat Ali vs. Election Commission of Pakistan through Secretary, Islamabad and others (2018 SCMR 2086), Messrs Sui Southern Gas Company Ltd. and others vs. Federation of Pakistan and others (2018 SCMR 802) and Saif-ur-Rehman vs. Additional District Judge, Toba Tek Singh and 2 others (2018 SCMR 1885). Finally, he poses a question as to whether 10% annual increase under Section 17A(3) of the Act would render the decree appealable?

9. Arguments heard. Record perused.

10. To answer the first question posed for our consideration, as stated in paragraph No. 2 herein above, it would be advantageous to reproduce the Section 14(2)(c) of the Act, which reads as follows: -

“S. 14. Appeal.--(1) …….

(2) No appeal shall lie from a decree by a Family Court--

(a) ……..

(b) ……..

(c) for maintenance of rupees (Five thousand) or less per month.”

Rules governing interpretation of Section 14(2) of the Act

1. Purposive approach is the rule for interpretation of Section 14(2) of the Act, which has been enunciated by the Supreme Court of Pakistan in the case of Saif-ur-Rehman vs. Additional District Judge, Toba Tek Singh and 2 others (2018 SCMR 1885) in the following way:

2. Before proceeding further, it may be appropriate to contextualize the Family Courts Act, 1964 in general and Section 14(2), in particular. Out of the general canvass of the forum and procedure for adjudication of the claims and disputes, a jurisdiction has been carved out through the enactment of the Family Courts Act, 1964, creating a special forum i.e. the Family Court for adjudication of the family disputes in accordance with the special procedure as set forth in the aforesaid Act of 1964 and the Rules framed thereunder i.e. The West Pakistan Family Courts Rules, 1965. The purpose of this exercise is evident from the preamble of the Act of 1964 i.e. “expeditious settlement and disposal of disputes relating to marriage and family affairs”. The nature of disputes which can be brought before the Family Court for adjudication have been set forth and enumerated in Part I of the Schedule referred to in Section 5 of the Act of 1964. It is now settled law that a purposive rather than a literal approach to interpretation is to be adopted while interpreting Statutes. An interpretation which advances the purpose of the Act is to be preferred rather than an interpretation which defeats its objects. Reference, in this behalf, may be made to the judgments reported as Federation of Pakistan through Ministry of Finance and others v. M/s. Noori Trading Corporation (Private) Limited and 14 others (1992 SCMR 710) and Hudabiya Engineering (Pvt.) Limited v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 6 others (PLD 1998 Lahore 90).

3. The second aspect of the Family Courts Act, 1964 and the Rules framed thereunder as amended from time to time would reveal its gender sensitivity. A glance at Section 3 of the Act of 1964 reveals that women Judges are specifically catered for. The residence of the wife can be a determining factor for conferring territorial jurisdiction, in certain Suits as is evident from the provisions of Rule 6 of the West Pakistan Family Courts Rules, 1965. There can be no escape from the fact that the tone and tenor of the Family Courts Act, 1964 and the Rules framed thereunder are beneficial in nature. It is an equally settled law that beneficial provisions in a Statute must be interpreted liberally in a manner so that the benefit conferred is advanced rather than frustrated or subverted. Reference, in this behalf, may be made to the judgments of this Court reported as Lahore Development Authority through D.G., Lahore and another v. Abdul Shafique and others (PLD 2000 SC 207) and Pakistan Engineering Co. Limited, Lahore through Managing Director v. Fazal Beg and 2 others (1992 SCMR 2166).

4. Section 14(2) of the Family Courts Act, 1964, must necessarily be approached and interpreted in the above backdrop and in accordance with the aforesaid principles i.e. the purposive object thereof achieved and being beneficial in nature, the benefits so conferred are actualized.

5. Subsection (1) of Section 14 of the Act of 1964, confers a right of appeal. However, by virtue of subsection (2) of Section 14 of the Act of 1964, this right of appeal has been curtailed. The obvious purpose of curtailing the right of appeal is to avoid the benefits of any decree which may have been passed being tied up in an appeal before a higher forum. It has also been noticed that in only three eventualities that even the right of first appeal has been curtailed. In all three eventualities, the decree would be for the benefit of the wife for dissolution of marriage under Clause (a), for dower or dowry under Clause (b) and for maintenance under Clause (c). The last may also be for the benefit of a minor. Thus, the only logical and reasonable interpretation, which is in accordance with the purposive of the Act and in line with the beneficial nature thereof would be that a judgment-debtor of a decree envisages in Clauses (a), (b) and (c) of subsection (2) of Section 14 of the Act of 1964, would not have a right of appeal so that the disputes mentioned therein are resolved expeditiously and the benefits conferred through such decree reach the decree- holder without being frustrated. However, the said provision cannot be interpreted so as to exclude a right of appeal to a wife whose claim of dower or dowry has been partially or entirely declined. For such an interpretation, would defeat the purpose and object of the Act of 1964 and frustrate its beneficial nature.

6. This Court while interpreting Section 14(2) of the Act of 1964, in its judgment reported as Tayyaba Yunus v. Muhammad Ehsan and others (2010 SCMR 1403) held that where a Suit for dower has been dismissed, the wife has a right of appeal under Section 14(2) of the above-said Act of 1964.

7. In a case pertaining to dissolution of marriage, this Court in the judgment reported as Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh and another (2006 SCMR 100) held as follows:

“The object behind non-provision of appeal in case of dissolution of marriage is to protect women, an under privileged and generally oppressed section of our society from prolonged and costly litigation. It aims to put a clog on the right of husband.”

1. Thus, the only possible purposive beneficial and rational interpretation of Section 14(2) of the Act of 1964, is that the right of appeal of a husband against whom a decree has been passed is curtailed, if the amount awarded is less than the amount, which is mentioned in the said provision. However, in no event the right of the wife to file an appeal is extinguished if she is dissatisfied with any decree in a Suit for dower or dowry.” (Emphasis supplied by this Court)

Articles 9, 14 and 25 of the Constitution and vires of Section 14(2) of the Act

1. Maintenance is a basic condition for subsistence with dignity, as guaranteed under Articles 9 and 14 of the Constitution. The decree for maintenance, if any, is for the benefit of wife or a child. The purpose or object of curtailing and restricting the right of appeal against a decreequa maintenance under Section 14(2)(c) of the Act is to ensure that the disputes qua maintenance are resolved expeditiously and benefits conferred through such decree reach the decree holder(s) without being frustrated. The legislature manifestly intends to save the wife and or child, who usually fall within the marginalized or disadvantage segment of the society, from having to incur cost, face delays and bear rigors of litigation in appeal for realization of a meager decretal amount specified therein. Article 25 of the Constitution that guarantees equality before law and entitlement to equal protection of law expressly preserves authority of the State under clause (3) thereof for making any special provision for the protection of women and children. In the case of Shrin Munir and others vs. Government of Punjab through Secretary Health, Lahore and another (PLD 1990 SC 295), the Supreme Court of Pakistan issued the following direction to the legislatures:

“16. Clause (2) of Article 25 prohibits distinction on the basis of sex alone. However, the very next clause (3) controls the rest of Article 25 by providing that “nothing in this Article shall prevent the State from enacting any special provision for the protection of women and children”. It implies, therefore, that while the difference on the basis of sex can be created and maintained, it shall be done only in those cases where it operates favourably as a protective measure for and not against women and children. The field of prohibition, of adopting sex, as a criteria for making a distinction, is thereby reduced to only that category wherein sex is adopted as a standard for discriminating against females generally and against males only if it is not as a measure protective of females. Discrimination against a group or an individual implies making an adverse distinction with regard to same benefit, advantage or facility. All pervasive nature of this constitutional provision is self evident. In interpreting Constitution and also in giving effect to the various legislative measures, one distinction has to be consistently kept in view and it is that classification based on reasonable considerations is permissible and not violative of the principle.” (Emphasis supplied by this Court)

Threshold of Rs. 5000/- cumulative or per claimant

12. Plea of the petitioners that curtailment of right of appeal under Section 14(2)(c) of the Act is confined to a decree, which is cumulatively for an amount of Rs. 5000/- or less per month is not supported by the very language of the said provision. It is nowhere specified in clause 14(2)(c) that no appeal shall lie from a decree cumulatively for an amount of Rs. 5000/- or less per month. Had the legislature intended so, it would have added words “in aggregate” or “in total” after the words five thousand occurring in clause (c) of Section 14(2) ibid. It is trite law that reading in of words or meaning into a statutory provision is not permissible when its meaning is otherwise clear. As a matter of statutory interpretation, Courts generally abstain from providing omissions in a statute. Reliance in this regard is placed on the cases of Messrs State Cement Corporation of Pakistan Ltd. vs. Collector of Customs, Karachi and another (1998 PTD 2999), Abdul Haq Khan and others vs. Haji Ameerzada and others (PLD 2017 Supreme Court 105) and Deputy Director Finance and Administration FATA through Additional Chief Secretary FATA, Peshawar and others vs. Dr. Lal Marjan and others (2022 SCMR 566). There are several legislative examples where expressions such as aggregate amount, amount in total or amount in aggregate have been used by the Federal or Provincial legislatures in various statutes, which is conspicuously absent in Section 14(2)(c) of the Act. Reference in this regard is made to the provisions of rule 48(1)(b) of Order XXI, rule 11(b) of Order XXXIV and Section 34 & its sub-section (2) of the Code of Civil Procedure, 1908, Section 17 of the Court Fees Act, 1870, Sections 21(1), 100C(3)(f), 113(2)(a) and 153(1)(a) & (b) of the Income Tax Ordinance, 2001. When the amount of Rs. 5000/- or less is not specified in Section 14(2)(c) to be in aggregate, the decree passed for such an amount for each of the claimants remains not appealable. The decree may be passed in a suit allowing, rejecting or partly allowing claims of plaintiffs therein. The claim for maintenance in relation to each of the plaintiffs constitutes an independent cause of action that may be allowed, rejected or partly allowed in favour of any plaintiff. The plaintiffs can jointly file their claims or separately. Each claim is to be adjudicated in terms of respective entitlement of the plaintiffs. Even if separate plaints are presented on behalf of each of the claimants, because of the overlapping assertions, consolidation of suits for adjudication remains a serious legal and pragmatic possibility. If, for example, three children of a judgment debtor have been held entitled by the Family Court to maintenance at the rate of Rs. 4000/- per month each, it would be anomalous and absurd interpretation of Section 14(2)(c) to suggest that the judgment debtor shall be entitled to prefer an appeal against such decree when passed in a single suit on the pretext that the decree is to be cumulatively considered for an amount of Rs. 5000/- or less per month, however, his right of appeal under the said provision is restricted if decrees to the same effect are passed in three suits instituted on behalf of each of the children of the judgment debtor. This would unnecessarily encourage multiplicity of proceedings without any substantive basis thereby adversely affecting administration of justice in family cases, therefore, such interpretation must be avoided. Reliance in this regard is placed on the cases of Central Government of Pakistan and others vs. Suleman Khan and others (PLD 1992 Supreme Court 590) and Uzin Export Import Enterprises For Foreign Trade, Karachi vs. Union Bank of Middle East Ltd. (PLD 1994 Supreme Court 95).

1. Additionally, it has been aptly noted by the learned Judge in Chamber of this Court in the case of “Sarfraz vs. Additional District Judge and 5 others (2017 YLR 1684) that:

“7 …..

(a) …….

(b) …….

(c) for maintenance of rupees five thousand or per month.

……….. it is not a matter of pecuniary jurisdiction of the court rather it is a matter of right of minors and wives who are constrained to live a deserted life and Section 14(2)(c) of the Act mentions the amount of maintenance allowance for a single person and not the accumulative one for all the children and wife. If it is accepted as held by the Hon’ble Judge, what would happen if such number is five or more as in such a situation, the protection provided by Section 14(2)(c) of the Act would go down even below the level of Rs. 1,000/- which was the limit provided before the recent amendment made in 2015 and would be highly insufficient for survival of any individual. In my view, the legislature vide said amendment has desired to increase the earlier limit of Rs. 1,000/- to Rs. 5,000/- per head and has not fixed it as a whole for all those who have such right against one person. As such, I am of the considered view that since the amount of maintenance allowance granted to each of the plaintiffs was less than Rs. 5,000/-, the appeal keeping in view Section 14(2)(c) of the Act was not maintainable.

1. Even otherwise, the minors are admittedly children of the petitioner and it is his responsibility to maintain them for which meager amounts of Rs. 4,500/- for each of the minor have been awarded which are hardly sufficient to meet with the requirements of the minors keeping in view their day-to-day needs of food, abode, clothing, schooling etc. The petitioner being father of the minors cannot be allowed to escape from his responsibilities of maintaining their children under any law of the land.”

2. In view of the foregoing, it is found that in terms of Section 14(2)(c) of the Act, a decree for maintenance granted for an amount less than Rs. 5000/- per month to each of the plaintiffs is not appealable.

Scope of Article 10-A of the Constitution and vires of Section 14(2) of the Act

1. In order to deal with the other question as to whether the provisions of subsection (2) of Section 14 of the Act are void being repugnant to Article 10A of the Constitution, it would be proper to reproduce the said Article:

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

While Article 10A of the Constitution guarantees right to fair trial and due process for the determination of civil rights and obligations of a person, however, there is nothing in the language of the said article that guarantees at least one right of appeal against all such determinations. It has been held in paragraphs No. 18 & 19 of the judgment dated 19.06.2023 passed by the Supreme Court of Pakistan in Constitution Petitions No. 21, 22 & 23 of 2023 that:

“18. A contemporary article with similar characteristics as Article 10-A of our Constitution can be found in Article 6 of the European Convention on Human Rights (“ECHR”). For ease of reference, the relevant portion of the said Article for the purpose of these petitions i.e. Article 6(1) is reproduced hereunder:

“Article 6 Right to fair trial

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”

In this context, the High Court of England & Wales in Dorairaj vs. Bar Standards Board ([2018] EWHC 2762 (Admin)) was petitioned to declare certain sections of the Crime and Courts Act of 2013 incompatible with Article 6 of the ECHR on the ground that an independent appellate forum was not available. While dismissing the application seeking a declaration of incompatibility, the High Court held that:

“44. … Whilst article 6 guarantees an individual a right to a fair trial, where an article 6-compliant decision is made by a court, it is trite law that article 6 does not guarantee a right of appeal (see, e.g., Porter v United Kingdom [1987] Application No 12972/87) ..”

Similarly, in Sablon vs. Belgium (Application No. 36445/97 @ para 86), the European Court of Human Rights held that Article 6 did not apply to the examination of an application to reopen civil proceedings.”

Repugnancy to Injunctions of Islam

1. In the case of Federation of Pakistan and others vs. Public At Large and others (PLD 1988 Supreme Court 202), while deciding Civil Shariat Appeals from the judgment dated 27.03.1984 passed by the Federal Shariat Court declaring various provisions of the West Pakistan Press and Publications Ordinance, (XXX of 1963) to be repugnant to injunctions of Islamic, it was held that section 48 of the said Ordinance be amended to the effect that in addition to the appeal provided for therein in respect of the orders already specified in section 48, an appeal shall also be competent against the orders passed under sections 4, 12, 9, 10 and 24.

Likewise, in the case of Pakistan through Secretary Ministry of Defence vs. General Public (PLD 1989 SC 6), Shariat Appellate Bench of the Supreme Court of Pakistan declared Section 133 of the Pakistan Army Act (XXI of 1962), Section 140 of Pakistan Navy Ordinance (XXXV of 1961) and Section 162 of the Pakistan Air Force Act, 1953 to be repugnant to injunctions of Islam barred the remedy of appeal against conviction by the Court Martials and the necessary amendments were ordered to be carried out by 1st January, 1989.

Recently, the above views were endorsed by the 15 Members Full Bench of the Supreme Court of Pakistan on 11.10.2023 in Constitutional Petition No. 6 rejecting a challenge to vires of the right of appeal to a Larger Bench conferred by Section 5 of the Supreme Court (Practice and Procedure) Act, 2023 from an order under Article 184(3) of the Constitution while observing as under:

“A standard good worldwide practice and the Injunctions of Islam, require that an appeal be provided and when two interpretations are possible, the one that conforms with the Injunctions of Islam shall be adopted.”

Be that as it may, it is noteworthy that in view of the provisions of Article 203D, it is essentially authority of the Federal Shariat Court, if any, to declare any law repugnant to injunctions of Islam and jurisdiction of this Court in that regard is indeed expressly barred under Article 203G of the Constitution. Resultantly, we are unable to declare the provision of Section 14(2)(c) of the Act to be repugnant to injunctions of Islam.

Effect of annual increase under Section 17A(3) of the Act

1. As regards plea qua annual increase under Section 17A(3) of the Act, suffice it to say that the said provision comes into operation where the Family Court has failed to prescribe the annual increase in the maintenance while passing the judgment and decree. Annual increase under the said provision does not form part of adjudication resulting in the decree, however, the same is automatically enforceable by operation of law, therefore, it cannot be taken into consideration for the purpose of Section 14(2)(c) of the Act.

Effectiveness of the remedy under Article 199 of the Constitution

1. There is no cavil to the proposition that remedy under Article 199 of the Constitution cannot be equated with the right of appeal provided under any law inasmuch as the former is confined to interference in the cases of violation of law whereas the latter includes arriving at any point of view after reappraisal of evidence. Reliance in this regard is placed on the cases of Shajar Islam vs. Muhammad Siddique and 2 others (PLD 2007 Supreme Court 45), Mst. Tayyeba Ambareen and another vs. Shafqat Ali Kiyani and another (2023 SCMR 246) and M. Hamad Hassan vs. Mst. Isma Bukhari and 2 others (2023 SCMR 1434). However, the curtailment of right of appeal under Section 14(2)(c) of the Act is in very limited circumstances which does not unreasonably restrict access to justice when this Court, in its supervisory jurisdiction under Article 199 of the Constitution, keeps a check on whether the judgment impugned in such proceedings is based on any patent violation of law, disregard of evidence available on the file or in denial of fair procedure which ought to have been followed in the facts and circumstances of the case. Needless to reiterate that Article 25(3) of the Constitution permits special provisions to be made for the benefit of women and children and the right of appeal of a husband or father has been ousted under Section 14(2)(c) of the Act only in such limited cases where the amount of maintenance was deemed by the legislature to be meager.

Provision of legal aid

1. Adjudication of claims entail physical and psychological toil, incurring of financial resources and a degree of perseverance to succeed for the enforcement of one’s rights. More often than not, it is quite an ordeal for a resourceless wife and/or child to invoke jurisdiction of the Family Court to claim maintenance when a husband/father fails to perform his obligation in that regard, particularly in the absence of a well established legal aid system. Province of the Punjab, through Act No. XIX of 2018, enacted the Punjab Legal Aid Act, 2018 Section 3 whereof provides for Punjab Legal Aid Agency to be established by the Government by notification in the official gazette to provide legal aid service to an indigent person, inter alia, in family disputes relating to divorce, maintenance, dowry, dower or custody of children. However, the said agency has not been operationalized till date. To ensure effective enforcement of the rights

of access to justice and fair trial as guaranteed under Article 9 and 10A of the Constitution to women and children, Government of the Punjab is directed to operationalize the Punjab Legal Aid Agency within a period of three months to provide legal aid services to indigent persons in the family matters.

Conclusion

1. The above-mentioned questions are answered accordingly, however, the ultimate fate of these petitions shall be decided individually by the respective Single Bench in the light of above discussion, keeping in view the facts and circumstances of each case. Before parting, we would like to record our special thanks for the able assistance rendered by the learned Amici Curiae.

(Y.A.) Order accordingly

PLJ 2024 Lahore 192

Present: Sultan Tanvir Ahmad, J.

Sheikh MUHAMMAD ANWAR and 4 others--Petitioners

versus

JUDGE BANKING COURT and another--Respondents

W.P. No. 38033 of 2023, decided on 2.02.2024.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLIV of 2001)--

----Ss. 2(g)(i)(ii)(iii), 7 & 20--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Initiationing of criminal proceedings--Pendency of civil proceedings--Finance facility--Customer in default--Willful default--Powers of Court--Petitioners were summoned to face criminal proceedings--The Banking Courts in terms of section 7 of Ordinance had same powers as were vested in a Court of Sessions under Cr.P.C and where procedure was not provided in Ordinance provisions of Cr.P.C. were applicable--Petitioners had approached High Court against orders to summon petitioners to face criminal proceedings and in some cases even prior to recording of cursory statement(s)--The principle that criminal and civil proceedings can be maintained simultaneously was well settled, as already discussed in detail--The counsel for petitioners despite earnest effort could not convince as to availability of any reason for abridging powers of Banking Courts or not following normal procedure of law by petitioners--No intervention in proceedings of criminal complaints, pending before Banking Courts, was warranted--Petitions dismissed.

[Pp. 203 & 204] A, B & C

2019 CLD 375, 2021 CLD 906, 2017 SCMR 1218, 2018 CLD 1273, PLD 1985 SC 134, 2009 SCMR 1005, AIR 2009 SC 3232, 2023 SCMR 1292, PLD 1965 (W.P.) Karachi 231 & PLD 2014 Pesh. 49 ref.

M/s. Shahid Ikram Siddiqui, Mr. Muhammad Imran Malik, Mr. Akif Majeed Butt, Mr. Hassan Ismail, Mr. Asim Tufail Farooqi, Mr. Muhammad Bilal Mehmood, Barrister Sajid Ikram Siddiqui, Mr. Fazal Mahmood Chaudhary, Rao Zahid Tasawar, Mr. Shahzad Ahmad Qureshi, Mian Asghar Ali, Mian Ghulam Mohy-ud-Din, Mr. Tehseen Sarwar, Mr. M. Faizan Saleem, Mr. M. Imran Saleem, Mr. M. Usman Saleem, Mr. Taimur Saleem, Ms. Maha Batool, Ms. Hira Asif Awan, Mr. Nadeem Irshad, Mr. Muhammad Riaz, Ch. Abdul Razzaq, Ch. Mahmood-ur-Rehman, learned Advocates for Petitioners.

Mr. Tariq Kamal Qazi, Mr. Shoaib, Rasheed, Syed Moazam Ali Shah, Barrister Syed Ali Rizvi, Mr. Hfeez Saeed Akhtar, Barrister Sheheryar Riaz, Syed Aatir Raza, Mr. Ali Yousaf, Mr. Afnan Malik, Mr. Haroon Yazdani, Mr. Muhammad Irfan, Rana Haseeb Ahmad Khan, Mr. Ahmad Jamal, Mr. Abdul Muqtadir Khan, Barrister Ahmed Pervaiz, Mr. Jawad H. Tarar, Ch. Muhammad Ijaz Jamal, Kh. M. Ajmal, Mr. Majid Ali Wajid, Mr. Muhammad Nashit, Mr. Anwar Shahzad, Mr. Bilal Riaz Sheikh, Mr. Nadeem Ahmad, Mr. Qaiser Abbas, Sheikh Zeeshan Ishfaq, Mr. Falak Sher, Mr. M. Nadeem, Mr. Asher Ellahi, Mr. Moeed Ahmad, Mr. Hussain Javed, Mr. Salman Ahmad, Mr. Muzammil Ashraf Qureshi, Mr. Tariq Nawaz Bhatti , Mr. Saeed Mushtaq, Mian Zaheer Ahmad, Mr. M. Jawad Khan Lodhi, Mr. Muhammad Ahmad Khan Niazi, Mr. Nauman Ahmad Chaudhary, Syed Samir Sohail, Rana Muhammad Ishaq, Mr. Shoaib Rashid, Ms. Manahil Khan, Mr. Abdul Hameed, Ch. Sohail, Rana Muhammad Akram, Syed Moazzam Ali Shah, Mr. Suhaib Ahsan, Mr.Zain-ul- Abideen, Ms. Ambreen Moieen, Ms. Javira Latif, Mr. Amir Wakil Butt, Syed Hassan Gillani, Mr. Atif Sattar Arieen, Ms. Lubna Saleem,learned Advocates-Bank Mir Haroon-ul-Rasheed, learned Assistant Attorney General for Respondents.

Mr. Muhammad Nasim Saqlain, learned Assistant Attorney General.

Mr. Salman Asif Warraich, learned Assistant Advocate General.

Mr. Makhdoom Owais, Assistant Director Investigation, FIA, Zahoor Ahmad Sub-Inspector FIA/CBC/LHR.

Date of hearing: 19.12.2023.

Judgment

Through this judgment the captioned constitution petition as well as the petitions detailed in schedule “A”, having common questions of law and facts, shall be decided. The petitioners are aggrieved from the complaints filed by the financial institutions under Section 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the “Ordinance”) pending before various learned Banking Courts (the “Banking Courts”). The petitioners are seeking to stay of proceedings in the criminal complaints, inter alia, on the common ground that criminal proceedings under the Ordinance cannot proceed simultaneously with the civil proceedings.

1. In the captioned case, the petitioners have challenged the criminal complaint No. 09/2023 filed on 04.04.2023 by National Bank of Pakistan. The suit filed by the bank under section 9 of the Ordinance, has already been decreed and presently RFA No. 58448/2022 against the judgment and decree dated 23.05.2022 is pending adjudication. It is alleged in the complaint that the petitioners have committed breach of letters of pledge, hypothecation and other security documents as well as they have made false representation to obtain finance facility.

2. Mr. Muhammad Imran Malik-learned ASC, on behalf of the petitioners, has submitted that the remedy of criminal complaint, as contemplated in the Ordinance, is dependent upon fulfillment of obligations and / or determination of liability at the civil side. Learned counsel has stated that the intent of legislature is clear from wording of Section 20(1)(a) of the Ordinance, which provides that a customer can be held responsible for criminal liability only when he commits dishonest breach of the terms of instruments narrated therein. He has stated that Section 20(1)(b) of the Ordinance also makes the criminal liability dependent on breach of obligation; that Section 3 of the Ordinance determines the duty of customer and as per the same, duty only arises when the obligations are determined or a judgment at civil side is passed against a customer. It is further submitted that the provisions of the Ordinance are very much clear that remedy of filing of criminal complaint under Section 20 of the Ordinance is dependent upon non-fulfillment of obligation(s) with respect to finance facility and use of word judgment in Section 3 of the Ordinance means that unless default is determined, the criminal proceedings cannot be initiated. Mr. Muhammad Imran Malik, in course of arguments, has repeatedly relied upon the judgment in case titled “Messrs Long Grain Rice Mills (Pvt.) Ltd. through Chief Executive vs. Habib Bank Limited through Senior Manager (CAD) and Senior Manager (Remedial) and another” (2016 CLD 551). Learned counsel for the petitioners has further made reference to cases titled “Akhlaq Hussain Kayani vs. Zafar Iqbal Kiyani and others” (2010 SCMR 1835), “Miraj Khan vs. Gul Ahmed and 3 others” (2000 SCMR 122) and “Abdul Haleem vs. The State and others” (1982 SCMR 988).

3. On the other hand, Mr. Tariq Kamal Qazi- learned counsel for the financial institutions has relied on cases titled “Dr. Sher Afgan Khan Niazi vs. Ali S. Habib and others” (2011 SCMR 1813) and “Muhammad Aslam vs. The State and others” (2017 SCMR 390) and he has stated that merely for the reason that civil suit is filed, the criminal proceedings can neither be quashed nor they can put to halt in the constitutional jurisdiction, without first availing the remedies provided under the law. He has further argued that where alleged crime is unavoidably dependent on the civil liability, the Banking Courts are sufficiently permitted by law to postpone the criminal proceedings and there is no wisdom in laying down any general principle for the cases involving different facts as the law has already empowered the Banking Courts to make a decision in this regard, keeping in view the facts of the separate cases. He has added that unlike torts and contracts, the criminal law is a branch of public law and although the direct and immediate victim of a crime is typically a private party but it always causes social harm and whole community is indirectly affected from the same; that in most of the jurisdictions the criminal proceedings, since having direct nexus and harm to the society, are given precedence over the civil proceedings, if arises out of the same set of facts. Mr. Shoaib Rasheed-learned ASC, has read various provisions of the Ordinance and he has argued that the stance adopted by the petitioners and interpretation of the provisions put forth is incorrect. He has stated that Section 3(2) of the Ordinance specifically provides that the customer in default, is liable to pay the cost of funds in addition to the default amount, apart from such other civil and criminal liabilities, which is meaningful.

4. Syed Moazam Ali Shah-learned ASC, while relying upon the historical background of banking laws, has argued that the Ordinance has been promulgated to provide speedy remedy; that substantial compliance of Section 13 of the Ordinance is not taking place, causing damage to both borrowers and financial institutions; that the relief sought in the petitions will defeat the very object of the Ordinance. Barrister Syed Ali Rizvi, has argued that the constitutional jurisdiction of this Court has been invoked without first availing the statutory, legal and efficacious remedy available to the petitioners before the Banking Courts. He contended that this omission or failure to avail such remedy before invoking the constitutional jurisdiction would attribute redundancy to spirit, scheme, provisions and process set by the legislature in the Ordinance and Criminal Procedure Code, 1898 (Cr.P.C). He has shown his concern about opening of floodgate of litigation, whereby, the parties can simply ignore the provision and scheme of law, by directly invoking the constitutional jurisdiction of this Court. Mr. Hfeez Saeed Akhtar-learned ASC referred to case titled “Central Board of Revenue and another vs. Khan Muhammad” (PLD 1986 SC 192) and argued that the Honourable Supreme Court refused to stay the criminal proceedings despite pendency of the civil litigation in a case arising out of the Customs Act, 1969 and observed that both are independent of each other. He further relied on “Malik Khuda Bakhsh vs. The State” (1995 SCMR 1621), “Mauj Din through Legal Heirs and others vs. Settlement Commissioner, Lahore Division and others” (2002 SCMR 2001), “Seema Fareed and others vs. The State and another” (2008 SCMR 839) and various other judgments. It is submitted that in the context of offences defined in Section 2(g)(ii) and (iii) read with Section 20 of the Ordinance element of civil default is not necessary to be determined before criminal proceedings. He further relied upon the judgments given by the Courts of the neighboring countries and argued that precedence is being given to criminal cases.

5. I have heard the arguments of the learned counsel for the parties. Documents relied by the parties have been perused.

6. A learned full bench of this Court in judgment reported as “Mian Ayaz Anwar and others versus State Bank of Pakistan and Others” (2019 CLD 375) and another learned Bench in case titled “Misbah-ud-Din Zaigham and 3 others versus Federal Investigation Agency through Assistant Director (FIA/CBC/LHR) and another” (2021 CLD 906) have already dealt with the cases that involve willful default within the scope of Section 2(g)(i) of the Ordinance. The present petitions relate to the cases in which willful default as defined by Section 2(g)(ii) & (iii) of the Ordinance is alleged and complaints under relevant sub-sections of Section 20 of the Ordinance are pending.

7. It is apt to start with the provisions forming the basic dispute between the contestants.

2(g) “Willful default” means--

(i) deliberate or intentional failure to repay any finance, loan, advance or any financial assistance received by any person from a financial institution after such payment has become due under the terms of any law or an agreement, rules or regulations issued by the State Bank of Pakistan;

(ii) utilization of finance, loan, advance or financial assistance or a substantial part thereof, obtained by any person from a financial institution for a purpose other than that for which such finance, loan, advance or financial assistance had been obtained and payment in part or full not made to the financial institution; or

(iii) removal, transfer, misappropriation or sale of any assets collateralized to secure a finance, loan, advance or financial assistance obtained from a financial institution without permission of such institution.

1. Provisions relating to certain offences.—

(1) Whoever--

(a) dishonestly commits a breach of the terms of a letter of hypothecation, trust receipt or any other instrument or document executed by him whereby possession of the assets or properties offered as security for the re-payment of finance or fulfillment of any obligation are not with the Financial Institutions but are retained by or entrusted to him for the purposes of dealing with the same in the ordinary course of business subject to the terms of the letter of hypothecation or trust receipt or other instrument or document or for the purpose of effecting their sale and depositing the sale proceeds with the Financial Institutions; or

(b) makes fraudulent mis-representation or commits a breach of an obligation or representation made to a Financial Institutions on the basis of which the Financial Institutions has granted a finance; or

(c) subsequent to the creation of a mortgage in favour of a Financial Institutions, dishonestly alienates or parts with the possession of the mortgaged property whether by creation of a lease or otherwise contrary to the terms thereof, without the written permission of the Financial Institutions; or

(d) subsequent to the passing of a decree under Section 10 or 11, sells, transfers or otherwise alienates, or parts with possession of his assets or properties acquired after the grant of finance by the Financial institutions, including assets or properties acquired benami in the name of an ostensible owner

shall, without prejudice to any other action which may be taken against him under this Ordinance or any other law for the time being in force, be punishable with imprisonment of either description for a term which may extend to three years and shall also be liable to a fine which may extend to the value of the property or security as decreed or the market value whichever is higher and shall be ordered by the Banking Court trying the offence to deliver up or refund to the Financial Institutions, within a time to be fixed by the Banking Court, the property or the value of the property or security”.

1. xxxxx

2. xxxxx

3. xxxxx

4. xxxxx

5. xxxxx

6. xxxxx

7. xxxxx

8. xxxxx

(Emphasis Supplied)

1. Section 2(g)(ii) of the Ordinance primarily relates to utilization of finance facility for a purpose other than for which this facility is obtained. Similarly, removal or transfer, misappropriation or sale of collaterals, as contemplated in Section 2(g)(iii) of the Ordinance, can constitute willful default when the same takes place without permission of the financial institution. A reading of above highlighted part of Section 20 of the Ordinance reveals that whoever, commits offence as envisaged in Section 20(1)(a) to (c) of the Ordinance can be punished under said provision without prejudice to any other action which may be taken against him under the Ordinance. Punishment for Section 20(1)(d) of the Ordinance is visibly dependent upon determination of civil liability / decree. The petitioners-side has tried to take support of Section 3 of the Ordinance and stated that duty of customers depends on default in obligation, however, sub-section 2 of this provision provides that where a customer defaults in obligation, he shall be liable to pay, for the period from his default …., apart from other civil and criminal liabilities that he may incur under the contract or rules or any other law for the time being in force.

2. In “Mian Ayaz Anwar” case (supra), learned Full Bench of this Court observed that Section 2(g)(ii) & (iii) of the Ordinance provide independent offences, which are not dependent on determination of suit under section 9 of the Ordinance. It is further decided that in these cases, the criminal complaints under relevant parts of Section 20 of the Ordinance, can proceed without determination of default to pay. It will be beneficial to reproduce Paragraph No. 17 of the said judgment that reads:

“17. So far as the offences in Section 2(g)(ii) and (iii) of the FIO are concerned, they provide for independent offences which can be tried under Section 20 of the FIO independent of any determination of a default in an obligation to pay. Neither offences are dependent on the civil liability “default” under section 9 of the FIO as they are offences due to the very act of the customer. So if a customer utilizes the finance obtained from a financial institution for purposes other than for which it was given for or if a customer removes, transfers or misappropriates collateral or security of the financial institution, then the act of such removal, transfer or misappropriation constitutes an offence for which criminal proceedings can be instituted under Section 20 of the FIO. A lot has been argued with reference to the power given to a government agency for investigating into the offence of “willful default” under Section 20(7). However, we find that the power is simply to investigate, that too on a complaint filed in writing by the Bank and after securing a thirty days’ notice. Hence, it is neither unconstitutional nor excessive. The Banking Court being the special forum to try offences under the FIO is the proper forum to try the offence of willful default and in this regard in terms of the provisions of Section 20(7) once the civil liability of default is established the offence of willfulness can be investigated by the FIA or any other nominated Federal Government Agency. Offences under Section 2(g)(ii) and (iii) however are not dependent on the determination of the civil liability and can be investigated in terms of Section 20(7) by the nominated government agency. In all such cases the Banking Court will try the offence of willful default as per Section 20 of the FIO.”

1. “Syed Mushahid Shah and others versus Federal Investment Agency and others” (2017 SCMR 1218) case is relied by the petitioners but in my opinion, the judgment in the case does not advance support to their stance. The case was regarding trial of customer(s) under Offences in Respect of Banks (Special Courts) Ordinance, 1984 (ORBO). The Honourable Supreme Court ruled that ORBO would not apply to any act or omission which constitute an offence under the Ordinance. It has been observed that the Ordinance has overriding effect on anything inconsistent contained in any other law for time being in force. A learned Division Bench of Sindh High Court in case titled “Syed Wajahat Hussain Zaidi versus Banking Court No. 1 and Others” (2018 CLD 1273), involving matter of selling hypothecated stocks, permitted the civil and criminal proceedings to proceed concurrently and observed as follows:

“9. The submission of the learned counsel for the petitioner that when the Respondent Bank in Suit No. B-101 of 2013 has, inter alia, sought judgment and decree for selling the hypothecated stocks, the criminal complaint No. 17 of 2014 filed on the allegation of selling the hypothecated stocks by the petitioner is not maintainable is totally misconceived. Bare reading of the Ordinance reveals that whenever the offence is committed in terms of Section 20, the Banking Court would take cognizance upon a complaint filed by authorized person. Moreover, it is settled principle of law that pendency of civil proceedings relating to same issue is not a bar to commencement or continuation of criminal proceedings and both can proceed concurrently as conviction for criminal offence is altogether a different matter from civil liability”.

(Underlining added)

1. The Supreme Court in various cases has considered the issue of co-existence of criminal and civil proceedings, in cases involving same set of transaction based on provisions of Pakistan Penal Code, 1860 and contractual civil liabilities. Both are treated as distinct and different. It is concluded that both can proceed concurrently because conviction for criminal cases is different from the civil liability. In the case titled “Seema Fareed and others” (supra), following has been observed:

“4. …. Interpretation placed by Honourable, Judge of the High Court on the provisions of the contract as well as the repealing statute does not suffer from any misconception of law or violation of the settled principles laid down by this Court. It is well-settled that, a criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction have been instituted it has never been considered to be a legal bar to the maintainability of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability. While the spirit and purpose of criminal proceedings is to punish the offender for the commission of a crime the purpose behind the civil proceedings is to enforce civil rights arising out of contracts and in law both the proceedings can co-exist and proceed with simultaneously without any legal restriction.”

Further reliance can be placed on case titled “Haji Sardar Khalid Saleem vs. Muhammad Ashraf and others” (2006 SCMR 1192) and “Muhammad Aslam vs. The State and others” (2017 SCMR 390).

1. In course of arguments the question also came up for consideration that conclusion of criminal complaint can be fatal for the outcome of civil suit. Mr. Tariq Kamal Qazi, referred to Articles 54 to 57 of Qanun-e-Shahadat Order, 1984. This question has already been addressed in cases titled “The Deputy Inspector-General of Police Lahore and others vs. Anis-ur-Rehman Khan” (PLD 1985 SC 134) and “Karachi Transport Corporation and another vs. Muhammad Hanif and others” (2009 SCMR 1005). It has been decided that the standard of proof for both branches of law is altogether different. It is appropriate to reproduce the following part of “The Deputy Inspector-General of Police Lahore and others” case (supra):

“The question of relevancy of judgment as was invoked in this case has been dealt with in sections 40 to 43 of the Evidence Act which have been subject-matter of consideration of this Court in two cases very recently. The one case is of Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95 and the other is a decision in original Appeal No. 192 of 1980 the judgment of which has yet to be published in the law reports. We can only reemphasize the statement of law on the subject in the following words in M. Monir’s Commentary on the Evidence Act (Vol. I, p. 591)

“A judgment of acquittal in a criminal case only decides that the accused had not been proved guilty of the offence with which he had been charged and to this extent only and no more, it is to be taken as correct and conclusive in a subsequent civil suit between the parties, the opinion and conclusions expressed in the judgment being otherwise irrelevant and inadmissible in such proceedings.”

In the case before the Tribunal the judgment in the criminal case could be relevant only for reascertaining whether it was a judgment of conviction or acquittal and whether it was an honourable acquittal. The other opinions or findings, apart from these two, recorded or expressed in the judgment could not be utilised for unsettling the other proceedings. The extent to which the Tribunal utilized the judgment would be apparent not only from the passages reproduced from it but also the comments made on it …..”

Further reference, if required, can be made to “Syed Askari Hadi Ali Augustine Imam and Anr. v. State (Delhi Admn.) and Anr.” (AIR 2009 SC 3232).

1. Now I would like to take up the arguments that situation in some cases can be so that the customer may have bonafide claim regarding criminal liability being intimately or manifestly connected to the result of civil proceeding. Even if in some cases this rare situation emerges it cannot be desirable to lay any general principle and each case is then required to be examined on its facts. The Honourable Supreme Court in case titled “Salman Ashraf versus Additional District Judge, Lahore and Others” (2023 SCMR 1292) has already laid down a guideline for such circumstances, if at all arises. While it is observed that the object of civil proceedings is to enforce civil rights, whereas, criminal proceeding is to punish the offender for committing criminal offence and both even if relating to same matter can proceed simultaneously, it has also been recognized that the criminal courts are empowered to postpone the proceedings when criminal liability is intimately connected with the result of civil proceedings. It will be beneficial to reproduce the relevant extract from the judgment:

“… Although there is no bar to the simultaneous institution of both proceedings, the trial in the criminal proceeding may be stopped in certain circumstances. And the guiding principle in this regard is also well- defined. It is that where the criminal liability is dependent upon or intimately connected with the result of the civil proceeding and it is difficult to draw a line between a bona fide claim and the criminal act alleged, the trial in the criminal proceeding may be postponed till the conclusion of the civil proceeding. Thus, where either of these two conditions is not fulfilled, i.e., where the subject matter of civil proceeding and that of criminal proceeding are distinct, not intimately connected, or where the civil proceeding is instituted mala fide to delay the criminal prosecution, not bona fide, the criminal proceeding may not be stayed.”

(Emphasis supplied)

In this regard, learned Sindh High Court in case titled “The State versus Illahi Bux and Others” (PLD 1965 (W.P.) Karachi 231) observed as under:

“But I do not think that it can be laid down as a general rule, that whenever an application is made for the postponement of a criminal proceeding upon the ground that the subject-matter is before a civil Court the criminal Court must necessarily reject that prayer upon the sole ground that the judgment of the civil Court will not be binding on it. Neither the answer by the Full Bench to the reference made to them, nor the judgment of Kaikaus, J. in the cases mentioned above lay down this proposition. The criminal Court is empowered under Section 344 to adjourn the inquiry or trial upon a reasonable ground. Therefore when an application for adjournment upon the ground of the pendency of the civil suit upon the same subject-matter is made, the question which falls for consideration is whether it constitutes a reasonable ground. That, in my opinion, must be decided upon the facts of each case. The postponement of the proceedings is not a rule of law but a rule of prudence and in doing so the Court is guided by considerations of public interests. The interest of the complainant need not necessarily be the public interest. No hard and fast rule can be laid down. The decision must depend upon the nature of the case, the bona fides of the party moving the application for stay, the conduct of the complainant and his motive in so far as it can be ascertained, the desirability of avoiding long drawn out disputes of civil nature in two Courts side by side in competition with each other and similar other considerations. It is true that the decision of the civil Court would not bind the criminal Court but it may well be that when the parties have obtained an authoritative decision of the civil Court, they themselves might not like to press the matter further in the criminal Court. One of the considerations which has often weighed with the Court, though not decisive, is whether the criminal case had been instituted by the State or by a private party.”

(Underlining is added)

The Banking Courts in terms of section 7 of the Ordinance have same powers as are vested in a Court of Sessions under Cr.P.C and where the procedure is not provided in the Ordinance the provisions of the Cr.P.C. are applicable. Therefore, such power to adjourn or postpone is available to the Banking Courts which can be used with caution and remaining within the confines given in “Salman Ashraf” case (supra). Such order to postpone or to adjourn the proceedings cannot be made for indefinite period (“Muhammad Amin versus Momin Khan and 2 others - PLD 2014 Peshawar 49).

1. In the titled case as well as the cases mentioned in Schedule “A” to this judgment the petitioners have approached this Court against the orders to summon the petitioners to face criminal proceedings and in some cases even prior to recording of cursory statement(s). The principle that the criminal and civil proceedings can be maintained simultaneously is well settled, as already discussed in detail. The learned counsel for the petitioners despite earnest effort could not convince as to availability of any reason for abridging powers of the Banking Courts or not following the normal procedure of law by the petitioners. I am of the considered opinion that no intervention in the proceedings of the criminal complaints, pending before the Banking Courts, is warranted. Consequently, the present petition along with the connected petitions are dismissed. No order as to costs.

Sd/-

Judge

SCHEDULE “A”

LIST OF CASES

| | | | | --- | --- | --- | | Sr. No. | Case No. | Case Title | | 1 | W.P No. 74623 of 2023 | Saad Mushtaq Awan Versus JS Bank Limited and another | | 2 | W.P No. 68339 of 2023 | Big Feed (Pvt) Limited and 5 Others Versus Pak Oman Investiment Company and another | | 3 | W.P No. 48984 of 2022 | A. K Niazi Transport and 2 Others Versus First Punjab Modaraba and 4 Others | | 4 | W.P No. 81814 of 2022 | Big Bird Foods (Pvt) Limited and 4 Others Versus Pak China Investment Company and another | | 5 | W.P No. 4796 of 2023 | Habib Asghar and another Versus Bank Islami Pakistan | | 6 | W.P No. 42391 of 2023 | Allah Ditta Versus Judge, Banking Court and another | | 7 | W.P No. 8847 of 2022 | M/s Long Grain Rice Mills (pvt) Ltd. and another Versus NBP and another | | 8 | W.P No. 8404 of 2023 | Anjum Rafi and another Versus Judge, Banking Court and another | | 9 | W.P No. 37690 of 2023 | Rehman Anwar and others Versus Judge Banking Court and another | | 10 | W.P No. 80344 of 2021 | Yasar Ali and another VersusJudge Banking Court and another | | 11 | W.P No. 80335 of 2021 | Akhtar Hussain and others Versus Judge Banking Court and another | | 12 | W.P No. 80228 of 2021 | Aitzaz Azhar Versus Judge Banking Court and another | | 13 | W.P No. 75327 of 2021 | Avais Mazhar Hussain and others Versus Judge Banking Court and another | | 14 | W.P No. 72847 of 2021 | Muhammad Shoaib Arshad and another Versus Judge Banking Court and another | | 15 | W.P No. 43651 of 2022 | M/s Zulaikha Textile Mills Limited and others Versus Judge Banking Court and another | | 16 | W.P No. 60902 of 2022 | Munir Ahmad Bhatti and another Versus Judge Banking Court and another | | 17 | W.P No. 60051 of 2022 | Muhammad Usman Rasheed and others Versus Judge Banking Court and another | | 18 | W.P No. 41634 of 2023 | Ijaz Asghar Warriach and another Versus Judge Banking Court and another | | 19 | W.P No. 4957 of 2023 | Muhammad Shehzad Versus Judge Banking Court and others | | 20 | W.P No. 42388 of 2023 | Allah Ditta Versus Judge Banking Court and another | | 21 | W.P No. 8992 of 2022 | Sheikh Rehman Anwar & others Versus Judge, Banking Court & another | | 22 | W.P No. 79995 of 2022 | Muhammad Umar Virk & others Versus. Judge, Banking Court and another | | 23 | W.P No. 68102 of 2021 | Umair Omar & others Versus. Judge, Banking Court & another | | 24 | W.P No. 68777 of 2021 | Sheikh Rehman Anwar & others Versus Judge, Banking Court & another | | 25 | W.P No. 68770 of 2021 | Noman Almas and others Versus Judge, Banking Court and another | | 26 | W.P No. 79618 of 2022 | Umair Omer & another Versus Judge, Banking Court & another | | 27 | W.P No. 19451 of 2022 | M/s Wizitex Time Industries Private Limited & others Versus. Judge Banking Court & another | | 28 | W.P No. 9776 of 2022 | Muhammad Jahangir Moghul Versus Learned Judge Special Court & another | | 29 | W.P No. 70656 of 2021 | M/s City Steel Industries & others Versus Judge, Banking Court & another | | 30 | W.P No. 42392 of 2023 | Allah Ditta Versus Judge Banking Court- V and others | | 31 | W.P No. 61309 of 2022 | Naeem Omer Versus Judge, Banking Court & another | | 32 | W.P No. 5784 of 2022 | Muhammad Iqbal Dagia Versus Judge, Banking Court and others | | 33 | W.P No. 10212 of 2023 | Feroze Gulzar and Others Versus Judge, Banking Court and another | | 34 | W.P No. 5753 of 2022 | Umair Omer & others VersusJudge, Banking Court and another | | 35 | W.P No. 6123 of 2022 | Aftab Liaqat Versus The learned Judge, Banking Court and another | | 36 | W.P No. 4873 of 2023 | Imran Khan and others Versus Judge, Banking Court and others | | 37 | W.P No. 79669 of 2021 | Muhammad Azhar Akhtar and others Versus Judge, Banking Court and others | | 38 | W.P No. 80054 of 2021 | Muhammad Din Versus Judge, Banking Court and another | | 39 | W.P No. 78974 of 2021 | Muhammad Umar Virk and another Versus Judge, Banking Court and another | | 40 | W.P No. 80882 of 2021 | Masood Ahmad and another Versus Judge, Banking Court and another | | 41 | W.P No. 75627 of 2021 | Khawaja Muhammad Jahangir and others Versus Judge, Banking Court and another | | 42 | W.P No. 76913 of 2021 | Mushtaq Ali Cheema Versus Judge, Banking Court and another | | 43 | W.P No. 75346 of 2021 | Farooq Ahmad Khan, etc. Versus Judge, Banking Court and another | | 44 | W.P No. 42396 of 2023 | Allah Ditta Versus Judge, Banking Court and another |

| | | | | --- | --- | --- | | 45 | W.P No. 71955 of 2021 | Zafar Ali Zafar and others Versus Judge, Banking Court and another | | 46 | W.P No. 71640 of 2021 | Munir Ahmed Bhatti and another Versus Judge, Banking Court and another | | 47 | W. P No. 68099 of 2021 | Salman Younas Butt and Others Versus Judge, Banking Court and another | | 48 | W. P No. 82548 of 2023 | Mst. Sonia Nadeem and another Versus Judge, Banking Court and Others | | 49 | W. P No. 66429 of 2021 | Rana Iqbal Hussain Versus Judge, Banking Court and Others | | 50 | W. P No. 66414 of 2021 | Rana Iqbal Hussain Versus Judge, Banking Court and Others | | 51 | W.P No. 72790 of 2021 | Muhammad Asad and another Versus Judge, Banking Court and another | | 52 | W. P No. 64071 of 2023 | Shafiq Ahmad Versus Judge, Banking Court and Others | | 53 | W. P No. 25363 of 2022 | Muhammad Shoaib Arshad and another Versus Judge, Banking Court and another | | 54 | W. P No. 9779 of 2022 | Muhammad Jahangir Moghul Versus Learned Judge Special Court and another |

(Y.A.) Petitions dismissed

PLJ 2024 Lahore 207[Multan Bench, Multan]

Present: Raheel Kamran, J.

BEACONHOUSE SCHOOL SYSTEM, OKARA--Petitioner

versus

COMMISSIONER SAHIWAL DIVISION, etc.--Respondents

W.P. No. 755 of 2024, decided on 1.2.2024.

Punjab Free and Compulsory Education Act, 2014 (XXVI of 2014)--

----Ss. 13(b) & 24(2)(a)(b)--Non-issuance of school registration certificate--Appeal--Dismissed--Invoking of penal section against petitioner--Obligation of state--Fundamental right--No rules were framed--No criteria for determination of disadvantaged children was prescribed--Direction to--Any vagueness in prescribing legal obligations open doors for whimsical, arbitrary and capricious exercise of authority--High Court was at a complete loss in comprehending how disadvantaged children could be denied their right to education, which is their fundamental right guaranteed under Article 25A of Constitution, owing to procrastination at hands of Government which failed to frame and notify rules in discharge of its responsibilities under clauses (a) and (b) of Section 24(2) of Act--When criteria for determination of disadvantaged children or payment of vouchers and manner of maintenance of records of children under Act not been prescribed, how could compliance of same be verified and certified by any authority--District Registration Authority, Okara was directed to ensure registration of petitioner-school if conditions other than those specified in Section 13(b) of Act were satisfied and Board of Intermediate and Secondary Education, Sahiwal should also ensure that students of petitioner-school were duly registered for SSC--Petition accepted. [Pp. 212 & 213] B, C, D & E

PLD 1988 SC 416.

Constitution of Pakistan, 1973--

----Art. 25-A--Obligation of state--An obligation has been cast upon State to ensure provision of free and compulsory education to all children between age of 5 to 16 years in such a manner as may be determined by law. [P. 210] A

Mahr Haseeb Qadir, Advocate for Petitioner.

Syed Wajid Hussain Rizvi, Assistant Advocate General, Punjab with Mushtaq Ahmad Sial, DPI (SE) and Wazir Ahmad Agha, CEO(DEA), Okara.

Mr. Shakeel Javed Chaudhry, Advocate/Legal Advisor of BISE, Sahiwal.

Date of hearing: 1.2.2024.

Order

In this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (‘Constitution’), the petitioner has assailed the orders dated 29.11.2023 and 29.12.2023 passed by the Chief Executive Officer/Secretary, District Registering Authority, Okara (‘DRA’) and the Commissioner, Sahiwal Division, Sahiwal respectively whereby its request for the issuance of School Registration Certificate/ E-License for Beaconhouse School System Boys & Girls branches Okara was turned down and appeal preferred there-against was dismissed. A direction has also been sought for issuance of School Registration Certificate/E-License of the petitioner’s school for affiliation with the Board of Intermediate & Secondary Education (BISE) Sahiwal and allowing its students to participate in the Board’s examination.

1. Learned counsel for the petitioner mainly contends that in order to give effect to the obligation under Section 13(b) of the Punjab Free and Compulsory Education Act, 2014 (‘the Act’), rules were required to be framed under Section 24(2) of the Act which have not been framed and notified by the Government till date and in absence thereof penal action has been invoked by the DRA and maintained by the Commissioner against the petitioner without lawful authority.

2. Conversely, the Chief Executive Officer, DRA states that although no rules have been framed by the Government for the purpose of enforcement of Section 13(b) of the Act, however, all notable schools in the Okara District have complied with the requirements on their own and if petitioner furnishes information in similar terms, the District Registration Authority shall extend the school registration of the petitioner forthwith.

3. Learned Legal Advisor of BISE, Sahiwal states that if the school registration of the petitioner is extended by the DRA Okara, according to his instructions every effort shall be made by the Board to enroll students of the petitioner’s school for the Secondary School Certificate Examination, 2024 without any further loss of time.

4. Representative of the School Education Department, present in Court, states that draft of the rules has been framed and submitted to the Law Department which has suggested a few changes therein and the same shall be notified if some time is allowed.

5. Heard.

6. Access to free and compulsory education is a universally acknowledged right of all children. It is a sinequa non for the development of any State in addition to ensuring equality of opportunity for its citizens and their right to live with dignity. In the Islamic Republic of Pakistan, such right has been included amongst the fundamental rights contained in Chapter 1 of Part II of the Constitution through the Eighteenth Constitutional Amendment. Fundamental rights occupy a place of pride in the scheme of our Constitution and the same indeed are conscience of the Constitution.[1] By insertion of Article 25-A of the Constitution, an obligation has been cast upon the State to ensure provision of the free and compulsory education to all children between the age of 5 to 16 years in such a manner as may be determined by law. The subject of education has been devolved to the provinces for legislation and decisions regarding curriculum, syllabus, planning, policy and standard of education. Accordingly, the Punjab Free and Compulsory Education Act, 2014 was enacted. Preamble of the Act reads as under:

“An Act to provide for free and compulsory education to all children of the age of five to sixteen years. Whereas Article 25A of the Constitution of Islamic Republic of Pakistan enjoins that the State shall provide free and compulsory education to all children of the age of five to sixteen years and, for the purpose, it is expedient to make necessary provisions”

1. Section 13 of the Act describes certain responsibilities of private schools for ensuring free education. The said section is reproduced hereunder:

“13. Responsibility of private school for free education.--For purposes of this Act, a private sector school:

(a) specified in sub-clause (ii) of clause (k) of Section 2, shall provide free education to such proportion of children admitted therein as its annual aid or grant so received bears to its annual recurring expenses;

(b) specified in sub-clauses (iii) and (iv) of clause (k) of Section 2, shall admit in class one and then in every class, ten percent of the strength of that class, children, including disadvantaged children of the neighbourhood or other children as may be determined by the Government, and shall provide free and compulsory education to such children or, in the alternative, provide prescribed vouchers for education of disadvantaged children in any other school, as may be determined by the Government;

(c) shall provide the information pertaining to the students admitted under clauses (a) and (b) to the Government, the local authority or any other prescribed authority; and

(d) shall not require a parent to purchase textbooks, uniform or other material from a particular vendor or provider and shall not charge any amount other than tuition fee, admission fee or prescribed security in the name and style of building fund or under any other name or style.”

1. Section 2 of the Act, inter alia, defines “child”, “education”, “disadvantaged child”, “free education” and “school” in the following terms:-

“2. Definitions.--In this Act:

(a) “child” means a child from the age of five to sixteen years;

(c) “disadvantaged child” means a child who belongs to a socially and economically disadvantaged class or to any other group having disadvantage owing to social, or such other reasons or who belongs to such a parent whose annual income is less than the limit which the Government may, by notification, specify;

(d) “education” means teaching and training of mind and character by attendance in regular school education, madrassa education, vocational training and special education in the classroom and school setting, or non- formal education or the education prescribed for a child or category of children by the Government;

(e) “free education” implies that the Government or local authority shall not charge any fee or expense for providing education and shall endeavour to remove financial barriers that may prevent a child from completing ten years’ education.

(k) “school” means an educational institution imparting primary, elementary or secondary education to the children and includes:

(i) a school owned or controlled by the Government or a local authority;

(ii) a school receiving aid or grant to meet whole or part of its expenses from the Government, Federal Government or a local authority;

(iii) a school not receiving any kind of aid or grant from the Government, Federal Government or a local authority; and

(iv) a Deeni madrassa or any school providing religious education recognized by the Government.”

1. There are certain features in the above provisions which are required to be determined by the Government and in that regard Section 24 of the Act empowers the Government to make rules for carrying out purposes of the Act as follows:-

“24. Power to make rules.--(1) The Government may, by notification, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for any of the following matters:

(a) manner of maintenance of records of children;

(b) criteria for determination of disadvantage children or payment of vouchers;

(c) the area or limits for establishment of a neighbourhood school;

(d) extended period for admission of a child and the manner of completing study by the child if admitted after the extended period;

(e) academic calendar;

(f) duties to be performed by the teachers;

(g) the manner of redressing grievances of teachers, students or any other person;

(h) the manner of giving opportunity of hearing under this Act;

(i) receipt of contribution, utilization and withdrawal of money from the Taleem Fund; and

(j) maintenance and audit of accounts;

1. From perusal of the above provisions of law, it is manifest that without framing rules, inter alia, to outline criteria for the determination of disadvantaged children or payment of vouchers and the manner of maintenance of records of children under clauses (a) & (b) of Section 24(2) of the Act, any claim of compliance of obligations under Section 13 of the Act would remain subjective, open to objections and disputes. Certainty lies at the heart of rule of law. Any vagueness or uncertainty in prescribing legal obligations opens the doors for whimsical, arbitrary and capricious exercise of authority. Law has to be reasonably precise and unambiguous to attract penal consequences for its alleged violation. It is for this recognition on part of the provincial legislature that the requirement to specify criteria for the determination of disadvantaged children or payment of vouchers and the manner of maintenance of records of children was mandated for the Government under clauses (a) & (b) of Section 24(2) of the Act. No redundancy could be attached to legislative expressions including the aforementioned provisions of Section 24 ibid.

2. It is noteworthy that legislation in this case was enacted by the Punjab Assembly in the year 2014 and this Court is at a complete loss in comprehending how the disadvantaged children could be denied their right to education, which is their fundamental right guaranteed under Article 25A of the Constitution, owing to procrastination at the hands of the Government which failed to frame and notify rules in discharge of its responsibilities under clauses (a) and (b) of Section 24(2) of the Act. The private education sector, which was supposed to share the responsibility of right to education of disadvantaged children, has benefitted from inaction on part of the Government Departments even after the lapse of 10 years of passing of the Act. At best, it shows an obvious neglect of the Government whereas, at worst, it may well be a case of regulatory capture warranting inquiry.

3. This Court would abstain from commenting on reliability of the information provided to the DRA by other schools in the District, however, it is observed that when criteria for the determination of disadvantaged children or payment of vouchers and manner of maintenance of records of children under clauses (a) & (b) of Section 24(2) of the Act has not been prescribed, how could compliance of the same be verified and certified by any authority.

4. For the foregoing reasons, while accepting this petition, the impugned orders dated 29.11.2023 and 29.12.2023 are set aside. Consequently, District Registration Authority, Okara is directed to ensure registration of the petitioner-school if conditions other than those specified in Section 13(b) of the Act are satisfied and the Board of Intermediate and Secondary Education, Sahiwal shall also ensure that students of the petitioner-school are duly registered for the SSC Examination 2024 without any further delay. Government of the Punjab is directed to fulfill its obligation to frame rules, inter alia, to prescribe the criteria for the determination of disadvantaged children or payment of vouchers and the manner of maintenance of records of children under clauses (a) & (b) of Section 24(2) of the Act within a period of 30 days whereafter it shall proceed for the enforcement of Section 13 of the Act through penal actions in accordance with law. There shall be no order as to costs. The Deputy Registrar (Judicial) of

this Court shall immediately send a copy of this order to Respondents No. 5 & 6 for compliance.

(Y.A.) Petition accepted

[1]. Miss Benazir Butto vs. Federation of Pakistan and another (PLD 1988 Supreme Court 416).

PLJ 2024 Lahore 214

Present: Shahid Bilal Hassan, J.

MUHAMMAD ADIL NAWAZ BHATTI--Petitioner

versus

CHAIRMAN UNION COUNCIL and others--Respondents

W.P. No. 62590 of 2023, heard on 30.1.2024.

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----Ss. 2(b) & 7--West Pakistan Rules under Muslim Family Laws Ordinance, 1961, R. 3(b)--Three notices of talaq were served--Non-issuance of divorce effectiveness certificate--Petitioner and respondent were resides abroad--Territorial jurisdiction of union council and chairman--Proceedings in District Courts Germany were not disclosed by petitioner--Challenge to-- The petitioner was permanently residing in Germany and Respondent No. 3 was also there as is evident from her Resident Card and Health Card--Union Council, which would had jurisdiction in matter would be Union Council within whose territorial jurisdiction wife was residing at time of pronouncement of divorce and in this case Respondent No. 3 was residing in Germany as had been admitted by petitioner--The petitioner did not disclose factum of initiation of proceedings before District Courts in Germany with regards to complaint against physical assault, claim for separate accommodation and maintenance, petitioner had not approached High Court with clean hands--Stance SRO had been struck down by Islamabad High Court was concerned, it was observed that said S.R.O. is fully in vogue in Punjab as no verdict as such had been passed by High Court, because a relief cannot go beyond provincial boundary and affect any other province or Area or its people--Order impugned passed by Respondent No. 1 had rightly been passed while construing law on subject, which did not need any interference by High Court--Petition dismissed. [Pp. 216, 217, 218 & 219] A, B, C, D & E

2009 YLR 1141 Lah., 2016 MLD 1061 Lah., 2010 MLD 989 Lah., PLD 2019 Lahore 285, PLD 2017 Lahore 665 ref.

Malik Muhammad Imtiaz Mahal, Advocate for Petitioner.

Ms. Yasrab Gulzar, Advocate for Respondent No. 3.

Mian Jaffer Hussain, Deputy Attorney General for Pakistan.

Mr. Qamar Zaman Qureshi, Additional Advocate General Punjab.

Date of hearing: 30.1.2024.

Judgment

Facts, in concision, are as such that the petitioner is an Overseas Pakistani and living abroad/Germany, therefore, the instant petition has been filed through his attorney/real father; that the petitioner contracted marriage with Respondent No. 3 as per Islamic rites and rituals on 18.09.2020, however, the wedlock remained issueless. The petitioner and Respondent No. 3 went to reside in Germany after their marriage. Some family disputes occurred between the spouse and at the end the parties made a decision of separation. Allegedly, the petitioner sent first notice of divorce to the Respondent No. 1 on 03.01.2023, second notice on 03.02.2023 and third/last divorce notice on 06.03.2023 to the Respondent No. 1 through DHL which were received by the Respondent No. 1. However, the Respondent No. 1 wrote an advice letter dated 27.03.2023 to the petitioner to approach the concerned forum abroad. The petitioner through Gmail sent a request to the concerned Authority/Consulate General Pakistan in Germany on 31.03.2023. The petitioner, thereafter, moved a detailed application dated 11.04.2023 with relevant documents to the Respondent No. 1 requesting him to issue divorce effectiveness certificate. The Respondent No. 1 vide order dated 19.04.2023 declined the said request of the petitioner. Thereafter the petitioner approached the Consulate General of Pakistan regarding issuance of divorce effectiveness certificate. However, the Consulate General of Pakistan issued letter No. CG-1/3/2023 dated 14.06.2023 with the following observation:

“The Islamabad High Court on the Writ Petition No. 21 of 2021 had set-aside the notification dated 08.11.1961 (SRO 1086/61), which means that Pakistan Mission abroad may no longer act as Arbitration Councils. The applicant would have to approach Arbitration Council in Pakistan, if so advised.”

After this, the petitioner again moved a detailed application to the ADLG City Lahore with the request of issuance of divorce effectiveness certificate dated 20.06.2023 but the same was refused by the Respondent No. 1 vide impugned order dated 27.07.2023; hence, the instant constitutional petition.

1. Heard.

2. Sections 2(b) and 7 of the Muslim Family Laws Ordinance, 1961 and Rule 3(b) of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961 are necessary, in order to resolve the controversy in hand, which are to be reproduced infra:

“Section 2(b): “Chairman” means the Chairman of the Union Council or a person appointed by the Federal Government in the Cantonment areas or by the Provincial Government in other areas or by any officer authorized in that behalf by any such Government to discharge the functions of Chairman under this Ordinance.”

“7. “Talaq”. (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.

(2) Whoever, contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

(3) Save a provided in subsection (5) a Talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of notice under Sub-section (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever be later, ends.

The petitioner is permanently residing in Germany and Respondent No. 3 is also there as is evident from her Resident Card and Health Card, effective till February 2025, copy of which has been placed on record, even at the time of alleged notices of Talaq the petitioner was not available in Lahore; meaning thereby as per S.R.O. o. 1086(K)61 dated 09.11.1961 the jurisdiction for taking up the matter was with the designated officer in the Pakistan Consulate/Mission in Germany. The said S.R.O. reads:

“In exercise of the powers conferred by clause (b) of Section 2 of the Muslim Family Laws Ordinance, 1961 (VIII of 1961), the Central Government is pleased to authorize the Director General (Administration) Ministry of External Affairs to appoint officers of Pakistan Mission abroad to discharge the functions of Chairman under the aforesaid Ordinance.”

Rule 3(b) of the Rules provides:

“Rule 3. The Union Council which shall have jurisdiction in the matter for the purpose of clause (d) of Section 2 shall be as follows, namely:-

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

(b) in the case of notice of talaq under subsection (1) of section 7, it shall be the Union Council of the Union or Town where the wife in relation to whom talaq has been pronounced was residing, at the time of the pronouncement of talaq:

Provided that if at the time of pronouncement of talaq such wife was not residing in any part of West Pakistan, the Union Council that shall have jurisdiction shall be--

(i) in case such wife was at any time residing with the person pronouncing the Talaq in any part of West Pakistan, the Union Council of the Union or Town where such wife so last resided with such person; and

(ii) in any other case, the Union Council of the Union or Town where the person pronouncing the talaq is permanently residing in West Pakistan;”

In view of the above said provisions of law, the Union Council and/or the Chairman, which would have jurisdiction in the matter would be the Union Council and/or the Chairman within whose territorial jurisdiction the wife was residing at the time of pronouncement of divorce and in this case the Respondent No. 3 was residing in Germany as has been admitted by the petitioner. Reliance is placed on Mt. Sharifan v. Abdul Khaliq and another (1983 CLC 1296) and Ms. Sadaf Munir Khan v. Chairman, Reconciliation Committee and 2 others (PLD 2019 Lahore 285). When the position is as such, as observed above, as per Notification S.R.O.No. 1086(K)61 dated 09.11.1961, officers of Pakistan Mission abroad are authorized to discharge the functions of Chairman under the aforesaid Ordinance. Meaning thereby the Chairman, Union Council No. 116-EME, DHA-12, ADLG Multan Road, Lahore has no authority to deal with the matter in hand in respect of divorce. This Court in judgment reported as Mian Irfan Latif through Special Attorney v. Nazim/Chairman Union Council No. 100 and another (2009 YLR 1141-Lahore), has held:

“Since both the parties are permanent resident of U.K. and as such as per Notification No. SRO No. 1086(K)/61 the function of Chairman Arbitration Council under the Muslim Family Laws Ordinance, 1961 are to be performed by an appointed offer of the Pakistan Mission abroad.”

The same view was reaffirmed and reiterated in judgments reported as Mst. Sana Asim Hafeez v. Administrator/Chairman, Arbitration and Conciliation Court (2016 MLD 1061-Lahore), Syeda Wajiha Haris v. Chairman, Union Council No. 7, Lahore (2010 MLD 989-Lahore) and Ms. Sadaf Munir Khan v. Chairman, Reconciliation Committee and 2 others (PLD 2019 Lahore 285).

In addition to the above, the petitioner did not disclose the factum of initiation of proceedings before the District Courts in Germany with regards to complaint against physical assault, claim for separate accommodation and maintenance, meaning thereby the petitioner has not approached this Court with clean hands.

1. So far as the stance that the S.R.O. ibid has been struck down by the learned Islamabad High Court is concerned, it is observed that the said S.R.O. is fully in vogue in Punjab as no verdict as such has been passed by this Court, because a relief cannot go beyond the provincial boundary and affect any other province or Area or its people, as has already been held by this Court in a judgment reported as Hassan Shahjehan v. FPSC through Chairman and others (PLD 2017 Lahore 665) that:

“As a corollary, the relief granted or the writ issued by the High Court also remains within the territorial jurisdiction of this Court and can only benefit or affect a person within the territorial jurisdiction of the Court. The relief cannot go beyond the Provincial boundary and affect any other Province or Area or its people. So for example, if a federal law or federal notification is struck down by Lahore High Court, it is struck down for the Province of Punjab or in other words the federal

law or the federal notification is no more applicable to the Province of Punjab but otherwise remains valid for all the other Provinces or Area. Unless of course the Federation or the federal authority complying with the judgment of the Lahore High Court, make necessary amends or withdraw the law or the notification.”

1. In view of the above, it is concluded that the order impugned dated 27.07.2023 passed by the Respondent No. 1-Chairman Union Council No. 116-EME, DHA-12, ADLG, Multan Road, Lahore has rightly been passed while construing law on the subject, which does not need any interference by this Court. Resultantly, with the above said observations, the constitutional petition in hand having no force and substance stands dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 219

Present: Ch. Muhammad Iqbal, J.

BAKHSH--Petitioner

versus

MEMBER (JUDICIAL VII), BOARD OF REVENUE etc.--Respondents

W.P. No. 56073 of 2020, heard on 20.2.2024.

General Colony Conditions, 1938—

----Ss. 14, 16(H)--Constitution of Pakistan, 1973, Art. 199--Lease of state charagah--Non-payment of lagan--Cancellation of lease--Appeal--Dismissed--Application for purchasing of suit land through private treaty by petitioner--Respondents 3, 4 were also filed application for purchasing of suit land--Consolidated order--Partly allowed appeals--Review petitioners--Accepted--no extension of lease--Embargo on grant of property rights of charagah--No right to claim of petitioners--Eligibility criteria--Challenge to-- It is well settled that law always leans in favour of law abiding persons and lends nil support to illegal occupants, usurpers, transgressors, encroachers and grabbers of State land--Land in question was a Charagah land and under law neither its proprietary rights could be granted nor it could be sold through private treaty to any person--A policy Notification and Notification issued by Colonies Department which placed an embargo on grant of proprietary rights of Charagah land and such lands were expressly excluded from any grant or grant of proprietary rights under Temporary Cultivation Lease Scheme--Charagah lands had expressly been excluded from any kind of grant or grant of proprietary rights, as such its any alienation or grant under Lambardari grant will straightway offend policies on subject--Petitioners had no locus standi or right to claim allotment of state Charagah land, their claim was rejected--The second time allotment of State land under lumbardari grant was not warranted by law--Respondent No. 3 did not not fulfill eligibility criteria laid down in notifications as such order for grant of land to him under Lambardari grant was illegal and hereby set aside--The claim of respondent for allotment of Cheragah land under lumbardari grant was devoid of any force and same was accordingly set at naught--Petitions disposed of.

[Pp. 222, 223, 224, 226 227 & 228] A, B, C, D, E, F, G & H

2014 SCMR 1351, 2014 SCMR 334 & 2021 MLD 313 ref.

Mr. Manzar Abbas Khokhar, Advocate for Petitioner.

Raja Muhammad Arif, Additional Advocate General for Respondents No. 1 & 2.

Qari Nadeem Ahmad Awaisi, Advocate for Respondents No. 3 & 4.

Date of hearing: 20.2.2024.

Judgment

Through this single judgment I intend to decide the titled Writ Petition [No. 56073/2020] as well as Writ Petition No. 56076/2020 as both these cases have been filed against the consolidated order passed by the Member, Board of Revenue.

1. Brief facts of the titled Writ Petition [No. 56073/2020] are that the petitioner/Bakhsh obtained state Charagah land bearing Lot No. 2 Khasra No. 59/3/2, 4, 7, 8/1, 13/2, 14 to 17, 18/1, 23/2, 24/1 & 25/1 measuring 72 Kanal 02 Marla situated in Chak No. 41/4-L Tehsil & District Okara under 05 years lease scheme on 05.10.1995 for a period from Kharif 1995 to Rabi 2000. Due to non-payment of lagaan, the lease was cancelled by the District Collector on 24.06.2000. The petitioner challenged the said order through an appeal which was dismissed by the Executive District Officer (Revenue), Okara vide order dated 16.03.2005. Thereafter, the petitioner filed application for purchase of the state land through private treaty.

Brief facts of the Writ Petition No. 56076/2020 are that the petitioner/Noor Muhammad obtained state Charagah land under 05 years lease scheme bearing Lot No. 4 Khasra No. 54/11/2, 12/2 & 13/4 measuring 01 Acre 02 Kanal 17 Marla situated in Chak No. 41/4-L Tehsil & District Okara on 05.10.1995 for a period of Kharif 1995 to Rabi 2000. Due to non-payment of lagaan, the lease was cancelled by the District Collector on 24.06.2000. The petitioner challenged the said order through an appeal which was dismissed by the Executive District Officer (Revenue), Okara vide order dated 10.05.2005. Thereafter, the petitioner/Noor Muhammad also filed application for purchase of the state land through private treaty. The Respondents No. 3 & 4 also filed separate applications for lease of state land to them under Lambardari Grant. The District Collector, Okara consolidated the aforesaid four applications of the petitioners as well as Respondents No. 3 & 4 and vide consolidated order dated 08.05.2012 dismissed the applications of petitioners [Bukhsh and Noor Muhammad] for purchase of the state land through private treaty and allotted the land measuring 72 Kanal 02 Marla bearing Lot No. 2 to Khadim Hussain Lambardar (Respondent No. 3) as well as allotted lot measuring 01 Acre 02 Kanal 17 Marla to Ali Sher Lambardar [Respondent No. 4].

The petitioners [Bukhsh and Noor Muhammad] assailed the said order through separate appeals before the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal who vide order dated 18.07.2013 partly allowed the said appeals holding the allotments to the Lambardars (Respondents No. 3 & 4) as illegal and cancelled the same by directing the District Collector to send a reference to the Board of Revenue for exclusion of the land from Lambardari Grant.

The petitioners [Bukhsh and Noor Muhammad] as well as Respondents No. 3 & 4 assailed the aforesaid orders through four separate revision petitions and one review application. The Member, Board of Revenuevide consolidated order dated 07.03.2016 upheld the orders dated 18.07.2013 passed by the Additional Commissioner (Revenue), Sahiwal Division and disposed of the ROR No. 2006/2013 titled as Khadim Hussain vs. Bakhsh etc., ROR No. 2007/2013 titled as Ali Sher vs. Noor Muhammad etc. and dismissed the ROR No. 2002/2013 titled as Noor Muhammad vs. The State, ROR No. No. 2004/2013 titled as Bakhsh vs. The State alongwith review Petition No. 449/2014 titled as Khadim Hussain etc. vs. Noor Muhammad.

Khadim Hussain and Ali Sher [Respondents No. 3 & 4] filed review petitions No. 190 & 191 of 2016 which were accepted by the Member, Board of Revenue vide order dated 10.09.2020, the consolidated order dated 07.03.2016 passed in revision petitions of the parties was recalled and by setting aside the order dated 18.07.2013 passed by the Additional Commissioner (Revenue), Sahiwal Division the order dated 08.05.2012 passed by the District Collector, Okara was upheld. Hence, these two writ petitions.

1. I have heard learned counsels for the parties and have gone through the record.

2. Admittedly, the suit land [bearing Lot No. 2 Khasra No. 59/3/2, 4, 7, 8/1, 13/2, 14 to 17, 18/1, 23/2, 24/1 & 25/1 measuring 72 Kanal 02 Marla and bearing Lot No. 4 Khasra No. 54/11/2, 12/2 & 13/4 measuring 01 Acre 02 Kanal 17 Marla situated in Chak No. 41/4-L Tehsil & District Okara] is Charagah land which was given to the petitioners on 05 years lease from Kharif 1995 to Rabi 2000. The said lease was not further extended and after cancellation of the lease, the land was resumed in favour of the state vide order dated 10.05.2005 passed by the District Collector, Okara. The appeals of the petitioners were also dismissed thus the petitioners were no more tenants/lessees over the land in question and after expiry/cancellation of lease, the possession of the petitioners over the said land is that of an illegal nature. It is well settled that law always leans in favour of the law abiding persons and lends nil support to the illegal occupants, usurpers, transgressors, encroachers and grabbers of the State land. Reliance is placed on the case titled as Fazal-ur-Rehman & Others vs. Province of Punjab through District Officer (Revenue) Bhakkar & Another (2014 SCMR 1351), wherein the Hon’ble Supreme Court of Pakistan held as under:

“It is argued by the learned counsel that the petitioner had a 40 years possession over the land in question; therefore, he had been dispossessed in violation of Section 32 of the Colonization of Government Lands (Punjab) Act, 1912. We are not inclined because admittedly no document exists in favour of the petitioner to establish his claim to remain in occupation of the property in dispute. Learned counsel stated that an application has been moved before the Board of Revenue for the proprietary rights. We are not inclined because in our considered opinion this argument had not been advanced earlier at any stage and it was not the case of the petitioner in any manner. Contrary to it, it strengthens the plea of the respondent that the petitioner was an unauthorized occupant. We may add that the law lean towards persons who believe in the rule of law and not those who takes that law in their hands as happened in the instant case where the petitioner with no legal authority had occupied the premises in dispute. As far as the question that he was in possession for so many years is concerned, it can never be a ground for the purpose of proprietary rights. The petitioner has failed to establish his case in his favour. The learned High Court had rightly declined to exercise its revisional jurisdiction and maintained the orders of the Courts below, thus, we find no merit in this petition which is, therefore, dismissed and leave to appeal is declined. However if the petitioner has any claim for damages he is free to approach the competent forum for redressal of his grievance.”

Similar principle has been reiterated in the case titled as Muhammad Sharif through L.Rs vs. Province of Punjab through District Officer Revenue, Pakpattan (2014 SCMR 334). In a case titled as “Shazia Gillani etc. vs. Board of Revenue, Punjab, Lahore through Member Colonies, etc.” (in C.P. No. 732-L of 2016) the Hon’ble Supreme Court has refused to protect the possession of usurpers of state propertyvide order dated 25.03.2016 holding that:

“The petitioners are lessees of the land in question. Their lease admittedly expired in 2000 after which they have been in unauthorized possession. No case has been made out for any protection of their rights as per the notification dated 18.7.2005 which has been relied upon in this regard. The discretion of the learned High Court in terms of Article 199 of the Constitution or this Court as per Article 185 of the Constitution is not available for the protection of possession of people who are usurpers of state property. No case has been made out for interference. Dismissed accordingly.”

(emphasis supplied)

In another case, the Hon’ble Supreme Court of Pakistan in Civil Petition No. 882-L of 2015 vide order dated 15.03.2017 held as under:-

“2. We find that in the light of above circumstances, the learned High Court rightly allowed the writ petition of the respondents and restored possession of the property to them, and correctly dismissed the writ petition of the instant petitioners, who are admitted encroachers of the property and are in unauthorized possession therefore. Resultantly, this petition is dismissed.”

(emphasis supplied)

5. Moreover, admittedly, land in question is a Charagah land and under the law/policy neither its proprietary rights can be granted nor it could be sold through private treaty to any person. With regard to the Charagah land and its settled objectives of utilization, a policy Notification dated 3rd September 1979 (under Temporary Cultivation Lease Scheme) and Notification dated 20th April, 1983 were issued by Colonies Department which placed an embargo on the grant of proprietary rights of Charagah land and such lands were expressly excluded from any grant or grant of proprietary rights under Temporary Cultivation Lease Scheme. In Clause 2 of the aforementioned notification dated 03.09.1979 following lands have been excluded from every grant which is as under:-

2. Exceptions and Reservations. Unless it is otherwise specifically provided, the following lands shall be deemed to have been expressly excluded from every grant under these conditions;

(i) lands already allotted under permanent grants;

(ii) lands reserved or earmarked but not yet allotted under permanent grants;

(iii) charagahs;

(iv) lands lying within a belt of:--

(a) ten miles running along and on the outer side of outer limits of a Corporation;

(b) five miles running along and on the outer side of the outer limits of a Municipality;

(c) three miles running along and on the outer side of the outer limits of a Town Committee or a Mandi Town;

(v) lands which are/may be reserved for any purpose.

(emphasis supplied)

Through another Notification No. 1925-83/1253-CLI dated 20th April, 1983, the Govt. of the Punjab Colonies Department, the Charagah Land was excluded from any grant of proprietary rights. The relevant clause III of the said notification is as under:

Exceptions and Reservations. Unless it is otherwise specifically provided, the following categories of State Land shall be deemed to have been expressly excluded from every grant under these conditions;

i) land already allotted under permanent grants;

ii) lands already reserved or earmarked for permanent grants or for a public purpose;

iii) reserved Charagah or Charagah Baqaya in Colony chaks;

iv) lands lying within 10 (ten) miles of the outer limits of a Municipal Corporation, within 5 (five) miles of the outer limits of a Municipality or with 3 (three) miles of the outer limits of a Town Committee/Mandi Town;

v) land lying within 5 (five) miles of the outer limits of a Cantonment Board area;

vi) lands allotted or leased out under service grants viz, Lambardari grants, House/Mule Breeding tenancy, Livestock Breeding tenancy and River Action Scheme.

(emphasis supplied)

In the subsequent Notification No. 7402-86/374-CLI dated 1st February, 1995, issued by the Board of Revenue, Punjab, Lahore, a clarification has been furnished regarding the land of prohibited Zone previously enunciated under notifications of 1979 and 1983 for the purpose of grant of proprietary rights. Further, vide Notification No. 1997-2001/1174-CLI dated 9th July, 2001, the following lands have been excluded from every grant:

1. Exceptions and Reservations. Unless it is otherwise specifically provided the following categories of state land shall be deemed to have been expressly excluded from every grant to be made under these conditions.

2. Land already reserved under any other scheme including permanent grants/schemes and service grants.

3. Reserved Charagah or Charagah Baqaya in colony Chaks;

4. Lands lying inside municipal limits and within prohibited zone which will be upto

i) 10 (Ten) miles beyond the outer limits of a Metropolitan/Municipal Corporation as existed on 1.1.2001.

ii) 5 (Five) miles beyond the outer limits of a Municipal Committee as existed on 1.1.2001

iii) 3 (Three) miles beyond the outer limits of a Town Committee/Mandi Town as existed on 1.1.2001.

In the policy notification dated 04.02.1998, the exception from grant of proprietary rights of state charagah land remained intact. The relevant text whereof is reproduced as under:

“i) The Charagah land around the village abadis as also alongwith roads shall not be converted into State land and shall not be used for any purpose except with the prior permission of the Board of Revenue and that for a public purpose only. A recommendation in this behalf should invariably be initiated by the District Collector through the Commissioner of the relevant division.”

1. Perusal of the afore quoted policy notifications makes it abundantly clear that Charagah lands have expressly been excluded from any kind of grant or grant of proprietary rights, as such its any alienation or grant under Lambardari grant will straightway offend policies on the subject. The successive policies/notifications on the subject manifestly place restrictions on conversion of the State charagah land into simple state land for its onward allotment against any sort of claim, grant of its proprietary rights or its any other alternative use. Further change of character of the Charagah land was subservient to the manifestly described wider scope of public purpose, which is to be adjudged objectively by the Board of Revenue. An alike controversy has been considered and declined by this Court in its judgment cited as Muhammad Israfeel & Others vs. The Province of Punjab & Others (2021 MLD 313). The order passed in supra judgment was challenged in Intra Court Appeal (No. 37127-2020) as well as a subsequent ICA No. 85/2021 titled Mushtaq Ahmad etc. vs The Province of Punjab etc. along-with other connected ICAs and same also stood dismissed. Further, on 05.10.2021 another Writ Petition [No. 57766/2021] was also dismissed on analogy of the aforementioned judgment [2021 MLD 313] which order of dismissal was assailed before the Apex Court who while dismissing Civil Petition No. 1925-L/ 2021 on 25.08.2022 upheld the order of this Court. Thus to that extent the issue has attained conclusivety.

In view of above, the petitioners have no locus standi or right to claim lease/allotment/purchase of the state Charagah land, therefore their claim is rejected.

1. As regard the grant of lease of the land in question to Respondents No. 3/Khadim Hussain Lambardar is concerned, suffice it to say that Respondent No. 3 is descendant of Latkan s/o Karam who had earlier obtained land under Lumberdari grant and then proprietary rights were granted to him on 19.01.1957 and mutation was accordingly incorporated on 22.03.1957, thus the second time allotment of the State land under lumbardari grant is not warranted by law. Reference in this regard is made to Clause 16(h) of the General Colony Conditions 1938 wherein the word “grantee” has been defined as under:

“(h) “grantee” includes any person holding under a grant whether as proprietor or as tenant or otherwise, and shall be deemed to include the successors and assigns of the grantee and when the said term includes co-sharers, any liability imposed by these conditions shall be the joint and several liability of each co-sharer.”

Similarly “tenant” has been defined in Section 3 of the Colonization of Government Lands (Punjab) Act, 1912 as under:

“Original Tenant means any male, to whom a tenancy is first allotted by the Collector, and includes the male transferee of such a tenant and any male nominated by the Collector in accordance with the provisions of Section 21 to succeed a female, to whom a tenancy was first allotted.”

The Colonies Department, Government of the Punjab vide notification No. 3910-76/2686-CV dated 13.07.1976 while describing the conditions for disposal of Lambardari grant held that the grant of state land shall be subject to the General Colony Conditions 1938. For ready reference, relevant portion of the aforesaid notification is reproduced as under:

“14. The grant of State land shall be subject to the General Colony Conditions, 1938 issued under Section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912, so far as they may be applicable thereto.”

As the predecessor of Respondent No. 3 had already been granted state land under Lambardari Grant as such the Respondent No. 3 is not entitled for any new allotment under the said grant. As per Notification No. 315-90/1593-CV dated 29.10.1990, a family member cannot obtain more than one lot as Lumberdari Grant as such the Respondent No. 3 is not eligible for grant of land. For ready reference, relevant portion of the aforesaid notification is reproduced as under:

“(i) Permanent Lumbardars in Colony Chaks who were not given Lambardari grant so far would be eligible to obtain grant upto 12-1/2 acres on lease basis as Lambardari grant without any promise of proprietary rights in future. The permanent Lambardars in Colony Chaks who themselves or whose predecessors-in-interest have already been given Lambardari grants would not be given such concessions. Those Lambardar including their predecessors-in-interest, who have already obtained proprietary rights in respect of their Lambardari grant will also be ineligible for the above grant.”

(emphasis supplied)

The Colonies Department, Government of Punjab has issued notification dated 17.01.2006 regarding statement of conditions for grant of state land on lease to the Lambardars wherein in Clause 7, the ineligibility criteria has been given as under:

“7. INELIGIBILITY

A grantee can have only one lot under these conditions at his choice. If at any time it is found that he has got two or more tenancies as a “Lambardar” under these conditions or under different statement of conditions governing Lambardari grants, all of the grants shall be liable to resumption by the District Collector, provided that a period of one month shall be allowed to the grantee to retain any one of them. The choice shall be communicated to the Collector in writing either personally or through an authorised agent or by registered post (Acknowledgment Due) within thirty days of the receipt of intimation to that effect from the Collector.”

As the Respondent No. 3 does not fulfill the eligibility criteria laid down in the notifications dated 29.10.1990 and 17.01.2006, reproduced above, as such the order for grant of land to him under Lambardari grant is illegal and hereby set aside.

1. As regard the case of Respondent No. 4/Ali Sher Lambardar is concerned, elaborate findings have been provided in earlier part of this judgment that the Charagah land cannot be leased out under any grant, thus the claim of above respondent for allotment of Cheragah land under lumbardari grant is devoid of any force and same is according set at naught.

2. Resultantly, both these writ petitions are disposed of in the manner that the order dated 10.09.2020 passed by the Member, Board of Revenue in Review Petitions of the Respondents No. 3 and 4 is set aside whereas the order dated 07.03.2016 passed by the Member, Board of Revenue in Revision Petitions of the parties of the lis is hereby upheld.

(Y.A.) Petition disposed of

PLJ 2024 Lahore 229 [Multan Bench Multan]

Present: Anwaar Hussain, J.

MUHAMMAD SHAFIQUE--Petitioner

versus

DIRECTOR GENERAL, PUNJAB EMERGENCY SERVICE, LAHORE etc.--Respondents

W.P. No. 6339 of 2022, heard on 22.2.2024.

Punjab Emergency Service Leave, Efficiency and Discipline Rules, 2007--

----Rr. 6 & 7--Constitution of Pakistan, 1973, Art. 199--Punjab Employees Efficiency, Discipline and Accountability Act, (XII of 2006), S. 2(n)(vii)--Removal from service--Willful absence--Show-cause--Registration of FIR--Arrest of petitioner in a murder case--Acquittal from charge--Allegation of misconduct--Application for reinstatement--Rejected--Writ petition--Allowed--A reasonable employer was expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before drawing conclusion that an employee was guilty of misconduct (willful absence in present case) in general and imposing major punishment of removal from service in particular--The impugned order(s) revealed that element of “willfulness” was never looked into in case of petitioner as there were compelling circumstances of registration of FIR against petitioner and his consequent arrest and incarceration in jail rendered it beyond his control to report to authorities concerned-- The extreme punishment of removal from service had been awarded without any inquiry or determination by considering cause of absence--The department could initiate disciplinary proceedings against its regular employee in accordance with law and in order to remove petitioner under PEEDA, it was obligatory upon respondent to prove his willful absence from duty element of “willfulness” was never looked into by competent authority. [Pp. 232, 233 & 235] A, D, E & F

1985 SCMR 1062 ref.

Absence--

----Absence without any application or prior permission may amount to unauthorized absence, but it does not always mean that same is willful--If absence is result of compelling circumstances under which it was not possible for an employee to report or perform duty, such absence cannot be held to be willful. [P. 232] B

2024 PLC (CS) 129 ref.

Determination of absence--

----Where an absent employee comes back and seeks to join his duty, departmental authorities are obligated to determine whether unauthorized absence was willful or was result of such compelling circumstances which were beyond control of employee. [P. 232] C

Mr. Shakeel Javed Chaudhary, Advocate for Petitioner

Sahibzada Muhammad Saleem, Assistant Advocate General along with Abdul Jabbar, ALO in the office of Respondent No. 1.

Date of hearing: 22.2.2024.

Judgment

This constitutional petition is directed against order dated 06.02.2014, by virtue of which the petitioner, Ex-Fire Rescuer, Punjab Emergency Service (Rescue 1122), Lahore was removed from the service on account of absence from duty as well as order dated 01.03.2022 passed by Respondent No. 1/the appellate authority, maintaining the impugned order of removal. Prayer has been made that the petitioner be reinstated into service along with all back benefits.

1. By way of factual background, it has been noted that the petitioner admittedly remained absent from the duty, without getting his leave sanctioned, since 09.06.2013, where-after the respondents issued explanation letters, statedly sent at the home address of the petitioner and, upon non-receipt of the reply, it was inferred that the petitioner is guilty of misconduct and after issuing show-cause notice, he was removed from the service, vide order dated 06.02.2014. It is case of the petitioner that absence from duty was not willful inasmuch as the petitioner was arrested, by the local Police, on 08.04.2013 in a false criminal case bearing F.I.R No. 76/2013 dated 10.03.2013, under Sections 302/148/149 of the Pakistan Penal Code, 1860 registered at Police Station Dhanote, District Lodhran and remained incarcerated in jail till 19.04.2019 and upon his release, after acquittal from the said case, he immediately filed an application with the respondents for his reinstatement, as absence from duty was without any fault that can be attributed to the petitioner. However, the said application was rejected vide order 27.11.2020, which constrained the petitioner to file constitutional petition bearing W.P No. 460/2021 that was allowed vide order dated 18.11.2021, with the consent of both parties, and it was directed that representation/appeal of the petitioner pending with Respondent No. 1 be decided within a period of two months, through a speaking order, in accordance with law, after extending a fair opportunity of hearing, whereafter impugned order dated 01.03.2022 has been passed by Respondent No. 1.

2. Learned counsel for the petitioner submits that, on the one hand, the petitioner has been non-suited on the ground that petitioner’s representation/appeal was time barred by a period of 05 years and 03 months and on the other hand such punishment for absence from duty has been imposed, which is alien to the Punjab Emergency Service Leave, Efficiency and Discipline Rules 2007 (“the Rules”), as the only penalty that can be awarded to an employee of M/s. Rescue 1122 under Rule 6 thereof is deduction of emergency allowance or one fifth of salary. Places reliance on the case reported as “Faisal Mehboob Khan v. Chief Secretary and 2 others” (2018 PLC (CS) 216) in support of his contention.

3. Conversely, learned Assistant Advocate General along with ALO of the respondent-department have supported the impugned orders with the averments that prolong absence of the petitioner from duty was willful and hence, the impugned orders are in accordance with law.

4. Arguments heard. Record perused.

5. Interplay of the factual matrix of the case and applicable law puts forth following questions that require opinion of this Court:

i. Whether every unauthorized absence from duty is necessarily a willful absence even if the same is caused by compelling circumstances beyond the control of an employee and the petitioner’s representation/appeal was rightly dismissed having been time barred ignoring the fact that the petitioner was behind the bar in a criminal case in which he was ultimately acquitted by a Court of competent jurisdiction?

ii. Whether the department had the authority to impose penalty of removal from service in terms of Rule 6 of the Rules?

1. At the outset, it is important to observe that in any organization, it is expected from an employee to maintain discipline; act with responsibility; perform his duty with sincerity; and serve the institution with honesty and devotion. Absence from duty exhibits lack of devotion on part of an employee towards the duty leading to indiscipline in the work culture of an organization and such act cannot be countenanced. However, at the same time, this Court cannot lose sight of the fact that a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before drawing the conclusion that an employee is guilty of misconduct (willful absence in the present case) in general and imposing major punishment of removal from service in particular.

2. Absence without any application or prior permission may amount to unauthorized absence, but it does not always mean that the same is willful. If the absence is the result of compelling circumstances under which it was not possible for an employee to report or perform duty, such absence cannot be held to be willful. Such compelling circumstances due to which an employee might have absented himself is a matter to be considered on case to case basis. In all such cases where absence is not willful, the employee cannot be held guilty of failure of devotion to the duty or behaviour unbecoming of a government servant. The Supreme Court of Pakistan in case reported as “Ijaz Akbar v. The Director General (Ext.) L&DD, Punjab, Lahore and others”(2024 PLC (C.S.) 129), observed that unauthorized absence from the duty entails two options before the departmental authorities. Firstly, that unauthorized absence may be condoned by treating it as ex-post facto leave if the explanation offered by the accused employee is found to be justified; and secondly, if the employee does not appear or the explanation offered is found not to be satisfactory, the disciplinary proceedings may be initiated against such employee that may result in imposition of penalty, which may range from a major penalty of dismissal or removal from service to a minor penalty of censure or withholding of increment for a specific period, mainly depending upon number of factors, which inter alia, include the nature of service, the position (duty) of the employee in that service, the period of absence and the cause for the absence. Thus, it becomes clear that where an absent employee comes back and seeks to join his duty, the departmental authorities are obligated to determine whether the unauthorized absence was willful or was the result of such compelling circumstances which were beyond the control of the employee. The impugned order(s) reveals that the element of “willfulness” was never looked into in the case of the petitioner as there were compelling circumstances of registration of the FIR against the petitioner and his consequent arrest and incarceration in jail till 19.04.2019 rendered it beyond his control to report to the authorities concerned.

3. This Court is fully cognizant of the nature of the service rendered by the petitioner, i.e., emergency services, which require strict adherence to discipline, however, the nature of services performed alone cannot be considered as sole determining factor, rather the cause of absence has to be juxtaposed with it, in order to determine whether an unauthorized absence is willful or otherwise. Only when the determination as to willfulness is reached at, the second question as to quantum of penalty/punishment is to be looked at whether the penalty imposed is proportionate to the facts of the case as the principle of proportionality has become well embedded in our jurisprudence.

4. The extreme punishment of removal from service has been awarded without any inquiry or determination by considering the cause of absence. This Court is of the opinion that every unauthorized absence is not willful absence if the same is caused by compelling circumstances beyond the control of an employee. At this juncture, it is imperative to observe that the petitioner has been non-suited on the ground that the criminal proceedings and departmental proceedings can go on side by side and the departmental proceedings are independent of the result of criminal proceedings while placing reliance on case reported as “Muhammad Sardar Khan v. Senior Member (Establishment), Board of Revenue, Punjab, Lahore” (1985 SCMR 1062). Respondent No. 1 has misconceived the dicta laid down in case of Muhammad Sardar Khan supra. There is no cavil to the proposition of law that the result of criminal proceedings cannot have bearing on the departmental proceedings but this proposition of law is relevant where departmental proceedings and criminal proceedings are based upon same occurrence and mere exoneration in criminal proceedings do not absolve the delinquent official from the departmental proceedings as both involve different standards of proof. However, the said proposition of law is not relevant in the instant case because the issue in the instant case is neither exoneration from the criminal proceedings and benefit thereof in the departmental proceedings nor the underlying occurrence in the criminal as well as departmental proceedings is same, rather the issue in the instant case is whether the unauthorized absence of the petitioner from duty was willful or otherwise, on account of arrest in a criminal case. The petitioner’s reference to his arrest in criminal case followed by criminal proceedings and his subsequent acquittal were the reasons justifying his absence and for not filing the appeal within time. The petitioner has not relied upon his acquittal in criminal case as a ground for his reinstatement in service and award of back benefits. The arrest of the petitioner and subsequent confinement in jail for more than 05 years fully justified as to why the appeal was not filed in time. Therefore, this Court is of the view that the petitioner’s appeal has been erroneously dismissed having been time barred.

5. Before rendering opinion on the second question, it will be advantageous to reproduce the contents of impugned removal order dated 06.02.2014 which reads as under:

“I, therefore, in exercise of powers conferred upon me under the provisions of the Leave Efficiency & Discipline Rules of the Service, impose the penalty of Removal from Service upon you from the date of absence on account of wilful absence from duty. Furthermore, you are directed to submit your complete uniform and other accessories issued to you in the Stores of District Multan and then approach the Accounts Office for clearance of dues, if any.”

(Emphasis supplied)

Bare reading of Rule 6(m) of the Rules reveals that the same does not provide for any penalty of dismissal form service. Rule 6 reads as under:

“6. Special offences and penalties. (1) If an official:

(a) ……..

(b) ……..

(c) ……..

(d) ……..

(e) ……..

Explanation….

(f) ……..

(g) ……..

(h) ……..

(i) ……..

(j) ……..

(k) ……..

(l) ……..

(m) is absent from duty without prior permission of the reporting officer, he shall be liable to one fifth deduction of salary with allowance for each day’s absence.”

There is no other punishment except one provided in Rule 6(m) of the Rules i.e., deduction of 1/5th salary etc. However, it is Rule 7 of the Rules which is applicable in the instant case as was the position in case of Faisal Mehboob Khan supra. Rule 7 reads as under:

1. Procedure under the Act XII of 2006…. An official shall be liable to be proceeded against under the provisions of the Act XII of 2006, if he is:

(a) guilty of misconduct or any undesirable act;

(b) guilty of corruption or is reasonably considered to be corrupt;

(c) inefficient; and

(d) engaged or is reasonably believed to be engaged in subversive activities, and his retention in service is prejudicial to national security, or is guilty of disclosure of official secrets to any unauthorized person.”

(Emphasis supplied)

It is well evident from the above quoted Rule 7 of the Rules that the disciplinary proceedings can be carried out against a regular employee of the department under the Punjab Employees Efficiency and Discipline Act, 2006 (“the PEEDA”), which provides for major and minor penalties for misconduct. Per Section 2(n)(vii) of the PEEDA, absence from duty is form of misconduct. Admittedly, the petitioner is a regular employee of the respondent department. In present case, it is not in dispute that the petitioner was removed from service on account of absence from duty under the Rules and not under PEEDA. This Court is of the opinion that the removal of the petitioner who is regular employee of the respondent department is not envisaged under Rule 6 of the Rules as held in case of Faisal Mehboob Khan supra. In the said case, it has been also held that the department can initiate disciplinary proceedings against its regular employee in accordance with law i.e, PEEDA and in order to remove the petitioner under the PEEDA, it was obligatory upon the respondent-department to prove his willful absence from duty and as examined hereinabove, element of “willfulness” was never looked into by the competent authority.

1. In view of the above discussion, the present petition has merits and hence, accepted. The impugned orders of removal from service passed by the respondent department, and affirmed by the Respondent No. 1/Appellate Authority are set aside. The petitioner stands reinstated in service. As regards the back benefits, this Court is

cognizant of the fact that on one end of the spectrum, it is the petitioner who has not worked for a long time and, at the other end, he has also suffered a lot as the legal and factual position of the case has not been appreciated by Respondent No. 1 while hearing his departmental appeal, and hence, the petitioner is entitled to certain portion of the back benefits, however, this Court intends to show restraint in determining the same and leave it to the discretion and wisdom of the department, which shall be decided expeditiously, preferably within 03 months, keeping in view the doctrine of proportionality.

1. Allowed in the above terms.

(Y.A.) Petition allowed

PLJ 2024 Lahore 236 [Bahawalpur Bench, Bahawalpur]

Present: Ahmad Nadeem Arshad, J.

Mst. HALEEMA, etc.--Petitioners

versus

EXECUTIVE DIRECTOR, C & C DEPARTMENT SECURITIES & EXCHANGE COMMISSION, etc.--Respondents

W.P. No. 8594 of 2016/BWP, heard on 28.2.2024.

Companies Ordinance, 1984 (XLVII of 1984)--

----Ss. 165, 265 & 290--Public limited company--Disputes between shareholders and directors--Filing of petition--Disposed of--Direction to SECP--Issuance of show-cause--Appointment of inspector for investigation--Challenge to--The expression used by High Court “Disposed of accordingly” had a significant meaning--It means that petition was disposed of in terms of submission made by counsel for petitioner as narrated in para-1 and direction given in para-2 of order--Respondent No--1 had rightly passed impugned order by appointing Chartered Accountant as Inspector in terms of Ordinance, 1984--The contention raised by counsel for petitioners had no force--He failed to point out any illegality, irregularity or jurisdictional defect on part of Respondent No. 1 while passing impugned order. [P. 242] C & D

2023 LHC 6699 ref.

Companies Ordinance, 1984 (XLVII of 1984)--

----S. 265(a)--Appointment of inspector--The Commission under Section 265 (a) of Ordinance could appoint Inspector subject to fulfillment of pre-conditions mentioned therein but such pre-conditions are not applicable to its suo-motu powers under Section 265 (b) of Ordinance, to appoint Inspector. [P. 240] A

Companies Ordinance, 1984 (XLVII of 1984)--

----S. 265--Inquiry--In proceedings under Section 265 of Ordinance, full-fledged inquiry in form of a trial is not required to be held nor any formal evidence is to be recorded before passing order under Section 265 of Ordinance. [P. 240] B

Mr. Aejaz Ahmad Ansari, Advocate for Petitioners.

M. Yaseen Kamran, Advocate for Respondents.

Ch. Muhammad Jameel, Assistant Attorney General for Pakistan.

Date of hearing: 28.2.2024.

Judgment

Through this Constitution Petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, petitioners have assailed the vires of order dated 30.08.2016 passed by Respondent No. 1 whereby while exercising the power under Section 265 of the Companies Ordinance, 1984, a Chartered Accountant was appointed as Inspector for carrying out investigation into the affairs of the Company and to give findings and prayed as under:

“It is therefore respectfully prayed that this Hon’ble Court may graciously be pleased to make an order:--

a. Declaring that the order dated 30.08.2016 (Annex-A) passed by Respondent No. 1 accepting the application of the Respondent No. 2 is without lawful authority and of no legal effect; and

b. Granting such other or further relief to the petitioners as this Hon’ble Court may deem fit.

1. The relevant facts necessary for the disposal of this petition are that Sardar Ghazanfar Ullah Khan predecessor of the parties along with others formed a public limited company with the name and style of “M/s. Isakhel Estate Farms Ltd.” Moza Basti Isakhel Estate, Tehsil & District Rahim Yar Khan registered under the Companies Act, 1913 and now functioning under the terms of Companies Ordinance, 1984 (hereinafter referred to as the Ordinance, 1984). Some disputes arose between the Shareholders and Directors, therefore, Respondent No. 2 filed a petition u/Ss. 152 and 290 of the Ordinance, 1984, before this Court. Said petition was disposed of by this Court vide order dated 10.04.2015 through transmitting a copy of the petition along with all its annexures to the Security and Exchange Commission of Pakistan (SECP) with the direction to treat it as an application and decide the same strictly in accordance with law. The SECP/Respondent No. 1 after receiving the order of this Court issued show-cause notices to the Chief Executive and Directors of the Company under Section 265 of the Ordinance, 1984. After getting reply of the show-cause notices and providing opportunity of hearing, vide order dated 30.08.2016, appointed a Chartered Accountant as Inspector for carrying out investigation into the affairs of the Company as per terms of reference. Petitioners impugned said order through instant Constitutional Petition.

2. I have heard learned counsel for the parties at length and perused the record with their able assistance.

3. Main grievance of the petitioners is that impugned order is violative of the direction given by this Court through order dated 10.04.2015 while deciding C.O. No. 01 of 1995 whereby the petition filed by Respondent No. 2 was transmitted to the Respondent No. 1 for decision of the same and no direction was given to pass any order in terms of Section 265 of the Ordinance, 1984. Learned counsel for the petitioners in this regard argued that at the most application of the petitioners should have been treated as an application filed by the private person under Section 263 of the Ordinance, 1984 and not under Section 265 of the Ordinance, 1984. He further clarified that jurisdiction under Section 265 of the Ordinance, 1984, can be exercised either on a resolution passed by the Company in General Meeting or on an order of the Company Court or in specified serious cases of fraud etc. under discretionary suo-motu jurisdiction and as none of the conditions were available, therefore, the impugned order is not sustainable. He adds that this Court did not issue any direction to proceed under Section 265 of the Ordinance, 1984. Further maintains that application under Section 263 of the Ordinance, 1984 was also not maintainable as it requires Members holding not less than 1/10 of the total voting powers.

4. For better understanding Section 265 of the Ordinance, 1984 is reproduced as under:

“265. Investigation of company’s affairs in other cases.--Without prejudice to its power under Section 263, the Commission--

(a) shall appoint one or more competent persons as inspectors to investigate the affairs of a company and to report thereon in such manner as the Commission may direct, if--

(i) the company, by a resolution in general meeting, or

(ii) the Court, by order, declares that the affairs of the company ought to be investigated by an inspector appointed by the Commission; and

(b) may appoint one or more competent persons as inspectors to investigate the affairs of a company and to report thereon in such manner as the Commission may direct if in the opinion of the Commission there are circumstances suggesting--

(i) that the business of the company is being or has been conducted with intent to defraud its creditors, members or any other person or for a fraudulent or unlawful purpose, or in a manner oppressive of any of its members or that the company was formed for any fraudulent or unlawful purpose; or

(ii) that persons concerned in the formation of the company or the management of its affairs have in connection therewith been guilty of fraud, misfeasance, breach of trust or other misconduct towards the company or towards any of its members or have been carrying on unauthorized business; or

(iii) that the affairs of the company have been so conducted or managed as to deprive the members thereof of a reasonable return; or

(iv) that the member of the company have not been given all the information with respect to its affairs which they might reasonably expect; or

(v) that any shares of the company have been allotted for inadequate consideration; or

(vi) that the affairs or the company are not being managed in accordance with sound business principles or prudent commercial practices; or

(vii) that the financial position of the company is such as to endanger its solvency:

Provided that, before making an order under clause (b), the Commission shall give the company an opportunity to show-cause against the action proposed to be taken.”

1. The Commission under Section 265 (a) of the Ordinance could appoint Inspector subject to fulfillment of pre-conditions mentioned therein but such pre-conditions are not applicable to its suo-motu powers under Section 265(b) of the Ordinance, to appoint Inspector.

2. The Commission has only to satisfy itself, prima-facie, on the basis of the material placed before it, that case for investigation through an Inspector is called for. The matter, in fact, vests in the discretion of the Commission, to be decided after following the summary procedure. In proceedings under Section 265 of the Ordinance, full-fledged inquiry in the form of a trial is not required to be held nor any formal evidence is to be recorded before passing the order under Section 265 of the Ordinance. The Authority has to only satisfy itself prima-facie, of course, on the basis of the material placed before it that a case for investigation through an Inspector is called for and it is for the Inspector to ascertain and determine the truth or otherwise of the allegation during the investigation to be conducted by him whereafter he has to submit report to the concerned Authority.

3. Respondent No. 1 while passing the impugned order issued show-cause notices to the Chief Executive and Directors of “M/s. Isakhel Estate Farms Ltd.” and after going through the facts of the case, evidences produced by the parties, arguments advanced by the representatives observed as under:

“In view of the foregoing observations, I am of the considered view that the affairs of the Company are as such which warrants deeper probe through appointment of a competent Inspector(s). Therefore, in exercise of the power conferred under Section 265 of the Ordinance, read with S.R.O 154(1)/2015 dated 19.02.2015, I hereby appoint Mr. Talib, FCA of M/s. PKF F.R.A.N.T.S Chartered Accountants as Inspector for carrying out investigation into the affairs of the Company as per annexed terms of reference (TORs). The Inspector is directed to analyze the TORs, give his findings after meeting all the requirements of the law, which should be supported with material evidence relied upon by him. He is further directed that each and every reported violation should not be vague and bear reference to relevant provisions of law.”

9. Perusal of the record reflects that Respondent No. 2 while filing petition under Section 152 & 290 of the Ordinance, 1984 (C.O. No. 1/1995) claimed that he holds shares of more than 20% of the total paid up capital of the Company and prayed as under:

“Wherefore it is respectfully prayed that:

a. That the register of members of the Respondent No. 1 be directed to be rectified so that the names of Respondents No. 2 to 11 are deleted;

b. That the fresh allotment and transfer of shares to the Respondent No. 2 to 11 be declared to be ineffective and inoperative in law;

c. That the fraudulent sale of the assets of the Company vide resolution dated 13.12.1993 and sale deeds dated 30.12.1993 and 03.01.1994 be held to be inoperative against the Company.

d. That appropriate orders be passed for preserving the assets of the Company and its proper by its bona fide shareholders.

Any other relief found fit and expedient in the circumstances of the case may also be passed.”

1. This petition was disposed of by this Court vide order dated 10.04.2015 in the following terms:

“Learned counsel for the petitioner submits that he would be satisfied if the matter is referred to SECP to investigate the alienations in terms of Section 265 of the Companies Ordinance, 2004 (inadvertently written as 2004 instead of 1984) into the allegations levelled by the petitioner and thereafter decide the case in accordance with law under intimation to the Deputy Registrar (Judicial) of this Court.

1. In view of the matter, a copy of this petition along with all its annexures is transmitted to SECP with the direction to treat it as an application filed by the petitioner and decide the same

strictly in accordance with law under intimation to Deputy Registrar (Judicial) of this Court. Disposed of accordingly.” (Underline is mine)

1. The expression used by this Court “Disposed of accordingly” has a significant meaning. It means that the petition was disposed of in terms of the submission made by the learned counsel for the petitioner as narrated in para-1 and direction given in para-2 of the order. This Court in a case titled “Muhammad Saqlain V. The State, Etc.” (2023 LHC 6699), observed as under:

“So, in other words, the order “learned counsel for the petitioner wishes to withdraw this petition after arguments. Disposed of accordingly” means that subject petition terminated, settled, ended, concluded or closed as desired by the learned counsel for the petitioner after arguments and consideration of the merits of the case.”

1. It can safely be concluded that this Court while transmitting the petition along with its annexures directed the SECP to decide the same in accordance with law i.e. in terms of Section 265 of the Ordinance, 1984.

2. In the light of observations made hereinabove, Respondent No. 1 has rightly passed the impugned order by appointing the Chartered Accountant as Inspector in terms of Section 265 of the Ordinance, 1984. The contention raised by the learned counsel for the petitioners has no force. He failed to point out any illegality, irregularity or jurisdictional defect on the part of Respondent No. 1 while passing the impugned order.

3. Epitome of above discussion is that this writ petition having no merits is hereby dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 242 [Rawalpindi Bench, Rawalpindi]

Present: Jawad Hassan, J.

MUHAMMAD BANARAS--Petitioner

versus

GOVERNMENT OF THE PUNJAB etc.--Respondents

W.P. No. 862 of 2020, decided on 26.2.2024.

Punjab Government Rules of Business, 2011—

----R. 20--Constitution of Pakistan, 1973, Art. 199--Issuance of notification regarding felling and cutting of trees--lack of jurisdiction--Guzara forest--No interference in private land of petitioner--Existing rules and earlier notification were not challenged by petitioner--Petitioner had not personally aggrieved by impugned notification--Direction to--No interference had been made in use of private land, which was in possession of Petitioner-- Petitioner had not a strong case in his favour because he had not specifically disclosed how he was personally aggrieved of impugned notification--The impugned notification relates to protection of Guzara Forest and cutting of trees may adversely affect climate change same has been issued as per laws made by legislature from time to time for controlling climate change and melting of glacier--A copy of writ petition alongwith all annexures was remitted to Secretary, Forestry, Wildlife and Fisheries Department, Punjab with a direction to first determine validity of impugned notification and then, if he feels necessary, may initiate process of framing of requisite rules or extension of existing rules to various Tehsils of District Rawalpindi in consultation with Law & Parliamentary Affairs Department as required by Rule 20 of 2011 Rules, and thereafter, pass a speaking order in matter after granting fair opportunity of hearing to all concerned, including Petitioner--Petition disposed of. [Pp. 244, 245, 246 & 249 ] A, B, C & F

PLD 2018 Lah. 364, PLD 2019 Lah. 664, 2022 LHC 6911 and PLD 2023 SC 340, 2021 SCMR 834 ref.

Hill Districts of Punjab Territories Rules, 1855--

----Rr. 4 & 7--Power of Deputy Commissioner-- This power can only be exercised by Government and Deputy Commissioner does not come within definition of Government. [P. 248] D

Punjab Government Rules of Business, 2011--

----R. 10--Official head--Secretary shall be official head of Department and be responsible for its efficient administration and discipline, for conduct of business assigned to Department and for observance of laws and rules. [P. 249] E

2023 LHC 5208.

Raja Habib-ur-Rehman, Advocate on behalf Petitioner.

Mr. Abid Aziz Rajori, AAG alongwith Amir Imtiaz, District Forest Officer, Gazara, Rawalpindi.

Barrister Ch. Imran Hassan Ali, ASC/Amicus Curiae.

Date of hearing: 26.2.2024.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner has challenged the vires of impugned notification dated 07.03.2020 issued by Respondent No. 2.

1. Raja Habib-ur-Rehman, Advocate has reiterated the submissions already made in this petition. However, his main stress is that the Deputy Commissioner, Rawalpindi has no power to issue the impugned notification under the Guzara Land Rules. He strenuously submitted that under Rule 5 of the Guzara Land Rules, any resident of the area, which falls within the limits of Guzara Forest, may uproot or cut down the trees without getting any permission or license from the concerned authority, therefore, the Petitioner cannot be stopped from cutting down trees on his privately owned land under the garb of impugned notification.

2. Learned Law Officer has objected to the maintainability of this petition by submitting that the impugned notification has rightly been issued by the concerned authority strictly as per the relevant laws and the jurisprudence developed by the superior Courts of the country from time to time.

3. Pursuant to the direction issued by this Court on 27.03.2020, the answering Respondents No. 2 and 3 have submitted their report and para-wise comments by defending the impugned notification under relevant provisions of the applicable law.

4. On the last date of hearing i.e. 06.10.2022, this Court appointed Ch. Imran Hassan Ali, ASC as Amicus Curiae, who submits that he has made a deep research work on the point involved by going through the relevant law as well as the jurisprudence developed by the superior Courts of the Country. He explained that the Petitioner has no real grievance to bring this petition; that the Petitioner does not specifically disclose how he is personally aggrieved of the impugned notification. He argued that prima facie, from the comments filed by answering Respondents, no interference has been made in the use of private land, which is in possession of the Petitioner. He contended that the Petitioner has not challenged the existing rules, which are already applicable to his Tehsil. He also pointed out that impugned notification simply extends the earlier notifications issued by the concerned authority with regard to other Tehsils of Rawalpindi but surprisingly, the Petitioner has not challenged the said (earlier) notifications. He pleaded that since the trees play vital role in our climate, therefore, felling and cutting of trees will badly affect the climate regulation. He next argued that though the Petitioner has a weak case because the impugned notification puts general restrictions about falling and cutting of trees to all types of lands but the contention of his learned counsel, on which he is pressing hard, that the Deputy Commissioner, Rawalpindi lacks jurisdiction to issue the impugned notification, has some force because it is the Government, which can only impose such kind of restrictions, therefore, at the most, the matter may be referred to the concerned authority, i.e. the Secretary, Forestry, Wildlife and Fisheries Department, Government of the Punjab, for its expeditious disposal in accordance with law as well as the verdicts given by the superior Courts of the country on the issue in hand from time to time. He has referred to some decisions cited as D.G. Khan Cement Company Ltd. versus Government of Punjab through Chief Secretary, Lahore and others (2021 SCMR 834), Sheikh Asim Farooq versus Federation of Pakistan and others (PLD 2019 Lahore 664), Asif Saleem versus Chairman BOG University of Lahore and others (PLD 2019 Lahore 407) and Maple Leaf Cement Factory Ltd. versus Environmental Protection Agency and others (PLD 2018 Lahore 255).

5. Arguments heard and record perused.

6. Before dealing with the issue in hand, it would be fair to note down the importance of the trees. No life could exist on earth without the trees because these are the natural source of air conditioning/air filtering. By absorbing odors and pollutant gases, like nitrogen oxides, ammonia, sulfur dioxide and ozone, and filtering particles out of the air, the trees clean the air. In addition, there would be no rain without the trees as they absorb water from the soil and release it into the air through an evaporative process, providing the moisture for rain to form. In short, the trees play important role in regulating the environment and climate change, therefore, instead of uprooting or cutting trees, there is dire need of plantation of trees in order to protect the environment/climate regulation. However, trees, which may adversely affect the human health or the climate change as per the current climate change research, can be uprooted or cut down, subject to the prevailing laws/policies.

7. Now coming to the merits of the case, it is observed that the Petitioner has not a strong case in his favour because he has not specifically disclosed how he is personally aggrieved of the impugned notification. The prayer clause of the comments filed by the (answering) Respondents clearly depicts that no hindrance has been created in the use of private land, which is owned by the Petitioner. Rules 5 and 6(2) of Notification No. 618 dated 15.01.1912 (available at page 7 of the report/comments) apply to the agricultural land in Tehsil Kahuta where the Petitioner claims to own land, already permit the residents in an estate to uproot and/or remove trees of class-B for agricultural or domestic purposes. The impugned notification does not change this situation and merely, extends the said rules to other Tehsils of Rawalpindi. Similarly, Rules 3 and 5 of Notification No. 343 dated 12.06.1909 (available at page 19 of the report/comments) as amended from time to time, only apply to waste and uncultivated areas of Tehsil Kahuta, entitling the village residents to wood for catering their agricultural as well as domestic needs whereas the impugned notification does not change this situation as well and merely, extends the said rules to other Tehsils of Rawalpindi. Moreover, a joint reading of Rules 5 and Rule 6(2) of aforesaid Notification (No. 343 dated 12.06.1909) also makes it clear that the directions contained therein relate to wood of spontaneous growth and does not apply to cultivated trees on one’s own land. Most importantly, the Rules for the Conservancy of Forests and Jungles in the Hill Districts of the Punjab Territories, 1855 (the “1855 Rules”) already apply to all “hill districts”. Similarly, as noted above, Notification No. 618 dated 15.01.1912, Notification No. 619 dated 15.11.1912 and Notification No. 343 dated 12.06.1909 already apply to Tehsil Kahuta where the Petitioner claims to own land and the impugned notification simply extends these notifications to other Tehsils of Rawalpindi but astonishingly, the Petitioner has not challenged these (earlier) notifications.

9. Suffice to mention here that the impugned notification relates to the protection of Guzara Forest and since cutting of trees may adversely affect the climate change as discussed above, the same has been issued as per the laws made by the legislature from time to time for controlling the climate change and melting of glacier on the touchstone of the principles already settled by this Court in the cases of Asghar Leghari versus Federation of Pakistan and others (PLD 2018 Lahore 364), Asim Farooq Case (supra) (PLD 2019 Lahore 664) and the recent judgment passed in the case of Pervaiz Abbasi versus Government of Punjab and others (2022 LHC 6911) (LHC Citation) in which the issue of hill razing as well as cutting trees has been highlighted and the aspect of promulgating proper legislation in this regard has been discussed. The issue of climate change and conservation of forests has also been dealt with by the Supreme Court of Pakistan in the case of Shah Zaman Khan and others versus Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others (PLD 2023 SC 340) by holding (in paragraph-22) as under:

“22. Climate change is not just a future threat but a present reality. The planet is in crisis and disasters are accelerating disasters. Climatic events of unprecedented severity are being witnessed. The unilateral and unsustainable pillage of the earth's resources has left humanity, and all other species, vulnerable. Excessive burning of fossil fuels has heated up the earth's temperature and when forests, which sequester carbon emissions are stripped away, its effect is compounded. Carbon fuel extraction needs to correlate with the available trees, plants and phytoplankton which store emissions. The causes of climate change and the catastrophic events that it unleashes are (by now) empirically established, yet the problem is not being addressed with the requisite urgency and seriousness. Simple mitigation measures are also not implemented. Carbon emissions, and not trees, have to be cut down. The learned Judges failed to consider that the Forest Ordinance was a beneficial piece of legislation which was enacted to conserve scarce remaining forests.”

In D.G. Khan Cement Case (supra) (2021 SCMR 834), the Supreme Court of Pakistan has also highlighted the significance of environment and ecosystem of the Country by holding (in paragraph-19) of said judgment as under:

“19. Another important dimension of climate change is intergenerational justice and the need for climate democracy. The tragedy is that tomorrow's generations aren't here to challenge this pillaging of their inheritance. The great silent majority of future generations is rendered powerless and needs a voice. This Court should be mindful that its decisions also adjudicate upon the rights of the future generations of this country. It is important to question ourselves; how will the future generations look back on us and what legacy we leave for them?41 This Court and the Courts around the globe have a role to play in reducing the effects of climate change for our generation and for the generations to come. Through our pen and jurisprudential fiat, we need to decolonize our future generations from the wrath of climate change, by upholding climate justice at all times. Democracy, anywhere in the world is pillared on the rule of law, which substantially means rights based rule of law rather than rule based; which guarantees fundamental values of morality, justice, and human rights, with a proper balance between these and other needs of the society 42 Post climate change, democracies have to be redesigned and restructured to become more climate resilient and the fundamental principle of rule of law has to recognize the urgent need to combat climate change. Robust democracies need to be climate democracies in order to save the world and our further generations from being colonized at the hands of climate change. The premabular constitutional value of democracy under our Constitution is in effect climate democracy, if we wish to actualize our Constitution and the fundamental rights guaranteed under the Constitution for ourselves and our future generations. Janine Benyus43 suggests we learn from nature's 3.8 billion years of evolution. How is it that other species have learned to survive and thrive for 10,000 generations or more? Well, it's by taking care of the place that would take care of their offspring, by living within the ecosystem in which they are embedded, by knowing not to foul the nest. We must restore and repair and care for the planetary home that will take care of our offspring. For our children, and our children's children, and all those yet to come, we must love our rivers and mountains and reconnect with the long and life-giving cycles of nature. To us there is no conflict between environmental protection and development because our answer would be sustainable development. Sustainable development means development that meets the needs of the present generation without compromising the ability of future generations to meet their needs and it is in step with our constitutional values of social and economic justice.”

1. Now, the only point to be determined by this Court is whether the Deputy Commissioner is empowered, under the law, to issue the impugned notification. This power can only be exercised by the Government and the Deputy Commissioner does not come within definition of the Government. Rules 4 and 7 of the 1855 Rules empower the Civil Authorities to impose certain prohibitions or restrictions on felling of trees on any land in a hill district. It is also important to mention that the 1855 Rules are saved by Section 3 read with Schedule I of the Punjab Laws Act, 1872 (the “1872 Act”). The term “Civil Authorities” could possibly mean the Deputy Commissioner of a district. However, Rule 76 of the Forest Act, 1927 [amended 2016] (the “1927 Act”), empowers the Government to make rules. Under Section 2(j) of the 1927 Act, Government means the Government of the Punjab. As per Second Schedule to the Punjab Government Rules of Business, 2011 (the “2011 Rules”), the Forestry, Wildlife and Fisheries Department is entrusted with the powers to administer the 1927 Act and the rules made thereunder whereas Rule 20 of the 2011 Rules provides that the Law and Parliamentary Affairs Department shall be consulted by other departments on matters concerning delegated legislation, such as, rules and regulations etc. Furthermore, under Rule 3(3) of the 2011 Rules, the business of the Government is distributed amongst several Departments in the manner indicated in the Second Schedule and Secretary, Forestry, Wildlife and Fisheries Department, Punjab can take cognizance of the matter in terms of Rule 10 of the 2011 Rules, which clearly states that the Secretary shall be the official head of the Department and be responsible for its efficient administration and discipline, for the conduct of business assigned to the Department and for the observance of laws and rules, as has recently been developed by this Court in the case of PIA Officers Cooperative Housing Society Limited versus Province of Punjab etc. (2023 LHC 5208) (LHC Citation). Therefore, keeping in view the importance of forests in connection with climate change, a copy of this writ petition along with all the annexures is remitted to Secretary, Forestry, Wildlife and Fisheries Department, Punjab with a direction to first determine the validity of the impugned notification and then, if he/she feels necessary, may initiate the process of framing of requisite rules or extension of the existing rules to various Tehsils of District Rawalpindi in consultation with the Law and Parliamentary Affairs Department as required by Rule 20 of the 2011 Rules, and thereafter, pass a speaking order in the matter after granting fair opportunity of hearing to all concerned, including the Petitioner, by also keeping in mind the rationale rendered in the judgments mentioned above. The Secretary, while consulting the matter with the concerned department(s), shall also consider the guidelines/ parameters provided in the following:

1-A. Statutes, Rules and (relevant) Notifications:

i. The Punjab Forest Act, 1927

ii. The Punjab Plantation and Maintenance of Trees Act, 1974

iii. The Rules for the Conservancy of Forests and Jungles in the Hill Districts of the Punjab Territories, 1855

iv. Notification No. 618 dated 15.01.1912

v. Notification No. 619 dated 15.11.1912

vi. Notification No. 343 dated 12.06.1909

vii. Punjab Village Forest Rules, 2013

1-B. Policies:

i. The Punjab Forest Policy, 2019

ii. The National Climate Change Policy, 2021

1. With the above observations and directions, this writ petition is disposed of. Before parting with this order the Court appreciates the valuable legal assistance rendered by Barrister Ch. Imran Hassan Ali, ASC/Amicus Curiae.

(Y.A.) Petition disposed of

PLJ 2024 Lahore 250 (DB) [Multan Bench, Multan]

Present: Asim Hafeez and Anwaar Hussain, JJ.

Dr. AQSA REHMAN--Appellant

versus

GOVERNMENT OF PUNJAB, etc.--Respondents

I.C.A. No. 3 of 2024, decided on 26.02.2024.

Constitution of Pakistan, 1973--

----Art. 199--Law Reforms Ordinance, (XII of 1972), S. 3--Offer for retainer ship award--Conducting of walk-in-interviews--Campricious exercising of discretion--Writ petition--Dismissed--Central selection commission--Duties and obligations--Lack of criteria--Direction to--No applications were invited for awarding retainership contract but walk-in-interviews were conducted--Central Selection Commission should endeavour to espouse fairness, impartiality and transparency while discharging duties and obligations entrusted--Appeal disposed of. [P. 252] A & B

1995 SCMR 650 & 1997 SCMR 1043 ref.

M/s. Muhammad Ali Siddiqui and Fatima Safeer, Advocates for Appellant.

Mr. Arshad Pervaiz Qureshi, A.A.G. for State.

Mr. Asfhan Akram Kang, Law Officer on behalf of PESSI–Respondents No. 1 to 7.

Date of hearing: 26.02.2024.

Order

Instant intra-Court appeal is directed against decision dated 11.12.2023, whereby learned Judge-in-Chambers dismissed appellant’s constitutional petition inter alia on the premise that factual controversy could not be decided and further observed that decision of offering retainership assignment to Respondent No. 8 was a transitory arrangement.

1. Learned counsel for the appellant fundamentally objected against the capricious exercise of discretion by the Central Selection Committee, which proceeded to allow Respondent No. 8 to work under retainership arrangement, conspicuously overlooking prior recommendation of the appellant, by the Interviewing Committee, for the same task. It is argued that procedure adopted for offering retainership arrangement was obscure, exclusive and promotes nepotism.

2. On last date of hearing, learned counsel for Respondent No. 8 appeared, who submitted that retainership assignment was for one year, which had already expired. Adds that Respondent No. 8 could not otherwise perform fully due to pending litigation.

3. The instant case highlights important aspects pertaining to how the retainership agreement by the Central Selection Committee, PESSI is awarded across the Province in various social security hospitals. This is the context of this appeal. Upon hearing, we consider that nothing could be declared illegal or reversed, when illegality outlived itself. No academic exercise intended.

4. However, it has been noted that there are no standards or criteria carved out by the Central Selection Committee in this regard on the strength of which the recommendation by the Interviewing Committee can be set aside. Therefore, we tend to make certain observations to enable the management/Governing Body to take remedial measures to ensure fairness, transparency and regimenting of discretion. Lack of standards/criteria to offer the retainership agreement have perpetuated the unstructured exercise of discretion which cannot be countenanced under the jurisprudence developed by the Supreme Court of Pakistan regarding exercise of discretion by the public functionaries. Case reported as “Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another” (1995 SCMR 650) is referred in this regard. Similarly, in case reported as “Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others” (1997 SCMR 1043), it has been held by the Hon’ble Supreme Court of Pakistan that in matters which involve public participation pertaining to pursuit of profession through permanent jobs or otherwise, the matter should be advertised properly inasmuch as Article 27 read with Articles 18, 25 and 2A of the Constitution of Islamic Republic of Pakistan, 1973, mandates that every citizen shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business.

5. It has been conceded before us that no applications were invited for awarding the retainership contract but walk-in-interviews were conducted. Meaning thereby that besides lack of standards/ criteria pertaining to exercise of discretion by the Central Selection Committee, process is also bereft of transparency and fair-play as the retainership contract can be dished out to the aspirants of liking on the basis of mere walk-in-interview without any formal advertisement in a newspaper inviting applications thereof, so that larger pool of the candidates can come to know about the creation/existence of vacancy of retainership contract in a social security hospital functioning under the auspices of PESSI as the same carries an opportunity for any citizen interested to apply for the same and if qualified, gives an opportunity to earn bread and butter, which is fundamental right of every citizen. The lack of standards/criteria depicting transparency allowed lateral entry to Respondent No. 8. Delay caused in considering recommendations of the appellant speaks of conspicuous omission. We refrain from attributing insinuations. When asked that what measures have been adopted to check unstructured discretion by the Central Selection Committee, learned counsel, representing PESSI, explained that assigning retainership arrangement to Respondent No. 8 was a stop-gap arrangement, who conceded that no applications were invited but walk-in-interviews conducted. He explained that pursuant to the recent policy decision by the Governing Body, recruitment of two posts of Physiotherapist, on contract basis for a period of three years, in social security hospital, is sought through the Punjab Public Service Commission. We hope that this policy decision is not simply a point-scoring strategy to deal with instant litigation, but such practice must be followed consistently, throughout the Province, in social security hospitals for the relevant posts. There is no cavil that in extraordinary situations transitory and adhoc appointments are required but it should be a rarity not a routine practice. We are sanguine that the Central Selection Commission shall endeavour

to espouse fairness, impartiality and transparency while discharging the duties and obligations entrusted. We direct Office of this Court to send the copy of this order to the Governing Body of the PESSI as well as Secretary, Labour and Human Resource Department, Government of Punjab, who is head of the administrative department concerned.

1. Disposed of.

(Y.A.) Petition disposed of

PLJ 2024 Lahore 253 (DB)

Present: Shahid Bilal Hassan and Masud Abid Naqvi, JJ.

ABDUL RAHMAN and others--Appellants

versus

MUHAMMAD FAROOQ and others--Respondents

R.F.A. No. 14953 of 2022, heard on 20.02.2024.

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

----S. 42--Civil Procedure Code, (V of 1908), O.XIV R.1, O.XX Rr. 1, 2 & 5, O.XX R.5--Pleadings of parties were in juxta-position--Non-framing of issues as per real controversy--Suit for declaration--Dismissed--Suit property was leased out--Default in payment of rent--Refusal to returned possession of suit property--Direction to--When pleadings of parties had been gone through and had been put in juxtaposition with issues framed it had been found that proper issues, keeping in view real controversy between parties had not been framed and only stereotype issues had been formulated--Issues were not according to pleadings of parties-- The issues framed by trial Court did not covered real controversy--Appeal allowed. [Pp. 257 & 260] A, G & H

PLD 2003 SC 184 and PLJ 2010 SC 530 ref.

Issue--

----Term “issue” in a civil case means a disputed question relating to rival contentions in a suit--For a correct and accurate decision in shortest possible time in a case, it is necessary to frame correct and accurate issues-- Issues mean a single material point of fact or law in litigation that is affirmed by one party and denied by other party to suit and that subject of final determination of proceedings.

[P. 257] B, C & D

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

----O.XIV Rr. 1 to 6, O.XV R. 1, O.XVIII R. 2, O.XX R. 5, O.XLI R. 31--Duty of Court--Framing of issues--It is duty of Court to frame issues from material propositions--To frame issues, Court is to find out questions of fact, questions of law and mixed questions of fact and law from pleading of parties and other materials, which are produced with pleading and parties are to produce their evidence to prove or disprove framed issues. [P. 258] E

Discretionary power--

----Regarding amendment of framed issues, Court possesses discretionary power--Court can exercise this power when no injustice results from amendment of framed issue on that point, which is not present in pleading(s)--However, it cannot be exercised when it alters nature of suit, permits making of new case or alters stand of parties through rising of inconsistent pleas. [P. 259] F

Syed Muhammad Usman Tirmizi, Advocate for Appellants.

Mr. Asif Siddique Chaudhry, Advocate for Respondents.

Date of hearing: 20.02.2024.

Judgment

Shahid Bilal Hassan, J.--Succinctly, the appellants instituted a suit for declaration with subsequent relief along with recovery of mesne profit against the respondents with respect of the suit property measuring 178-Kanals 15-Marlas, situated at Mauza Maryuin Kalan, Tehsil and District Gujranwala, as per Record of Rights for the year 2014-15 contending therein that due to the permanent residence of the plaintiffs in District Lahore, they leased out the suit property to Defendant No. 13 who was son-in-law of their sister namely Zubaida Bibi, brother-in-law of plaintiff No. 1, but Defendant No. 13 always remained reluctant in payment of rent and most of the time he failed to pay the amount of Thaika” but the appellants tolerated this conduct of Defendant No. 13 due to the above said relationship. Ultimately on demand of plaintiffs, Defendant No. 13 refused to return the possession of suit property and this controversy led to registration of FIR No. 1/2016. Due to the above said litigation and the permanently living of appellants in Lahore, the appellants, on the offer of Defendant No. 1 became ready to enter into a fake and fictitious agreement with Defendant No. 1 who assured them that the said agreement would be merely to show the Defendant No. 13 and he being influential person would be in the better position than the appellants to litigate and deal with the Defendant No. 13 in the Courts and out of the Courts. Defendant No. 1 further persuaded the appellants that as soon as they would get the possession of suit property, they would settle all the matters with respect to their agreement and meanwhile preferred to write the agreement on the stamp paper valuing Rs. 100/-. Therefore, vide fictitious agreement dated 15.04.2016 with respect to suit property measuring 178-kanals 15-marlas in total consideration of Rs. 4 crores, 46-lacs, 87 thousand i.e. Rs. 2,000,000/- per acre on the stamp paper valuing Rs. 100/- penned down. At that time, it was also disclosed to the buyers that the appellants were in litigation with Zubaida Bibi with respect to her share in the suit property. The appellants claimed in the plaint that the price of land was much higher at that time but due to the dispute with Defendant No. 13, the appellants opted to show the low-price of their shares in the suit property. In the said agreement, fake payment of Rs. 2,500,000/- was also and to the extent of remaining payment, the target date was fixed as 15.01.2017. As a matter of fact, the payment was merely mentioned in the agreement to pressurize the Defendant No. 13 so that the possession of suit property could be restored to the appellants and it was orally settled down that the duration of agreement to sell and schedule for payment of consideration amount shall be settled down after taking the possession from Defendant No. 13. However, even after the attempt of sale agreement, Defendant No. 13 could not be refrained from his activities and continued to interfere into the suit property in one way or the other. Meanwhile, the appellants also moved an application for the correction of entries in “Khasra Girdawry” with respect to suit property and Defendant No. 13 also filed a suit for specific performance against the appellants and their sister. As a result of mutual settlement between the appellants and Defendant No. 1, the Defendant No. 1 pursued the suit for specific performance and appellants used to ask him about the status of their cases, the reply of the Defendant No. 1 always satisfied the appellants. However, on the demand of Appellants No. 1 and 2, ultimately in March, 2017, the Defendant No. 1 paid an amount of Rs. 1.8 million through cheque to the Appellants No. 1 and 2 and likewise in April, 2017, further consideration amount Rs. 1.3 million was paid, so in this way the outstanding amount towards the Defendant No. 1 remained Rs. 41,587,500/-. Ultimately, the Defendant No. 1 showed his failure to compel the Defendant No. 13 and also showed his inability to spend upon the litigation and also to further pay the remaining consideration amount, therefore, he suggested the appellants to enter into the fresh agreement with the Defendant No. 2 while reiterating his promise to pursue the above said litigation to get restored the possession and forthwith payment of remaining consideration amount. Like past, the appellants again trusted the words of Defendant No. 1 and on 06.11.2017, Appellants No. 1 & 2 entered into a new agreement with respect to the suit property with Defendant No. 2 in consideration of Rs. 44,687,500/-. Defendant No. 2 also caused to get mentioned the earnest amount as Rs. 17,500,0000-/ while explaining that it was necessary to intimidate the Defendant No. 13. In November 2017, further amount of Rs. 4,500,000/- in the shape of cheques was paid to the Appellants No. 1 & 2 with the commitment that all the litigations/cases would be concluded and the possession would also be restored to the appellants. Therefore, in this way, only the amount of Rs. 7.6 million was paid by the Defendants No. l & 2 to Appellants No. 1 & 2 and still huge amount was outstanding towards the Defendants No. 1 & 2. Meanwhile redemption amount of Rs. 425,000/- was also paid by the Defendants No. l & 2. In April 2018, Defendant No. 2 informed the Appellants No. 1 & 2 about the decision of their cases of ejectment and rent in their favour and assured them that soon they would be able to get the possession of suit property. As the Appellants No. 1 & 2 were weak persons, they opted to remain behind the scene to get the possession of the suit property. At that time there was great atmosphere of mutual trust between the parties to agreement after winning the litigation from the Defendant No. 13 and again appellants on the opinion of Defendant No. 2, signed the sale deed and also affixed their thumb impressions to further pressurize the Defendant No. 13. In April the amount of Rs. 2-million was paid to Defendant No. 2 and in this way, the amount of Rs. 346,500/ remained outstanding towards Defendant No. 2. After that, the Appellants No. l & 2 were informed by Defendants No. 1 & 2 that litigation before Anti-corruption has also been concluded in favour of Appellants No. 1 & 2 and as soon as they would get the possession of the suit property the remaining payment shall be made. Then appellants got the knowledge about the alienation of suit property in favour of Defendant No. 13, they forthwith contacted the Defendant No. 2 who became furious and thereafter Appellants No. 1 & 2 also came to know that in violation of impugned agreement, the suit property had been transferred in the name of Defendants No. 2 to 12 through misrepresentation and without knowledge and paying the remaining consideration amount. Since then, Appellants No. 1 & 2 have been asking for remaining consideration amount and for cancellation of impugned sale deed in favour of Defendants No. 2 to 12 along with mesne profits. They also alleged that due to the dishonesty on the part of Defendant No. 2, appellant No. 2 also passed away due to the cardiac arrest. Therefore, the appellants claimed Rs. 30,000,000/- too on account of general damages. The appellants also referred video recording as a proof of residual amount.

1. Written statement was submitted on behalf of Defendants No. 1 to 12 jointly. They raised certain preliminary and factual objections and termed the impugned transactions correct after fulfilling all the necessary ingredients of sale and ultimately prayed for dismissal of the suit.

2. The divergence in pleadings of the parties the learned trial Court framed following issues:-

3. Whether the plaintiffs are entitled to the decree for declaration along with permanent injunction as prayed for? OPP

4. Whether plaintiffs have come to the Court with clean hands and they have locus standi to file the instant suit against the defendants? OPP

5. Whether the suit of the plaintiff is false, frivolous and vexatious and the same is liable to be dismissed? OPD

6. Relief.

Both the parties adduced their oral as well as documentary evidence. On conclusion of trial, the learned trial Court vide impugned judgment and decree dated 11.01.2022 dismissed suit of the appellants; hence, the instant appeal.

1. Heard.

2. In this case, when the pleadings of the parties have been gone through and have been put in juxtaposition with the issues framed it has been found that the proper issues, keeping in view the real controversy between the parties have not been framed and only stereotype issues have been formulated. In this regard, it is observed that the term “issue” in a civil case means a disputed question relating to rival contentions in a suit. It is the crucial point of disagreement, argument or decision. It is the point on which a case itself is decided in favour of one side or the other, by the Court. Framing of issues is probably the most important part of the trail of a civil suit. For a correct and accurate decision in the shortest possible time in a case, it is necessary to frame the correct and accurate issues. Inaccurate and incorrect issues may kill the valuable time of the Court. According to the dictionary meanings, “issue” means a point in question; an important subject of debate, disagreement, discussion, argument or litigation. Issues mean a single material point of fact or law in litigation that is affirmed by one party and denied by the other party to the suit and that subject of the final determination of the proceedings.

As per the Order XIV Rule 1(4) of the Code of Civil Procedure, 1908, issues are of two kinds: (1) Issues of fact, (2) Issues of Law. Issues, however, may be mixed issues of fact and law. Rule 2(1) of Order XIV provides that where issues: both of law and fact arise in the same suit, notwithstanding that a case may be disposed of on a preliminary issue, the Court should pronounce judgment on all issues, but if the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first, if that issue relates to: The jurisdiction of the Court; or A bar to the suit created by any law for the time being in force. For that purpose, the Court may, if it thinks fit, postpone the settlement of the other issues until the issues of law have been decided. The main object of framing of issues is to ascertain the real dispute between the parties by narrowing down the area of conflict and determine where the parties differ. An obligation is cast on the Court to read the plaint and the written statement and then determine with the assistance of the learned counsel for the parties, material propositions of fact or of law on which the parties are at variance. The issue shall be formed on which the decision of the case shall depend. The object of an “issue” is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment then proceeding issue-wise would be able to tell precisely how the dispute was decided.

It is duty of Court to frame issues from material propositions. To frame issues, Court is to find out questions of fact, questions of law and mixed questions of fact and law from pleading of parties and other materials, which are produced with pleading and parties are to produce their evidence to prove or disprove framed issues. Following are the relevant provisions in this regard:-

i. Order XIV Rule 1 to 6 of CPC 1908

ii. Order XVIII Rule 2 of CPC 1908

iii. Order XX Rule 5 of CPC 1908

iv. Order XLI Rule 31 of CPC 1908

v. Order XV Rule 1 of CPC 1908

Matters to be considered before framing of issues are:-

i. Reading of the plaint and written statement, the Court shall read the plaint and written statement before framing an issue to see what the parties allege in it.

ii. Ascertainment whether allegations in Pleadings are admitted or denied, Order X Rule 1 permits the Court to examine the parties for the purpose of clarifying the pleadings, and the Court can record admissions and denials of parties in respect of an allegation of fact as are made in the plaint and written statement.

iii. Admission by any Party. If any party admitted any fact or document, than no issues are to be framed with regard to those matters and the Court will pronounce judgment respecting matters which are admitted.

iv. Examination of material proposition. The Court may ascertain, upon what material proposition of law or fact the parties are at variance.

v. Examination of witnesses. The Court may examine the witnesses for purpose of framing of issues.

vi. Consider the evidence. The Court may also in the framing of issues take into consideration the evidence led in the suit. Where a material point is not raised in the pleadings, comes to the notice of the Court during course of evidence the Court can frame an issue regarding it and try it.

vii. Examination of any witnesses or documents under Order XIV Rule 4. Under this rule any person may be examined and any document summoned, for purposes of correctly framing issues by Court, not produced before the Court.

The Court may frame the issues from all or any of the following materials.

i. Allegations made on oath. Issues can be framed on the allegations made on oath by the parties or by any persons present on their behalf or made by the pleader of such parties.

ii. Allegations made in Pleadings. Issue can be framed on the basis of allegations made in the pleadings.

iii. Allegations made in interrogatories. Where the plaint or written statement does not sufficiently explain the nature of the party’s case, interrogatories may be administered to the party, and allegations made in answer to interrogatories, delivered in the suit, may be the basis of framing of issues.

iv. Contents of documents. The Court may frame the issue on the contents of documents produced by either party.

v. Oral examination of Parties. Issues can be framed on the oral examination of the parties.

vi. Oral objection. Issues may be framed on the basis of oral objection.

Furthermore, at any time before passing of decree, Court can amend framed issues on those terms, which it thinks fit. However, such amendment of framed issues should be necessary for determination of matters in controversy between parties. Moreover, at any time before passing of decree, Court can strike out framed issues especially when it appears to Court that such issues have been wrongly framed or introduced. Regarding amendment of framed issues, Court possesses discretionary power. Court can exercise this power when no injustice results from amendment of framed issue on that point, which is not present in pleading(s). However, it cannot be exercised when it alters nature of suit, permits making of new case or alters stand of parties through rising of inconsistent pleas. Regarding amendment of framed issues, Court also has mandatory power. In fact, Court is bound to amend framed issues especially when such amendment is necessary for determination of matters in controversy, when framed issues of do not bring out point in controversy or when framed issues do not cover entire controversy. When the lower Court omitted to frame an issue before trying a matter in controversy, the appellate Court can frame the issue and refer it for trial to the lower Court. There is no need to remand the entire case. Then the lower Court should try such issues and return the evidence and its decision to the appellate Court.

6. However, in this case, the issues are not according to the pleadings of the parties. It seems that the learned trial Court was not acquainted with the real myth of framing of issues, because the parties have to lead evidence keeping in mind the burden of proof placed upon their shoulders while formulating issues. The issues framed by the learned trial Court do not cover the real controversy, meaning thereby the provisions of Order XIV, Rule 1 of the Code of Civil Procedure, 1908 have been defiled. Evidence is led after framing of issues. The stage of framing of issues is very important in trial of civil suit because at that stage the real controversy between the parties is summarized in the shape of issues and narrowing down the area of conflict and determination where the parties differ and then parties are required to lead evidence on said issues. The importance of framing correct issues can be seen from the fact that parties are required to prove issues and not pleadings as provided by Order XVIII, Rule 2, CPC. The Court is bound to give decision on each issue framed as required by Order XX, Rule 5, CPC. Therefore, the Courts while framing issues should pay special attention to Order XIV of CPC and give in depth consideration to the pleadings etc. for the simple reason that if proper issues are not framed, then entire further process will be meaningless, which will be wastage of time, energy and would further delay the final decision of the suit. In the present case, as observed supra, the learned Trial Court did not ponder upon the pleadings of the parties while framing issues and could not sum up the real controversy into issues; thus, further proceedings are of no use. In this regard reliance is placed on Muhammad Yousaf and others v. Haji Murad Muhammad and others (PLD 2003 Supreme Court 184) wherein it has been held:

“The provisions as contained in Order XIV, Rule 5, C.P.C. were not kept in view and ignored completely by the learned trial Court while framing the issues as a result whereof controversy regarding removal of household articles could not be set as naught. There is no cavil to the proposition which was settled decades ago and still hold field “that where an issue, though in terms covering the main question in the cause, does not sufficiently direct the attention of the parties to the main questions of fact, necessary to be decided, and the parties may have been prevented from adducing evidence, or fresh issue may be directed to try the principal question of fact”. (Olagappa v. Arbuthnot (1875) 14 BLR 115-142, 14/268, 316. “The duty of raising issues rests under the Code of Civil Procedure on the Court and it would be unsafe to presume from the failure of the Court to raise the necessary issues an attention of the defendant to admit the fact, which the plaintiff was bound to prove.” (Ganou v. Shri Devsidhes War, 1902 AIR 26 Bom. 360-361).”

Further reliance in this regard is placed on Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others (PLJ 2010 SC 530), wherein it has been held that:

“It is the duty of the Court to frame issues correctly primarily on pleadings of the parties, because the issues framed by the Court correctly reflect the controversies arising from the pleadings of the parties and the Court thus can render an effective judgment on the disputed facts and the party also know on what fact the evidence should be led.---------------------------------------------------------------------------------------, that framing of a particular issue was not pressed by party affected is no ground for condoning failure to frame necessary issue and the mandate of Order XIV, Rule 1, CPC reveals that it is incumbent upon the Court to frame issues in the light of the controversies raised in the pleadings and after examination of the parties, if necessary. Issues of law and facts are to be illustrated clearly, to enable the parties to understand the points at issue to support their respective claims by recording evidence on all material points. It is the settled principle of law that “action or inaction” on the part of the Court cannot prejudice a party to litigation and the failure of Courts below to determine material issue amounted to exercise of jurisdiction illegally or with material irregularity.”

1. For the foregoing reasons, without touching the merits of the case, may it prejudice case of either of the side, the impugned judgment and decree dated 11.01.2022 handed down by the learned trial Court is set aside by allowing the appeal in hand and case is remanded to the learned trial Court with a direction to re-frame issues, keeping in view the above said observations by considering the pleadings of parties, record evidence and decide the case afresh on merits in accordance with law within a period of six months from the date of receipt of copy of this judgment. The adversaries are directed to appear before the learned trial Court on 07.03.2024.

(Y.A.) Appeal allowed

PLJ 2024 Lahore 262 [Bahawalpur Bench, Bahawalpur]

Present: Ahmad Nadeem Arshad, J.

FALAK SHER, etc.--Petitioners

versus

HASHMAT BIBI, etc.--Respondents

W.P. No. 3631 of 2015/BWP, heard on 21.02.2024.

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

----S. 12(2) & O.VII R. 11--Specific Relief Act, (I of 1877), S. 9--Punjab Pre-emption Act, 1991, S. 13--Dismissal of application for setting aside ex-parte decree--Suit for possession through pre-emption--Application for rejection of plaint--Allowed--Appeal--Dismissed--Revision petition--Allowed--Matter was remanded--Matter was fixed for rebuttal evidence--Statement of compromise by counsel of petitioner--Suit was decreed on statement of petitioner’s counsil--No authority was given to counsel for statement of comprise--Challenge to--After longstanding period of 14 years when case was fixed for rebuttal evidence, case was decreed on statement of counsel for petitioners--Petitioners challenged said judgment & decree on grounds of fraud and mis-representation by maintaining that neither they compromised with respondents nor they gave any authority to their counsel to made any statement of compromise and got decreed respondents’ suit--There was no evidence on record to suggest that any compromise was affected between parties--Both Courts below dismissed petitioners’ application on ground that it is settled principle of law that every lawyer engaged by a party had implied authority to entered into compromise even no specific power had been conferred upon him--While deciding case on basis of compromise, Court should apply maximum care and caution to ascertain that whether parties were agreed to statement of compromise given by their counsel--Courts below committed illegality while dismissing application of petitioners under Section 12(2) C.P.C--The Courts below had not applied their judicial mind and decided matter on surmises and conjectures--Petition allowed.

[P. 265, 266, 270, 271] A, B, C, G & H

2001 SCMR 1700, PLD 2002 SC 71, 2005 SCMR 1121, 2008 SCMR 896 ref.

Power of Attorney--

----Power of attorney must be construed strictly as giving only such authority as is conferred expressly or by necessary implication and it cannot empower beyond what it really conveys and its contents must be taken into consideration as a whole--Power of attorney only gives that power which is specifically mentioned therein.

[P. 271] D

Wakalatnama--

----The power of attorney (Vakalatnama) does not confer impliedly power of compromise on counsel or to make any statement to withdraw suit or to get decree suit, until and unless such powers have been specifically given to attorney--If power to do an act has not been specifically given to an attorney, such an act, whether compromise or otherwise, is of no legal consequence at option of concerned party. [P. 272] E & F

Mr. Asif Imran Teja, Advocate for Petitioners.

Sheikh Irfan Karim-ud-Din, Advocate for Respondents.

Date of hearing: 21.02.2024.

Judgment

Through this Constitutional Petition, petitioners assailed the vires of judgments and memos of cost of the Courts below whereby their application under Section 12(2) C.P.C. was dismissed concurrently.

1. Facts in brevity are that predecessors of the respondents namely Abdul Ghaffar and Abdul Sattar instituted a suit for possession through pre-emption on 10.03.1990 against the petitioners before the Court of Civil Judge 1st Class, Haroonabad, Camp at Fortabbas and pre-empted the sale affected through mutation No. 85 dated 12.03.1989 whereby land measuring 85 Kanals was sold by Alam Khan s/o Langar Khan to the petitioners for a consideration of Rs. 23,000/- ; that suit was resisted through filing contesting written statement on 01.10.1990; that learned Trial Court, keeping in view divergent pleadings of the parties framed necessary issues on 29.10.1990; that the learned Trial Court transmitted the file to the District Judge Bahawalnagar for onward entrustment as parties posed lack of confidence; that file was received on 05.03.1991 and on behalf of the plaintiffs Sheikh Karim-ud-Din Advocate submitted his power of attorney, whereas, on behalf of the defendants Muhammad Iqbal Sohail, Advocate submitted power of attorney; that the case was entrusted to the Court of Civil Judge 1st Class, Bahawalnagar, with direction to the parties to appear before the said Court on 09.03.1991; that thereafter on behalf of defendants Vakalatnama was filed by Mirza Atta Ullah Qamar Advocate on 27.04.1991; that plaintiffs’ oral as well as documentary evidence was completed on 19.10.1991 and the case was adjourned for evidence of the defendants; that defendants moved an application on 07.01.1992 under Order VII Rule 11 C.P.C. for rejection of plaint; that plaintiffs filed its contesting written reply on 07.03.1992; that the learned Trial Court allowed the same by rejecting the plaint vide order dated 28.02.1993 and resultantly the suit was dismissed vide decree dated 28.02.1993; that feeling aggrieved, plaintiffs preferred an appeal which was dismissed vide judgment & decree dated 12.02.1996; that plaintiffs assailed both the decrees before this Court through filing revision petition (C.R. No. 525 of 1994/BWP) which was allowed by this Court vide order dated 15.06.1999 and the matter was remanded to the learned Trial Court in the following terms:

“In this view of the matter, the impugned order is set-aside and the case is remanded to the learned Civil Judge with the direction that he should complete the evidence and decide the suit in toto by attending to the issue involved including the issue of limitation.”

That after remand of the case, defendants concluded their oral evidence on 05.11.2002 and closed their documentary evidence on 08.11.2002; that the Court vide order dated 08.11.2002 adjourned the matter to 19.11.2002 for rebuttal evidence; that case was adjourned 17 times for one pretext or other and lastly it was adjourned to 22.06.2004 for rebuttal evidence with warning of last opportunity; that on 22.06.2004 when the case was fixed for rebuttal evidence of the plaintiffs, learned counsel for the defendants namely Mirza Atta Ullah Qamar appeared and maintained that compromise has been affected between the parties and defendants have no objection to decree the suit; that in the light of said statement, the learned Trial Court decreed the suit subject to payment of remaining consideration amount of Rs. 18,400/- within a period of 30-days with the caution that if plaintiffs failed to pay the remaining consideration amount, the suit would be deemed to be dismissed; that the defendants, who are petitioners of instant petition, challenged said statement of their counsel, judgment & decree by moving an application on 18.01.2005 under Section 12(2) of the Code of Civil Procedure, 1908 with the contention that respondents/plaintiffs obtained the decree through fraud and mis-representation as neither any compromise has been affected between the parties nor they gave any authority to their counsel to get the suit decreed through compromise; that the respondents contested the application through filing written reply wherein they raised certain preliminary objections and specifically pleaded that the suit was decreed on the instructions of petitioners; that the learned Trial Court, in the light of divergent stances of the parties framed necessary issues and invited them to produce their evidence in support of their respective stances; that learned Trial Court, after recording evidence of the parties pro & contra, oral as well as documentary, dismissed the application vide judgment & memo of cost dated 06.10.2012; that feeling aggrieved, the petitioners assailed said order through filing a revision petition which also met the same fate and dismissed by the learned Revisional Court vide judgment/ memo of cost dated 02.05.2015. Being dissatisfied, the petitioners approached this Court through instant Constitutional Petition.

1. Learned counsel appearing on behalf of the petitioners inter-alia contends that impugned judgments & memos of cost are against the facts & law and result of mis-reading and non-reading of evidence. He adds that respondents instituted suit for possession through pre-emption which was hotly contested by the petitioners and after conclusion of trial there was no occasion to make compromise with them and get decreed their suit in the year 2004 for a consideration of Rs. 23,000/- which was paid in the year 1989. He further maintained that the petitioners neither compromised with the respondents nor gave any authority to their counsel to make statement of compromise before the learned Trial Court. He also argued that respondents with collusion of their counsel got decreed their suit by playing fraud with the petitioners and prayed for acceptance of this petition, setting aside of judgments dated 06.10.2012 & 02.05.2015 and as a consequence thereof setting aside of impugned judgment & decree dated 22.06.2004.

2. Conversely, learned counsel representing the respondents vehemently opposed the contentions of learned counsel for the petitioners and defended the impugned judgments & memos of cost by maintaining that there is no denial to the fact that petitioners engaged Mirza Atta Ullah Qamar, Advocate as their counsel, who represented them for 11 years and they did not pose any lack of confidence upon him; that being attorney of petitioners said Advocate had authority to make statement of compromise and get the suit decreed. In last, he prayed for dismissal of this petition.

3. I have heard learned counsel for the parties at full length and perused the record with their able assistance.

4. Admittedly, respondents instituted a suit for possession through pre-emption on 10.03.1990 whereby they pre-empted the sale affected through mutation No. 85 dated 12.03.1989. It is matter of record that said suit was hotly contested and matter went upto this Court and after remand affirmative evidence of the parties was completed. After the longstanding period of 14 years when the case was fixed for rebuttal evidence, the case was decreed on the statement of learned counsel for the defendants (petitioners). Petitioners challenged said judgment & decree on the grounds of fraud and mis-representation by maintaining that neither they compromised with the respondents nor they gave any authority to their counsel to make any statement of compromise and got decreed the respondents’ suit.

5. Petitioners specifically pleaded their stance in para No. 3 and para No. 8 of their application under Section 12(2) C.P.C. which is reproduced in verbatim as under:

"یہ کہ سائلان / مدعا علیہم اچانک ایک رشتے دار کی فوتیدگی کی وجہ سے مورخہ 04/06/22کو عدالت جناب والہ میں نہ آسکے نہ ہی مسئول علیہ نمبر 3 کو یہ ہدایت دی کہ ان کے ہمراہ مدعیان / مسئول علیہم E-1 to A-1 سے راضی نامہ ہو چکا ہے۔ مسئول علیہ نمبر 3 نے بلا رضامندی سائلان عدم حاضری لا علمی مدعا علیہم ہمراہ مدعیان ساز باز ہو کر محض لالچ دنیاوی و طمع نفسانی کے پیش نظر خلاف مفاد سائلان بیان راضی نامہ مورخہ 04/06/22 قلمبند کروادیا ہے ۔ "

"سائلان نے کبھی بھی مسئول علیہم E-1 to A-1 و 2 و دیگر رشتے داران مسئول علیہم کے ساتھ راضی نامہ نہ کیا ہے نہ ہی مسئول علیہ نمبر 3 کو راضی نامہ کرنے کی ہدایت و اختیار دیا ہے۔ "

Respondents, in their written reply pleaded as under:

"کونسل سائلان نے فریقین کے راضی نامہ کے مطابق بیان قلمبند کراکر دعویٰ ڈگری کرایا تھا۔ سائلان اپنے کونسل کے بیان کے پابند ہیں۔ سائلان اب راضی نامہ سے منحرف ہو گئے ہیں۔ سائلان سے کوئی دھو کہ یا فراڈ نہ ہوا ہے"۔

1. The learned Trial Court reduced the said controversy in the following terms:

2. Whether judgment & decree dated 22.06.2004 is result of fraud? OPA

3. Whether learned counsel for the petitioners in the original suit/Respondent No. 3 gave statement in the Court on the direction of petitioners and petitioners are bound by the statement of their counsel, this petition is false and frivolous and respondents are entitled to get special costs? OPR

4. It is matter of record that when the case was transferred to the Court of Civil Judge, Bahawalnagar, Muhammad Iqbal Sohail, Advocate submitted his power of attorney on behalf of the defendants on 09.03.1991. Thereafter, without cancelling the earlier power of attorney a fresh Vakalatnama was filed from defendants side by Mirza Atta Ullah Qamar Advocate on 27.04.1991. It means that defendants were being represented by two counsel on 22.06.2004 but only Mirza Atta Ullah Qamar, Advocate, got recorded the statement on the said date. Petitioners, in their petition, alleged that said Mirza Atta Ullah Qamar Advocate with the collusion of respondents made a fraud with them by getting the suit of respondents decreed. Petitioners impleaded said Mirza Atta Ullah Qamar, Advocate, as Respondent No. 3 in his application u/S. 12(2) C.P.C. Said Advocate was served personally who appeared before the Court on 05.12.2012 and prayed for an adjournment to file written reply but he failed to file the same on 04.01.2006, 13.02.2006 and 13.03.2006. On 13.03.2006 he absented from the proceedings, hence, ex-parte proceedings were initiated against him. Thereafter, he died, therefore, his statement could not be recorded and his stance could not come on record.

5. Before further discussion, it is better to see the proceedings conducted on 22.06.2004 and judgment passed on it.

22-06-2004”

کو نسل فریقین حاضر - امروز آخری موقع برائے تردیدی شہادت مدعیان تھا۔ کو نسل فریقین بیانی ہیں که ما بین فریقین راضی نامہ ہو گیا ہے۔ اس نسبت بیانات قلمبند کرانا چاہتے ہیں۔ بیانات قلمبند ہوں۔ بیان ازاں مرزا عطاء اللہ قمر ایڈووکیٹ، کونسل مدعا علیہم نمبر 1 تا 4۔

بلا حلف بیان کیا کہ مابین فریقین راضی نامہ ہو گیا ہے۔ حسب ہدایت موکلان دعویٰ مدعیان ڈگری کیے جانے پر اعتراض نہ ہے بشر طیکہ خرچہ مقدمہ بذمہ فریقین رہے۔ سنکر درست تسلیم کیا۔"

1. At the margin of the order-sheet, his signature is available. At the end of his statement, the learned Trial Court also written as under:

“بیان کونسل”

1. Although said words are written but neither statement of learned counsel for the plaintiffs was recorded nor his signature was obtained at the margin of order-sheet. Admittedly, at the time of recording of said statements neither plaintiffs nor defendants were in attendance before the Court as signatures or presence has not been marked anywhere in that order. Although, the learned Trial Court described that counsel for the parties wanted to get record their statement but neither statement of learned counsel for the plaintiffs was recorded nor his signature was available on the margin of order-sheet which reflects that said counsel was also not available at that time. In the light of statement of Mirza Atta Ullah Qamar Advocate the learned Trial Court passed the order in the following terms:

“In the light of statement of the learned counsel for the defendants, Mirza Atta Ullah Qamar, the instant suit for recovery of possession through pre-emption is decreed in the favour of the plaintiffs on the basis of compromise arrived at between the parties. The 1/5th of the suit transaction i.e. Zar-i-Punjum Rs. 4600/- has already been deposited in the Court. In addition to the already deposited Zar-i-Punjum, the plaintiff would deposit further Rs. 18,400/- , the remaining sale price in the Court within one month from today which the defendants would be entitled to receive and subject to above condition, the suit is decreed in favour of the plaintiffs, otherwise the suit of the plaintiffs would be deemed to be dismissed. Parties to bear their own cost.”

1. It is matter of record that neither respondents/plaintiffs deposited the remaining consideration amount within stipulated period in the Court nor petitioners had withdrawn the Zar-i-Punjum. There is no evidence on record to suggest that petitioners tried to withdraw the amount deposited by the respondents. Had there been any compromise affected between the parties, the petitioners would definitely have withdrawn as that said amount in the year 2004 was having substantial value.

2. Petitioners specifically pleaded in their application that neither any compromise has been affected between the parties nor they gave any authority to their counsel to get recorded the statement of compromise and decree the suit. The suit remained pending for about 14 years and it was hotly contested by the petitioners. In one round of litigation, the matter went upto this Court. It is strange that petitioners compromised the suit after lapse of 14 years when evidence of the parties had already been completed and the matter was fixed for rebuttal evidence of the respondents. It is also noted that alleged compromise had been affected without settling any terms & conditions and without reducing said terms and conditions in writing. Petitioners purchased the property measuring 85 Kanals through mutation No. 85 dated 12.03.1989 for a consideration of Rs. 23,000/- and the same was allegedly decreed to the respondents in the light of alleged compromise for the same consideration i.e. Rs. 23,000/- in the year 2004 after lapse of 15 years. Admittedly, price of the properties were enhanced with the passage of time.

3. The suit was decreed on the sole statement of petitioners’ counsel namely Mirza Atta Ullah Qamar, Advocate. Petitioners denied the fact regarding giving any authority to their counsel to make any statement of compromise, whereas, the stance of the respondents is that the said counsel was having such authority. As discussed earlier, stance of the Mirza Atta Ullah Qamar could not be brought on record either in the form of written reply or through his statement. Later on, he died. In this regard, the material document was the Vakalatnama executed in favour of Mirza Atta Ullah Qamar Advocate by the petitioners. Although, it was duty of the respondents to bring on record said Vakalatnama in their evidence as onus of proving issue No. 2 was placed upon them but none of the parties brought the same Vakalatnama on record. In order to reach a just conclusion, this Court summoned the original file of suit titled “Mst. Hashmat Bibi etc. V. Falak Sher, etc.” wherein said Vakalatnama is available. Through said Vakalatnama, petitioners engaged Mirza Atta Ullah Qamar Advocate on the following terms:

"مقدمہ مندرجہ عنوان میں اپنی طرف سے بمقام بہاولنگر برائے پیروی و جو ابد ہی مر زا عطاء اللہ قمر ایڈووکیٹ بہاولنگر کو بدیں بشرط مقرر کیا ہے کہ میں ہر پیشی پر خود یا بذریعہ مختار خاص بروز پیشی حاضر ہوتار ہوں گا اور بر وقت پکارے جانے وکیل صاحب موصوف کو اطلاع دے کر حاضر عدالت کروں گا۔ اگر پیشی پر مظہر حاضر نہ ہوا اور مقدمہ میری غیر حاضری کی وجہ سے کسی طور پر میرے بر خلاف ہو گیا تو صاحب موصوف اس کے کسی طرح ذمہ دار نہ ہوں گے۔ اگر مقدمہ صاحب مذکور کی کسی دانستہ غفلت سے میرے بر خلاف ہو گیا تو صاحب موصوف تا حد محنتانہ نقصانات یا ہر جانہ کے ذمہ دار نہ ہوں گے۔ لیکن وکیل موصوف صدر مقام کچہری کے علاوہ اور جگہ سماعت ہونے یا بروز تعطیل یا کچہری کے اوقات سے پیچھے ہونے یا مظہر کو کوئی نقصان پہنچے تو اس کے ذمہ دار اس کے واسطے کسی معاوضہ ادا کرنے یا محنتانہ واپس کرنے کے بھی صاحب موصوف ذمہ دار نہ ہوں گے۔ مجھ کو کل ساخته پرداخته صاحب موصوف مسل کردہ ذات خود قبول ہو اور صاحب موصوف کو عرضی و جواب دعویٰ اور اجراء درخواست بر آمدگی، درخواست منسوخی ڈگری یکطرفه ، درخواست حکم امتناعی یا قرقی یا گرفتاری قبل از فیصلہ اجراڈگری بھی صاحب موصوف بشرط ادائیگی علیحدہ محنتانہ پیروی کا اختیار ہو گا کہ مقدمہ مذکور یا اس کے کسی جزو کی کارروائی کے واسطے کسی دوسرے وکیل یا بیرسٹر کو بجائے اپنے یا اپنے ہمراہ مقرر کریں اور ایسے مشیر قانونی کو ہر امر میں اور ویسے ہی اختیارات حاصل ہوں گے جیسے صاحب موصوف کو حاصل ہیں اور دوران مقدمہ میں جو کچھ ہر جانہ التوا پڑے گا وہ صاحب موصوف کو پورا اختیار ہو گا کہ وہ مقدمہ کی پیروی نہ کریں اور ایسی صورت میں میرا کوئی مطالبہ کسی قسم کا صاحب موصوف کے بر خلاف نہ ہو گا۔ نیزر قومات داخل کردہ کی ہر طرح و صولی بذریعہ چیک ہائے وغیرہ کی اختیار وکیل صاحب موصوف کو ہو گا۔ لہذا یہ مختار نامہ لکھ دیا ہے کہ سند رہے۔ مختار نامہ سن لیا اور اچھی طرح سمجھ لیا ہے اور منظور ہے۔"

1. Petitioners No. 1 & 3 put their thumb impression, whereas, petitioners No. 2 & 4 made their signatures. Perusal of said Vakalatnama, it appears that neither any authority was given to Mirza Atta Ullah Qamar Advocate to make any statement of compromise nor permission was given to get decree the suit of the respondents on the basis of compromise.

2. There is no evidence on the record to suggest that any compromise was affected between the parties. Neither any terms and conditions of said compromise were reduced into writing nor produced before the Court. During the course of evidence, respondents introduced a new story which is quite alien from their written reply. They maintained that a murder case was registered against them and petitioners No. 1 & 3 were witnesses of the said case and in the said murder case compromise was affected for Rs. 10,00,000/- and it was also settled that pre-emption case would also be decided on the basis of compromise and Falak Sher etc. agreed that they would get record the compromising statement. It is further maintained that on the date of hearing Falak Sher etc. attended the Court along with their counsel Mirza Atta Ullah Qamar Advocate and asked him to get record his statement for decreeing the suit on the basis of compromise. Exact deposition of R.W.1 Muhammad Ramzan (Respondent No. 2) is as under:

"ہمار ا سائلان فلک شیر وغیرہ کے ساتھ قتل کا مقدمہ چلتا تھا اس میں مرزا اور فلک شیر وغیرہ گواہان تھے۔ اس قتل کیس میں راضی نامہ ہو گیا تھا۔ راضی نامہ کے تحت طے پایا تھا کہ دعویٰ شفع کا بھی فیصلہ ہو گیا تھا۔ مبلغ دس لاکھ روپے میں قتل والے کیس میں صلح ہوئی تھی اور یہ بھی طے پایا تھا کہ فلک شیر و غیره دعویٰ شفع میں اپنے وکیل صاحب کو دعویٰ ڈگری کرانے کی بابت کہیں گے پھر پیشی والے روز فلک شیر وغیرہ عدالت آئے اور انہوں نے مرزا عطاء اللہ قمر ایڈووکیٹ کو کہا کہ ہماری صلح ہو گئی ہے آپ بیان دے کر دعویٰ شفع ڈگری کروادیں۔ جس دن دعویٰ ڈگری ہوا اس روز مرزا اور فلک شیر بھی عدالت میں موجود تھے اور ان کے کہنے پر ان کے وکیل مرزا عطاء اللہ قمر صاحب نے بیان دیا تھا۔"

1. First of all, the story brought during the evidence regarding a murder case is alien to the written reply of the respondents as there is nothing mentioned regarding compromise in the pre-emption case on the basis of compromise in a murder case. Hence, story being beyond pleadings is not believable.

2. Next version taken during the evidence is that Falak Sher and Mirza attended the Court on the fateful day along with their counsel Mirza Atta Ullah Qamar Advocate who asked their counsel to get record statement regarding compromise. This facts was also not pleaded in the written reply by the respondents. Moreover, attendance of Falak Sher and Mirza is not reflecting in the order dated 22.06.2004 (Exh.A.7).

3. Both the Courts below dismissed the petitioners’ application on the ground that it is settled principle of law that every lawyer engaged by a party has implied authority to enter into compromise even no specific power has been conferred upon him. No doubt, through engaging a counsel and by giving him Vakalatnama (power of attorney) a party gives him an authorization for doing certain acts with regard to the suit. But said authorization was not unqualified and unrestricted. The counsel has to work and to act within the scope of authority given to him. In this regard, the wording of the power of attorney should be strictly construed.

4. Hon’ble Supreme Court of Pakistan in a case titled as “Muhammad Akhtar versus Mst. Manna and 3 others” (2001 SCMR 1700) while describing that the power of attorney must be strictly construed 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.”

Said dictum was endorsed in the case titled “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. Power of attorney must be construed strictly as giving only such authority as is conferred expressly or by necessary implication and it cannot empower beyond what it really conveys and its contents must be taken into consideration as a whole. Power of attorney only gives that power which is specifically mentioned therein.

2. The power of attorney (Vakalatnama) does not confer impliedly the power of compromise on the counsel or to make any statement to withdraw the suit or to get decree the suit, until and unless such powers have been specifically given to the attorney.

3. There is hardly any doubt that if the power to do an act has not been specifically given to an attorney, such an act, whether compromise or otherwise, is of no legal consequence at the option of the concerned party.

4. The august Supreme Court of Pakistan while refusing to grant leave to appeal in a case titled “Muhammad Hussain and others v. Mst. Hanaf Ilahi and others” (2005 SCMR 1121) observed as under:

“The only point involved in this case is, whether the learned counsel appearing for Respondent No. 1, had the authority to withdraw the suit in the circumstances of the case in hand. The learned Single Judge of the High Court has dealt with this matter in extenso and has come to a definite conclusion that no such instructions were ever imparted by the lady to her counsel nor they are reflected from the power of attorney executed by her. The learned Single Judge, after advancing valid reasons, has exercised the discretion properly and no exception can be taken to the same.”

In another case where the authority of compromise was given to the counsel through Vakalatnama declared that said authority was neither absolute nor unqualified rather it was conditional with a settlement arrived at by the party and while deciding the said case titled “Abdul Shakoor and others V. Haroon and others” (2008 SCMR 896), august Supreme Court of Pakistan held as under:

“Though on the Vakalatnama given to Mr. A.P.F. Fances, Advocate it was endorsed that “we further authorize our advocate to compromise the suit and enter into any settlement arrived at by the parties”. Though learned counsel appearing on behalf of respondents was authorized to compromise the suit on their behalf but this authority was neither absolute nor unqualified. In fact it was conditioned with a settlement arrived at by the parties. The counsel as such could not be deemed to be authorized to enter into compromise in relation to the suit without any settlement having been arrived at between the parties themselves. The power to compound or settle the matter is vested with the parties and counsel acts according to the instructions given to him by the party. He may enter into compromise only where the Vakalatnama empowers him to do so specifically and cannot do so at his own.”

1. Valuable rights of the parties are involved in the lis, therefore, while deciding the case on the basis of compromise, the Court should apply maximum care and caution to ascertain that whether the parties are agreed to the statement of compromise given by their counsel.

2. In the present case, the petitioners engaged Mirza Atta Ullah Qamar Advocate to pursue their case diligently and efficiently. They never authorized him to make any statement of compromise or to get the suit decreed on the basis of compromise. Neither any authority through Vakalatnama was given to him to make compromise with the opposite party or to get the suit decreed on the basis of compromise, therefore, the statement made by the petitioners’ counsel is not binding upon them.

3. In view of the above, learned Courts below committed illegality while dismissing the application of the petitioners under Section 12(2) C.P.C. The Courts below have not applied their judicial mind and decided the matter on surmises and conjectures.

4. For the foregoing reasons, this petition is accepted and judgments/memos of cost dated 06.10.2012 & 02.05.2015 are set-aside. Consequently, judgment & decree dated 22.06.2004 is also set-aside. The suit would be deemed to be pending before the learned Trial Court who shall decide the same expeditiously, preferably within a period of 03 months from the receipt of certified copy of this judgment, under intimation to this Court through Deputy Registrar (Judicial) of this Bench.

5. Parties are directed to appear before learned District Judge, Bahawalnagar, on 11.03.2024 who shall entrust the suit to the Court of competent jurisdiction for its decision in accordance with law.

(Y.A.) Petition allowed

PLJ 2024 Lahore 273

Present: Abid Aziz Sheikh, J.

Syed SIBT HASSAN--Petitioner

versus

SABA BATOOL etc.--Respondents

W.P. No. 38567 of 2022, heard on 19.02.2024.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of maintenance allowance, dower, dowry articles and delivery expenses--Partially decreed--Judgment of lower Court was upheld and amount of delivery expenses was increased--Writ petition--Matter was remanded to decide question of dower--Amount of dower was upholding validity of agreement--Petitioner was never challenged decisions of trial Court, appellant Court and increasing of delivery expenses--Finding of lower Court were attained finality--Oral and documentary evidence--Challenge to--Scribe and vendor of Exh.P2 were not got examined but their absence actually goes against petitioner, who had to prove that stamp-paper was got issued for renewal of license of medical store and not for Agreement between parties--Petitioner never sought cancellation of stamp-paper or got FIR lodged or got rapat diarized if at all his stamp-paper was stolen, as claimed by him--Oral and documentary evidence proved beyond doubt lawfully executed between parties--The petitioner agreed to pay Rs. 4,000,000/- as dower in case of divorce--This stipulation in Agreement was not stringent condition imposed to keep parties in marriage bond rather it is enhancement of dower amount by husband, which was not only permissible but also executable as discussed below--No illegality was found in impugned judgment and decree for interference in this Constitutional Petition, whereas respondents had made request for withdrawal of their connected Petition--Petition dismissed.

[Pp. 277 & 279] A, B & D

2016 SCMR 2170, 1999 SCMR 1171, PLD 2004 Lah. 330, 2007 CLC 116 and 2021 YLR 869 ref.

Principles of Muhammadan Law--

----Para 287--Under Para-287 of “Principles of Mahomedan Law” by DF Mulla, dower may be fixed either before or at time of marriage or after marriage and can also be increased after marriage.

[P. 277] C

Mr. Farrukh Shehzad Kamboh, Advocate for Petitioner.

Mr. Shahzad Hussain Goraya, Advocate for Respondents No. 1 & 2.

Date of hearing: 19.02.2024.

Judgment

This judgment will also decide the connected Writ Petition No. 75369/2021 (hereinafter referred to as connected Petition), as both these Petitions are between the same parties and against the same impugned judgment and decree dated 27.10.2021 (impugned judgment & decree) passed by the Appellate Court.

1. Relevant facts are that Respondents No. 1 & 2 in this Writ Petition, who are also petitioners in connected Petition, (hereinafter referred to as respondents) filed a family suit for recovery of maintenance allowance, dowry articles, delivery expenses and dower against the petitioner, who is also Respondent No. 1 in connected Petition (hereinafter referred to as petitioner) on 19.06.2017. The said suit was decreed by the Trial Court, vide judgment and decree dated 01.03.2019 (judgment & decree of trial Court), awarding monthly maintenance allowance @ Rs. 2,000/- for Respondent No. 1 (wife) from September 2016 till Iddat period, maintenance allowance @ Rs. 5,000/- per month for Respondent No. 2 (minor-daughter) from her date-of-birth till marriage with 10% increase per annum and the alternative price of dowry articles at Rs. 350,000/- and delivery expense of Rs. 25,000/- to Respondent No. 1, however, the claim of Respondent No. 1 for dower was dismissed. The petitioner did not challenge the judgment & decree of Trial Court, however, in Appeal (filed by the respondents), the Appellate Court increased the amount of delivery expenses to Rs. 33,778/- and upheld the judgment & decree of the Trial Court to the extent of remaining claims,vide judgment and decree dated 12.07.2019 (judgment & decree of Appellate Court). The petitioner again did not challenge the above-noted judgment & decree, however, the respondents filed Constitutional Petition (WP No. 51624/2019), wherein the matter was remanded back to the Appellate Court, vide order dated 01.06.2021 (remand order), to decide the question of dower while recording the finding about validity and effect of the Agreement dated 21.01.2017 (Exh.P2) (hereinafter referred to as Agreement). In post-remand proceedings, the Appellate Court while upholding the validity of the Agreement, through the impugned judgment & decree, awarded amount of Rs. 4,000,000/- in favour of Respondent No. 1 as dower. The petitioner being aggrieved of the impugned judgment & decree has filed this Constitutional Petition, whereas the respondents have also filed connected Writ Petition claiming enhancement of the maintenance allowance or alternative price of the dowry articles.

2. Learned counsel for the petitioner submits that the petitioner got a stamp-paper issued for renewal of license of medical store but the same was stolen by Respondent No. 1 and she got the Agreement inscribed thereon. Further submits that in any case the condition of Agreement to pay dower amount of Rs. 4,000,000/- in case of divorce, being a stringent condition on divorce, is not sustainable. Reliance in this regard is placed on “Muhammad Bashir Ali Siddiqui vs. Mst. Sarwar Jahan Begum and another” (2008 SCMR 186) and “Muhammad Asif vs. Mst. Nazia Riasat and 2 others” (2018 CLC 1844).

3. Learned counsel for the respondents, on the other hand, submits that the Agreement was duly proved and it was not to impose stringent condition to remain in marriage bond rather same is for enhancement of dower amount, which is permissible under the law. He submits that the respondents only want to contest this Writ Petition and will not press their connected Petition filed for enhancement of maintenance allowance or the alternative price of dowry articles.

4. Arguments heard. Perusal of the record demonstrates that in previous round of litigation, the petitioner did not challenge the judgments and decrees of the Trial Court and Appellate Court impugning the maintenance allowance, alternative price of dowry articles and the delivery expenses, therefore to that extent the findings of the Courts below in aforesaid judgments have already attained finality against the petitioner. Similarly, today the respondents have not pressed their connected Petition for enhancement of maintenance allowance or alternative price of dowry articles, therefore, these issues being not under challenge need not be examined in this judgment. Now the only question needs determination is regarding the issue of dower on the basis of Agreement, which was remitted back by this Court vide remand order and has been allowed by the Appellate Court through the impugned judgment & decree.

5. In above context, the Issue No. 4 relates to recovery of the dower amount. This Court, vide order passed in Writ Petition No. 51624/2019, remanded the matter to the Appellate Court firstly to decide the validity or otherwise of the Agreement and secondly its effect qua the claims of the subject-matter, in case the same is held valid and enforceable in law. Regarding validity of the Agreement, no doubt under Section 17 of the Family Courts Act, 1964 (Act), the Qanun-e-Shahadat Order, 1984 (QSO) and the Code of Civil Procedure, 1908 (CPC) are not applicable in family matters, however, as the respondents were beneficiary of the Agreement, initially the burden of proof was on them to prove the execution of the Agreement. In this behalf, Respondent No. 1 herself appeared as PW-1 and besides producing the Agreement as Exh.P2, she also repeated the contents of the Agreement in her affidavit i.e. Exh.P1. During the cross-examination, not only she remained consistent but was not specifically cross-examined that whether the Agreement was executed in her favour or not or whether this is a forged document or was stolen by her. She also produced two marginal witnesses of the Agreement i.e. Shahid Naeem and Waseem Raza, who appeared as PW-2 & PW-3 respectively and supported the claim of Respondent No. 1. The petitioner while appearing as DW-1 admitted that he purchased a stamp-paper, however, claimed that same had been stolen and used against him subsequently. However, during cross-examination he categorically admitted that the stamp-paper of Agreement was got issued by him and signatures on front side as well as backside thereof were also made by him. Further, on backside of the Agreement it is specifically recorded that this is for an agreement between the petitioner and Respondent No. 1 (parties) and petitioner’s signature and his CNIC number are also mentioned there. No doubt, the scribe and the vendor of Exh.P2 were not got examined but their absence actually goes against the petitioner, who had to prove that the stamp-paper was got issued for renewal of the license of medical store and not for Agreement between the parties. Further, the petitioner never sought cancellation of the stamp-paper or got FIR lodged or got rapat diarized if at all his stamp-paper was stolen, as claimed by him. The above oral and documentary evidence proved beyond doubt that the Agreement was lawfully executed between the parties.

6. Now coming to the next question that whether under the Agreement Respondent No. 1 is entitled for dower amount of Rs. 4,000,000/-. There is no cavil with the proposition settled by the Supreme Court in case of ‘Muhammad Bashir Ali Siddiqui’ supra, followed by this Court in case of ‘Muhammad Asif’ supra (relied upon by petitioner’s counsel) that a stringent condition cannot be imposed to keep the parties in marriage bond. However, perusal of the Agreement (Exh.P2) shows that the petitioner agreed to pay Rs. 4,000,000/- as dower in case of divorce. This stipulation in the Agreement is not stringent condition imposed to keep the parties in marriage bond rather it is enhancement of the dower amount by the husband, which is not only permissible but also executable as discussed below.

7. Under Para-287 of the “Principles of Mahomedan Law” by DF Mulla, the dower may be fixed either before or at the time of marriage or after marriage and can also be increased after marriage. The afore-noted Para is reproduced hereunder:

“287. Dower may be fixed after marriage. The amount of dower may be fixed either before or at the time of marriage or after marriage and can be increased after marriage.”

The Supreme Court of Pakistan in “Ghania Hassan vs. Shahid Hussain Shahid and another” (2016 SCMR 2170) affirmed the above legal position and held as under:

“An overview of the above reveals that it is not a settled proposition of law that the dower can be fixed before marriage and at time of marriage or thereafter. Furthermore, the dower once settled can always be increased by the husband or by an agreement between the parties.”

The Apex Court also in case of “Mst. Naziran Begum through Legal Heirs vs. Mst. Khurshid Begum through Legal Heirs” (1999 SCMR 1171) held as under:

“It is well-settled that under Hanfi Law a husband is entitled to fix any amount of dower either at the time of marriage or even subsequently and also provide for mode of its payment.”

1. This Court in case of “Mst. Zainab Khatoon vs. Amir Abdullah Khan” (PLD 2004 Lahore 330) observed as under:

“9. Agreement dated 26-03-1985 is not in restraint of marriage but is a contingent document increasing amount of prompt dower, in case petitioner is divorced against her wishes or respondent contracts second marriage. Section 26 of the Contract Act, 1872 does not cover documents creating partial or indirect restraints on marriage, in the sense that it does not restrict marriage though it may adversely makes liable to do some thing or pay some amount, in lieu of marriage. Thus an agreement to pay a woman a specified amount, in case of divorce or remarriage, is not in restraint of marriage and cannot be considered, as void, being violative of the provisions of Section 26 of the Act of 1872 (ibid). In a Division Bench judgment given in the case of Muhammad Ali v. Ayesha Khatun (AIR 1916 Calcutta 761) husband authorized his wife to divorce him, in case of his entering into tie of second marriage, it was held that agreement does offend Section 26 of the Contract Act, 1872. Husband under law is competent to increase dower amount, after marriage and this document is of this nature and could be enforced against the respondent. Thus the judgment and decree impugned herein is tainted with material irregularity and illegality, thence is not sustainable at law.”

The same view was also expressed by the Division Bench of this Court in “Mst. Shahida Adeeb and another vs. Nauman Ejaz and another” (2007 CLC 1160) in following words:

“It is settled principle of law that in case of Muhammadan women it is open to husband to fix the dower amount at any time before or after the marriage. It is further open to the husband to increase the amount of the dower at any time during the continuous of the marriage. For purpose of increasing dower declaration by husband is sufficient. Reliance has been placed on the case reported as Chan Pir v. Fakar Shah AIR 1940 Lah. 104.”

The same view was also expressed by this Court in case of “Junaid Ahmad Khan Shahzad vs. District Police Officer, Muzaffargarh and 5 others” (2021 YLR 869).

1. For reasons recorded above, no illegality is found in the impugned judgment and decree for interference in this Constitutional Petition, whereas the respondents have made request for withdrawal of their connected Petition, as already noted above.

2. In view of the above discussion, both these Writ Petitions are dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 279

Present: Shahid Bilal Hassan, J.

Mian RAZA JILLANI and others--Petitioners

versus

PROVINCE OF PUNJAB through Chief Secretary to Govt. of Punjab, Civil Secretariat, Lahore and others--Respondents

W.P. No. 7155 of 2024, decided on 19.02.2024.

West Pakistan Waqf Properties Ordinance, 1959--

----Ss. 6 & 7--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Issuance of notices to petitioners to handed over possession--Filing of petitions--Dismissed--Appeals--Dismissed--Appeals before Apex Court--Allowed--Constitution of departmental committee for implementation of order of Apex Court--Respondents were ready to accommodate petitioners with alternate land--Maintainability-- The respondents were ready to give land attached to Darbar Hazrat Bou Ali Qalandar (R.A.) situated in Mauza Bagrian to petitioners and other occupants on rent as per decision of Supreme Court of Pakistan but petitioners and others were adamant to had land adjacent to shrine of Hazrat Data Ganj Bakhsh (R.A.)--It was nowhere written in judgment of Supreme Court of Pakistan that Mujawaran would be provided was land as per their wishes and desires rather it was evident that keeping in view their longstanding possession, they had been ordered to be accommodated with alternate land subject to its availability on reasonable rent--Neither petitioners nor their predecessors ever agitated at time of filing first petition that alternate place adjacent to shrine of Hazrat Data Ganj Bakhsh (R.A.) be provided to them--The petitioners and others time and again, approaching High Court only to prolong their possession--The petitioners were not willing to allow respondents from implementing judgment passed by Supreme Court of Pakistan and wanted to get alternate land as per their own wish and desire--Petitions dismissed. [Pp. 283 & 284] A, B, C, D & E

PLD 1971 SC 376 ref.

Mr. Muhammad Ahmad Qayyum and Mr. Shamail Arif, Advocates for Petitioners.

Mr. Qamar Zaman Qureshi, Additional Advocate General Punjab.

M/s. M. Usman Arif, Imran A. Mian, Raja Muhammad Ali and Rana Muhammad Bilal, Advocates for Respondents.

Mr. Muhammad Jamil, Manager Auqaf Department.

Date of hearing: 19.02.2024.

Judgment

This constitutional petition has been directed against Notices dated 29.01.2024 issued by the respondents whereby the petitioners have been directed to vacate their possessed land within 24 hours, without first providing them equivalent alternate land, contending that the same are illegal, unlawful and contrary to judgment reported as PLD 1971 Supreme Court 376 and violative of fundamental rights of the petitioners and preferential right of alternate land which had been previously granted to the petitioners.

1. Succinctly, the petitioners are occupants of properties in the close vicinity of Hazrat Ali Bin Usman Hajvery, famously known as Hazrat Data Ganj Bakhsh (R.A.); that the petitioners are descendants of “Sajjada Nasheen”/ Mujawareen of the shrine of Hazrat Ali Bin Usman Hajvery and are in occupation of their respective properties; the revenue record reflects the afore-stated occupation since long; that in pursuance of judgment report as Haji Ghulam Rasool, etc. v. The Chief Administrator Auqaf, etc. (PLD 1971 SC 376), the control and management of the Shrine was taken over by the Auqaf Department and the same is still with them subject to the rights of the Mujawareen as recognized in the said judgment. However, in the year 2020, the respondents started field survey of the properties with the intent to allegedly displace the petitioners’ families, which constrained the petitioners to approach this Court by filing W.P. No. 10126 of 2020, which was disposed of on 16.02.2023 keeping in view the reply of the respondents that the petitioners will not be dispossessed other than in due course of law. During the present caretaker regime, certain vested interests attempted to undertake an illegal survey of the land, which constrained certain third parties to challenge the same. Writ Petition No. 55659 of 2023 and I.C.A. No. 72272 of 2023 were filed and dismissed. Due to dismissal of the above mentioned proceedings, the respondents stopped all negotiations and have commenced a process to illegally dispossess all parties including the petitioners. Allegedly, on 18.01.2024, the petitioners were served with notices dated 11.01.204 requiring them to hand over possession to the respondents within 24 hours. Various third parties challenged the same, which proceedings are pending before this Court. Again notices dated 29.01.2024 were issued by the Respondents No. 6 and 7 with direction to vacate the possessed land to the petitioners.

2. Concise report has been submitted by the respondents. Arguments heard and report perused.

3. It has been noted that on 11.01.1960, 31.10.1960 and 28.11.1961 through notification(s) issued under Section 6 of the West Pakistan Waqf Properties Ordinance, 1959, holy shrine of Hazrat Ali Bin Usman Hajvery, famously known as Hazrat Data Ganj Bakhsh (R.A.) and other properties attached thereto were taken-over by the office of the Chief Administrator of Auqaf. Number of persons including the petitioners to be members of the body of Mujawareen of the Shrine filed a petition under Section 7 of the Ordinance ibid before the District Judge, Lahore seeking a declaration that certain properties, sought to be taken over by the Chief Administrator Aquaf, were not waqf properties or in the alternative were waqf properties within the limits and subject to the rights of the petitioners as claimed by them in their respective petitions, which petitions were dismissed; appeals there-against were also dismissed by the erstwhile High Court of the West Pakistan Lahore on 03.03.1966. The petitioners in those petitions approached the Hon’ble Supreme Court of Pakistan. The Apex Court of the country while deciding the appeals through judgment reported as Haji Ghulam Rasool, etc. v. The Chief Administrator Auqaf, etc. (PLD 1971 SC 376) observed as under:

‘…… All that the Chief Administrator of Auqaf can do is to take rent from them or terminate their right to possession by appropriate legal proceedings for their ejectment. If the management and control of a waqf property is taken over by the Administrator of Auqaf it does not mean that such taking over automatically extinguishes the tenancy rights or the rights to possession of persons settled on the lands. If the Administrator seeks to eject such persons he must proceed in accordance with law.

We accordingly uphold the declaration granted by the Courts below that the immovable properties mentioned in the impugned notifications minus the structures thereon are waqf properties and their control and management could lawfully be taken over by the Chief Administrator of Auqaf under the West Pakistan Waqf Properties Ordinance but subject to the limitations hereinbefore mentioned in the judgment.

Before we part with this case, we would like to place on record that at one stage there was a talk of a compromise in the matter. Under its terms, as then stated, it was proposed to give to the Mujawaran some Government lands on the Ravi Road in lieu of land which they now occupy, on a reasonable rent. The majority of Mujawaran were agreeable to this. The judgment in these appeals was, accordingly, kept pending to enable the parties to complete the negotiations. Ultimately, however, we were informed that the Government was only prepared to give alternative lands to the persons occupying some 12 kanals of land in immediate vicinity of the Darbar and not to the others. The talks of compromise, accordingly fell through, but we would again urge upon the Government to consider the possibility of giving alternative land at a reasonable rent to the Mujawaran sought to be displaced from their present holdings, if ever it is decided to do so, in order to help them rehabilitate themselves after the loss of the substantial income that they would have otherwise earned out of the offerings at the Darbar.’

In compliance with the above said esteemed judgment, when the respondents served notices upon the petitioners, they challenged the same by filing the constitutional petition bearing W.P.No. 10126 of 2020. On 16.02.2023, when the said constitutional petition came up for hearing, the learned counsel for the petitioners in that petition drew attention of this Court to the comments submitted by the Respondents No. 2 & 3 i.e. Province of Punjab through Secretary to the Government of Punjab, Auqaf Department Secretariat Lahore and Chief Administrator Auqaf Department, whereby it was submitted that the said respondents will not take any coercive action against the petitioners (in the said constitutional petition), and in addition to this it was submitted that the respondents will not dispossess the petitioners other than in due course of law. In this view of the matter, the petition was disposed of as having borne fruits. The incumbent Chief Minister Punjab formulated a committee for the purpose of retrieving the land from the Mujawareen after negotiation and the formulation of the Committee was also notified by the Chief Administrator Auqafvide office letter dated 29.03.2023. The Chief Administrator of Auqaf also constituted departmental committee vide order dated 22.03.2023 for implementation of judgment of the Supreme Court of Pakistan ibid. After consecutive meetings on different dates the respondents offered different patches of land to the petitioners and other occupants but they refused all offers and instead a constitutional petition bearing No. 55659 of 2023 was filed which was dismissed and I.C.A. No. 72272 of 2023 against its dismissal was also dismissed on 01.11.2023. The respondents are ready to give 22-kanals of land attached to Darbar Hazrat Bou Ali Qalandar (R.A.) situated in Mauza Bagrian to the petitioners and other occupants on rent as per decision of the Supreme Court of Pakistan but the petitioners and others are adamant to have the land adjacent to the shrine of Hazrat Data Ganj Bakhsh (R.A.). The Auqaf Department is ready to accommodate the Mujawareen including the petitioners, considering the availability of the waqf land in compliance with directions issued in judgment reported as PLD 1971 Supreme Court 376. The petitioners and other Mujawareen cannot be accommodated as per their desires and wishes rather they can be provided with alternate land keeping in view its availability because the Supreme of Pakistan give direction as such that:

‘……….. but we would again urge upon the Government to consider the possibility of giving alternative land at a reasonable rent to the Mujawaran sought to be displaced from their present holdings, if ever it is decided to do so….’

Meaning thereby, it is nowhere written in the judgment of the Supreme Court of Pakistan that the Mujawaran will be provided with the land as per their wishes and desires rather it is evident that keeping in view their longstanding possession, they have been ordered to be accommodated with alternate land subject to its availability on reasonable rent.

1. Another factor in this case is that neither the petitioners nor their predecessors ever agitated at the time of filing the first petition that alternate place adjacent to the shrine of Hazrat Data Ganj Bakhsh (R.A.) be provided to them, therefore, at subsequent stage they cannot claim as such because the Order II Rule 2, Code of Civil Procedure, 1908 comes in their way, which provides:

‘Suit to include the whole claim: (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim: Where a plaintiff omits to suit in respect of, or intentionally relinquishes, any portion of his claim, he shall not be afterwards sue in respect of the portion so omitted or relinquished.

(3) ………………………………………’

(Emphasis supplied)

1. In addition to the above, the petitioners and others time and again, approaching this Court only to prolong their possession. Admittedly, earlier petition on the same subject was disposed of on 16.02.2023; therefore, when a remedy has already been availed and being satisfied with the proceedings and actions to be conducted in accordance with law by the respondents, the petitioners, who were some of occupants, impliedly did not press the earlier petition, the subsequent petition i.e. the instant petition, is not maintainable because the same is hit by principle of approbate and reprobate. Moreover, it seems that the petitioners are not willing to allow the respondents from implementing the judgment passed by Supreme Court of Pakistan and want to get the alternate land as per their own wish and desire which cannot be acceded to as there is nothing in the judgment of the Supreme Court of Pakistan that the alternate land as per wishes and desires of the petitioners and others will be provided.

2. In view of the above, the constitutional petition in hand being without any force and substance stands dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 284

Present: Shahid Karim, J.

NOORUDDIN FEERASTA and others--Petitioners

versus

LAHORE DEVELOPMENT AUTHORITY (LDA) and others--Respondents

W.P No. 17085 of 2022, decided on 29.2.2024.

Lahore Development Authority Building Zoning Regulations, 2019--

----Regln. 10 & 33(g)--Punjab Environment Protection (Amendment) Act, 2012, S. 12--Construction of 14 strong high rise apartment building on residential plot--Permission was granted--Change of policy--Obtaining of IEE--Requirement of NOC an EIA as pre-condition--Adverse environmental effect--Direction to--Clause ‘g’ of Regulation 10.3.3 could not be read in isolation and had been made subject to provisions of 1997 Act (or 2012 Act) and could not be an NOC from EPA required an EIA as a pre-condition--For purpose, provisions of 2012 Act will had to be read in conjunction with clause ‘g’ of Regulation 10.3.3--This was a general condition and considered literally, every project was likely to cause an adverse environmental effect and so would require an EIA for seeking an NOC from EPA--For a project to require an EIA, it must be categorized as a project likely to cause an adverse environmental effect and this must have been done by LDA or EPA in present case--Since it had not been done in respect of disputed project--There was no contention that 40 feet right of way had to be maintained in construction of Apartment buildings and since that requires a factual inquiry, LDA should, at its own, ensure its compliance in letter and spirit--LDA was directed to issue revised edition of 2019 Regulations by deleting Condition--Henceforth any construction of an Apartment building would require an EIA and No Objection Certificate for EPA.

[Pp. 289, 291, 292 & 293] A, B, C, E & F

Lahore Development Authority Building Zoning Regulations, 2019--

----Regln. 2.5--Right of way--Right of way would mean width of street between to opposite property lines--It does not mean merely road on which vehicles are intended to ply--It will also include, in my opinion, footpaths for passengers as also green areas which are required to be maintained outside buildings by owners. [P. 292] D

M/s. Syed Ali Zafar, Jahanzeb Sukhaira, Talib Hussain, Asfand Waheed, Muhammmad Adeel Chaudhry and Abdul Latif, Advocates for Petitioners.

M/s. Muhammad Iftikhar-ud-Din Riaz, Ahmad Abdul Rehman and Muhammad Umer Rafiq, Advocates for Respondent No. 3.

Sahibzada Muzaffar Ali, Advocate for respondent-LDA.

Mr. Hassan Ijaz Cheema, A.A.G.

Date of hearing: 21.2.2024.

Judgment

In this petition, the petitioners are owners of a house off Zafar Ali Road, Gulberg-V, Lahore (the Petitioner No. 1). During these proceedings, the Petitioners No. 2, 3 and 5 withdrew their challenge and only Petitioners No. 1 and 4 sought to pursue the petition. This fact does not detract from the issues of law which are required to be decided upon by this Court.

1. The petitioners are aggrieved of the construction of an apartment building by Respondent No. 3 adjacent to the residential plot No. 29 (off Zafar Ali Road) Gulberg-V, Lahore. (The disputed building) In a nub, Respondent No. 3 has been granted permission by the Lahore Development Authority (LDA) Town Planning Wing for construction of a 14-Storey high-rise apartment building on the residential plot in question. As adumbrated a number of challenges have featured during the course of the oral arguments addressed by the learned counsel for the petitioners. At the heart of these proceedings is the promulgation of Lahore Development Authority Building and Zoning Regulations, 2019 (2019 Regulations) which were enacted pursuant to a change of policy by LDA for construction of apartment buildings at different locations within the jurisdiction of LDA. Apartment building has been defined in the 2019 Regulations as:

“Apartment building means a building containing more than two apartments sharing common stair case lift or access spaces”.

1. Mr. Ali Zafar, Advocate learned counsel for the petitioners based his challenge on a number of grounds which will be dealt with in seriatim.

2. The first ground invokes Regulation 10.3.3 of the 2019 Regulations which relates to multi-storey buildings and buildings of public assembly. Clause ‘g’ of Regulation 10.3.3 provides that:

“g. NOC from EPA

Subject to the provisions of Pakistan Environment Protection Act, 1997, every application concerning following buildings shall be accompanied by an EIA and a No Objection Certificate from EPA.

i. Industrial Buildings

ii. Hospitals

iii. Hotels

iv. Urban Development Projects

v. Complex of buildings on a plot of 20 Kanal or above LDA will conduct the EIA and cost which will be incurred on the study, shall be charged from the individual/owner at the time of approval of building plan.

vi. Residential Apartment(s), Education Institution(s), Restaurant(s) and hotels with height above 70 feet and area four Kanals and above.

1. On the strength of the above provision, the learned counsel for the petitioners stated that the disputed building falls in category ‘vi’ being a residential apartment building with a height of 70 feet and area of 4-Kanal and therefore would require an NOC from Environmental Protection Agency (EPA) and for an NOC to be had from EPA, the application must be accompanied by an EIA. This, according to the learned counsel, is a sina qua non to the sanctioning of any apartment building and since this condition has gone abegging, the construction of the disputed building cannot be continued under any circumstances.

2. Learned counsel for Respondent No. 3 and LDA confirmed that only an IEE was obtained for seeking sanction of building plan of the disputed building and according to them that was the only requirement and the construction of such buildings did not require an EIA for obtaining an NOC from EPA.

3. Clause ‘g’ of Regulation 10.3.3 begins with the words “subject to the provisions of Pakistan Environment Protection Act, 1997”. Therefore, the said clause and the pre-condition of an NOC from EPA has been made subject to the provisions of the 1997 Act. It would suffice that the subject of environment is now within the provincial domain and this is not a disputed fact. Consequently by the Punjab Environment Protection (Amendment) Act, 2012, necessary amendments have already been made to comport the 1997 Act for the purposes of Province of Punjab. The primary provision dealing with the requirements of Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA) have been provided in Section 12 of the 2012 Act which provides that:

4. Initial environmental examination and environmental impact assessment.--(1) No proponent of a project shall commence construction or operation unless he has filed with the Provincial Agency an initial environmental examination or where the project is likely to cause an adverse environmental effect, an environmental impact assessment, and has obtained from the Provincial Agency approval in respect thereof.

(2) The Provincial Agency shall--

(a) review the initial environmental examination and accord its approval, or require submission of an environmental impact assessment by the proponent; or

(b) review the environmental impact assessment and accord its approval subject to such conditions as it may deem fit to impose, or require that the environmental impact assessment be re-submitted after such modifications as may be stipulated, or reject the project as being contrary to environmental objectives.

(3) Every review of an environmental impact assessment shall be carried out with public participation and no information will be disclosed during the course of such public participation which relates to--

(i) trade, manufacturing or business activities, processes or techniques of a proprietary nature, or financial, commercial, scientific or technical matters which the proponent has requested should remain confidential, unless for reasons to be recorded in writing, the Director -General of the Provincial Agency is of the opinion that the request for confidentiality is not well-founded or the public interest in the disclosure outweighs the possible prejudice to the competitive position of the project or its proponent; or

(ii) International relations, national security or maintenance of law and order, except with the consent of the Government; or

(iii) matters covered by legal professional privilege.

(4) The Provincial Agency shall communicate its approval or otherwise within a period of four months from the date the initial environmental examination or environmental impact assessment is filed complete in all respects in accordance with the prescribed procedure, failing which the initial environmental examination or, as the case may be, the environmental impact assessment shall be deemed to have been approved, to the extent to which it does not contravene the provisions of this Act and the rules and regulations made thereunder.

(5) Subject to sub-section (4) the Government may in a particular case extend the aforementioned period of four months if the nature of the project so warrants.

(6) The provisions of sub-Sections (1), (2), (3), (4) and (5) shall apply to such categories of projects and in such manner as may be prescribed.

(7) The Provincial Agency shall maintain separate Registers for initial environmental examination and environmental impact assessment project, which shall contain brief particulars of each project and a summary of decisions taken thereon, and which shall be open to inspection by the public at all reasonable hours and the disclosure of information in such Registers shall be subject to the restrictions specified in sub-section (3).

1. At the outset, it may be reiterated that clause ‘g’ of Regulation 10.3.3 cannot be read in isolation and has been made subject to the provisions of 1997 Act (or 2012 Act) and it cannot be stated without fear of contradiction that an NOC from EPA requires an EIA as a pre-condition. For the purpose, the provisions of 2012 Act will have to be read in conjunction with clause ‘g’ of Regulation 10.3.3. A reading of Section 12 of the 1997 Act would, at first blush, indicate that an EIA is required where a project is likely to cause an adverse environmental effect. This is a general condition and considered literally, every project is likely to cause an adverse environmental effect and so would require an EIA for seeking an NOC from EPA. Sub-section (6) of Section 12 however makes it clear that the provisions of sub-sections (1), (2), (3), (4) and (5) shall apply to such categories of projects and in such manner as may be prescribed and the term ‘prescribe’ has been defined to mean “prescribed by rules or regulations”.

2. In this regard, learned counsel for Respondent No. 3 relied upon Pakistan Environmental Protection Agency (Review of IEE & EIA) Regulations, 2000 (2000 Regulations). These were also relied upon by the learned counsel for the petitioners to contend that the disputed building is one of the projects which require an EIA in terms of Regulation 4 which provides that:

“4. Project requiring an EIA

A proponent of a project falling in any category listed in Schedule II shall file an EIA with the Federal Agency, and the provisions of Section 12 shall apply to such project.”

1. Regulation 4, set out above, provides for the projects requiring an EIA. A proponent of a project falling in a category listed in Schedule II shall file an EIA with the Federal Agency and the provisions of Section 12 shall apply to such project. These Regulations are enacted pursuant to sub-section (6) of Section 12 of the 1997 Act and prescribe the projects which would require either an IEE or EIA. The reliance of the learned counsel for the petitioners was primarily on the projects mentioned against Serial No. J (2) which reads:

“(2) any other project likely to cause an adverse environmental effect”.

1. The above provision is a broad based provision and would include any project likely to cause an adverse environmental effect. This would however require a labeling of the project as such by the regulatory authority or an agency tasked with dealing with permissions to be granted for such projects. In individual cases it must be held by that agency regarding the impact likely to be caused by the project on the environment and thus requiring an EIA to be obtained. In my opinion, serial No. J of Schedule II to the 2000 Regulations does not help the cause of the petitioners, in that, by a circuitous route, instead of prescribing the category of projects which would require an EIA, a general provision has been made regarding projects likely to cause an adverse environmental effect. The ineluctable conclusion would be that such project will, in any case, have to be identified by the regulator or the agency and label them being ones which are likely to cause an adverse environmental effect. In the absence of prescribing such a category of projects, it cannot be argued that a certain project would require an EIA and must be made subject to the pre-condition given in clause ‘g’ of Regulation 10.3.3 of the 2019 Regulations. A similar question came up for determination before the Sindh High Court in a judgment reported as Standard Chartered Bank Limited through Constituted Attorney v. Karachi Municipal Corporation through Administrator and 9 others (2015 YLR 1303) and a Division Bench of Sindh High Court stated that:

“We turn to consider paragraph J:2. This appears to be a general or catch all provision: “Any other project likely to cause an adverse environmental effect”. At first sight, this seems reasonable enough. However, in our view, a closer look reveals a fundamental flaw. The reason is sub-section (1). It will be recalled that that requires an EIA to be filed in relation to a project that is likely to cause an adverse environmental effect. Thus, the categories of projects that are required to be set out in the regulations made pursuant to sub-section (6) are ipso facto those which are likely to have such an effect. Put differently, the very listing of a category of project in the second schedule indicates that (at least in the view of the environmental agency) it is likely to have an adverse environmental impact. Paragraph J:2 therefore tells us nothing. It has no substantive content. It is circular, simply referring back to its origination (sub-section (1)). Indeed, it may well be ultra vires the requirements of sub-section (6). This is so because the categories of projects that are required to be specified must be the projects that are or can be actually undertaken, and must therefore be those which can be identified or described by some measure other than their adverse environmental effect. This paragraph also therefore does not advance the petitioner’s case.”

1. Therefore, it is clear that for a project to require an EIA, it must be categorized as a project likely to cause an adverse environmental effect and this must have been done by LDA or EPA in the present case. Since it has not been done in respect of the disputed project, it cannot be argued that the disputed project required an EIA as a pre condition to the grant of an NOC by EPA. In the present case, IEE would suffice. This would also be the retort of an additional ground viz. that LDA does not require an EIA for such projects which run into hundreds and which are under construction in and around Lahore. Since the regulator did not mean this as a condition, it cannot be argued that Respondent No. 3 commenced the construction of the disputed building without fulfilling the conditions imposed by the regulator.

2. Learned counsel for the petitioners next referred to Regulation 11.1 which relates to height zones and prescribes the distribution of height zones. It has been stated by learned counsel for LDA that height zones have already been notified by LDA in terms of Regulation 11.1 and there is no rebuttal to this fact. A declaration of height zones has already been made and that declaration relates to residential apartments as well. It was further contended that the disputed building and its construction violates Regulation

11.3 which provides that:

“11.3. DECLARATION OF NEW ZONES

1. The Authority may prepare a height zone plan for an area to be known as height zone for High Rise, Medium Rise-1, Medium Rise-2, High Rise-1, High rise-2 for higher category of high rise to the declared category of high rise zones defined at 11.1

2. Height zones plan so prepared may comprise any one or more height zones.

3. Suffice to say that Regulation 11.3 is not engaged in this case and does not apply in the case of disputed building of the respondent. Regulation 11.3 comes into effect where LDA intends to prescribe higher category of high rise to the already declared category of high rise zones defined at 11.1.

This is merely a continuation of the permission granted by Regulation 11.2(2) which states that:

“Moreover, any zone may be raised to any higher height zone from time to time as per procedure and criteria laid in these regulations.”

1. Regulation 11.3 is the procedure and criteria which has been prescribed in case any zone is sought to be raised in to any higher height zone from time to time. Clearly, Regulation 11.3 is inapplicable in these cases.

2. Finally, the learned counsel for the petitioners contended that there has to be a 40 feet right of way in terms of Regulation 2.5 for the construction of disputed building. It is the case of the petitioners that 40 feet right of way has not been provided by the owners of the disputed building.

3. Regulation 2.5, while referring to the right of way, has used the expression, ‘ROW of Road. The term ‘right of way’ has been defined in the 2019 Regulations to mean:

“Right of way: means width of road /street between two opposite property lines”.

The term ‘property line’ has also been defined as:

“Property line: means the boundary wall of the plot”.

1. It is clear from the definitions above, that right of way would mean the width of the street between to opposite property lines. It does not mean merely the road on which vehicles are intended to ply. It will also include, in my opinion, footpaths for the passengers as also green areas which are required to be maintained outside the buildings by the owners. There is no rebuttal to the assertion that there is a 40 feet right of way between the property line of the disputed building and boundary wall of the opposite plot. Be that as it may, there is no contention that 40 feet right of way has to be maintained in the construction of Apartment buildings and since this requires a factual inquiry, LDA shall, at its own, ensure its compliance in letter and spirit. According to learned counsel for LDA a number of inspections have been made and the regulations have not been found to be violated by the owners of the disputed building. This is also evident from the reply submitted by TEPA which granted the approval and followed up with inspections in this regard.

2. Before I tear myself away, Regulation 10.3.3(g) begins with the words “Subject to the provisions of Pakistan Environment Protection Act, 1997,” (The Condition) and thereby engages the 1997 Act in its entirety. This part of Regulation 10.3.3.(g) travels beyond the primary enactment viz. The Lahore Development Authority Act, 1975. Such a condition could not be provided in the Regulations if the 1975 Act did not place such a clog. The decision to require an EIA or an IEE is for the LDA to make and Regulation 10.3.3(g) does in fact require an EIA, but for this condition. The policy regarding Apartment Buildings cannot be viewed in isolation and in the setting of one particular building only. The canvass has to be widened and the entire array of buildings being constructed and their impact on environment has to be at the heart of the policy. The Condition is a serious clog on such an effort and must be struck down. Consequently, LDA is directed to issue revised edition of 2019 Regulations by deleting the Condition. Henceforth any construction of an Apartment building would require an EIA and No Objection Certificate for EPA.

3. In view of the above, this petition is without merit and is dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 293

Present: Muhammad Sajid Mehmood Sethi, J.

Mst. QAMAR BIBI (Late) through her Legal Heirs--Petitioners

versus

SHAHAB-UD-DIN and another--Respondents

C.R. No. 233690 of 2018, heard on 28.2.2024.

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

----S. 151 & O.IX R. 6--Specific Relief Act, (I of 1877), Ss. 9, 12 & 54--Application for setting aside ex-parte decree--Dismissed--Appeal--Allowed--Suit was decreed--Direction to payment of balance sale consideration before trial Court--Execution of sale agreement was admitted by Respondent No. 1--Challenge to--Application under Order IX Rule 6 read with Section 151, CPC, moved by deceased applicant seeking setting aside of ex parte proceedings, to decree suit wherein she offered and showed her readiness to execute registered sale deed subject to deposit of remaining sale consideration--Trial Court, after thoroughly examining evidence adduced by parties had also noted that Respondent No. 1 had failed to prove that he contacted defendant for transfer of suit property and she refused to perform her part of obligation-- Respondent No. 1 did not opt to deposit balance amount in Court, which may help Court to establish that he was not at fault-- Respondent No. 1 had failed to prove his readiness to perform his part of obligation through any supporting evidence--Appellate Court did not bother to give any findings on issues distinctly and further did not seem to had examined every aspect of lis for recording its reasons to justify reversal of adjudication made by lower Court--Petition allowed.

[Pp. 297, 298 & 301] A, B, C, F & H

2020 SCMR 171, 2021 SCMR 1241, 2021 SCMR 1271, 2023 SCMR 1371, 2016 MLD 1255, 2023 SCMR 1652, 2019 YLR 1558, 2020 CLC 365, 2022 MLD 1439 ref.

Specific Performance--

----It is now well-settled that even where vendor refuses to accept sale consideration amount, vendee seeking a specific performance of agreement to sell is essentially required to deposit amount in Court.

[P. 298] D

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

----S. 24(b)--Specific performance of contract--Specific performance of a contract cannot be enforced in favour of a person who has become incapable of performing, or violates, any essential term of contract that on his part remains to be performed. [P. 298] E

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

----Art. 17(2)--Agreement to sell--It is settled law that an agreement to sell an immovable property squarely falls within purview of provisions of Article 17(2) of Qanun-e-Shahadat Order, 1984 and has to be compulsorily attested by two witnesses and this is sine qua non for validity of agreement. [P. 300] G

PLD 2011 SC 241, PLD 2015 SC 187, 2015 SCMR 1044, 2023 SCMR 344 ref.

Mr. Hyder Ali Khan, Advocate for Petitioners.

Ch. Zulfiqar Ali, Advocate for Respondent No. 1.

Mr. Ghulam Farid Sanotra, Advocate for Respondent No. 2 (petitioner in connected case i.e. C.R. No. 222680 of 2018).

Date of hearing: 28.2.2024.

Judgment

This consolidated judgment shall dispose of instant revision petition along with following connected petition as common questions of law and facts are involved in these cases:

C.R. No. 222680 of 2018 titled Muhammad Iqbal v. Shahab-ud-Din & others

1. These revision petitions are directed against judgment & decree dated 21.05.2018, passed by learned Additional District Judge, Lahore, whereby Respondent No. 1’s appeal against Trial Court’s judgment & decree dated 21.11.2015 dismissing Respondent No. 1’s suit for possession through specific performance of agreement to sell, was allowed and aforesaid suit was decreed.

2. Necessary facts of the case are that Respondent No. 1 filed suit for possession through specific performance of agreement to sell dated 02.04.2005 along with permanent injunction, which was contested by petitioner Mst. Qamar Bibi (since deceased) as well as Respondent No. 2 Muhammad Iqbal by way of filing their respective written statements. Trial Court, after framing issues, recording evidence and hearing arguments of learned counsel for the parties, proceeded to dismiss the suit to the extent of specific performance of agreement to sell, whereas decreed it to the extent that Respondent No. 1 was held entitled to recover earnest money of Rs.700,000/-from petitioner. In appeal filed by Respondent No. 1, learned Additional District Judge, vide judgment & decree dated 21.05.2018, set aside Trial Court’s decision dated 21.11.2015 and decreed Respondent No. 1’s suit for possession and specific performance of agreement to sell with permanent injunction in the manner that he was held entitled to get vacant possession of the suit property and transaction taken place during pendency of suit in favour of Respondent No. 2 Muhammad Iqbal vide registered sale deed No. 3774 dated 19.05.2008 was declared ineffective, Respondent No. 1 was directed to pay the balance sale consideration i.e. Rs.13,83,125/-within 30 days before Trial Court, in cash to be paid to petitioner, otherwise, appeal would be deemed to have been dismissed. Hence, these revision petitions.

3. Learned counsel for petitioner Muhammad Iqbal (Respondent No. 2 herein) submits that while decreeing the suit, the Appellate Court has misconstrued the contents of application under Order IX Rule 6 read with Section 151 CPC, filed by Mst. Qamar Bibi in suit for permanent injunction filed by Respondent No. 1, wherein she admitted execution of agreement to sell dated 02.04.2005, payment of earnest money of Rs.700,000/-and shown her readiness to execute sale deed upon payment of remaining consideration amount. He further submits that actually Respondent No. 1 never responded and showed his willingness to pay balance sale consideration inasmuch as aforesaid statement / ground could not have been relied upon to decree a subsequent suit, which ought to have been decided on its own merits. He adds that suit in hand was based upon mala fide intention, in order to prolong the litigation as such demonstrating zero readiness to make the balance payment for the purpose of getting sale deed registered. He contends that grant of decree of specific performance of agreement to sell is a discretionary relief, which can be withheld even if the execution of agreement to sell is proved. He argues that the Appellate Court must give reasons to differ with the findings of Trial Court, whereas, in the instant case, the Appellate Court has failed to adhere to the provisions of Order XLI Rule 31 CPC and has not given issue-wise findings. In support, he has referred to Jamil Akhtar and others v. Las Baba and others (PLD 2003 Supreme Court 494), Province of the Punjab through Collector District Khushab, Jauharabad and others v. Haji Yaqoob Khan and others (2007 SCMR 554), Pakistan Refinery Ltd., Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others (2019 SCMR 1726), Minhaj-ul-Islam Sabri through General Attorney v. Mrs. Soofia Munir and 7 others (2006 CLC 1352), Mst. Sikandar Jahan and 4 others v. Mst. Ghulam Zainab and 10 others (2013 CLC 228) and Syed Ayoob Ali Shah v. Mst. Rabia Begum (2013 CLC 419). Learned counsel for petitioners in this case has adopted the above arguments.

5. Conversely, learned counsel for Respondent No. 1 defends the impugned appellate judgment & decree by contending that Respondent No. 1 is bona fide purchaser of the suit property, who performed his part of the agreement, whereas it was petitioner Mst. Qamar Bibi (since deceased) who failed to do the needful and acted mala fidely by not receiving the remaining sale consideration. He maintains that when Mst. Qamar Bibi herself admitted in previous suit filed by Respondent No. 1 to execute sale deed after receiving the balance sale consideration, thus, the Trial Court should have decreed the suit in terms of Order XII Rule 6 CPC and Articles 81 and 113 of the Qanbun-e-Shahadat Order, 1984 instead of rejecting the plaint under Order VII Rule 11 CPC. He submits that the Appellate Court is not bound to render issue-wise findings in each and every case. In support, he referred to Abdul Karim v. Haji Noor Badshah (2012 SCMR 212), Mst. Sardar Begum & 5 others v. Muhammad Ilyas and another [PLJ 2013 SC (AJ&K) 340 (DB)], Miran Bakhsh through L.Rs. and 6 others v. Ali Muhammad (2013 MLD 142), Muhammad Bakhash and 2 others v. Inayat Bi and 13 others (2021 YLR 1562) and Iftikhar Ali and others v. Riaz-ul-Haq alias Riaz Ahmed and others (2023 YLR 854).

1. Arguments heard. Available record perused.

2. Admittedly, parties entered into agreement to sell dated 02.04.2005, earnest money of Rs.700,000/-was paid to Mst. Qamar Bibi (since deceased), the target date to finalize the transaction was 01.06.2005 and suit for specific performance of the agreement to sell was filed on 03.03.2007. The main stance of petitioners is that Respondent No. 1 could not arrange the remaining sale consideration within target date and also did not show his readiness to pay at any subsequent stage whereas the version of Respondent No. 1 is that Mst. Qamar Bibi (since deceased) was not willing to deliver possession of suit property and receive the sale consideration and lapse was on her part to perform her part of obligation. Record shows that earlier Respondent No. 1 filed suit for permanent injunction to restrain Mst. Qamar Bibi (since deceased) to further alienate the suit property, plaint whereof was rejected vide order dated 28.02.2007 with the observation that the said suit was not maintainable on the basis of agreement to sell as the proper form was to file suit for specific performance of agreement to sell. The moot point for determination by this Court is whether Respondent No. 1 expressed his willingness and readiness to pay the remaining sale consideration or the lapse was on the part of Mst. Qamar Bibi (since deceased).

3. The Appellate Court has mainly relied upon the contents of application under Order IX Rule 6 read with Section 151 CPC, moved by Mst. Qamar Bibi (since deceased) seeking setting aside of ex parte proceedings, to decree the suit wherein she offered and showed her readiness to execute registered sale deed subject to deposit of remaining sale consideration. Admittedly, said offer was not responded positively by Respondent No. 1 and owing to this lapse and previous conduct as highlighted in preceding paragraphs, the suit could not have been decreed in his favour. Learned Trial Court, after thoroughly examining the evidence adduced by the parties has also noted that Respondent No. 1 has failed to prove that he contacted Mst. Qamar Bibi/ defendant for transfer of the suit property and she refused to perform her part of the obligation. The relevant observations are reproduced as under:-

“9…. Regarding the remaining amount there is nothing on record which could suggest that the plaintiff was ready to pay the remaining amount and when the plaintiff is at fault or not paying the remaining consideration amount then the defendant is at liberty to sell the said suit property to anybody else. Furthermore, in his whole evidence he has failed to prove that he has contacted with the defendant for the transfer of the suit property and the defendant No. 1 was at default for non transferring the suit property. On the other hand from the whole available evidence it is clear that the plaintiff is at default of non payment of the remaining consideration amount, so under these circumstances as well as the case law submitted by the defendant, the plaintiff is not entitled for the relief of specific performance of contract…..”

1. It is evident that Respondent No. 1 did not opt to deposit the balance amount in the Court, which may help the Court to establish that he was not at fault. The available record also does not show that Respondent No. 1 ever made any positive attempt to pay the balance sale consideration to Mst. Qamar Bibi (since deceased) and she refused to accept the same. It is now well-settled that even where the vendor refuses to accept the sale consideration amount, the vendee seeking a specific performance of the agreement to sell is essentially required to deposit the amount in the Court, which demonstrates his/her capability, readiness and willingness to perform the obligation, which elements are missing in the instant case. Failure on the part of Respondent No. 1 to meet the said essential requirement disentitles him to the relief of specific performance. In these circumstances, there was no justification left with the Appellate Court to decree the suit and permit Respondent No. 1 to tender the balance sale consideration after a lapse of about 13-years. Reference can be made to Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another (2020 SCMR 171), Muhammad Yousaf v. Allah Ditta and others (2021 SCMR 1241) and Masood Ahmad Bhatti and another v. Khan Badshah and another (2024 SCMR 168).

2. Section 24 of the Specific Relief Act, 1877 details the contracts which cannot be specifically enforced and Section 24(b) provides that specific performance of a contract cannot be enforced in favour of a person who has become incapable of performing, or violates, any essential term of the contract that on his part remains to be performed. Respondent No. 1 has failed to prove his readiness to perform his part of obligation through any supporting evidence. Likewise, as per Section 54 of the Contract Act, 1908 when a contract consists of reciprocal promises, then second promise cannot be insisted to be done nor failure thereof can be claimed for damages or as a ground to fail the agreement unless it is established that the first promise was done. In this case, time was essence of the contract, the consequence was to be in accordance with the agreement but the Appellate Court has ignored this fact and further when fault was with the vendee-plaintiff he was absolutely not entitled for the discretionary relief in the shape of a decree for specific performance. Reliance is placed upon Muhammad Asif Awan v. Dawood Khan and others (2021 SCMR 1270), Muhammad Aslam and others v. Muhammad Anwar (2023 SCMR 1371) and Muhammad Ramzan v. Muhammad Ali and 13 others (2016 MLD 1255).

11. Needless to say that there is no provision in the Specific Relief Act, 1877, which casts any duty on the Court or requires the vendee to first deposit the balance sale consideration upon filing of the suit seeking specific performance of an agreement in respect of an immovable property. However, the relief of specific performance is discretionary and based on the principles of equity, thus, cannot be claimed as a matter of right. Therefore, the Court in order to ensure the bona fide of the vendee at any stage of the proceedings may put him to terms. Furthermore, such plaintiff is not only supposed to narrate in the plaint his readiness and willingness to fulfill his part of the agreement but also is bound to demonstrate through supporting evidence such as pay orders, Bank statement or other material, his ability to fulfill his part of the deal leaving no doubt in the mind of the Court that the proceedings seeking specific performances have been initiated to cover up his default or to gain time to generate resources or create ability to fulfill his part of the deal. It was , for this reason, mandatory for the plaintiff to prove that at the relevant time he had sufficient money to pay the remaining sale price . Another rationale behind is that invariably the value of money depreciates over time and that of land appreciates. Courts adjudicating such cases should not be unmindful of this reality and should endeavor to secure the interest of both parties. In a suit for specific performance of land, if the seller / vendor has refused to receive the sale consideration, or any part thereof, it should be deposited in Court and invested in some government protected security (such as Defence or National Savings Certificates); in case the suit is decreed the seller would receive the value of money which prevailed at the time of the contract and in case the buyer loses he can similarly retrieve the deposited amount. Reliance is placed upon Mst. Samina Riffat and others v. Rohail Asghar and others (2021 SCMR 7), Muhammad Jamil and others v. Muhammad Arif (2021 SCMR 1108) and Mst. Rehmat and others v. Mst. Zubaida Begum and others (2021 SCMR 1534).

12. Undoubtedly, execution of agreement to sell is admitted in the instant case and perhaps compliance of Article 17(2) read with Article 79 of the Qanun-e-Shahdat Order, 1984 is not required on the ground that admitted facts need not to be proved, however the observation of the Appellate Court that scribe could replace the requirements of producing other marginal witness is legally defective and hardly sustainable as for the grant of a decree plaintiff, inter-alia, has to prove the agreement to sell by producing two marginal witnesses. It is settled law that an agreement to sell an immovable property squarely falls within the purview of the provisions of Article 17(2) of the Qanun-e-Shahadat Order, 1984 and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity of the agreement. For the purposes of proof of such agreement involving financial obligation it is mandatory that two attesting witnesses must be examined by the party to the lis as per Article 79 of the Order ibid. Article 79 is reproduced hereunder for ease of reference:

“If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence.”

This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words “shall not be used as evidence” unmistakably show that such document shall be proved in such and no other manner. The words “two attesting witnesses at least” further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. Therefore, a scribe of a document can only be a competent witness if he has fixed his signature as an attesting witness of the document and not otherwise; his signing the document in the capacity of a writer does not fulfil and meet the mandatory requirement of attestation by him separately, however, he may be examined by the concerned party for the corroboration of the evidence of the marginal witnesses, or in the eventuality those are conceived by Article 79 itself not as a substitute. The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. Reliance is placed upon Rafaqat Ali v. Muhammad Farid and others (2007 SCMR 1083), Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241), Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 Supreme Court 187), Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044), Sheikh Muhammad Muneer v. Mst. Feezan (PLD 2021 Supreme Court 538) and Muhammad Ghaffar (Deceased) through LRs and others v. Arif Muhammad (2023 SCMR 344).

1. It is notable that the Appellate Court did not bother to give any findings on the issues distinctly and further did not seem to have examined every aspect of the lis for recording its reasons to justify reversal of the adjudication made by the lower Court. Moreover proper points of determination were also apparently not framed which was mandatory while reversing the findings of the Trial Court, thus, substantial compliance of provisions of Order XLI Rule 31, CPC has not been made. A judgment should discuss and cover all substantial points involved in the case and also should reflect that Court has scanned and examined the material available on record minutely as well as evidence adduced by the parties supported with relevant documents pragmatically. Compliance of Order XLI, Rule 31 C.P.C. is mandatory in its nature and the Appellate Court could not evade these provisions by taking divergent view on erroneous surmises and conjectural presumptions. Such a practice of the Appellate Court, if allowed, would frustrate the whole scheme of legislature by attributing redundancy to such mandatory provisions of law, which cannot be countenanced. Rationale behind said provision is that not only the party losing the case but the next higher forum may also understand what weighed with the Court in deciding the lis against it. Reliance is placed upon Muhammad Iftikhar v. Nazakat Ali (2010 SCMR 1868), Pakistan Refinery Ltd., Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others (2019 SCMR 1726), Muzafar Iqbal v. Mst. Riffat Parveen and others (2023 SCMR 1652), Saeed Ullah Khan v. Muhammad Khalid and 3 others (2018 CLC 648), Muhammad Yousuf through Legal Heirs and 6 others v. Abdul Jabbar Qureshi through Legal heirs and 18 others (2019 YLR 1558) and Ali Muhammad and 4 others v. Learned Additional District Judge -III, Dadu and 14 others (2020 CLC 365).

14. Learned counsel for Respondent No. 1 has referred to Order XII Rule 6, CPC and Articles 81 & 113 of the Qanun-e-Shahadat Order, 1984 to contend that in view of admission of Mst. Qamar Bibi (since deceased) in her application under Order IX Rule 6 read with Section 151, CPC (filed in Respondent No. 1’s suit for permanent injunction), the suit should have been decreed by the Trial Court binding Respondent No. 1 to pay the balance sale consideration. This argument is not tenable for the reasons: firstly, the admission was

conditional subject to payment of balance sale consideration, therefore, it was incumbent upon Respondent No. 1 to respond to said offer and make payment of balance sale consideration; and secondly, no doubt, Order XII Rule 6, CPC provides for powers of the Court to pass judgment on admissions but for returning such a judgment, the admission has to be clear, unambiguous, unqualified and unequivocal as held by the Hon’ble Supreme Court of Pakistan in the case reported as Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another (2020 SCMR 171) which is not the case here because Mst. Qamar Bibi (since deceased) asserted lapse on part of Respondent No. 1 to perform his part of the obligation and then made an offer to execute registered sale deed subject to payment of sale consideration. Furthermore, the Court when faced with such an eventuality has to exercise its discretion in a judicial manner, subject to qualification regarding maintainability of suit on any legal objection going to the very root of the matter. Needless to say that the Court can even require evidence regarding admission, in its discretion as provided by Article 113 of the Qanun-e-Shahadat Order, 1984. Reference can also be made to Zafar Ali v. Allah Bachayo (PLD 1989 Supreme Court 294) and Muhammad Zarin v. Amir Dil Khan and others (2022 MLD 1439).

1. The case law relied upon by learned counsel for Respondent No. 1, being on distinguishable facts and circumstances, is not applicable to the present scenario.

2. Resultantly, these revision petitions are allowed, impugned judgment and decree dated 21.05.2018 is set aside. Consequently, trial Court’s judgment and decree dated 21.11.2015 is restored.

(Y.A.) Petition allowed

PLJ 2024 Lahore 302

Present: Rasaal Hasan Syed, J.

MUHAMMAD AKRAM--Petitioner

versus

Haji ILAM DIN (deceased) through L.Rs and others--Respondents

W.P. No. 48863 of 2023, decided on 1.3.2024.

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

----O.XVI R. 1--Application for summoning record keeper--Dismissed--Revision petition--Allowed--Petitioner’s application to filing of list of witnesses was declined--Revision petition--Dismissed--No sufficient cause was shown by petitioner--Recording of evidence--Challenge to--Petitioner was unable to show any “sufficient cause” for permission to file a List of Witnesses which was not filed earlier within seven days of issues and no “sufficient cause” was shown to satisfaction of Court--Respondents sought indulgence of Court for summoning witness as a Court-witness to find out truth and to do complete justice between parties and revisional Court after considering that aspect, deemed it just and fair to allow production of record; which was an official record of Treasury--Order of ADJ did not suffer from any error of law and jurisdiction and being based on rule of fair, just and complete justice, does not call for any interference--Petition dismissed. [Pp. 309 & 310] C, D & E

1992 SCMR 1778 and 2016 CLC (N) 127 ref.

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

----O.XVI R. 1--Summon as witness--A party could not summon any person as a witness unless they are named in list of witnesses which could be filed within seven days. [P. 306] A

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

----O.XVI R. 1--Powers of Court--Proviso to Rule 1 of Order XVI, C.P.C. empowers Court to condone default in filing list of witnesses within seven days if “sufficient cause” or “good reason” is shown to exist.

[P. 306] B

Mr. Umar Farooq, Advocate for Petitioner.

Ms. Sabahat Rizvi, Advocate for Respondents.

Date of hearing: 14.2.2024.

Judgment

Petitioner in this constitutional petition has challenged order dated 15.7.2023 of the learned Addl. District Judge, Lahore whereby application to summon the Record Keeper of Treasury Office, District Lahore along with the record regarding stamp-paper at serial No. 409 dated 15.8.1998 issued by Muhammad Naeem, Stamp Vendor and for recording his statement as a Court-witness, was allowed by setting aside the order dated 18.1.2023 of the learned Civil Judge, Lahore, while accepting the revision petition.

1. Facts as will be relevant for disposal of this petition are that suit for specific performance titled Haji Ilam Din v. Ghulam Haider, etc. and another suit for specific performance and permanent injunction titled Muhammad Hanif v. Noor Muhammad were instituted and are pending in the civil Court in respect of land measuring 19 kanals and 16 marlas situated in Mauza Arainyan, Raiwind Lahore. Vide order dated 31.10.2019 both the suits were consolidated and consolidated issues were framed with the direction to the parties to file within seven days the list of witnesses and certificate of readiness to produce evidence. It is claimed that both the parties did not file list of witnesses after the framing of consolidated issues. On 20.1.2020 petitioner and his witnesses appeared in Court when objection was raised that list of witnesses was not filed and, therefore, their evidence could not be recorded. An application was moved by the petitioner claiming that list of witnesses having already been filed before the consolidation of suits may be treated as list of petitioner’s witnesses or alternatively the petitioner may be allowed to furnish fresh list of witnesses on the basis of additional issues framed by the Court. This application was declined vide order dated 01.2.2020. The order was challenged in revision which was also dismissed by the learned Addl. District Judge vide order dated 29.4.2021. These two orders were challenged before this Court in Writ Petition No. 30927 of 2021 which too was dismissed on 01.7.2021. It is claimed that an application under Order XVI, C.P.C. was filed on 24.10.2022 by defendant Nos. 3 to 9 (respondents herein) for summoning Record Keeper of Treasury Office, District Lahore along with record of stamp-paper at Serial No. 409 dated 15.8.1998 issued by Muhammad Naeem, Stamp Vendor which was opposed and declined by the learned Civil Judge vide order dated 18.1.2023. The respondents challenged the order in revision which was accepted by learned Addl. District Judge, Lahore vide impugned order dated 15.7.2023.

2. Learned counsel for the petitioner mainly argued that the list of witnesses having not been filed after the framing of additional issues by the petitioner, the permission to summon the Record Keeper of the Treasury, at this stage, could not be permitted in the absence of any good or sufficient cause which having not been shown, the order of the learned Civil Judge declining the application was justified and that interference in revision by the learned Addl. District Judge vide impugned order was contrary to the rule consistently laid by the superior Courts in terms whereof any party to the suit could not summon a witness not named in the list of witnesses which needs to be filed within seven days from the framing of issues; unless permission is solicited from the Court in terms of proviso to Rule 1 of Order XVI, C.P.C. by showing “good cause” which course having not been adopted in this case, the order of the learned Addl. District Judge in revision was unsustainable. It is added that the respondents being negligent in filing of the list of witnesses in time could not be allowed to by-pass the law and that the petitioner was not allowed to file list of witnesses after the framing of additional issues which order was sustained up to this Court and, therefore, the respondents could not be treated differently than treatment extended to the petitioner and that the rule of propriety demanded that the respondents should not have been permitted to summon the Record Keeper in the absence of any list of witnesses or “sufficient cause” for the delay in this context. Learned counsel relied on certain caselaw to emphasize that the superior Courts while considering the effect of Rule 1 of Order XVI, C.P.C. have consistently observed that the rule is mandatory and that no party can be taken by surprise and that the parties to a suit are under obligation to file a list of witnesses whom they want to summon through the process of Court and in case of failure to do so the Court is competent to grant permission for filing delayed list provided “sufficient cause” is established.

3. Learned counsel for the respondents contrariwise submitted that the documents were duly relied upon in the list of reliance submitted in Court under Order XIII, Rule 1, C.P.C. and Order VII, Rule 14, C.P.C. Referring to the certified copies of the list of reliance it was submitted that there was no element of surprise to the petitioner; rather the document was duly mentioned in the list of reliance. It was added that the petitioner Muhammad Akram himself appeared in the witness-box, recorded his oral statement and produced agreement to sell dated 15.8.1998 purportedly executed by Noor Muhammad son of Imam Din in favour of the petitioner which is Exh.D-1 in the suit titled Muhammad Hanif v. Noor Muhammad, etc. During cross-examination by the counsel for legal heirs of late Haji Ilam Din certain questions in regard to the agreement were put to Muhammad Akram petitioner who denied the same although he admitted that the stamp of Exh.D-1 bore Serial No. 409 but expressed lack of knowledge about the copy of the Form No. 409. He also denied the report of the Treasury in respect of the stamp-paper of Form No. 409. It was added that copy of the record of Stamp-Paper No. 409 dated 15.8.1998, purportedly agreement to sell in favour of Muhammad Akram son of Muhammad Shafi and report of Treasury of District Lahore dated 30.5.2019 showed that fraud was committed by the petitioner Muhammad Akram as the report was to the effect that the particulars of “register goshwara” for the years 1998 to 1999 when scrutinized revealed that stamp value of Rs. 10/-dated 15.8.1998 in favour of Ghulam Muhammad son of Shah Din resident of Lahore was entered. In view of the contradiction in the document provided by the petitioner, and its original entered in the stamp-paper goshwara, the respondent moved an application for summoning of the record of the Treasury Office, District Lahore in respect of Entry No. 409 dated 15.8.1998 issued by Muhammad Naeem, Stamp Vendor. Learned counsel submits that the contradictions in the two documents i.e. Exh.D-1 and the actual entries of endorsement in the record for sale of stamp will show that fraud was committed by the petitioner and that the stamp paper on which the agreement was prepared did not pertain to the petitioner and that the learned Civil Judge rejected the application without considering the objective of the application or noticing the material effect of the production of record on the fate of the case while the learned Addl. District Judge duly took into consideration the plea of the petitioner and rightly observed that the Court had the jurisdiction to call for the record if it is required to do justice and to determine the facts properly so as to reach the truth.

4. Submissions made by learned counsel for the parties have been given due consideration. It appears that initially the suits were tried separately and evidence was recorded. After their consolidation list of witnesses in respect of additional consolidated issues was not filed. Petitioner appeared in the witness-box and produced the agreement relied upon by him as Exh.D-1. Learned counsel for the Respondent Nos. 3 to 7, the legal heirs of deceased Haji Ilam Din, put serious questions to the witness in respect of the stamp entry of Exh.D-1. In cross-examination he admitted that the stamp Exh.D-1 was prepared on Stamp Paper No. 409 but he showed his ignorance as to the form (copy of which was put to him) for supply of stamp Exh.D-1. On being asked about the report of the Treasury Department as regarded entries qua Stamp No. 409, the petitioner denied that the Stamp No. 409 for issuance of stamp-paper was in the name of Ghulam Muhammad son of Shah Din. He also denied that the stamp was issued on 16.7.1998. Learned Addl. District Judge reversed the order of learned Civil Judge with the observation that the Court was fully cognizant and had jurisdiction to summon any person as Court-witness to receive evidence and allow the parties to produce the same so that complete justice could be done in the case.

5. As regards the objection of Order XVI, Rule 1, C.P.C. to the effect that a party could not summon any person as a witness unless they are named in the list of witnesses which could be filed within seven days, there is no cavil with the proposition. It is also true that proviso to Rule 1 of Order XVI, C.P.C. empowers the Court to condone the default in filing the list of witnesses within seven days if “sufficient cause” or “good reason” is shown to exist. In this case perusal of the application for summoning of Record Keeper with record of Treasury shows that the application was not filed under any specific rule rather title of the application shows that it was filed under Order XVI read with Section 151, C.P.C. and all other enabling provisions of law while at paragraph 5 of the application it was stated that the Record Keeper of Treasury Office, District Lahore along with the relevant record of stamp-paper Serial No. 409 dated 15.8.1998 be summoned for recording statement as a Court-witness. Same was the request in the prayer clause of the application. It is thus obvious that the production of the witness and the record was claimed as a Court-witness which obviously meant that the provision of Rule 14 of Order XVI, C.P.C. was attracted which mandates that where the Court at any time considers it necessary to examine any person other than a party to the suit and who is not called as a witness by a party in the suit, the Court may of its own motion cause such person to be summoned as a witness to give evidence or to produce any document in his possession, on a day to be appointed; and may examine such person as a witness or require him to produce such document. Rule 14-A of Order XVI, C.P.C. was inserted by the Lahore High Court Amendment which is to the effect that when a witness is summoned by the Court of its own motion under Rule 14 of Order XVI, C.P.C. their diet money, etc. will be paid by such party or parties as the Court may in its discretion, direct. It appears that the learned Civil Judge was simply persuaded by the fact that earlier an application was filed by the petitioner for permission to file a new list of witnesses after consolidation of suits which was declined vide order dated 01.2.2020, the order was affirmed in revision vide order dated 29.4.2021 by learned Addl. District Judge and also by this Court in W.P. No. 30927 of 2021 titled Muhammad Akram v. Noor Muhammad and others and, therefore, the respondent in this case should also decline to summon a witness not mentioned in the list, little appreciating that the Court itself had jurisdiction to allow any person’s statement or production of record even if the parties to the suit had not summoned such person or record and that the Court can exercise its power to record the statement as a Court-witness and, if need be, to allow production of evidence in rebuttal thereof. Learned Addl. District Judge did take note of this aspect of the matter which is reproduced for facility of reference:

“… it is necessary to refer that Court is competent to summon the witness keeping in view the importance and relevance of that piece of evidence so that justice could be done in the real sense and no one could be knocked out mere on technical ground. Stamp paper No. 409 dated 15.8.1998 is part of record, there, revision petitioner as alleged that it is a fake document, he produced the report of Record Keeper and want to summon him as a Court Witness so that the real fact could be unearth. It is sufficient to mention here that evidence proposed by the plaintiff is necessary to reach upon a just decision of the case. In such scenario the learned trial Court has not properly appreciated the record as well as the relevant law on the subject and has committed material illegality as well as irregularity while passing the impugned order, therefore, the instant revision petition is accepted and the impugned order is set aside and accordingly the application for summoning of record keeper filed by revision petitioner stands accepted….”

1. Perusal of the stance of the respondent as to the document produced by the petitioner being fake; to cross-examine the petitioner in respect of Exh. D-1; and the evasive reply received would make it obvious that the material fact as to whether the document was genuine or not in view of the report, if allowed to come on record, will be necessary to reach the truth for doing justice to the parties. It is for this reason that Rule 14 of Order XVI, C.P.C. empowers the Court to summon any witness for recording his statement or produce any document if need be for the just and fair decision of the case even if the parties to the suit had failed to produce them in the Court. It appears that the respondents being cognizant of the law, did not move the application under Rule 1 of Order XVI, C.P.C; rather the title of the application shows that it is under Order XVI read with Section 151, C.P.C. and all other enabling provisions of law. Even otherwise if had no particular provision of law been quoted, the Court will be fully empowered to determine as to which provision of law will attracted for the relief claimed in the application and mere fact that the prayer in the application was to summon the witness for their statement and to produce record of Treasury as a Court-witness was adequate to show that Rule 14 of Order XVI, C.P.C. will be attracted. In Zar Wali Shah v. Yousaf Ali Shah and 9 others (1992 SCMR 1778) it was observed to the effect that the Courts have ample power to collect evidence and allow the party to produce the same so that complete and ultimate justice is done in the case and that concept of filling any lacuna cannot be recognized and applied in the Islamic system of jurisprudence which is being progressively applied to the Courts and Tribunals that are vested with the powers to receive evidence. In Mst. Sardar Begum v. Zulfiqar Ali (2016 CLC Note 127) it was observed to the effect that the main object of Rules 1(2) and 14 of Order XVI, C.P.C. was that the entire evidence which was relevant and necessary for ascertaining truth and deciding the issues involved completely and effectively should come before the Court at the stage of trial while passing judgment and that merely on the pretext of non-submission of list of witnesses and non-mentioning of names of witnesses in the list of witnesses, the matter could not be thrown out of arena of litigation because same could be due to inexperience or lack of understanding on part of the counsel which omission amounted to “good cause”. Reference was made therein to the case of Agha Zahid Ali Hilali v. Muhammad Riaz and others (C.P. No. 1278 of 2013 decided on 23.9.2013) where it was observed as under:

“It is not disputed on the record that examination of scribe and stamp vendor in the litigation on going between the parties is imperative for the just decision of the case. Yes, the respondents did not mention the names of these witnesses in their list of witnesses but when during the course of cross examination, it was; suggested to Respondent No. 1 by the counsel for the petitioners that he failed to prove the document by not examining the scribe and the stamp vendor, he after having been set on his guards, proceeded to move an application for summoning of the aforesaid witnesses. This shows that omission to summon the witnesses owes its origin to either in-experience or lack of understanding on the part of the counsel or the party. Omission of this type was a good cause to all intents and purpose”

In the instant case the controversy was about the genuineness of the document produced as Ex.D-1 which according to respondents was prepared on a stamp-paper issued for a different person. The decision on the question would of course be relevant and helpful in determining the issue between the parties. It was in these circumstances that the learned Addl. District Judge allowed the revision petition to find out a truth for doing complete justice between the parties.

1. As regards the argument that the petitioner’s application under Rule 1, Order XVI, C.P.C. was dismissed and on that such premise the application of respondents should also have been declined; there is no substance in this argument for the reason that in the petitioners’ case he was unable to show any “sufficient cause” for permission to file a List of Witnesses which was not filed earlier within seven days of the issues and no “sufficient cause” was shown to the satisfaction of the Court. To the contrary in the instant case the respondents sought indulgence of the Court for summoning the witness as a Court-witness to find out truth and to do complete justice between the parties and the revisional Court after considering this aspect, deemed it just and fair to allow the production of record; which was an official record of the Treasury. The reasons that sustained with the learned Addl. District Judge being just and fair no except could be taken thereto. As to the objection of extending equal treatment, of course, the witness being summoned as a Court-witness to resolve the material controversy and to dig out the truth, both the parties will be allowed to cross-examine such witness and, if need be, to allow the petitioners an opportunity of evidence in rebuttal. The petitioners

shall, therefore, be fully protected. In view of the reasons supra the order of Addl. District Judge does not suffer from any error of law and jurisdiction and being based on rule of fair, just and complete justice, does not call for any interference.

1. Resultantly, the instant constitutional petition being devoid of any substance is dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 310 [Multan Bench Multan]

Present: Anwaar Hussain, J.

MalikMUHAMMAD ASHRAF--Appellant

versus

MUHAMMAD ASIF, etc.--Respondents

R.F.A. No. 258 of 2022, heard on 23.2.2024.

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

----O.XXXVII Rr. 1 & 2--Specific Relief Act, (I of 1877), S. 39--Issuance of guarantee cheque--Purchase of wheat--Cheque was dishonoured--Suit for recovery filed by respondent and suit for cancellation of cheque was filed by appellant--Consolidated judgment--Suit for recovery was decreed and suit for cancellation was dismissed--Criminal case regarding cheque was registered against appellant--Acquittal from charge--Due amount was cleared--No specific date was mentioned on cheque--Ignorance of evidence by trial Court--Challenge to--Impugned cheque was issued for discharge of obligation pertaining to a particular transaction in respect of which respondent had not given any specific date, amount was admittedly cleared--When amount due was cleared, there appeared to be no reason for issuance of impugned cheque in respect of same transaction-- Trial Court erred in appreciating crucial factual aspect of matter and documentary evidence had been erroneously ignored-- It is settled principle of appraising evidence that statement of a witness must be consistent with circumstances of case before same is believed and relied upon--Impugned cheque was lying with respondent side as guarantee on account of admitted business relationship of purchase of wheat to secure any balance due and despite receiving payment in respect of disputed transaction, impugned cheque had been misused--Trial Court has not correctly decided core issues, misread evidence on record and erred in decreeing suit of respondent and dismissing suit of appellant--Appeal allowed. [Pp. 314 & 315] A, B, C, D & E

Mr. Muhammad Masood Bilal, Advocate for Appellant.

Ch. Waqas Ahmad, Advocate for Respondents No. 1 and 3.

Proceeded ex-parte on 24.10.2022 for Respondent No. 2.

Date of hearing: 23.2.2024.

Judgment

This regular first appeal is directed against consolidated judgment and decree dated 08.03.2022 through which the suit for recovery of amount of Rs. 3,554,262/- on the basis of cheque, under order XXXVII Rules 1 and 2 of the Code of Civil Procedure, 1908 (“CPC”) instituted by Respondent No. 1 (“respondent”) has been decreed and the suit instituted by the appellant, for cancellation of the said cheque was dismissed.

1. By way of factual background, it has been noted that in plaint of his suit, the respondent averred that the respondent had good business relations with the appellant who used to purchase the agricultural products from the respondent and in furtherance of one such transaction, wheat was purportedly purchased in the year 2016 and the impugned cheque bearing CD No. 0093205 dated 05.12.2016 was issued, which, on presentation, was dishonoured. Criminal proceedings were also initiated in terms of registration of case under Section 489-F of Pakistan Penal Code, 1860. The appellant also filed a suit for cancellation of the impugned cheque with the averments that the cheque was issued to one Muhammad Altaf (Respondent No. 2) who was employee of the respondent, as a guarantee cheque for payment on account of the ongoing business transaction(s), and the specific transaction was fully paid in cash (Rs.16,250/-) and through voucher No. JRV 27 dated 05.12.2016 Rs. 3,538,113/-. It is case of the appellant that the impugned cheque was misused and therefore, liable to be cancelled. Both the suits were consolidated and after framing of the consolidated issues and recording of evidence adduced by the parties, the suit of the respondent was decreed, whereas, the suit of the appellant was dismissed.

3. Learned counsel for the appellant submits that the evidence has been misread inasmuch as during the criminal trial, in respect of the same cheque, the respondent appeared and categorically recorded his statement that payment in respect of the transaction underlying the issuance of the impugned cheque had been received by his above- referred Manager, Muhammad Altaf and this statement was brought on record as Exh.D-2 before the Trial Court and the respondent, when confronted with the said statement categorically acknowledged its correctness, therefore, documentary evidence available on record clearly depicted that the impugned cheque was issued as a guarantee cheque and was misused, hence, liable to be cancelled, which fact has escaped notice of the Trial Court.

4. Conversely, learned counsel for respondent has supported the impugned judgment and decree, whereas, Respondent No. 2 has been proceeded ex-parte on 24.10.2022.

5. Arguments heard. Record perused.

1. In the light of the factual matrix of the case, following points of determination can be formulated for opinion of this Court:

(i) Whether the appellant was able to rebut the presumption of correctness attached to the impugned cheque, issued by the appellant, by putting forth probable defence and leading credible evidence, shifting the burden upon the respondent to prove the issuance of cheque in respect of a particular transaction entered into by Muhammad Altaf- the Manager of the respondent? and

(ii) if the answer to above quoted question is in affirmative, whether the respondent was able to prove that the impugned cheque was not given as guarantee for clearance of any balance amount, due in favour of the respondent, on account of ongoing business dealings between the parties but was issued to clear the amount due in respect of the disputed transaction?

1. Admittedly, the signatures on the cheque are not denied. The crucial aspect of the matter is to ascertain whether the respondent received the amount due pertaining to a particular transaction that was admittedly entered by the appellant with Respondent No. 2/the Manager of the respondent, namely, Muhammad Altaf in respect of which the respondent claims that the impugned cheque was issued. There is also no denial that a criminal case was registered on the basis of the same cheque (and the transaction) and after a full-fledge trial, the appellant has been acquitted and the respondent admitted therein that payment in respect of the disputed transaction was cleared by the appellant. There is no doubt that standard of evidence to prove a civil case is different from the evidence required to convict an accused in a criminal case. In civil cases, it is preponderance of evidence on the basis of which a dispute is to be decided, however, it does not mean that the conclusion in civil cases based on same set of facts is drawn mechanically, ignoring the crucial piece of evidence available on record such as statement of the plaintiff during the criminal trial, having direct nexus with the dispute. Issues No. 1 and 4 were core issues and the same read as under:

2. Whether the plaintiff is entitled to decree for recovery of Rs. 3,554,262/- as prayed for? OPP

3. ……

4. ……

5. Whether the defendant is entitled to the decree for declaration/cancellation of cheque No. CD0093205 dated 05.12.2016, amounting to Rs. 3,554,362/- as prayed for? OPD

While deciding the said issues, against the appellant, the Trial Court has observed as under:

“18. ...... In the entire evidence brought in the witness box only one witness defendant Malik Muhammad Ashraf himself appeared as DW-1 whereas remaining documentary evidence was produced in the Court. The only single oral recorded witness of Malik Muhammad Ashraf had admitted the business transaction and named the impugned cheque as one of that guarantee and he further stated that same cheque was required to be returned since the same was issued as guarantee. In order to get the corroboration, independent witness was required to prove whether the same was guarantee cheque or not but no evidence was brought. Similarly, even in the single recorded oral evidence, this issue was not properly pressed and cancellation of cheque was not demanded in the evidence. Similarly, the documents were produced, according to which it has nowhere been written that the cheque was a guarantee cheque and it remained only oral assertion.”

1. The conclusion drawn by the Trial Court is erroneous as the appellant brought on record the documentary evidence in the form of statement of the respondent in criminal trial relating to the impugned cheque, which the respondent claimed to have been issued to clear the payment due in respect of the disputed transaction entered into by the appellant with the above referred Muhammad Altaf. Statement of the respondent in criminal case (Exh.D-1) reads as under:

"میری عمر 36 سال ہے میں زمیندارہ کرتا ہوں۔ میں نے کاروبار کیلئے آصف کے نام سے اپنی آڑھت بنائی ہوئی ہے۔ میں سالانہ دو کروڑ کا کاروبار کرتا ہوں جس کا میں ٹیکس ادا کرتا ہوں۔ میں نے اس سال

آڑھت کا کوئی ٹیکس نہ دیا ہے از خود کہا کہ سارے کاروبار کا مشتر کہ ٹیکس ادا کیا ہے۔ میں نے اس سال 4 کروڑ 75 لاکھ روپے سالانہ ٹیکس ادا کیا۔ میں اس ٹیکس کی رسید پیش کر سکتا ہوں۔ الطاف میرے ساتھ بطور مینجر کام کرتا ہے جس کی ماہانہ تنخواہ 25 سے 30 ہزار روپے ہے۔ اگر میں اپنی آڑھت پر کسی کو ادائیگی کر کے اپنے ووچر میں اندراج کروں تو اس کی قانونی حیثیت ہے تو وہ بندہ پیسے وصول کرنے والا دوبارہ اسی پیسے کا مطالبہ نہیں کر سکتا۔ میری آڑھت پر جو کھاتہ استعمال ہوتا ہے اگر اس میں کوئی رقم کا اندراج کیا جائے تو اس کی قانونی حیثیت ہے۔ اسی طرح تمام کار و باری لوگ بذریعہ کھاتہ یا واوچر جو لین دین کرتے ہیں اس کی قانونی حیثیت ہوتی ہے۔ یہ درست ہے کہ سودا الطاف کے ساتھ ہوا اور الطاف کو ملزم نے ادائیگی کی جس کا اندراج و او چر نمبر JRV27 مورخہ 05.12.2016 کیا گیا ہے"۔

(Emphasis provided)

Above quoted statement of the respondent (Exh.D-1) depicts that there might have been multiple transactions between the appellant and the respondent, in respect of the wheat and/or other agricultural products, however, it is well evident that the respondent claims that the impugned cheque was issued for the discharge of obligation pertaining to a particular transaction in respect of which the respondent has not given any specific date, however, the amount was admittedly cleared and the same was recorded in voucher No. JRV 27 dated 05.12.2016, which is precisely the stance/defence of the appellant in the present case. When the amount due was admittedly cleared, there appears to be no reason for issuance of the impugned cheque in respect of same transaction. Once the probable defence in the form of Exh.D-1 was available on record, it was for the respondent to prove that there was some other transaction between the respondent and the appellant that remained unpaid and the impugned cheque or the voucher dated 05.12.2016 was issued for the other transaction and not the disputed transaction. On a pointed question by this Court, learned counsel for the respondent acknowledged that nothing was available on record to substantiate that the impugned cheque was issued by the appellant for any other transaction entered into by the appellant and said Muhammad Altaf or the respondent. Therefore, this Court is of the opinion that the Trial Court erred in appreciating the crucial factual aspect of the matter and the documentary evidence (Exh.D-1) thereof has been erroneously ignored.

1. It is settled principle of appraising evidence that the statement of a witness must be consistent with the circumstances of the case before the same is believed and relied upon. The preceding discussion makes it amply clear that as on 05.12.2016 there was only one transaction, entered into between the appellant and Muhammad Altaf, Manager of the respondent, in respect of which the respondent claims that the impugned cheque was issued, however, the respondent side could not refute that the payment in respect of the said transaction was cleared through voucher dated 05.12.2016, which propels to conclude that the impugned cheque was lying with the respondent side as guarantee on account of the admitted business relationship of purchase of wheat to secure any balance due and despite receiving payment in respect of the disputed transaction, the impugned cheque has been misused.

2. In view of the above discussion, this Court is of the opinion that the Trial Court has not correctly decided the core issues, misread the evidence on record and erred in decreeing the suit of the respondent and dismissing the suit of appellant. Therefore, the present appeal merits acceptance and hence, allowed. As a natural corollary, the suit of the respondent is dismissed whereas the suit of the appellant is decreed. No order as to cost.

(Y.A.) Appeal allowed

PLJ 2024 Lahore 315

Present: Ali Zia Bajwa, J.

ALI MANSOOR--Petitioner

versus

AREA JUDICIAL MAGISTRATE, etc.--Respondents

W.P. No. 58171 of 2023, heard on 3.10.2023.

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

----S. 173--Pakistan Penal Code, (XLV of 1860), S. 489-F--Constitution of Pakistan, 1973, Art. 199--Punjab Police Rules, 1934, R. 24.7--Cancellation report--Rule 24.7 of Punjab Police Rules, 1934, deals with cancellation of criminal cases--It was incumbent upon Superintendent of Police to forward cancellation report after applying his independent mind--Office of Superintendent of Police in scheme provided in referred Rule is not merely a post office, rather is a vital importance to ensure fairness and transparency-- The literal connotation of Audi Alteram Partem is to “hear other side”--It signifies that every party to a cause shall get an opportunity of hearing, and no one shall go unheard--The maxum audi alteram partem is applicable to judicial, quasi-judicial and administrative proceedings--The principles of natural justice and fair-mindedness are grounded in philosophy of affording right of audience before any detrimental action is taken--Cancellation report prepared by investigating agency in that case did not show that signature or thumb impression of complainant was taken or he was informed regarding conclusion of investigation--Impugned order was non-speaking and same was passed without furnishing cogent and plausible reasons and providing an opportunity of hearing to complainant--The instant writ petition is allowed and impugned order passed by Magistrate Ist Class was hereby set aside--The case was remanded back to investigating agency for filing a fresh report under Section 173 Cr.P.C in accordance with law. [Pp. 317, 318, 319, 320, 321 & 322] A, B, C, D, E, K, L, N

PLD 2023 Lahore 233; PLD 2022 SC 119; 2005 SCMR 678 ref.

Audi Alteram Partem--

----The rule of justice embodied in maxim audi alteram partem is not confined to judicial proceedings but extends to quasi-judicial and administrative proceedings, too--All tribunals and administrative authorities while exercising quasi-judicial o administrative powers are also under an obligation to opt canons of judicial conduct.

[Pp. 318 & 319] F & G

PLD 1959 SC 45; 1994 SCMR 2232; 2022 SCMR 1583; 2023 SCMR 1189; 2023 SCMR 1319 ref.

Audi Alteram Partem--

----The principle of audi alteram partem is read in every statute as its integral part even if not explicitly provided therein. [P. 319] H

Punjab Police Rules, 1934--

----R. 25.57--Clause of Investigation-- Rule 25.57 of Rules which deals with closure of investigation and final report--This rule applies to all kinds of final reports prepared, under Section 173 of Code, at conclusion of an investigation. [Pp. 319 & 320] I & J

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

----S. 173--The guidelines to be followed in the future by all the concerned. [P. 321] M

Mr. Noraiz Shakoor, Advocate for Petitioner.

Mr. Shahid Nawab Cheema, Assistant Advocate General with Shahzad SP for State.

Mr. Sarfraz Akhtar, Advocate for Respondent No. 3.

Date of hearing: 3.10.2023.

Judgment

Through this constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter ‘the Constitution’), the petitioner has challenged the vires of the impugned order dated 18.07.2023 passed by Judicial Magistrate 1st Class, Model Town, Lahore, whereby the cancellation report prepared under Section 173 of the Criminal Procedure Code, 1898 (hereinafter ‘the Code’) in case FIR No. 1660/2022, dated 07.07.2022, offence under Section 489-F of the Pakistan Penal Code, 1860 (hereinafter ‘the PPC’), registered with Police Station Garden Town, District Lahore, was agreed with.

1. The brief facts that led to the filing of the instant petition are that after the initial investigation by the first investigating officer, the investigation of this case was changed and entrusted to DSP/SDPO Tibbi City Circle, Lahore, who recommended the case for cancellation, whereupon, the cancellation report was prepared by the Station House Officer (SHO), Police Station Garden Town, Lahore on 25.12.2022 and the same was forwarded through the Superintendent of Police (Investigation), Model Town Division, District Lahore. The record reflects that said cancellation report was transmitted to the Magistrate by the concerned Prosecutor, which was agreed with by the Magistrate Section 30 Model Town Courts, Lahore vide impugned order dated 18.07.2023.

2. Arguments heard. Record perused.

3. Rule 24.7 of The Punjab Police Rules, 1934 (hereinafter ‘the Rules’) deals with the cancellation of criminal cases. This rule envisages that no criminal case can be canceled without the order of a Magistrate of the 1st Class passed on a cancellation report duly submitted and forwarded by the concerned Superintendent of Police. The rationale behind this Rule is that a cancellation report in a criminal case should be filed through a senior supervisory officer to preclude the possibility of malpractice and arbitrariness on the part of the investigating officer. This precautionary measure has been provided in the Rules to ensure fairness and impartiality in the investigation process because if a cancellation report of a criminal case is agreed with by the concerned Magistrate, it amounts to the termination of that criminal case. It is incumbent upon the Superintendent of Police to forward the cancellation report after applying his independent mind, otherwise, the very purpose of Rule 24.7 of the Rules shall be defeated.[1] In the present case, the aforesaid Rule was not complied with in its true spirit. This fact was also admitted by the Superintendent of Police while submitting his reply before this Court that the cancellation report was forwarded without furnishing an independent opinion thereon. The learned Law Officer present before the Court frankly conceded that the cancellation report was forwarded without furnishing any opinion or reasons by the concerned Superintendent of Police. It goes without saying that the office of the Superintendent of Police in the scheme provided in the referred Rule is not merely a post office, rather is of vital importance to ensure fairness and transparency.

4. It is further surprising that the Magistrate, while passing the impugned order, observed that there is no mandatory requirement to hear the complainant before passing an order on the cancellation report. No doubt that while agreeing with a cancellation report Magistrate acts on the administrative side but I am afraid that such findings by the Magistrate are against the dictates of law and violative of the principle of natural justice ‘audi alteram partem’. In particular, the rule expressed in the Latin maxim audi alteram partem requires no more than that the decision-maker should afford all the parties to a dispute an opportunity to present their case. The literal connotation of Audi Alteram Partem is to “hear the other side”. It signifies that every party to a cause shall get an opportunity of hearing, and no one shall go unheard. The maxim Audi Alteram Partem is derived from the Latin phrase “audiatur et altera pars” which means that every party shall be heard. This maxim is one of the foundational rules of law that ensures justice for both sides. According to this maxim, every party shall have a chance to assert and plead his case.

5. The maxim audi alteram partem is applicable to judicial, quasi-judicial and administrative proceedings. The principles of natural justice and fair-mindedness are grounded in the philosophy of affording the right of the audience before any detrimental action is taken. The decision maker has an adequate amount of decision- making independence and the reasons for the decision arrived at should be amply well-defined, just, right and understandable, so as to ensure justice according to the tenor of law and without any violation of the principle of natural justice. The rule of justice embodied in the maxim audi alteram partem is not confined to judicial proceedings but extends to quasi-judicial and administrative proceedings, too. In Chief Commissioner, Karachi and another vs. Mrs. Dina Sohrab Katrak

6. PLD 1959 SC 45 a Full Bench of the Supreme Court of Pakistan speaking through worthy Justice Shahabuddin authoritatively observed as infra:

“As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of a judicial proceeding though administrative in form ……….”

It is now beyond doubt that all the tribunals and administrative authorities while exercising quasi-judicial or administrative powers are also under an obligation to opt the above canons of judicial conduct. Thus, Lord Hewart’s dictum in Rex vs. Sussex Justices[2] that “justice should not only be done but should manifestly and undoubtedly be seen to be done” is realized largely in its application to administrative adjudication.[3] Further reliance in this regard can be placed on the cases titled “Mrs. Anisa Rehman vs. P.I.A.C. and another – 1994 SCMR 2232”, “Inspector General Of Police, Quetta and another vs. Fida Muhammad and others – 2022 SCMR 1583”, “Habib Bank Limited through Attorney vs. Mehboob Rabbani – 2023 SCMR 1189” and “Collector Customs , Model Customs Collectorate, Peshawar vs. Muhammad Ismail and others – 2023 SCMR 1319”.

1. The principle of audi alteram partem is read in every statute as its integral part even if not explicitly provided therein. It was ruled by the Supreme Court of Pakistan that “even in absence of any express provision in the statute, the principle of audialteram partem is to be read into the relevant provision and applies in proceedings where adverse action is being considered to be taken against a person or if the contemplated action is going to affect any of his vested rights. The violation of this principle vitiates the proceedings and makes the action taken therein to be illegal, as the violation of this principle is considered as a violation of law.”[4]

2. It is also pertinent to refer to Rule 25.57 of the Rules which deals with the closure of the investigation and final report. It provides the procedure to be opted to inform the complainant by the investigating officer when a case is recommended for cancellation. For better understanding afore-referred Rule has been reproduced hereinafter:

25.57(1)

(2)

(3) If the informant is present when the final report is prepared, he shall be informed verbally of the result of the investigation and, after noting this fact in the final report, his signature or thumb mark shall be taken on it. If the informant is not present, he shall be informed in writing by postcard or by the deliver of a notice by hand, and the fact that this has been done shall be noted in the final report.

In final (untraced or cancelled) reports the facts of the case which the investigating officer believes to be correct should be summarised, together with the grounds, for his belief. Information so recorded should be utilised for the completion of preventive records.

A bare reading of the above-stated Rule makes it amply clear that this Rule applies to all kinds of final reports prepared, under Section 173 of the Code, at the conclusion of an investigation. It also includes a cancellation report and makes it mandatory for the investigating officer to inform the complainant of the conclusion/result of the investigation. His signature or thumb impression shall be taken on the final report. If the informant/complainant is not present, he shall be informed in writing by postcard or by the delivery of a notice by hand, and the fact that needful has been done, shall be noted in the final report. This Court observes that in addition to the abovementioned modes of informing the complainant, the investigating agency can take benefit of the modern ways of communication to show its fairness and transparency. Such a process should be reflected in the final report and relevant police diary.

1. The cancellation report prepared by the investigating agency in this case does not show that signature or thumb impression of the complainant/informant was taken or he was informed regarding the conclusion of the investigation which is violative of the aforementioned Rule and reflects mala fide on the part of the investigating officer. It is an axiomatic principle of law that when law requires a thing to be done in a particular manner, it should be done in that manner or not at all.

2. It has been further noticed that the impugned order is non-speaking and the same was passed without furnishing cogent and plausible reasons and providing an opportunity of hearing to the complainant. Moreover, the concerned Magistrate without taking notice of the fact that the report was not forwarded to him in accordance with the law, agreed with the same. When confronted with the above legal proposition, the learned counsel for the Respondent No. 3 candidly submits that he has no objection if the impugned order is set aside and the matter is remanded back to the investigating agency. Before parting with the judgment, it shall be appropriate to formulate the guidelines for the investigating agency, concerned prosecutors and Magistrates regarding the preparation, forwarding and dealing with a cancellation report in connection with a criminal case. The following are the guidelines to be followed in the future by all the concerned: -

I. When an investigating officer intends to close the investigation and prepares a report under Section 173 of the Code including a cancellation report, he shall inform the complainant/ informer, and his signature or thumb impression should be taken on that report in accordance with the Rule 25.57 of the Rules.

II. All the reports prepared under Section 173 of the Code shall reflect that the needful was done and Rule 25.57 of the Rules was complied with in its letter and spirit. In addition to modes as provided in the aforementioned Rule to apprise the complainant/informer regarding the closure of the investigation and its result, modern ways of communication should also be utilized.

III. The cancellation report prepared in every criminal case shall be forwarded by the Superintendent of Police concerned, who shall forward the same furnishing his independent opinion/reasoning to agree with the same. Guidelines already provided in the case titled Ehsan Ullah Chaudhry vs. The State, etc. – PLD 2023 Lahore 233 must be adhered to.

IV. No prosecutor shall forward a cancellation report to the concerned Magistrate if the same is not duly forwarded/endorsed by the concerned Superintendent of Police. The concerned prosecutor should also forward the report while furnishing his independent opinion.

V. The Magistrate, before adjudicating upon a cancellation report, must issue notice to all the concerned to provide them an opportunity for hearing to meet the requirement of the principle of natural justice audi alteram partem.

1. For what has been discussed above, the instant writ petition is allowed and the impugned order passed by Magistrate 1st Class Model Town Courts, Lahore dated 18.07.2023 is hereby set aside. The case is remanded back to the investigating agency for filing a fresh report under Section 173 Cr.P.C. in accordance with the law. It is expected that the investigating agency and prosecution shall comply with the mandatory provisions of law in the future.

Copy of this judgment shall be sent to all the concerned through the office of the Registrar of this Court.

(KQB) Petition allowed

[1]. Ehsan Ullah Chaudhry vs. The State, etc. – PLD 2023 Lahore 233.

[2]. [1924] 1 K.B. 256, 25.

[3]. Natural Justice and Reasoned Decisions authored by A. Chatterji published in Journal of the Indian Law Institute, APRIL-JUNE 1968, Vol. 10, No. 2 (APRILJUNE 1968), pp. 241-258.

[4]. Justice Qazi Faez Isa and others vs. President of Pakistan and others – PLD 2022 SC 119 and Hazara Improvement Trust vs. Qaisra Elahi – 2005 SCMR 678.

PLJ 2024 Lahore 322 [Bahawalpur Bench, Bahawalpur]

Present: Ahmad Nadeem Arshad, J.

FALAK SHER, etc.--Petitioners

versus

HASHMAT BIBI, etc.--Respondents

W.P. No. 3631 of 2015/BWP, heard on 21.2.2024.

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

----S. 12(2)--Application for setting aside decree--Rejected--Revision--Dismissed--Concurrent findings--Suit for possession through pre-emption--Statement of compromise by counsel for petitioner during post remand proceedings--Suit was decreed--No authority given by petitioner to their counsel for statement of compromise--Default in payment of remaining sale consideration--Zar-i-Punjum was not withdraw by petitioners--No evidence of compromise--Neither respondents deposited remaining consideration amount within stipulated period in Court nor petitioners had withdrawn Zar-i-Punjum--There was no evidence on that petitioners tried to withdraw amount deposited by respondents, any compromise was affected between parties--Neither any terms and conditions of said compromise were reduced into writing nor produced before Court--The petitioners engaged Mirza Atta Ullah Qamar Advocate to pursue their case diligently and efficiently--They never authorized him to make any statement of compromise or to get suit decreed on basis of compromise-- Therefore, statement made by petitioners’ counsel was not binding upon them--Courts below committed illegality while dismissing application of petitioners under Section 12(2) C.P.C--The Courts below had not applied their judicial mind and decided matter on surmises and conjectures--Petition accepted.

[Pp. 328, 330 & 333] A, B, C & D

2001 SCMR 1700, PLD 2002 SC 71, 2005 SCMR 1121 and 2008 SCMR 896 ref.

Mr. Asif Imran Teja, Advocate for Petitioners.

Sheikh Irfan Karim-ud-Din, Advocate for Respondents.

Date of hearing: 21.2.2024.

Judgment

Through this Constitutional Petition, petitioners assailed thevires of judgments and memos of cost of the Courts below whereby their application under Section 12(2) C.P.C. was dismissed concurrently.

1. Facts in brevity are that predecessors of the respondents namely Abdul Ghaffar and Abdul Sattar instituted a suit for possession through pre-emption on 10.03.1990 against the petitioners before the Court of Civil Judge 1st Class, Haroonabad, Camp at Fortabbas and pre-empted the sale affected through mutation No. 85 dated 12.03.1989 whereby land measuring 85 Kanals was sold by Alam Khan s/o Langar Khan to the petitioners for a consideration of Rs. 23,000/-; that suit was resisted through filing contesting written statement on 01.10.1990; that learned Trial Court, keeping in view divergent pleadings of the parties framed necessary issues on 29.10.1990; that the learned Trial Court transmitted the file to the District Judge Bahawalnagar for onward entrustment as parties posed lack of confidence; that file was received on 05.03.1991 and on behalf of the plaintiffs Sheikh Karim- ud-Din Advocate submitted his power of attorney, whereas, on behalf of the defendants Muhammad Iqbal Sohail, Advocate submitted power of attorney; that the case was entrusted to the Court of Civil Judge 1st Class, Bahawalnagar, with direction to the parties to appear before the said Court on 09.03.1991; that thereafter on behalf of defendants Vakalatnama was filed by Mirza Atta Ullah Qamar Advocate on 27.04.1991; that plaintiffs’ oral as well as documentary evidence was completed on 19.10.1991 and the case was adjourned for evidence of the defendants; that defendants moved an application on 07.01.1992 under Order VII Rule 11 C.P.C. for rejection of plaint; that plaintiffs filed its contesting written reply on 07.03.1992; that the learned Trial Court allowed the same by rejecting the plaint vide order dated 28.02.1993 and resultantly the suit was dismissed vide decree dated 28.02.1993; that feeling aggrieved, plaintiffs preferred an appeal which was dismissed vide judgment & decree dated 12.02.1996; that plaintiffs assailed both the decrees before this Court through filing revision petition (C.R. No. 525 of 1994/BWP) which was allowed by this Court vide order dated 15.06.1999 and the matter was remanded to the learned Trial Court in the following terms:

“In this view of the matter, the impugned order is set-aside and the case is remanded to the learned Civil Judge with the direction that he should complete the evidence and decide the suit in toto by attending to the issue involved including the issue of limitation.”

That after remand of the case, defendants concluded their oral evidence on 05.11.2002 and closed their documentary evidence on 08.11.2002; that the Court vide order dated 08.11.2002 adjourned the matter to 19.11.2002 for rebuttal evidence; that case was adjourned 17 times for one pretext or other and lastly it was adjourned to 22.06.2004 for rebuttal evidence with warning of last opportunity; that on 22.06.2004 when the case was fixed for rebuttal evidence of the plaintiffs, learned counsel for the defendants namely Mirza Atta Ullah Qamar appeared and maintained that compromise has been affected between the parties and defendants have no objection to decree the suit; that in the light of said statement, the learned Trial Court decreed the suit subject to payment of remaining consideration amount of Rs. 18,400/- within a period of 30-days with the caution that if plaintiffs failed to pay the remaining consideration amount, the suit would be deemed to be dismissed; that the defendants, who are petitioners of instant petition, challenged said statement of their counsel, judgment & decree by moving an application on 18.01.2005 under Section 12(2) of the Code of Civil Procedure, 1908 with the contention that respondents/plaintiffs obtained the decree through fraud and mis-representation as neither any compromise has been affected between the parties nor they gave any authority to their counsel to get the suit decreed through compromise; that the respondents contested the application through filing written reply wherein they raised certain preliminary objections and specifically pleaded that the suit was decreed on the instructions of petitioners; that the learned Trial Court, in the light of divergent stances of the parties framed necessary issues and invited them to produce their evidence in support of their respective stances; that learned Trial Court, after recording evidence of the parties pro & contra, oral as well as documentary, dismissed the application vide judgment & memo of cost dated 06.10.2012; that feeling aggrieved, the petitioners assailed said order through filing a revision petition which also met the same fate and dismissed by the learned Revisional Court vide judgment/memo of cost dated 02.05.2015. Being dissatisfied, the petitioners approached this Court through instant Constitutional Petition.

1. Learned counsel appearing on behalf of the petitioners inter- alia contends that impugned judgments & memos of cost are against the facts & law and result of mis-reading and non-reading of evidence. He adds that respondents instituted suit for possession through pre-emption which was hotly contested by the petitioners and after conclusion of trial there was no occasion to make compromise with them and get decreed their suit in the year 2004 for a consideration of Rs. 23,000/- which was paid in the year 1989. He further maintained that the petitioners neither compromised with the respondents nor gave any authority to their counsel to make statement of compromise before the learned Trial Court. He also argued that respondents with collusion of their counsel got decreed their suit by playing fraud with the petitioners and prayed for acceptance of this petition, setting aside of judgments dated 06.10.2012 & 02.05.2015 and as a consequence thereof setting aside of impugned judgment & decree dated 22.06.2004.

4. Conversely, learned counsel representing the respondents vehemently opposed the contentions of learned counsel for the petitioners and defended the impugned judgments & memos of cost by maintaining that there is no denial to the fact that petitioners engaged Mirza Atta Ullah Qamar, Advocate as their counsel, who represented them for 11 years and they did not pose any lack of confidence upon him; that being attorney of petitioners said Advocate had authority to make statement of compromise and get the suit decreed. In last, he prayed for dismissal of this petition.

1. I have heard learned counsel for the parties at full length and perused the record with their able assistance.

2. Admittedly, respondents instituted a suit for possession through pre-emption on 10.03.1990 whereby they pre-empted the sale affected through mutation No. 85 dated 12.03.1989. It is matter of record that said suit was hotly contested and matter went upto this Court and after remand affirmative evidence of the parties was completed. After the longstanding period of 14 years when the case was fixed for rebuttal evidence, the case was decreed on the statement of learned counsel for the defendants (petitioners). Petitioners challenged said judgment & decree on the grounds of fraud and mis-representation by maintaining that neither they compromised with the respondents nor they gave any authority to their counsel to make any statement of compromise and got decreed the respondents’ suit.

3. Petitioners specifically pleaded their stance in para No. 3 and para No. 8 of their application under Section 12(2) C.P.C. which is reproduced in verbatim as under:

“یہ کہ سائلان / مدعا علیہم اچانک ایک رشتے دار کی فوتیدگی کی وجہ سے مورخہ 22/06/04 کو عدالت جناب والہ میں نہ آسکے نہ ہی مسئول علیہ نمبر 3 کو یہ ہدایت دی کہ ان کے ہمراہ مدعیان / مسئول علیہم 1-E to 1-A سے راضی نامہ ہو چکا ہے۔ مسئول علیہ نمبر 3 نے بلا رضامندی سائلان عدم حاضری لاعلمی مدعا علیہم ہمراہ مدعیان ساز باز ہو کر محض لالچ دنیاوی و طمع نفسانی کے پیش نظر خلاف مفاد سائلان بیان راضی نامہ مورخہ 22/6/2004 قلمبند کر وا دیا ہے۔”

"سائلان نے کبھی بھی مسئول علیہم 1-A to 1-E و دیگر رشتے داران مسئول علیہم کے ساتھ راضی نامہ نہ کیا ہے نہ ہی مسئول علیہ نمبر 3 کو راضی نامہ کرنے کی ہدایت و اختیار دیا ہے۔"

Respondents, in their written reply pleaded as under:

"کونسل سائلان نے فریقین کے راضی نامہ کے مطابق بیان قلمبند کرا کر دعویٰ ڈگری کرایا تھا۔ سائلان اپنے کو نسل کے بیان کے پابند ہیں۔ سائلان اب راضی نامہ سے منحرف ہو گئے ہیں۔ سائلان سے کوئی دھو کہ یا فراڈ نہ ہوا ہے"۔

1. The learned Trial Court reduced the said controversy in the following terms:

2. Whether judgment & decree dated 22.06.2004 is result of fraud? OPA

3. Whether learned counsel for the petitioners in the original suit/Respondent No. 3 gave statement in the Court on the direction of petitioners and petitioners are bound by the statement of their counsel, this petition is false and frivolous and respondents are entitled to get special costs? OPR

4. It is matter of record that when the case was transferred to the Court of Civil Judge, Bahawalnagar, Muhammad Iqbal Sohail, Advocate submitted his power of attorney on behalf of the defendants on 09.03.1991. Thereafter, without cancelling the earlier power of attorney a fresh Vakalatnama was filed from defendants side by Mirza Atta Ullah Qamar Advocate on 27.04.1991. It means that defendants were being represented by two counsel on 22.06.2004 but only Mirza Atta Ullah Qamar, Advocate, got recorded the statement on the said date. Petitioners, in their petition, alleged that said Mirza Atta Ullah Qamar Advocate with the collusion of respondents made a fraud with them by getting the suit of respondents decreed. Petitioners impleaded said Mirza Atta Ullah Qamar, Advocate, as Respondent No. 3 in his application under Section 12(2) C.P.C. Said Advocate was served personally who appeared before the Court on 05.12.2012 and prayed for an adjournment to file written reply but he failed to file the same on 04.01.2006, 13.02.2006 and 13.03.2006. On 13.03.2006 he absented from the proceedings, hence, ex-parte proceedings were initiated against him. Thereafter, he died, therefore, his statement could not be recorded and his stance could not come on record.

10. Before further discussion, it is better to see the proceedings conducted on 22.06.2004 and judgment passed on it.

22-06-2004”

“کو نسل فریقین حاضر - امروز آخری موقع برائے تردیدی شہادت مدعیان تھا۔ کو نسل فریقین بیانی ہیں کہ مابین فریقین راضی نامہ ہو گیا ہے۔ اس نسبت بیانات قلمبند کرانا چاہتے ہیں۔ بیانات قلمبند ہوں۔ بیان ازاں مرزا عطاء اللہ قمر ایڈووکیٹ، کونسل مدعا علیہم نمبر 1 تا 4۔

بلا حلف بیان کیا کہ مابین فریقین راضی نامہ ہو گیا ہے۔ حسب ہدایت موکلان دعوی مدعیان ڈگری کیے جانے پر اعتراض نہ ہے بشر طیکہ خرچہ مقدمہ بذمہ فریقین رہے۔ سنکر درست تسلیم کیا۔”

1. At the margin of the order-sheet, his signature is available. At the end of his statement, the learned Trial Court also written as under:

“بیان کونسل”

1. Although said words are written but neither statement of learned counsel for the plaintiffs was recorded nor his signature was obtained at the margin of order-sheet. Admittedly, at the time of recording of said statements neither plaintiffs nor defendants were in attendance before the Court as signatures or presence has not been marked anywhere in that order. Although, the learned Trial Court described that counsel for the parties wanted to get record their statement but neither statement of learned counsel for the plaintiffs was recorded nor his signature was available on the margin of order- sheet which reflects that said counsel was also not available at that time. In the light of statement of Mirza Atta Ullah Qamar Advocate the learned Trial Court passed the order in the following terms:

“In the light of statement of the learned counsel for the defendants, Mirza Atta Ullah Qamar, the instant suit for recovery of possession through pre-emption is decreed in the favour of the plaintiffs on the basis of compromise arrived at between the parties. The 1/5th of the suit transaction i.e. Zar-i-Punjum Rs. 4600/- has already been deposited in the Court. In addition to the already deposited Zar-i-Punjum, the plaintiff would deposit further Rs. 18,400/-, the remaining sale price in the Court within one month from today which the defendants would be entitled to receive and subject to above condition, the suit is decreed in favour of the plaintiffs, otherwise the suit of the plaintiffs would be deemed to be dismissed. Parties to bear their own cost.”

1. It is matter of record that neither respondents/plaintiffs deposited the remaining consideration amount within stipulated period in the Court nor petitioners had withdrawn the Zar-i-Punjum. There is no evidence on record to suggest that petitioners tried to withdraw the amount deposited by the respondents. Had there been any compromise affected between the parties, the petitioners would definitely have withdrawn as that said amount in the year 2004 was having substantial value.

14. Petitioners specifically pleaded in their application that neither any compromise has been affected between the parties nor they gave any authority to their counsel to get recorded the statement of compromise and decree the suit. The suit remained pending for about 14 years and it was hotly contested by the petitioners. In one round of litigation, the matter went upto this Court. It is strange that petitioners compromised the suit after lapse of 14 years when evidence of the parties had already been completed and the matter was fixed for rebuttal evidence of the respondents. It is also noted that alleged compromise had been affected without settling any terms & conditions and without reducing said terms and conditions in writing. Petitioners purchased the property measuring 85 Kanals through mutation No. 85 dated 12.03.1989 for a consideration of Rs. 23,000/- and the same was allegedly decreed to the respondents in the light of alleged compromise for the same consideration i.e. Rs. 23,000/- in the year 2004 after lapse of 15 years. Admittedly, price of the properties were enhanced with the passage of time.

1. The suit was decreed on the sole statement of petitioners’ counsel namely Mirza Atta Ullah Qamar, Advocate. Petitioners denied the fact regarding giving any authority to their counsel to make any statement of compromise, whereas, the stance of the respondents is that the said counsel was having such authority. As discussed earlier, stance of the Mirza Atta Ullah Qamar could not be brought on record either in the form of written reply or through his statement. Later on, he died. In this regard, the material document was the Vakalatnama executed in favour of Mirza Atta Ullah Qamar Advocate by the petitioners. Although, it was duty of the respondents to bring on record said Vakalatnama in their evidence as onus of proving issue No. 2 was placed upon them but none of the parties brought the same Vakalatnama on record. In order to reach a just conclusion, this Court summoned the original file of suit titled “Mst. Hashmat Bibi etc. V. Falak Sher, etc.” wherein said Vakalatnama is available. Through said Vakalatnama, petitioners engaged Mirza Atta Ullah Qamar Advocate on the following terms:

"مقدمہ مندرجہ عنوان میں اپنی طرف سے بمقام بہاولنگر برائے پیروی و جو ابد ہی مر زا عطاء اللہ قمر ایڈووکیٹ بہاولنگر کو بدیں بشرط مقرر کیا ہے کہ میں ہر پیشی پر خود یا بذریعہ مختار خاص بروز پیشی حاضر ہوتار ہوں گا اور بر وقت پکارے جانے وکیل صاحب موصوف کو اطلاع دے کر حاضر عدالت کروں گا۔ اگر پیشی پر مظہر حاضر نہ ہوا اور مقدمہ میری غیر حاضری کی وجہ سے کسی طور پر میرے بر خلاف ہو گیا تو صاحب موصوف اس کے کسی طرح ذمہ دار نہ ہوں گے۔ اگر مقدمہ صاحب مذکور کی کسی دانستہ غفلت سے میرے بر خلاف ہو گیا تو صاحب موصوف تا حد محنتانہ نقصانات یا ہر جانہ کے ذمہ دار نہ ہوں گے۔ لیکن وکیل موصوف صدر مقام کچہری کے علاوہ اور جگہ سماعت ہونے یا بروز تعطیل یا کچہری کے اوقات سے پیچھے ہونے یا مظہر کو کوئی نقصان پہنچے تو اس کے ذمہ دار اس کے واسطے کسی معاوضہ ادا کرنے یا محنتانہ واپس کرنے کے بھی صاحب موصوف ذمہ دار نہ ہوں گے۔ مجھ کو کل ساختہ پرداختہ صاحب موصوف مسل کردہ ذات خود قبول ہو اور صاحب موصوف کو عرضی و جواب دعویٰ اور اجراء درخواست برآمدگی، درخواست منسوخی ڈگری یکطرفہ ، درخواست حکم امتناعی یا قرقی یا گرفتاری قبل از فیصلہ اجراڈگری بھی صاحب موصوف بشرط ادائیگی علیحدہ محنتانہ پیروی کا اختیار ہو گا کہ مقدمہ مذکور یا اس کے کسی جزو کی کارروائی کے واسطے کسی دوسرے وکیل یا بیرسٹر کو بجائے اپنے یا اپنے ہمراہ مقرر کریں اور ایسے مشیر قانونی کو ہر امر میں اور ویسے ہی اختیارات حاصل ہوں گے جیسے صاحب موصوف کو حاصل ہیں اور دورانِ مقدمہ میں جو کچھ ہر جانہ التوا پڑے گا وہ صاحب موصوف کو پورا اختیار ہو گا کہ وہ مقدمہ کی پیروی نہ کریں اور ایسی صورت میں میرا کوئی مطالبہ کسی قسم کا صاحب موصوف کے برخلاف نہ ہو گا۔ نیز رقومات داخل کردہ کی ہر طرح وصولی بذریعہ چیک ہائے وغیرہ کی اختیار وکیل صاحب موصوف کو ہو گا۔ لہذا یہ مختار نامہ لکھ دیا ہے کہ سند رہے۔ مختار نامہ سن لیا اور اچھی طرح سمجھ لیا ہے اور منظور ہے ۔”

16. Petitioners No. 1 & 3 put their thumb impression, whereas, petitioners No. 2 & 4 made their signatures. Perusal of said Vakalatnama, it appears that neither any authority was given to Mirza Atta Ullah Qamar Advocate to make any statement of compromise nor permission was given to get decree the suit of the respondents on the basis of compromise.

17. There is no evidence on the record to suggest that any compromise was affected between the parties. Neither any terms and conditions of said compromise were reduced into writing nor produced before the Court. During the course of evidence, respondents introduced a new story which is quite alien from their written reply. They maintained that a murder case was registered against them and petitioners No. 1 & 3 were witnesses of the said case and in the said murder case compromise was affected for Rs. 10,00,000/- and it was also settled that pre-emption case would also be decided on the basis of compromise and Falak Sher etc. agreed that they would get record the compromising statement. It is further maintained that on the date of hearing Falak Sher etc. attended the Court along with their counsel Mirza Atta Ullah Qamar Advocate and asked him to get record his statement for decreeing the suit on the basis of compromise. Exact deposition of R.W.1 Muhammad Ramzan (Respondent No. 2) is as under:

"ہمار ا سائلان فلک شیر وغیرہ کے ساتھ قتل کا مقدمہ چلتا تھا اس میں مرزا اور فلک شیر وغیرہ گواہان تھے۔ اس قتل کیس میں راضی نامہ ہو گیا تھا۔ راضی نامہ کے تحت طے پایا تھا کہ دعویٰ شفع کا بھی فیصلہ ہو گیا تھا۔ مبلغ دس لاکھ روپے میں قتل والے کیس میں صلح ہوئی تھی اور یہ بھی طے پایا تھا کہ فلک شیر وغیرہ دعویٰ شفع میں اپنے وکیل صاحب کو دعویٰ ڈگری کرانے کی بابت کہیں گے پھر پیشی والے روز فلک شیر وغیرہ عدالت آئے اور انہوں نے مرزا عطاء اللہ قمر ایڈووکیٹ کو کہا کہ ہماری صلح ہو گئی ہے آپ بیان دے کر دعوئی شفع ڈگری کروادیں۔ جس دن دعویٰ ڈگری ہوا اس روز مرزا اور فلک شیر بھی عدالت میں موجود تھے اور ان کے کہنے پر ان کے وکیل مرزا عطاء اللہ قمر صاحب نے بیان دیا تھا۔”

1. First of all, the story brought during the evidence regarding a murder case is alien to the written reply of the respondents as there is nothing mentioned regarding compromise in the pre-emption case on the basis of compromise in a murder case. Hence, story being beyond pleadings is not believable.

2. Next version taken during the evidence is that Falak Sher and Mirza attended the Court on the fateful day along with their counsel Mirza Atta Ullah Qamar Advocate who asked their counsel to get record statement regarding compromise. This facts was also not pleaded in the written reply by the respondents. Moreover, attendance of Falak Sher and Mirza is not reflecting in the order dated 22.06.2004 (Exh.A.7).

3. Both the Courts below dismissed the petitioners’ application on the ground that it is settled principle of law that every lawyer engaged by a party has implied authority to enter into compromise even no specific power has been conferred upon him. No doubt, through engaging a counsel and by giving him Vakalatnama (power of attorney) a party gives him an authorization for doing certain acts with regard to the suit. But said authorization was not unqualified and unrestricted. The counsel has to work and to act within the scope of authority given to him. In this regard, the wording of the power of attorney should be strictly construed.

4. Hon’ble Supreme Court of Pakistan in a case titled as “Muhammad Akhtar versus Mst. Manna and 3 others” (2001 SCMR 1700) while describing that the power of attorney must be strictly construed 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.”

Said dictum was endorsed in the case titled “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. Power of attorney must be construed strictly as giving only such authority as is conferred expressly or by necessary implication and it cannot empower beyond what it really conveys and its contents must be taken into consideration as a whole. Power of attorney only gives that power which is specifically mentioned therein.

2. The power of attorney (Vakalatnama) does not confer impliedly the power of compromise on the counsel or to make any statement to withdraw the suit or to get decree the suit, until and unless such powers have been specifically given to the attorney.

3. There is hardly any doubt that if the power to do an act has not been specifically given to an attorney, such an act, whether compromise or otherwise, is of no legal consequence at the option of the concerned party.

4. The august Supreme Court of Pakistan while refusing to grant leave to appeal in a case titled “Muhammad Hussain and others v. Mst. Hanaf Ilahi and others” (2005 SCMR 1121) observed as under:

“The only point involved in this case is, whether the learned counsel appearing for Respondent No. 1, had the authority to withdraw the suit in the circumstances of the case in hand. The learned Single Judge of the High Court has dealt with this matter in extenso and has come to a definite conclusion that no such instructions were ever imparted by the lady to her counsel nor they are reflected from the power of attorney executed by her. The learned Single Judge, after advancing valid reasons, has exercised the discretion properly and no exception can be taken to the same.”

In another case where the authority of compromise was given to the counsel through Vakalatnama declared that said authority was neither absolute nor unqualified rather it was conditional with a settlement arrived at by the party and while deciding the said case titled “Abdul Shakoor and others v. Haroon and others” (2008 SCMR 896), august Supreme Court of Pakistan held as under:

“Though on the Vakalatnama given to Mr. A.P.F. Fances, Advocate it was endorsed that “we further authorize our advocate to compromise the suit and enter into any settlement arrived at by the parties”. Though learned counsel appearing on behalf of respondents was authorized to compromise the suit on their behalf but this authority was neither absolute nor unqualified. In fact it was conditioned with a settlement arrived at by the parties. The counsel as such could not be deemed to be authorized to enter into compromise in relation to the suit without any settlement having been arrived at between the parties themselves. The power to compound or settle the matter is vested with the parties and counsel acts according to the instructions given to him by the party. He may enter into compromise only where the Vakalatnama empowers him to do so specifically and cannot do so at his own.”

1. Valuable rights of the parties are involved in the lis, therefore, while deciding the case on the basis of compromise, the Court should apply maximum care and caution to ascertain that whether the parties are agreed to the statement of compromise given by their counsel.

2. In the present case, the petitioners engaged Mirza Atta Ullah Qamar Advocate to pursue their case diligently and efficiently. They never authorized him to make any statement of compromise or to get the suit decreed on the basis of compromise. Neither any authority through Vakalatnama was given to him to make compromise with the opposite party or to get the suit decreed on the basis of compromise, therefore, the statement made by the petitioners’ counsel is not binding upon them.

3. In view of the above, learned Courts below committed illegality while dismissing the application of the petitioners under Section 12(2) C.P.C. The Courts below have not applied their judicial mind and decided the matter on surmises and conjectures.

4. For the foregoing reasons, this petition is accepted and judgments/memos of cost dated 06.10.2012 & 02.05.2015 are set-aside. Consequently, judgment & decree dated 22.06.2004 is also set-aside. The suit would be deemed to be pending before the learned Trial Court who shall decide the same expeditiously, preferably within a period of 03 months from the receipt of certified copy of this judgment, under intimation to this Court through Deputy Registrar (Judicial) of this Bench.

5. Parties are directed to appear before learned District Judge, Bahawalnagar, on 11.03.2024 who shall entrust the suit to the Court of competent jurisdiction for its decision in accordance with law.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 333

Present: Shahid Bilal Hassan, J.

M/s. SAEED BUKSH (PVT.) LTD.--Appellant

versus

Mst. AZRA BIBI--Respondent

F.A.O. No. 637 of 2014, heard on 28.2.2024.

Cantonments Rent Restriction Act, 1963 (XI of 1963)--

----S. 17--Limitation Act, (IX of 1908), Ss. 5 & 14--Applications for selling aside ex-parte decree and condonation of delay--Rejected--Eviction petition--Accepted--Ex-parte order--Service of appellant was not effected--Non-recording of statement of process server--Counter affidavit was not filed by respondent--Unheard condemnation--Challenge to--Service upon appellant through ordinary means could not had been affected--Appellant for setting aside ex-parte order was duly supported by an affidavit, which was not controverted by counter affidavit by respondent as she did not file written replies to said application and counter affidavit--Ex-parte proceedings were initiated on date which was not fixed for hearing--One should not be condemned unheard, that is why principle of Audi Alteram Partem has been stressed to be followed by Higher Courts especially when valuable rights of parties are involved in lis--The given circumstances were sufficient and plausible reasons for condoning delay in filing application seeking setting aside ex-parte proceedings as well as order were provided--Appeal accepted. [Pp. 334, 335 & 336] A, B, C, D & E

1976 SCMR 79, 2006 CLC 1213, Lah., PLD 1972 SC 123, PLD 2015 SC 137, PLD 2016 SC 712 & PLD 1981 Lahore 508 ref.

Mr. Tahir Mahmood Khokhar and Nusrat Ali Joiya, Advocates for Appellant.

Mr. Qaisar Mahmood Sra, Advocate for Respondent.

Date of hearing: 28.2.2024.

Judgment

Precisely, on 20.01.2012, the respondent filed an eviction petition under Section 17 of the Cantonments Rent Restriction Act, 1963 against the present appellant, wherein the appellant was proceeded against ex-parte on 03.07.2012 and after recording ex-parte evidence, the ejectment petition was acceptedvide ex-parte order dated 19.10.2012. The appellant on gaining knowledge filed an application seeking setting aside of ex-parte order dated 19.10.2012 alongwith an application under Sections 5 & 14 of the Limitation Act, 1908 for condonation of delay. The respondent did not file reply to the aforesaid applications and also did not controvert the affidavits, attached therewith. However, the learned Rent Controller vide impugned order dated 16.10.2014 dismissed the said applications; hence, the instant appeal.

1. Heard.

2. Considering the arguments and going through the record, it is observed that service upon the appellant through ordinary means could not have been affected as there is nothing on record to suggest as such and admittedly service of notice upon one Yasmeen was affected, who was not authorized agent of the present appellant because nothing to show as such has been brought on record by the respondent. Rule 9 of the Order V, Code of Civil Procedure, 1908 provides that:

‘9. Delivery or transmission of summons for service. Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent to the proper officer to be served by him or one of his subordinates.’ (Emphasis supplied)

Meaning thereby no proper service upon the appellant was effected. However, the learned Rent Tribunal without recording statement of process server as required by Rule 19 of Order V, Code of Civil Procedure, 1908, resorted to substituted service under Rule 20, which otherwise should have been recorded and after being satisfied that service upon the appellant was not possible through ordinary means, might have proceeded to get procured service of the appellant through substituted means of publication of Court notice in the newspaper. Such practice and procedure has totally been overlooked and bypassed. In this view of the matter, it can safely be concluded that the appellant has been condemned unheard as no proper service upon the appellant was effected so as to enable him to contest the ejectment petition filed by the respondent, especially when it is admitted that at the time of filing of the ejectment petition the demised premises was lying vacant.

1. The application of the appellant for setting aside ex-parte order was duly supported by an affidavit, which was not controverted by counter affidavit by the respondent as she did not file written replies to the said application and counter affidavit, therefore, the same would be considered to have been accepted and conceded to by the respondent. Reliance is placed on Abdul Karim v. Muhammad Ibrahim (1976 SCMR 79) and Nasim Nizami v. Habib Bank Limited (2006 CLC 1213-Lahore). Even in such a situation, the limitation for filing application for setting aside ex-parte proceedings and order is governed by Article 181 of the Limitation Act, 1908 which provides three years limitation to approach the Court in this regard. Therefore, the said application was well within time. In this regard reliance is placed on M. Imam-ud-Din Janjua v. The Thal Development Authority through The Chairman, T.D.A., Jauharabad (PLD 1972 Supreme Court 123), Mandi Hassan alias Mehdi Hussain and another v. Muhammad Arif (PLD 2015 Supreme Court 137) and Ghulam Qadir and others v. Sh. Abdul Wadood and others (PLD 2016 Supreme Court

712). Apart from the above, the ex-parte proceedings were initiated on the date which was not fixed for hearing rather it was fixed for further proceedings, therefore, such penal order should not have been passed against the appellant. In this regard reliance is placed on Allah Ditta v. Aziz Din (PLD 1981 Lahore 508).

1. In view of the above, it is observed that it is requirement of law that one should not be condemned unheard, that is why principle of Audi Alteram Partem has been stressed to be followed by the Higher Courts especially when valuable rights of the parties are involved in the lis. It has time and again been held by this Court as well as Supreme Court of Pakistan that cases ought to be decided on merits and technicalities should be avoided. The given circumstances were sufficient and plausible reasons for condoning delay in filing application seeking setting aside ex-parte proceedings as well as order were provided.

2. For the foregoing reasons, the appeal in hand is accepted, impugned order dated 16.10.2014 is set aside, consequent whereof by allowing application for setting aside ex-parte order dated 19.10.2012 and proceedings dated 03.07.2012, the case is remanded to the learned Rent Controller with a direction to decide the same afresh after obtaining written reply of the appellant, framing of issues, if required and recording evidence, in accordance with law and on merits, within a period of two months from the date of receipt of certified copy of the judgment of this Court. No order as to the costs.

(Y.A.) Appeal accepted

PLJ 2024 Lahore 336

Present: Rasaal Hasan Syed, J.

YAAR GUL KHAN--Appellant

versus

RETURNING OFFICER, PP-138, SHEIKHUPURA and others--Respondents

E.A. No. 697 of 2024, decided on 9.1.2024.

Election Act, 2017 (XXXIII of 2017)--

----Arts. 62(1), 63 & 64(3)--Constitution of Pakistan, 1973, Art. 17(2)--General elections--Rejection of nomination papers--Appeal--Rejected--Outstanding amount of FBR--Default in payment--Arrears of token tax for vehicles--Fundamental rights--Outstanding amount was deposited--Inalienable fundamental rights of appellant were involved; he should duly deposited amount stated to be reflected in record of FBR as outstanding against him under protest--The statement on part of appellant was deemed to be reasonable and an opportunity to pay off outstanding liability till resumption of Court--As two instances of default which informed decision of Returning Officer resulting in rejection of nomination papers had been adequately addressed, order of Returning Officer was set aside--Appeal accepted. [P. 339] A & B

Mr. Arshad Jahangir Jhoja, Advocate for Appellant.

Mr. Muhammad Bilal Munir, Legal Advisor FBR with Abdul Rasheed Khan, Asst. Commissioner Inland Revenue, Zone-III, Lahore and Muhammad Ijaz, Returning Officer, PP-138, Sheikhupura-III for Respondents.

Date of hearing: 9.1.2024.

Order

Through the instant appeal order dated 30.12.2023 of the Returning Officer has been assailed whereby nomination papers of the appellant presenting himself as a candidate for General Elections from PP-138, Sheikhupura-III were rejected.

1. The reasons for rejection as encapsulated by the order of the Returning Officer available at page 25 of the instant file reveals that two instances of default were identified prompting rejection of nomination papers. It transpired that a sum of Rs. 6,688,750/- was outstanding towards FBR and an amount of Rs. 476,448/- stood under the head of arrears of token tax for vehicles in the record of the Excise and Taxation Department, Government of Punjab. At the hearing of this appeal on three preceding dates i.e. 05.1.2024, 07.1.2024 and 08.1.2024 stance taken by the learned counsel, Mr. Arshad Jahangir Jhoja, Advocate as well as the senior learned counsel who appeared on 05.1.2024, Mr. Jahangir A. Jhoja, Advocate, on behalf of the appellant at the time of issuance of notice was that the outstanding dues of the Excise and Taxation Department had been paid. Corresponding receipts were placed on the file and that as to the purported liability outstanding in terms of the FBR unpaid dues reliance was placed on order dated 12.4.2019 of the Commissioner Inland Revenue (Appeals-III), Lahore in appellant’s appeal No. 11724 to take the stance that the entire liability recorded in the order of the Returning Officer to the tune of Rs. 6,688,750/- was embodied in the assessment order which was subject matter of the said appeal that was set aside as such did not present an instance of active outstanding liability attracting such opprobrium.

2. On the input of the learned Legal Advisor Election Commission of Pakistan who said that as information qua default was obtained from the respective government departments upon request of the Election Commission of Pakistan to record any instance of default qua the candidates and, therefore, the respective representatives of the departments shall be in a better position as custodians of record to respond as to whether the stance taken before the Tribunal that default was cleared was factually accurate.

3. Notice was accordingly issued on 07.1.2024 to Respondent Nos.2 and 3, the two respective heads of the department, namely, Chairman FBR and Secretary Excise & Taxation Department, Government of Punjab. Learned Law Officer of the Excise and Taxation Department under the instructions from the Deputy Director, Excise and Taxation Department yesterday affirmed the factum of discharge of the arrears of Motor Vehicle Tax outstanding against the appellant and recorded the statement that nothing was due from the appellant under the head of Motor Vehicle Tax after payment of arrears evidenced by the receipts of dues that may be placed on record copies whereof were duly supplied to the Returning Officer present throughout in these proceedings before the Tribunal in response to notice dated 05.1.2024.

4. Learned Legal Advisor FBR, however, under instructions from the departmental representative submitted that by virtue of order dated 23.8.2023 of the Commissioner (Appeals-VII) Inland Revenue, Lahore the liability of Rs. 466,250/- was confirmed against the appellant which pertains to tax period 01.7.2016 to 30.6.2017 and had been outstanding for more than six months against the appellant that remained unpaid, therefore, would count as default. Learned counsel for the appellant expressed surprise at the passing of the said order by taking the stance that he was not aware that such an order has been made and also attempted to submit that in any case stay application had been filed which was pending. The stay application which was filed in the proceeding before the Commissioner (Appeals-VII) Inland Revenue, Lahore obviously could only cover the period till the adjudication by the said officer which resulted in affirmation of liability vide order dated 23.8.2023 as such was rendered infructuous and could not be of any use to appellant.

6. Perusal of the impugned order however shows that an amount of Rs. 6,688,750/- is mentioned and the amount of Rs. 466,250/- does not find mention in the order of the Returning Officer. This amount, as such, appears to have been sprung as a surprise on the appellant. Yesterday, the appellant’s learned counsel at the very moment of being confronted with the information that such an amount was outstanding submitted that the appellant is a law abiding citizen and that such a default may not result in recording of any attitude of contumacious or willful default. He submitted that without prejudice to the rights of the appellant to avail any statutory remedy that may be available under the applicable law to the appellant, if some indulgence is shown by this Tribunal, in the interest of justice and fairness, since inalienable fundamental rights of the appellant under Article 17(2) of the Islamic Republic of Pakistan, 1973 are involved; he shall duly deposit the amount stated to be reflected in the record of the FBR as outstanding against him under protest. The statement on the part of the appellant was deemed to be reasonable and an opportunity to pay off the outstanding liability till the resumption of the Court qua hearing of the appeal on the next date was observed.

1. When the case is called today at the appointed hour learned counsel for the appellant has entered his statement that the liability has been duly paid off subject to all just and legal exceptions. This factum has been affirmed by the learned Legal Advisor FBR who submits that computerized payment receipts for the said amount have been duly issued and, as such, the default stands cured. At this point learned counsel for the FBR has also entered the stance that the amount subject-matter of remand order shall remain subject to final adjudication in the course of exercise of statutory authority within the hierarchy of jurisdiction in accordance with law and that the expression of non-existence of any present liability shall be limited for the purposes of decision of this appeal by the Tribunal. This may be taken to be so as the liabilities of FBR are not direct subject-matter of these proceedings as such the rights of the both sides are safeguarded to have the underlying controversy thrashed out by concerned statutory fora in accordance with law.

2. As two instances of default which informed the decision of the Returning Officer resulting in rejection of the nomination papers have been adequately addressed, the order of the Returning Officer loses efficacy and is therefore set aside. In consequence the nomination papers of the appellant stand accepted. The Returning Officer is directed to reflect the name of the appellant in the revised list of validly nominated candidates for the said constituency in discharge of the mandate of Section 64(3) of the Elections Act, 2017.

3. Appeal accepted.

(Y.A.) Appeal accepted

PLJ 2024 Lahore 340 [Rawalpindi Bench Rawalpindi]

Present: Mirza Viqas Rauf, J.

Mst. MUNAWAR JAN and 6 others--Petitioners

versus

Mst. SAFAIDAN and 4 others--Respondents

C.R. No. 934-D of 2012, decided on 18.1.2024.

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

----Ss. 42 & 54--Suit property was gifted in favour of respondent’s father--Gift mutation was duly incorporated in revenue record--Gift mutation was never challenged by donor or petitioner--Time-barred--Suit for declaration and permanent injunction--Validity of gift--Decreed--Appeal--Allowed--After effecting of gift mutation necessary entries were incorporated in revenue record for subsequent years--Where in his lifetime donor did not challenge validity of gift, his successors would be precluded to throw any challenge to such transaction on principle of acquiescence and estoppel--Petitioners even did not assert in their plaint either of them were not aware about gift mutation, their suit becomes badly barred by time--In matter of giving preference to judgments of lower Courts while analyzing same in exercise of revisional jurisdiction, preference and regard is always given to findings of appellate Court, unless those are suffering with any legal infirmity or material irregularity-- The petitioners had failed to point out any illegality or material irregularity in impugned judgment, warranting interference by High Court in exercise of revisional jurisdiction. [Pp. 345, 349 & 350] A, B, D, E & F

2016 SCMR 1403, 2013 SCMR 299, 2011 SCMR 222, 2022 SCMR 1009 & 2013 SCMR 1300 ref.

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

----S. 42--Right to sue--Right to sue accrues to a person against other for declaration of his right, as to any property, when latter denies or is interested to deny his such right. [P. 346] C

Mr. Tanvir Iqbal, Advocate for Petitioners.

M/s. Ch. Afrasiab Khan and Abdul Basit Khan Tanoli, Advocates for Respondents No. 1 to 4.

Nemo for Respondent No. 5.

Dates of hearing: 5.12.2023 & 7.12.2023.

Judgment

This petition invokes the revisional jurisdiction of this Court as contemplated under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “C.P.C.”) against the judgment and decree dated 1st November, 2012 handed down by learned District Judge, Rawalpindi, whereby he proceeded to allow the appeal preferred by Respondents No. 1 to 4 (hereinafter referred to as “respondents”) as a result setting at naught the judgment and decree dated 24th December, 2011 passed by the learned Civil Judge Class-I, Rawalpindi.

1. The proposition involved in this petition is quite common to our society. Abdul Rehman son of Khatar Khan was a big landlord in the revenue estate of Daultala Tehsil Gujar Khan District Rawalpindi. He was having two sons namely Muhammad Afsar and Muhammad Khan whereas Aksar Jan was his daughter. Abdul Rehman purportedly gifted a part of land measuring 101 Kanal 19 Marla (hereinafter referred to as “suit land”) to Muhammad Khan (one of his sons) qua which mutation No. 633 dated 18th September, 1962 was recorded. Abdul Rehman died in the year 1969 whereas Muhammad Khan passed away in the year 1998, who ultimately survived the “respondents”. The petitioners being the successors-in- interest of Muhammad Afsar instituted a suit for declaration, separate possession through partition and injunction averring therein that their predecessor-in-interest namely Muhammad Afsar died in the year 1978 and after his death, they remained under the custody of Muhammad Khan, who however died later on. It is asserted that after demise of Muhammad Khan, the petitioners and “respondents” started living separately on the basis of family settlement, however, “respondents” refused to give half share in the “suit land” on the plea that it is not joint being gifted to their predecessor-in-interest by Abdul Rehman. On further inquiry by the petitioners it revealed on them that a gift mutation No. 633 was sanctioned on 18th September, 1962 in favour of Muhammad Khan, which as per their stance was the outcome of fraud and misrepresentation having no effect upon their rights.

2. Suit was resisted by the “respondents” on multiple grounds through a written statement. On account of serious challenge on both sides as reflected in their respective pleadings, the trial Court proceeded to frame multiple issues. After framing of issues both the sides produced their evidence and upon completion of the same, suit was decreed vide judgment dated 24th December, 2011. Feeling aggrieved the “respondents” preferred an appeal before the learned District Judge, Rawalpindi. The appeal was ultimately allowed by way of impugned judgment and decree.

3. Learned counsel for the petitioners contended that being the beneficiaries, it was though obligatory for the “respondents” in the first instance to plead the gift transaction but no such assertion was made in the written statement. He added that evidence can only be led with regard to a fact, which finds mention in the pleadings. Learned counsel contended that suit was mainly resisted by the “respondents” on the ground of limitation. He added that in case of fraud no limitation runs against the person, who has been defrauded. Learned counsel submitted that even otherwise the proceedings relating to sanctioning of gift mutation are tainted with material irregularities. It is contended with vehemence that gift was never pleaded and mutation by itself is not a document validating the original transaction. Learned counsel emphasized that suit was initially rightly decreed but the appellate Court while forming a contra view has grossly misread the evidence. It is argued that the impugned judgment and decree is not tenable under the law. In support of his contentions, learned counsel placed reliance on Faqir Ali and others versus Sakina Bibi and others (PLD 2022 Supreme Court 85), Noor Din (Deceased) through LRs versus Pervaiz Akhtar and others (2023 SCMR 1928), Mst. Rabia Gula and others versus Muhammad Janan and others (2022 SCMR 1009), Syed Kausar Ali Shah and others versus Syed Farhat Hussain Shah and others (2022 SCMR 1558), Principal Public School Sangota, Government Of Khyber Pakhtunkhwa through Chief Secretary and others versus Sarbiland and others (2022 SCMR 189) and Saadat Khan and others versus Shahid-ur-Rehman and others (PLD 2023 Supreme Court 362).

4. Conversely, learned counsel for the “respondents” submitted that gift was validly made. He added that the petitioners on account of their conduct were precluded to institute the suit. Learned counsel submitted that in pursuance to the gift mutation necessary entries were incorporated in the revenue record and the petitioners were well aware of the same. Learned counsel emphasized that even otherwise the donor though remained alive for a considerable period but he never challenged the gift transaction. Learned counsel contended that suit was instituted by the petitioners on account of mala-fide. It is also contended that fraud was though alleged but no particulars of fraud were mentioned in the plaint. Learned counsel submitted that suit was wrongly decreed by the trial Court and the appellate Court was fully justified to set at naught the findings of the trial Court in the circumstances. In the last, learned counsel argued that suit was hopelessly barred by time. In order to supplement his contentions, learned counsel placed reliance on Mst. Grana through Legal Heirs and others versus Sahib Kamala Bibi and others (PLD 2014 Supreme Court 167), Mst. Kalsoom Begum versus Peran Ditta and others (2022 SCMR 1352) and Mst. Faheeman Begum (Deceased) through L.Rs and others versus Islam-Ud-Din (Deceased) through L.Rs and others (2023 SCMR 1402).

5. Heard. Record perused.

7. “Suit land” (101 Kanal 19 Marla) was part of estate owned by Abdul Rehman, who was Headman of village Daultala Tehsil Gujar Khan District Rawalpindi. Abdul Rehman breathed his last on 06th January, 1969 leaving behind two sons namely Muhammad Khan and Muhammad Afsar as well as one daughter namely Aksar Jan. The petitioners are the successors-in-interest of Muhammad Afsar whereas the “respondents” are the legal heirs of Muhammad Khan. The matter in controversy stems from mutation No. 633 dated 18th September, 1962 purportedly effected in favour of Muhammad Khan.

8. Before delving into the merits of the case it would be advantageous to point out certain admitted facts, which even otherwise are quite relevant for the matter in controversy. Gift mutation No. 633 was sanctioned on 18th September, 1962 whereas Abdul Rehman (donor) died on 06th January, 1969. Muhammad Khan (donee) passed away on 28th December, 1998 whereas Muhammad Afsar, predecessor-in-interest of the petitioners took his last breath on 04th March, 1978. It would not be out of context to mention here that Muhammad Afsar was Sub-Inspector in police department.

1. The points for determination before this Court are;

firstly, validity of gift transaction;

secondly, effect of non-challenging of gift by the donor and;

thirdly, limitation.

1. Adverting to the first limb of controversy it is noticed that to this effect issue No. 7 was framed. Being the plaintiffs, it is the claim of the petitioners that gift mutation is a product of fraud. Contrary to this the “respondents” pleaded that gift transaction was valid one. In terms of Order VI Rule 4 of the “C.P.C.” a party pleading any misrepresentation or fraud is obliged to narrate particulars to that effect. When plaint is examined in this context it is clearly lacking any details or particulars that how the transaction was tainted with fraud. In order to prove their claim, the petitioners examined Muhammad Rizwan being one of the petitioners as PW1. In his statement he reiterated the facts contained in the plaint and asserted that Abdul Rehman has though never made any gift in his lifetime, but Muhammad Khan was since Headman, so in connivance with the revenue officials, he succeeded in getting the gift mutation effected in his favour. Bashir Ahmad being close relative of the petitioners as well as the “respondents” appeared as PW2. He stated that Muhammad Afsar and Muhammad Khan partitioned their property in the year 2003 and he came to know about the gift in the said year. During his cross-examination Bashir Ahmad admitted that Mst. Munawar Jan, petitioner No. 1 gifted him portion of land from the share of her inherited property. He also admitted that one Muhammad Ashiq had filed a suit against Abdul Rehman and Muhammad Khan wherein he acted as special attorney on behalf of the latter and the suit was dismissed finally. He also admitted that Abdul Rehman has rightly made the gift in favour of Muhammad Khan. Though there were certain pivotal admissions in the statement of Muhammad Rizwan (PW1) as well but the statement of Bashir Ahmad (PW2) was quite fatal to the claim of the petitioners.

11. There can be no cavil that mutation by itself is not a document of title and it is only an acknowledgment of the original transaction, which has taken place prior to the incorporating/ sanctioning of mutation and a person relying upon mutation has to establish the original transaction in the first instance. The facts of this case are, however, bit different. The “respondents” though did not plead the original transaction in clear words in their written statement but they while responding to para No. 4 of the plaint and denying the averments of the para, asserted that the original owner Abdul Rehman made a valid gift of “suit land” in favour of Muhammad Khan through mutation No. 633 attested on 18th September, 1962 whereafter the gift mutation was incorporated in the revenue record and the donee (Muhammad Khan) enjoyed the possession as well as ownership of the “suit land”. They further asserted that Abdul Rehman (donor) and Muhammad Afsar, predecessor-in-interest of the petitioners accepted the donee as lawful owner of the “suit land” and never challenged the gift mutation in their lifetime.

1. Article 113 of the Qanun-e-Shahadat Order, 1984 ordains that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings. To the above effect when the statement of Bashir Ahmad (PW2) is analyzed, he in his cross- examination deposed as under:

”۔۔۔۔یہ درست ھیکہ میرے علم میں تھا کہ عبد الرحمان نے ھبہ اپنے پسر محمد خان کے نام کیا ھوا ہے۔ میں نے محمد افسر ( والد محمد رضوان 1-PW) کو اس کی زندگی میں کبھی اسکا نہ بتایا تھا۔ اور نہ ھی میں نے مدعیان سے کبھی اس ھبہ کا ذکر کیا محمد عاشق اور محمد خان کے درمیان جو مقدمہ چلا تھا وہ 1990 میں تھا۔ یہ درست ھیکہ عبد الرحمان نے درست طور پر ھبہ محمد خان کے نام کیا تھا ۔"

In view of admissions with regard to the validity of gift by the petitioners’ own witness, there remains no necessity for the “respondents” to assert or lead any material to that effect. It clearly evinces from the record that after effecting of gift mutation necessary entries were incorporated in the revenue record for the subsequent years.

13. Coming to the question of effect of non-challenging of gift by the donor, it is noticed that Abdul Rehman survived two sons namely Muhammad Khan and Muhammad Afsar as well as one daughter namely Aksar Jan. Donor was owner of about 300 Kanal land in Daultala Tehsil Gujar Khan District Rawalpindi, however, he gifted “suit land” to his son namely Muhammad Khan. It appears that as Muhammad Afsar was in the police department, so the donor being father of Muhammad Khan (donee) opted to gift the “suit land” in his favour, so as to safeguard his rights as he was unemployed. Leaving aside this aspect it is an oft repeated principle of law that where in his lifetime donor did not challenge the validity of gift, his successors would be precluded to throw any challenge to such transaction on the principle of acquiescence and estoppel.

1. In the present case gift mutation was sanctioned on 18th September, 1962 and the donor though remained alive till 06th January, 1969 but he did not challenge the gift in favour of his son (Muhammad Khan). Furthermore the petitioners are claiming right in the “suit land” being successors-in-interest of Muhammad Afsar, who too remained alive till 04th March, 1978 but never challenged the gift. The petitioners are thus precluded to dispute the gift mutation on the ground of estoppel. Reference to this effect can be made to Ghulam Abbas and others versus Mohammad Shafi through LRs and others (2016 SCMR 1403), Muhammad Rustam and another versus Mst. Makhan Jan and others (2013 SCMR 299) and Jamila Khatoon and others versus Aish Muhammad and others (2011 SCMR 222).

2. Now attending the last point for determination, which relates to limitation, it is observed that a suit for declaration of any right as to any property, the person claiming such right has to institute the suit under Section 42 of the Specific Relief Act, 1877 and the limitation of such suit is to be regulated and governed by Article 120 of the Limitation Act, 1908. Suit was instituted by the petitioners on 30th July, 2003 challenging the validity of gift mutation on the ground of fraud asserting that the cause of action accrued to them six months before institution of the suit on claim of the respondents’ that they are exclusive owners of the “suit land”.

3. It is evident from the record that after the gift mutation entries were incorporated in the light thereof in the revenue record. It also evinces that after the incorporation of “suit land” in his name in furtherance of gift mutation the donee transferred portion of the “suit land” in favour of the “respondents” through mutation No. 2786 dated 30th May, 1981 (Exhibit-P23). Not only this but through mutation No. 2714 (Exhibit-D18) 03 Kanal 18 Marla of land was mutated in favour of the petitioners as well through gift.

17. Section 42 of the Specific Relief Act, 1877 ordains that 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. Section 42 of the Act ibid is reproduced below for the purpose of convenience:-

“42. Discretion of Court as to declaration of status or right.--(1) Any person entitled to any character, or any right 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.

(2) Notwithstanding anything contained in any other law for the time being in force, a suit filed under sub-section (1) shall be decided by the Court within six months and the appellate Court shall decide the appeal not later than ninety days, as the case may be.”

From the bare perusal of the above referred provision of law it becomes crystal clear 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.

1. In the case of Salamat Ali and others versus Muhammad Din and others (PLD 2022 Supreme Court 353) Supreme Court of Pakistan outlined the scope of Section 42 of the Specific Relief Act, 1877 in the following words:

“25. A suit for declaration of any right as to any property is filed under Section 42 of the Specific Relief Act 1877 (“Specific Relief Act”). Therefore, to ascertain when the right to sue accrues to a legal heir to seek a declaration of his ownership right over the property inherited by him and of his such right not to be affected by the further transfer of such property, we need to consider 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.

(Emphasis added)

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. It thus postulates two actions 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.

1. 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, is a question that requires consideration. Admittedly, entries in the revenue record do not create or extinguish proprietary rights. Such an entry may at most be termed as a mere “apprehended or threatened denial” of right, and not an “actual denial” of right. Accordingly, every new adverse entry in the revenue record relating to proprietary rights of a person in possession (actual or constructive) of the land regarding which the wrong entry is made, gives to such person, a fresh cause of action to institute the suit for declaration. The situation is, however, different in a case where the person in possession (actual or constructive) of the land regarding which the wrong entry is made, is ousted from such possession, besides a wrong entry in the revenue record. In such a case, the act of ousting him from the actual or constructive possession of the land, constitutes an “actual denial” of his rights, and does not remain a mere “apprehended or threatened denial”. Therefore, in such a case, if the person injuriously affected by such an act of “actual denial” of his rights does not challenge the same within the prescribed limitation period, despite having knowledge thereof, then his right to do so becomes barred by law of limitation.

2. In an inheritance case, like the present one, a wrong mutation in the revenue record, as to inheritance rights does not affect the proprietary rights of a legal heir in the property, as the devolution of the ownership of the property on legal heirs takes place under the Islamic law, through inheritance immediately, without any formality including sanction of inheritance mutation. Therefore, a wrong mutation is a mere “apprehended or threatened denial” of right, not necessitating for the person aggrieved thereby to institute the suit. The position is, however, different when the co-sharer in possession of the joint property, on the basis of a wrong inheritance mutation, sells the joint property, or any part thereof exceeding his share, claiming him to be the exclusive owner thereof and transfers possession of the sold land to a third person, the purchaser. In such a circumstance, the co-sharer by his said act “actually denies” the rights of the other co-sharer, who is only in constructive possession of the same, and ousts him from such constructive possession also by transferring the possession of the sold land to a third person, the purchaser. In such circumstances, the right to sue accrues to the aggrieved co-sharer from the date of such sale, and transfer of actual possession of the sold land to the third person, the purchaser.”

Reliance in this respect can also be placed on Mst. Rabia Gula and others versus Muhammad Janan and others (2022 SCMR 1009).

1. After having an overview of the principles laid down in the cases cited above, it can safely be held that limitation would start running from the date of knowledge of the donor and not the petitioners. Even otherwise the petitioners nowhere in their plaint asserted that their father or the grandfather (donor), who both remained alive for considerable time after the sanctioning of gift mutation, were not aware of the same and thus could not challenge it during their lifetime. Contrarily sufficient material is available on the record to show that the petitioners were well in knowledge of the gift mutation right from its inception but they brought their suit on 30th July, 2003, which is clearly barred by time.

2. So far judgment in the case of Faqir Ali’s heavily relied by learned counsel for the petitioners is concerned, it is noticed that in the said case by way of gift mutation female members of the family were deprived from their share in inheritance of their predecessor. They instituted a suit for declaration alleging fraud and were ultimately succeeded to establish that the gift mutations were the product of fraud. In this background, Supreme Court of Pakistan observed that fraud vitiates even the most solemn transactions and any transaction that is based upon fraud is void and notwithstanding the bar of limitation. Courts would not act as helpless by stands and allow a fraud to perpetuate. Facts in the case of Noor Din (Deceased) supra were also almost the same, as such principles laid down therein are not applicable to the case at hand. In the case of Saadat Khan’s above, the matter was relatable to estate of Isa Khan, who died and after his death inheritance mutation was sanctioned only in favour of his son Abdul Rehman on 23rd March, 1995, which was later on challenged in the year 2004 by Mst. Mehro and Mst. Afsro claiming themselves daughters of said Isa Khan and in this background, Supreme Court of Pakistan again observed that a suit instituted by a female legal heir for declaration of her ownership rights as to the property left by her deceased father in his inheritance, against her brother who denies her rights is thus governed by the provisions of Article 120. To decide whether such a suit is barred by limitation, the six-year period of limitation provided by Article 120 is to be counted from the time when the right to sue for declaration accrues as provided therein. The question, when the right to sue for declaration has accrued in a case, depends upon the facts and circumstances of that case, as it accrues when the defendant denies (actually) or is interested to deny (threatens) the rights of the plaintiff as per Section 42 of the Specific Relief Act, 1877. The principles laid down in the said judgment are same as were previously held in the case of Faqir Ali’s supra.

3. From the facts and circumstances of the present case it is since established on the record that neither donor nor father of the petitioners challenged the gift mutation in their lifetime and the petitioners even did not assert in their plaint either of them were not aware about the gift mutation, so their suit becomes badly barred by time. Even otherwise in view of availability of material qua the fact that donee gifted some portion of land to the petitioners and they accepted the same, there remains no room to infer that they were not having knowledge of the gift. Suit was thus rightly adjudged as barred by time by the appellate Court.

4. Though there is divergence of views in the Courts below and conclusion are contrary to each other but this Court, while exercising revisional jurisdiction is supposed to make comparative analysis of both the judgments in order to examine their validity on the touchstones of Section 115 of “CPC”. It is cardinal principle of law that in the matter of giving preference to the judgments of lower Courts while analyzing the same in exercise of revisional jurisdiction, the preference and regard is always given to the findings of the appellate Court, unless those are suffering with any legal infirmity or material irregularity. Reference in this respect, if needed can safely be made to the case of Muhammad Nawaz through L.Rs versus Haji Muhammad Baran Khan through L.Rs. and others (2013 SCMR 1300). Relevant extract from the same is reproduced herein below:

“12. ...... We have also taken into consideration the judgment of the Appellate Court which is based on proper appraisal of evidence on record and the findings of the Appellate Court are to be preferred as it has been held by this Court in the cases of Madan Gopal and others vs Maran Bepari and others (PLD 1969 SC 617) that if the findings of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding.” This view also finds support from the cases of Muhammad Shafi and others vs. Sultan Mahmood and others (2010 SCMR 827) ....”

The above view also finds support from the cases of Amjad Ikram versus Mst. Asiya Kausar and 2 others (2015 SCMR 1) and Muhammad Hafeez and another versus District Judge, Karachi East and another (2008 SCMR 398).

1. After having a comparative analysis of both the judgments, I am of the firm view that the learned District Judge, Rawalpindi has rightly interfered with the judgment passed by the learned Civil Judge, Rawalpindi. The petitioners have failed to point out any illegality or material irregularity in the impugned judgment, warranting interference by this Court in exercise of revisional jurisdiction. The instant petition thus fails and is dismissed with no order as to costs.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 351 [Multan Bench Multan]

Present: Anwaar Hussain, J.

Sheikh KHALID JAVAID--Petitioner

versus

SHAMAS-UD-DIN CHISHTI--Respondent

C.R. No. 323 of 2022, heard on 28.2.2024.

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

----S. 12--Sale-agreement--Suit for specific performance--Dismissed--Appeal--Accepted--Respondent was never deposited balance consideration before trial Court--Issuance of fard bai--Challenge to--Respondent entered into agreement with petitioner and thereafter, entangled latter into litigation and avoided payment of balance consideration amount on one pretext or other, which propels to opine that respondent was neither willing nor ready to pay balance amount of consideration--When direction of Trial Court was not complied with by respondent, Trial Court should had immediately proceeded to dismiss suit--The respondent himself should had sought permission of Court to deposit remaining sale consideration--On contrary, respondent failed to comply with repeated directions of Trial Court to deposit same--The conduct of respondent had been far from fair and he had failed to make out a case for grant of any equitable relief since his conduct amply shows that he was not ready and willing to perform his part of contract--Civil revision allowed. [Pp. 358, 359, 361] B, C, D & E

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

----S. 22--Jurisdiction--In terms of Section 22 of Specific Relief Act, 1877 (“the Act”), jurisdiction of Courts to issue a decree of specific performance is discretionary in nature as it is an equitable relief, thus, Court is not bound to grant such relief merely because it is lawful to do so let alone. [P. 357] A

1994 SCMR 2189, 2017 SCMR 1696 & PLD 2020 SC 401 ref.

Malik Muhammad Akbar Bhutta, Advocate along with Petitioner.

Mr. Muhammad Mehrban Ranjha, Advocate along with Respondent.

Dr. Ashraf Ali Qureshi, Advocate for Applicant (in C.M. No. 2833/2022).

Date of hearing: 28.2.2024.

Judgment

This civil revision is directed against the judgment and decree dated 03.03.2022 whereby the appeal of the respondent was accepted, order and decree dated 20.10.2021 passed by the Trial Court was set aside and the suit of the respondent instituted for specific performance of the contract, based on an agreement to sell dated 29.01.2019 (“the agreement”), was decreed. An application bearing C.M. No. 2833/2022 has been filed by one Daniyal Zarar Khan s/o Zarar Hameed Khan who has purchased the suit property from the petitioner, when the suit of the respondent was dismissed and the appeal was not preferred, however, the limitation period for preferring appeal was yet to expire. Through this judgment, the said application is also being decided.

1. Malik Muhammad Akbar Bhutta, Advocate, learned counsel for the petitioner submits that the findings of the Courts below are at variance and the impugned judgment and decree passed by the Appellate Court is not only arbitrary but also runs counter to the law as to manifestation of willingness and readiness on the part of the vendee of an agreement to sell. Adds that the respondent is a practicing advocate who has dragged the petitioner in unnecessary litigation after tying down the property of the petitioner through the agreement and obtaining the interim relief as the respondent had no financial means to pay the balance amount of the consideration in terms of the agreement, within the cut-off date, as despite availing number of opportunities, the respondent failed to deposit the balance consideration amount to the tune of Rs. 3,500,000/-. Further contends that the Appellate Court below has erred in decreeing the suit of the respondent by misconstruing the dicta laid down in cases titled “Muhammad Asif Awan v. Dawood Khan and others” (2021 SCMR 1270) and “Muhammad Jehanzaib Khan v. Muhammad Rafique Khan and two others” [2021 PLC (CS) 1435].

2. Conversely, Mr. Muhammad Mehrban Ranjha, Advocate, learned counsel for the respondent has supported the impugned judgment and decree and contends that the Appellate Court below has rightly placed reliance on Muhammad Asif Awan case supra as well as Muhammad Jehanzaib Khan case supra as also the admission of the petitioner before the Trial Court that the agreement was lawfully executed and he has no objection if the suit is decreed. Adds that since the agreement has been admitted, therefore, the petitioner has no case. Further avers that the respondent only delayed the deposit of the balance amount because the suit property was part of Tawakkal Town, Multan against which proceedings were pending before the National Accountability Bureau (“the NAB”).

3. Dr. Ashraf Ali Qureshi, Advocate, learned counsel for the applicant in C.M. No. 2833/2022 submits that the applicant is a bona fide purchaser and has been defrauded by the collusion of the petitioner with the respondent and needs to be protected as he has paid the entire sale consideration to the petitioner and is in possession of the suit property.

4. Arguments heard. Record perused.

5. This case puts forth the following questions to be adjudicated by this Court:--

i. What are the key factors to be kept in sight while determining the willingness and readiness of a plaintiff in a suit for specific performance of the contract?

ii. Whether in facts and circumstances of the case the Appellate Court below was justified in relying on the admission of execution of the agreement by the petitioner before the Trial Court?

iii. Whether an offer made by a party (the defendant) before the Trial Court to decree the suit for specific performance of the contract, which was not accepted by the other party (the plaintiff) remains valid at the appellate stage?

1. Before rendering the opinion on the above formulated questions, it is advantageous to encapsulate the admitted factual matrix of the case and resume of the proceedings before the Trial Court.

2. Admittedly, the dispute relates to a plot measuring 15 marla bearing Khewat No. 153, Khaitooni No. 458 to 465, situated in Mauza Kaianpur inside Hadd Committee Tehsil Multan City, District Multan. It is not denied that in terms of the agreement, the cut-off-date for the payment of balance consideration amount was 30.06.2019. It is admitted feature of the case that till said date, the balance consideration amount was not paid by the respondent. It is also admitted feature of the case that the suit was instituted on 16.06.2020. It has been averred in the plaint that it was the petitioner who avoided transfer of the suit property within time and therefore, the suit was instituted. It is also admitted feature of the case that on the first date of hearing, i.e., 16.06.2020, the respondent was directed to deposit the Court Fee of Rs. 15,000/-. On 26.06.2020, the petitioner entered appearance and his counsel submitted power of attorney as also contesting written statement with the averment that it is the respondent who never tendered balance payment and the same clearly exhibited that the respondent is neither willing nor ready to perform his part of the contract and therefore, the petitioner has forfeited the earnest amount of Rs. 1,500,000/-. The Trial Court, vide order dated 23.09.2020, fixed the case for arguments on the application for grant of interim injunction and also directed the respondent to deposit the balance consideration amount of Rs. 3,500,000/-. On the next date of hearing, i.e., 06.10.2020, instead of complying with the order of the Trial Court, the respondent filed an application under Section 151, read with Sections 148 and 149 of the Code of Civil Procedure, 1908 (“CPC”), inter alia, for extension in time to pay the balance consideration amount and to sine die adjourn the case on account of the pendency of proceedings before the NAB in respect of Tawakkal Town, Multan. Thereafter, another application was filed, by the respondent, under Order I Rule 10, CPC to implead the Multan Development Authority as necessary party. Application under Section 151 read with Sections 148 and 149, CPC was withdrawn, vide order dated 07.09.2021. In the meanwhile, the petitioner approached the NAB authorities concerned and sought clarification that the suit property does not form part of the Tawakkal Town, Multan and hence, permission be granted to the revenue officials concerned, to issue fard bai in respect of the suit property, which was accordingly issued. The Trial Court also summoned Halqa Patwari, namely, Safdar Ali for verification of fard bai, who appeared before the Trial Court on 21.12.2020 and recorded his statement, which reads as under:

"بر حلف بیان کیا کہ احتساب بیور و ملتان سے ایک چٹھی مورخہ 28 نومبر 2019 موصول ہوئی کہ موضع کائیاں پور تو کل ٹاؤن کھیوٹ نمبر 49/153 کھتونی نمبر 458 تا 465، کھیوٹ نمبر 150/154 کھتونی نمبر 466 کھیوٹ نمبر 153/157 کھتونی نمبر 470 تا479 جزوی رقبہ پر خرید و فروخت کی پابندی عائد کی گئی چٹھی ھذا پیش کرتا ہوں۔ جس کا اندراج روز نامچہ واقعاتی نمبر شمار 521 مورخہ 04.12.2019 کیا گیا مورخہ 23.11.2020 کو درخواست منجانب AC صاحب ملتان موصول ہوئی جس کے ہمراہ حکم بعد الت جناب صفدر اقبال ڈسٹرکٹ اینڈ سیشن جج /احتساب عدالت ملتان ریفرنس نمبر 2019/ 43-M سر کار بنام اعتزاز الحق موصول ہوا جس میں مسمیان آفتاب احمد ، شیخ خالد جاوید اور زاہد نواز غوری کو ان کی حد تک رقبہ فروخت کرنے اور فرد ملکیت جاری کرنے کا حکم صادر کیا گیا جس کا اندراج روز نامچہ کے نمبر شمار 627 مورخہ 23.11.2020 کیا گیا جو کہ میں فیصلہ درخواست پیش کرتا ھوں۔ اسی فیصلہ کی کی بنیاد پر شیخ خالد جاوید مد عاعلیہ کو اس کے رقبہ کی فرد جمعبندی جاری کی گئی۔"

(Emphasis supplied)

After the provision of the fard bai, the Trial Court, vide order dated 07.09.2021, accepted the application for grant of interim injunction and again directed the respondent to deposit the balance sale consideration of Rs. 3,500,000/. Order dated 07.09.2021 reads as under:

“5. Perusal of record indicates that plaintiff/petitioner has filed suit for specific performance of contract on the basis of agreement to sell dated 14.11.2018 that he purchased the suit property fully detailed in head note in consideration of Rs. 50,00,000/- out of which Rs. 15,00,000/- were paid as earnest money and remaining amount Rs. 35,00,000/- was promised to be paid at time of execution of sale deed on 30.06.2019 but possession was not delivered to him; while on the one hand, the defendant has admitted the execution of agreement to sell but he took plea that defendant has failed to pay the remaining consideration amount within time up till 30.06.2019. In this way the agreement has become rescind itself. The non- depositing of remaining sale price within time will be determined at touch stone of evidence. So, in view of above observations as per admission of defendant regarding execution of agreement to sell, prima facie petitioner has good arguable case. It is pertinent to mention here that on 23.09.2020 the plaintiff was directed to deposit the remaining sale price to show his willingness and subsequently on 24.02.2021 the defendant has recorded his conceding statement to decree the suit if plaintiff deposit the remaining sale price but inspite of this, plaintiff failed for compliance of such order. Therefore, in the interest of justice, the petition in hand is hereby accepted and adinterim already granted on 16.06.2020 is hereby confirmed with subject to deposit of remaining sale price Rs. 35,00,000/- keeping in view the case law titled “Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others vs. Messrs Educational Excellence Ltd. and others” 2020 SCMR 171 (Supreme Court of Pakistan) till 14.09.2021, otherwise, the instant application alongwith suit will be deemed to be dismissed.”

(Emphasis supplied)

The respondent, instead of complying with the direction of the Trial Court, filed application for review of order dated 07.09.2021 on the ground that the petitioner’s title qua the suit property is in question and the petitioner be directed to seek permission from the Court of competent jurisdiction to sell the suit property. No reference was made in the said application as to whether any Court has restrained the petitioner from selling the suit property. The contention of the respondent was totally misconceived as the NAB itself clarified the position that the suit property is not disputed and fard bai was also issued by the revenue official concerned. No security was deposited by the respondent, under the law for, seeking review of order dated 07.09.2021. A final warning was given, to the respondent, by the Trial Court, on 21.09.2021 to deposit the balance consideration amount in the following terms:

"کو نسل مدعی کی طرف سے اعجاز کانجو ایڈووکیٹ بطور proxi کو نسل پیش ہوئے اور کو نسل مدعا علیہم حاضر، بحث درخواست سماعت شد، اور دعویٰ ھذا کو بوجہ عدم سیکورٹی درخواست نظر ثانی کو خارج کرنے کی استدعا کی ہے اور دعویٰ ھذا کو بوجہ عدم ادخال زرشمن خارج کرنے کی استدعا کی ہے اور حکم مورخہ 07.09.2021 پر عملدرآمد کرنے کی استدعا کی ہے مگر بجائے کو نسل بیانی ہیں کہ مدعی خود ایک ایڈووکیٹ ہے ذاتی مصروفیت کی وجہ سے حاضر نہ آسکا ہے۔ مہلت دی جاوے مگر کونسل مدعی حاضر نہ آئے ہیں تا ہم بغرض انصاف قطعی آخری موقع برائے بحث درخواست نظر ثانی و ادخال بقیہ زربیع مبلغ-/135 لاکھ روپے بتقرر 25.9.21 پیش ہو دے۔ بصورت دیگر درخواست پڑھ کر فیصلہ کر دیا جائے گا اور عدم ادائیگی زربیع کی صورت میں دعوی خارج کر دیا جائیگا۔"

(Emphasis supplied)

In the meanwhile, the respondent filed an application for transfer of the case, which application was also dismissed. Thereafter, the case was fixed for 18.10.2021, when again another warning was given to the respondent in the following terms:

“Today the instant case was fixed for depositing of remaining sale amount but today again the plaintiff has failed to produce any receipt regarding depositing of remaining sale amount. At this stage, order of learned appellate Court has been submitted in which transfer application filed by the plaintiff has been dismissed. Keeping in view the case law titled “Messrs Kuwait National Real Estate Company (Pvt) Ltd and others vs Messrs Educational Excellence Ltd and others” 2020 SCMR 171 (Supreme Court of Pakistan), plaintiff is directed to deposit remaining consideration amount i.e. Rs. 35,00,000/- till 20.10.2021 as per order dated 14.10.2021, positively.”

(Emphasis supplied)

The respondent remained failed to comply with the above quoted order of the Trial Court to deposit the remaining sale consideration and hence, vide order dated 20.10.2021, the respondent’s suit was dismissed. However, in appeal, the findings of the Trial Court were reversed on the ground that the petitioner has consented to the passing of the decree, before the Trial Court, therefore, the respondent is entitled to decree of specific performance of the agreement.

1. Adverting to the first question, it is pertinent to observe that in terms of Section 22 of the Specific Relief Act, 1877 (“the Act”), the jurisdiction of the Courts to issue a decree of specific performance is discretionary in nature as it is an equitable relief, thus, the Court is not bound to grant such relief merely because it is lawful to do so let alone that the same is exercised in favour of a plaintiff who has exhibited contumacious conduct by not complying with repeated directions of the Court to pay balance amount of sale consideration. Cases reported as “Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189); Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad (2017 SCMR 1696); and “Mrs. Zakia Hussain and another v. Syed Farooq Hussain (PLD 2020 S.C. 401) are referred in this regard. Equity mandates that in a suit for specific performance, it is the duty of the Court to find out, which party has not performed and is trying to wriggle out of his contractual obligations. In exercise of such discretion, the Court may consider the conduct of the parties which becomes relevant in granting and/or refusing decree for specific performance being discretionary and based on principles of equity. In cases involving specific performance, the primary part of the contract is the consideration to be paid by the vendee for which he must exhibit his willingness and readiness, at all times. In this regard, he must unconditionally seek permission of the Court, on the first date of hearing, to deposit the remaining sale consideration. The Supreme Court in case reported as “Hamood Mehmood v. Mst. Shababa Ishaque and others” (2017 SCMR 2022) observed that it is mandatory for a person seeking performance of the contract, under the Act 1877, to seek permission of the Court to deposit the balance sale consideration and any contumacy/omission in this regard would entail dismissal of the suit. While willingness and readiness of a plaintiff in a suit for specific performance of the contract is crucial and relevant, there are certain aspects which may be relevant viz-a-viz the conduct of the plaintiff/vendee entitling and/or disentitling him from the decree for specific performance. It is to be kept in sight that the law of limitation prescribes a specific time for institution of suit for specific performance and the same is considered within time even if filed on the last day of the limitation period prescribed under the law. However, the vendee, as part of natural human conduct, is expected to immediately file a suit for specific performance of contract on refusal of the vendor to adhere to his contractual obligations which would exhibit that the vendee is willing and ready to perform his part of the contract in terms of deposit of the balance consideration. Any delay in this regard may indicate his intention that the plaintiff/vendee himself is not ready and willing to perform his part of the contract and the Court may refuse to grant specific performance on account of such conduct. This is so because it also needs to be kept in sight that in a rising market, the vendee makes a profit by the delay after tying down the seller by creating false excuses. In the present case, there is no explanation in the suit as to why the respondent remained mum for a period of almost one year after the cut-off-date and never acted promptly to institute the suit.

2. Having the above legal position in sight and keeping in view the brief resume of the entire proceedings that took place before the Trial Court and analyzed hereinabove, this Court is of the opinion that the respondent entered into the agreement with the petitioner and thereafter, entangled the latter into litigation and avoided the payment of the balance consideration amount on one pretext or the other, which propels to opine that the respondent was neither willing nor ready to pay the balance amount of consideration and the Appellate Court below was not justified in relying on the admission of execution of the agreement by the petitioner before the Trial Court to decree the suit of the respondent. In fact, when the direction of the Trial Court dated 23.09.2020 was not complied with by the respondent, the Trial Court should have immediately proceeded to dismiss the suit in terms of dicta laid down in case titled “M/s. Kuwait National Real Estate Company (Pvt) Ltd. and others v. M/s. Educational Excellence Limited and others” (2020 SCMR 171) and by not doing so the Trial Court too proceeded with irregularity that added to the agony of the petitioner.

3. The Appellate Court below was not justified in relying on the admission of execution of the agreement by the petitioner before the Trial Court and the offer of the petitioner that he has no objection if the suit is decreed ignoring the fact that said offer was conditional and subject to payment/deposit of balance amount of consideration. Offer of the petitioner recorded in order dated 24.02.2021 reads as under:

"برحلف بیان کیا کہ اگر مدعی بقیہ زر ثمن داخل عدالت کر دے تو مدعی کا دعوی ڈگری کیے جانے پر اعتراض نہ ہے۔"

The respondent never deposited the balance consideration before the Trial Court. Therefore, offer of the petitioner, quoted hereinabove, and the admission of execution of the agreement does not justify the contumacious conduct of the respondent. The Appellate Court below also erred by not appreciating that in terms of the dicta laid down in Hamood Mehmood case supra, the respondent himself should have sought permission of the Court to deposit the remaining sale consideration. On the contrary, the respondent failed to comply with the repeated directions of the Trial Court to deposit the same. In fact, the manner in which the respondent put spooks in the wheel of the proceedings before the Trial Court by filing various applications go on to reflect his non-readiness, if not unwillingness, to perform his part of the contract by payment of the remaining sale consideration. Therefore, the Trial Court rightly passed order dated 20.10.2021. When the appeal was preferred on 25.10.2021, the Appellate Court below directed the respondent to pay the Court Fee and also remaining consideration amount of Rs. 3,500,000/- on/or before 06.11.2021 when only Court Fee was deposited and the order of the Appellate Court regarding deposit of balance consideration was not complied with. No extension was solicited by the respondent. An application was filed with the Duty Judge on 17.11.2021 and order was procured to deposit the balance amount of consideration when the petitioner was not even heard. The application was allowed by the Duty Judge while recording findings on the top margin of the application, in the following terms:

“Petition is allowed as per request of the petitioner. The amount may be deposited through Bank challan.”

When the appeal was finally heard, the Appellate Court below while relying upon the cases of Muhammad Asif Awan and Muhammad Jahanzaib Khan supra accepted the appeal of the respondent. It has been noted that the case of Muhammad Asif Awan supra is not attracted in the present matter inasmuch as no warning was given to the vendee of the said case to deposit the balance consideration as opposed to the factual matrix of the present case where repeatedly, the respondent was directed to deposit the balance consideration while stipulating penal consequences but to no avail. It is pertinent to note that the petitioner/defendant having refuted the assertion of the respondent that the suit property was under caution by the NAB and obtained fard bai and also extended an offer to the respondent/plaintiff during the trial proceedings, which the respondent/plaintiff by his conduct refused to accept. As a natural corollary, the offer made by the defendant evaporated and dissipated. This Court is of the opinion that in peculiar facts and circumstances of the case, a conditional offer made by a party (the defendant) before the Trial Court to decree the suit for specific performance of the contract, which was not accepted by the other party (the plaintiff) does not remain valid at the appellate stage. Therefore, it was unjustified to pass the impugned judgment and decree on the basis of an offer which no longer existed, in favour of litigant who has acted in a contumacious manner. Insofar as the case law cited as Muhammad Jahanzaib Khan supra is concerned, the same is distinguishable and not applicable to the present case as in the said case, the Court held that direction of deposit of remaining sale consideration was not justifiable on the ground that the execution of the agreement to sell, in the said case, was specifically denied which is not the situation in the present case where not only the execution is admitted but the petitioner also offered his willingness to sell if the respondent had made payment of remaining sale consideration, which the latter failed to meet.

1. The matter can be examined from another angle. The same relates to the stubbornness on the part of the respondent to purchase the suit property even though, as per his stance, the same was under encumbrance by NAB authorities, which stance though was belied after the clearance was given by the NAB authorities and fard bai was issued by the Halqa Patwari. This perplexes a reasonable mind as to why the respondent was bent upon purchasing a property which, if his stance was correct, was prohibited to be transacted, by the NAB as this was the only concern shown by the respondent for non-adherence to his part of the contractual obligations as also the repeated directions of the Trial Court to deposit the balance consideration. The clearance by NAB authorities coupled with the offer by the petitioner (vendor) should have prompted the respondent to grab the opportunity but he protracted the payment before the Trial Court on one pretext or the other. Even when the Appellate Court below admitted the appeal of the respondent for hearing and directed him to pay the balance consideration, the said direction was not complied within stipulated period of time and the deposit was only made in a clandestine manner while filing an application before the Duty Judge who merely allowed the same without examining the record and hearing the petitioner. Even at the time of filing the appeal, the respondent could have exhibited that he is willing and ready to pay the balance consideration but he did not do so and the Appellate Court below itself had to direct the respondent to deposit remaining consideration by 06.11.2021, which was not adhered to by the respondent that further reflects on contumacious conduct of the respondent qua claim of equitable relief. On a pointed question, put thrice by this Court, to the respondent as to whether he can show a single document to exhibit his financial position to pay the balance amount on the cut-off date, the date of institution of suit or such other dates of hearing when the Trial Court gave multiple warnings, he was completely speechless for a while and stated that he sold his house to pay the balance amount before the Appellate Court below. This fact in itself indicates that the respondent after tying down the property of the petitioner under the agreement, had no capacity to pay the balance consideration, instituted the suit after about one year from the elapse of the cut-off date under the agreement and despite repeated directions by the Trial Court never deposited the balance amount that exhibits unjust and unfair approach of the petitioner towards discharge of his contractual obligations and hence, disentitles him from grant of equitable relief of specific performance. Suffice to observe that the performance of the contract is not to be seen from the date when it is suitable to the plaintiff. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior as well as subsequent to the institution of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the cut-off date set for completion of the contract till date of the decree, the plaintiff must prove that he is ready and has always been willing to perform his part of the contract.

2. In view of the preceding discussion, this Court is of the view that the conduct of the respondent has been far from fair and he has failed to make out a case for the grant of any equitable relief since his conduct amply shows that he was not ready and willing to perform his part of the contract: neither (i) when the suit was instituted; (ii) nor when the interim injunction was granted; nor (iii) throughout the proceedings before the Trial Court and only deposited the amount, at the appellate stage, when it suited him, which aspect has escaped the notice of the Appellate Court, hence, the impugned judgment and decree dated 03.03.2022 passed by the Appellate Court below is set aside and the order of the Trial Court dated 20.10.2021 dismissing the suit of the respondent is upheld.

3. It is well evident that the respondent has acted contumaciously, however, this Court is to keep in sight that the petitioner sold the suit property to the applicant of C.M. No. 2833/2022 for Rs. 6,600,000/-, i.e., Rs. 1,600,000/- in excess of the amount agreed to be paid by the respondent under the agreement. In the circumstances, forfeiting the earnest money would be a harsh decision, therefore, the amount of earnest money, which the petitioner received, is to be returned to the respondent within a period of two months from today. In view of the fact that the revision petition has been accepted and the impugned judgment in favour of the respondent has been set aside, C.M. No. 2833/2022 has become infructuous.

4. Allowed in the above terms.

(Y.A.) Civil revision allowed

PLJ 2024 Lahore 362

Present: Muhammad Tariq Nadeem, J.

HAJRA JAVAID MAKHDOOM--Petitioner

versus

MUHAMMAD TEHMAS NASIR, etc.--Respondents

W.P. No. 59534 of 2022, decided on 19.12.2023.

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----S. 6(5)--Constitution of Pakistan, 1973, Art. 199--Criminal Procedure Code, (V of 1898), Ss. 249-A/435/439-A--Second marriage without permission--Application for acquittal--Accepted--Criminal revision--Allegation of--The application was accepted by Magistrate--The petitioner filed a criminal revision before Court of Sessions Judge which was dismissed--Respondent No. 1 was acquitted mainly on the ground that he had already divorced petitioner before contracting second marriage--Appeal was filed on question of law and facts whereas in criminal revision only correctness, legality and propriety of any finding, sentence or order is to be seen--There was no illegality or perversity in order--Petition was dismissed.

[Pp. 363, 364, 366 & 367] A, B, C, E, G

2005 SCMR 1544 ref.

Constitution of Pakistan, 1973--

----Art. 199--Section 417(2) Cr.P.C--Appeal against acquittal--When statute has provided a specific alternate remedy of appeal against acquittal, constitutional petition is not competent. [P. 366] D

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

----S. 417/435/439/439-A--A criminal revision is not competent against the order of acquittal, because, it is prohibited according to Section 439(4)(a) Cr.P.C. [P. 366] F

Dr. Khalid Ranjha, Advocate for Petitioner.

Date of hearing: 19.12.2023.

Order

Through this writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has voiced his grievance as under:-

“In view of the above circumstances, it is most respectfully prayed that the above titled writ petition may kindly be allowed and the case be referred back to learned magistrate for retrial and there after for criminal revision before learned ASJ.

Any other adequate relief which this Honorable Court deems fit just and proper may also be awarded to the petitioner in order to meet the ends of justice.”

1. Tersely, the facts of the case are that the petitioner had instituted a private complaint under Section 6(5) of the Muslim Family Laws Ordinance, 1961, before the learned Judicial Magistrate, Sargodha, against Respondent No. 1 with the allegation that he had contracted second marriage without her permission and, thus, committed an offence. After recording cursory evidence, learned Judicial Magistrate, Sargodha, summoned Respondent No. 1 to face the trial in terms of Section 6(5) of the Ordinance ibid. Respondent No. 1 joined the proceedings of the case and during the pendency of said proceedings, he filed an application under Section 249-A, Cr.P.C. with the assertion that the allegation of contracting second marriage without the permission of petitioner was totally against the facts and the private complaint had been filed by petitioner just to blackmail him. In fact, he had already divorced the petitioner which was effected on 06.07.2021 and thereafter he contracted second marriage. It was further asserted by the petitioner that there was no probability of his conviction in the private complaint, for the reason, he may be acquitted of the charge under Section 249-A, Cr.P.C. This application was accepted by learned Magistrate Section-30, Sargodha, vide order dated 18.05.2022. Aggrieved by the above-mentioned order, the petitioner filed a criminal revision under Section 439-A, Cr.P.C. before the Court of learned Sessions Judge, Sargodha, which was entrusted to the Court of learned Additional Sessions Judge, Sargodha, who, after hearing the learned counsel for the petitioner as well as learned Assistant District Public Prosecutor, dismissed the same vide order dated 16.07.2022. The petitioner has challenged both the orders of learned fora below through the instant writ petition with the prayer that the case may be referred back to learned Judicial Magistrate for re-trial and criminal revision may also be remanded back to learned Additional Sessions Judge.

2. It is inter alia contended by learned counsel for the petitioner that against the order of acquittal under Section 249-A, Cr.P.C. a criminal revision in terms of Section 439-A, Cr.P.C. was competent, because, acquittal order had not been passed on merits. Learned counsel for the petitioner has placed reliance upon the case-law titled as “The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman” (2005 SCMR 1544).

3. I have heard the learned counsel for the petitioner at length on the above short point and also gone through the documents appended with this petition.

4. Although petitioner has not challenged any specific order in the prayer clause as well as in the caption of instant writ petition yet he has prayed for the remand of case to the trial Court as well as criminal revision to the Court of Additional Sessions Judge. I am afraid that the prayer of the petitioner is misconceived, because, matter cannot be referred back to both the fora below at the same time. Even otherwise, supplication of the petitioner is without the backing of law. After going through the documents available with the file, I have noticed that the petitioner had filed a private complaint under Section 6(5) of the Muslim Family Laws Ordinance, 1961, against Respondent No. 1, wherein Respondent No. 1 filed an application under Section 249-A, Cr.P.C. which was accepted by the trial Court vide order dated 18.05.2022 whereby Respondent No. 1 was acquitted mainly on the ground that he had already divorced the petitioner before contracting second marriage. Being aggrieved, the petitioner filed criminal revision against the acquittal of Respondent No. 1, which was dismissed by Additional Sessions Judge, Sargodha,vide order dated 16.07.2022 with the following observations:-

“3. According to assistance of learned counsel for the petitioner, learned ADPP, and record reveals that through impugned order learned lower Court acquitted the Respondent No. 2, u/S. 249-A Cr.P.C, and present petitioner challenged the acquittal of Respondent No. 2, through instant revision petition. Order of acquittal u/S. 249-A Cr.P.C, not amenable to revision in view of remedy available to the petitioner u/S. 417 (2) Cr.P.C. Sub-Section 5 of Section 439-A Cr.P.C, clearly provide that where in a Court an appeal lies and no appeal is brought, not proceeded by way of revision shall be entertain at the instance of petitioner who could have appealed. Learned ADPP also added that instant revision is not proceedable. Hence, instant revision petition is accordingly dismissed. The certified copy of this order be sent to the learned Lower Court for information. The file of this revision petition be consigned to record room after its due completion.”

1. The question, whether the order of acquittal under Section 249-A, Cr.P.C. was amenable to criminal revision or the same was assailable before this Court through a petition for special leave to appeal as provided under Section 417(2) Cr.P.C. has not been satisfactorily answered by learned counsel for the petitioner. For reference, Section 417(2) Cr.P.C. is reproduced as infra:

“417. Appeal in case of acquittal: (2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.”

Likewise by virtue of Section 439(5), Cr.P.C. there is bar on the revisional jurisdiction of the Court in the cases where remedy of appeal is provided under the Code ibid. Sections 439 and 439-A, Cr.P.C. are described as infra for the purpose of clarity:-

“439. High Court’s powers of revision: (1) In the case of any proceeding the record of which has been called for by itself, […] or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.

(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Where the sentence dealt with under this section has been passed by Magistrate […], the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by Magistrate of the first class.

(4) Nothing in this section shall be deemed to authorize a High Court:

(a) to convert a finding of acquittal into one of conviction, or

(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under Section 439-A.]

(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show- cause against his conviction.”

“439-A. Sessions Judge’s powers of revision: (1) In the case of any proceeding before a Magistrate the record of which has been called for by the Sessions Judge or which otherwise comes to his knowledge, the Sessions Judge may exercise any of the powers conferred on the High Court by Section 439.

(2) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him under any general or special order of the Session Judge].

1. Another intriguing aspect of this case which cannot be ignored is that whether a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is competent against the order of acquittal under Section 249-A, Cr.P.C, in this regard, I am of the firm view that when the statute has provided a specific alternate remedy of appeal against acquittal, constitutional petition is not competent against such an order, therefore, the writ petition in hand is not maintainable in the eyes of the law.

2. So far as the wisdom laid down by the Supreme Court of Pakistan in case-law titled as “The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544) is concerned, although it has been held in the aforementioned case-law that the order of acquittal of accused under Section 249-A, Cr.P.C. would not have the same sanctity as order of acquittal on merits and the principles applicable to second category of acquittal would not apply to first category of acquittal, but I am of the view that it does not mean that the acquittal order passed under Section 249-A, Cr.P.C. is amenable to revisional jurisdiction as enshrined in Section 439-A, Cr.P.C. After going through the above mentioned case-law, it manifests that even in the said case also, appeal in terms of Section 417, Cr.P.C. was filed before the Sindh High Court against the acquittal of accused under Section 249-A, Cr.P.C. which was dismissed in limine and the same was challenged before the Supreme Court of Pakistan. In this way, it is abundantly clear that the case-law relied upon by learned counsel for the petitioner is not helpful to him.

3. It is noteworthy that criminal appeal and revision have different features. Appeal is filed on question of law and facts in the light of Section 418, Cr.P.C. whereas in criminal revision only correctness, legality and propriety of any finding, sentence or order is to be seen. A criminal revision is not competent against the order of acquittal, because, it is prohibited according to Section 439(4)(a) Cr.P.C.

10. Aftermath of above discussion is that the criminal revision before the Court of learned Additional Sessions Judge was not competent, because, an order of acquittal can only be assailed by way of remedy provided under Section 417(2), Cr.P.C. and not otherwise, therefore, there is no illegality or perversity in the order passed by learned Additional Sessions Judge, who has rightly dismissed the criminal revision. Resultantly, this constitutional petition has no force and the same is hereby dismissed in limine.

(K.Q.B.) Petition dismissed

PLJ 2024 Lahore 367 [Rawalpindi Bench Rawalpindi]

Present: Jawad Hassan, J.

MEHMOOD ALI--Petitioner

versus

CHAIRMAN EVACUEE TRUST PROPERTY BOARD and others--Respondents

W.P. No. 1479 of 2023, heard on 26.2.2024.

Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977--

-----Cl. 3(iii)--Constitution of Pakistan, 1973, Art. 199--Joint tenancy--Death of one tenant--Applications for change of tenancy--Dismissed--Appeals--Accepted--Direction to process case for change of tenancy--Tenancy was changed--Revision petition--Dismissed--Deceased tenant was issueless--Petitioner was co-sharer--Cancellation of tenancy rights--Obligation of--Determination of status and entitlement of legal heirs--Two persons were claiming tenancy rights under “Scheme”; one was Petitioner who was claiming tenancy rights being co-sharer and legal heir of “deceased tenant” in “Rented Shop” while second was Respondent No. 5, who was claiming such right being exclusive legal heir of her deceased husband--It was legally incumbent upon Respondents No. 1 to 4 to had determined status and entitlement of other legal heirs of “deceased tenant” in course of proceedings eventuating in orders in question passed by them--Schedule of tenancy had neither been provided by either of parties before High Court nor before authorities at time of passing orders and parties never approached concerned authorities for more than seventeen years for determination of their rights of legal heirship--The request of counsel for Petitioner to interpret Clause 3(III)(B)(b) of “Scheme” could not be entertained at that stage.

[Pp. 372, 373, 374 & 375] A, B, C & D

2023 SCMR 1502, 2022 SCMR 1647 and 2021 SCMR 369 ref.

Raja Israr Ahmad Abbasi, ASC with Mohammad Masood Mahmood and Raja Anwaar-ul-Hassan, Advocates for Petitioners.

Syed Najam-ul-Hassan Hashmi, Advocate for Respondents No. 1 to 4.

Hafiz Ahsan Khokhar, ASC for ETPB with Asif Khan, Deputy Administrator ETPB.

Mr. Wisal Khan, Advocate with Tanzeela Nazar, Sarah Khan, Afaq Masood and Ahmad Hasan, Advocates for Respondent No. 5.

Mr. Zeeshan Riaz Cheema, ASC.

Dates of hearing 14.02.2024 & 26.02.2024.

Judgment

The Petitioner has sought interpretation of Clause 3 of the Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977 (the “Scheme”) from the Court by applying Doctrine of Textualism as developed by this Court in “Service Global Foot Wear Limited versus Federation Of Pakistan and others” (PLD 2023 Lahore 471) whereby the Court held that statute should be interpreted according to its plain meaning and not according to the intent of legislature.

I. CONTEXT

1. By invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner has challenged order dated 5.4.2023 passed by the Respondent No. 4/Additional Secretary Incharge, Ministry of Religious Affairs and Interfaith Harmony, Islamabad, whereby revision petition filed by him against the order dated 13.03.2023 was dismissed. The Petitioner has also prayed to set aside orders dated 13.03.2023, 16.02.2023 passed by the Respondent No. 3.

II. BRIEF BACKGROUND

1. Facts as narrated in this petition are that the Petitioner and his deceased brother Muhammad Ali (husband of the Respondent No. 5) (the “deceased tenant”) had been jointly dealing with their business as tenants in Shop No. 49 of Building No. U/1442 vide Demand No. 1-1711-1-1997-O, situated at Macca Cloth Market, Raja Bazar, Rawalpindi (the “Rented Shop”). After the demise of the “deceased tenant” in year 2005, two applications for change of tenancy were moved respectively by the Petitioner and the Respondent No. 5 before the Respondent No. 3, which were dismissed vide order dated 03.11.2022, against which appeals were preferred before the Respondent No. 2 by the Petitioner and the Respondent No. 5. These appeals were accepted vide order dated 30.12.2022 with a direction to the Respondent No. 3 to process the case for change of tenancy as per law and whilst passing fresh order. On submission of applications by the parties for change of tenancy, the Respondent No. 3 videorder dated 16.02.2023 changed the tenancy in favour of the Respondent No. 5. Before the above said order was challenged, the said Respondent passed another order dated 13.03.2023 against which revision petition of the Petitioner was dismissed vide order dated 05.04.2023, hence this petition.

III. PETITIONER’S SUBMISSIONS

4. Learned counsel for the Petitioner Raja Israr Ahmad Abbasi ASC inter alia argued that the Petitioner, being real brother, was sharing the business with the “deceased tenant” and, after his demise, he is entitled to the tenancy rights being one of the legal heirs; that the impugned orders have been passed in oblivious of the “Scheme”; that the “deceased tenant” died issueless and after his demise, the Petitioner, being co-sharer in the “Rented Shop” is in possession and running the business therein, as such, he is entitled to tenancy rights in terms of Clause 3(III)(B)(b) of the “Scheme”; that just to oust the Petitioner from the “Rented Shop”, its rent has been increased by the Respondents by misconstruing Clause 3(III)(A)(a) of the “Scheme”; that the impugned orders have been passed by the Respondents with connivance of the Respondent No. 5, as such, they are liable to be set aside.

IV. SUBMISSIONS OF RESPONDENTS NO. 1 TO 4.

1. Learned law officer filed report and parawise comments on behalf of the Respondents No. 1 to 4 according to which the Petitioner is an illegal occupant on the “Rented Shop” and he has not produced any document of his joint business with the deceased before the competent authority and the Respondent/ETPB in compliance of direction of Secretary/Revisional Authority, Ministry of Religious Affairs, Islamabad contained in order dated 05.04.2023 sealed the “Rented Shop” on 14.04.2023. It has further been stated that the impugned orders have been passed by the competent authorities as per law.

V. SUBMISSIONS OF RESPONDENT NO. 5

1. Reply of this petition was also filed on behalf of the Respondent No. 5. Ms. Tanzeela Nazar, Advocate controverted the stance of the Petitioner and inter alia argues that the “deceased tenant” was carrying on business in the “Rented Shop” in his sole capacity and, after his demise, the Petitioner took over possession at spot and the tenancy was terminated by the Respondents No. 1 to 4 due to default in payment of rent and illegal occupation; that Clause 3(III)(B)(b) of the “Scheme is not applicable to the case of the Petitioner as he remained fail to prove sharing of business with the “deceased tenant” in the “Rented Shop”; that the impugned orders are well reasoned, legal and have lawfully been passed by the Respondents No. 1 to 4.

2. I have heard learned counsel for the parties and gone through the available record.

VI. DETERMINATION

1. It is not a disputed fact by the parties that the “deceased tenant” died issueless in year 2005. It had all started in year 2022, when the Petitioner and the Respondent No. 5 first time respectively moved applications before the Respondent No. 3/Deputy Administrator for transfer of tenancy rights in their favour being legal heirs of the “deceased tenant”. The said Respondent vide order dated 03.11.2022 cancelled the tenancy rights of sub-unit reflected in the name of the “deceased tenant” on the ground of illegal occupation by the Petitioner and default in payment of rent thereof. The said order was assailed through appeals by the parties before the Zonal Administrator, which were dismissed vide order dated 30.12.2022 and the matter was remanded to the Respondent No. 3 with direction to process the case for change of tenancy rights as per law. Pursuant to aforesaid, the Respondent No. 5 filed application on 16.01.2023 for transfer of tenancy on the ground of being legal heir of the “deceased tenant” while the Petitioner filed application on 18.01.2023 for change of tenancy rights in his favour being a sharer in business with the “deceased tenant”. Both afore-stated applications were decided by the Respondent No. 3 vide order dated 16.02.2023 by dismissing the application of the Petitioner due to non-production of partnership deed and allowing that of the Respondent No. 5 by ordering for transfer of tenancy rights in her favour, which were transferred under Clause 3(iii)B of the “Scheme” vide order dated 13.03.2023. Being aggrieved thereof, the Petitioner filed revision petition before the Respondent No. 2, who upheld the order of the Respondent No. 3 vide his order dated 05.04.2023, relevant portion of the same is reproduced hereunder:

“The impugned property was under the tenancy of Muhammad Ali S/o Abdul Shakoor, who died on 30.03.2005. The petitioner and Respondent No. 4 on 03.11.2022, submitted applications for change of tenancy in their favour. The main stance of the petitioner is that he is in possession of impugned property and running his business alongwith recorded tenant, therefore, tenancy should be transferred in his name alongwith Respondent No. 4 being legal heirs of deceased tenant. During the arguments it transpires that the petitioner has no partnership deed and is in illegal occupation of the impugned property. The department after fulfilling all legal aspect transferred the tenancy right in favour of Mst. Zareen Ali wd/o Muhammad Ali as per clause 3(iii)B of the Scheme, 1977”.

1. Pertinently, Chapter III (Residential/Commercial Buildings and Plots) of the “Scheme” deals with the tenancy, while sub-clause III deals with change of tenancy. The said clause reads as under:

(iii) Change of tenancy may be allowed by a District Officer, an Administrator or the Chairman in respect of a unit/sub-unit carrying rent upto rupees one thousand per month, from rupees one thousand and one to rupees three thousand per month and exceeding rupees three thousand per month, respectively, in the following cases:--

(A) On the express consent, in writing of the previous tenant, the change of tenancy may be allowed by a District Officer, an Administrator or the Chairman, as the case may be, on the following terms and conditions:--

(a) 30% increase in the existing rent;

(b) Payment of transfer fee equal to two years rent at the newly fixed rate in the case of residential unit/ sub-unit and equal to four years rent in the case of commercial unit/sub-unit provided that a residential-cum-commercial unit/sub-unit shall be treated as a commercial unit sub-unit for the purposes of levy of transfer fee;

(c) Payment of outstanding arrears of rent or any other dues out standing; and

(d) execution of tenancy agreement by the new tenant;

(B) On the demise of a tenant the tenancy of a unit/sub-unit shall be alienable in favour of the legal heir(s), indicated in the schedule of tenancy deed; Provided that:-

(a) the condition (a) and (b) mentioned in clause (A) above shall not be applicable to the case of change of tenancy in favour of legal heir(s) of deceased tenant;

(b) if the real brother(s) of father of the deceased tenant were/was sharing the business in a commercial unit/sub-unit with the deceased tenant, they/he shall also be eligible for the change of tenancy alongwith other; legal heir(s); and

in case of change of tenancy in favour or legal heirs on the demise of tenant a representative shall be nominated by the legal heirs from amongst themselves who shall be responsible to pay the rent and to abide by all the terms and conditions of the tenancy, individually and severely.

Underlying for emphases

Bare reading of Clause III of the “Scheme” reveals that District Officer, an Administrator or the Chairman are empowered to change the tenancy with the conditions mentioned under the above referred clause. While Clause (III)(B) of the “Scheme” demonstrates that the tenancy of unit/sub-unit shall be alienable in favour of the legal heirs indicated in the schedule of tenancy deed subject to conditions incorporated under Clause (III)(B)(a) and (b) of the “Scheme”. Notably, two semicolons are used in aforesaid clause, first after the words “change of tenancy alongwith other” and the second after the words “legal heir(s)”. Generally, the semicolon is an indication of the legislature’s intention to deal with different issues within the single section of a statute or a clause of the scheme. The semicolon makes the division between the two parts of the sentence a little more prolonged than a comma. The first semicolon used after the expression “change of tenancy alongwith other” means any other claimant beside brother/father sharing business at the spot, whereas aforementioned second semicolon after the word “legal heir(s)” is intended for scope of change of tenancy at spot in favour of above-mentioned claimants and legal heirs indicated in the schedule of tenancy deed. In the case in hand, two persons are claiming tenancy rights under the “Scheme”; one is the Petitioner (brother of the “deceased tenant”) who is claiming tenancy rights being co-sharer and legal heir of the “deceased tenant” in the “Rented Shop” while the second is the Respondent No. 5, who is claiming such right being exclusive legal heir of her deceased husband. During the course of hearing, the Court confronted to counsel for the parties to place on record the schedule of tenancy deed as mentioned under Clause 3(III)(B) of the “Scheme”, however, it has not been placed on record by either of the party.

1. The Petitioner in order to establish his right of tenancy in the “Rented Shop” has annexed with the petition copy of Income Tax Return for the period ending on 30.06.2004, copy of notice of ejectment dated 18.11.2022, copy of letter dated 17.04.2023 and copy of rent Bill relating to month March-April 2023. Additionally, C.M. No. 1824 of 2023 to place on record certain documents had also been filed, which include application for verification of legal heirship of the “deceased tenant” submitted before the Tehsildar, Rawalpindi by Mst. Kishwar Jahan (sister of the deceased), according to which the deceased left behind Mst. Zareen Akhtar (widow), Mehmood Ali and Yaqoob Ali (brothers) and Mst. Noor Jahan, Mst. Kishwar Jahan, Mst. Shahnaz Akhtar, Mst. Zakira, Mst. Yasmeen and Mst. Ghazala (sisters). He has also annexed photocopies of payment receipts regarding payment of rent in connection with the “Rented Shop” in favour of the Evacuee Trust Property Board from the year 2000 to 2022 alongwith copy of FIR dated 25.08.2023 and some approval bills issued by Shakoor Cloth Store. Likewise, the counsel for the Respondent No. 5 also filed C.M.No. 2404 of 2023 and placed on record list of sub-unit master file issued by the Deputy Administrator, Evacuee Trust Property Board, Rawalpindi. Whereas the counsel for the Respondents No. 1 to 4, though filed report and parawise comments yet attached only copy of FIR dated 25.08.2023, notice to SHO, PS, Ganj Mandi, Rawalpindi regarding sealing of the “Rented Shop”, notice to the Petitioner for vacation of the “Rented Shop” dated 17.04.2023 and copy letter dated 18.04.2023 addressed to C.P.O, Rawalpindi.

2. Surprisingly, the husband of the Respondent No. 5 died in year 2005 and none of the party ever tried to approach to the Respondents No. 1 to 4 for change of tenancy right under the “Scheme”. The parties first time approached the Respondents in year 2022 by submitting their respective applications, consequently, the impugned orders have been passed, perusal of which reveal that at the one hand, the Petitioner has been declared as illegal occupant over the “Rented Shop” and ousted him therefrom due to non-production of partnership deed while on the other hand, the Respondents have transferred the tenancy rights in favour of the Respondent No. 5 without resolving the issue of legal heirship of the Respondent No. 5 and nothing finds discussed or justified as to how the tenancy rights have been transferred solely in her favour under Clause 3(iii)(B) of the “Scheme” without first determining rights of other legal heirs of the “deceased tenant”, as elaborated above. No effort whatsoever has been set forth by the Respondents No. 1 to 4 for the purpose of verification, ascertainment and determination of legal heirs of the “deceased tenant”, particularly when he had passed away issueless. As such, the impugned orders have been passed without affording opportunity of hearing to the other legal heirs of the deceased. Notwithstanding claim of the Petitioner of his holding a joint business with the “deceased tenant” over the “Rented Shop”, it was legally incumbent upon the Respondents No. 1 to 4 to have determined status and entitlement of other legal heirs of the “deceased tenant” in the course of proceedings eventuating in orders in question passed by them. Parties are subject of the “Scheme” and their rights qua the “Rented Shop” are required to be determined in accordance with provisions contained therein. The Supreme Court of Pakistan has reiterated the principle in “Messrs Tri-Star Industries (Pvt.) Limited vs. TRISA BURSTENFABRIK AG TRIENGEN and another” (2023 SCMR 1502) and has held that “Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law without deviating from the prescribed procedure, and where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all .” Determination of status and entitlement of legal heirs of the “deceased tenant” was an utmost required and added obligation of the Respondents No. 1 to 4 in light of repeated guidelines of the Supreme Court of Pakistan stressing hard on the subject, one instance whereof is the case “FAIZ ULLAH and others versus DILAWAR HUSSAIN and others” (2022 SCMR 1647), where it has been held that “It is a settled proposition of law that at the time the inheritance of a deceased Muslim opens, all the entitled legal heirs become owners to the extent of their shares there and then .” The Respondents No. 1 to 4, in course of proceedings in question, have not attended and addressed question of legal heirship of the “deceased tenant” and thus have skipped following the law thereby frustrating and defying intent and requirement of law as well as extinguishing rights of legal heirs of the “deceased tenant”, which course adopted by them is otherwise in clear deviation to the principle audi alteram partem, in connection whereto the Supreme Court of Pakistan has held in case “Government of Khyber Pakhtunkhwa through Chief Secretary and others vs. Muhammad Khurshid” (2021 SCMR 369) that “The learned High Court ought to have followed the principle of audi alteram partem and due process, which are basis of administration of justice, specially when any order, if passed, might affect the rights of the entity not party to the proceedings.” To all extents, the issue raised in this petition pertains to determination of rights of legal heirs, which is a question of fact and cannot be resolved by this Court in constitutional jurisdiction.

3. It is pertinent to mention here that request of the parties to interpret Clause 3 of the “Scheme” in the light of doctrine of textualism cannot be dealt with by this Court as Clause 3(III)(B)(b) of the “Scheme” cannot be interpreted in absence of schedule of tenancy mentioned under the aforesaid clause. Moreover, the schedule of tenancy has neither been provided by either of the parties before this Court nor before the authorities at the time of passing orders and the parties never approached the concerned authorities for more than seventeen years for determination of their rights of legal heirship.

4. The Court at this stage cannot determine issue of change of tenancy of the parties by interpreting Clause 3 of the “Scheme” because the words used in Clause 3(B) state that on demise of the tenant, the unit shall be alienable in favour of his legal heirs. No schedule of legal heirs indicating the legal heirs of demised tenant is available on record and in absence thereof the Court cannot determine onward fate of transfer of tenancy with regard to subject matter.

5. When confronted, parties in attendance admitted that neither they are available with nor the record indicates any legal heirs in schedule of tenancy. Therefore, the request of learned counsel for the Petitioner to interpret Clause 3(III)(B)(b) of the “Scheme” cannot be entertained at this stage because both the parties rely upon respective provisions discussed afore necessitate determination regarding status of legal heirs of the “deceased tenant” for transfer of tenancy, but stance of none of the parties may be responded positively until and unless status of legal heirs of the “deceased tenant” is determined by authorities concerned.

6. In view of above discussion, the writ petition is allowed and the impugned orders are hereby set aside. The matter is remitted to the Respondent No. 3 with a direction to decide it afresh keeping in view Clause 3(iii)(B) of the “Scheme”, elaborated above, after hearing all necessary parties and taking into consideration the documents produced by them, if any.

(Y.A.) Petition allowed

PLJ 2024 Lahore 376

Present: Mirza Viqas Rauf, J.

MUHAMMAD TARIQ KHAN--Petitioner

versus

NATIONAL BANK OF PAKISTAN through President/CEO, etc.--Respondents

W.P. No. 2832 of 2021, decided on 27.3.2024.

Constitution of Pakistan, 1973--

----Art. 199--Assassination of security guard during bank robbery--Petitioner was officer Grade-III in bank--Registration of FIR--Name of petitioner in FIR--Acquittal from charge--Dismissal from service--Inquiry report--Pendency of departmental appeal--Writ petition--Disposed of--Departmental appeal was dismissed--Non-transparent manner--Principles of natural justice--One cannot keep himself aloof from fact that if an employee is precluded to claim premium of his acquittal in departmental proceedings, he cannot be vexed merely on account of his conviction in criminal case--Petitioner was absolved from rest of charges except charge No. 1--The findings of guilt with regard to Charge No. 1 were not tenable as per Inquiry Officer’s own comments--In departmental proceedings, standard of proof of allegations could not be equated with standard of evidence against an accused in a criminal trial but one cannot ignore principle of natural justice while inflicting even meagre penalty upon a person as it amounts to deprive him from right of earning. Right of fair trial, even otherwise, is guaranteed by “Constitution”--High Court being custodian of rights of citizens could not shut its eyes when patent illegalities were floating on surface of record--Right of earning is right to life and no one can be allowed to take away such right in a clandestine manner--Petitioners were proceeded against in a non-transparent and haphazard manner in departmental proceedings, which culminated into their dismissal from service--Impugned orders were apparently suffering with patent illegalities and against principles of natural justice--Petition allowed. [Pp. 391, 395, 396 & 397] A, B, C, D, E & F

2017 SCMR 1179, 2009 CLD 1498, 2023 SCMR 301 and 2015 SCMR 434 ref.

Ch. Imran Hassan Ali, Advocate for Petitioner.

Mr. Muhammad Arshad Tabrez, Advocat for Petitioner (in connected W.P. No. 3243 of 2021).

Malik Muhammad Siddique Awan, Advocate for Respondents.

Dates of hearing: 25.01.2024, 07.02.2024 and 16.02.2024.

Judgment

This single judgment shall govern the instant writ petition as well as W.P. No. 3243 of 2021, raising not only similar questions of fact and law but arising out of common orders as well.

Brief Facts

1. The petitioner herein namely Muhammad Tariq Khan was initially inducted in the National Bank of Pakistan (hereinafter referred to as “N.B.P.”) as officer Grade III on 17.03.1996 and later on was promoted as officer Grade II vide order dated 03.03.2003. On the other hand, Tahir Zaman, who is the petitioner in connected petition was appointed as cashier on 20.05.1995 and ultimately was promoted as officer Grade III w.e.f 01.12.2002. Both the petitioners were when posted at Rawat Branch Islamabad as joint custodian/Manager (Operations) and Cashier respectively, an incident of robbery took place which also resulted into the assassination of security guard of the Bank. This resulted into registration of F.I.R No. 28 dated 13.02.2005 under Sections 302, 396, 409, 412 & 109 of the Pakistan Penal Code, 1860 (hereinafter referred to as “PPC”) at Police Station, Sihala Islamabad against unknown culprits. The petitioners were initially suspended from service and subsequently they were also arrayed as accused in the criminal case. In addition to criminal proceedings, the petitioners were also proceeded departmentally. Shahid Pervaiz Dar, Vice-President/Manager Cantt. Branch, Rawalpindi was appointed as Inquiry Officer, who issued the statement of allegations on 28.04.2005. As per averments contained in the petitions, the Inquiry Officer though exonerated the petitioners from the allegations but they were informed that competent authority being not in agreement with the Inquiry Officer directed the holding of fresh inquiry. For the said purpose, an inquiry committee was constituted, which issued second statement of allegations to the petitioners. On culmination of inquiry, the petitioners were confronted with major penalty of dismissal from service vide order dated 22.03.2007. The petitioners were since confined in jail, so they routed their departmental appeals from prison. In the meanwhile, the petitioners were tried and convicted in the criminal case. Being the condemned prisoners, the petitioners challenged their conviction in appeal before this Court. The appeals were accepted and the petitioners were acquitted from the charges vide judgment dated 08.06.2010. The petitioners, after their release, moved fresh representations/appeals but on failure to decide, the petitioners approached the Federal Service Tribunal, Islamabad. The appeals were, however, dismissed, being not maintainable. The petitioners though challenged the judgment of Federal Service Tribunal before the Supreme Court of Pakistan but remained unsuccessful as the civil petitions were dismissed with the observation that the petitioners could avail appropriate remedies before the proper forum. The petitioners then filed their respective constitutional petitions before this Court, which were allowed with consent by way of a consolidated order dated 09.05.2018 with the observation that the Bank shall hold a fresh inquiry. In pursuance to the above order, Ghulam Mustafa, Vice President/Regional Executive (Credit), Faisalabad was appointed as inquiry officer. On completion of inquiry, the petitioners were found guilty and again they were confronted with major penalty of dismissal from service vide order dated 21.01.2019. The petitioners submitted their representations/appeals before the departmental authority, which remained unattended and ultimately the petitioners voiced their grievance through constitutional petitions before this Court, which were disposed of vide order dated 16.02.2021. The representations/ appeals of the petitioners were ultimately dismissed by way of order dated 29.06.2021, hence these petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as “Constitution”).

2. As both these petitions were admitted for regular hearing, so the respondents submitted their reply wherein it is canvassed that the petitions are not maintainable inter alia; the Court lacks territorial jurisdiction; the petitioners have remedy under the Industrial Relations Act, 2012; “N.B.P” Rules are non-statutory and petitions are rested on factual controversy.

3. Ch. Imran Hassan Ali, Advocate while opening submissions on behalf of petitioners contended that departmental proceedings were since conducted by the Regional Headquarter Rawalpindi so this Court is vested with the territorial jurisdiction and the objection is misconceived. He added that the petitioners are not workmen so they don’t have any remedy under the Industrial Relations Act, 2012. It is argued with vehemence that rules governing the employment of “N.B.P” employees are statutory and this Court can invoke the constitutional jurisdiction. Learned counsel submitted that glaring irregularities were committed during the departmental inquiry. It is contended that the findings of inquiry officer are self-contradictory. Learned counsel further contended that main charges against the petitioners were though never proved but they have been held guilty in an illegal and unlawful manner. In order to supplement his contentions, learned counsel placed reliance on The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others (2017 SCMR 1179), National Bank of Pakistan and another v. Anwar Shah and others (2015 SCMR 434), Muhammad Naeem v. Federation of Pakistan and others (2023 SCMR 301), Federation of Pakistan through Chairman Federal Board of Revenue FBR House, Islamabad and others v. Zahid Malik (2023 SCMR 603) and LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009 CLD 1498).

4. Adding to the contentions of his counterpart Mr. Muhammad Arshad Tabraiz, Advocate submitted that the petitioners have been found guilty by the inquiry officer on the basis of surmises and conjectures. It is contended that major penalty has been imposed upon the petitioners in a mechanical manner without adhering the principles of natural justice.

5. Conversely, Malik Muhammad Siddique Awan, Advocate for the respondents, while reiterating the preliminary objections raised in the reply submitted that criminal case was since registered at police station within the territorial limits of Islamabad, so this Court lacks territorial jurisdiction. He also laid much emphasis on the ground that matter in issue entails factual inquiry and this Court cannot substitute the findings of inquiry officer or the appellate authority in writ jurisdiction.

6. Heard. Record perused.

8. Before embarking upon the rigmarole of the factual aspects of the matter, it would be apposite to first attend the objections with regard to maintainability of these petitions. First comes the question of territorial jurisdiction of this Court. As observed earlier that the petitioners are the employees of “N.B.P”. In their respective capacities, as officers Grade II and III, they were posted at “N.B.P” Branch Rawat, Islamabad. During their posting, unfortunately an incident of robbery took place in the bank which resulted into registration of a criminal case against unknown accused but later on the petitioners were arrayed as perpetrators of offence. The petitioners were tried by the learned Additional Sessions Judge, Islamabad and ultimately, they were convicted vide judgment dated 15.06.2007. Feeling dissatisfied, the petitioners challenged their conviction through criminal appeals No. 180 and 178/2007 before this Court which were allowed by way of judgment dated 08.06.2010 and the petitioners were resultantly acquitted. Simultaneously, the petitioners were also proceeded departmentally. In the first departmental inquiry, the petitioners were absolved from the charges by the inquiry officer. The petitioners were, however, informed through letter dated 27.08.2005 that competent authority while disagreeing with the inquiry officer decided to hold a denovo inquiry. In furtherance whereof, an inquiry committee comprising of Mr. Pervaiz Taj Bhatti, Vice President and Mr. Shahzado Khan Pathan, Vice President was constituted which issued fresh statement of allegations on 03.12.2005. It is evident that second show cause notice was issued to the petitioners by the committee through Regional Office, Bank Road, Saddar, Rawalpindi. It is an undeniable fact that all the proceedings pursuant thereto were conducted at Regional Office, Rawalpindi. Even in the previous round, the petitioners filed W.P. No. 2443/2011 and W.P. No. 2539/2011, which were allowedvide order dated 09.05.2018 in the following manner:

“6. In view of above, this petition, as well as W.P. No. 2443/2011, is allowed, the inquiry and the order dated 22.03.2007, passed by respondent-bank is set aside and the respondent-bank, as submitted by learned counsel of the respondent-bank, shall hold a fresh inquiry to provide a fair right of hearing to the petitioner. This exercise, as suggested by learned counsel for the respondent-bank, shall be completed within three months. The petitioner shall appear in the Regional Office of respondent-bank on 01.06.2018 and no notice to procure his attendance will be issued by the respondent-bank.”

It would not be out of context to mention here that after the culmination of denovo inquiry, the matter again came up before this Court through W.P. No. 1712/2019, which was disposed of vide order dated 16.02.2021. In the wake of above discussion, it can thus safely be held that this Court is vested with the territorial jurisdiction to entertain these petitions. While forming my view I am fortified with the principles laid down in The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others (2017 SCMR 1179). The relevant extract is reproduced below:

1. As regards the question of territorial jurisdiction, it hardly need any emphasis that the impugned Notification/ Memorandum has been issued by the Federal Government, which functions all over the country, and since the Respondent No. 1 resides in Karachi, and has a right and choice to proceed abroad through Jinnah International Airport, Karachi, and in fact atleast twice earlier she had proceeded to go abroad through Jinnah International Airport, Karachi, though she was stopped owing to the earlier Notifications/Memorandums, and therefore the embargo placed on her leaving the country has in fact taken place at Karachi, which prevention in all likelihood, was to be repeated at Karachi in pursuance of the third Notification/Memorandum, and thus giving rise to a cause of action against the third Notification/Memorandum at Karachi because of its taking effect there. It is now well settled that the Federal Government, though may have exclusive residence or location at Islamabad, would still be deemed to function all over the country. In this regard the case of LPG Association of Pakistan through its Chairman v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources Islamabad and 8 others (2009 CLD 1498), may be referred to, whereby the Lahore High Court, after meticulously analyzing the judgments rendered by this Court, as well as of the High Courts on the question of territorial jurisdiction, with regard to the acts, deeds and the legislative instruments of/by the Federal Government, has deduced the jurisprudential principles as follows:--

“(A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in any of the Province, shall still be deemed to function all over the country.

(B) If such Government, body or authority passes any order or initiates an action at Islamabad, but it affects the “aggrieved party” at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him.

(C) This shall be moreso in the cases where a party is aggrieved by a legislative instrument (including any rules, etc.) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property; profession; association etc. and any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected.

In this context, illustrations can be given, that if some duty/tax has been imposed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is, maintaining the account at Lahore though the Act/law has been passed at Islamabad, yet his right being affected where he maintained the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad; this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two High Courts.”

And thus whether or not the subject Notification/ Memorandum was issued on the recommendation of the Punjab Government has no relevance to the question of the Court’s jurisdiction in the matter. Furthermore it is also factually incorrect to claim that the Notification/ Memorandum has been issued in pursuance of an order passed by the learned Lahore High Court as the learned High Court’s order dated 17.5.2016, being referred to in this regard, contain only a direction to the petitioner to decide a certain application submitted by the petitioner before it, in accordance with law. Absolutely no direction or order was passed by the learned Lahore High Court for issuance of any Notification/ Memorandum. Even otherwise such order of the learned High Court cannot be successfully used to plead lack of jurisdiction of the learned High Court of Sindh in the matter, because brought under challenge before the High Court of Sindh was the Notification/ Memorandum issued by the petitioner and not any act or deed of the Government of Punjab. Furthermore as noted hereinbefore, the earlier two Notifications/ Memorandums have been successfully challenged before the learned High Court of Sindh as the said Court in view of the above principle, has entertained those petitions.”

1. In the case of LPG Association Of Pakistan through Chairman v. Federation Of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009 CLD 1498), a learned Single Bench of this Court held as under:--

2. From the judgments cited at the Bar on both the sides, the portions whereof have been extensively reproduced, the following ratio is deducible:--

(A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in, any of the Provinces, shall still be deemed to function all over the country.

(B) If such Government, body or authority passes any order or initiates an action at Islamabad, but it affects the “aggrieved party” at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him.

(C) This shall be moreso in the cases where a party is aggrieved or a legislative instrument (including any rules, etc.) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property; profession, association etc. and any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected.

In this context, illustrations can be given, that if some duty/tax has been imposed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is maintaining the account at Lahore, though the Act/law has been passed at Islamabad, yet his right’ being affected where he maintains the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad; this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two High Courts.

(D) On account of the above, both the Islamabad and Lahore High Courts shall have the concurrent jurisdiction in certain matters and it shall not be legally sound or valid to hold that as the Federal Government etc. resides in Islamabad, and operates from there; the assailed order/action has also emanated from Islamabad, therefore, it is only the Capital High Court which shall possess the jurisdiction. The dominant purpose in such a situation shall be irrelevant, rather on account of the rule of choice, the plaintiff/petitioner shall have the right to choose the forum of his convenience.

1. So far status of rules of “N.B.P” governing its employees is concerned, it is observed that “N.B.P” was established and incorporated under the National Bank of Pakistan (Ordinance No. XIX of 1949) as a body corporate having perpetual succession and a common seal, and shall by the said name sue and be sued. In order to regulate the services of the “N.B.P” employees, the National Bank of Pakistan Staff Service Rules, 1973 (hereinafter referred to as “Rules, 1973”) were made. The above rules followed the National Bank of Pakistan (Staff) Service, Rules, 1980 (hereinafter referred to as “Rules, 1980”), which were given effect from 1st January, 1980. It would be imperative to mention here that “Rules, 1973” were not repealed by the later rules and as such same remained alive for all intent and purposes.

2. In the case of Muhammad Tariq Badr and another v. National Bank Of Pakistan and others (2013 SCMR 314), the question with regard to the nature of the “Rules, 1980” and their effect on the “Rules, 1973” came under discussion before the Supreme Court of Pakistan and it was held as under:

3. Be that as it may, dilating upon the first proposition set out above, suffice it to say that according to the provisions of Section 20 of the Act, 1974 the rule making power is conferred upon the Federal Government in the terms as under:

“Power to make Rules. The Federal Government may, by notification in the official Gazette, make Rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act.”

It is an admitted position that 1980 Rules have not been framed as per the mandate of law ibid, inasmuch as these rules are neither made by the Federal Government nor published in the, official gazette. There is also no cavil/quibble that the said rules have not been composed/enforced with the prior approval of the Government or any subsequent benediction was conferred to those by the Government. Rather (admittedly) the rules have been formulated by the Board of the respondent-bank constituted under Section 11 of the Act, 1974 which stipulate the general power of the Board pertaining to policy making and the administration and management of the nationalized banks. Sub-section (4) thereof specifically provides “The general direction and superintendence of the affairs and business of a bank, and overall policy making in respect of its operations, shall vest in its Board”. Furthermore, as per sub-section (5) of the Act, 1974 the Board shall determine “personal policies of the bank, including appointment and removal of officers and employees” and in accordance with sub-section (10) “All selections, promotion and transfer of employees of banks except the President and decisions as to their remuneration and benefits shall be made by the President in accordance with the evaluation criteria and personnel polices determined by the Board”. From the above it is unequivocally clear that the 1980 Rules have been framed by the Board of the bank pursuant to its authority in the nature of management/ superintendence of the affairs of the bank and/or the policy making power; however for all intents and purposes, it is so done in the exercise of an executive authority under the statute, but having even no remote or possible or permissible connection and nexus to any statutory jurisdiction, these rules thus can at best be termed, understood, comprehended and construed merely as the guidelines or the domestic instructions of the N.B.P., for the purposes of highlighting, elucidating or beneficially revamping the service structure of bank’s employees for their advantage, provided the same do not in any manner contravene the 1973 Rules, but nothing more than that can be imputed to those; and in any case the rules do not enjoy the status of a statutory instrument. And this is not disputed by the parties, therefore, the legal question which eminently calls for the resolution, is that whether non-statutory rules (though we have herein construed these as mere instruction etc.) have, and/or can repeal, rescind or displace the statutory rules of 1973? To plead so, it has been inter alia submitted on the bank’s behalf that on account of Section 13(2) of the Act, 1974 particularly the expression “Notwithstanding” which shall operate as a non-obstante provision/ clause, even though 1980 Rules are non-statutory, yet as per the force of the law afore-stated, these (1980 Rules) have the overriding effect qua the 1973 Rules. In order to appreciate the above contention, it shall be germane to reproduce the whole Section 13 which reads as follows:--

“13. Provisions regarding staff.--(1) Save as otherwise provided in this Act, all officers and other employees of a bank shall continue in their respective offices and employment on the same terms and conditions, remuneration and rights as to pension and gratuity, as were applicable to them immediately before the commencing day.

(2) Notwithstanding any law or any provision contained in a contract agreement, letter of appointment, rules or regulations of a bank, every officer and employee of a bank shall be liable to transfer to any of its branches in or outside Pakistan or to any other bank:

Provided that his status and emoluments shall not be adversely affected.”

A plain reading of Section 13(1)ibid unambiguously postulates that the service of the officers and other employees of the nationalized banks have in fact and in true sense and spirit been secured and protected (emphasis supplied) as per force thereof “on the same terms and conditions” etc. which were applicable to them immediately before the commencement of the Act, 1974. It is an admitted and undisputed factual reality that before the commencing day of 1974 Act, 1973 Rules were validly in force and for all intents and purposes were serving as the conclusive terms and conditions of service of the employment for the N.B.P. officers etc. Thus, by virtue of the Section 13(1), such rules were specifically saved, guarded and shielded instead of having been displaced/repealed/rescinded overridden. The language of the Section 13(1) without any shadow of doubt, spells out the clear intendment of the legislature to preserve the earlier terms and conditions of the nationalized bank, which in the present case undoubtedly were 1973 Rules, rather than being obliterated. The argument of the learned counsel for the respondent that the expression “notwithstanding” appearing in Section 13(2) should be construed as a non obstante provision/clause to annul and cancel 1973 Rules ‘as a whole’ and thus be replaced by 1980 Rules is doubtlessly misconceived and unfounded. The protection and security provided under Section 13(1) which in fact is absolute and unambiguous in nature cannot be negated and vitiated by Section 13(2) on account of the expression “notwithstanding” which is an expression only relatable to that specific part and purpose of the section (i.e. 13(2)). In my candid view it can neither be legally done, or permissible under the law nor it is the purport or the meaning and the spirit of Section 13(2) when it is read in the syntax of its full text. In simplest terms, the tenor and the command of this sub-section is limited and restricted qua the transfer of the officers/ employees of a nationalized bank, inter se the branches of the same bank, and/or a room has been provided for such transfer to any other nationalized bank. Obviously this being the legislative command and if there was anything to the contrary contained in any other law for the time being in force i.e. any law in force at the time of enforcement of 1974 Act, including the 1973 Rules to this restricted extent, the provisions of sub-section (2) of Section 13 shall prevail and anything inconsistent thereto even in the said (1973) Rules or contract/agreement etc. shall be subservient to this provision and has to give way. But this shall be without in any manner affecting any other earlier terms and conditions of service, which stand fully secured under Section 13(1). I may like to add here with emphasis that the Board of N.B.P. constituted under Section 11 of the Act, 1974, at the most was conferred with the power of managing the affairs of the bank in terms of the policies etc. to be formulated by it on the subjects enumerated in the section, but by no express command of law (Section 11) was empowered to make service rules, which can be termed as statutory in nature, with the further authority to annul the statutory rules already in force. In any case, the Board in the garb of its general empowerment of policy making, superintendence and managing the affairs and business of the bank, by no stretch of legal comprehension and principle of interpretation could, rescind, replace, substitute and/or vitiate the 1973 Rules. This undoubtedly could not be done by a non-statutory instrument, which has come into being through simipliciter account of the exercise of executive authority of the Board; and it is a fundamental rule of jurisprudence that the executive has no empowerment to annul or in any manner invalidate or vitiate the command of the statute. Therefore, I am constrained to hold that 1980 Rules have not replaced or rescinded the earlier rules of 1973.”

After going through the principles laid down in the case of Muhammad Tariq Badr supra, there remains no hint of doubt with regard to the nature of “Rules, 1973” being statutory. It is also added with clarity that the petitioners were also governed by the said Rules.

12. Adverting to the contention of learned counsel for the respondent Bank that with the framing of the National Bank of Pakistan Staff Service Rules, 2021 (hereinafter referred to as “Rules, 2021”), the petitioners are to be governed under the said Rules as by virtue of Rule 72 of “Rules, 2021”, “Rules, 1973” have been repealed, suffice to observe that the appropriate answer to this proposition is embodied in Section 6 of the General Clauses Act, 1897, which reads as under:

1. Effect of repeal.--Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

From the bare reading of the above referred provision of law, it clearly manifests that a change in the substantive law amounting to divest and adversely affect the vested rights of the parties shall always have prospective implication unless by express intention of the legislature such law has been made applicable retrospectively. The petitioners, for all intent and purposes, are the employees of “N.B.P” and are governed by the “Rules, 1973” being statutory in nature. “N.B.P” being a statutory corporation is amenable to the writ jurisdiction of this Court under Article 199 of the “Constitution”. Guidance to the above effect can be sought from Muhammad Naeem v. Federation of Pakistan and others (2023 SCMR 301). The relevant extract from the same is reproduced below:

“6. We are cognizant of the legal position that the NBP, being a statutory corporation, is amenable to the writ jurisdiction of the High Courts under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, and its employees when are governed or proceeded against under the statutory rules can also avail the recourse to the writ jurisdiction for the redressal of their griev ances in respect of their service matters. However, this legal position does not merge the NBP, a separate juristic person, into the Federal Government, nor in any manner blur the distinction between NBP a Statutory Corporation and the Federal Government, a constitutional body or in any manner turn the employees of the NBP into the employees of the Federal Government.”

1. One of the objections with regard to maintainability of the petitions is that the petitioners have an alternate remedy under the Industrial Relations Act, 2012 (hereinafter referred to as “Act, 2012”), suffice to observe that “Act, 2012” was promulgated to consolidate and rationalize the law relating to formation of trade unions, and improvement of relations between employers and workmen in the Islamabad Capital Territory and in trans-provincial establishments and industry. Worker and Workmen are defined in subsection (xxxiii) of Section 2 of the “Act, 2012”, which reads as under:

2 (xxxiii) “worker and “workman” mean person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment are express or implied, and, for the purpose of any proceedings under this Act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person who is employed mainly in managerial or administrative capacity.”

The petitioners being the officers of the “N.B.P”, in no way, can be equated or termed as workmen. While forming my opinion, I am fortified with the judgment in the case of National Bank of Pakistan and another v. Anwar Shah and others (2015 SCMR 434). The relevant extract from the same is reproduced below:

1. .... The ‘worker’ and the ‘workman’ defined in the Act mean person not falling within the definition of ‘employer’ who is employed as a supervisor or as an apprentice but does not include a person who is employed mainly in managerial or administrative capacity. On the other hand, the ‘employer’ as defined in the Act includes a person who is proprietor, director, manager, secretary, agent or officer or person concerned with the management of the affairs of the establishment. The term ‘officer’ is specifically mentioned in the definition of term ‘employer’. However, as has been noted from the case-law cited by the learned counsel for the parties, the Courts have not considered the designation of a person to be a factor determining his status of employment in an establishment to be that of an officer or a workman rather the Court has always considered the nature of duties and functions of a person to be the factor which will determine his status as to whether he is a workman or not. In this respect, we may refer to the case of National Bank of Pakistan v. Punjab Labour Court No. 5, Faisalabad (1993 SCMR 672), which was a case relating to an Officer Grade-II of NBP against whom disciplinary action was taken. He approached the Labour Court for redressal of his grievance claiming himself to be a workman. The matter came up to this Court and it was held that the designation per se is not determinative of a person being a workman rather the nature of duties and function determine his status and the burden is on him to establish that he is a workman. As the Officer Grade-II failed to discharge his burden, he was held not to be a ‘workman’ and his grievance petition was dismissed. The ratio of this case and also of the other cases that have been relied upon by the learned counsel for the parties is that the person who approaches a Labour Court for redressal of his grievance claiming himself to be a workman and such status of workman being denied by the employer, it becomes a bounden duty of a person who approaches the Labour forum to demonstrate through evidence that his nature of duties and functions were that of a workman and not that of a managerial or administrative capacity and that he was not an employer. Unless such categoric evidence is led by him, he will not be considered to be a workman and his grievance petition will not be maintainable before the Labour forum. It, therefore, implies that the officer cannot be assumed to be workmen nor such can be declared on mere asking. The argument that officers Grade-I to III are performing supervisory function in itself means that this has to be established by evidence. In this view of the matter, on a solitary claim of the union no blanket declaration can be given that the Officers Grade-I to III in the establishment of NBP are workmen.

2. We may also here make reference to the case of Karachi Pipe Mills Employees Union v. Karachi Pipe Mills Ltd. Karachi (1992 SCMR 36), where union has filed an application under Section 34 of erstwhile Industrial Relations Ordinance, 1969, claiming payment of benefit of overtime to the workers employed in the Mills. This Court, after elaborate discussion, came to the conclusion that CBA in an application under Section 34 of the Ordinance can only raise grievance before a Labour Court for enforcement of its own rights guaranteed under the law, award and settlement and not the rights of an individual worker who has remedy under Section 25A of Ordinance to raise his own grievance in respect of right guaranteed to him under any law, award or settlement. Sections 60 and 33 of the Act are in similar term as that of Sections 34 and 25-A of the Ordinance. Thus, for this reason also NBP Employees Front was not competent in taking up the cause of Officers Grade-I to III of having them declared as ‘workmen’.”

Reference to this effect can also be made to Habib Bank Limited v. Gulzar Khan and others (2019 SCMR 946).

1. Now coming to the propriety of departmental proceedings, resulting into dismissal of the petitioners from service, it is observed without any hint of doubt that there is no legal impediment in conducting criminal and departmental/disciplinary proceedings side by side. It is also trite that even in case of acquittal in criminal proceedings, employee cannot claim immunity being proceeded departmentally. The fate of departmental proceedings is always to be adjudged from the incriminating material placed in support of the charges against the delinquent employee. At the same time, one cannot keep himself aloof from the fact that if an employee is precluded to claim the premium of his acquittal in the departmental proceedings, he cannot be vexed merely on account of his conviction in the criminal case.

2. In order to examine the validity of the departmental proceedings, it is noticed that initially the petitioners were suspended and they were confronted with statement of allegations and charges on 28th April, 2005 in pursuance whereof, an inquiry was conducted by Shahid Pervaiz Dar, Vice President/Inquiry Executive, who exonerated the petitioners from the charges, which followed the second inquiry conducted by two members committee while serving the petitioners with the fresh statement of allegations and charges on 3rd December, 2005. The inquiry committee held the petitioners guilty of the charges and resultantly by way of order dated 22nd March, 2007, major penalty of dismissal from service was imposed upon them. The petitioners were since confined in jail, so they moved a departmental appeal therefrom and later on both the petitioners were convicted in the criminal trial against which they preferred their appeals before this Court, which were allowed. On their release from jail, the petitioners moved fresh departmental appeals and since they received no response from the respondents, so they filed service appeals No. 1358(R)CS/2010 and 1448(R)CS/2010 before the Federal Service Tribunal. The appeals were, however, dismissed by the Tribunal by way of judgment dated 18th June, 2011, being not maintainable. Feeling dissatisfied, the petitioners then filed Civil Petitions for leave to appeal before the Supreme Court of Pakistan, which too were dismissed with the observation that the petitioners could avail the appropriate remedy before the proper forum. The petitioners then filed W.Ps. No. 2443 and 2539 of 2011 respectively before this Court. The petitions were allowed vide order dated 9th May, 2018 in the manner as narrated hereinabove. In pursuance of the order of this Court, denovo inquiry was conducted by Mr. Ghulam Mustafa, Vice President/ Regional Executive (Credit), Faisalabad, who on finalizing the inquiry recommended the imposition of major penalty, which was accordingly imposed by way of order dated 21st January, 2019.

3. The petitioners being dissatisfied again moved departmental appeal before the President “N.B.P” as well as Executive Officer President/Group Head through proper channel, so as to be placed before the competent appellate authority but remain unattended. This prompted the petitioners to file W.P. Nos.1712 of 2019 and W.P. No. 936 of 2019, which were disposed of vide common order dated 16th February, 2021 in the following manner:

“This constitutional petition as well as connected petition W.P. No. 936 of 2019 challenges the dismissal of the petitioners by the competent authority of National Bank of Pakistan (NBP). During the course of arguments, it was admitted by the learned counsel for the petitioners that an appeal under Rule 40 of the NBP Staff Service Rules, 1973 has been filed to the competent authority which has not been decided. Therefore, quite clearly since the petitioners have availed the remedies provided under law, they cannot be permitted to make collateral challenge to the same order. These petitions are therefore disposed of with a direction to the Respondent No. 2 Regional Chief Executive, Rawalpindi Cantt to ensure that the appeals of the petitioners are placed before the competent authority empowered under the rules to decide these appeals. These appeals then shall be decided within the next two months of the receipt of the order of this Court by the competent authority before whom the appeals shall be placed for decision.”

Leaving aside the desultory events occurring thereafter, ultimately by way of order dated 29th June, 2021, the departmental appeal was declined.

1. As already observed that in the first inquiry report, the petitioners were absolved from the allegations whereas in the second inquiry though the petitioners were held guilty but it was scratched by this Court through judgment dated 9th May, 2018 directing the respondent Bank to hold de novo proceedings. In the final inquiry resulting into dismissal of the petitioners, it is noticed that the petitioners were confronted with charges founded on the following statements of allegations:

STATEMENT OF ALLEGATIONS AGAINST MUHAMMAD TARIQ KHAN

“As per the order to the General Manager (Maintenance) being the Competent Authority under Section 2(a) read with Sections 3 and 5 of the Removal from Service (Special Powers) Ordinance 2000, the undersigned has been appointed as the Inquiry Executive to inquire into the following allegations and charges levelled against you.

1. Being Passing Officer/Joint custodian, he under criminal intentions, passed on 12.02.2005 a bogus late cash receipt voucher of Rs. 5,700,000/- in respect of CA No. 870-8 and authenticated late cash receipt in Branch Cash Balance Book (B-2) and joined hands for accomplishment of planned murderous robbery and caused financial loss to the Bank.

2. On 12.02.2005, total cash balance after close of day’s transaction including Prize Bonds was aggregating Rs. 1,425,273.66 and he in connivance with Mr. Tahir Zaman (U/S) OG-III/Cash Officer, after showing bogus receipt of Rs. 5,700,000/- misappropriated Branch Cash Balance valuables worth Rs. 3,862,530/- leaving an amount of Rs. 562,743.66 in large safe and left the branch.

3. He, contrary to the instructions contained in SPM, Volume-I, Para-9/B in respect of “Discipline and General conduct” Rule, owed Rs. 1.200 (M), from Mr. Tahir Zaman, OG-III/Cash Officer evidencing joint malpractices thereof and started foul play of parallel/pocketing banking.

4. He, contrary to the instructions contained in SPM, Volume-I, Para-66/B, 226 & 227 also handed over his small safe keys to his counterpart, Mr. Tahir Zaman, OG-III/Cash Officer at mid night on 12.02.2005. Therefore, he has not only been found guilty as co-associate providing free hand for accomplishment of the heinous crime/ murderous robbery but also created bad name for the prestigious institution.

STATEMENT OF ALLEGATIONS AGAINST TAHIR ZAMAN.

1. Being OG-III/Cash Officer, you joined hands with your counterpart joint custodian at Rawat Branch and involved yourself in criminal and fraudulent malpractices and also started foul play of parallel pocketing banking.

2. In connivance with Mr. Muhammad Tariq Khan, OG-II (U/S) prepared a bogus late receipt voucher of Rs. 5,700,000/- duly entered in Cash Balance Book on 12-02-2005 under your signature and planned to dramatize a pre-planned dacoity that resulted not only cruel slaughtering of the innocent security guard on duty but also financial loss to Bank.

3. During your posting as Incharge Cashier, you had not only been found guilty as main character in heinous crime of murderous robbery during 12/13-02-2005 (night) at Rawat Branch, but also created bad name for the prestigious institution.

4. You for satisfaction of the A/C holder Mr. Masood Pervaiz C/A No. 870-8 made an unauthorized payment of Rs. 700,000/- from Branch cash balance on 12-02-2005 through Mr. Ali Ashgar, Security Guard.

5. You contrary to Bank instructions issued from time to time for strengthening safety and security, allowed your co-associates, criminal professional (outsider) M/s Azam Khan, Blund Khan & Taj Khan to enter the branch premises after 1800 hours on 12-02-2005 and left the branch alongwith Mr. Asif Masih, Sweeper resulting murderous dacoity.

In the process of inquiry, the petitioners were though associated and process was completed on 16th July, 2018 but it appears from the inquiry report that later on the complainant sent further documents in support of the charges through courier under cover of his letter dated 13th September, 2018, which as per Inquiry Officer were routed to the petitioners so as to give a fair chance of defence for their response/ reply with regard to the documents/evidence. The inquiry report was thus revised after taking into consideration the documents submitted by the complainant and the response received from the petitioners in terms thereof. It is an admitted position on the record that the petitioner Muhammad Tariq Khan was absolved from rest of the charges except charge No. 1, which too was proved partly to the extent of passing bogus late receipt of Rs. 5,700,000/- in respect of c/a 870-8 and authenticated late cash receipt in Branch Cash Balance Book (B-52). From the bare reading of nature of the charges, it is manifestly clear that charges No. 1 and 2 are clearly interlinked and dependent to each other. Charge No. 2 was directly relatable to bogus receipts. It is quite strange that on the one hand it is opined by the Inquiry Officer that Charge No. 2 was not proved but on the contrary, the petitioner in W.P. No. 2832 of 2021 was held guilty of Charge No. 1 partly to the extent of passing bogus late receipts. The findings of guilt with regard to Charge No. 1 are not tenable as per Inquiry Officer’s own comments, which are reproduced below for the purpose of convenience:-

1. Copy of Debit Voucher dated 14.02.2005 regarding debit of Rs. 9,562,530.00 to Branch Protested Bill Account bearing signatures of Mr Muhammad Tariq Khan along with signatures of the then Branch Manager, provided by the complainant, shows that dacoity was taken place in branch and the amount of Cash/Valuables found short was debited to Protested Bill. The accused accepted his signatures on the voucher. However from the said voucher, it cannot be ascertained that who dacoit was. Moreover the amount of debit voucher shows that amount of Late Receipt of Rs. 5.700M is included in the amount debited to protest bill. However the copy of above voucher itself does not indicate that late receipt was bogus or otherwise.

2. From the Copy of relevant page of Cash Balance Book B 52 showing late receipt of Rs. 5,700,000/- bearing signatures of the accused, then Branch Manager and Mr. Tahir Zaman, it appears that there was late Receipt of Rs. 5,700,000/- regarding Account No. 870-8 Masood Pervez. Said Page of B 52 does not reflect any thing to ascertain that late receipt was bogus or otherwise.

3. Copy of statement of account of Mr Muhammad Tariq Khan does not show any entry which may create link with late receipt of Rs. 5,700,000/- .

4. The Witness, Mr Mehmood Abbasi, stated that signature on B 52 were put by him confirming the signatures of joint custodian of branch and Head cashier of Branch as per practice of Bank. He endorsed his already submitted statement dated 15.02.2005 in which he has said nothing about late receipt.

5. The accused has stated that the alleged late receipt for Rs. 5,700,000/- was regularly been received from the depositor by the Cash Officer, entered it in the cash receipt book as well as in the Branch Cash Balance Book (B-52).

6. The nature of charges against the petitioner namely Tahir Zaman was almost the same. The Inquiry Officer though absolved him from Charge No. 1 but found him guilty of Charge No. 2 partly, which findings at the face of it are not reconcilable in view of non-proving of Charge No. 1, being the main of the charges.

7. It is evident from the record that the petitioners were held guilty of the charges on the basis of additional material, which was later on purportedly received by the Inquiry Officer from the complainant with regard to which it is specific stance of the petitioners that it was never confronted to them. Though inquiry report states that said material was confronted to the petitioners but there is no cogent evidence to this effect. Apparently for forming an opinion of guilt of the petitioners, statement of Masood Pervaiz recorded under Section 164 of the Code of Criminal Procedure, 1898 (hereinafter referred to as “Cr.P.C”) and his affidavit was made basis but his statement under Section 164, “Cr.P.C” cannot be used against the delinquent employee without even affording him an opportunity to conduct cross-examination upon the person, who made such statement. Even otherwise, for the use of statement under Section 164, “Cr.P.C”, there is a mode provided under said Code, which was not adopted at all. Furthermore, in his statement as well as affidavit, Masood Pervaiz nowhere named the petitioners as his culprits. There is no cavil to the proposition that in departmental proceedings, standard of proof of the allegations cannot be equated with the standard of evidence against an accused in a criminal trial but one cannot ignore the principle of natural justice while inflicting even meagre penalty upon a person as it amounts to deprive him from the right of earning. Right of fair trial, even otherwise, is guaranteed by the “Constitution”.

8. I am cognizant of the fact that though jurisdiction of this Court under Article 199 of the “Constitution” to some extent is limited with respect to the orders ensuing from the departmental proceedings

determining the guilt or otherwise of an employee but this Court being custodian of the rights of citizens cannot shut its eyes when the patent illegalities are floating on the surface of the record. Right of earning is right to life and no one can be allowed to take away such right in a clandestine manner. The petitioners were proceeded against in a non-transparent and haphazard manner in the departmental proceedings, which culminated into their dismissal from service. The impugned orders are apparently suffering with patent illegalities and against the principles of natural justice.

1. For the foregoing reasons, this petition (W.P. No. 2832 of 2021) as well as connected W.P. No. 3243 of 2021 is allowed. As a result, the inquiry report, dismissal order dated 21st January, 2019 and order passed in appeal dated 29th June, 2021 are set aside being illegal and unlawful. As a sequel, the petitioners are reinstated in service with all permissible back benefits. No order as to costs.

(Y.A.) Petition allowed

PLJ 2024 Lahore 398 (FB)

Present: Ali Baqar Najafi, Shahid Bilal Hassan and Jawad Hassan, JJ.

SAEED AHMED SIDHU--Petitioner

versus

ELECTION COMMISSION OF PAKISTAN etc.--Respondents

W.P. No. 2544 of 2024, decided on 11.1.2024.

Elections Act, 2017 (XXXIII of 2017)--

----Ss. 62(1)(g), 63(1)(g), 63(1)(o) & 62(9)(a)--Constitution of Pakistan, 1973, Arts. 17, 199 & 225--Nomination papers--Concurrently rejected--Involvement in a Criminal case--Absconder--Issuance of warrant of arrest--Default in utility dues--Concealment of facts--Doctrine of fugitive disentitlement--Hide and seek--Challenge to--The petitioner had challenged impugned orders passed by Respondent No. 3 and Election Tribunal whereby nomination papers of petitioner to contest election were concurrently rejected--The petitioner was involved in a criminal case relating to 9th May, 2023 in which state buildings and military installations were attacked, damaged and ransacked by mobs headed by some miscreants in big cities--The legal status of an absconder in present context should be seen through prism of “Doctrine of Fugitive Disentitlement” with particular reference to rejection of nomination papers of a candidate for National or a Provincial Assembly in forthcoming General Elections--Inherent powers of High Court could not be Exercised in favour of an absconder--Petition dismissed. [Pp. 399, 400] A, B, C & D

PLD 1956 Federal Court 43, PLD 1969 SC 89, PLD 1981 SC 265, PLD 1985 SC 402 & 2017 MLD 1975 ref.

Mr. Muhammad Ahsan Bhoon, Advocate for Petitioner.

Mr. Imran Arif Ranjha, Advocate for ECP with Mr. Muhammad Haroon Kasi, Director Law ECP, Ms. Bushra Rasheed,Deputy Director Law ECP and Hafiz Adeel Ashraf AD Law ECP (on Court’s call).

Date of hearing: 11.1.2024.

Order

Objection Case Diary No. 5107-2024.

Ali Baqar Najafi, J.--Office objection is overruled. Office to allot the number to this petition which is being taken up today for hearing at the request of the learned counsel for the petitioner.

Main Case.

1. Through this constitutional petition, the petitioner has challenged the impugned orders dated 30.12.2023 and 07.01.2024 passed by Respondent No. 3/Returning Officer and the Election Tribunal whereby the nomination papers of the petitioner to contest the election in PP-154 Lahore-X were concurrently rejected.

2. The facts of the case are that the petitioner filed nomination papers to contest the election in PP-154 Lahore-X which were scrutinized and rejected with the following objections:

“These requirements are mandatory and found in the Constitution of Pakistan, 1973 under Articles 62(1)(g), 63(1)(g) as regards being a proclaimed offender on the above-mentioned FIRs, and under Article 63(1)(0) as regards in respect of default of utility dues over Rs. 10,000/-for over six months, at time of filing nomination papers. Failure to meet them are grounds for disqualification. On these grounds, the nomination papers of Mr. Saeed Ahmad are rejected under Section 62(9)(a) of the Elections Act, 2017”

1. Feeling aggrieved, the petitioner filed appeal before the Election Appellate Tribunal which was dismissed also on the ground that the appellant had not only been found involved in criminal cases but perpetual warrants of arrest has also been issued against him by the Administrative Judge ATCs Lahore in case-FIR No. 96/2023, dated 10.05.2023, registered at police station sarwar Road, District Lahore meaning thereby that the petitioner has concealed all these facts at the time of filing of his nomination papers. Hence this writ petition.

2. Arguments head. Record perused.

6. Admittedly the petitioner is involved in a criminal case relating to 9th May, 2023 in which state buildings and military installations were attacked, damaged and ransacked by the mobs headed by some miscreants in big cities of the province which was responded by the state in careful but a definite manner. The criminal machinery was, therefore, put into motion, the culprits were identified by using the modern devices and evidence was collected against the suspects and accused persons. Some of them resorted to legal recourse but others opted to avoid process of law and then, ultimately, become fugitive from justice. Seizing the opportunity after announcement of General Elections, 2024, they preferred to contest elections by taking pride for what they did on the fateful day in anticipation of their support from general public. They thought it appropriate to offer themselves as candidates without surrender before the Court of competent jurisdiction. In some cases, they got a transitory bail from the High Court of another province for a period to enable them to surrender before the competent Court but, meanwhile, got submitted the nomination papers under the garb of the Ad-interim pre-arrest bail order.

1. The legal status of an absconder in the present context should be seen through the prism of “Doctrine of Fugitive Disentitlement” with particular reference to the rejection of nomination papers of a candidate for National or a Provincial Assembly in the forthcoming General Elections. While tracing the judicial precedents the top of the list in case titled “Chan Shah vs. The Crown” reported as PLD 1956 Federal Court 43, in which it was held that an absconder and fugitive from law should first conform to the judicial orders applicable to him to avoid contempt. Relevant extract at page 46 is reproduced as under:

“It follows, from what has been said above, that Attorneys and Advocates who appear to present petitions, on the criminal side--other than those which lie as of right-are under a duty to see that they are acting in furtherance of justice. It seems to us that this duty is clearly violated when aid, for securing Interference Court to persons who, to their knowledge, are in contempt, i.e., as fugitives from justice, without at the same time ensuring that such persons conform to the judicial orders applicable to them.”

The famous judgment delivered by the apex Court in the case titled “Gul Hassan and another vs. The State” reported as PLD 1969 SC 89, it was held that a fugitive from law is also a contemner who was not entitled to hearing, what to talk of a hearing before any other Court for the purpose of submitting the nomination papers in the General Elections. Relevant extract from page 94 is reproduced as under:

“In this view Gul Hassan being a fugitive from law and a contemner was not entitled to hearing and leave granted to him on limited questions of law was liable to be rescinded.”

In case titled “Hayat Bakhsh and others vs. The State” reported as PLD 1981 SC 265, it was held that a fugitive from justice loses his right of hearing through representation by another person so that his plea might be heard despite his defiance of the Court order. While upholding the above said two views it was observed that the inherent powers of this Court cannot be Exercised in favour of an absconder. Relevant extract is reproduced as under:

“The principle laid down in the cases of Chan Shah and Gul Hassan do not in any way merit review. Rather, some of them need to be reiterated and reaffirmed: The Court would not act in aid of a person who is fugitive from justice; the inherent power cannot be invoked in his favour because it is essential condition of the administration of justice that the person concerned should submit to the due process of justice; where an individual seeks interference of the sovereign to obtain the reversal of a judicial order, he cannot succeed if he himself is engaged in setting that judicial order at naught; the Court would in order to avoid taking drastic action of the dismissal of a matter on account of such a conduct of the person concerned, would afford opportunity to him through some adjournments in the expectation that he might be induced to surrender; this all being in accord with the basic principles governing administration of criminal justice, it is within his power, the appearance of the accused before the Court on the first day of the hearing and, thereafter, if so advised, to seek an order for bail or suspension of sentence, if it is an appeal by the convict. Apart from the foregoing principles laid down in the case of Chan Shah, these aspects were further elaborated in Gul Hassan’s case: if a person is fugitive from justice and is in the state of abscondence, an appeal cannot be filed on his behalf on the basis of a power of attorney executed by him before his abscondence and the same would apply to a power of attorney executed during abscondence; that a fugitive in effect, in view of the principles laid down in the case of Chan Shah, is also a contemner and further that he is not entitled to hearing; that even if it is a case of confirmation of death sentence under Section 374, Cr.P.C. if the convict decamps, he thereby forfeights the right of audience and the High Court would, in such a situation, be competent to consider the case of confirmation of his death sentence and confirm the same even in his absence the confirmation of course will have to be on merits of the case; and this Court would not hesitate even after grant of leave to appeal on the application of such a person, to rescind the leave.”

In case titled “Awal Gul vs. Zawar Khan and others” reported as PLD 1985 SC 402, denial of the right of hearing by an absconder was clearly upheld. It was observed that the absconder must not be rewarded for his unexplained and Noticeable abscondence. Relevant extract from page 404/405 are reproduced as under:

“....... It is now well established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. It is also a well established proposition that unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case the principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct). He cannot then seek a reward for such a conduct (in becoming fugitive from law). The explanation of the learned counsel for the respondents that people some time abscond for fear of being killed in retaliation is too wide to be accepted. It will be only in exceptional circumstances that when whole material for such a situation is analysed and apprehension is treated as absolutely well-founded that it might be so treated. Actually (ordinarily) the arrest and custody with the law enforcing agency furnish a better chance of protection than remaining at large and making oneself available always to the adversaries .......”

Besides, in case titled “Mian Shafique Ahmed and another vs. Federation of Pakistan through Secretary Election Commission of Pakistan Islamabad and 5 others” reported as 2017 MLD 1975, it was held by a Division Bench of Sindh High Court while rejecting his nomination paper that an absconder of attacking on Courts deserves no leniency. Relevant extract from para 9 is reproduced as under:

“9 Furthermore, the Petitioner No. 1 despite specific objection regarding his being proclaimed offender in a case involving attack on Courts, Judges and Advocates, having been raised before the Returning Officer he did not bother to join the proceedings before the learned trial Court i.e. Anti-Terrorism Court, Sukkur .......”

In case titled “Hussain Bux and another vs. District and Sessions Judge/District Returning Officer and Appellate Authority, Sanghar and 3 others” reported as 2002 CLC 281, a Division Bench of this Court held as under:

“..... Criminal case was pending against the petitioner before Sessions Court for the last 6 years, and non-ballable warrants could not be executed upon him – Order of his abscondence under S.512, Cr.P.C. had been issued and proceedings under Ss.87 & 88, Cr.P.C. had been initiated against him-Protective bail granted to him by High Court for a limited period would not have the effect to undo the abscondence order and proclamation order, thus, it could not be said that petitioner was enjoying good character or possessing good reputation .....”

However, in case titled “Muhammad Nawazish Ali Pirzada vs. Election Commission of Pakistan through Provincial Election Commissioner and 6 Others” reported as 2018 CLC 1301, the legal effect of abscondence in submission of nomination paper was discussed. It was held in para 17 as under:

“17. Indeed a person who is fugitive of law, will have no right of criminal appeal in the matter, in which he has been declared absconder unless he surrenders, as held by august Supreme Court, in administration of criminal justice. However, it will be a fallacy to hold that a person who is declared absconder has no right to file any appeal before any forum, in respect of matters which have no nexus and relation to proceedings in which, he was declared absconder. By way of illustration, this will mean that a person who is absconder in a criminal case, cannot be allowed to file appeal even in any civil matters including banking matter, family matters etc before any Court of law. This will practically mean that all fundamental rights of said person for their enforcement through Court of law will be suspended, which is neither the intention of legislation under the Act nor same is permissible under the Constitution.”

This view, we observe with respect, is not convincing and, therefore, cannot be approved for the reasons, firstly, the right to file a civil or a criminal case is the personal right and not the right agitated under Article 17 of the Constitution for representing the constituency. Secondly, under Article 225 of the Constitution the election laws fully apply to the process of holding elections under which personal attendance of a candidate may be required by the Returning Officer. Thirdly, the election campaign by an absconder is a big question mark on the transparency and holding of fair and free elections. Fourthly, the status of a candidate with reference to the clearance of election laws at the time of scrutiny of the nomination papers is most relevant and he must establish himself as Mr./Mrs./Miss clean. Fifthly, playing the “hide and seek” game is against the acceptability of general tendency in the public who are otherwise law abiding and compliant to the laws of the country, therefore, in all fairness, they would like to choose a person which represent their beliefs and thoughts.

For what has been discussed above, this writ petition has been found meritless and is, therefore, dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 404

Present:Muhammad Amjad Rafiq, J.

Syed FAHEEM UL HASSAN--Petitioner

versus

I.G. PUNJAB POLICE, etc.--Respondents

W.P. No. 1075 of 2024, decided on 6.3.2024.

Constitution of Pakistan, 1973--

----Art.199--Illegal confinement--Inquiry report--Concealment of facts--Denial of remand by magistrate--Direction to lodging of detenue to judicial custody--Detenue was not lodged in judicial custody--Criminal breach of duty--When an accused is arrested in a case, his arrest must be shown in all cases registered against him so far within knowledge of investigating agency; however, if he has been lodged to judicial custody in a case, his subsequent physical remand can be obtained by police in other FIRs registered at different police stations or districts or province with permission of concerned Magistrate--If accused was in a judicial custody in another case, granting of further physical remand by Magistrate was not illegal, but in order to further ascertain contention of counsel for petitioner that detenu was not lodged to judicial custody--A report from superintendent District Jail, Lahore was requisitioned which was received to effect that detenu was not lodged in jail pursuant to order of Magistrate--High Court by virtue of order directed Capital City Police Officer, Lahore to conduct an inquiry in matter, register a criminal case against delinquent police officers and submit report to High Court--Report had been received--CCPO Lahore after conducting inquiry had found delinquent police officials as responsible for committing criminal breach of duty and in compliance whereof an FIR Bearing No. 681/2024 under Article 155 (1)(c) of Police Order, 2002 at Police Station Ghaziabad District Lahore stood registered--Petition disposed of.

[Pp. 412 & 413] A, B, C & D

PLJ 2024, Lahore 43, 2012(2) ALT (Crl.) 285, 2013 Cr.LJ 118, 2013 (2) CCR 98, 2014 (10) R.C.R. (Criminal) 84 and 2012 (2) Andh LD (Criminal) 762.

Mr. Kamil Hussain Naqvi, Advocate for Petitioner.

Syed Farhad Ali Shah, Prosecutor General Punjab.

Mr. Imran Abbas Sahi, AAG with Javed DSP.

Mr. Ikram Ullah Niazi and Miss Maida Sobia, Deputy Prosecutors General.

Date of hearing: 6.3.2024.

Order

This petition was filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 for the recovery of Zaheer-ul-Hassan, brother of the petitioner allegedly from illegal confinement of Imran Yousaf Inspector and Adnan Mushtaq ASI serving at Organized Crime Unit Civil Line Division Lahore (Respondents No. 4 & 5), with consequent relief of legal action against the said respondents.

1. In response to notice, report on behalf of Respondent No. 2 (Capital City Police Officer, Lahore) speaks that detenu required in number of cases was arrested in case FIR No. 1641/2023 under Section 392, PPC Police Station Old Anarkali District Lahore on 04.01.2024, being nominated through supplementary statement of the complainant, and while remaining on physical remand with police has been lodged to judicial custody on 08.01.2024.

3. Learned counsel for the petitioner regarded the report deficient due to deliberate concealment of actual facts. According to him, earlier learned Magistrate through order dated 29.12.2023 while declining physical remand, directed the lodging of detenu to judicial custody in FIR Bearing No. 3738/2023 Police Station Ghaziabad, District Lahore for his later appearance on 12.01.2024, but police did not lodge him to judicial custody in such FIR, which fact was denied by the respondents and claimed that after lodging him to judicial custody, his physical custody was again obtained by the order of Magistrate in case FIR No. 1641/2023 under Section 392, PPC Police Station Old Anarkali District Lahore. Upon which learned counsel for the petitioner raised a question that “once an accused is lodged to judicial custody, his further physical remand in that case or some other FIR(s) cannot be granted except a permission for investigation within the jail premises”. Embarking upon such request while attending to Sections 167 & 344 of Cr.P.C, it was observed that though there exist no provision which could authorize the police to obtain physical remand of an accused in another FIR if he had been lodged to judicial custody in a case yet there is also no specific prohibition too. Thus, for seeking legal assistance learned Prosecutor General, Punjab and learned Assistant Advocate General were directed to assist the Court on this point.

1. In compliance with order dated 18.01.2024, the learned Prosecutor General, Punjab submitted his report and took the stance that “practice of police to arrest the accused at their wish and whims in different cases in one after the other for the purpose of investigation separately amounts to denial of fundamental rights and liberty”. He placed reliance on following cases reported as “Ghulam Sarwar versus The State” (1984 PCr.LJ 2588); “Razia Pervaiz versus The State” (1992 PCr.LJ 131) “Shah Nawaz and Ranjhoo versus The State” [NLR 1996 Cr.L.J 116 (Sukkur)], “Dil Muhammad versus The District Magistrate, Quetta and 3 others” [1997 PCr.LJ 1203 (Quetta)] and “Parvez Elahi versus Care Taker Government of Punjab, etc.” (PLJ 2024 Lahore 43).

2. Learned Assistant Advocate General, on the other hand, while referring the cases cited in report of learned Prosecutor General, Punjab as “Shah Nawaz and Ranjhoo versus The State” [NLR 1996 Cr.LJ 116 (Sukkur)], “Dil Muhammad versus The District Magistrate, Quetta and 3 others” [1997 P.Cr.LJ 1203 (Quetta)], “Parvez Elahi versus Care Taker Government of Punjab, etc” (PLJ 2024 Lahore 43), in addition case reported as “Adeel and another versus The State” [2016 YLR 2212 (Peshawar Abbottabad Bench)] supported the view of learned Prosecutor General, Punjab but submits that in appropriate cases physical remand can be granted in different FIRs. Learned Deputy Prosecutors General were also heard at length who reiterated the stance of learned Prosecutor General but stated that a mechanism must be in place to regulate the physical custody of accused for investigation in different FIRs. Upon which for further assistance, research wing of this Court was assigned the duty to collect the relevant case laws. Mr. Muhammad Afzil, Civil Judge/Research Officer very efficiently collected following case laws, aptly applicable on the legal query involved in this case:

“Adeel and another versus The State” (2016 YLR 2212), Gen. (R) Syed Pervez Musharraf versus The State and another” (PLD 2014 Balochistan 33), “Muhammad Tauqeer and another versus The State” [2009 PCr.LJ 648 (Islamabad)], Dil Muhammad versus District Magistrate Quetta etc” (PLJ 1997 Quetta 137 (DB), “Mahmud Ali Kasuri, Bar-at-Law versus Punjab Government Through Secretary, Home Affairs and 3 others” (PLD 1977 Lahore 1400); “Ghulam Rubbani and 3 others versus The State and another” (PLD 1971 Lahore 741); “State versus Sukhsingh and others” (1954 AIR (Raj) 290); “M/s. Jagathi Publications Ltd., rep., by Y. Eshwara Prasad Reddy v. Central Bureau of Investigation, Hyderabad (Andhra Pradesh)” (2012 (2) ALT (Crl.) 285); Asad Qaisar versus Government of Khyber Pakhtunkhaw, thorough Chief Secretary, Peshawar and others (Writ Petition No. 5281-P/2023 With CM No, 2615-P/2023).

1. Out of above Judgments, some speak that though there exist no provision in Cr.P.C. which could authorize subsequent physical remand in the same case once accused is lodged to judicial custody but concerned Magistrate can grant physical remand of such accused in different FIRs if there exist exceptional and convincing circumstances. The logic behind such decision is being highlighted while referring relevant case laws. A division Bench Judgment reported as “Adeel and another versus The State” (2016 YLR 2212 Peshawar (Abbotabad Bench), concludes as under:

“39. It is settled law that once an accused is sent to Judicial lockup he cannot be handed over to Police subsequently and successive remand cannot be given except in extra ordinary circumstances. If remand is required in exceptional cases then it must be on the basis of detail given in the application for remand and the reasons given by the Magistrate concerned.”

Another Division Bench Judgment reported as “Mahmud Ali Kasuri, Bar-At-Law versus Punjab Government through Secretary, Home Affairs and 3 others” (PLD 1977 Lahore 1400), commands as under:

“In addition to the provisions which would ordinarily safeguard the interest of a free person against arrest and detention, in the above visualized situation, the police would face further obstacle in a case where the accused is already in detention in Jail under Court orders. Firstly, the fresh arrest and police custody would, in some manner, encroach upon the judicial custody; and, secondly, it would disturb the prison arrangements which must already be in force in pursuance of the writ of the Court or its warrant/order. The fresh arrest thus cannot be effected by the police unless a specific Court order is obtained in this behalf. Not only this, an order permitting fresh arrest simpliciter would not authorise the police to take the accused out of judicial custody and bring him under police custody without a proper remand order of the Court, even if it is for only twenty-four hours. The Jail Authorities under the law would not be competent to hand over the custody of the accused to the police without the orders of the Court for any period of time whatsoever.”

In the same Judgment, the discretion of police to arrest or not to arrest was focused upon in following words:

“It may be clarified here that the police is not bound under the law to resort to the power to arrest under Section 54, Cr. P. C., in every case where they are permitted to do so. They have the discretion either not to arrest or to arrest under or without warrant. The discretion is wide. There is no compulsion that it must always be exercised in one manner, namely, of effecting physical arrest without warrant. Therefore, in most of the cases, it would not be necessary for the police to go through the ritual of formally arresting a person who is already in detention in jail as an undertrial prisoner in other case.”

The final form of guidelines to grant successive remand, formulated in the judgment, is reflected as under:

“As a corollary, it would follow that it would not be necessary for the Court to permit such, an arrest in every case. The facts and circumstances of the case necessitating such action by the police would have to be kept in mind consistent with the principle that in case of detention for trial of an offence (subject to the facts and circumstances of the case and/or the legal provisions relating to bail) detention in police custody is only an exception to the normal course of judicial custody, if at all the prisoner cannot be allowed to remain at liberty;”

Another Division Bench Judgment reported as “Dil Muhammad versus District Magistrate Quetta etc.” (PLJ 1997 Quetta 137 (DB) throws light on the subject that successive remand can be obtained in different FIRs with the permission of concerned Magistrate; it is as follows:

“7. In the light of above mentioned discussion it can be inferred that once a person is sent to judicial custody, his custody cannot be handed over to Police subsequently and successive remand cannot be given in different cases, but if the cases are registered at different places or different Police Stations remand can be given after completion of necessary formalities which are mandatory in nature and should not be ignored and it must be kept in view that where a accused person is in custody it is necessary that trial Court should be kept aware regarding his remand and prior approval whereof would be necessary. There is no bar in the Provisions as contained in Sections 167 and 344, Cr. P.C. that custody of an accused person cannot be handed over to Police if he is required for the purpose of investigation in a case different from one in which he had already sent to judicial custody.”

On the basis of similar provisions of Cr.P.C., a Division Bench Judgment of Rajasthan High Court from Indian Jurisdiction is also available in support of successive remands which was reported as “State versus Sukhsingh and others” [1954 AIR (Raj) 290: 1955 RLW 46: 1954 CriLJ 79: 1955 RLW 46: 1954(4) ILR (Rajasthan) 413]. It questions that whether where an accused is kept in jail by orders of adjournment or remand under Section 344 of Cr.P.C, can he be handed over to the police in some other case for purposes of investigation. In view of the powers of the Magistrate under Section 167(2), the Court saw no prohibition in the Criminal Procedure Code against such a course. Thus, the logic was discussed like as under:

“Supposing a person is accused of one offence, and investigation of that case is complete and the challan has been submitted to Court, he will, in these circumstances, be sent to jail or to judicial custody to await his trial. Supposing later evidence is discovered of his complicity in another case, and the police in order to complete the investigation of that case requires to question the accused, or the handing over of the accused to police custody would aid the investigation. In some way; in such a case we fail to understand why it may not be open to a Magistrate under Section 167(2) to take the accused out of jail or judicial custody and hand him over to the police for the maximum period of 15 days provided in that Section. Of course, before the Magistrate does so, he will have to satisfy himself that a good case is made out for detaining the accused in police custody in connection with the investigation of the other case.”

The above judgment was also followed in our jurisdiction in case reported as “Ghulam Rubbani and 3 others versus The State and another” (PLD 1971 Lahore 741).

1. As per facts of a case reported as “State versus Fateh Mohammad” (1972 SCMR 182), in response to a warrant of arrest issued by the Magistrate, the offender directly surrendered before him who lodged the accused to judicial custody; later police sought physical remand of accused which was granted. Such order of Magistrate was overturned by the High Court but Supreme Court of Pakistan held as under:

“The statutory right of the police to investigate a cognizable offence cannot be circumvented by the accused by avoiding the Police and surrendering before a Magistrate. It is true that having surrendered before the Magistrate and put himself in the custody of the Court the Police could not secure custody of the person without an order of the Magistrate concerned. And this is exactly how the police secured the custody of the respondent in the present case: It is for the Magistrate in such circumstances to consider whether the accused should continue to remain in the custody of the Court or be delivered over to the Police for the purpose of completing the investigation. In the present case the learned Magistrate in the exercise of the discretion allowed to him under the law made over the custody of the respondent to the Police for a limited time and for a particular purpose. Thus, the Magistrate was legally competent to do. The learned Single Judge of the High Court, therefore, was not right in interfering with the order of the Magistrate without having first held that the Magistrate had not exercised his discretion in a judicial manner.”

1. On information about presence of accused in judicial custody in a case in another district or province, Police can follow the procedure laid down in Rule 26.20 of Police Rules, 1934 for subsequent remand; it is reproduced as under:

26.20. Transfer of arrested persons.--(1) If a police officer lawfully arrests a person, without warrant, in a district in which the investigation, enquiry and trial cannot be held, and the offence is non-bailable or such person cannot give bail, he shall take or send such person before the District Magistrate or Ist Class Magistrate having jurisdiction over the area and obtain an order for the transfer of the prisoner to the district in which the offence was committed.

(2) No accused or convicted person shall be taken in custody from one district to another or from one province to another, except under the written order or warrant of the magistrate or other lawful authority directing such transfer.

1. Even as per Rule-6 (1) (b) of Part-B, Chapter-11 of High Court Rules and Orders, Volume-III, Magistrate can remand the accused to Police custody (if empowered to do so) or to magisterial custody as he may think fit, for a term not exceeding 15 days, which term if less than 15 days, may subsequently be extended up to the limit of 15 days in all, but it does not mean that if before exhausting 15 days’ physical remand accused is lodged to judicial custody, police can retake his physical custody in the same case to claim remaining period out of 15 days. In Rule-10 of same Chapter of High Court Rules and Orders as cited above, it is mentioned that if the limit of 15 days has elapsed, and there is still need for further investigation by the Police, the procedure to be adopted is laid down in Section 344, Criminal Procedure Code. The case is brought on to the Magistrate’s file and the accused, if detention is necessary, will remain in magisterial custody. The case may be postponed or adjourned from time to time for periods of not more than 15 days each, and as each adjournment expires the accused must be produced before the Magistrate, and the order of adjournment must show good reasons for making the order. Same procedure is highlighted in APPENDIX No. 25.56(1) of Police Rules, 1934.

2. In the celebrated judgment of this Court reported as “Mst. Razia Pervaiz and another versus The Senior Superintendent of Police, Multan and 5 others” (1992 PCr.LJ 131), it was declared that an accused required in more than one criminal cases when arrested will be deemed to have been arrested in all the cases registered against him, and warned that law does not authorize the police to arrest an accused required in more than one cases, in one case and to wait for his arrest in the other case till the expiry of the period of remand under Section 167, Cr.P.C. or till he is released on bail in the first case, and this Court, therefore, held in a case reported as “Parvez Elahi versus Care Taker Government of Punjab etc.” (PLJ 2024 Lahore 43) as under:

“It is held that if it spurs out from the record that arrest in different cases is not being sought for the purpose of investigation but to keep the accused in physical custody of law enforcement agency for a longer period in order to kneel down him to their terms, then it is not only illegal but an offence, and bona fide of police for arrest in different cases is reflected if they put remand request with criminal record of accused.”

In Indian jurisdiction, ANDHRA PRADESH HIGH COURT while dealing with a case reported as “M/s. Jagathi Publications Ltd., rep., by Y. Eshwara Prasad Reddy versus Central Bureau of Investigation, Hyderabad” [2012(2) ALT (Crl.) 285 : 2013 CriLJ 118 : 2013(2) CCR 98: 2014(10) R.C.R.(Criminal) 84 : 2012(2) Andh LD (Criminal) 762] directed the authorities that “All political parties should have equal opportunities to participate in election campaigns and propaganda and no one should be unnecessarily arrested and harassed, except, wherein, his arrest is bona fidely required for the purpose of investigation”, and declared for that situation as reflected below:

“(3) It is also made clear that wherein a case the accused involved in several distinct offences which are within the knowledge of investigating agency, his arrest must be shown in all such distinct offences, i.e., he is deemed to have been arrested in all such cases.”

Similarly, in our jurisdiction Peshawar High Court while dealing with a situation of political turmoil has also held recently in a case titled as Asad Qaisar versus Government of Khyber Pakhtunkhaw, thorough Chief Secretary, Peshawar and others (Writ Petition No. 5281-P/2023 With CM No. 2615-P/2023) that:

“In other words, a person once arrested is deemed to be arrested in all cases registered against him prior to his arrest. Arrest of an accused persons involved in so many criminal cases of the same province after his release on bail in another case amounts to colorful exercise of powers which cannot be countenanced at any cost.”

1. On the strength of above judgments and legal provisions, it can safely be held that when an accused is arrested in a case, his arrest must be shown in all cases registered against him so far within the knowledge of investigating agency; however, if he has been lodged to judicial custody in a case, his subsequent physical remand can be obtained by the police in other FIRs registered at different police stations or districts or province with the permission of concerned Magistrate/Court.

2. Coming back to case in hand, it is, therefore declared that if the accused was in a judicial custody in another case, granting of further physical remand by the Magistrate in case FIR No. 1641/2023 under Section 392, PPC Police Station Old Anarkali District Lahore

was not illegal, but in order to further ascertain the contention of learned counsel for the petitioner that detenu was not lodged to judicial custody pursuant to order of Magistrate dated 29.12.2023 in case FIR No. 3738/2023 under Sections 392/411, PPC Police Station Ghaziabad District Lahore, a report from superintendent District Jail, Lahore was requisitioned which was received to the effect that detenu was not lodged in the jail pursuant to order of Magistrate dated 29.12.2023 in FIR No. 3738/2023 cited supra. Thus, this Court by virtue of order dated 20.02.2024 directed Capital City Police Officer, Lahore to conduct an inquiry in the matter, register a criminal case against delinquent police officers/officials and submit report to this Court.

1. Today report has been received. Capital City Police Officer, Lahore after conducting inquiry has found the delinquent police officials as responsible for committing criminal breach of duty and in compliance whereof an FIR Bearing No. 681/2024 under Article 155 (1)(c) of the Police Order, 2002 at Police Station Ghaziabad District Lahore stood registered. Learned counsel for the petitioner states that now after granting bail to the detenu by concerned Court he has been set at liberty. As Police has also conceded the commission of criminal act by Respondents No. 4 & 5, therefore, this writ petition now stands disposed of.

(Y.A.) Petition disposed of

PLJ 2024 Lahore 413[Bahawalpur Bench, Bahawalpur]

Present:Muhammad Amjad Rafiq, J.

SADIA AZIZ--Petitioner

versus

DPO etc.--Respondents

W.P. No. 3109-H of 2024, decided on 2.5.2024.

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

----S. 492--Constitution of Pakistan, 1973, Art. 199--Muhammadan Law, Para 354--Custody of minor--Illegal and improper custody--Minor was tender age of less than two years--Ex-parte order for custody of minor against petitioner--Preferential right for custody of minor--Lap of mother--Petitioner did not had information about filing of petition which was filed on 27.04.2024 as per record and on same day custody of minor was secured through an ex-parte order--The waiving of petitioner’s right of hizanat has no binding force in eyes of law and mother could not be held accountable if at one occasion she had given up her right to hizanat on any condition--She would retain her right of hizanat when there was no disqualification in law of her waiver, therefore, was not disentitled for claiming right of hizanat again--Under law mother has a preferential right for custody of a minor till prescribed age--If divorce has become effective between spouses, mother does not lose her right of hizanat except in situations mentioned in Para 354 of Muhammadan Law--Minor being of tender age requires lap of mother; therefore, interim custody of minor was regulated in favour of petitioner who should be bound to produce him before Gurdian Court where proceedings were pending--Petition disposed of.

[Pp. 415, 422 & 423] A, B, E & F

PLD 2024 SC 291 & PLD 2006 SC 533 ref.

Hazanat--

----It signifies love, care and affection directly and constantly needed by a male child up to age of seven years and female child till she attains puberty--Care, love and affection play a vibrant and vital role in developing nature and character of a person and as such Hizanat can safely be termed as a tribute and privilege of a minor assigned and vested in mother--The woman who holds custody is called “Hizana” and she loses right of hizanat in certain circumstances suggested in law. [P. 416] C

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

----S. 491--Illegal and improper custody-- Proceedings under Section 491 of Cr.P.C can be initiated before Sessions Judge or Additional Sessions Judges and before this Court if any person is in illegal and improper custody. [P. 419] D

Mr. Muhammad Ajmal Khan Bhutta, Advocate for Petitioner.

Mr. Zafar Iqbal Awan, Additional Advocate General for Respondents.

Sardar Basit Khan Baloch, Nazar Aslam and Ms. Mehreen Riaz, Advocates for Respondent No. 3.

Date of hearing: 2.5.2024.

Order

Petitioner being mother through this petition seeks custody of her minor son namely, Muhammad Shahzain reportedly in the illegal and improper custody of Zain-ul-Abideen (Respondent No. 3), father of the minor (herein after called as the respondent).

1. Learned counsel for the petitioner states that on a family dispute petitioner was expelled from the house by the respondent while depriving her from the custody of minor son. In response to rule nisi issued, minor present in the Court was claimed to have been with the father by the order of learned Guardian Court passed on 27.04.2024.

Learned counsel for the petitioner states that petitioner did not have information about filing of such petition which was filed on 27.04.2024 as per record and on the same day custody of minor was secured through an ex-parte order of learned Gurdian Court. Further states that petitioner is resident of Tehsil Ali Pur, District Muzaffargarh whereas Guardian Petition was filed at District Bahawalpur. Adds that petitioner is ready to join the proceedings before the Guardian Court but minor being in tender age of less than two years requires lap of her mother, therefore, interim custody of the minor may be regulated in favour of the petitioner, which was vehemently opposed by the other side on the ground that petitioner herself had abandoned the custody of minor and left him alone in the house of respondent; she is not in touch with him for the last two months and minor is happily living with the father; further argued that petitioner, though an acclaimed doctor preparing for FCPS, is a careless lady with busy schedule of professional duties, therefore, cannot take proper care of the minor and custody of minor with the father is also not illegal or improper.

1. The next say of respondent was that matter is pending before Guardian Court; therefore, parties may be given opportunity to contest interim custody before said Court.

4. Arguments, pro and contra of proponents were heard.

1. The main stay of the respondent was that once the mother waived her right to take custody, she is precluded to make a re-attempt. Right of hizanat of a mother is recognized in Islam as well as in law; claim of the respondent being guardian of the minor would obviously give way to the right of hizanat till prescribed age of the minor under the law. The waiving of her right of hizanat has no binding force in the eyes of law and mother cannot be held accountable if at one occasion she had given up her right to hizanat on any condition. She will retain her right of hizanat when there is no disqualification in law of her waiver, therefore, is not disentitled for claiming right of hizanat again. Reliance is placed on cases reported as “Mst. Haseena Bibi versus Abdul Haleem and others” (PLD 2024 Supreme Court 291) and “Mst. Razia Rehman versus Station House Officer and others” (PLD 2006 Supreme Court 533).

2. It is essential to highlight that there is difference between Walayat (Guardianship) and Hizanat (Custody); in Muslim Law, as in almost every other system of law, the father is the natural guardian of the person and property of his minor child but Islam recognizes the mother as having prior right of custody, obvious reason is the nourishment, sustenance, patronage and up bringing of a human child so as to make him/her a useful human being. Mother keeps a caring instinct, therefore, is the suitable person for such task. That was the reason, for custody, the term ‘Hizanat’ has been used. The word “Hizanat” is derived from the Arabic word “Hizan” which means ‘lap of the mother’, it denotes giving a child to the mother’s lap for caring and rearing. Reliance is on case reported as “Miss Hina Jilani, Director of A.G.H.S. legal aid cell versus Sohail Butt” (PLD 1995 Lahore 151)

3. It signifies love, care and affection directly and constantly needed by a male child up to the age of seven years and female child till she attains puberty. Care, love and affection play a vibrant and vital role in developing the nature and character of a person and as such Hizanat can safely be termed as a tribute and privilege of a minor assigned and vested in the mother. The woman who holds the custody is called “Hizana” and she loses the right of hizanat in certain circumstances suggested in the law.

The Rule of Hizanat of children of tender age under Muslim law is based on the following tradition of the Holy Prophet محمد ﷺ;

“A woman once applied to the Prophet, saying, ‘O Prophet of God! That is my son, the fruit of my womb, cherished in my bosom and suckled at my breast, and his father is desirous of taking him away from me into his own care; to which the Prophet replied, thou hast a right in the child prior to that of thy husband, so long as thou do not marry with a stranger”.

The tradition is quoted in Hedaya (2nd Edition, Vols. I-IV, page 138) in Chapter XIV of hizanat, or the care of infant children and under section “in case of separation, the care of the infant children belongs to the wife”. It is followed by the comment that:

“A mother is naturally not only more tender, but also better qualified to cherish a child during infancy, so that committing the care to her is of advantage to the child and Siddeek alluded to this, when he addressed Omar on a similar occasion, saying, ‘the spittal of the mother is better for thy child than honey, O Omar! which was said at a time when separation had taken place between Omar and his wife the mother of Assim. The latter being then an infant at the breast, Omar desirous of taking him from the mother and these words were spoken in the presence of many of the companions, none of whom contradicted him.”

At page 139 under the title “Length of the term of hizanat” it is said:

“The right of hizanat with respect to a male child, appertains to the mother, until he becomes independent of it himself that is to say, he becomes capable of shifting, eating drinking and performing other natural functions without assistance after which the charge devolves upon the father, or next paternal relation. The hizanat with respect to a boy, ceases at the end of seven years, as in general a child at that age is capable of performing all the necessary offices himself, without assistance. But the right of hizanat with respect to a girl, appertains to a mother, grand-mother, and so forth, until the first appearance of the menstrual discharge, that is to say, until she attains the age of puberty, because a girl has occasion to learn such manners and accomplishments as are proper to women, to the, teaching of which the family relations are most competent, but after that period the charge of her properly belongs to the father, because a girl, after maturity, requires some person to superintend her conduct, and to this the father is most completely qualified.”

Reliance is on case reported as “Rahimullah Choudhury versus Mrs. Sayeda Helali Begum and others” (1974 SCMR 305).

1. In case of conflicting views expressed in text books on Muslim Law, such as Hedaya, Fatawai-i-Alamgiri, Radd-ul-Mukhtar, Muhammadan Law by Sayyed Amir Ali, etc., how are the Courts to determine which view is correct? “ The answer given by the Bench is that where there is no Quranic or Traditional Text or an Ijma’ on a point of law, and if there be a difference of views between A’imma and Faqihs, a Court may form its own opinion on a point of law. Reliance is on case reported as “Mst. Zohra Begum versus Sh. Latif Ahmad Munawwar” (PLD 1965 (W.P.) Lahore 695).

2. Hizanat is regulated through Muslim Personal Law of the parties; under the Shia Law mother is entitled to the custody of male child until he attains the age of two years and if female child until she attains the age of seven years. After the child has attained the above-mentioned age, the custody belongs to the father. Reliance is placed on case reported as “Mahmooda Khatoon versus Syed Zainul Hasnain Rizvi” (PLD 1958 (W.P.) Karachi 150). It has been observed under Shafei Law that the mother is entitled to the custody of her daughter even after she has attained puberty and until she is married. AIR 1941 MADRAS 760.

3. As per Para 352 of Muhammadan Law, a guiding book, mother is entitled to custody of male child until he has completed the age of seven years and her female child until she has attained puberty. The right continues though she is divorced by the father of the child; reliance is on cases reported as “Mst. Qurat-ul-Ain versus Station House Officer, Police Station Saddar Jalalpur Jattan, District Gujrat and others” (2024 SCMR 486) and “Raja Muhammad Owais versus Mst. Nazia Jabeen and others” (2022 SCMR 2123). However, if she marries a second husband, stranger to child, in which case custody belongs to the father but subject to determination by learned Guardian Court. There are certain conditions which disqualify females for custody. Para 354 of Muhammadan Law says that a female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody in the following situations:

(1) if she marries a person not related to the child within the prohibited degrees (Ss. 260-261), e.g., a stranger but the right revives on the dissolution of marriage by death or divorce, or, (2) if she goes and resides, during the subsistence of the marriage, at a distance from the father’s place of residence; or, (3) if she is leading an immoral life, as where she is prostitute, or

(4) if she neglects to take proper care of the child.

1. The claim of respondent’s counsel (s) that custody of father is neither illegal nor improper, therefore, habeas petition is not maintainable. There is another way of looking at things; under Section 491 of the Cr.P.C. the High Court exercises two-fold jurisdiction; firstly, to direct the production of a person who is illegally detained to be brought before the Court so as to set him at liberty and secondly, to direct the production of a person so that he be dealt in accordance with law. In the latter case, it is not essential that the detention must be by use of force; if a person has been confined in a manner not warranted by law, in that situation also the Court can issue appropriate direction under Section 491, Cr.P.C. This question was considered by the Supreme Court of Pakistan in case reported as “Muhammad Rafique v. Muhammad Ghafoor” (PLD 1972 Supreme Court 6) wherein it was ruled as under;

“The High Court has two-fold jurisdiction under this Section: (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person.

If the person is a minor, the Court may make over his custody to the guardian which will be dealing with him in accordance with law, but if the person is major, the only jurisdiction which the Court can exercise is to set him at liberty whether illegally or improperly detained in public or private custody or not. The Court may “set at liberty”, but cannot restore status quo ante against the wishes of the person brought before it. Such a course will lead to curtailment of liberty for which there is no warrant under Section 491 nor can such an order be sustained under section 561-A of the Code as it cannot be said that allowing a person freedom of movement is an abuse of the process of the Court.”

12. Proceedings under Section 491 of Cr.P.C can be initiated before the Sessions Judge or Additional Sessions Judges and before this Court if any person is in illegal and improper custody; similar relief can also be sought by a party under Article 199 (1)(b)(i) of the Constitution of the Islamic Republic of Pakistan, 1973 through writ of Habeas Corpus when any person is in custody without lawful authority or in unlawful manner. This Article is usually applicable on malfeasance, misfeasance and nonfeasance of any party with respect to custody of a detenu. However, High Court Rules and Orders do not create any difference in the format of petition and style of orders in both types of petitions. Chapter 4-F, Volume-V of High Court Rules and Orders consists of rules framed by the High Court under Section 491(2) of Code of Criminal Procedure, 1898 which regulate the proceedings on petitions under Section 491, Cr.P.C. They are as follows;

PART-F RULES FRAMED UNDER SECTION 491(2) OF THE CODE OF CRIMINAL PROCEDURE, 1898, TO REGULATE PROCEDURE IN CASES UNDER SECTION 491.

1. An application for an order under Section 491 shall be made on an affidavit setting forth the circumstances under which the order is sought: Provided that all communications addressed to the High Court by a person in the custody of a public officer complaining of his detention or the conditions of his detention, whether supported by affidavit or not, shall be laid before a Judge for orders as applications under this rule.

2. Where the Court is of the opinion that a prima facie case for granting the application is made out, a rule nisi may be issued calling upon the person or persons against whom the order is sought to appear on a day to be named therein to show-cause why such order should not be made and at the same time to produce in Court the body of the person or persons alleged to be illegally or improperly detained then and there to be dealt with in accordance with law: Provided that if the Court so orders, production of the body of the person alleged to be illegally or improperly detained may be dispensed with.

3. If the application for an order under clause (a) or (b) of sub-section (1) of the section alleges that a person is confined under such circumstances that the confinement amounts to an offence, the Court may, at the time of issuing a rule nisi, also issue a search warrant, and the person to whom the warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately brought before the Court, which shall make such order as in the circumstances of the case may seem to be proper.

4. The provisions of Sections 43, 75, 77, 79, 82, 83 and 84, Criminal Procedure Code, shall, so far as may be, apply to all such warrants issued under rule 3.

5. If the Court issuing a search warrant under rule 3 has reasons to believe that the person to whom the warrant has been directed may not be able to identify the person confined, the Court may order a person named in the warrant to accompany the person to whom the warrant is directed, to assist him in the execution of the warrant.

6. The writ or the warrant shall be served by the bailiff of the Court out of the list prepared by the Registrar in consultation with the Deputy Registrar, or by such other person as may be appointed by the Judge. Where the application is by or on behalf of a security prisoner, the writ will be served on the appropriate Government and not on the officer detaining the prisoner. A security prisoner means a person who has been detained under the orders of the Federal or Provincial Government under a law providing for preventive detention.

7. On the return day of such rule or on any day to which the hearing thereof may be adjourned, where no cause is shown or where cause is shown and disallowed, the Court shall pass an order that the person or persons illegally or improperly detained shall be set at liberty or delivered to the person entitled to his or their custody. Where cause is allowed, the rule shall be discharged.

8. The Court may, if necessary, in disposing of such rule, take evidence or direct a Court of Sessions or a Magistrate to take evidence.

9. Upon the return and production of the party on whose behalf the rule was issued, the custody of the prisoner shall be under the control and direction of the Court until the disposal of the rule. Pending the hearing, the Court may admit the prisoner to bail or remand him to the prison where he is in custody.

10. When a bailiff is deputed by the Court to produce an alleged detenu/detenus, the party requiring the production should deposit with the Treasurer in advance, an amount equal to the calculated expenses for the journeys involved keeping in view his grade of pay and the daily allowance admissible to him under the relevant rules. The amount shall be paid to the bailiff after sanction by Deputy Registrar (Judl.) before proceeding to his destination against a receipt which shall be kept on the file of the case.

11. \\01[Omitted].

12. \\01[Omitted].

13. In case the bailiff does not submit his claim within the time mentioned in the last rule, the amount or the balance thereof should be refunded to the party concerned. In case, however, the party fails to claim refund within six weeks, the amount due to it be credited to Government under the head

“Major head 1200000, Minor head 1230000 Law and Order Receipts, Detailed head 1231000 Justice, 1231003 Justice-General fees, fines and forfeitures (74)”

and the treasury challan showing the credit should be attached to the file of the case. \01

1. If the writ is to be executed at State expense, the bailiff should be paid his expenses as admissible under the rules.

2. If, at any time, on sufficient ground shown to the satisfaction of the Registrar, it is proved that the bailiff submitted an exaggerated or incorrect claim or claimed expenses though they were met by the party concerned, this should be taken to be a misconduct and necessary proceedings against him be initiated under the High Court Establishment (Appointment and Conditions of Service) Rules, which may result in major penalty provided by the relevant rules.

3. To check the tendency to file frivolous habeas corpus petitions, the Court may, at its discretion, require the party concerned to deposit in advance an amount as fixed by the Court directing the issuance of rule nisi to be paid to the detenus as a compensation if the petition is found to be frivolous or vexatious. \01”

4. In disposing of any such rule, the Court may, in its discretion, make an order for the payment by one side or the other of costs of rule.

5. The forms of warrants No. 1 and 2 in the Appendix to these rules shall be followed.

Such rules further clarify that Chapter-4, Part-J of above Volume deals with rules for the issue of orders/directions under Articles 199 and 202 of the Constitution of the Islamic Republic of Pakistan, 1973 and clause 27 of the letter patent. According to Part-1 of Part-J referred above, such application shall be governed by Rules 1 to 18 of Chapter 4-F, Volume-V of High Court Rules and Orders, which means Rules 1-18 cited above shall also be applicable on habeas petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

13. Keeping in view the above explanation, in appropriate cases order for recovery of minor can be issued under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, which is being issued in this case accordingly.

14. From the above discussion, it is clear that under the law mother has a preferential right for custody of a minor till the

prescribed age. Even if divorce has become effective between the spouses, mother does not lose her right of hizanat except in the situations mentioned in Para 354 of Muhammadan Law subject to determination by Gurdian Court. Thus, for what has been discussed above, the circumstances warrant that minor being of tender age requires the lap of mother; therefore, interim custody of minor Muhammad Shahzain is regulated in favour of petitioner/mother who shall be bound to produce him before the learned Gurdian Court where the proceedings are pending and fixed for 15.05.2024. However, this order would be subject to final determination by the learned Gurdian Court as to the rights of parties for custody and visitation of minor.

1. Disposed of.

(Y.A.) Petition disposed of

PLJ 2024 Lahore 423

Present:Shahid Bilal Hassan, J.

RASHEED AHMAD--Petitioner

versus

AZRA PARVEEN (deceased) through L.Rs. and others--Respondents

C.R. No. 11729 of 2019, heard on 28.2.2024.

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

----Ss. 42 & 54--Petitioner was purchased disputed property--Petitioner was not a bona fide purchaser--Respondent was not fully award regarding transaction--Suit for declaration and permanent injunction--Dismissed--Appeal--Accepted--Respondent was in possession of suit property--Challenge to--Petitioner purchased disputed property which could safely be said to had been purchased with notice and petitioner could not said that he was a bona fide purchaser--The conclusion drawn up by Courts below on that point was based on proper appraisal of evidence--No evidence showing that Respondent No. 1 was having an independent advice and was fully aware and cognizant of nature of transaction, was brought on record by petitioner--The petitioner could not lead any evidence to show that as to when and where bargain with regards to sale of suit property was struck in between Respondent No. 1 and Respondents No. 2 to 4 and even names of witnesses was not pleaded, because entering of mutation in revenue record was subsequent event and it was only for fiscal purposes-- The reasoning rendered by appellate Court were more plausible and cogent than that of trial Court--In case of inconsistency between findings of trial Court and Appellate Court, findings of latter must be given preference in absence of any cogent reason to contrary--Civil revision dismissed.

[Pp. 425, 426 & 427] A, B, C, D & E

PLD 2012 Lahore 125, 2021 SCMR 19, PLD 2022 SC 99, 2015 SCMR 1, PLD 1969 SCR 617 and 2013 SCMR 1300 ref.

Mr. Nasir Ahmad Awan, Advocate for Petitioner.

Chaudhry Muhammad Sarwar, Advocate for Respondents.

Date of hearing: 28.2.2024.

Judgment

Succinctly, the Respondent No. 1 instituted a suit for declaration and permanent injunction challenging the oral sale Mutation No. 1012 dated 18.08.1999 in favour of the Respondents No. 2 to 4 regarding property measuring 15-Kanals 8-Marlas and subsequent Mutation No. 1444 in favour of the present petitioner, situated in village Jhando Sahi, Tehsil Daska, District Sialkot, against the Respondents No. 2 to 4 and the present petitioner, which was duly contested by them while submitting written statements. The divergence in pleadings of the parties was summed up into issues by the learned trial Court. Both the parties adduced their oral as well as documentary evidence. The learned trial Court vide judgment and decree dated 13.09.2017 dismissed suit of the Respondent No. 1, who being aggrieved preferred an appeal there-against. The learned appellate Courtvide impugned judgment and decree dated 05.10.2018 accepted the appeal, set aside the above said judgment and decree, and decreed the suit in favour of the Respondent No. 1; hence, the instant revision petition.

1. Heard.

2. Mutation confers no title and once a mutation is challenged, the party relying thereon is bound to revert to the original transaction and to prove such original transaction, which resulted into the entry of attestation of such mutation. Reliance in this regard is placed on Muhammad Akram v. Altaf Ahmad (PLD 2003 Supreme Court 688). In the present case, the Respondent No. 1 categorically pleaded that she was defrauded and Mutation No. 1012 dated 18.08.1999 with regards to oral sale was got attested by the Respondents No. 2 to 4. Therefore, the petitioner was bound to prove the original transaction, wherein he has failed to lead any evidence, rather D.W.1 in a categorical manner admitted, during cross-examination, that news erupted after four years of transfer of property in favour of Waqar Ahmad, etc. that Respondent No. 1/Azra Parveen had been defrauded; however, despite such information the present petitioner purchased the disputed property through Mutation No. 1444, which can safely be said to have been purchased with notice and the petitioner cannot say that he is a bona fide purchaser. The conclusion drawn up by the learned Courts below on this point is based on proper appraisal of evidence, especially admission of D.W.1, on record.

In addition to the above, in respect of a transaction germane to property with a pardanasheen lady, the Apex Court of the country in a judgment reported as Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225) has given the parameters and conditions to be fulfilled in a transparent manner and held that:

‘In case of a (property) transaction with an old, illiterate/rustic village ‘Pardanasheen’ lady the following mandatory conditions should be complied with and fulfilled in a transparent manner and through evidence of a high degree so as to prove the transaction as legitimate and dispel all suspicions and doubts surrounding it:

(i) That the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences;

(ii) That she had independent advice from a reliable source/ person of trust to fully understand the nature of the transaction;

(iii) That witnesses to the transaction were such, who were close relatives or fully acquainted with the lady and had no conflict of interest with her;

(iv) Thatthe sale consideration was duly paid and received by the lady in the same manner; and

(v) That the very nature of transaction was explained to her in the language she understood fully and she was apprised of the contents of the deed/ receipt, as the case may be.’

Moreover, this Court has held that old and illiterate ladies are entitled to the same protection which is available to the Parda observing lady under the law; reliance is placed on Muhammad Afzal v. Muhammad Zaman (PLD 2012 Lahore 125). Furthermore, in Ghulam Muhammad v. Zahoran Bibi and others (2021 SCMR 19), the Apex Court of country has held:

‘It is settled law that the beneficiary of any transaction involving parda nasheen and illiterate women has to prove that it was executed with free consent and will of the lady, she was aware of the meaning, scope and implications of the document that she was executing. She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her.’

In a judgment reported as Muhammad Naeem Khan and another v. Muqadas Khan (decd) through L.Rs. and another (PLD 2022 Supreme Court 99), the Apex Court of the country has invariably held:

‘If any such plea is taken then it is a time-honored parameter that in case of a document executed by a pardanashin lady, the burden of proof is on the party who depends on such a deed to persuade and convince that Court that it has been rad over and explicated to her and she had not only understood it but also received independent and disinterested advice in the matter. The aforesaid parameter and benchmark is equally applicable to an illiterate and ignorant woman who may not be a pardanashin lady. If authenticity or trueness of a transaction entered into by a pardanashin lady is disputed or claimed to have been secured on the basis of fraud or misrepresentation, then onus would lie on the beneficiary of the transaction to prove his good faith and the Court has to consider whether it was done with freewill or under duress and has to assess further for an affirmative proof whether the said document was read over to the pardanashin or illiterate lady in her native language for her proper understanding.’

However, in the present case, no such evidence showing that the Respondent No. 1 was having an independent advice and was fully aware and cognizant of the nature of the transaction, was brought on record by the petitioner.

More and above, the petitioner could not lead any evidence to show that as to when and where the bargain with regards to the sale of the suit property was struck in between the Respondent No. 1 and Respondents No. 2 to 4 and even names of witnesses was not pleaded, because entering of mutation in the revenue record is subsequent event and it is only for fiscal purposes.

Over and above, after specific denial of execution of the disputed sale mutation by the Respondent No. 1 and non-making of thumb impression over the same, the petitioner did not make any exertion to get compared the thumb impression of the Respondent No. 1 by moving an application in this regard before the learned trial Court; meaning thereby the stance taken up by the Respondent No. 1 in this regard has not been negated by the present petitioner rather in an implied manner has admitted the same. The petitioner could not produce the witnesses in whose presence the disputed mutation was entered into revenue record and the revenue officer, who attested the mutation was also not produced; therefore, adverse presumption as per mandate of Article 129(g) of Qanun-e-Shahadat Order, 1984 arises against the petitioner that had the said witnesses been produced in the witness box, they would not have supported the stance of the petitioner.

1. The question with regards to limitation has rightly been adjudged and addressed by the learned appellate Court, because when fraud has been proved, the limitation in such scenario does not run. Moreover, the question germane to possession has also correctly been decided, because D.W.1 admitted that the Respondent No. 1 was in possession of the disputed land, therefore, Khasra Girdawri in view of such admission loses its sanctity. The point of levy of Court fee has also judicially been decided as in this case the provisions of section 7(4)(c) of Court Fee Act attracts.

2. The reasoning rendered by the learned appellate Court are more plausible and cogent than that of the learned trial Court; therefore, the impugned judgment and decree passed by the learned appellate Court is upheld and maintained.

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

4. For the foregoing reasons and while placing reliance on the judgments supra the civil revision in hand being devoid of any force and substance stands dismissed. No order as to the costs.

(Y.A.) Civil revision dismissed

PLJ 2024 Lahore 428

Present: Safdar Saleem Shahid, J.

SARMAD TANVEER--Petitioner

versus

INSPECTOR GENERAL OF POLICE, PUNJAB, LAHORE and 3 others--Respondents

W.P. No. 51600 of 2021, heard on 25.5.2023.

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

----Ss. 154 & 155--Constitution of Pakistan, 1973, Art. 199--Application for registration of case--No documentary proof was produced by respondent--Matter of civil nature--DSP was agreed with report of SHO--Refusal to register case--Challenge to--Respondent No. 4 filed an application for registration of FIR against petitioner before SHO--SHO summoned petitioner; inquired into matter, heard both parties and opined that parties were running joint business from 2015 to 2018 and afterwards they separated their business and there was money dispute between parties; Respondent No. 4 could not produce any documentary proof in support of his claim and matter between parties was that of civil nature--When SHO refused to register case, no other authority in police hierarchy had a right to inquire into matter and pass order for registration of case--The law did not authorize any other police officer to hold an inquiry with regard to correctness or falsity of an complaint prior to registration of FIR--The inquiry prior to registration of case is permissible only in criminal cases of special law where after filing of a complaint, inquiry is ordered by authority, and thereafter on basis of said inquiry, formal FIR is registered--Petition allowed.

[Pp. 429, 430, 431, 432 & 434] A, B, D, E & F

PLD 2019 SC 64.

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

----S. 154--Duty of SHO it is statutory duty upon SHO to enter information regarding commission of cognizable offence, but if he has refused to register it, that cannot be inquired by higher officer, in any way. [P. 431] C

Mr. Sohail Shafiq Advocate for Petitioner.

Mr. Asad Abbas Dhother, Assistant Advocate General, Punjab for ASI Respondent No. 1 to 3.

In person for Respondent No. 4.

Date of hearing: 25.5.2023.

Judgment

The petitioner has filed instant constitutional petition with the following prayer:

“It is therefore, respectfully prayed that the acts of the Respondents No. 1 to 3 may very kindly be declared as illegal unlawful, without jurisdiction and they may very kindly be restrained from holding any kind of inquiry or further proceedings in this regard.

It is further prayed that the respondents may also very kindly be restrained from causing any kind of illegal harassment or humiliation to the petitioner in any manner.”

1. Brief facts of the case are that Ali Javed Respondent No. 4 moved an application before SHO P.S. Mochi Gate, Lahore, for registration of criminal case against the petitioner upon which petitioner was summoned and after hearing both the parties, it was opined by SHO that no offence was made out from the contents of said application. Thereafter, SHO referred the matter to DSP Gawalmandi Circle Lahore who again summoned both the parties and opined that no offence is made out from the contents of said application. After reports of SHO and DSP, S.P. City Division, Lahore/Respondent No. 2 agreed with the reports of SHO and DSP. After lapse of two months, Respondent No. 4 again approached Respondent No. 2 on the same subject who ordered to re-inquire the matter and in compliance of said order, Respondent No. 3 is calling the petitioner time and again and as such causing illegal harassment to him.

2. Vide order dated 26.08.2021, report and pararwise comments were called for from respondents, which have been submitted. According to the comments, neither any proceedings have been intuited against the petitioner nor he has been harassed illegally by the police.

3. Arguments heard. Record perused.

4. It has been noticed that Respondent No. 4 filed an application/for registration of FIR against the petitioner before SHO P.S. A Mochi Gate, Lahore with the allegation that for the last 10 years Respondent No. 4 was importing stationary and sports items from China and selling at different places; Respondent No. 4 engaged the petitioner as commission agent at his office and after some time when Respondent No. 4 checked accounts, it transpired that petitioner misappropriated an amount of Rs. 9/10,00,000,00/-. The said SHO summoned the petitioner; inquired into the matter, heard both the parties and opined that the parties were running joint business from 2015 to 2018 and afterwards they separated their business and there was money dispute between the parties; Respondent No. 4 could not produce any documentary proof in support of his claim and the matter between the parties is that of civil nature. With the aforesaid report, SHO referred the matter to Respondent No. 3/DSP who again summoned the parties and after hearing them, endorsed the findings of the SHO concerned. Thereafter, Respondent No. 2 after perusing the case as well as reports of SHO and DSP agreed with their findings and the file was consigned. After lapse of period of two months, Respondent No. 4 again filed application on the subject leveling same allegation, before Respondent No. 2/S.P. Respondent No. 2 ordered for re-inquiry and in compliance of said order, Respondent No. 3 is calling the petitioner time and again. The claim of the petitioner is that all the proceedings conducted by the Respondents No. 2 & 3 are illegal and unlawful as no inquiry can be conducted prior to registration of FIR and as such by calling the petitioner at police station, Respondents No. 2 & 3 are causing illegal harassment to him and their act is liable to be set aside. Prior to discussing the matter in hand, it would be beneficial to refer the definition of inquiry and investigation. The term inquiry is defined in Section 4(k) of, Cr.P.C. which is reproduced as under:

“Inquiry includes every inquiry other than trial conducted under Code by a Magistrate or Court.”

The term investigation is defined in Section 4(1) of Cr.P.C. which is reproduced as under:

“Investigation includes all the proceedings under this Code for the collection of evidence conductive by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.”

When a complaint is filed by a person before SHO, he has to proceed with the same under Section 154, Cr.P.C. if commission of cognizable offence is made out from the contents of the same or under Section 155, Cr.P.C. if commission of non-cognizable offence is made out. Section 154, Cr.P.C. is reproduced for ready reference as under:

“154. Information in cognizable cases.--Every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant: and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.”

Section 155, Cr.P.C. is also reproduced for ready reference as under:

“155. Information in non-cognizable cases.-(1) When information is given to an officer incharge of a police-station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the [Magistrate.]

(2) Investigation into non-cognizable cases.—No police officer shall investigate a non-cognizable case without the order of a Magistrate of the First or Second Class having power to try such case [or send the same for trial to the Court of Session].

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer-in-charge of a police station, may exercise in a cognizable case.”

A perusal of the aforementioned Sections reflects that no inquiry in any case is permissible prior to registration of case. If from the contents of the application/complaint SHO makes up his mind that no cognizable offence is made out, he should straight away refuse to register the case. Under Section 154, Cr.P.C., it is the statutory duty upon SHO to enter information regarding commission of cognizable offence, but if he has refused to register it, that cannot be inquired by the higher officer, in any way. No such authority is vested in the other officer, than SHO to deal with the information of a cognizable offence. Even if the offence which is non-cognizable in nature is conveyed to the police; police may lodge Rappt under Section 155, Cr.P.C. and the procedure is provided that with the order of the Magistrate competent to try the same, the investigation can be carried out by the police. In the present proposition when the SHO refused to register the case, no other authority in the police hierarchy has a right to inquire into the matter and pass the order for registration of case. With the refusal to register the case by SHO concerned, the complainant/respondent has a statutory right to file petition under Sections 22-A/22-B, Cr.P.C. before Ex-Officio Justice of Peace (concerned). Respondent No. 4 filed aforesaid application before SHO who inquired into the matter after hearing both the parties and opined that the parties were running joint business from 2015 to 2018 and afterwards separated their business and there was money dispute between them; Respondent No. 4 could not produce any documentary proof in support of his claim and that the matter between the parties was that of civil nature and Respondents No. 2 & 3 agreed with his findings, Respondent No. 4 did not file petition under Section 22-A, Cr.P.C. before Ex-Officio Justice of Peace (concerned). Likewise, Respondent No. 4 also had an opportunity to file a private complaint before the appropriate forum but this was also not done for the reasons best known to him. Rather he again approached Respondent No. 2 by filing an application for registration of FIR with the same allegations, which matter had already been thrashed out and closed; but Respondent No. 2 again ordered for re-inquiry which is not warranted under the law. The law does not authorize any other police officer to hold an inquiry with regard to correctness or falsity of an information/complaint prior to registration of FIR rather only SHO is authorized under law to decide whether from the contents of a complaint commission of cognizable offence is made out or otherwise. The Police Order, 2002, also provides a procedure for registering a complaint when brought before SHO (concerned). The procedure is provided in Code of Criminal Procedure 1908, for summoning the parties. SHO is not competent even to investigate the case prior to registration of FIR, however to satisfy himself, SHO may inquire regarding contents of a complaint from the complainant only. There is no provision for conducting inquiry or re-inquiry after filing of a complaint/application by a person, before registration of FIR. Reliance is placed on the case law reported as Mst. Asia Bibi vs. The State and others (PLD 2019 Supreme Court 64) where it has been held as under:-

“S.154---First Information Report (FIR) lodged after conducting an inquiry-Such FIR lost its evidentiary value.”

“Furthermore, FIR lodged after conducting an bquiry loses its evidentiary value”

Further reliance is placed on the case of Abdul Rehman Malik vs. Synthia D. Ritchie Amercans National and others (2020 SCMR 2037) where it has been held as under:

“Law requires that a police officer should first register a case and then form an opinion in terms of R.24.4 of the Police Rules 1934, as to whether the facts stated in the FIR were true or not.”

Therefore, the Officer Incharge can possible invoke the Rule, that too, for reasons strong and manifest after registration of First Information Report. View token by a learned Division Bench of Lahore High Court in the case of Zulfiqar Ali alias Dittu and another vs. The State (1991 P.Cr.L.J 1125) holding that “The Law requires that a police officer should first register a case and then form an opinion whether the facts stated in the FIR are true or not. In the present case, police officer has not acted in accordance with law; rather he has put the horse before cart ...”

After registration of case, investigation is to be conducted by the police with regard to truthfulness or otherwise of a complaint filed by the complainant. If he/she is not satisfied with the proceedings of the investigation, he/she may file an application for change of investigation before appropriate forum. If cognizable offence is made out then the matter will be proceeded under Section 154, Cr.P.C. and if non-cognizable offence is made out then procedure will be initiated under Section 155, Cr.P.C. otherwise, no other proceedings are to be initiated in this regard. The Constitution guarantees every citizen protection of life, liberty and property. No one can be harassed illegally in any way. Reliance is placed on the case law reported as Muhammad Suleman and others v. Malik Waheed and others (1994 P.Cr. L.J. 1824) where it has been held as under:

“Needless to say that respondent, Police Officer is bound to protect life, liberty and property of the citizens including A the petitioner. In other words, the police shall not be permitted to take law into their own hands by causing undue harassment to the petitioners”

Reliance is placed on the case law reported as Akber v. Province of Sindh through Chief Secretary Karachi and others (P.L.J. 2019 Karachi 47) where it has been held as under:

“The term harassment means a course of conduct which annoys, threatens, intimidates, alrams, or puts a person in fear of his safety. Police officials being bound by law, are never supposed to adopt such a course rather their every action is expected to be well within strictly drawn four corners of law”.

1. Law has provided procedure for lodging report under Section 154, Cr.P.C., private criminal complaint and no such inquiry is allowed in these. After registration of case under Section 154, Cr.P.C., the investigation is be conducted under Section 156, Cr.P.C. and if Rappt is lodged under Section 155, Cr.P.C., regarding non-cognizable offence, the investigation may be ordered by the concerned Magistrate. When inquiry is not required prior to registration of case then no question of re-inquiry of a matter arises. The SHO concerned has given his view with the refusal. All the subsequent proceedings i.e. inquiry by DSP/SDPO and order of S.P. to re-inquire the matter is totally illegal, against the wisdom of statutory provision of Section 154, Cr.P.C. and such inquiry is not permissible under law and comes within the definition of harassment. In Black’s Law Dictionary the definition of harassment has been mentioned as under:

“Words conduct, or action that, being directed at a specific person, annoys, alarms, or causes substantial emotional

distress to that person and serves no legitimate purpose, purposeful vexation. Harassment is actionable in some circumstances, as when a creditor uses threatening or abusive tactics to collect a debt.”

In legal terms and phrases (Judicially defined) by M. Ilyas Khan Advocate Supreme Court of Pakistan, the definition of harassment is mentioned as under:

“Harassment-The words (both in slander and libel) body, language, gestures and actions which tend to annoy, alarm and abuse (verbally) another person”.

In Words and Phrases permanent edition) Volume 19, H-Helanca (updated by cumulative and annual pocket parts), by Thomson West, the definition of harassment is mentioned as under:

“Harassment, in context of Title VII, involves, conduct that unreasonably interferes with person’s work performance or creates intimidating hostile or offensive work environment.”

The inquiry prior to registration of case is permissible only in criminal cases of special law where after filing of a complaint, inquiry is ordered by the authority, and thereafter on the basis of said inquiry, formal FIR is registered.

1. In view of what has been discussed above, instant writ petition is allowed and act of Respondent No. 2 for re-inquiring the matter is set aside. SHO P.S. Mochi Gate, Lahore, Respondents No. 2 and 3 are directed to remain within the ambit of law. They are further directed not to cause illegal harassment to the petitioner and to act and proceed strictly in accordance with law. However, this order shall not be operative against any legal proceedings.

(Y.A.) Petition allowed

PLJ 2024 Lahore 434 [Rawalpindi Bench, Rawalpindi]

Present:Ch. Abdul Aziz, J.

RIZWAN ELLAHI and another--Petitioners

versus

PROVINCE OF PUNJAB and 8 others--Respondents

W.P. Nos. 91, 106, 107 & 136 of 2022, decided on 7.11.2022.

Pakistan Environmental Protection Act, 1997--

----S. 12--Constitution of Pakistan, 1973, Arts. 9, 199, 199(1)(c)(2)--Tragic incident of Murree--Trolling of residents of Murree on electronic, print and social media--Alternate remedy--Constitutional jurisdiction of High Court--Mishandling of affairs--Role of PDMA--Disaster management--Enforcement of fundamental rights--Lack of interest--Public interest litigation--UNDP report--The concerns raised in constitutional petitions could be bisected in two parts--The first part of these concerns had its roots in agonizing incident of 07.01.2022 during which 22-persons lost their lives in a blizzard, after remaining trapped in their snow stuck vehicles for whole night, awaiting rescue workers who never turned up--The second part of grievance pertains to mishandling of affairs by public functionaries destroying ecological system of Murree--For Province of Punjab with a population of around 110 Million, PDMA is made functional only with 94 personnel including 07 officers--Though role of PDMA in disaster management is nothing less than a protagonist but it badly failed to cope with situation--On crucial date PDMA was awaiting appointment of its DG after retirement of previous one but unfortunately needful was not done by Government of Punjab within time--The population of Murree grew very rapidly and on other end unplanned construction also gained skyrocketed momentum-- Despite potential threats so mentioned in UNDP report, construction was being carried out at an alarming and rapid pace--Even today there is no proper sewerage or garbage collection system to deal with commercial and domestic drainage and solid waste management--There are only two major sewerage lines, one out of which starts from Lady Roberts Hotel and other originates from a place near Jawa Hotel, sanitary waste from both these lines is disposed of in greenish outskirts of Murree--The contaminated water is slowly and gradually eliminating and damaging habitat of aquatic creatures in afore-mentioned reservoirs--Even after dusk of two decades of afore-mentioned report, no step was taken to address problems highlighted therein--Due to natural conditions, like immature geology and high rainfall, coupled with rapid socio-economic development and related human activity landslide hazard has been a serious concern for safety of life and property in area”--Illegal activities, if not brought to an immediate end, could lead us to further environmental disaster of various kinds--Without a speck of exaggeration, it could be held that shrinking forests are leading to elimination of wildlife which are destined to adversely affect ecosystem of Murree--The land alongside Expressway was encroached with acquiesce of NHA officials, otherwise they would had taken prompt action--The Expressway was designed to provide smooth flow of vehicles leading to Murree and Muzaffarabad but construction of illegal hotels, shops and residential houses has made it vulnerable to a traffic mess in future--The NHA was required to be sensitized about their obligations and for preserving their lands from encroachers--In peak seasons, visitors make ingress in Murree from all sides and factually it becomes difficult and even impossible for Murree Administration to restrict vehicles’ entry by blocking roads--The traffic jam has become a routine feature of Murree in snow season, summer vacations and on public holidays, needless to mention due to excessive and unchecked inflow of vehicles, thus it is need of time to devise an impeccable mechanism--In this backdrop, from available data it was observed that during tragic incident approximately 8000 vehicles entered Murree through Expressway alone--It was expected that Government of Punjab would gave due consideration to business and financial aspects in Murree and they may not be financially strangulated-- The lack of will to implement Section 12 is not restricted to Murree only, rather it reflects from whole of Punjab in particular and remaining part of country in general--There was no regulation in field to monitor business of guest houses and as a necessary consequence no data about their exact number was available--It was admitted that innumerable guest houses with no parking space were operating in Murree-- There was a need to bring hotel industry within framework of Act of 1976 and further to bound them for enhancing not only their quality of service but also parking space--Neither general public nor government officials had any regard to importance of preserving environment and ecosystem-- The lack of far-sightedness in calculating apprehended danger of frail ecosystem had made High Court vulnerable to many threats including environmental disaster, food shortage and water scarcity-- It is expected that Government of Punjab will take immediate steps for addressing problems and deficiencies highlighted above--Petitions disposed of. [Pp. 443, 444, 445, 452, 453,455, 458, 460, 461, 462, 465, 469, 470, 472] E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X & Y

2018 SCMR 2051 and PLJ 2011 Magazine 384 ref.

Public Interest Litigation--

----Provides a right to seek redressal of public grievance directly through constitutional Courts without having recourse to lengthy and tedious traditional litigation. [P. 439] A

Constitution of Pakistan, 1973--

----Art. 199--Writ--Writ can only be issued in favour of a litigant if he successfully demonstrates firstly that there is no other adequate remedy and secondly that he is an aggrieved person. [P. 439] B

Alternate remedy--

----If alternate remedy, upon evaluation, is found to be less effective, time consuming and calls for invoking jurisdiction of multiple Courts/forums, then High Courts are all competent to exercise jurisdiction within framework of Article 199 of Constitution.

[Pp. 439 & 440] C

PLD 2014 Sindh 20 ref.

Constitution of Pakistan, 1973--

----Art. 9--Right to life-- Article 9 bespeaks that an individual is entitled to enjoy pleasures of life by having access to natural and ecological beauty of places. [P. 442] D

PLD 1994 SC 693 ref.

M/s. Jalil Akhtar Abbasi, Amir Abdullah Abbasi & Ch. Muhammad Fahad Bashir, Advocates for Petitioners.

M/s. Qaiser Abbas Shah, Assistant Advocate General Punjab, Farhat Majeed Chaudhry, Assistant Advocate General, Punjab, Arfan Ahmed Khan Niazi, Assistant Advocate General, Punjab, Haroon Rasheed Janjua, Deputy Attorney General for Pakistan, Rashid Hanif Deputy Attorney General for Pakistan, Nayyer Abbas Assistant Attorney General for Pakistan, Syed Muhammad Shah Legal Advisor Rawalpindi District Administration, Noor-ul-Ameen Mengal Commissioner, Rawalpindi Division, Tariq Farooq D.C, Rawalpindi, Waqas Ahmed Assistant Commissioner Rawalpindi, Asadullah Faiz Secretary Tourism, Waseem Riaz CTO, Rawalpindi, Waqas Safdar Jehangri Assistant Commissioner Murre, Majeed DSP Traffic Murree, Dilshad Ahmed XEN Highway Mechanical Rawalpindi, Muhammad Saboor PDMA, Punjab, Kamran Rashid DEO, Rawalpindi Rescue 1122, Raja Saleem Ullah Law Officer Commissioner Rawalpindi, Muhammad Irfan Virk Deputy Director PDMA, Muhammad Usama SDO Highway Mechanical Division, Dr. Naeem Rauf Secretary LG & CDD, Masood Ahmed Abbasi Legal Advisor TMA Murree, Hamayun Akhtar Deputy Director CTW Department, Syed Ali Muzaffar Addl. Chief Secretary, Punjab, Muhammad Ashraf Deputy Secretary (S&GDA), Kamran Khan, Chief Officer District Council Rawalpindi, Raza Elahi Deputy Municipal Officer, Usama Rehmat Khan Niazi Director Anti-Corruption, Punjab, Junaid Mumtaz DFO, Rawalpindi, Arfa Batool Deputy Director Wildlife, Imran Zaidi XEN Building Divisional Rawalpindi, Muhammad Rafiq Deputy Director Environment, Inam-ul-Haq Inspector EPA and Qasim Pervez Gondal HR and Legal Officer THQ Hospital Murree for Respondents.

Date of hearing: 26.10.2022.

Judgment

Since all the afore-mentioned constitutional petitions are moved in similar background and the prayers made therein are of alike nature, hence are being disposed of with one common judgment.

1. A heart wrenching incident which prompted the petitioners to approach this Court occurred in Murree on 07.01.2022 during which 22-tourists got stuck in a blizzard and lost their lives after remaining stranded in their vehicles for whole night. The petitioners, who are residents of Murree, also agitated the insouciant attitude of the public functionaries hailing from different Government Departments which led to the unfortunate incident of 07.01.2022 and besides that also highlighted the lack of interest of various Government Departments which gradually but vividly is making Murree a heaven on earth, into a place vulnerable to climatic disaster. Through these petitions, more or less, issuance of following directions of public interest is sought:-

(i) direct the respondents to fix the liability of mal-governance and specific department and persons responsible for the painful incident and death of 22 innocent citizens due to grave negligence.

(ii) the ban for travelling to Murree be declared illegal, unlawful and without authority and against the Constitution.

(iii) direct the respondents to improve their infrastructure and improve the efficiency by active coordination and facilitation to the public-at-large and local residents of Tehsil Murree.

(iv) direct the respondents to take urgent and quick actions in up-gradation of affairs pertaining to Punjab Highway Department, WAPDA, Forest and Tourism Departments etc.

(v) the exemplary compensation be awarded to the families of the deceased persons in painful incident of at least five million per casualty.

1. During arguments, indifferent attitude of TMA Murree, Punjab Forest Department, Punjab Wildlife Department, Environmental Protection Agency, PDMA, National Highway Authority, National Motorway Police, Pakistan Metrological Department, Punjab Tourism Department, Rescue-1122 Department and Traffic Police was highlighted through which on one hand the top most tourists’ resort Murree is canvassed as losing its ecological attraction and on other hand the lives of its residents are described to have become miserable. The petitioners, who claim to have ancestral ties with the land of Murree also vociferously pleaded that in the wake of tragic incident of 07.01.2022 the residents of the region were trolled on electronic, print and social media through self-knitted stories having no scintilla of reality.

2. In pursuance of the grievances voiced in the above-mentioned petitions and the submissions made in support thereof, the comments were requisitioned from various Government Departments besides summoning different officials, who were heard at length so as to provide them opportunity of placing on record their respective stance. The dismissal of all the afore-mentioned petitions was urged on the ground that incident of 07.01.2022 was a natural calamity, beyond the reach of Government Departments to curtail and since the petitioners, individually, have not suffered any loss, thus are neither aggrieved nor have locus standi to approach this Court. The acceptance of these petitions was opposed also on the premise that on the tragic night of 07.01.2022, all the functionaries of the concerned Departments remained at their toes in rescuing the stranded citizens and provided them every possible help.

3. Since the dismissal of these petitions was urged on account of their non-maintainability due to existence of alternate remedy and absence of locus standi of petitioners as aggrieved persons, hence these aspects are meticulously examined. The petitions in hand, from their very genesis, are in the nature of public interest litigation, more commonly known as pro bono publico. The concept of public interest litigation, as it evolved over the years, provides a right to seek redressal of public grievance directly through constitutional Courts without having recourse to lengthy and tedious traditional litigation. The powers of Court to address the issues raised through public interest litigation are not unbridled, rather are subject to certain restrictions and limitations. The cases of public interest litigation are entertained by the High Courts within the framework of Article 199 of Islamic Republic of Pakistan, 1973 (hereinafter referred to as “the Constitution”). Such writ can only be issued in favour of a litigant if he successfully demonstrates firstly that there is no other adequate remedy and secondly that he is an aggrieved person. It will not be out of context to mention here that in order to oust a litigant from the Court to seek remedy under Article 199 of the Constitution, the respondents must satisfy that the alternate remedy to seek justice is not only effective but expeditious as well. Likewise, to hold a person disentitled from seeking relief under Article 199 of the Constitution, the alternate remedy must be convenient, beneficial and effective. If the alternate remedy, upon evaluation, is found to be less effective, time consuming and calls for invoking the jurisdiction of multiple Courts/forums, then the High Courts are all competent to exercise jurisdiction within the framework of Article 199 of the Constitution. The constitutional jurisdiction of High Court can be set in motion, if the agitated grievance gives rise to an exceptional case and is directed against indifferent attitude of public functionaries towards fulfillment of their statutory obligations, likely to affect public-at-large. In the case reported as Habib Metropolitan Bank Ltd. v. Administrator, Karachi Municipal Corporation, Karachi and 3 others (PLD 2014 Sindh 20), the dismissal of a constitutional petition moved in public interest was urged but a learned Division Bench of Sindh High Court turned down such submission with the following observation:-

“In the first instance, adverting to legal objection raised by the learned counsel for KMC as to the maintainability of the constitutional petition on the ground that the petitioner has not availed alternate remedy available under the relevant rules/by-laws, suffice it to refer to the well settled principle of law that the alternate remedy must not be less convenient, beneficial and effective then the one sought to be enforced under Article 199 of the Constitution; at the same time it should also be efficacious and speedy. It is also settled law that in appropriate/exceptional cases despite availability of alternate remedy, this Court can exercise its extraordinary constitutional jurisdiction conferred upon it under Article 199 of the Constitution of Islamic Republic of Pakistan.”

The bona fide of a pro bono publico litigant is to be adjudged on the touchstone of his status as an aggrieved person and secondly on the ground that he is petitioning in the interest of general public. It is further incumbent upon the litigating person to demonstrate that if the agitated grievance is not immediately addressed, it is destined to adversely affect the society as a whole. The parameters within which the public interest litigation can be entertained were examined by the Hon’ble Supreme Court of Pakistan in the case reported as Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 Supreme Court 482) and observed as under:

“No doubt with the development of new concept of public interest litigation in the recent years, a person can invoke the constitutional jurisdiction of the superior Courts as pro bono publico but while exercising this jurisdiction, he has to show that he is litigating firstly in the public interest and, secondly, for the public good or for the welfare of the general public. The word ‘pro bono publico’ as defined in Black Law Dictionary, Chamber Dictionary and Oxford Dictionary, generally means ‘for the public good’ or ‘for welfare of the whole’ being or involving uncompensated legal services performed especially for the public good. ‘Public interest’ in the Black Law Dictionary has been defined as ‘the general welfare of the public that warrants recognition and protection’. Something in which the public as a whole has a stake; especially an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries where they have failed to performed their duties relating to the welfare of the public at large which they are bound to provide under the relevant laws.”

It further explicitly stems out from the plain reading of Article 199(1)(c) & Article 199 (2) of the Constitution that High Court is well equipped with the powers to issue a direction for the enforcement of fundamental rights of the subjects, guaranteed under Chapter 1 of Part-II. For the clarity of subject, the afore-quoted provisions are essentially required to be looked into, thus are being mentioned hereunder:

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

…………………………………………………………………………

(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental rights conferred by Chapter 1 of Part-II.

(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.”

Now the overreaching question arises as to what are those fundamental rights, which are agitated to be infringed by the respondents. In this regard, it is observed that through instant public interest litigation, the petitioners raised concern about shrinking forests, extinguishing wildlife, rapid deterioration of scenic beauty of Murree hills as well as heedless approach of TMA Murree, Environmental Protection Agency, PDMA, National Highway Authority, Pakistan Metrological Department, Punjab Tourism Department, Rescue-1122 towards discharge of their official duties. With reiteration, it is mentioned that the petitioners hail from Murree and have right to enjoy its God-gifted beauty emanating from the lush green forests, the sky whispering pine trees, the fresh water of natural springs stemming out from these mountains and amongst others the eye-catching fauna and flora of the region. One of the fundamental rights guaranteed under Part-II of Chapter 1 of the Constitution is envisaged in Article 9 whereby no person shall be deprived of life or liberty save in accordance with law. The term ‘life’ used in Article 9 cannot be restricted to mere existence of a living person rather is stretched to all and every aspect of quality human life. The word ‘life’ is not defined in the Constitution, thus cannot be given a restricted meaning rather is of wider import. Article 9 bespeaks that an individual is entitled to enjoy the pleasures of life by having access to natural and ecological beauty of places like Murree hills, needless to mention, within a defined sphere of law. Since Article 9 explicitly and unrestrictedly guarantees the right to live a life, it is not required to be established through customary protracted litigation rather is to be enforced vigorously even through a constitutional petition, once the agitated grievance is found to have reasonable substance in it. The term ‘life’ was comprehensively expounded by the Hon’ble Supreme Court of Pakistan in the case of Ms. Shehla Zia and others v. WAPDA (PLD 1994 Supreme Court 693) and some extracts therefrom are being referred hereunder:-

“Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word ‘life’ is very significant as it covers all facets of human existence. The word ‘life’ has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception of death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and Constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, and factory, power station or such like installations.

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The Constitutional Law in America provides an extensive and wide meaning to the word ‘life’ which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal rights, freedom and liberties. Any action taken which may create hazards of life according to law. In the present case this is the complaint the petitioners have made. In our view the word ‘life’ constitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen. In this view of the matter the petition is maintainable.”

Allah Almighty blessed Murree with a heavenly beauty and no one has right to rob it by cutting trees, excavating the mountains for constructing concreate structures or to pollute it by dumping garbage in its hilly slopes. Without an exaggeration, from the facts agitated through instant constitutional petitions, it can be held that the fundamental right guaranteed under Article 9 of the Constitution is being infringed, thus the instant petitions are maintainable.

1. A wade through the contents of the constitutional petitions in hand unfolds that the concerns raised can be bisected in two parts. The first part of these concerns has its roots in the agonizing incident of 07.01.2022 during which 22-persons lost their lives in a blizzard, after remaining trapped in their snow stuck vehicles for whole night, awaiting rescue workers who never turned up. The second part of the grievance pertains to the mishandling of affairs by the public functionaries destroying the ecological system of Murree. In order to assess the actual reasons which led to the catastrophe of 07.01.2022 and the nose dive decline of the natural beauty of Murree, not only the comments from various departments were requisitioned but right of hearing was also given to the relevant officials.

2. Firstly, it is considered appropriate to dilate upon the incident of 07.01.2022 but before that it appears to be in fitness of things to tentatively look at the distribution of responsibilities amongst various Government Departments for countering any calamitic disaster. In the wake of deadly earth quake of 2005 which took the lives of approximately 87000 people, caused injuries to 138000 persons out of whom many were left crippled for rest of their lives and displaced around 3.5 Million citizens, a need was felt to devise a credible disaster management system, accordingly the needful was done through Act No. XXIV of 2010 which is called as the National Disaster Management Act, 2010 (hereafter referred to as “NDM Act 2010”). Under its Section 8 Federal Government was to establish the National Disaster Management Authority (hereinafter referred to as “NDMA”) and under Section 15 each Provincial Government was required to set up a Provincial Disaster Management Authority (hereinafter referred to as “PDMA”). The powers and functions of NDMA and PDMA are given in Sections 9 and 16 respectively. Since the calamity of 7th January 2022 hit Tehsil Murree and the grievances voiced in the instant petitions are mainly pointed towards different organs of the Government of Punjab, hence Section 16 wherein the powers and functions of PDMA are envisaged has some importance. Similarly, through necessary implication of Section 18, the respective Provincial Governments were required to establish a District Disaster Management Authority (hereinafter referred to as “DDMA”) for each District, the powers of which are further given in Section 20. Under Section 16, the PDMA was made responsible for making plans of Disaster Management in the Province and to take numerous steps foremost out of which were to formulate and monitor Provincial Disaster Management Policy; identify the Districts vulnerable to disasters and to take preventive steps; lay down guidelines for different departments regarding preparation of Disaster Management; organize and coordinate specialized training programmes for officers, employees and voluntary rescue workers; facilitate community training and awareness programmes; set up, maintain and upgrade mechanism for early warning about an apprehended disaster to the general public etc. It is observed that for the Province of Punjab with a population of around 110 Million, PDMA is made functional only with 94 personnel including 07 officers. For implementing the objectives of NDM Act 2010 through notification No. 149-2017/186/Admn-I dated 22.06.2017 Governor of the Punjab constituted DDMA for each District and its formation is mentioned hereunder:

| | | | | --- | --- | --- | | 1. | Deputy Commissioner | Chairperson | | 2. | Mayors of Metropolitan/Municipal Corporations | Member | | 3. | Chairman District councils | Member | | 4. | District Police Officer | Member | | 5. | Two elected representatives to be nominated by the Chief Minister for each DDMA | Member | | 6. | Two representatives of NGOs/Civil Society to be nominated by Chair | Member | | 7. | CEO District Health Authority | Member | | 8. | CEO District Education Authority | Member | | 9. | Additional Director Livestock | Member | | 10. | Deputy Director Agriculture (Extension) | Member | | 11. | District Food Controller | Member | | 12. | SP/DSP Special Branch | Member | | 13. | Executive Engineer, Irrigation | Member | | 14. | Executive Engineer | Member | | 15. | Executive Engineer Highways | Member | | 16. | Executive Engineer Buildings | Member | | 17. | District Emergency Officer (Rescue 1122) | Secretary | | 18. | Disaster Management Officer, Pakistan Red Crescent Society | Member | | 19. | All Chief Officers of Municipal Corporation/Municipal Committees/District Councils | Member | | 20. | Federal Government Officers which the DDMAs decide to co-opt as per powers delegated under sections 20 & 22 of NDM Act 2010 | Member |

It needs no elaboration that the legislative object of NDM Act 2010 could best be achieved through proper coordination of the offices mentioned in afore-mentioned schedule. To the dismay of this Court, it is noticed from record that though the role of PDMA in disaster management is nothing less than a protagonist but it badly failed to cope with the situation. It is observed that the Metrological Department issued forecast of heavy snowfall and not about the blizzard. Even forecast of heavy snowfall was not properly transmitted to the concerned Departments either by the Metrological Department or by the PDMA. Even on the crucial date PDMA was awaiting the appointment of its Director General after the retirement of previous one but unfortunately the needful was not done by the Government of Punjab within time. While embarking upon the tragedy of 7th January, 2022 following points are essentially required to be highlighted:--

(i) After having carefully perused the schedule mentioned above, it is noticed that Pakistan Metrological Department figures nowhere in the structure of notification No. 149-2017/186/Admn-I dated 22.06.2017 issued by the Governor of Punjab for the implementation of the objects mentioned in NDM Act 2010. This Court is not oblivious of the fact that Pakistan Metrological Department is a Federal entity but still NDMA was required to include it so as to counter any disaster in best possible manner. Despite the lapse so mentioned, Pakistan Metrological Department cannot be exonerated from its responsibility of intimating the concerned Departments about the weather threat alert. Surprisingly, though the Metrological Department issued an alert about expected rain and heavy snowfall but took no pragmatic steps towards apprising other Departments in this regard such as Rescue-1122, Punjab Highway Department, NH&MP, PTDC, and District Administration Rawalpindi etc. Instead of issuing weather advisory through publication in Print Media, circulation via electronic media and intimation to PDMA and other offices by proper correspondence, the calamity alert was only transmitted through WhatsApp Message on the mobile phone of Director General, PDMA on 5th January, 2022 who had already relinquished the charge on the eve of his retirement. A fact-finding enquiry was conducted about the 7th January incident by four senior officers of Punjab Government and it evinces therefrom that WhatsApp message so forwarded to Director General, PDMA was not seen till 18th of January, 2022. The improper issuance of weather forecast inevitably became the root cause of the incident.

(ii) The Punjab Highway Department had major role to play for clearing snow from the roads. A huge budget is allocated to the Department along with vehicles and personnel for its smooth working. Though an attempt was made to canvass before this Court that during the tragic incident of 07.01.2022 the Punjab Highway Department put best of its efforts but the frailty of such stance was badly exposed from the record. Initially, it was stated before this Court that approximately 29-vehicles including snow blowers of Highway Department were located at Key-Points and remained functional in clearing the roads. Later, when the record was requisitioned from the Punjab Highway Department, it unveiled that for operating the afore-mentioned 29-vehicles, only 20-persons were deputed and 15 out of them were not even having requisite expertise to handle them. It is considered important to mention here that nine of these persons were recruited as Greasers, whereas remaining six were employed as Bitumen Colly, Filter Colly, Rack Colly, Watchman, Work Taker and Time-Keeper. These persons were neither employed as Drivers/Operators nor had requisite abilities of operating the vehicles or even to clear the snow from the roads. As this was not enough, it further divulged from record that the job of sprinkling salt to counter the slippery ice roads, was outsourced to a private contractor in lieu of Rs. 7.500 Million, as service charges only with no supervisory check. Even the salt to be sprinkled on the road was provided by the Punjab Highway Department having enough manpower and logistic support to do the job. Living in a developing country like Pakistan with financial constraints, we cannot chew such extravagant spending so as to digest it. The state of affairs so mentioned speaks volume about the inefficiency of Punjab Highway Department, which somehow aggravated the impact of snow storm and the loss caused by it.

(iii) Rescue-1122 is a prestigious organization in the developing countries like Pakistan and was established to provide various facilities to the citizens in times of need. The personnel of Rescue-1122 are provided extensive training to render services in emergent situations and needless to mention a huge expense is incurred from public exchequer in this regard. Most of the victims of 7th January calamity remained stuck on a patch of about 2/3 kilometers on Nathia Galli Road starting from a place known as Kuldana Murree. A report was requisitioned from Murree Wing of Rescue-1122 which was accordingly submitted and it was put forth therein that on the night of 7th January, 2022, approximately 25-victims of severe weather were attended. In order to adjudge the veracity of such stance, the log-book of Rescue-1122 was perused from which it emerged that none of the victims receiving medical treatment was located on the road leading from Kuldana to Nathia Galli. Indeed, all these persons received treatment at places around Mall Road of Murree wherein the situation was not so alarming and were suffering from routine medical problems like temperature and indigestion etc. An ample opportunity was provided to the officials of Rescue-1122 for demonstrating that they reached calamity hit areas but they failed in this regard. It will not be out of place to mention here that deployment of Rescue-1122 personnel at different points definitely would have reduced the intensity of the lives-loss during the disaster of 7th January.

(iv) It is also noteworthy that Murree comprises upon a hilly contour and for an official posted therein, it is time taking job to understand the expected problems, more importantly arising from severe weather. It is appalling to observe that in the last four years nine Assistant Commissioners were posted out from Murree within short span of tenure and that too without mentioning any reason whatsoever. The role of Assistant Commissioner in a Sub-Division like Murree needs no elaboration when seen in the context that practically he is the administrative head. Same was the case of police officials as during this period approximately nine SDPOs and equal number of Station House Officers of Police Station Murree were mysteriously transferred. Likewise, during same period eight DSPs Traffic were changed in Tehsil Murree and that too without any good reason. It needs no elaboration that for an incoming officer this is time taking process to acquaint himself with the territory under his control and the problems which usually occur. Though repeatedly a query was raised by this Court on various dates about the reasons which led to the frequent transfers of afore-mentioned officials but the representatives of Punjab Government resorted to an eternal silence and failed to put forth any justification whatsoever in this regard. In the wake of such frequent transfers, it appears unjust to hold them guilty for the disaster of 7th January, 2022 but still it was so done by the Additional Chief Secretary in his enquiry report.

(v) According to Section 18 of NDM Act 2010, a notification was to be issued by the Provincial Government through publication in official gazette for constituting District Disaster Management Unit for each District. As mentioned above, DDMA was constituted vide notification dated 22.06.2017 wherein its composition is also mentioned. Though traces of some effective meetings of DDMA for addressing the problems expected to crop up in the upcoming winter season are found from record but ultimately the same remained ineffective due to slackness of Pakistan Metrological Department and the PDMA. It is already mentioned in the preceding para that neither Pakistan Metrological Department took any effective step in intimating the concerned quarters (including the DDMA) nor the PDMA bothered to contact Murree Administration for making necessary arrangements for the expected heavy snowfall. Nothing as such was placed on record from which it may insinuate that the steps in adherence to Section 16 of NDM Act 2010 were effectively taken. Neither the guidelines in accordance with Section 16 (2) (d) for preparation of Disaster Management Plan were formulated nor policy for a coordinated response in the event of disaster under clause (e) was set up. It was essentially required under Section 16 (2) (h) to educate general public and generate awareness amongst them through community training for Disaster Management but unfortunately even after the lapse of 12-years of enacting NDM Act 2010, nothing as such is done. Needless to mention here that lack of education, absence of awareness and non-imparting of community training aggravated the devastation caused through snowstorm of 7th January, 2022. The impact of omission to impart training to the general public can well be gauged from the fact that approximately 22-persons were reported to have died helplessly, mainly due to the intake of carbon monoxide emitting from the exhaust of their snow stuck vehicles. The ill-fated departed souls apparently took refuge in their vehicles considering them as safe heavens but had no knowledge that the same will become their death cage. This tragic incident is one example of the damage resulted from indifferent attitude of PDMA towards their statutory obligation of imparting awareness to the general public under Section 16 (2) (h) of NDM Act 2010. Above all, it was the responsibility of the PDMA to intimate DDMA and coordinate with other government departments including the police and District Administration for addressing the severe weather but from record no clue of any effort in this regard is found. Though the tourists and their vehicles kept pouring into Murree in large number, disproportionate to absorb them but still the hierarchy of PDMA remained in negligent slumber. During arguments, comments were requisitioned from the police and District Administration and it emerged therefrom that after the calamity hit Murree, Assistant Commissioner, Deputy Commissioner, SDPO, DSP Traffic as well as the CPO remained on the roads whole night and left no stone unturned to mitigate the damage but astonishingly all of them were held responsible in an enquiry conducted by the Additional Chief Secretary. In this regard, the photographs were also placed on record in which these officials could well be seen while rescuing general public and guiding the motorists for clearing the roads even in the dark hours of night. The enquiry conducted by Additional Chief Secretary to lift veil from the delinquency which resulted in the loss of 22-lives, strict action was recommended to be taken against the afore-mentioned officials, whereas the Metrological Department and PDMA earned clean chit in the same report. The finding of Additional Chief Secretary is preposterous in nature as in one of its part the afore-mentioned officials were attributed slackness and in another portion they were appreciated for putting relentless efforts in clearing the mess caused by the weather and indisciplined motorists. It is evident from record that Assistant Commissioner Murree convened meetings in November, 2021 and devised a strategy for upcoming snow season. The duties of CPO are given in Article 4 of Police Order, 2002, the perusal of which gives not even a remote clue about his responsibilities to deal with some weather calamity at his own. Indeed, as per Article 4 of Police Order, 2002 CPO, is required to be more concerned with policing. The most important aspect which emerged from the review of record is to the effect that all the 22-persons lost their lives on the road leading to Murree from the Province of KPK. Admittedly, this road is in the shape of single carriageway and its closure by the Murree Administration could have given rise to a greater tragedy due to complete traffic jam.

(vi) The blizzard which gave birth to the disaster of 7th January, 2022 though had nothing to do with the residents of Murree but still they were badly trolled on Social and Electronic Media through stories, some of which had no shred of truth. Admittedly, hotel owners charged exorbitantly for dining and lodging, still some of them gave free shelter and food to the weather-stricken tourists but such generosity found no place in the media. Such negative campaign generated hatred towards residents of Murree across the country, which definitely was not harmonious for national unity. From the review of record and the affairs of Murree it can inevitably be held that hoteling business in Murree is essentially required to be regulated. Some of these hotels have lodging capacity disproportionate to the vehicle parking facility. The rent of these hotel rooms in no manner commensurate with the standard of services provided by them. I feel it appropriate to dilate in the later part of the judgment upon the measures required to be taken for comprehensively regulating the hotel industry in Murree.

(vii) The lack of discipline prevailing amongst our countrymen reflects from every sphere of life and the traffic on the roads is no exception. It is a matter of common observance that generally the motorists pay no heed to the discipline and display no tolerance while on the roads, more importantly, if there is a traffic blockage. The same indisciplined attitude deciphered during this tragedy and the motorists grossly violated lane discipline on the roads all around Murree, including the Express Way which culminated in a complex traffic chaos. Due to foregoing reasons, the rescuers from various government departments failed to perform their task during the disaster under discussion.

1. The second part of the grievance agitated in these petitions pertains to the rapidly deteriorating natural environment of Murree and its ecosystem. The lush green hill tops, crystal pure water streams, mesmeric sound of breeze passing through towering pine trees, scenic slopes and fresh air always fascinated the tourists to visit Murree. The city was established in the 19th Century during the British epoch and is situated at an altitude of 7500 feet above sea level. It will be advantageous to mention here that construction in Murree started way back in 1851 by the British Rulers while selecting it as a summer camp to evade scorching heat of Punjab. For adding beauty to Murree, a touch of neo-gothic architecture was given as is evident from the structures like the Lawrence College, Anglican Church, Presbyterian Church and Telegraph Office. A wade through the Gazetteer of Rawalpindi District 1893-1894 reveals that the population of Murree was comprising upon 1768 inhabitants with few buildings only and its perusal from pages 262 to 266 gives a clue that the area was clothed in dense forests of pines and chestnut trees with fresh water streams flowing down the hills. With the afflux of time and more importantly in the recent past, on one hand the population of Murree grew very rapidly and on other end the unplanned construction also gained skyrocketed momentum. In Multi-Hazard Vulnerability and Risk Assessment Study of the Murree Municipality funded by United Nations Development Programme (UNDP), five potential threats to the city were highlighted which are as under:-

(i) Earthquakes, (ii) Landslides, (iii) Flashfloods, (iv) Environmental Degradation and Deforestation &

(v) Population and Tourism Hazards.

In the same report it was highlighted that approximately 284 residential buildings, 20 commercial buildings, length of 9-kilometer road and 17-bridges are at risk. The earthquake risk analysis was described in the report to have placed under serious threat, 50 percent of the buildings and population of the Murree area. The potential land sliding threat was also stated in the report to have made vulnerable around 1.5-kilometer of roads, three bridges, 57-residential buildings and 12-commercial buildings. The risk arising out of flashfloods was also pinpointed in the UNDP report towards 298-meter length of roads at various locations, three bridges, 127 residential buildings along with four commercial structures. Despite the potential threats so mentioned in UNDP report, the construction is being carried out at an alarming and rapid pace. In order to further elaborate the ongoing construction, it is being mentioned that only in the recent past, 167-approvals were granted by the Municipal Committee Murree and 47 by Tehsil Council Murree. On the other hand, 31-buildings constructed in violation of Building By-laws or without obtaining approval were demolished. With the passage of time, the pine and chestnut forests referred in the Gazetteer of Rawalpindi District 1893-1894 shrank alarmingly besides that the purity of water streams was also compromised through multiple reasons, foremost out of which is faulty sewerage system and improper waste disposal plan. Even today there is no proper sewerage or garbage collection system to deal with commercial and domestic drainage and solid waste management. There are only two major sewerage lines, one out of which starts from Lady Roberts Hotel and the other originates from a place near Jawa Hotel, the sanitary waste from both these lines is disposed of in the greenish outskirts of Murree. In some areas, the local inhabitants have constructed septic tanks and drains which either ends in the water channels or at open places. It is painful to mention here that the pine covered hilly slopes adjacent to the roads as well as with the residential areas, which once used to have breathtaking beauty are now giving ugly look of being ideally and conveniently used for dumping of empty beverages, plastic bottles, Tetra Packs, wrappers and plastic bags etc. The sewerage and drain water disposed of in the open area later seeps down in the hill crests which not only contaminates underground water but also is a potential threat for land sliding. It is equally important to mention here that the hills of Murree are catchment areas on its Eastern sides for River Jhelum leading to Mangla Dam and on Western side for channels adding water to Simly and Rawal Dams. The two water reservoirs, Simly and Rawal Dams, were built to cater the needs of inhabitants of twin cities, Islamabad and Rawalpindi. The contaminated water originating from Murree gets further polluted through poultry and residential wastes before joining the afore-mentioned two reservoirs and in consequence thereof the inhabitants of the twin cities are left with no other option but to consume it despite being unsuitable for human consumption. The contaminated water is slowly and gradually eliminating and damaging the habitat of aquatic creatures in the afore-mentioned reservoirs. In the year 2000, Government of the Punjab got prepared a report by hiring the services of a private consultant, namely, Pakistan Engineering Services (Pvt.) Ltd which was titled as Feasibility Studies and Master Planning for Sanitation Project Murree on Long Term Basis. The report upon its perusal is found to be comprehensive wherein the defects of sewerage system are highlighted along with its threat to environment. Unfortunately, even after the dusk of two decades of afore-mentioned report, no step is taken to address the problems highlighted therein. In an article written by Andrew E Collins titled as Cause and Extent of Environmental Impacts of Landslide Hazards in the Himalayan Region: A Case Study of Murree, the potential threat of land sliding and earthquake were highlighted. In the article, it was mentioned that “Murree area consists of fragile rocks with hard grey to reddish sandstone inter-bedded with soft and red calcareous shale. These rocks have the highest tendency towards landslides. It has been observed that due to natural conditions, like immature geology and high rainfall, coupled with rapid socio-economic development and related human activity the landslide hazard has been a serious concern for the safety of life and property in the area”. In the same article after discussing the earthquake and land sliding factor in Murree the author gave certain observations, out of which, some are being mentioned on account of their importance:

“In the study area people are mostly living on the vulnerable steep slopes which are not technically viable for the establishment of human settlements. Besides this, the population of Murree area is increasing at rapid pace (3.1 % per annum). As a result, the built-up area is also multiplying day-by-day. This expansion of the built-up area has been going on in both a horizontal and a vertical direction. The high-rise buildings are constructed indiscriminately without care of by-laws and regulations in Murree and the surrounding area. Therefore construction pressure on the slopes has led to the increase in the intensity of landslides.”

The events of land sliding and the damage caused to the buildings and roads in reference to the monetary loss are mentioned in detail by the author in the afore-mentioned article.

1. In the backdrop of what is mentioned in the preceding para, it is observed that different enactments to deal with the municipal affairs of Murree remained in field some of which can be enumerated as Punjab Municipal Act, 1911, Local Government Ordinance, 1979, Punjab Local Government Ordinance, 2001, Punjab Local Government Ordinance, 2013 and Punjab Local Government Ordinance, 2019. Under the afore-mentioned enactments building rules and by-laws were framed in order to regulate the construction policy and at present, the Building By-Laws of Murree (Tehsil) 2021 are in field. Though in all the afore-mentioned enactments/By-laws a stringent construction policy was embedded and restriction was imposed upon excavation, digging and mountain cutting but the practice has yet not come to an end. For reference sake, Clause-9 of Building By-Laws 2005 is referred hereunder:

“9. Type of construction:

(a) Excavation, digging and cutting of mountain is strictly prohibited.

(b) No frame structure shall be allowed.

(c) Only C.G.I. sheets shall be used for roof tops.”

The excessive digging, cutting, change in landscape and unplanned construction is paving way for multiple environmental hazards but unfortunately no heed is being paid. On one hand, the ongoing and unchecked change in landscaping has diverted the course of rain water in directions different from the Rawal Dam and Simly Dam and on other hand the water which drops in these reservoirs brings silt reducing the water storage capacity. It is equally important to mention here that almost in all the Building By-Laws a restriction was imposed that no building may exceed three storeys with an optional basement but it was admitted during arguments that at present many multi-storey structures are either built or are under construction and that too without hiring the services of professional architects and building engineers. Such construction is jaw dropping when seen in the context that Murree and Kotli Sattian are situated on fault line/seismic zone, thus their vulnerability to earthquake needs no discussion. The afore-mentioned illegal activities, if not brought to an immediate end, can lead us to further environmental disaster of various kinds. Such lawbreaking can best be halted through the vigilant eyes of Divisional Administrative Head and top brass of relevant departments. I am persuaded to observe here that if the construction will continue with the same pace in the region, there is every possibility that, in two or three decades, concrete structures will replace the greenish look of Murree. It has become epitome our national life that we wait for a tragedy to occur and only then give a thought of future planning.

1. In order to address the problems leading to extinguishing fauna and decaying flora, notices were issued to the Wildlife Department Rawalpindi Region and the Murree Forest Division. Before inching any further, it is considered appropriate to mention here that Murree was studded with diversity of wildlife which presently is at risk of extinction. Though it is reported by the Wildlife Department that common leopards, wild boar, jackals, porcupine, hedgehog, mongooses, monkeys, Indian Peafowl, common crow and common kite are available in somewhat satisfactory number but there are some other species which have notably decreased and are at verge of extinction. The extinguishing wildlife in Murree region comprises upon barking deer, Indian pangolin, Indian rabbit, black partridge, grey partridge, kalij pheasant, common dove, blue rock pigeon, phyton, common krait, viper and monitor lizard. The reasons behind the extinguishing wildlife in Murree region can be summarized as under:-

(i) Habitat Loss, (ii) Urbanization, (iii) Forest fires, (iv) Tree cutting, (v) Illegal hunting/poaching &

(vi) Lack of awareness.

It further unveiled during arguments that the Wildlife Department is having scarcity of staff and meagre logistic resources. This Court was astounded to know that only a single vehicle along with two motorbikes are provided in each District of Punjab for keeping surveillance on poachers and the conservation of wildlife. This is a matter of common observation that poachers are always well equipped with weapons and for nabbing them an empty-handed wildlife official is made to stand against them. Often, these hunters decamp along with the illegal hunted animal by taking advantage of helpless wildlife official, not even having the luxury of possessing a camera to capture the visuals of their unlawful acts. Resultantly, the prosecution launched for bringing to book such poachers ends in failure before the Courts. Needless to mention here that with such dearth of manpower and logistic facilities coupled with non-cooperative behaviour of police towards curbing illegal hunting, it apparently is not possible to save the endangered wildlife.

The state of affairs pertaining to Punjab Forest Department are also found to be alarming in nature, giving a clue that if immediate steps are not taken, the flora in the region will be at risk. The Murree Forest Division comprises upon woodland of coniferous and shrubs hailing from 167 genera and 71 families situated mainly in Murree and partially in Kotli Sattian. Historically, the forests of Murree consisted upon land forfeited by the British Government from the locals and in exchange thereof various rights like free grazing, grant of trees for buildings as well as for burial purposes were granted to them but unfortunately over the years common lands/Shamlaat have been converted into Housing Societies and Residential Areas. Forests comprising upon approximately 3580 acres are the property of Municipal Committee Murree. From 1959 onward, a sizeable area of Municipal Forests approximately comprising upon 316.579 acres was transferred in the names of various departments as is evident from the following schedule:-

| | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | Sl. No. | Title of case | Capt.No. | Area Transferred (Acres) | To whom transferred | By whom transferred | Notification No. & date | | 1. | Lower Jhikagali road Scheme area (Murree Improvement Trust) | 20,21,22,23/Municipal Forest | 209.00 | Murree Improvement Trust | Social Welfare & Local Government Department Trusts | SO(T)V-G/58 dated 7.8.1959 | | 2. | Multiplication and Acclimatization of Wild Ornamental Flora | 5/Municipal Forest Kuldana | 10.00 | Agriculture Department | Govt: of the Punjab FW&F Department | SOFT(EXT) II- 1 dated 23.12.1989 | | 3. | 3 Malra Housing Scheme Sunny Bank Murree | 9/Municipal Forest Chitta More | 40.00 | Housing, Physical and Environmental Planning Department | Colonies Department | SO (P) 2- 11/86-42 dated 10.5.89 | | 4. | Govt: commercial Training Institute Sunny Bank | 7/Municipal forest Sunny Bank | 03.075 | Education Department | Deputy Commissioner Rawalpindi | 16-86/SK dated 26.1.86 | | 5. | Establishment of Rescue 1122 Centre Murree | 11/Municipal Forest Pindi Point near Punjab House | 0.704 | Govt: of the Punjab & Development Department | Colonies Department | No.2692- 009/2855/CS- IV dated 29.8.2009 | | 6. | Establishment of 150 Bed Hospital at Murree | 4/Municipal Forest Kuldana | 40.00 | Health Department | Colonies Department | No.2692- 2009/2855/CS- iv DATED 29.8.2009 | | 7. | Construction of Car Parking Plaza at Jhikagali & Dhobighat Murree | 3/Municipal Forest & 24/M. Forest | 06.05 | Punjab Provincial Building Department | Summary approved by the CM Punjab containing order dated 4.5.2009 | SOF (EXT) 5/2009 dated 5.5.2009 | | 8. | Allotment of 12 Kanal land for Fazia Inter College Lower Topa Murree | 18/Municipal Forest Lower Topa | 02.75 | Fazia Inter College PAF Lower Topa Murree | Summary approved by the CM Punjab | SOFT (EXT) II-31/2009 dated 16.9.2009 | | 9. | Transfer of Land for Agriculture Research | 17/Municipal Forest Lower Topa | 05.00 | Agriculture Department | Colonies Department | 2795- 2003/2351- CSIV dated 10.7.2004 | | | Total: | 316.579 Acres | | | | |

Similarly, 65 acres of Murree Municipal Forests land was leased out to some favourites from 1987 onward for the establishment of Chair-Lift, Hotels and Adventure Park, etc. through opaque proceedings. One Muzaffar Hussain resident of Murree filed a complaint before Anti-Corruption Establishment, Lahore regarding encroachment of some private persons upon the Forest and State land. It emerged from the Enquiry Report of ACE, Rawalpindi Region dated 03.06.2005 that about 1567 Kanals of forest land along with 2367 Kanals of State land is being illegally occupied by different persons in Murree upon which residential and commercial buildings are constructed. The irony of the matter surfaced from the conclusion of enquiry report wherein instead of taking steps for removal of these encroachments, it was suggested that the price of the occupied land be recovered from the illegal occupants. Needless to mention here that such proposal amounts to giving a legal backing to an act or omission strictly and expressly prohibited by law. Unfortunately, despite the lapse of considerable period since the detection of afore-mentioned misdeeds, no action for removing these encroachments is taken. In addition, the trees are often cut by the locals in the winter season so as to maintain cozy atmosphere in their houses by burning them as they have no other energy source. The use of wood in housing industry is another factor leading to the deforestation and reduction of forest lands. The imposing of some limitations for the use of wood in housing industry and supply of LPG on subsidized rates to the locals will definitely prove to be steps in right directions for saving the forests. In my humble view, the solid wood be permitted to use only for entrance doors and the use of bio-wood in the remaining doors and windows can definitely make a difference. The world over, bio-wood is being used in housing industry as a parallel source for saving forests but we have yet not given consideration to this aspect.

The Murree has diverse ecosystem with roots in its fauna, flora, natural water streams and hill formation. The ecosystem provides habitat to the wild plants and animals, promotes various food chains and webs, controls essential ecological process and promotes lives, manages recycling of nutrients between biotic and abiotic components. Without a speck of exaggeration, it can be held that the shrinking forests are leading to the elimination of wildlife which are destined to adversely affect the ecosystem of Murree. The World Wildlife Fund (WWF) submitted a report in respect of the proposed New Murree Development Project (later abandoned) which was mentioned by the Hon’ble Supreme Court of Pakistan in the case reported as Muhammad Asjad Abbasi and others v. Iqbal Muhammad Chauhan and others (2018 SCMR 2051) and an extract therefrom on account of its relevancy is being reproduced hereunder:

“The Himalayan forest vegetation provides relatively undisturbed habitat for wildlife species, sustaining their needs for food, water and shelter. Any change in the habitat structure will affect the variety and population of wildlife species. Changes in the vegetation structure will definitely affect the wildlife fauna associated with them and, conversely, changes in faunal composition as well as influence the vegetation it is complexly integrated with. Leopards, once reported from the area, are no longer sighted; their disappearance can threat to the already decreasing population Common Leopards in the Murree hills. The Koklass Pheasant, the White-Crested Kalij Pheasant, and the Paradise Flycatcher are some of the unique bird species inhabiting the Patriata forests, which will also be endangered.

Natural forests form a vital part of catchments, guaranteeing better quality water with lower levels 20f sediments and pollutants. The loss of forest cover and subsequent conversion to other land usage is rapidly being identified as the major reason for the depletion and contamination of freshwater supplies, aggravating the looming water crisis that is threatening the whole country. Since the concerned area is an integral part of the important watersheds of Mangla and Simly dams, the proposed development plan, which entails large scale decimation of this surviving tract of forest, will have massive negative repercussions. Since much of the remaining catchment area of these dams has already been built up, protection of this region is imperative to guarantee groundwater replenishment along with regulation of water table, and to prevent rapid soil erosion with consequential silting of water channels and dams downstream, flash floods and landslides.”

It is already observed above that Wildlife Department lacks requisite resources and the position of Forest Department is no different. Due to shortage of resources to counter the menace of wood theft, the Forest Department has gone toothless. Unfortunately, the sensitivity of the cases registered on behalf of both the departments is not identified even by the Courts and the perpetrators either gets acquittals or are successful in getting rid of prosecution by paying petty fines. The Courts are expected to have resort to judicial activism within the framework of express legal provisions for protecting the extinguishing wildlife and shrinking forests. Besides that, the involvement of general public for preserving the fauna and flora is needed and this can best be done by inserting relevant subjects in educational curriculum as well as through seminars and workshops. The print and electronic media is another source to be utilized for spreading environmental awareness amongst the masses. It is commonly noticed that officials of Forest and Wildlife Department are frequently transferred with short tenures of posting. Such practice, if avoided, can provide better opportunity to the relevant officials for putting their sincere endeavour towards enhancing and protecting the flora and fauna within their respective areas. It will not be out of place to mention here that the laws on the subject are also required to be re-visited by the Legislature. The stringent punishments for offences will create deterrence amongst those who are involved in illegal hunting, wood theft and encroachment upon forest lands.

11. There is yet another factor which adversely reflects upon the indifferent approach of officials hailing from National Highway Authority and can be deciphered from the affairs dealing with Islamabad-Muzaffarabad Road, more commonly known as Murree Expressway. This road starts from ‘Satra Miles’ and ends at Lower Topa with a length of 43.20 kilometers. The land for the road along with 40-meter in rolling terrain and 50 meter in hilly terrain was acquired between the afore-mentioned two points. According to the report submitted by Assistant Director (Maintenance) NHA, Murree, approximately 118-persons have encroached upon the land adjacent to Murree Expressway through various means and against them appropriate action is still awaited. In addition, there is another set of 63-persons who though encroached upon the NHA land alongside Murree Expressway but appropriate actions were taken and the structures so raised were demolished. A pressing need is felt to mention here that the encroachers laid their hands upon the NHA land situated around Murree Expressway in the light of day, thus this is not even remotely possible that the concerned officials had no knowledge of ongoing illegal construction. I have no hesitation to say that the land alongside Expressway was encroached with the acquiesce of NHA officials, otherwise they would have taken prompt action. The Expressway was designed to provide smooth flow of vehicles leading to Murree and Muzaffarabad but the construction of illegal hotels, shops and residential houses has made it vulnerable to a traffic mess in the future. The NHA is required to be sensitized about their obligations and for preserving their lands from the encroachers.

1. The Hill Station of Murree is undoubtedly prime tourist resort of Pakistan, visited by the locals as well as the foreigners and almost 95-percent out of them feel it incumbent to have a walk on the Mall Road. The part of Murree which attracts the tourists is situated on the top of the mountains having nexus with Himalayan region and is situated between the two extremes named as Pindi Point and Kashmir Point. While standing at the Pindi Point, one can see the lay-out of Rawalpindi and from the Kashmir Point the tourists can capture eye-catching beauty of snow-covered mountain tops of Kashmir. The Pindi Point is situated at a distance of 3 ½ kilometers from Kashmir Point, whereas its distance from the GPO is around 1 ½ kilometer. It will not be out of place to mention here that the road leading from GPO to Pindi Point is no-go area for the vehicles. As necessary consequence, the visitors park their vehicles on the roads in between GPO and Kashmir Point which being insufficient space gives rise to traffic chaos. The Murree is situated in the Northernmost part of Punjab having road access from Azad Jammu & Kashmir, Province of KPK, Islamabad and obviously from other parts of Punjab. Murree is connected with Azad Jammu & Kashmir and KPK through a single road, whereas with Islamabad and other parts of Punjab from Expressway as well as through old Murree Road. In peak seasons, the visitors make ingress in Murree from all sides and factually it becomes difficult and even impossible for Murree Administration to restrict the vehicles’ entry by blocking roads. It will not be an over-exaggeration to say that if the single carriageway coming from Azad Jammu & Kashmir, Province of KPK and Punjab are blocked for controlling the inflow of traffic, it can give rise to complexity of problems and even to a tragedy bigger than the 7th of January. The traffic jam has become a routine feature of Murree in snow season, summer vacations and on public holidays, needless to mention due to excessive and unchecked inflow of vehicles, thus it is the need of the time to devise an impeccable mechanism. In this backdrop, from the available data it is observed that during the tragic incident of 7th January, 2022 approximately 8000 vehicles entered Murree through Expressway alone. No statistics are available about the vehicles which reached Murree via old Murree Road, from KPK and Kashmir. It is estimated by the officials that around 30000 to 35000 vehicles entered Murree which was highly disproportionate to the available parking space. It is worth mentioning that the hotels in Murree have a parking slot of about 2000 vehicles, whereas private parking compounds have capacity to adjust 400 further cars. In addition, approximately 1400 vehicles can be parked on road sides in Murree at various places. The statistics are sufficient to shed light on the situation which prevailed on 7th of January, 2022 during which around 35000 vehicles entered Murree. There is no coordinated planning between Administration of Murree, KPK, AJK, Islamabad and NH&MP for catering the inflow of traffic in Murree during peak seasons. It will not be an over-exaggeration to say that the system of free parking in Murree is indeed giving incentive to the tourists for bringing more and more vehicles in the town. The smoke emitting from the exhausts of these vehicles though is a source of pollution but no attention is paid to the environmental damage resulting therefrom. The Government of the Punjab is required to charge parking fee on somewhat higher side so as to discourage the tourists from bringing vehicles in Murree and that too in excess of parking space. Obviously, a parallel system of public transport originating from parking slots to be established in outskirts of Murree can still facilitate the tourists to visit Murree. The possibility of constructing parking plazas at some distance from Murree and shifting of tourists to the town through transit logistics is required to be explored by the Government of Punjab. There are many tourist resorts in the world where the use of vehicles is strictly prohibited and tourists are provided bicycles and electric golf carts, some of which are, Mackinac Island Michigan, Sark United Kingdom, Love Velley North Karolina, Princess Island Turkey and Zermatt Switzerland etc. Indeed, there are around 75-places in the world wherein the entry of vehicles is strictly prohibited. Realizing the complexity of a ban to impose upon the entry of vehicles in Murree, I restrict myself only to suggest that the vehicle entries be attempted to curtail. The allocation of a frequency to establish FM Channel for Murree to guide the tourists upon various aspects is inevitable, so appropriate steps are required to be taken forthwith. Such channel can guide the tourists about the weather conditions in Murree, the availability of parking space for the vehicles and the booking burden on the hotels etc. While devising policies, it is expected that the Government of Punjab will give due consideration to business and financial aspects in Murree and they may not be financially strangulated.

2. The importance of Environmental Impact Assessment (hereinafter referred to as the EIA) in preserving the endangered ecosystem is acknowledged world over. The EIA is the method for pinpointing, foreseeing and examining the environmental impact of a proposed project or development scheme and indeed is helpful in making decisions for preserving the ecosystem. The EIA comprises upon a study relating to description of project, collection of data essential to assess its impact on the environment, the residents of the vicinity, flora, fauna, soil, water, air and landscape etc. Historically, the United States of America was first to devise the EIA system by giving it backing of legislation through National Environmental Policy Act, 1969. In the later years, the concept of EIA attained recognition and legislations were made almost by all the developed countries. The importance of EIA was endorsed in the year 1987 through a report published by the World Commission on Environment and Development whereby it was made mandatory that the environmental impact of a proposed project must be subjected to public scrutiny. Likewise, the Rio Declaration on Environment and Development 1992 was focused at the EIA and its significance on the environment. In order to ensure the implementation of the EIA the international donners like World Bank and the International Finance Corporation etc. started laying emphasis upon such assessments in projects funded by them. Pakistan, in order to meet the requirements of EIA promulgated the first law in 1983 which was named as Pakistan Environmental Protection Ordinance. Subsequently, the Ordinance so referred above, was repealed and replaced with Pakistan Environmental Protection Act, 1997 (hereinafter referred to as the PEP Act, 1997) and through necessary implication of its Sections 3 & 5 a Council and Agency was constituted. The PEP Act, 1997 was legislated with an object of protection, conservation, rehabilitation and improvement of the environment as well as for the prevention and control of pollution, promotion of sustainable development as is evident from its preamble. The term ‘environmental impact assessment’ is defined in its Section 2 (xi) and for reference sake is referred below:

“Environmental impact assessment means an environmental study comprising collection of data, prediction of qualitative and quantitative impacts, comparison of alternatives, evaluation of preventive, mitigatory and compensatory measures, formulation of environmental management and training plans and monitoring arrangements, and framing of recommendations and such other components as may be prescribed.”

In Section 2 (xxxv) the expression ‘project’ is defined as under:

“Project” means any activity, plan, scheme, proposal or undertaking involving any change in the environment and includes:--

(a) Construction or use of buildings or other works;

(b) Construction or use of roads or other transport systems;

(c) Construction or operation of factories or other installments;

(d) Mineral prospecting, mining, quarrying, stone-crushing, drilling and the like;

(e) Any change of land use or water use, and

(f) Alteration, expansion, repair, docommissioning or abandonment of existing buildings or other works, roads or other transport systems, factories or other installments.”

In the above background, Section 12 is found to be of paramount importance having relevancy with the matter under ponderance, thus is essentially required to be examined and has following phraseology:-

“Initial environmental examination and environmental impact assessment. (1) No proponent of a project shall commence construction or operation unless he has filed with the Federal Agency an initial environmental examination or, where the project is likely to cause an adverse environmental effect, an environmental impact assessment, and has obtained from the Federal Agency approval in respect thereof.

(2) The Federal Agency shall:---

(a) Review the initial environmental examination and accord its approval, or require submission of an environmental impact assessment by the proponent; or

(b) Review the environmental impact assessment and accord its approval subject to such conditions as it may deem fit to impose, or require that the environmental impact assessment be re-submitted after such modifications as may be stipulated, or reject the project as being contrary to environmental objectives.

(3) Every review of an environmental impact assessment shall be carried out with public participation and no information will be disclosed during the course of such public participation which relates:-

(i) Trade, manufacturing or business activities, processes or techniques of a proprietary nature, or financial, commercial, scientific or technical matters which the proponent has requested should remain confidential, unless for reasons to be recorded in writing, the Director-General of the Federal Agency is of the opinion that the request for confidentiality is not well-founded or the public interest in the disclosure outweighs the possible prejudice to the competitive position of the project or its proponent; or

(ii) International relations, national security or maintenance of law and order, except with the consent of the Federal Government; or

(iii) Matters covered by legal professional privilege.

(4) The Federal Agency shall communicate its approval or otherwise within a period of four months from the date of the initial environmental examination impact assessment is filed complete in all respects in accordance with the prescribed procedure, failing which the initial environmental examination or, as the case may be, the environmental impact assessment shall be deemed to have been approved, to the extent to which it does not contravene the provisions of this Act and the rules and regulations made thereunder.

(5) Subject to sub-section (4) the Federal Government may in a particular case extend the aforementioned period of four months if the nature of the project so warrants.

(6) The Provisions of sub-sections (1), (2), (3), (4) and (5) shall apply to such categories of projects and in such manner as may be prescribed.

(7) The Federal Agency shall maintain separate registers for initial environmental examination and environmental impact assessment projects, which shall contain brief particulars of each project and a summary of decisions taken thereon, and which shall be open to inspection by the public at all reasonable hours and the disclosure of information in such registers shall be subject to the restrictions specified in sub-section (3).”

The language of Section 12 (ibid) is explicit in sense and manifests its importance in reference to the ongoing residential & commercial construction and developmental projects in Murree. Section 12 makes it incumbent that no project shall commence unless approval of initial environmental examination or environmental impact assessment is not obtained from the Environmental Protection Agency. Unfortunately, the projects of various magnitude are being carried out not only in Murree but in whole of the Punjab province without adhering to the mandatory requirement of Section 12 (ibid) and indeed the foregoing provision has become nothing but a dead statutory letter. The protection of environment is undoubtedly a daunting task and can only be carried out by relentless efforts and devotion of public functionaries with active participation of general public. For ensuring better environment, the masses are required to be educated so as to leave an ecofriendly Pakistan for the coming generations. The lack of will to implement Section 12 is not restricted to Murree only, rather it reflects from whole of the Punjab in particular and remaining part of the country in general. The artificial growth of real estate sector and a facilitative approach of the public functionaries in this regard is badly damaging our agricultural sector leaving a wheat and cotton export country like Pakistan to import the products for fulfilling its needs. The mega housing projects are built on highly fertile agricultural lands, without adhering to the mandatory requirement of EIA postulated in Section 12 of PEP Act, 1997. Similarly, from the reports of various agencies mentioned above clearly depict that Murree has become vulnerable to calamities like land sliding and earthquakes etc but still no steps towards the implementation of Section 12 is being taken. In the year 2012, PEP Act, 1997 was subjected to certain amendments and by enhancing punishments/penalties for the violation of its provisions and was made applicable in the Punjab with a title Punjab Environmental Protection Act, 1997 (Amended) 2012. It is probably the crucial time for us to give a practical effect to Section 12, else the nation will be starving due to food shortage. In an Article titled as Environmental Impact Assessment, its Recognition and Implementation in Pakistan written by Rehan Rauf published in PLJ 2011 Magazine 384, following suggestions were given:-

(i) There should be development of reliable and systematically obtained data basis of ecological and socio-economic environment with the coordination of Universities and departments of related disciplines.

(ii) Implementing agencies should be allowed to utilize the funds on environmental improvement, generated at the local level on account of violating environmental regulations.

(iii) Environmental Protection Agency should have the necessary powers to disburse the fee received from IEE/EIA reports to be spent on the review process.

(iv) There is need to develop mechanism for effective enforcement and necessary infrastructure.

(v) EPAs should strengthen public hearing system through promotion of volunteerism like environmental clubs or groups comprising of experienced people from different sectors.

(vi) There should be capacity building of various important sectors of the society for their effective and objective involvement in the EIA process either through media persons, through training or NGOs through training and networking.

(vii) There is need to develop judicial activism for environment as public interest litigation.

(viii) There should be implementation of monitoring and evaluation by the provincial EPA at local government level under the existing devolved system.

(ix) A clear mechanism of coordination between planning and development departments and EPA for environmental screening of public sector need to be developed.

(x) The human resources with capacity to review the reports and assess the quality of EIA is lacking and process of EIA review is not fully streamlined and lacks checks and balances thus a penal of experts for EIA review is needed along with a system for compensating them.

(xi) The provincial government should establish programs, seminars, conferences to raise the level of awareness and understanding of the public.”

This Court has also taken note of the fact that according to Section 15 of the PEP Act, 1997 a restriction is imposed upon operating a motor vehicle causing air and noise pollution in excess of National Environmental Quality Standards and certain measures are provided in this regard but again the appropriate steps are still awaited. Our roads are jampacked with vehicles emitting toxic smoke from their exhausts and causing air pollution to which Murree is no exception. During pendency of these petitions, a report was also requisitioned from Sardar Asif Ali Sial, a Senior Environmental Lawyer and International Climate Jurist, who is alumnus of UC Barkeley USA. He submitted a detailed report from which following points can be extracted:-

(i) Petrol based vehicles release carbon dioxide, carbon monoxide and oxides of nitrogen from their exhausts, the diesel vehicles run on heavy fuel and have a huge percentage of sulfur oxides which produce significant quantities of sulfur dioxide as well as carbon dioxide.

(ii) The release of toxic gases from the vehicles leads to excessive air pollution having drastic effects on the environment. These gases increase the concentration of green house gasses into the atmosphere leading to gradual rise in temperature. Rampant deforestation due to urbanization coupled with degrading air quality is severely affecting Murree. Punjab Environmental Quality Standards for industrial gaseous emissions and motor vehicle exhausts does not have standards for carbon dioxide emissions as it is not considered the pollutant in the atmosphere, though the concentration of carbon dioxide in the atmosphere determines the global warming level. In the existence of Pakistan Climate Change Act, 2017 and National Climate Change Policy, 2021 it is the legal obligation of the Federal Government to coordinate with the provinces for the legislation of provincial climate change laws regulating the emissions of toxic gasses and pollution, in the light of Paris Agreement executed in 2015.

(iii) The flood that recently came was due to the emissions being released into air with the contribution of toxic gasses making the atmosphere hotter than its usual temperature, leading to melting of glaciers having drastic effects on the environment.

(iv) The plastic garbage is extremely dangerous for the marine wildlife such sea birds, whales, fishes and turtles. Scientists have found out that plastic, when enters oceans or rivers, releases chemicals, such as bisphenol and substances known as polystyrene-based oligomers. The afore-mentioned toxic substances disrupts the hormonal system of animals and aquatic creatures. The plastic is non-bio-degradable and releases toxins which badly affects the air and is threat to environment.

14. Another aspect calling for the indulgence of this Court pertains to the hotel industry in Murree. According to the data submitted before this Court by the Hotel Association approximately 215 hotels with capacity to accommodate 24248 tourists are providing services in Murree with parking space of about 2500 vehicles only. It is informed on behalf of District Administration that in addition to afore-mentioned 215-hotels, lodging facilities are being provided also by the guest houses and no data is available about their exact number. The business of hoteling is being governed under the Punjab Hotels and Restaurants Act, 1976 (hereinafter referred as the “Act of 1976”). In its Section 2 (g), the term hotel is defined as under:-

“Hotel” means a lodging, or boarding and lodging, establishment with a minimum of ten lettable bed rooms, provided for tourists on monetary consideration, which confirms to any of the prescribed minimum criteria, but does not include:-

(i) A home or hostel which is exclusively or mainly used for aged or invalid persons or students and is run by or under the control of a charitable or educational institution; or

(ii) Any rest house, hostel or circuit house exclusively meant for visiting government officials or officials of other organizations, though run on a commercial basis.” (emphasis provided)

It can be gathered from above that the definition of hotels given in the Act of 1976 excludes official rest houses, hostels and private buildings let out to tourists. The afore-mentioned definition also ousts the guest houses from the ambit of restrictions imposed through the Act of 1976 as most of them are having less than 10-rooms, thus are not covered in the definition of hotels. It is essential to mention here that the Act of 1976 was enacted to provide measures for controlling and regulating the standards of services and amenities for tourists in hotels as well as in the restaurants as is evident from its preamble. For regulating and monitoring the hotel industry in Punjab, certain officials like Controller, Deputy Controller, Assistant Controller and Inspectors are appointed under Section 3 and besides that an Advisory Committee is also established through necessary implication of Section 4. For maintaining the standards of the hotels, it is mandatory under Section 6 to make classification of hotels as one star, two star, three star, four star and five star. Under Sections 10 and 11 of the Act of 1976, the Controller is empowered to fix fair rates of these hotels and also to limit the number of persons to be accommodated in their rooms. It is essentially required under Section 13 for a hotel to display at conspicuous place the fair rates of the rooms and maximum number of guests to be accommodated therein. Likewise, for the prior reservation of room in a hotel, a mechanism is provided in Section 14. Under Section 8(a) the Controller can order for sealing of a hotel or restaurant if found to be operating in violation of the Act of 1976 and for such delinquencies, penalties are also provided in its Section 22. From the reports requisitioned during the pendency of these petitions, it transpired that for the implementation of the Act of 1976, no proper steps are being taken. Even after the lapse of 46-years since the enactment of the Act of 1976, the hotels in Murree are not categorized in terms of Section 6. It was informed that there is no regulation in field to monitor the business of guest houses and as a necessary consequence no data about their exact number is available. It was admitted that innumerable guest houses with no parking space are operating in Murree. These hotels provide rooms to walk-in customers and also accommodate tourists through advance booking. In the peak seasons and on holidays there is no mechanism in field to bound down the hotels and guest houses for providing accommodation to the tourists in accordance with their lodging capacity and parking facility which multiplies the problems in Murree. There is a need to bring hotel industry within the framework of Act of 1976 and further to bound them for enhancing not only their quality of service but also the parking space. Likewise, it appears to be essential for maintaining a centralized booking data, to be monitored by the Controller, for keeping an eye over surplus booking method.

1. For preserving the natural beauty and ecosystem of the area, the Government of the Punjab through notification No. SOFT (EXT)XII-2/2009 dated 15.09.2009 declared Tehsil Murree, Kotli Sattian and Kahuta as national park with all the restrictions vested under Section 17 of the Punjab Wildlife (Protection, Preservation and Conservation) and Management Amended Act, 2007. Through this notification following restrictions were imposed:--

(a) Hunting, shooting, trapping, killing or capturing of any wild animal in a National Park or within one a half mile radius of its boundary.

(b) Firing any firearm or doing any other act which may disturb any animal or bird or doing any other act which interferes with the breeding places.

(c) Felling, tapping burning or in any way damaging or destroying, taking, collection or removing any plant or tree there from.

(d) Clearing or breaking up any land for cultivation or mining purpose.

(e) Polluting water following in and through the National park.”

Over the years, the afore-mentioned notification lost its significance and attained the status of a simple paper to be kept in the archives as all the prohibited activities are being carried out with impunity. The landscaping of the area is being changed, more importantly in Kotli Sattian and Kahuta, for raising residential and commercial structures but under the disguise of agricultural use which otherwise is prohibited through afore-mentioned notification. It is observed with utmost pain that neither the general public nor the government officials have any regard to the importance of preserving the environment and ecosystem. It is distressing to express that corruption and indifference towards fulfilling obligations in our system has crossed all bounds to which the Murree has fallen victim. The lack of far-sightedness in calculating the apprehended danger of frail ecosystem has made us vulnerable to many threats including the environmental disaster, food shortage and water scarcity. We are draining our natural resources without realizing the imminent threats to be ensued in the near future. I am mindful of the fact that the lis before me only pertains to the affairs of Murree but still after examining the record I feel compelled to embark upon another aspect of apprehended water crisis. Inexorably, at macro level construction of water reservoirs are inevitable to meet our future needs but at micro level, the individuals are to be sensitized for conscientious use of water. The extravagant wastage of water is commonly noticeable in domestic and commercial use without having regard to the ever-decreasing under-ground water table. While walking down in our streets we can see water coming out from the residential buildings due to excessive use in lawns and for washing the drive-ways but still none is there to regulate such practice. The WASA and Water Boards of TMA are required to activate their respective wings to tame such consumers by imposing exemplary fines.

1. Over the years, different concepts developed in the World for managing social affairs and one out of them is Corporate Social Responsibility. This concept is about the impact an organization makes on the society, the most important out of it is about the environment. An effective Corporate Social Responsibility Programme contributes in adding to the environmental upgradation through following means:-

(i) Reducing pollution, waste, natural resources consumption and emissions through its manufacturing process;

(ii) Recycling goods and material throughout its processes including promoting re-use practices within its customers;

(iii) Off setting negative impacts by replenishing natural resources or supporting causes that can help neutralize the company’s impact. For example, a manufacturer who deforests trees may commit to planting the same amount or more;

(iv) Distributing goods consciously by choosing methods that have the least impact on emissions and pollution.

The concept of Corporate Social Responsibility, for preserving and uplifting the environment, is essentially required to be familiarized and implemented in our system. Even the concept can be utilized in Murree and Government of Punjab is required to explore the possibility of appointing a single or more companies for providing beverages in bottles or tetra packs and wrapped edibles through competitive process. Such companies, through a contract, can be made responsible for cleaning the area from the garbage of their own products and also for fresh plantation. Such practice on one hand will add in improving the environment and on other hand will generate revenue for the government which can further be spent for the socio-economic uplift of the residents.

1. The natural calamities occur and recur and though humans have no power to fight against them but still can mitigate their effects through wise approach and planned strategy. Instead of becoming the prisoners of mistakes committed in the past, this is better for us to be architect of an adoring future. Vividly, this is the time to take appropriate decisions for leaving a better country with strong ecosystem for our coming generations, else we will be left only to repent for the mistakes of our past. For achieving the objectives, not only the public functionaries are to realize their obligations but at the same time, an awareness of ecofriendly Pakistan is to be injected in the general public, more importantly, amongst the youth. We have to make every individual realize his importance for putting efforts in preserving the nature and its importance. For that matter, we have to work like artists in the orchestra, harmoniously to create a symphony which delights the ears. Only a team work, where each individual volunteers his humble bit for achieving the target, can save the decaying ecosystem of our country. While taking leave from the subject, I am compelled to borrow the words of ROBIN SHARMA from his book THE LEADER WHO HAD NO TITLE which were uttered by the protagonist to his novice and are quoted hereunder:-

“In the theatre they say, ‘No role is a small role.’ Same applies in business, Blake. It’s similar to the symphony metaphor. The only way any organization--and any human being, for that matter--will win in these times of revolutionary change will be to start operating under a revolutionary new model of leadership. And this model is all about creating an environment and culture where everyone needs to show leadership. Everyone needs to drive innovation. Everyone needs to inspire their teammates. Everyone needs to embrace change. Everyone needs to take responsibility for results. Everyone needs to be positive. Everyone needs to become devoted to expressing their absolute best. And once they do, the organization not only will adapt beautifully to the changing conditions, it will actually lead within its field.”

18. This Court took pain of highlighting various defects discernable from the improper working of different departments, affecting adversely the ecosystem of Murree in particular and the province in general. It is expected that the Government of Punjab will take immediate steps for addressing the problems and deficiencies highlighted above. In addition to the observations given in the preceding paras, the instant petitions are disposed of in the following terms:-

(i) The event which led to the loss of 22-lives since does not give rise to any criminal aspect, thus the registration of case is not warranted. Still, the Government of Punjab cannot be absolved from its responsibility and mishandling of affairs in the region by various departments which can be described as one of the causes behind the tragedy. In such circumstances, the Government of Punjab who has paid Rs. 800,000/-(rupees eight lac only) to the families of each victim is directed to enhance the amount appropriately.

(ii) The NDMA and PDMA are directed to devise proper plan for achieving the object of NDM Act 2010 by making plans of Disaster Management in areas vulnerable to calamities. They are also directed to organize specialized training programmes for officials, voluntary rescue workers and members of communities. The representatives of the Metrological Department be included in the structure of DDMA.

(iii) Punjab Highway Department is also directed to hire the services of persons having competency and skills to handle equipment including the snow blowers. They are further directed to utilize their own resources for sprinkling salt on the roads instead of outsourcing it to the private contractors as it was being done previously. It is further directed that for effective management a committee headed by Commissioner Rawalpindi be formed which can pool all machinery/equipment and man-power of civil and armed formations for proper utilization in snow season.

(iv) The Government of Punjab is also directed to ensure the implementation of construction policy in Murree and further to demolish the illegal structures after giving notice to their respective owners and providing them an opportunity of hearing in accordance with law. It is further directed that already existing building by-laws of Murree be replaced so as to bring them in conformity with Environmental Protection measures and preferably a restriction be imposed that in future at least forty percent of the plot be left vacant and construction be allowed only on the sixty percent of the plot. The Government of Punjab is further directed to promote the construction of prefab homes in Murree region which besides being cost effective and environment friendly can also be built without mountain cutting and excavation.

(v) The Government of Punjab is also directed to consider the construction of Parking Plazas in the outskirts of Murree and vehicles be permitted to enter the town with some restrictions and limitations, preferably by charging appropriate tourism fee through proper receipts to be collected by Municipal Committee and the revenue so generated be spent in the same area. For facilitating the tourists to reach the town of Murree from the Parking Plaza, neat and clean public transport be arranged. The motorists be restrained from parking their vehicles on both sides of the roads. The parking of vehicles be allowed only on one side of the road that too after paying parking fee, which appears to be reasonable to the concerned authority.

(vi) To manage the traffic inflow in the Murree, a Joint Coordination Committee comprising upon representatives of Galiyat Development Authority, Islamabad Capital Territory and Administration of Murree be established empowering them to take decisions for the closure of roads in snow season, if the circumstances so warrant. Murree Administration is directed to obtain FM radio frequency for proper guidance of tourists in respect of available parking spaces, hotel bookings and on ground load of visitors etc. The steps in this regard be taken in consultation with business community of Murree so as to save them from financial strangulation.

(vii) The Government of Punjab is further directed to add topics pertaining to traffic discipline, cleanliness and environment in the educational curriculum at least upto intermediate level so as to inject discipline and generate importance of ecofriendly environment amongst the coming generation.

(viii) The Punjab Environmental Protection Agency is also directed to give a practical effect to the requirement of Environmental Impact Assessment and examination in every project. Likewise, the Agency is further directed to control emissions of toxic gasses from vehicles and industrial units throughout the province of Punjab.

(ix) Murree Administration is directed to impose complete ban upon the use of plastic bags in the city and to clean all the water channels leading to Rawalpindi-Islamabad. For improving the sewerage system and for proper waste disposal, immediate steps be taken. While doing so, companies and manufacturers be persuaded to contribute in the environment in accordance with the concept of Corporate Social Responsibilities. Likewise, water treatment plants be immediately installed at the water channels leading to Simly Dam and Rawal Dam. At the same time, the Capital Development Authority be persuaded rigorously to install water treatment plants at the water channels, stemming out from its territory, leading to the afore-mentioned water reservoirs.

(x) Punjab Wildlife Department and Forest Department be properly equipped with sufficient manpower for the preservation of forests and conservation of wildlife. The laws to deal with delinquencies of forest theft and poachers be re-visited by providing strict punishments to the violators. Immediate steps be taken for the removal of encroachments and illegal occupation of forest lands. Possibility of providing LPG to the residents of Murree on subsidized rates as alternate source of energy be looked into. The subordinate Courts in the province of Punjab are directed to put the cases registered on the complaints of afore-mentioned two Departments at fast track and to decide them expeditiously.

(xi) NHA is also directed to protect every single inch of its land and to proceed against the encroachers in accordance with law for the restoration of its possession.

(xii) A tree plantation campaign be launched in the province during upcoming season and plantation be made which is suitable for the conservation of the birds. The Government of Punjab is directed to ponder upon the possibility of introducing tenure posts in Wildlife and Forest Departments for proper implementation of policies by making respective officers responsible in this regard. The residents of houses constructed on land not less than 10-marlas be persuaded to plant at least one tree in their houses, preferably the one suitable for the nesting.

(xiii) The D.G. Anti-Corruption Punjab is also directed to constitute a team for examining the construction affairs of Murree and Kotli Sattian and if any criminal misdeed is found divulging therefrom, an appropriate action be taken. Likewise, D.G. FIA is also directed to look into the affairs of NHA which resulted in unchecked encroachments upon the State land and to proceed through the registration of FIRs, if legally warranted.

(xiv) The notification No. SOFT (EXT)XII-2/2009 dated 15.09.2009 whereby Murree and Kotli Sattian was declared as National Park Area be given practical effect by taking immediate steps.

(xv) The construction of a bypass road leading to Galiyat be considered for decreasing traffic stress on Kuldana crossing.

(xvi) The data of all the hotels, guest houses, apartments and residential buildings used for commercial purposes be collected and they be regularized through centralized software/link to monitor their working/business through proper legislation. At the same time, the provisions of Punjab Hotels and Restaurants Act, 1976 be properly implemented.

(xvii) The Government of Punjab is still at liberty to look into the causes which led to the tragic incident of 7th January, 2022 and if delinquency of any official surfaces on record, to proceed against him.

(xviii) The Federal Government is also directed to draw an impeccable system of weather forecast through which the concerned departments be timely intimated. The failure to impart timely weather forecast to appropriate departments be probed and actions be taken against officials of Metrological Department and PDMA/NDMA by appropriate governments.

(xix) The Tourism Department, Government of Punjab is also directed to develop properly more tourist resorts at various places but while taking precautions to preserve the ecosystem.

1. Office is directed to transmit the copy of this judgment to the relevant departments for its proper implementation. The concerned departments shall submit reports with regard to the steps taken by them towards the implementation of this judgment within a period of three months from the date of receipt of its certified copy.

(Y.A.) Petition disposed of

PLJ 2024 Lahore 476 [Multan Bench, Multan]

Present: Sardar Muhammad Sarfraz Dogar, J.

Mst. RUBINA KHATOON--Petitioner

versus

ASJ/JOP, etc.--Respondents

W.P. No. 5109 of 2020, heard on 20.11.2023.

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

----Ss. 22-A & 22-B--Constitution of Pakistan, 1973, Art. 199--Ex-Officio Justice of Peace--Quasi-judicial in nature--These proceeding were not executive, administrative or ministerial but were quasi-judicial in nature--Petitioner approached Ex-Officio Justice of Peace by filing petition under section 22-A and 22-B, Cr.P.C for issuance of direction to concerned SHO to lodge FIR against private respondents they had administered poison to her daughter--After hearing respective parties, issued direction to SHO to record statement of petitioner--Order was assailed before High Court by one of proposed accused persons in W.P. Dismissed as having been withdrawn--Petitioner again approached Respondent No.1 for implementation of order he disposed of said application vide impugned order declining prayer of petitioner in respect of implementation of order--Ex-Officio Justice of Peace in Pakistan are merely administrative and ministerial in nature and character--Respondent No.1 played his final shot in matter by passing order and now ball was not in his court as he became “functus officio” in that case after finally deciding petition under section 22-A of Cr.P.C--The Respondent No.1 could not review his earlier order unless relevant statute or rules permit such review--The practice adopted by Respondent No.1 was alien to existing law which amounts to suo-moto review and revision of his earlier order, which was not permissible in eye of law--Once an authority exercising quasi-judicial powers, takes a final decision, it cannot review its decision--The Respondent No.1 did not hesitate to give findings touching exclusive merits of case in impugned order, passing of which resulted into spread of disappointment and disbelieve on judicial system, which was neither appreciable nor tolerated at any cost--Petition accepted.

[Pp. 478, 480, 482, 483, 484] A, B, C, F, G, H & K

2023 SCMR 1919 ref.

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

----Ss. 22-A & 22-B--Ex-Officio Justice of Peace--Nature of proceedings--Justice of Peace was not a Court and his functions were executive, administrative or ministerial. [P. 480] D

PLD 2014 SC 753 ref.

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

----Ss. 22-A & 22-B--Ex-Officio Justice of Peace--Nature of proceedings--Functions of an Ex-Officio Justice of Peace, as described in clauses (i), (ii) and (iii) of subsection (6) of Section 22-A, Cr.P.C are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. [P. 481] E

PLD 2005 Lah.470; PLD 2016 SC 581

Words and Pharasis--

----Functus officio--Meanings--The term “functus officio” literally denotes ‘of no further official authority or legal effect’ or ‘having performed his office’, and is used in context of an officer who is no longer in office or has fulfilled its purpose. [P. 483] I

Ramanatha Aiyar’s Advance Law Lexicon, 3rd addition, Vol. 2 Pages 1946-47 ref.

Words and Pharasis--

----Functus officio--Meanings--“Having fulfilled function, discharged office, or accomplished purpose, and therefore, of no further force or authority”. [P. 483] J

Black’s Law Dictionary, Sixth Edition Page 673 ref.

Ch. Muhammad Sajid, Advocate Petitioner.

Syed M. Hanfia Abbas, Advocate Respondents.

Mr. Iftikhar Ibrahim Qureshi, Assistant Advocate General.

Date of hearing: 20.11.2023.

Judgment

This petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973[1] is voiced against the order dated 19.03.2020,[2] whereby the learned Ex-Officio Justice of Peace, Alipur,[3] disposed of the petition filed by the petitioner for implementation of his earlier order dated 30.01.2020 for recording of statement of petitioner.

1. The chronological order of event of this case is that the petitioner approached the Ex-Officio Justice of Peace/Sessions Judge, 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 on the allegations that they had administered poison to her daughter Mst. Shama Arooj. Whereupon, after receipt of police report, which verified the occurrence and report of Punjab Forensic Science Agency, Lahore[4] affirmative to allegations, Respondent No. 1 after hearing the respective parties, issued direction to Station House Officer to record the statement of the petitioner and proceed further strictly in accordance with law. However, the said order was assailed before this Court by one of the proposed accused persons namely Luqman Khan in W.P No. 1587/2020, yet same was dismissed as having been withdrawn vide order dated 12.03.2020. Subsequently, when the petitioner again approached the learned Respondent No. 1 for the implementation of order dated 30.01.2020, he disposed of the said application vide impugned order declining the prayer of petitioner in respect of implementation of order.

3. Learned counsel for the petitioner inter-alia argued that the impugned order passed by Respondent No. 1 is illegal, unlawful and contrary to law and facts; that the proposed accused persons out of grudge on refusal to their proposal for the hand of Mst. Shama Arooj, have committed the occurrence of murdering of Mst. Shama Arooj by administering her poison; that this fact has also been admitted by the Police and verified by the report of PFSA and that once the learned Respondent No. 1 had passed the direction for registration of case against the proposed accused, then thereafter, the learned Respondent No. 1 had no legal backing to himself withdraw the said order and pass an order ultra-vires and against the spirit of his earlier order. Finally prayed for acceptance of instance petition.

4. While, on the other hand, contradicting the contentions of learned counsel for the petitioner, learned Assistant Advocate General duly assisted by learned counsel for the proposed accused/respondents vehemently resisted this petition on the ground that the allegations levelled by the petitioner have been negated by the report of PFSA, hence, there remained no substance in the petition; that at the time of passing of earlier order by the learned Respondent No. 1, report of PFSA was not available, therefore, the order was passed whereas at present, the report of PFSA has been received which speaks in conflict with the allegations levelled by the petitioner and that order of learned Respondent No. 1 is based on true perspective of law and does not warrant interference by this Court.

5. Heard and perused the record.

1. From the matrix of the instant lis, following important legal question requires answer:-

“Whether an Ex.Officio Justice of Peace can pass a subsequent superseding order in conflict and in derogation with his earlier order passed by him in the same case?”

Before commenting on the above said question, it would be appropriate to have a bird’s eye view upon the legal status and nature of functions of an Ex.Officio Justice of Peace. In this respect, exhaustive discussion has been made by this Court as well as by the august Supreme Court of Pakistan. However, summarily, it is being discussed here in this judgment as follows:-

6.A. The question arises firstly whether Ex-Officio Justice of Peace while exercising his powers under Section 22(6) of the Code of Criminal Procedure, 1898 acts as a Court or not? Firstly, this question was taken up by a Full Bench of this Court (comprising three Members Bench) in the case reported as “Khizar Hayat and others v. Inspector-General of Police (Punjab), Lahore and others”[5] and it was held as under:-

“That surely is not the case in Pakistan where no statute confers any judicial power upon a Justice of the Peace or an Ex-Officio Justice of the Peace. We can, therefore, safely hold that functions to be performed by a Justice of the Peace or an Ex-Officio Justice of the Peace in Pakistan are merely administrative and ministerial in nature and character. We feel fortified in so holding by the provisions of Section 6, Cr.P.C. which categorizes the classes of Criminal Courts and Magistrates in Pakistan and a Justice of the Peace or an Ex-Officio Justice of the Peace is not included in any such class of Courts or Magistrates. Apart from that Sections 28 and 29, Cr.P.C. specify as to which Courts are to try which offences and in those Sections too a Justice of the Peace or an Ex-Officio Justice of the Peace does not figure at all.”

Later on, this question was also brought before the Hon’ble Supreme Court of Pakistan and a Full Bench (comprising three Members Bench) of the Hon’ble Supreme Court of Pakistan in the case reported as “Muhammad Ali v. Additional I.G., Faisalabad and others”[6] held that Justice of Peace was not a Court and his functions were executive, administrative or ministerial.

6-B. Subsequently, in another case, a larger Bench comprising five Judges of the Supreme Court of Pakistan in a case reported as “Younas Abbas and others v. Additional Sessions Judge, Chakwal and others”[7] did not agree with the ratio of the Khizar Hayat and Muhammad Ali’s cases (supra) to the extent of the nature of the functions of the Ex-Officio Justice of Peace and held that these are not executive, administrative or ministerial but are quasi-judicial in nature. The relevant portion of the judgment is as under:

“The functions, the Ex-Officio Justice of Peace performs, are not executive, administrative or ministerial inasmuch as he does not carry out, manage or deal with things mechanically. His functions as described in clauses (i), (ii) and (iii) of subsection (6) of Section 22-A, Cr.P.C., are quasi-judicial as he entertains applications, examined the record, hears the parties, passes orders and issues directions with due application of mind. Every lis before him demands discretion and judgment. Functions so performed cannot be termed as executive, administrative or ministerial on any account. We thus don’t agree with the ratio of the judgments rendered in the cases of KhizarHayat and others v. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lah. 470) and Muhammad Ali v. Additional I.G. (PLD 2015 SC 753) inasmuch as it holds that the functions performed by the Ex-officio Justice of Peace are executive, administrative or ministerial.”

(Emphasis added)

1. It has been settled by now that functions of an Ex.officio Justice of Peace, as described in clauses (i), (ii) and (iii) of subsection (6) of Section 22-A, Cr.P.C., are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind.

2. In the case in hand, as has been discussed in latter paragraph of this judgment, the petitioner Mst.Rubina Khatoon, having refusal of Police in respect of registration of case, in her credit, knocked the door of learned Respondent No. 1, by filing petition under Section 22-A of Cr.P.C. While, entertaining the said petition, learned Respondent No. 1, requisitioned the report/comments from the District Complaint Officer, Muzaffargarh and after receipt of said report and report of PFSA, passed the order dated 30.01.2020 issuing direction to SHO to record the statement of petitioner. Relevant paragraphs of the said order are hereby reproduced for ready reference:-

“5. The Police in his report, verified the occurrence.

1. Keeping in view the nature of allegation, and police report, coupled with Post mortem report of deceased and report of PFSA, the petitioner is directed to appear before the SHO concerned who is directed to record the statement of the petitioner and proceed further strictly in accordance with law. With these directions, the petition in hand is disposed. File be consigned to the record room.”

(Emphasis added)

At the cast of repetition, when the petitioner appeared before the learned Respondent No. 1 for the implementation of above order, he refrained from doing so rather passed the impugned order. For better evaluation of the case while putting both the orders in juxtaposition, it is in the fitness of things, to reproduce the material portions/ paragraphs of impugned order dated 19.03.2020, which is hereby reproduced hereunder:

“4. The police report was called from the SHO who reported that after the direction for registration of case issued by this Court, an application was sent to the PFSA for procuring the cause of death, wherein it has been reported that the medicine mentioned in PFSA report are of therapeutic usage and for treatment purpose and not causing death of person in that scenario. The alleged deceased also remain admit in the Nishtar Hospital Multan. It is also reported that the petitioner and respondent are real sister and brother and there is dispute of inheritance between them.

1. In view of above situation, I feel that no useful purpose would be served by issuing any direction to the police functionaries especially when it has been opined by the Medical Officer that the medicine mentioned in PFSA report are of therapeutic usage and for treatment purpose not causing death of person in that scenario. If the petitioner is not satisfied with the report of local police, he may avail alternate remedy if so advised and desired resultantly, this petition stands disposed of. File be consigned to the record room after due completion.”

(Emphasis added)

1. It is crystal clear from the above reproduced material portion of order dated 30.01.2020 and impugned order dated 19.03.2020 that the learned Respondent No. 1 played his final shot in the matter by passing order dated 30.01.2020 and now the ball was not in his Court as he became “functus officio” in this case after finally deciding the petition under Section 22-A of Cr.P.C. of the petitioner. The learned Respondent No. 1 could not review his earlier order unless the relevant statute or rules permit such review. At present, there exists no provision in the, Cr.P.C., which enables and empowers an Ex.Officio Justice of Peace to review or revise its own order once he has passed the same in a case and has attained finality, particularly when in respect of that order of Ex.officio Justice of Peace, no adverse finding or order of this Court is in field. Yet, surprisingly, when, after withdrawal of petition of one of the proposed accused persons from this Court on 12.03.2020, the petitioner Mst. Rubina Khatoon again approached the learned Respondent No. 1 for getting the order dated 30.01.2020 implemented, the learned Respondent No. 1 disposed of the petition without any direction vide impugned order dated 19.03.2020 in above reproduced terms. It is noted with grave concern that the learned Respondent No. 1 was not obliged to pedestal the process qua again requisitioning of Police report on the factual aspect of the case, reappraise the matter and while relying upon the subsequently requisitioned report, to pass impugned order dated 19.03.2020 in conflict with his earlier order dated 30.01.2020. The practice adopted by the learned Respondent No. 1 is alien to existing law which amounts to suo-moto review and revision of his earlier order, which was not permissible in the eye of law.

2. It is true that once an Authority exercising quasi-judicial powers, takes a final decision, it cannot review its decision. But, the question is as to at what stage, an Authority becomes “functus officio” with respect to an order passed by him. P. Ramanatha Aiyar’s Advance Law Lexicon[8] gives the following illustrative definition of the term ‘functus officio’:

“Thus a Judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision.”

The term “functus officio” literally denotes ‘of no further official authority or legal effect’ or ‘having performed his office’, and is used in the context of an officer who is no longer in office or has fulfilled its purpose. This doctrine has an extensive and pervasive application to both the judicial and quasi-judicial authorities and if such doctrine is considered insignificant, it will lead to disorder, therefore, this should be given credence to bring in decisiveness and certitude to legal proceedings. Reliance is placed on recently passed judgment by the Hon’ble Supreme Court of Pakistan in case titled as “Jameel Qadir and another v. Government of Balochistan, Local Government, Rural Development and Agrovilles Department, Quetta through Secretary and others”.[9]

1. Furthermore, Black’s Law Dictionary[10] gives meaning of “functus officio” as follows:

“Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore, of no further force or authority”.

Similarly, Ulpian described the doctrine of “functus officio” as follows:

[Once] a judge has articulated his judgment, he immediately ceases to be the judge … [He] no longer has the capacity to correct the judgment because, for better or for worse, he will have discharged his duty once and for all.[11]

The meaning of “functus officio” is well understood. In subsequent edition, Black’s Law Dictionary[12] defined it as under:

“functus officio … (Of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”

1. From the piths and marrows of the case as has been discussed above, it is emphatically clear that at the time of passing of impugned order, learned Respondent No. 1 had become “functus officio” and that the petitioner did not approach for reappraisal of his earlier order dated 30.01.2020 rather she beseeched for getting it complied with but what to say about getting the same complied with or about its implementation, learned Respondent No. 1 flipped the page over resulting into loss of fruit already in the bucket of petitioner and once again she came at stage one for getting a case FIR registered against the proposed accused persons. This overall scenario is nothing but a situation full of dismay as the petitioner has been made a ping pong ball bouncing here and there in search of justice. The learned Respondent No. 1 did not hesitate to give findings touching the exclusive merits of the case in the impugned order, the passing of which resulted into spread of disappointment and disbelieve on the judicial system, which is neither appreciable nor tolerated at any cost.

2. For the foregoing reasons, instant petition is accepted and impugned order dated 19.03.2020 passed by learned Ex.Officio Justice of Peace, Alipur is hereby set aside and declared to be of no legal effect. The petitioner shall approach the concerned SHO, who is directed to record her statement and proceed strictly in accordance with law.

3. Before parting with the judgment, I feel it necessary to mention here that discussion in this judgment has been constrained only to the extent of exercise of powers of learned Respondent No. 1 and shall not in any way prejudice the proceedings of police, which, of course, shall be carried in accordance with law.

(Y.A.) Petition accepted

[1]. The Constitution.

[2]. Impugned order.

[3]. Learned Respondent No. 1.

[4]. PFSA.

[5]. (PLD 2005 Lah. 470).

[6]. (PLD 2014 SC 753).

[7]. (PLD 2016 SC 581).

[8]. 3rd Edition, Vol.2 Pages 1946-47.

[9]. 2023 SCMR 1919.

[10]. Sixth Edition Page 673.

[11]. De Ville Judicial Review of Administrative Law in South Africa (2005) 77.

[12]. 7th ed., 1999, pg. 682.

PLJ 2024 Lahore 485

Present: Ahmad Nadeem Arshad, J.

M/s. A&A PIPE INDUSTRIES, etc.--Petitioners

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. No. 26907 of 2024, decided on 2.5.2024.

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

----Ss. 20, 24 & 58(3)--Galvanized coils and sheets--Issuance of notice Imposition of definitive Anti-Dumping Duty--Constitution of Commission--Remedial procedure--Right of appeal--Alternate remedy—Maintainability--High Court, can similarly affirm, vary or alter decision of lower Appellate forum Appellate Tribunal--When statute has provided specific remedies of appeal to Petitioner against Final Determination, and when right of another appeal was still available after decision of Appellate Tribunal, then in such a situation, petitioners had no authority to invoke extraordinary jurisdiction of High Court--When an efficacious, alternate and time bound definite remedy was available before a Tribunal specially constituted under law then resort to extra-ordinary Constitutional jurisdiction before High Court did not find favor under law since absence of those conditions were sine qua non for exercising Writ jurisdiction--Instant petition, in presence of an adequate alternate remedy of appeal, is not maintainable--Petition dismissed.

[Pp. 491,492 & 495] A, B, C & D

Ref. 2021 PTD 2126, PLD 2010 SC 1066, 2023 PTD 1571.

Mr. Muhammad Afzal Awan, Advocate for Petitioners.

Ch. Imtiaz Elahi, Deputy Attorney General for Pakistan (On Court’s Call).

Date of hearing: 2.5.2024.

Order

Through this Constitutional Petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioners have called into question the vires, validity and legality of conclusion of sunset review dated 30.08.2022 and notice dated 31.08.2022 whereby the National Tariff Commission (The Commission) while deciding the review decided to continue definitive Anti-Dumping Duties for another period of 05-years w.e.f. February 08, 2022.

1. Facts in brevity are that an application under Section 20 & 24 of the Anti-Dumping Duties Act, 2015 (The Act) was received by the Commission on 29.06.2015 from M/s. International Steel Limited, Karachi, with the allegation that galvanized coils and sheets are being imported to Pakistan at dumped prices from the People Republic of China and said import has caused and is threatening to cause material injury to the domestic industry. After receipt of the said application, notice of initiating of Anti-Dumping Investigation of galvanized coils and sheets was issued on 11.08.2015; that the Commission after conducting the Anti-Dumping Investigation, issued a final determination notice dated 08.02.2017 for imposition of definitive Anti-Dumping Duty on dumped imports of galvanized coils and sheets; that the Commission issued notice dated 25.10.2021 with regard to impending expiry of Anti-Dumping Duties by notifying that the Definitive Anti-Dumping Duties levied on dumped import of galvanized coils and sheets shall be terminated on 08.02.2022; that an application under Section 58(3) of the Act was moved to the Commission on 15.12.2021 from M/S. International Steel Limited, Karachi and M/s. Ayesha Steel Mills, Karachi for sunset review of Anti-Dumping Duties levied on dumped import of galvanized coils and sheets into Pakistan; that the Commission conducted the proceedings of the sunset review and vide order dated 30.08.2022 decided that there is a need to continue imposition of Definitive Anti-Dumping Duties on dumped imports of product under review from China as per specific rates mentioned in the decision for another period of 05 years w.e.f. 08.02.2022; that in this regard a notice dated 31.08.2022 was also issued. Being dissatisfied, petitioners have filed instant Constitutional Petition by challenging the decision of said sunset review and notice.

2. Preliminary arguments are heard. Record perused.

3. The main objection raised by the learned counsel for the petitioners is with regard to the constitution of the Commission who decided the said review. He maintains that as per Section 4 of the National Tariff Commission Act, 2015, it is provided that the Commission shall comprise of five members, appointed by the Federal Government in the prescribed manner but the impugned decision of sun set review is passed by a three Member Commission, hence, the same is not sustainable in the eyes of law. For ease Section 4 of the Act ibid is reproduced as under:

“4. Constitution of the Commission.--(1) The Commission shall comprise five members, appointed by the Federal Government in the prescribed manner. The Federal Government shall appoint one of the members to be Chairman of the Commission.

(2) The Commission shall be body corporate having perpetual succession and a common seal. It shall have the authority and duty to exercise the functions assigned to it by or pursuant to this Act or any other law for the time being in force, shall have the power and authority to acquire, hold and dispose of property, both movable and immovable, in its own name, shall have the power and authority to open a personal ledger account in its own name and may sue and be sued in its own name.

(3) The head office of the Commission shall be at Islamabad and the Commission may establish offices at such places as it may deem necessary.

(4) No act, proceedings or decision of the Commission shall be invalid by reason only of the existence of a vacancy or defect in the Constitution of Commission.

In this regard, it is observed that Sub-Section 04 of the Section 04 of the Act ibid reflects that no act, proceeding or decision of the Commission shall be invalidated by reason of only of the existence of a vacancy or defect in the Constitution of the Commission. In this view of the matter, this objection taken by the learned counsel for the petitioners is not tenable.

1. It is observed that the statute has provided a remedy of appeal under Section 70 of the Anti Dumping Duties Act, 2015. Before further discussion, it is better to see Section 70 of the Act ibid which reads as under:

70. Appellate procedures.--(1) Any interested party may prefer an appeal to the Appellate Tribunal against--

(i) the initiation of an investigation or a preliminary determination, where it is alleged that it does not satisfy the requirements laid down in sections 23 and 37 respectively;

(ii) an affirmative or negative final determination by the Commission under section 39;

(iii) any final determination pursuant to a review;

(iv) an order of the Commission for termination of investigation under Section 41; or

(v) a determination of the Commission under Section 52.

(2) An appeal under clause (i) of sub-section (1) shall be filed within thirty days of the publication of notice of initiation or notice preliminary determination, as the case may be.

(3) The Appellate Tribunal shall handle such an appeal as a priority and shall issue its decision on the appeal within thirty days of the filing of an appeal with the Appellate Tribunal:

Provided that the filing of an appeal under clause (i) of sub-section (1) shall have no effect on the Commission’s conduct of investigation.

(4) All appeals under clauses (ii), (iii), (iv) and (v) of sub-section (1) shall be filed within forty-five days from the date of publication in newspapers of a public notice or as the case may be, date of the decision of the Commission of any affirmative or negative final decision or determination or termination of investigation by the Commission, and shall be in such form and contain such information as may be prescribed.

(5) Such an appeal shall be disposed of and the decision of the Appellate Tribunal pronounced, as expeditiously as possible as but not later than forty-five days from the date of receipt of an appeal compliant with the requirements contained in this Act.

(6) The Appellate Tribunal shall hear the appeal from day-to-day.

(7) In examining an appeal under sub-section (1), the Appellate Tribunal may make such further inquiry as it may consider necessary, and after giving the Commission and an appellant an opportunity of being heard, pass such order as it thinks fit, confirming, altering or annulling a determination of the Commission appealed against:

Provided that in case the Appellate Tribunal decision requires action by the Commission, it shall remand the case to the Commission.

(8) After examining the appeal, the Appellate tribunal shall assess the facts related to the impugned determination of the Commission. The Appellate Tribunal shall determine whether the establishment of the facts of the Commission was proper and whether the commission’s evaluation of those facts was unbiased and objective. The Appellate tribunal shall base this determination on the official record maintained by the Commission or any other documents relied upon by the Commission in reaching the determination being appealed.

(9) Where the Appellate Tribunal determines that the Commission’s establishment of the facts was proper and its evaluation was unbiased and objective, it shall confirm the appealed determination of the Commission provided that the Appellate Tribunal is satisfied that in reaching its determination, the Commission complied with the relevant provisions of this Act.

(10) The decision of the Appellate Tribunal shall be in writing, detailing the issues raised in the appeal and the arguments adopted by the appellant and the Commission. The Appellate tribunal shall also provide reasons for reaching its decision with reference to the provisions of this Act and the facts of the case.

(11) The Appellate Tribunal shall provide copies of its decision to all the appellants and the respondents including the Commission no later than five days from the date of rendering its decision.

(12) The Appellate Tribunal may, if it deems necessary, require an appellant to provide security in such form as may be prescribed, at the time of filing of an appeal.

(13) The decision of the Appellate Tribunal shall be appealable in the High Court. The High Court shall render a decision within ninety days of receiving an appeal from the decision of the Appellate Tribunal:

Provided that the High Court shall not make an interim order against the conduct of investigation by the Commission unless the Commission has been given notice of the application and has had an opportunity of being heard and the High Court, for reasons to be recorded in writing, is satisfied that the interim order would not have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to the public interest [or State property] or of impeding the assessment or collection of public revenues:

Provided further that The Appellate Tribunal may, if it thinks fit, accept an application from any party to an appeal in which the Appellate Tribunal has rendered its decision, for a clarification of any of the issues raised by the Appellate Tribunal in its decision:

Provided also that such application shall specify the precise issue in respect of which a clarification is sought and give reasons as to why a clarification is necessary:

(14) The Appellate Tribunal shall only accept such application if it is satisfied that a material issue discussed in its decision requires further clarification or elaboration. The party likely to be adversely affected by such clarification shall also be given a notice by the Appellate Tribunal:

Provided that no application under this sub-section shall be accepted by the Appellate Tribunal later than thirty days of its decision.

(15) The Appellate Tribunal shall perform its functions under this Act in accordance with such procedures as may be prescribed.

(16) A determination of the Commission shall be given full force and effect during the pendency of any appeal of such determination.

(17) A person duly authorized by any interested party is entitled to appear, plead and act on behalf of such party before the Appellate Tribunal.”

1. Above quoted Section stipulates the jurisdiction of the Appellate Tribunal which mandates to exercise Appellate jurisdiction under the Act and hear appeals of the interested parties against any of the initial or definite findings/outcomes initiated/undertaken or concluded under the scheme of the Act. Under sub-section (1), an interested party may prefer appeal against the initiation of an investigation or a preliminary determination on the grounds of non-fulfillment of requirements provided in Sections 23 and 37 of the Act while sub-section (ii) of Section 70 provides that any interested party may prefer an appeal to the Appellate Tribunal against an affirmative or negative final determination made under Section 39 by the Commission. Subsection (iii) on the other hand, postulates the right of appeal to the Tribunal against final determination pursuant to a review and sub-section (iv) recognize the right of appeal against Commission’s order for termination of investigation under Section 41 of the Act while sub-section (v) provides the right of appeal against a determination of the Commission under Section 52 of the Act.

2. Section 70 of the Act is an exhaustive provision, which does not only provide the substantive right of appeal and time limitation for preferring and decision of the same but it also lays down the procedural requirements for carrying out the whole appellate procedure. It stipulates a comprehensive scheme of exercising Appellate Jurisdiction by the Appellate Tribunal constituted under Section 64 of the Act against appeal preferred by an interested party either against initiation of investigation, preliminary determination or final determination and also provides limitation to as well as it also provides the procedure for hearing the same including chalking out the requirements for a decision of the Tribunal. Moreover, sub-section (13) lays down the substantive right of appeal against the decision of the Appellate Tribunal to the High Court. This whole scheme of remedial procedure is clearly suggestive of the fact that a Determination even though a Final Determination under Section 39 is not absolute and is open for scrutiny before the Appellate Tribunal if any interested party, dissatisfied with the same, prefers an appeal before it. It is further evident that the decision of the Appellate Tribunal pronounced under sub-section (9) of Section 70 is further open to judicial examination by the High Court under sub-section (13) if an interested party still feels dissatisfied prefers so. These two-fold remedies are itself provided by the Act to an interested party whose rights have been determined and adjudged by the Commission and the Appellate Tribunal contrary to his interests and contradictory to the law in his understanding. The right of appeal is always provided by the law to ensure safe administration of justice and to enable an independent higher forum to dissect the decisions of the lower forum on the scale of true spirit and interpretation of law involved in the matter and to ascertain that no miscarriage of justice was caused by the lower forum. The purpose of providing an Appellate authority is always to further the cause of justice and to rule out the probability of wrong decision rendered by the first judicial forum or the First Appellate Authority either due to mistake of fact or wrong application of law. Whenever an appeal is preferred by a discontented party before the Appellate Forum/ Appellate Tribunal in a case, the said Appellate body is competent to set aside, affirm or modify the decision under appeal and if right of further appeal is available to a party against such decision, the second Appellate body, in this case the High Court, can similarly affirm, vary or alter the decision of the lower Appellate forum/the Appellate Tribunal. For reference reliance is placed on the case titled Shaheen Merchant versus Federation of Pakistan/National Tarif Commission and others (2021 PTD 2126).

3. The accumulative effect of this discussion is that when the statute has provided specific remedies of appeal to the Petitioner against Final Determination, and when right of another appeal is still available after the decision of the Appellate Tribunal, then in such a situation, the petitioners have no authority to invoke the extraordinary jurisdiction of this Court.

4. Now this comprehensive remedial algorithm of right of appeal against action and determination of the Commission under the Act which affects the rights and interests of any of the parties relating to the subject-matter leaves no doubt that the law does not only recognize the rights of interested parties but also provides a specially constituted Tribunal to exercise appellate jurisdiction under the Act and to give its reasoned decisions in accordance with sub-section (10) of Section 70.

5. Indubitably, when an efficacious, alternate and time bound definite remedy is available before a Tribunal specially constituted under the law then resort to extra-ordinary Constitutional jurisdiction before this Court does not find favor under the law since the absence of these conditions are sine qua non for exercising Writ jurisdiction. The Honorable Supreme Court in “Rana Aftab Ahmad Khan v. Muhammad Ajmal” (PLD 2010 SC 1066) laid down the very principle while observing as follows:

“When the petitioner has no explanation to offer, as to why the “other remedy”, which is a definite one in nature; is time bound and is, specifically designed and prescribed by the legislature keeping into consideration time constraints in the election process, but has not been availed for any good reason, by the petitioner. Whether still the High Court should have imperatively interfered in the matter and the refusal thereof, should be construed as an erroneous or patently illegal order or an order suffering from any jurisdictional defect calling for the intervention by this Court in its instant jurisdiction? The answer is in negative”.

The Honorable Court further concluded:

“12. Resultantly, in the circumstances of the case, the High Court had rightly refused to interfere in its constitutional jurisdiction, when an appropriate, efficacious and adequate alternate remedy available to the petitioner has not been availed by him without any justification ...”

1. This proposition was further discussed and elaborated by the Hon’ble Supreme Court of Pakistan in a recent judgment titled “Mian Azam Waheed and 2 others v. The Collector of Customs through Additional Collector of Customs, Karachi” (2023 PTD 1571) in the following manner:

“The writ jurisdiction of the High Court cannot be exploited as the sole solution or remedy for ventilating all miseries, distresses and plights regardless of having equally efficacious, alternate and adequate remedy provided under the law which cannot be bypassed to attract the writ jurisdiction. The doctrine of exhaustion of remedies stops a litigant from pursuing a remedy in a new Court or jurisdiction until the remedy already provided under the law is exhausted. The profound rationale accentuated in this doctrine is that the litigant should not be encouraged to circumvent or bypass the provisions assimilated in the relevant statute paving the way for availing remedies with precise procedure to challenge the impugned action, so as in this case, the Customs Act, which is in its own wisdom a complete set of law with regard to the genus of remedies, but the petitioners, rather than filing a Revision petition against the impugned Valuation Ruling under section 25-D of the Customs Act, directly approached the learned Islamabad High Court where the writ petitions were ultimately dismissed due to lack of jurisdiction and the net result emerging from the entire litigation is that the impugned valuation ruling is intact. The extraordinary jurisdiction of the High Court under Article 199 of the Constitution cannot be reduced to an ordinary jurisdiction of the High Court. In the case of Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813), this Court held that the question of adequate or alternate remedy has been discussed time and again by this Court and it is well settled by now that the words “adequate remedy” connote an efficacious, convenient, beneficial, effective and speedy remedy. It was further held that the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. While referring to the various dictums laid down in the case of State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd., (PLD 1983 SC 280), Gul Ahmed Textile Mills Ltd v. Collector of Customs (Appraisement, (1990 MLD 126), Pak. Metal Industries v. Assistant Collector (1990 CLC 1022), Allah Wasaya v. Tehsildar/AC 1st Grade, (1981 CLC 1202), Syed Riaz Hussain Zaidi v. Muhammad Iqbal, (PLD 1981 Lah. 215), Abdul Hafeez v. Chairman, Municipal Corporation (PLD 1967 Lah. 1251), this Court also provided enlightened and levelheaded guiding principles to be considered by the High Courts to determine the adequacy of the alternate remedy in the following terms:-

(i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an “other adequate remedy” within the meaning of Article 199.

(ii) If the relief available through the alternative remedy, in its nature and extent, is what is necessary to give the requisite relief, the ‘adequacy’ of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense or convenience of obtaining it under Article 199. But in making this comparison those factors must not be taken into account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy.

(iii) In practice the following steps may be taken:-

(a) Formulate the grievance in the given case, as a generalized category;

(b) Formulate the relief that is necessary to redress that category of grievance;

(c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent;

(d) If such a remedy is prescribed the law contemplates that resort must be had to that remedy;

(e) If it appears that the machinery established for the purposes of that remedy is not functioning properly, the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that that machinery begins to function as it should. It would not be correct to take over the function of that machinery. If the function of another organ is taken over, that other organ will atrophy, and the organ that takes over, will break down under the strain;

(f) If there is no other remedy that can redress that category of grievance in that way and to the required extent, or if there is such a remedy but conditions are attached to it which for a particular category of cases would neutralise or defeat it so as to deprive it of its substance, the Court should give the requisite relief under Article 199;

(g) If there is such other remedy, but there is something so special in the circumstances of a given case that the other remedy which generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Court should give the required relief under Article 199.

If the procedure for obtaining the relief by some other proceedings is too cumbersome or the

relief cannot be obtained without delay and expense, or the delay would make the grant of the relief meaningless this Court would not hesitate to issue a writ if the party applying for it is found entitled to it, simply because the party could have chosen another course to obtain the relief which is due.” (Ibrahim T.M. Ltd. v. Federation of Pakistan PLD 1989 Lah. 47, Allah Ditta v. Muhammad Saeed Vatoo PLD 1961 Lah. 479, Shamas Din and Bros. v. Income-tax and Sales Tax Officer PLD 1959 Lah. 955, Khaliq Najam Co. v. Sales-Tax Officer PLD 1959 Lahore 915).”

1. In view of the above, it can be easily gathered that the instant petition, in presence of an adequate alternate remedy of appeal, is not maintainable.

2. As a corollary of above discussion, this petition is dismissed-in-limine.

(J.K.) Petition dismissed

PLJ 2024 Lahore 495 (DB)

Present: Masud Abid Naqvi and Ch. Muhammad Iqbal, JJ.

FAIZ AHMAD etc.--Petitioners

versus

CHAIRMAN FEDERAL LAND COMMISSION, ISLAMABAD etc.--Respondents

W.P. No. 254943 of 2018, heard on 7.12.2023.

Constitution of Pakistan, 1973--

----Art. 199--Martial Law Regulation, No. 115, Paragraph No. 118--Allotment of surrendered land--Report of AC was not challenged--Report was attained finality--Prohibited zone--Bar on allotment of state land--Challenge to--The land in question was situated within “prohibited zone” as such authorities were debarred to make any allotment of said land--Thus bar on allotment of state land falling in prohibited zone had attained finality and all state functionaries were under bounded obligation to comply with dictates of Hon’ble Superior Court of law--The respondent-authorities had not considered command of aforementioned notification as well as law on subject while deciding matter in issue as such orders of allotment of land falling within prohibited zone were passed in clear violation of notification as well as law on subject--There was no hesitation to hold that allotments of surrendered state land falling within prohibited zone were patently illegal and liable to be set aside--An extraordinary obligation is placed upon Courts to keep abreast itself with law and facts of case and when certain material facts unearthed before it then matter should be decided as per law even without being influenced by respective pleadings of parties--The orders regarding allotment of land in question in favour of any party either petitioners or other side, were hereby set aside in toto by declaring that land in question, being situated within limits of prohibited zone could be allotted permanently to any person or tenant. [Pp. 500 & 501] B, C, D, E, & F

Words and Phrases Outer Limits--

----The term “outer limits” means piece of land which starts from end point/boundary of territorial limits a municipal committee/ corporation. [P. 500] A

2021 MLD 313, PLD 1992 SC 113, PLD 2005 SC 337 and 2007 SCMR 907 ref.

Barrister Naseem Sabir Ch. Advocate Petitioners.

Mr. Nasir Ahmad Awan, Advocate for Petitioner (in W.P. No. 247224/2018).

Rana Sher Zaman Akram, Addl. Advocate General along with Mahboob Ali Shaukat, Naib Tehsildar, Sardar Muhammad Iqbal Athar Khan Khetran, Advocate for Respondents No. 5 & 6.

Mian Muhammad Hussain Chotya & Mr. Noor Ahmad Malik, Advocates for Respondent No. 7.

Rana Zulfiqar Ali, Federal Land Commissioner.

Dates of hearing: 22.11.2023 & 7.12.2023.

Judgment

Ch. Muhammad Iqbal, J.--Through this single judgment, we intend to decide the titled Writ Petition along with Writ Petition Nos. 13725/2021, 247224/18, 13769/2021, 13792/2021, 13782/2021, 13775/2021 as common questions of law and facts are involved in these writ petitions.

1. Through these petitions, the petitioners have challenged the vires of order dated 15.10.2018 passed by the Member, Federal Land Commission, Islamabad whereby resumed state land measuring 230-Kanals 08-Marlas was allotted to Muhammad Sharif, Manzoor Ahmad and Bashir Ahmad [Respondents No. 5 to 7] with equal share under Paragraph 18(3) of MLR 115/1972.

2. Brief facts of these writ petitions are that land measuring 230-Kanals 08-Marlas situated in village Amin Kot, Tehsil Depalpur, District Okara was resumed from the declarant, Abdul Samad Khan. The said land was allotted to Muhammad Ali alias Mumma son of Jamal, Muhammad Ashiq son of Ameera and Muhammad Sharif son of Mehmood by Deputy Land Commissioner vide order dated 05.12.1998. The said order was challenged in appeals by different persons before the Land Commissioner who vide order dated 14.07.1999 accepted the said appeals and passed direction to the appellants in the said case to submit their applications on the prescribed forms before the Deputy Land Commissioner, Okara for allotment of the surrendered land and further directed to decide the same in accordance with law as per provisions of Paragraph 18(3) of MLR-115/1972.

Muhammad Ali alias Mumma etc., challenged the said order through revision petitions before the Chief Land Commissioner, Punjab, whovide order dated 12.09.2000 accepted the petitions and remanded the matter to the Deputy Land Commissioner, Okara to decide the matter afresh with the direction that allotment should be made after due publicity and inviting applications from the eligible tenants. The said order was challenged through revision petitions before the Federal Land Commission who vide order dated 12.05.2001 maintained the order of Chief Land Commissioner.

Whereafter as many as 11 persons applied for allotment of the aforementioned surrendered/resumed land. The Deputy Land Commissioner allotted said land to Muhammad Yousaf, Muhammad Iqbal and Muhammad Usman vide order dated 27.03.2002. Against the said order, Muhammad Ali alias Mumma, Muhammad Ashiq, Muhammad Sharif, Muhammad Bashir, Bashir Ahmad, Muhammad Hussain and Faiz Ahmed filed separate appeals before the Land Commissioner, Okara who set aside the allotment order dated 27.03.2002 passed by the Deputy Land Commissioner, Okara vide order dated 07.12.2005 holding that Muhammad Yousaf etc., were not tenants of any landowner during crucial crops i.e. Kharif 1971 and Rabi 1972, rather their names have been entered in Girdawari register by way of forgery and the names of tenants were incorporated on the basis of so called girdawari. He held that the matter needs to be probed thoroughly and thus he by setting aside the order dated 27.03.2002 of the Deputy Land Commissioner, Okara remanded back the matter to him with the direction to make thorough inquiry and then pass order as per law. The said order was assailed through five revision petitions by Manzoor Ahmed and Bashir Ahmad etc. before the Chief Land Commissioner, Punjab who dismissed the said revision petitions vide order dated 15.02.2010. Against the said order, eight revision petitions were filed before the Chairman, Federal Land Commission, Islamabad who vide order dated 09.09.2011 set aside the aforementioned orders and allotted the land to Bashir Ahmad and Manzoor Ahmed. The said order was assailed by Muhammad Yousaf etc., through Writ Petition No. 21947 of 2011 and this Court vide order dated 30.05.2016 remanded the matter to the Chairman, Federal Land Commission, Islamabad to decide the same afresh as per law. In compliance of said direction, the Member, Federal Land Commission, Islamabad vide impugned order dated 15.10.2018 allotted land measuring 230-Kanals 08-Marlas in equal share to Muhammad Sharif son of Mahmood, Manzoor Ahmad son of Barkat Ali and Bashir Ahmed son of Barkat Ali being senior tenants of the adjoining mouza. Hence, these writ petitions.

1. We have heard the learned counsels for the parties and have gone through the record.

2. Admittedly, as per report submitted by the Assistant Commissioner/Collector Sub-Division Depalpur, the resumed land measuring 230-Kanals 08-Marlas comprising Khewat No. 14, Khatooni No. 30, Khasra Nos. 1/23, 24, 25 3/25 4/1, 2,3,4,5,20 5/2, 3,4,5,9/1, 19,6/12 7/25, 11/17, 12/1,21 13/9, 12 14/4, 15/11, 17/19, 18/4, 19/4, 12 20/9, 12 of Mouza Amin Kot Tehsil Depalpur, District Okara is situated within the prohibited zone as it falls within seven (7) KM, from Municipal Committee, Haveli-Lakha, Tehsil Depalpur. For ready reference, the aforesaid report is reproduced as under:

In pursuance of Court’s direction dated 22.11.2023. I have the honour to submit the requisite report, which is as under:-

1. As per stuffing of report of revenue hierarchy/Tehsildar, Depalpur, state land measuring 230-kanals 8-marlas comprising khewat No. 14 khatuni No. 30 khasra Nos 1/23,24,25 3/25 4/1,2,3,4,5.20 5/2,3,4,5,9/1,19, 6/12 7/25, 11/17, 12/1 21 13/9, 12 14/4 15/11, 17/19, 18/4, 19/4 12 20/9,12 is owned by provincial government Baqaya Sarkar falling in Mauza Amin-kot, tehsil Depalpur district Okara.

2. Aforesaid piece of state land falls within prohibited zone, which is seven (7) KM, away from Municipal Committee, Haveli-Lakha, tehsil Depalpur.

3. Submitted please.

Assistant Commissioner/ Collector Sub-Division, Depalpur”

The above said report has not been challenged or got reversed by any party and the said report has attained status of finality, thus, as per notification dated 12th December, 1972 Martial Law Regulation No. 115 the property which is situated within prohibited zone as provided in the Colonies Department’s Circular Memorandum No. 3024-72/3946-CL-III dated 12th December, 1972 cannot be permanently allotted under Paragraph 18(3) of Martial Law Regulation 115. For ready reference, said notification is reproduced as under:

“Letter No. ASR-11-3456-73/2687-LC (II), dated the 5th July, 1973, from the Secretary, Punjab Land Commission, to all Deputy Land Commissioners and Land Commissioners.

SUBJECT: AREA AROUND LARGE TOWNS RESUMED UNDER MARTIAL LAW REGULATION 115.

I am directed to state that certain areas around large towns have been resumed under Martial Law Regulation 115 which are reported to be untenanted. A question has arisen whether such areas should be allotted under paragraph 18(3) of Martial Law Regulation 115. Since these areas are very valuable and are likely to be required for extension of abadis or public purposes etc., it has been decided that all areas resumed under Martial Law Regulation 115 which are untenanted and fall within the prohibited zones as given in the Colonies Department’s Circular Memorandum No. 3024-72/3946-CL-III, dated the 12th December, 1972 and noted below shall not be permanently allotted under Paragraph 18 (3) of Martial Law Regulation 115 but shall be kept in reserve for extension of abadis and other public purposes etc.

1. The following is the limit for prohibited zones:-In the case of-

2. Corporations. = 10 miles from the outer limits of the Corporation.

3. First Class = 5 miles from the outer limits of

Municipal Committees. the Municipal Committee.

1. Second Class = 3 miles from the outer limits of Municipal Committees. the Municipal Committee.

2. Town Committees. = 2 miles from the outer limits of the Town Committee.

3. Railway Stations. = 1 mile from the outer limits of the Railway Station.

In the case of Cantonment Boards the prohibited zone shall tally with the limit prescribed for the local body to which they are adjacent, e.g. the limit of the prohibited zone in the case of Lahore Cantonment Board will be the same as that prescribed for the Lahore Corporation and the limit for the Cantonment Board, Multan, will be the same as fixed for the Municipal Committee, Multan-and so on.”

(emphasis supplied)

The term “outer limits” means the piece of land which starts from the end point/boundary of territorial limits a municipal committee/ corporation etc. In the instant case, the limit of “prohibited zone” as per the notification reproduced above, is regarding the land stretched till 05 miles from the “outer limits” of municipal committee. The main reason for imposition of ban on allotment/grant of proprietary rights of the state land falling in prohibited zone is to cater the present and future needs of the local population as well as for the use of other different public purposes. As per the report reproduce above, the land in question is situated about 07 KM away from Municipal Committee Haveli-Lakha District Okara. In the aforesaid notification, the limit of “05 miles from the outer limits of Municipal Committee” has been prescribed, which distance while measuring in Kilometers comes to 8.05 KMs [as 01 Mile = 1.609 KM] whereas as per the aforesaid report of the Assistant Commissioner, the land in question is situated at the distance of only 07 KM away from the above said Municipal Committee which is within prohibited zone. Thus, the land in question is situated within the “prohibited zone” as such the authorities are debarred to make any allotment of said land. An alike controversy qua the allotment of land situated within prohibited zone has been considered and declined by this Court in its judgment cited as Muhammad Israfeel and others vs. The Province of Punjab and others (2021 MLD 313). The order passed in supra judgment was challenged in Intra Court Appeal (No. 37127-2020) as well as a subsequent ICA No. 85/2021 titled as Mushtaq Ahmad etc. vs The Province of Punjab etc. alongwith other connected ICAs and same were also stood dismissed. Further on 05.10.2021 another Writ Petition [No. 57766/2021] was also dismissed on analogy of the aforementioned judgment [2021 MLD 313] which order of dismissal was assailed before the Apex Court who while dismissing Civil Petition No. 1925-L/2021 on 25.08.2022 upheld the order of this Court. Thus the bar on the allotment of state land falling in prohibited zone has attained finality and all the state functionaries are under bounded obligation to comply with dictates of the Hon’ble Superior Court of law.

But the respondent-authorities have not considered command of the aforementioned notification as well as the law on the subject

while deciding the matter in issue as such the orders of the allotment of land falling within the prohibited zone were passed in clear violation of the aforementioned notification as well as the law on the subject. Thus there is no hesitation to hold that allotments of the surrendered state land falling within the prohibited zone are patently illegal and liable to be set aside.

6. Moreover the Courts of law are custodian of the public properties, assets or interest and while dealing with matters relating to such properties/assets or interests, it is inalienable obligation of the Courts to be very careful, cautious and assure itself to the extent of certainty that no mischief is being played with the state assets. An extraordinary obligation is placed upon the Courts to keep abreast itself with law and facts of the case and when certain material facts unearthed before it then the matter should be decided as per law even without being influenced by respective pleadings of the parties. In this regard, reliance is placed on judgments cited as Al-Shafique Housing Society vs. P.M.A (PLD 1992 SC 113), Provincial Government through Collector, Kohat and another versus Shabbir Hussain (PLD 2005 SC 337) and Abdul Haq Indher vs. Province of Sindh (2007 SCMR 907).

1. For what has been discussed above, the orders passed by the Land Commissioner, Deputy Land Commissioner, Chief Land Commissioner as well as Federal Land Commission, Islamabad regarding allotment of land in question in favour of any party either the petitioners or the other side, are hereby set aside in toto by declaring that land in question, being situated within the limits of prohibited zone cannot be allotted permanently to any person or tenant.

8. Resultantly, all these writ petitions are allowed accordingly. If either party of the case is in possession of the land in question, the District Collector, Okara is directed to retrieve the same and also recover Tawan as per law.

(Y.A.) Petition allowed

PLJ 2024 Lahore 501

Present:Ahmad Nadeem Arshad, J.

SABIR ALI--Petitioner

versus

MUNAWAR and others--Respondents

C.R. No. 2938 of 2022, heard on 24.4.2024.

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

----Ss. 36 & 48--Execution petition--Objections--Dismissed--Suit for possession--Decreed--Limitation--Concurrent findings--Neither any mutation was sanctioned in favour of decree holders nor possession was given to them--Third execution petition was revival of earlier petitions--Challenge to--The executing Court was given impression that decree had been satisfied in its letter and spirit and possession of decreed property was given to decree holders through ‘Warrant Dakhal’--Said order was passed in back of decree holders and without providing them opportunity of hearing--The decree holders had not came to Court for some new or fresh relief rather they approached executing Court to get relief given by High Court--Ttheir third execution petition was just revival of their earlier execution petitions which were filed within time and consigned to record without satisfaction of decree passed in their favour--The decree holders pursuing their case since long and their decree was still unsatisfied--No illegality, irregularity and mis-reading or non-reading of record and jurisdictional defect on part of Courts below--Revision petition dismissed. [Pp. 507 & 508] C, D, E & F

AIR 1938 Illahabad 552, AIR 1940 Madras 281 & PLD 1976 Peshawar 43.

Limitation Act, 1908 (IX of 1908)--

----Art. 181--Execution of decree-- An application for execution of a decree or order of a Civil Court has to be made within three years of date of decree or order sought to be executed. [P. 504] A

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

----S. 48--Limitation-- Section 48 of C.P.C. prescribes a period of six years as outer limits after expiry of which Court cannot entertain a fresh application for execution. [P. 504] B

Raja Abdul Rehman, Advocate for Petitioner.

Mr. Muhammad Ghafoor Malik, Advocate for Respondents No. 1 to 6.

Ms. Samia Khalid, Additional Advocate General Respondent No. 7.

Date of hearing: 24.4.2024.

Judgment

Through this Civil Revision, filed u/S. 115 of Code of Civil Procedure, 1908, the petitioner has called in question the validity and legality of impugned orders/judgments of learned Courts below, whereby, his objection petition was dismissed concurrently.

2. Facts in brevity are that this Court passed a judgment and decree dated 10.12.1988 in favour of predecessor of the respondents, namely, Jumun (Jamoo), etc. Said decree was amended on vide judgment and decree 22.01.1991. For the satisfaction of the said decree, the predecessor of the respondents/decree holders moved an execution petition on 02.10.1991; that said execution petition was consigned to record room vide order dated 28.11.1991 on the basis of report submitted by the revenue field staff in compliance of ‘Warrant Dakhal’; that as decree-holders were not satisfied, they filed another execution petition on 08.02.1992; that said execution petition was consigned to recordvide order dated 07.03.2000 on the ground that decree holders failed to deposit process fee; that decree holders filed another execution petition on 05.07.2011; that during the pendency of said execution petition the petitioner Sabir Ali moved an objection petition with the contention that after the lapse of 20 years of the decree, the respondents/decree holders are estopped by law to file execution petition, therefore, their execution petition is not maintainable being barred by time; that said objection petition was dismissed by the learned executing Court vide order dated 17.04.2012. Being aggrieved, the petitioner preferred an appeal which also met the same fate and dismissed by the learned appellate Court vide judgment dated 26.11.2021. Being dis-satisfied, the petitioner approached this Court through instant Civil Revision.

1. I have heard learned counsel for the parties at full length and perused the record with their able assistance.

2. A suit for possession of land measuring 1257 Kanals 10 Marlas was instituted which was decreed on 03.05.1956 and appeal against it was dismissed on 25.3.1957 The defendants of said suit challenged said judgments and decrees through filing RSA No. 145 of 1957 titled “Jamun, etc. vs Mst. Hakan, etc.” before this Court which was allowed vide judgment and decree dated 10.12.1988 and subsequently said decree was amended vide judgment and decree dated 22.01.1991. For satisfaction of said judgment and decree dated 22.01.1991 an execution petition was filed on 02.10.1991 within a period of three years. Said execution petition was consigned to record room vide order dated 28.11.1991 by the learned executing Court on the information that the decree had been satisfied in its letter and spirit and the possession of the decreed property was handed over to the decree holders through ‘Warrant Dakhal’ dated 26.11.1991. Said order was passed in the absence of decree holders. Being dis-satisfied they filed another execution petition on 08.02.1992 with the contention that their execution petition was consigned to record being satisfied in their absence whereas the decree has not been satisfied in its letter and spirit as neither possession was delivered nor mutation was sanctioned and prayed for satisfaction of the judgment and decree dated 22.01.1991 according to its spirit. Said execution petition was consigned to record vide order dated 07.08.2000 on account of non-deposit of cost of ‘Warrant Dakhal’. Decree holders filed a Criminal Original No. 22-C of 2010 in RSA No. 145 of 1957 with a prayer that contempt proceedings be initiated against the respondents of said petition, as they failed to implement the judgment and decree dated 22.01.1991. Said contempt petition was disposed ofvide order dated 17.06.2011 with a direction to the learned Executing Court to decide the pending execution petition within a period of two months from the order. The decree holders filed another execution petition on 15.07.2011 in the light of said order of this Court. The petitioner challenged said execution petition by moving an objection petition that the said execution petition is not maintainable being barred by time as it has been filed after lapse of more than 20 years of the decree. Said objection petition was dismissed after getting its reply and said order remained intact before the Appellate Court. Hence, this petition.

3. By virtue of Article 181 of the Limitation Act, 1908 an application for the execution of a decree or order of a Civil Court has to be made within three years of the date of decree or order sought to be executed. Section 48 of C.P.C. prescribes a period of six years as the outer limits after the expiry of which the Court cannot entertain a fresh application for execution.

4. The first application was filed on 02.10.1991 within a period of three years and second application was filed on 08.02.1992 before the expiry of outer limit and the third application was filed on 15.07.2011. Now the question is whether the third application filed on 05.07.2011 be considered as fresh application filed after the expiry of limitation or to be treated as continuation of the execution petitions which had been consigned to the record room being satisfied and on account of default for deposit of process fee.

5. The stance of the decree holders is that neither any mutation was sanctioned in their favour nor possession was given to them as per judgment and decree dated 22.01.1991. Therefore, their execution petitions were remained unsatisfied and no final order for the disposal of the execution petitions was passed. The third execution petition is revival of earlier petitions and not fresh execution petition.

6. The all important question, therefore, is as to what is the “final order” and again whether the orders passed by the executing Court in this case on 28.11.1991 and on 07.03.2000 are ‘final orders’. Where the Court intended to dispose of the matter completely and no longer keeps it pending on its file and does not merely suspend the execution or consign the record to the record room for the time being, the order must be deemed to a final order which will give a fresh start for the purposes of limitation, and that the proceedings not being pending, there would in such a case be no question of revival. But, where such an order is made in a case in which the decree holder could not take further proceedings owing to circumstances beyond his control, the order will be regarded as merely suspensory in its nature and a fresh application will be regarded as one for the revival and continuation of the original proceedings. Thus, where the execution is stayed or is prevented by injunction, or becomes impossible to be proceeded with, owing to a claim being advanced to the property which is the subject of the execution or owing to some other obstacle placed by the judgment debtor in the way of execution, and the application “dismissed” or “struck off” or “consigned to the record room” or “returned” the order will not be regarded as having finally disposed of the petition, and a subsequent application will be regarded as one for the revival and continuation of the original proceedings. For reference “Rana Kent Malaviya and another vs Satya Narain Malaviya” (A.I.R. 1938 Allahabad 552) and “Krishnamachari vs. Chengalraya Naidu” (A.I.R. 1940 Madras 281).

7. It should be noted that the words ‘fresh application’ have been used in Section 48(1) C.P.C., therefore, what is contemplated under this section by the words ‘fresh application’, is a substantive merely ancillary or incidental to a previous application, that is to say if the decree holder seeks to set the Court into motion to take further proceedings in respect of an application already pending or where the application has been recorded or where the execution proceedings have been suspended by reasons of appeal or other proceedings, it would not be regarded as fresh application. For reference “Venlappa and others vs Lakshmi Kant Rao” (A.I.R 1956 Hyderabad 07).

8. In case titled “Muhammad Umer Khan versus Muqarrab Khan and another” (PLD 1976 Peshawar 43) it was held as under:

“At this stage I should like to refer to the order of the Executing Court dated 5.10.67 which has already been quoted in extensor. This is quite clear that the proceedings were not consigned to the record-room at the instance of the decree-holder. One fails to understand how could a final order be at all passed by the Executing Court when the Supreme Court of Pakistan had ordered that the delivery of the possession was to be stayed until the hearing of the petition. It would follow that the proceedings were consigned to the record-room without making any final order and such being the case could be revived at any time, the Court was satisfied that the impediment which stood in the way of the execution no longer existed.”

1. The execution application was deemed to be pending so long as no final order disposing it of judicially has been passed thereon. In subsequent application in such a case for execution will be deemed to be one merely for the continuation of the original proceedings. Where final judicial order termination the execution petition had been passed on the application, such execution proceedings could not be revived and the subsequent application for execution would be regarded as fresh application and not one for revival and continuation of the original proceedings.

2. The Hon’ble Supreme Court of Pakistan while dealing with the similar proposition observed in case titled “United Bank Limited vs. Fateh Hayat Khan Tawana and others” (2015 SCMR 1335) as under:--

3. “Significantly, the terms of the order dated 7-2-1989 are amenable also to the rival interpretation given to it by the appellant. It is urged that the said order of the learned Executing Court treats the second execution application to be a substitute or a continuation of the first execution application. This is because the second application contains better particulars for the already prayed mode of execution of the decree. Accordingly, the learned Executing Court has consigned the first application to record and proceeded with its substitute. The argument has some force. The question of time bar is not considered by the order dated 7-2-1989. It arose for determination after the respondents/judgment debtors were issued notices on the second execution application. Whilst examining that objection, the learned Courts below were obliged to consider whether the first execution application could at all be terminated without an order dismissing or disposing of the same. This aspect of the matter was ignored on the presumption that the consignment of an application to the record amounts to its dismissal. The fact is that in the absence of a clear order disposing of the first execution application there is no justification, for treating the proceedings therein to have been concluded. The fate of an execution proceeding in similar situation is explained by the learned full Bench judgment of the High Court of Sindh in Amir Begum v. Mir Fateh Shah (PLD 1968 Karachi 10) wherein Wahiduddin J. (as the then was) opined as follows:-

“…. It is well settled rule of law that an execution application must be deemed to be pending so long as no final order disposing it of judicially has been passed thereon. A subsequent application in such a case for execution will be deemed to be one merely for the continuation of the original proceedings. In this connection the Privy Council in Qamar-ud-Din Ahmed v. Jawahirlal (32 I A 102) observed as under:-

“Their Lordships are of opinion that the execution proceedings commenced by the petition of the 24th August, 1888 were never finally disposed of and that the application now under consideration was in substance, as well as in form, an application to revive and carry through a pending execution suspended by no act or default of the decree-holder, and not an application to initiate a new one.”

This principle has also been applied in cases where the application is dismissed or struck off or consigned to the record room or returned. Such order is not to be regarded as finally disposing of the petition and a subsequent application will be regarded as one of revival and continuation of the original proceedings …….” (Underlining supplied).

1. The judgment in Mehboon Khan’s case ibid is relevant in laying down that where the ‘first execution’ application has been filed within a period of three years from the date of decree under execution, then any fresh application for execution of the said decree may be filed within a period of six years from the date of the said decree. According to the said judgment a fresh application is conceived to be filed “after disposal of the first execution application.” Therefore, an application that is filed during the pendency of a timely first execution application cannot be considered a ‘fresh application.’ This is because it elaborates or amends the pending first execution application. For the reason the subsequent application is liable to be treated as a continuation of or ancillary to the pending execution application. In such a case, quite obviously the objection of limitation cannot have any relevance.”

2. The learned executing Court was given the impression that the decree had been satisfied in its letter and spirit and the possession of the decreed property was given to the decree holders through ‘Warrant Dakhal’ dated 26.11.1991 and in this regard Rapt Roznamcha Waqiati No. 104 dated 26.11.1991 was submitted. In the light of said submission the learned executing Court consigned the file of execution petition to record room vide order dated 28.11.1991. Perusal of order it appears that said order was passed in the back of decree holders and without providing them opportunity of hearing.

The decree holders promptly approached the learned executing Court through execution petition on 08.02.1992 for completion of their execution petition in the light of amended judgment and decree dated 22.01.1991. They specifically pleaded that neither suit property was transferred in their names nor possession was handed over to them. In the ‘Warrant Dakhal’dated 26.11.1991, the Collector directed the concerned Patwari to enter the mutation which also support the version of the decree holders that suit property was not entered in their names in the revenue record. The decree holders are not claiming anything except their own rights determined by this Court. Mere on the reports, in the ‘Warrant Dakhal’ and Rapt Roznamcha Waqiati, that possession was given to the decree holders cannot be taken as conclusive proof of the fact that the decree holders were put into physical possession of the suit land decreed in their favour till then the decree holders admitted said fact. The decree holders have not come to the Court for some new or fresh relief rather they approached the executing Court to get the relief given by this Court. Therefore, their third execution petition is just revival of their earlier execution petitions which were filed within time and consigned to record without satisfaction of the decree passed in their favour. The decree holders pursuing their case since long and their decree is still unsatisfied.

1. I have minutely gone through the record available on the file as well as the impugned orders/judgments passed by learned Courts below, I have seen no illegality, irregularity and mis-reading or non-reading of record and jurisdictional defect on the part of learned Courts below. Learned counsel for the petitioner has been unable to point out any illegality, irregularity or jurisdictional defect in the impugned orders/judgments.

2. For what has been discussed above, the instant civil revision is, hereby, dismissed being without any merits. No order as to costs.

(Y.A.) Revision petition dismissed

PLJ 2024 Lahore 508

Present: Muzamil Akhtar Shabir, J.

GHULAM MAHMOOD DOGAR--Petitioner

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. No. 70222 of 2022, decided on 8.11.2022.

Constitution of Pakistan, 1973--

----Art. 199 & 212--Punjab Government Rules, of Business, 2011, R. 23--Suspension and transfer--No disciplinary proceedings--Non-compliance of transfer order--Mandatory requirement on approval of C.M. regarding transfer and posting of C.C.P.O.--Petitioner was not relieved by Provincial Government--Lack of jurisdiction--Statutory remedies--For purpose of transfer and posting of C.C.P.O. approval of Chief Minister was a mandatory requirement to be obtained before issuance of transfer order--All questions relating to terms and conditions of service of a civil servant including grounds of mala fide, lack of jurisdiction, ultra vires jurisdiction, order being coram non judice and involvement of fundamental rights could be determined by Services Tribunal in view of Article 212 of Constitution and High Court lacks jurisdiction to entertain same in view of bar imposed by said Article--The order to relinquish charge and join service at place of posting was a continuation of earlier order of transfer and as a necessary corollary same also falls within ambit of terms and conditions of services of civil servant and beyond jurisdiction of High Court in ordinary circumstances--The petitioner had remedy to challenge impugned notifications before relevant forums including departmental authorities and Service Tribunal, consequently High Court lacks jurisdiction to entertain dispute in hand--Petition disposed of.

[Pp. 512, 514, 515 & 519] A, B, C, D & E

2015 SCMR 456, 2016 SCMR 2057, 2019 PLC (CS) 764, 2019 PLC (CS) 658 and 2021 SCMR 1554 ref.

M/s. Sohail Shafique, Sardar Akbar Ali Dogar, Ch. Ishtiaq Ahmad Khan, Syed Ali Hassan and Muhammad Ahmad Pansota, Advocates for Petitioner.

Mirza Nasar Ahmad, Addl. Attorney General for Pakistan and Mir Haroon-ul-Rasheed, Assistant Attorney General for Pakistan.

Ch. Muhammad Jahanzaib, Mr. Tipu Salman Makhdoom and Rai Shahid Saleem A.A.Gs for Respondent No. 3.

Date of hearing: 8.11.2022.

Order

Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (“the Constitution”), petitioner, who as an Addl. Inspector General of Police (BS-21) in Police Service of Pakistan (P.S.P.) was posted as Capital City Police Officer, Lahore (C.C.P.O., Lahore), has called in question three separate notifications dated 20.09.2022, 27.10.2022 and 05.11.2022 issued by Respondent No. 2 (Secretary Establishment Division, Govt. of Pakistan Cabinet Secretariat, Islamabad) whereby petitioner was transferred from Punjab Government to Federal Government, directed to relinquish the charge and submit his joining report and services of petitioner were placed under suspension. The following prayer has been made in this petition:

“In view of above submissions, it is most respectfully prayed that the impugned Notification F. No. 12(27)/93-E-3(Police), dated 05.11.2022 whereby the petitioner has been suspended and the earlier Notification No. F-12(27)/93-E-3(Police) dated 20.09.2022 whereby the petitioner was transferred and directed to relinquish the charge and report to the Establishment Division and Letter No. F-12 (27)/93-E-3 (Police) dated 27.10.2022 whereby the petitioner was required to relinquish the charge and report to the Establishment Division within 3 days, may be declared arbitrary, illegal, unlawful, unwarranted, unjustified in the eyes of law and the same may ordered to be set aside on the ground that the Provincial Government had restrained the petitioner from relinquishing charge till further order of the competent authority/Chief Minister Punjab.

It is further prayed that till the final disposal of the instant Writ Petition the operation of the impugned Notification F. No. 12(27)/93-E-3(Police), dated 05.11.2022, No. 12(27)/93-E-3(Police) dated 20.09.2022 and impugned letter No. F-12 (27)/93-E-3 (Police) dated 27.10.2022 may very kindly be suspended.

Any other relief which this Honourable Court deems fit and necessary may also be granted.”

1. The operative parts of the impugned notifications dated 20.09.2022, 27.10.2022, 05.11.2022 are reproduced below respectively:

“Mr. Ghulam Mahmood Dogar, a BS-21 Officer of Police Service of Pakistan, presently serving under Government of the Punjab, is transferred and directed to report to Establishment Division, with immediate effect and until further orders.”

“I am directed to refer to the subject cited above and to state that you were transferred from Government of the Punjab and directed to report to Establishment Division vide this Division’s notification dated 20.09.2022, with immediate effect and until further orders on the basis of a compliant with the approval of Prime Minister being competent authority as envisaged in Rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, for subsequent initiation of fact finding inquiry but you have not yet submitted your joining report pursuant thereto.

1. I am, therefore, directed to instruct you to comply with the above mentioned notification by submitting your joining report to this Division within three (03) days of issuance of this letter failing which disciplinary proceedings under the Civil Servants (Efficiency and Discipline) Rules, 2020 shall be initiated against you.”

“Mr. Ghulam Mahmood Dogar, a BS-21 officer of Police Service of Pakistan, presently serving under Government of the Punjab, is placed under suspension, with immediate effect and until further orders.”

1. It is contended by learned counsel for the petitioner that no disciplinary proceedings were pending against petitioner and his services could not have been suspended merely as a punishment, which had been done with mala fide intentions as according to learned counsel for the petitioner an F.I.R. was registered against some Federal Minister in the Province of Punjab within jurisdiction of the petitioner resulting into initiation of proceedings against the petitioner by Federal Government. Seeks setting aside of the impugned orders/notifications.

2. On the other hand, learned Additional Attorney General has referred to transfer order dated 20.09.2022 and letter dated 27th October, 2022 issued after approval of Prime Minister being competent authority as envisaged in Rule 6 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 requiring petitioner to relinquish the charge and submit his joining report to the Establishment Division within three days of issuance of said letter failing which disciplinary proceedings under Civil Servants (Efficiency and Discipline) Rules, 1973 shall be initiated against him and states that as the matter relates to terms and conditions of service of petitioner resulting into suspension of his services, hence, this Court has no jurisdiction to entertain this petition. When confronted, learned counsel for the petitioner state that there is dispute between Federal and Provincial Governments relating to this matter wherein jurisdiction of Federal Government to initiate proceedings against petitioner is under challenge, therefore, this Court has jurisdiction to decide the matter as the impugned orders are coram non judice, mala fide and without lawful authority.

3. The petitioner, who is a member of police Service of Pakistan, was appointed on 29.07.2022 as C.C.P.O. by the Governor of Punjab, operative part of notification is reproduced below:

“MR. GHULAM MEHMOOD DOGAR (PSP/BS-21), Additional Inspector General of Police, Logistics and Procurement, CPO, Punjab, is hereby transferred, with immediate effect, and posted as Capital City Police Officer, Lahore, against the vacant post in public interest.”

1. Vide order dated 20.09.2022 the Federal Government had required the services of petitioner to be transferred to its Establishment Division. The petitioner has not been released by the Chief Minister of Punjab, who is stated to be appointing authority of police officers in Punjab. This has resulted into tussle between the two Governments relating to transfer and relieving of the petitioner by the Provincial Government to join the Establishment Division of the Federal Government. The claim of the petitioner is that he cannot join the Federal Government unless relieved by the Provincial Government from his duties. Petitioner has relied upon Rule 23 of the Punjab Government Rules of Business, 2011 to state that for the purpose of transfer and posting of C.C.P.O. approval of Chief Minister is a mandatory requirement to be obtained before issuance of transfer order and in view thereof claims that unless he is relieved by the Chief Minister, he is not in a position to join the Federal Government. Further it is claimed that if disciplinary proceedings are to be initiated against the petitioner by the Federal Government, it has to refer the case to Chief Secretary, Government of Punjab for probe or fact finding inquiry and may initiate proceedings after receiving his findings of that probe or fact finding inquiry and if such report is not received within two months, the Federal Government may on its own proceed against the petitioner in view of Section 18 of the Efficiency and Disciplinary Rules, 2020 and not otherwise, hence, according to the petitioner the Federal Government has not got any authority to initiate proceedings against the petitioner without first having resort to the procedure prescribed in the said Rule, which is reproduced below:

“18. Procedure of inquiry against civil servant on deputation or working in other Governments or organizations etc.--(1) Where an authority determines to proceed against a civil servant who is on deputation to any other Government, department, corporation, body corporate, autonomous or semiautonomous body, statutory body or any other organization or institution, hereinafter referred to as the borrowing organization, the authority of such civil servant in his parent department may--

(a) ask the relevant Government or borrowing organization, to frame charges against the civil servant and forward the same to his parent department; or

(b) initiate proceedings against him on its own under these rules.

(2) In case of members of All Pakistan Service posted in a Province, Establishment Division may refer a case to the Chief Secretary concerned for probe or fact finding inquiry and may initiate proceedings on the findings of that probe or fact finding inquiry, or on its own if no findings are received within two months:

Provided that in case of proceedings against any Chief Secretary of a Province, the Establishment Division shall frame the charges and initiate the disciplinary proceedings with approval of the Prime Minister.”

1. The main grievance raised by the petitioner is against his suspension order resulting from non-compliance of his transfer order due to circumstances beyond his control and this Court has been approached to set aside the said orders on the ground that the orders have been passed without lawful authority and no other equally and efficacious alternate remedy is available to the petitioner to call the same in question.

2. Be that as it may, Honourable Supreme Court of Pakistan in judgment reported as “Asadullah Rashid vs. Haji Muhammad Muneer and others” (1998 SCMR 2129) has categorically laid down that constitutional petition under Article 199 of the Constitution is not maintainable by civil servant in relation to any matter connected with terms and conditions of his service in respect whereof the Service Tribunal has jurisdiction in view of Article 212 of the Constitution. Orders, even if mala fide, ultra vires or coram non judice fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as a result of barring provision of Article 212 of the Constitution. The same view was reiterated by the Honourable Supreme Court of Pakistan in judgment reported as “National Assembly Secretariat through Secretary vs. Manzoor Ahmed and others” (2015 SCMR 253).

3. In judgment reported as “Syed Arshad Ali and others vs. Pakistan Telecommunication Company and others” (2008 SCMR 314) it has been laid down as under:

“It is well-recognized that if a right has been conferred by a statute and a complete mechanism has been provided for enforcement thereof, there could hardly be any occasion to invoke the applicability of fundamental rights. The jurisdiction of the High Court will be patently barred under Article 212 of the Constitution of Islamic Republic of Pakistan, in view of the specific forum provided for redressal of the grievances of the petitioners, even if the order proposed to be challenged may have been passed in whatsoever circumstances viz. mala fide, coram non judice or without jurisdiction. This principle has been laid down in the case of I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041. Besides it is also well-settled proposition of law that writ jurisdiction could not be exercised where equally efficacious remedy is available.”

1. In view of the principles laid down in afore-referred judgments all the questions relating to terms and conditions of service of a civil servant including the grounds of mala fide, lack of jurisdiction, ultra vires the jurisdiction, order being coram non judice and involvement of fundamental rights can be determined by the Services Tribunal in view of Article 212 of the Constitution and this Court lacks jurisdiction to entertain the same in view of bar imposed by the said Article. Reference in this behalf may also be made to judgment reported as “Ali Azhar Khan Baloch and others vs. Province of Sindh and others” (2015 SCMR 456) wherein while holding that transfer, posting and disciplinary matters fall within terms and conditions of service of a civil servant, it has been laid down as under:

“149. Article 212 of the Constitution ousts the jurisdiction of High Courts and civil Courts in respect of the matters pertaining to terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to civil Courts, High Courts and Tribunals. The ouster contemplated under the said Article is a Constitutional command, and, therefore, of necessity restricts the jurisdiction of civil Courts and High Courts on the subject, which squarely falls within the exclusive domain of Tribunals.”

1. Moreover, in judgment relating to transfer and posting reported as “Peer Muhammad v. Government of Balochistan through Chief Secretary and others” (2007 SCMR 54) the Honourable Supreme Court of Pakistan has reiterated the established position of law that the bar contained in Article 212 of the Constitution ousts jurisdiction of all other Courts even if the order under challenge is without jurisdiction or mala fide.

2. The order of transfer of a civil servant squarely falls within terms and conditions of his services and resultantly could not be called in question before this Court. The order to relinquish the charge and join service at the place of posting is a continuation of earlier order of transfer and as a necessary corollary same also falls within the ambit of terms and conditions of services of civil servant and beyond jurisdiction of this Court in ordinary circumstances. Reliance in this behalf can be placed on judgment reported as Ali Azhar Khan Baloch’s case mentioned supra.

3. It is already noted above that disciplinary matters fall within the terms and conditions of service of a civil servant. The question relating to suspension of services of an employee came up for consideration in the case titled “Imdad Ali Khawaja versus The State and others” (2016 SCMR 2057) wherein the Honourable Supreme Court of Pakistan while dealing with the order of suspension of a civil servant who was a police officer held as under:

“7. We are also not in agreement with the observations made by the learned Judge in the order dated 12.08.2016 that if an enquiry is initiated, the officer must be placed under suspension. This is the discretion of the competent Authority and the discretion can be exercised considering relevant factors in the enquiry. Under Police Rule 16.19, during the enquiry against a police officer, who is involved in a criminal case, such police officer needs to be placed under suspension in order to avoid his influence. Therefore, the perception that an officer who is facing enquiry must be placed under suspension is against the spirit of service rules. Even otherwise, it is never encouraged that the High Court in collateral proceedings can step in the shoes of the competent Authority by ordering suspension of ‘civil servant’ while directing initiating of departmental inquiry. The discretion in regard to placing an officer under ‘suspension’ falls within the domain of competent authority under the service law, and in case the competent Authority considers and or anticipates that during enquiry, the officer may tamper with the evidence or influence the witnesses or act in a manner to prejudice the outcome of the enquiry, the competent authority may suspend such officer. The learned Judge of the High Court lost sight of the fact that jurisdiction of the High Court is barred under Article 212(3) of the Constitution in relation to the terms and conditions of a civil servant besides the fact that while hearing a criminal appeal, High Court cannot pass order of suspension of police officer in a collateral issue but can always recommend for enquiry against him if his conduct during the course of hearing appears to be unbecoming of a police officer.”

1. From the perusal of the principles mentioned in the afore-referred judgment it is clear that suspension order of a civil servant falls within the ambit of terms and condition of service of the civil servant which include transfer, posting and disciplinary matter and same would come under the domain of the Service Tribunal and hence beyond the jurisdiction of this Court to interfere under Article 199 of the Constitution. Reference in this behalf may also be made to judgment titled “Abdul Malik versus Government of Punjab and others” (2019 PLC (CS) 764) passed by this Court wherein the afore-referred principles have been reiterated. The operative part of the same is reproduced below:

“5. The petitioner being PST Teacher and an employee of Education Department is a civil servant. The suspension order assailed through the instant writ petition necessarily falls within the terms and conditions of service of civil servants. Mere suspension is not a punishment and suspension of a government servant during the course of his service simply means that no work is to be taken from him during the period of his suspension. Suspension is only a temporary measure, wherein the petitioner is entitled to receive his full emoluments in view of the judgment of the Hon’ble Supreme Court of Pakistan in case titled Government of N.W.F.P v. I.A Sherwani (PLD 1994 SC 72). The Service Tribunal had jurisdiction to decide such like matters in due course of law and writ petition is not maintainable. Reliance is placed on Abdul Hameed v. Province of K.P.K. through Chief Secretary, Peshawar and 3 others (2016 PLC (C.S) 424) and Khawaja Wajid Ali v. District Coordination Officer and another (2017 PLC (C.S.) 749 (Lahore). In view of the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 this Court is not vested with jurisdiction to interfere in the impugned order dated 28.09.2018 passed by Respondent No. 3. Reliance can be placed upon the judgments of august Supreme Court of Pakistan reported as Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456) and Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others (PLD 2013 Supreme Court 501).

1. Even otherwise the petitioner has been suspended under the PEEDA Act, 2006, which provides for its own mechanism and suspension order is a preliminary stage in the disciplinary proceedings initiated against a civil servant which may culminate into a final order providing cause of action to the petitioner to seek remedy under the said law, therefore, this constitutional petition challenging such order would be premature at this stage. The petitioner has an alternate efficacious remedy by approaching the departmental appellate authority and then the respective Service Tribunal for redressal of his grievance. Reliance in this regard is placed on Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others (2016 SCMR 842) and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813).

2. Discretion of a competent authority to place an officer/official under suspension fell within the domain of competent authority under the relevant service law. In case the competent authority considered and or anticipated that during enquiry, the officer may tamper with the evidence or influence the witnesses or act in a manner to prejudice the outcome of the enquiry, the competent authority may suspend such officer. The Hon’ble Supreme Court observed that the High Court in collateral proceedings could not step in the shoes of the competent authority by ordering suspension of civil servant while directing initiating of departmental proceedings. Reliance in this regard is placed on Imad Ali Khawaja v. The State and others (2016 SCMR 2057).

3. For what has been disused above, in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan and availability of alternate remedy to the petitioner, this constitutional petition is not maintainable and, therefore, stands dismissed in limine.”

4. Similar principles have been laid down in judgments titled “Mian Zafar Haider versus Deputy Commissioner and others” (2019 PLC (CS) 658) and “Manzoor Hussain Mari versus Chief Secretary and 2 others” (2019 PLC (CS) Note 23) (Sindh).

5. The learned counsel for the petitioner have relied upon judgment reported as “Federation of Pakistan through Secretary establishment, Islamabad vs. M.Y. Labib-Ur-Rehman and others” (2021 SCMR 1554) by stating that in the said judgment it has been held that jurisdiction of the High Court is not ousted in the matters relating to terms and conditions of service of civil servants. The said judgment does not refer to a general rule rather refers to certain exceptions where constitutional petition may be entertained, however, also provides that said jurisdiction is to be used sparingly and exercising of said jurisdiction should not frustrate statutory remedies available under the law which may be against the legislative intent. It is important to note here that the order passed by the High Court was set aside in the said judgment by referring to principles on the subject, the operative part of which is reproduced below:

“The High Court without indulging into the question of maintainability passed the order in cyclostyle fashion while assuming the jurisdiction which is not vested in it. This Court in the recent judgment dated 21.05.2021 titled as Khalilullah Kakar v. PPO Balochistan passed in Civil Appeal No. 909/2020 etc. has candidly held that Article 212 of the Constitution specifically places an embargo on all other Courts except the Service Tribunal to assume jurisdiction. It is now established that any relating to terms and conditions of service is within the domain of administrative Courts and tribunals established under Article 212 and even if the element of mala fides, ultra vires or coram non judice is pressed into, the same can be entertained and decided by the said Courts in its jurisdiction. There is no denial to this fact that the bare reading of the said Article is of significant importance especially with reference to its exclusive jurisdiction to entertain matters relating to terms and conditions of service. Hence, in all eventualities any petition relating to terms and conditions of service is to be dealt with by administrative Courts and tribunals specifically established for its adjudication in pursuance of Article 212 of the Constitution. As a general principle, the framers of the Constitution while inserting the said provision have ousted the jurisdiction of other Courts including the High Court under Article 199 of the Constitution. There are certain exceptions depending upon the facts and circumstances on case to case basis because of the reason that the law is not static and the same is growing day by day, therefore, it cannot be said with certainty that in all eventualities the service issues cannot be called in question in Constitutional jurisdiction before the High Court. The Constitutional jurisdiction is always considered as extraordinary, which is to be exercised in extraordinary circumstances if so warranted, hence, the Constitutional jurisdiction cannot be curtailed stricto senso leaving some room for its application where it is so demanding for safe administration of justice and fair play. The superior Courts while exercising Constitutional jurisdiction must satisfy themselves that they may not interfere or infringe the jurisdiction of any other statutory forum in any manner when an equally efficacious/adequate remedy is available under the statute for the redressal of the grievances of the litigants. Hence, the superior Courts should be reluctant to frustrate the statutory

remedieswhile exercising their Constitutional jurisdiction, which otherwise has to be exercised sparingly while enabling to advance the legislative intent.”

1. In view of the principles mentioned above, this Court would have jurisdiction in matters of civil servants only to the extent where the said matters do not fall within the jurisdiction of Services Tribunal. In the present case, the petitioner has remedy to challenge the impugned notifications/orders before the relevant forums including departmental authorities and Service Tribunal, consequently this Court lacks jurisdiction to entertain the dispute in hand and reliance of the petitioner on judgment reported as “Federation of Pakistan through Secretary establishment, Islamabad vs. M.Y. Labib-ur-Rehman and others” (2021 SCMR 1554) is misplaced as the case of the petitioner does not fall within the exceptions referred to in the said judgment as the petitioner has raised grievance against transfer, direction to relinquish charge and join at place of posting and against his suspension order which squarely fall within terms and conditions of petitioner’s service, consequently, this petition is not maintainable before this Court and is disposed of as High Court lacks jurisdiction to entertain the same. The petitioner, if advised, may seek appropriate remedy in accordance with law.

(Y.A.) Petition disposed of

PLJ 2024 Lahore 519

Present: Ahmad Nadeem Arshad, J.

ADNAN ANWAR--Petitioner

versus

IJAZ AHMAD and others--Respondents

C.R. No. 72449 of 2023, heard on 18.4.2024.

Punjab Partition of Immovable Property Act, 2012 (IV of 2012)--

----Ss. 4, 11(5) & 11(10)--Open auction--Successful bidder--20% of bid amount was deposited--Petitioner was failed to deposited remaining auction amount within requisite period--Appeals--Allowed--Auction proceedings were set aside--Cancellation of sale certificate--Non-compliance of statutory provision--Challenge to--Petitioner participated in an open auction and declared highest and successful bider of a commercial shop--Appellate Court set aside auction on ground that petitioner failed to deposit remaining auction amount within period of 07-days fixed by law as well as on grounds of other irregularities and illegalities committed during auction proceedings--Petitioner was bound to deposit remaining 80% amount within 07-days after auction to which he failed--Hence, non-compliance of said mandatory provision entails penal consequences--Appellate Court had rightly allowed appeals of respondents--Counsel appearing on behalf of petitioner remained unable to point out any illegality, irregularity or jurisdictional defect in impugned judgment--Impugned judgment had been passed in accordance with law after due appreciation of law on subject, which did not call for any interference by Court while exercising revisional jurisdiction--Civil revision dismissed.

[Pp. 522, 526 & 527] A, B, E & F

Punjab Partition of Immovable Property Act, 2012 (IV of 2012)--

----S. 11(5)--Open auction--The highest bidder is bound to immediately deposit 20% of his bid amount and remaining amount is to be deposited within 07-days. [P. 524] C

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

----Ss. 148 & 151--Power of Court-- The Court had no power either under Section 148 or Section 151 CPC to extend time fixed for payment of balance money of sale price. [P. 525] D

2011 SCMR 1675 ref.

Barrister Muhammad Adil Fayyaz, Advocate for Petitioner.

Mr. Javed Iqbal Bhatti, Advocate for Respondents No. 1-3.

Hafiz Muhammad Mohsin Waseem Sipra, Advocate for Respondents No. 4-8.

Date of hearing: 18.4.2024.

Judgment

Ahmad Nadeem Arshad, J.--Through this Civil Revision filed u/S. 115 of Code of Civil Procedure, 1908, petitioner has called into question the vires, validity and legality of judgment dated 20.09.2023 whereby learned Appellate Court, while accepting the appeals of respondents, set-aside the judgment/order of learned Trial Court through which the auction was confirmed in favour of the petitioner and sale certificate was issued.

1. Pithily, the facts forming background of proceedings in hand are that respondents No. 4 to 8 instituted a suit for possession through partition against respondents No. 1 to 3 qua four immoveable properties. The learned trial Court, after observing due codal formalities, decreed the suit vide judgment & decree dated 20.12.2021 and adjourned the proceedings for submission of mode of partition. Since the defendants were not in attendance, hence, the learned trial Court observed that without their consent referee cannot be appointed and the property was put to internal auction by fixing the reserve price vide order dated 07.02.2023. Due to absence of defendants, learned Trial Court declared internal auction to be failed and appointed Muhammad Aslam Khan, Advocate as Court Auctioneer with a direction to submit proposed schedule of open auctionvide order dated 17.04.2023. Thereafter, the auction schedule was approvedvide order dated 11.05.2023 and the case was adjourned for awaiting the report of Court auctioneer. In the meanwhile, order dated 17.04.2023 and 11.05.2023 were challenged by Respondent No. 1 through preferring an appeal. Said appeal was allowed vide order dated 12.06.2023 subject to depositing an amount of Rs. 10 million before the Executing Court within a week and Respondent No. 1 was granted single opportunity to participate in the internal auction. Respondent No. 1 failed to deposit the said amount within the stipulated time. As the learned Appellate Court had not suspended and set aside the order of open auction dated 11.05.2023, hence, the Court auctioneer conducted the auction proceedings and resultantly properties were auctioned on 15.06.2023 and 16.06.2023. In the said auction proceedings, petitioner participated and declared to be the highest bidder with regard to the commercial shop measuring 01 Marla bearing Khewat No. 443, Khatuni No. 448, Khasra No. 287 situated at the Revenue Estate Chak No. 51, Tehsil & District Mandi Bahauddin. On 26.06.2023, the Court Auctioneer submitted his report. On the said date, petitioner also submitted an application seeking permission to deposit remaining 80% amount in the Court. Learned Trial Court adjourned the proceedings for perusal of report and further appropriate order.Vide order dated 06.07.2023, auction in favour of the petitioner was confirmed subject to payment of entire remaining amount till 15.07.2023. Petitioner deposited the total sale consideration amount through Receipt dated 10.07.2023 and through Challan Form on 12.07.2023. Learned trial Court vide order dated 17.07.2023 directed to issue sale certificate in favour of the petitioner. After rejection of the objections raised on the auction proceedings, Respondent No. 1 challenged the orders dated 26.06.2023 and 06.07.2023 through preferring an appeal. Learned Appellate Court disposed of the appeal in terms that the learned counsel for the parties shall inform the executing Court about their compromise and also deliver arguments on their objections and after hearing the purchaser of the property, learned Executing Court shall decide the same in accordance with the provisions of Section 11(5) and 11(10) of the Punjab Partition of Immoveable Property Act, 2012. Consequently, the learned Trial Court vide order dated 27.07.2023 dismissed the objections. Being dissatisfied, respondents No. 4 to 8 as well as Respondents No. 1 to 3 preferred their separate appeals by challenging the orders of learned Trial Court dated 06.07.2023, 17.07.2023 and 27.07.2023. Learned Appellate Court, while accepting the appeal of Respondents No. 4 to 8 set aside the auction proceedings dated 15.06.2023 and 16.06.2023, the orders of confirmation of sale and also cancelled the sale certificate issued in favour of the petitioner as well as other successful bidder namely Asif Sohail (Respondent No. 9) vide impugned order dated 20.09.2023. Respondent No. 9 did not assail the said order, however, petitioner challenged said order through filing instant revision petition.

2. I have heard learned counsel for the parties at length and perused the record with their able assistance.

3. From the perusal of record, it has transpired that petitioner participated in an open auction held on 15.06.2023 and declared highest and successful bider of a commercial shop measuring One Marla by giving higher bid amounting to Rs. 38,500,000/- the reserve price of which was Rs. 23,878,100/-. Accordingly, he deposited the 20% of his bid amount i.e. Rs. 7,700,000/- (Rupees 100,000/- in cash and

Rs. 7,600,000/- through cheque). Learned Appellate Court set aside the auction on the ground that petitioner failed to deposit the remaining auction amount within the period of 07-days fixed by the law as well as on the grounds of other irregularities and illegalities committed during the auction proceedings.

1. Learned counsel appearing on behalf of the petitioner maintains that petitioner participated in the auction proceedings held on 15.06.2023 and he was declared to be the successful bidder who deposited the 20% of the bid amount forthwith to the Court Auctioneer. Petitioner moved an application before the Court on 26.06.2023 whereby he sought permission to deposit remaining bid amount. Said application was allowed by the Trial Court on 06.07.2023 and he was directed to deposit the remaining bid amount before 15.07.2023. Learned counsel for the petitioner has drawn attention of this Court towards the receipt/Transfer Pay In Slip dated 10.07.2023 whereby an amount of Rs. 38,400,000/- was deposited in the Government treasury account G-11215 and Challan Form No. 32-A whereby said amount was deposited in the Court on 12.07.2023. He argued that petitioner complied with the direction of the Court within the stipulated time, hence, he could not be penalized for the act of the Court.

2. In response to this, learned counsel for the respondents argued that petitioner was bound to abide by the law, where it has been provided that the successful bidder shall deposit the remaining 80% amount within a period of 07-days. He referred to the “Auction Proclamation” (اشتہار نیلام عام) wherein at serial No. 6 of the auction conditions it has been mentioned that the purchaser will deposit the remaining auction price of 80% in the Court within 15 days and in case of default the Court has jurisdiction to deduct the auction expenditures from the deposited 20% amount and put the property to re-auction in case the highest bid is lower than the earlier highest bid then that difference shall also be deducted. For ease, said clause is reproduced as under:

"بقیہ زر نیلام کا حصہ (%80) 15 دن کے اندر کامیاب بولی دہندہ فاضل عدالت میں جمع کرائیگا۔ عدم ادائیگی کی صورت میں عدالت کو اختیار ہو گا کہ وہ % 20 جمع شدہ رقم سے اخراجات نیلام وضع کرے اور جائیداد دوبارہ نیلام کرے۔ دوبارہ نیلامی میں پہلی بولی سے جتنی کم رقم نیلامی ہو گی اس کی بھی کٹوتی کرنے کے بعد رقم واپس کی جائے گی۔"

And argued that at the most the petitioner could take advantage of the “Auction Proclamation” wherein he was required to deposit the remaining amount within 15 days, to which he also failed.

1. Before proceeding further, it is better to consider the provision of open auction as described in Section 11 of the Punjab Partition of Immoveable Property Act, 2012, which reads as under:

2. Open auction.--(1) If the co-owners refuse to participate in the internal auction or only one co-owner shows his willingness to participate in such auction or the internal auction under section 10 has failed, the Court shall fix the reserve price of the immovable property and direct open auction of the property.

(2) A co-owner of the immovable property may participate in the open auction of the property.

(3) The Court shall appoint a Court auctioneer for conducting the open auction and fix fee of the Court auctioneer to be paid by the co-owners in proportion to their respective shares in the immovable property.

(4) The Court auctioneer shall submit in the Court an auction plan in the form of a public notice which shall include detailed specifications of the immovable property, the time, date and place of open auction, and the amount of bid security for participating in the open auction, and the Court may approve the auction plan with or without modification and direct its publication in such manner as it deems appropriate.

(5) The Court auctioneer shall conduct open auction under the auction plan approved and published by the Court and direct the highest bidder to deposit--

(a) earnest money equal to twenty per cent of the bid price immediately on the close of bidding; and

(b) the remaining amount of the bid price in the Court within seven days.

(6) The Court auctioneer shall maintain the record of the auction proceedings and return the bid security to unsuccessful bidders but shall adjust the bid security of the highest bidder in the bid price.

(7) The Court auctioneer may, in an appropriate case, accept deposit under clause (a) of sub-section (5) in the form of cash, crossed cheque, demand draft or banker’s cheque against a receipt.

(8) The Court auctioneer shall, immediately after conclusion the auction, deposit in the Court the auction price collected by him along with the auction report.

(9) If the highest bidder deposits the auction price under sub-section (5), the Court shall confirm the sale, put the highest bidder in possession of the property and distribute the auction price amongst the co-owners according to their respective shares.

(10) If the highest bidder fails to deposit the auction price under sub-section (5), the amount deposited by him shall stand forfeited and the immovable property shall be put to open auction again, as far as possible, in accordance with the procedure contained in this section.

1. From the perusal of section 11 (5) of the Act ibid, it emerges that the highest bidder is bound to immediately deposit the 20% of his bid amount and the remaining amount is to be deposited within 07-days. The sub-clause 10 of Section 11, provides the consequence of non-compliance of the former provision, wherein the legislature has provided that if the highest bidder fails to deposit auction price under sub-Section 05, the amount deposited by him shall stand forfeited and the immoveable property shall be put to re-auction.

2. The provision with regard to payment of 80% of the balance purchased money contained under sub-section (5) of Section 11 of the Act ibid is mandatory in nature and not merely directory and that non compliance thereof renders a sale void and the Court is under obligation in such circumstances to order for resale of the property in terms of Section 11(10) of the Act ibid. Non payment of balance 80% of the purchase money cannot be described as an irregularity in connection with the “publication and conducting of the sale” so as to attract the provisions of Order XXI, Rule 19 CPC. The fact of non compliance of Section 11(5) of the Act ibid on auction sale is that the sale is rendered void and there is no sale within the contemplation of said section. In the event of a default the previous proceedings for sale would completely wiped out as if they do not exist in the eye of law. The Court had no power either under Section 148 or Section 151 CPC to extend the time fixed for payment of the balance money of sale price. The maxim that act of the Court prejudice no man apply on to those cases where it is shown in the first place that the party, who acted bonafidely on the order of Court was in no way responsible for passing of that order and secondly the party was in a position to meet his obligation under law but non compliance resulted due to orders of the Court. The Court was not possessed any power to enlarge the time fixed under this Section ibid. The Hon’ble Supreme Court while discussing consequences of non deposit of ¾ auction money by purchaser within 15-days as provided under Order XXI, Rules 85 and 86 of CPC in a case titled Mst.Nadia Malik Versus Messrs Makki Chemical Industries Pvt Limited through Chief Executive and others (2011 SCMR 1675) observed as under:-

“12. The next question before this Court is whether the executing Court while following the provisions of Order XXI, Rules 84 and 85, CPC, was competent to extend time before 15 days for deposit of balance 75% of the amount of the auction money. The answer in this behalf would be in negative. The time for deposit of amount is provided under Order XXI, Rule 85 C.P.C. Under Rule 85 an auction purchaser shall deposited 25% of the auction amount immediately on being declared as highest bidder and the balance amount of 75% shall be deposited within 15 days of the auction. In the present case, the sale was confirmed on 29-04-2002 on which date the appellant had deposited 35% of the auction amount. In terms of Order XXI, Rule 85 C.P.C., the appellant was required to deposit the balance amount of Rs. 6.00 million by 13-05-2002. Admittedly, this amount was not deposited by the said date and record reveals that an application for extension of time was made by the appellant on 13-5-2002 and on 14-05-2002 an amount of Rs. 3.00 million was deposited and for the balance amount of 3 million further time of 10 days was sought. The appellant as has already been observed earlier has deposited Rs. 19,93,750 on 29-04-2002, which was 25% of the auction price whereas Rs. 3.00 million was deposited on 14.5.2002 after a lapse of 15 days, the stipulated time, and the remaining 3.00 million on 23.5.2002. The default in deposit of the balance amount was violative of the mandatory conditions provided under the proclamation which language was borrowed from the mandatory provisions of the Order XXI of the C.P.C. Failure to deposit the balance amount of 75% of auction money within 15 days by the appellant renders the sale/auction proceedings nullity . The language of Order XXI, Rules 84 and 85 C.P.C are mandatory in nature. If the balance amount of auction price is not paid within the stipulated period of 15 days, the Court has the discretion to forfeit the deposit and order re-sale of the property. In addition to forfeiture, the defaulted purchaser forfeits all claims to the property. The conditions contained in the proclamation provide all such details. It has provided that a party who is declared as highest bidder, shall immediately deposit 25% of the sale price and remaining 75% of the sale price would be deposited within 15 days. Violation of these conditions would not empower the executing Court to extend time for deposit of balance amount unilaterally.”

1. The legislature has not necessitated the permission of the Court to deposit the remaining consideration amount. Petitioner was bound to deposit the remaining 80% amount within 07-days after the auction to which he failed. Hence, non-compliance of said mandatory provision entails the penal consequences.

11. There is no force in the arguments of learned counsel for the petitioner that the petitioner deposited the remaining 80% amount within the period stipulated by the Court. In this regard, suffice is to say that no Court can deviate from the mandatory provision of law. The act of the Court derives force from the statute and when the statute has not provided any leniency in this regard then how the Court could give any relaxation. The Division Bench of this Court in its reported judgment titled as Messrs Maqi Chemicals Industries (Pvt.) Limited through Chief Executive and 3 others Versus Habib Bank Limited through Manager and 2 others (2003 CLD 571) observed as under:

“14. The arguments of learned counsel for Respondent No. 3, that because the Court had enlarged the time on 14.5.2002 and if the application had been refused in terms of Rule 85, the purchaser would have made arrangement to make the deposit and thus in the above situation, the purchaser on account of act of the Court, cannot be prejudiced.

We are afraid, this argument has no substance, because every person is required to know the law. Thus Respondent No. 3, should have known that full payment has to be made within 15 days and her application by itself was absolutely unfounded and misconceived, it was an abortive attempt to circumvent the provision of Rule 85. The rule that no one shall be prejudice on account of an act of the Court, would only be applicable in those cases, where the Court has the authority to pass the order but the order is erroneous, however, where the Court lack the authority and absolutely has no jurisdiction, notwithstanding such order having been passed by the Court, a person cannot take premium of such void order on the principle mentioned above.”

1. In view of the above, learned Appellate Court has rightly allowed the appeals of the respondents. Learned counsel appearing on behalf of the petitioner remained unable to point out any illegality, irregularity or jurisdictional defect in the impugned judgment. Impugned judgment has been passed in accordance with law after due appreciation of the law on the subject, which do not call for any interference by this Court while exercising revisional jurisdiction.

2. For what has been discussed above, the instant Civil Revision is without any merits, hence, the same is hereby dismissed with no order as to costs.

(Y.A.)

PLJ 2024 Lahore 537

Present:Ahmad Nadeem Arshad, J.

ASHIQ ALI and others--Petitioners

versus

GHULAM ALI (deceased) through Legal Heirs, etc.--Respondents

C.R. No. 68828 of 2023, decided on 22.4.2024.

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

----Ss. 42 & 54--Suit for declaration, permanent injunction--Decreed--Appeal--Allowed--Suit property was resumed--Death of predecessor of father of plaintiff and defendant--Suit property was allotted to defendant--No application for allotment of suit property by plaintiffs--Joint cullevating possession was not verified--Criteria for grant of resumed land--No objection regarding entries of Khasra Gardwari-Atti Dar--Neither plaintiff applied for allotment through submitting application supported by declaration Form LR-XI nor raised any objections at relevant time with regard to wrong entries of Khasra Girdwari in name of Defendant No. 1--Their stance that they were in joint cultivating possession of suit property was not verified from Khasra Girdwari--If there were joint tenancies then suit property should had been allotted to all of them according to shares in their possession--All plaintiffs were minors when their father was died--Said fact creates doubts that after death of their father how tenancy was devolved to all brothers and they were cultivating land jointly--Although suit property was already allotted through allotment order but as mutation in that regard had not been attested, therefore, Provincial Government was shown as owner and Ghulam Ali grantee in column of cultivation as “Attia Dar”--It was pointed out that name of plaintiffs were also mentioned in said column but their names were mentioned as tenants at will meaning thereby they were tenants of “Atti-Dar” namely Ghulam Ali--They were not shown tenants under Anjuman Ahmadia Ishaat Islam from whom suit property was resumed--Plaintiffs did not succeed to prove their stance through available evidence--Civil revision dismissed.

[Pp. 545, 548, 549 & 550] C, D, E, F & G

Land Reforms Regulation, 1972 (MLR 115)--

----Regln. 115--Resumed land--The land resumed or surrendered under paragraph No. 13 & 14 of Land Reforms Regulation, 1972 (Martial Law Regulation No. 115 of 1972) (hereinafter referred to as “MLR.115 of 1972”) is settled to be granted free of charge to tenants who are shown in Revenue Records to be in cultivating possession of it. [P. 540] A

Entitlement for Allotment--

----It was not necessary that tenant was actually cultivating land--If he was shown cultivating possession in revenue record then he was entitled for allotment--Right of appeal, revision and review was also available to aggrieved party. [P. 545] B

Mr. Affan Alam Chaudhary, Advocate for Petitioners.

Date of hearing: 22.4.2024.

Order

This Civil Revision, filed under Section 115 of the Code of Civil Procedure, 1908, is directed against the judgment and decree of learned appellant Court, whereby, the appeal preferred by respondents was allowed and resultantly dismissed the petitioners’ suit for declaration with permanent injunction.

1. Facts in brevity are that the petitioners/ plaintiffs (hereinafter referred to as ‘plaintiffs’) instituted a suit for declaration with permanent injunction on 25.02.1996 against the respondents/ defendants (hereinafter referred to as ‘defendants’), on the grounds that the plaintiffs and Defendant No. 1 are real brothers; that suit property measuring 98 kanals 08 marlas situated in khewat No. 4 khatoni No. 79 Chak No. 6/4-L, Tehsil Okara (hereinafter referred to as “the suit property”) was owned by the Provincial Government; that their father was in cultivating possession of the same as a tenant since 1956-57 till his death; that after the demise of their father, all the four brothers jointly cultivated the suit property as tenants; that Defendant No. 1 with the help and connivance of revenue officials got entered his name as a tenant in the crops Kharif 1971 and Rabi 1972; that in the year 1974 the Provincial Government launched a scheme to grant proprietary rights to the cultivators who were in possession of the property; that the plaintiffs and Defendant No. 1 applied to get the proprietary rights and also paid the expenses; that after completion of legal proceedings Defendant No. 1 assured the plaintiffs that proprietary rights have been granted to all the four brothers but in the year 1995 the plaintiffs came to know that Defendant No. 1 has got proprietary rights of the suit property in his name vide order dated 15.07.1974 passed by the Deputy Land Commissioner followed by mutation No. 317 dated 25.04.1989; that Defendant No. 1 in connivance with the revenue staff fraudulently obtained the order dated 15.07.1974 from Deputy Land commissioner; that the suit property had been in their possession being legal heirs of Ghulam Muhammad, therefore, the impugned order wherein the suit property was allotted only to Defendant No. 1 excluding the plaintiffs, is illegal, against facts and law having no effect upon their rights and sought declaration that being legal heirs the plaintiffs and Defendant No. 1 are owners of the suit property according to their legal share. Defendant No. 1 and Defendants No. 2 & 3 resisted the suit through separate contested written statements wherein while raising certain preliminary objections defended the impugned order and refuted all the allegations/averments made in the plaint. Defendant No. 1 in his written statement maintained that he was in possession of the suit property as a tenant from Kharif 1971 to Rabi 1971-72, hence, the suit property was allotted to him by the Deputy Land Commissioner vide order dated 15.07.1974 after observing all formalities in accordance with law; that earlier the suit property was owned by Anjuman Ahmadia Ishaat Islam Trust which was resumed by the Land Commission and the same was allotted to him as he was in possession of the suit property as tenant at the relevant time; that the plaintiffs were not in possession of the suit property, therefore, they have no concern with the suit property. The learned trial Court, out of divergent pleadings of the parties, framed necessary issues on 10.09.1996, subsequently fresh issues were framed and invited them to produce their respective evidence and after recording evidence of the parties pro and contra, oral as well as documentary decreed the suit vide judgment and decree dated 30.09.2022. Being aggrieved, the legal heirs of Defendant No. 1 preferred an appeal which was allowed by the learned appellate Court vide judgment and decree dated 31.07.2023. Being dis-satisfied the plaintiffs approached this Court through instant Civil Revision.

2. I have heard preliminary arguments advanced by the learned counsel for the petitioners and perused the record with his able assistance.

3. The plaintiffs basically assailed the vires of order dated 15.07.1974 passed by the Deputy Land Commissioner followed by mutation No. 317 dated 25.04.1989 whereby, resumed suit property, consisting upon 98 kanals 08 marlas, from Anjuman Ahmadia Ishaat Islam Trust was allotted to Ghulam Ali (Defendant No. 1) on the grounds that after the demise of their predecessor namely Ghulam Muhammad (father of the plaintiffs and Defendant No. 1) who was original tenant of the Trust, the suit property had been in their joint possession being his legal heirs, therefore, the impugned order wherein the suit property was only allotted to Defendant No. 1 excluding the plaintiffs, other sons of Ghulam Muhammad, is illegal, against facts and law having no effect upon their rights and sought declaration that being legal heirs plaintiffs and Defendant No. 1 are joint owners of the suit property according to their legal share. Whereas, the stance of the Defendant No. 1 is that he was in possession of the suit property during crucial harvest i.e Kharif 1971 to Rabi 1971-72 and being land less tenant he applied for allotment of the resumed land (suit property) through adopting proper procedure and after scrutinized his claim, the suit property was allotted to him.

4. Before discussing further it is better to see the law and rules applicable for allotment of resumed/surrendered land.

5. The land resumed or surrendered under paragraph No. 13 & 14 of the Land Reforms Regulation, 1972 (Martial Law Regulation No. 115 of 1972) (hereinafter referred to as “MLR.115 of 1972”) is settled to be granted free of charge to the tenants who are shown in the Revenue Records to be in cultivating possession of it in Kharif 1971 and Rabi 1971-72 under Paragraph No. 18 which reads as under:

6. Grant of land to tenants. Land which vests in Government under the provisions of paragraph 13 or paragraph 14 shall subject to the other provisions of this paragraph, be granted free of charge to the tenant who are shown in the Revenue Records to be in cultivating possession of it in Kharif 1971 and Rabi 1971-72 or in the case of land vesting in Government on the basis of a declaration made pursuant to clause (ee) of sub-paragraph (1) of paragraph 12, to the tenant who is shown in the Revenue Record to be in cultivating possession of it in the year immediately preceding such declaration:

Provided that no land shall be granted to tenants who, but for the making of this Regulation, would have entitled to inherit land from any of the persons from who land has been resumed under this Regulation.

(2) Where a tenant who is entitled to the grant of land under the said sub-paragraph (1) already owns any land, he shall be granted only so much land under the said sub-paragraph which together with the land already owned by him equals an area of a subsistence holding.

(3) Where any land is not shown in the Revenue Records to be in cultivating possession of any tenant, during Kharif 1971 and Rabi 1971-72 it shall be granted to such tenant or other persons, owing less than a subsistence holding, and on such terms and conditions as the Government may determine; [provided that Government may utilize any such land for such public purpose as it may deem fit].

(4) Nothing in this paragraph shall apply to orchards, or to any state-land granted on instalments where any instalment in respect of such land remains unpaid”.

In exercise of the powers conferred on Punjab Land Commission through Notification No. DSH-1076/72/6514-LC(II) dated 5th April, 1973 promulgated “The Punjab Land Reforms Rules, 1972” (hereinafter referred to as “the Rules, 1972).

Rule 8 describes the procedure for applying the allotment and maintained that every application filed under MLR-115 of 1972 shall be drawn up and verified in the manner provided for drawing up and verification of a plaint or written statement in Code of Civil Procedure, 1908, in respect of Civil Suits. In the said Rules remedies of appeal (Rule 10 & Rule 11), Review (Rule 12) and Revision (Rule 13) are also provided to the aggrieved parties.

1. The Government of the Punjab Colony Department through Notification No. DSL-16/73/363-LC(II) dated 27th January, 1972 as amended by Notification No. 1633-73-986-CLI dated 21st March, 1974 issued “Statement of Terms and Conditions” for grant of land vest in it under the provision of paragraphs 13 and 14 of MLR-115 of 1972.

The criteria of Eligibility is defined in Section 4 which provides that:-

4. Eligibility.--(1) Subject to the provisions of the Regulation and this statement, a self-cultivator in a revenue estate where the land proposed to be granted is situate shall be eligible for grant of land if he is:-

(a) A tenant who is shown in the revenue records of the estate to be in cultivating possession of a tenancy during a period of not less than four harvests ending Rabi 1971-72; or

(b) a grantee of land under sub-paras (1) and (2) of para 18 of the Regulation, in the estate whose total holding in the estate and anywhere else is less than a subsistence holding; or

(c) a small landowner in the estate whose total holding, inclusive of the holding of his family, in the estate and anywhere else, is less than a subsistence holding.

(d) Subject to the provisions of the Regulation, such other person as may be specified by the Government from time to time shall also be eligible for grant of land under this statement.

(2) If after satisfying the claims of tenants and other eligible persons of the estate where the land is situated, some land is left for disposal, it shall be granted in such manner as the Government may determine.

Section 5 describes Priorities which are as under:

1. Priorities.--While considering the claims of eligible persons the following order of preference shall be observed:-

(a) A tenant who owns no land anywhere, such a tenant in cultivating possession of a tenancy in the revenue estate, for a larger number of harvests shall have a prior claim over one for a lesser number of harvests.

(b) A tenant and other eligible person who owns anywhere an area less than a subsistence holding. One owning less area shall have prior claim over another owing more area:

Provided that one whose previous holding is contiguous to the land proposed for grant shall be given preference over other.

(c) A tenant and other eligible person who has a tenancy of 12½ acres of more, or owns some land as well as has a tenancy the aggregate of which is 12½ acres or more, shall be considered only after the claims of other tenants and other eligible persons mentioned in the above two categories have been satisfied.

Section 6 describes scale of area to be granted.

1. Scale of area to be granted. Subject to its availability, land should not be granted to person made eligible under this statement of conditions exceeding maximum of a subsistence holding and if entitled person already owns any land, he should be granted only so much land which together with the land already owned by him does not exceed an area of a subsistence holding.

Section 7 describes the procedure how to apply which read as under:

1. Application for grant of land. (1) Application for grant of land under this statement shall be made in Form LR-XI-A by a date to be notified by the Chief Land Commissioner or the Deputy Land Commissioner of the district.

(2) The application shall be sent either by registered post acknowledgement due to the Sub-Assistant Land Commissioner (Tehsildar) of the Tehsil or presented to him in person and receipt thereof obtained from him.

(3) As soon as an application is received, it shall be entered in a Register to be maintained in the office of the Sub-Assistant Land Commissioner separately for each village where the land applied for is situate.

Section 8 provides the procedure for grant of land which reads as under:

1. Procedure for grant of land. The Chief Land Commissioner shall prescribe the procedure for the grant of land and the application for grant of land shall be processed in the manner prescribed by him.

2. Through Notification No. DSH-473/72/6514-LC(II), dated 11th May, 1972 as modified by Notification No. DSL-946-72/3320-LC(II), dated 18th August, 1972 declared that tenants claiming allotment of surrender and resumed land under sub-paragraphs (1) & (2) of paragraph 18 of MLR 115 of 1972 shall submit declaration in the From LR-XI at any time before the allotment and the allotment shall depend upon the information supplied by the tenant in the said form and said form should be accompanied a certificate that the information is accurate and complete in all respect. If the tenant fails to provide the required information or willfully furnishes incomplete or false declaration shall liable to action under paragraph 30 of MLR-115 of 1972 which provides rigorous imprisonment for a term which may extend to 07 years in addition to forfeiture of all or part of his immovable property to Government.

From LR-XI should be submitted personally or through authorized agent to the Deputy Land Commissioner of the district, where the surrendered and resumed land in the cultivating possession of the applicant is situate.

In case the applicant is illiterate, should affix his thumb impression while furnishing the certificate at the end of the Form, which should be attested by a literate person.

It was also directed that statement LR-XIV showing the name and full particulars of the tenants in cultivating possession during the harvests and statement LR-XV showing the particulars of land that was not in cultivating possession of a tenant are to be prepared. These statements are to be verified and certified personally by the Revenue Officer of the Haqla, and the Assistant Commissioner. Not less than 25% of the entries in the statements are to be checked personally by the Deputy Land Commissioner to ensure that mistakes have not been incorporated in the statements.

In order to safeguard against any possibility of names of genuine cultivating tenants being excluded and names of undeserving tenants not qualified for allotment being included, it has, further been directed that the statement LR-XIV and LR-XV should be verified and certified personally by the Revenue Officer of the Halqa and the Assistant Commissioner concerned in the revenue estate itself in a ‘Jalsa-e-Aam’. Before this verification seven days advance notice should be given to the villagers that an inquiry is to who were in cultivating possession of the resumed land during Kharif 1971` and Rabi 1971-72 would be made by the Revenue Officer/Assistant Commissioner on the date to be indicated in the notice and that objections would be invited from person disputing the entitlement of the tenants claiming allotment.

To answer a question with regard to “joint tenancies”, through Letter No. DSL-1186072/6227-LC(II) dated 27.11.1972 observed that a question has also arisen whether in case of joint tenancies the tenants should be allotted the land jointly or individually. According to the provisions of paragraph 18(1) and (2), the land resumed is to be granted free of charges to the tenants who are shown in the revenue records to be in cultivating possession of it in Kharif 1971 and Rabi 1971-72 and declared that the names of all the tenants should be shown together in the allotment order along with their respective shares.

1. From careful study of paragraph 18(1) and (2) of the MLR-115 of 1972, the rules framed thereunder, Statement of Terms and Condition, the Notifications and Instructions issued through letters from time to time, it appears that a special procedure was prescribed for grant of resumed/surrender land free of cost to the landless tenants. The tenant who required such grant had to apply through application duly verified and supported by a declaration given in the Form No. LR-XI. Said Form should be accompanied a certificate that the information is accurate and complete in all respects. If tenant fails to provide the required information or willfully furnishes incomplete or false declaration then he was liable to action under paragraph 30 of MLR-115 of 1972. It was also Standing Instructions to the concerned Patwari to provide information through preparing Statement LR-XIV showing the names and full particulars of the tenants in cultivating possession during the harvest and through statement LR-XV showing particulars of land which was not in cultivating possession of a tenant. Said statements were required to be verified by the concerned Revenue Officer and the Assistant Commissioner. Through an inquiry in a Jalsa-e-Aam held in the concerned estates by giving notices to the villagers that an inquiry as to who were in cultivating possession of the resumed land during Kharif 1971 and Rabi 1971-72 and inviting the objections from persons disputing the entitlement of the tenant claiming allotment scrutinized the claim of a tenant. In case of any dispute to ascertain the actual cultivating possession, then Canal Girdwari and Khatoni can also be checked and compared for verification. The Revenue Officer was also bound to ensure that the entries in LR-XVI and LR-XVII were fully corroborated with the entries in the Khasra Girdwari for the relevant period. In case of joint tenancies, the resumed land was to be allotted in the names of all the tenants according to their shares. It was not necessary that the tenant was actually cultivating the land. If he was shown cultivating possession in the revenue record then he was entitled for allotment. Right of appeal, revision and review was also available to the aggrieved party.

2. When case of the plaintiffs is examined in the light of procedure for allotment as discussed above, it is found that neither they applied for allotment through submitting application supported by declaration Form LR-XI nor raised any objections at the relevant time with regard to wrong entries of Khasra Girdwari in the name of Defendant No. 1. Their stance that they are in joint cultivating possession of the suit property is not verified from the Khasra Girdwari. If there were joint tenancies then the suit property should have been allotted to all of them according to the shares in their possession. The criteria for grant of resumed land under para 18(1) is not actual cultivation but cultivating possession of the land shown in the revenue records for Kharif 1971 and Rabi 1971-72 is enough for allotment. A tenant in cultivating possession of resumed land during these two harvests would be entitled to its allotment even though it may not have actually been cultivated during these harvests. But plaintiffs failed to prove that they were in cultivating possession in the revenue records for Kharif 1971 and Rabi 1971-72.

3. The plaintiffs’ allegation that Defendant No. 1 manipulated the Register Girdwari by interpolating his name in the crucial crops with the help and connivance of the revenue officials is concerned, it is suffice to say that a procedure for preparing the Register Girdawri is prescribed in the Land Revenue Rules, 1968 and in Chapter 9 of the Land Record Manual.

Rule 39 of the Land Revenue Rules, 1968 describes that for each estate a crop inspection register (Girdawari) shall be maintained, in Form XXIV and similarly for each estate a register of changes in cultivation, possession and rent to be known as the “Register Taghayyurat-e-Kasht” shall also be maintained by the Patwari in Form XXIV-A in which he will enter such harvest-wise changes as are not disputed and will incorporate the same in the “Register Girdawari” after due checking and attestation thereof by the Field Kannugo and the Circle Revenue Officer. The inspection of each harvest shall commence, as follow:-

Kharif 1st October

Rabi 1st March

The crops will be entered in the Register Girdawari as the inspection proceeds. The changes in rights, rents and possession will be noted in the appropriate column. To prevent any error, the Patwari enter his diary a list of all field numbers in which any change of cultivating occupying or rent has occurred and place this list before the field Kannugo at his next visit for verification. Similarly in the Register Taghayyurat-e-Kasht he will enter harvest-wise all changes of cultivating possession, rent, etc. which are undisputed. Whenever a Patwari has to alter an entry once made in the Register Girdawari, he must enter it in his diary but no such alteration should be made after the ‘Dhal Bachh’ of the harvest have been drawn up or corrected except with the sanction of the Collector which may be given for the correction of clerical or patent mistakes only. The field Kannugo is bound to inspect the Patwari’s diary and he should check the alterations which have been made in the Register very carefully. Said entries of Register Girdawari would be enter in the Register Haqdarana Zamin. If at the time of preparation of the Register Haqdaran Zamin an entry in the Register Girdawari is found to be incorrect, it will nevertheless be retained unaltered, but the correct entry will be noted in red ink and will be attested by the Kannugo.

The Patwari will bring ther Register Haqdaran Zamin to the Tehsil at the beginning of September alongwith Register Girdawari, work books consisting of counterfoils and notes of inspection in his possession that are more than twelve years old. These papers except Register Haqdaran Zamin will be destroyed at once by the office Kannugo (Para No. 3.99 of Land Record Manual).

A proper procedure is provided for maintaining and preparing the Register Girdawari. The concerned Patwari is bound to enter the Girdawari after inspection. Any change in the existing Girdawari is also entered in a separate Register and duly verified. Said entries of Register Girdawari are entered in the Register Haqdaran Zamin and after preparation of the Register Haqdarana Zamin, the Register Girdawari will be destroyed after twelve years. The plaintiffs challenged the entries of Register Girdawari of the years 1971-72 through instituting the suit in the year 1996. The plaintiffs challenged said entries after 25 years when the relevant record had already been destroyed.

1. From scanning of evidence, it appears that initially plaintiffs produced Anwar Masih as PW-1, Muhammad Din as PW-2 and Muhammad Ibrahim as PW-3. Said witnesses during cross-examination admitted that property was allotted to whom in whose name girdwari had existed. PW-2 admitted it correct that management of Anjuman Ahmadia used to live in their village and tenancy was settled through its Manager. He further deposed that his father also got the tenancy from the said Manager and admitted it correct that office of the Anjuman situated in their village. He also admitted that suit property was allotted by Deputy Commissioner in an open assembly. After settlement of fresh issues, the petitioners produced Muhammad Anwar from the office of Kanungo as PW-1. He brought himself record of mutation No. 317 and during cross-examination maintained that in the column of ownership name of Provincial Government through Land Commissioner Lahore is existed and in the column of cultivation name of Ghulam Ali is incorporated. One of the plaintiffs, namely, Ashiq Ali got recorded his statement as PW-2 on 29.08.2002. He narrated the same facts as pleaded in the plaint. He deposed that his father was died in the year 1968. He maintained that Defendant No. 1 got entered the property in his name which was not in their knowledge. Muhammad Ibrahim again got recorded his statement as PW-3 on 29.08.2002. During cross-examination he deposed that he was present at the time of allotment. Further deposed that Deputy Commissioner and Assistant Commissioner made the allotment. Abdul Aziz got recorded his statement as PW-4 and maintained that at the time of allotment all the brothers were present. He deposed that the property which was in the name of his father was allotted to him and thereafter inherited to all legal heirs. During cross-examination he maintained that at the time of allotment, all the tenants were called up and Parwari placed the ‘Chant’ before Assistant Commissioner and land was allotted to those tenants who were deserving. He further deposed that land was allotted to those persons who were in possession of land as tenants. Mehboob Alam, Land Reforms Clerk, appeared as PW-5 and produced allotment record as Exh.P-1. Muhammad Ismail Patwari Halqa got recorded his statement as PW-6 on 14.11.2002. He deposed that according to the Jamabandi Zearkar owner of the land is Ghulam Ali son of Ghulam Muhammad and land was allotted to him under Land Reform. He brought Khasra-Girdwari for the year 1969. He deposed that Girdwari for the crop Kharif 1969 is in the name of Ghulam Ali whereas Girdwari for Rabi 1969 is in the name of Ghulam Ali’s father namely Ghulam Muhammad son of Mehar Din. He adds that there is no entry with regard to change of Girdwari. He further deposed that Girdawari is in the name of cultivators. After remand, Niaz Ali one of the plaintiffs appeared as PW-7. During cross-examination he admitted it correct that when his father was died in the year 1968 he was approximately at the age of 15 years. His brother Ashiq Ali is 1 ½ year elder from him whereas his brother Ghafoor is two year younger from him. Abdul Ghafoor one of the plaintiffs appeared as PW-8. During cross-examination he admitted it correct that his date of birth, according to Identity Card, is 01.01.1959. It means that he was only nine year old when his father was died in the year 1968. From said deposition it appears that all the plaintiffs were minors when their father was died. Said fact creates doubts that after the death of their father how tenancy was devolved to all brothers and they were cultivating the land jointly. Plaintiffs produced allotment order as Exh.P-1. Perusal of said allotment order it appears that it was executed on Form L.R.XVI/L.R.XVII. In column No. 1 with regard to name of tenant, parentage etc, name of Ghulam Ali (Defendant No. 1) son of Ghulam Muhammad was incorporated and in column No. 2 Ahmadia Anjuman Ishaat Islam was mentioned. In Column No. 20 it was reported that the record was perused and according to girdwari Ghulam Ali is found tenant from 71 to 72 and after verification in an open assembly (Jalsa-e-Aam) by the Assistant Commissioner declared him eligible. It was also mentioned that he is a landless, allotted land is equal to subsisting holding and no one raised any objection. In the light of said report suit property was allotted through order dated 15.07.1974. Thumb impression of grantee namely Ghulam Ali was available in column No. 21. In the light of said allotment order Mutation No. 317 was sanctioned on 25.04.1989 (Exh.P-2). Copy of khasra Girdwari from Kharif 1995 was brought on record as Exh.P-3. In the said khasra girdwari Ghulam Ali was entered in the column of ownership and name of Ashiq Ali is in the column of tenancy.

Copy of record of rights for the year 1974 was produced as Exh.P-4. In column No. 3 with regard to owner, the name of Provincial Government through Land Commissioner Punjab Lahore is entered whereas in column No. 4 with regard to name of cultivator, Ghulam Ali son of Ghulam Muhammad caste Rajput Bhatti Grantee (Attia-Dar) under para No. 18(1) Martial Law Regulation No. 115 resident of Deh cultivating jointly with Ashiq Ali, Niaz Ali, Abdul Ghafoor equal in share sons of Ghulam Muhammad caste Rajput Bhatti, tenants at will is incorporated. Said entry in verbatim is reproduced as under:

غلام علی ولد غلام محمد قوم راجپوت بھٹی عطیہ دار زیر پیرا (1-18) مار شل لا ریگولیشن نمبر 115 ساکن دیہہ کاشت بشراکت عاشق علی، نیاز علی، عبدالغفور بحصہ برابر پسران غلام محمد قوم راجپوت بھٹی مزارعان تابع مرضی ساکنان دیہہ"

Said record of rights is prepared first time after resumption and allotment of land. Although the suit property was already allotted through allotment order dated 15.07.1974 but as the mutation in this regard had not been attested, therefore, Provincial Government was shown as owner and Ghulam Ali grantee in the column of cultivation as “Attia Dar”. It was pointed out that name of the plaintiffs are also mentioned in the said column but their names were mentioned as tenants at will meaning thereby they were tenants of “Atti-Dar” namely Ghulam Ali. They were not shown tenants under Anjuman Ahmadia Ishaat Islam from whom the suit property was resumed.

The petitioners produced copy of application with reports as Exh.P-5. Said documents cannot be considered as the order passed on the basis of said reports was subsequently set aside by the higher forum and maintained upto the Board of Revenue. The suit challenging said order was dismissed and said dismissal of suit was maintained by this Court. The plaintiffs produced copy of Khasra Girdwari from Kharif 1968 to onwards as Exh.P-6. Said Khasra Girdwari was prepared in the light of order dated 22.07.2008 passed by

District Officer Revenue, Okara. Said order was subsequently set aside vide order dated 28.06.2004 and maintained by Member Board of Revenue vide order dated 19.12.2007 (Exh.D-2), therefore, entries of said Khasra Girdwari are not helpful to the plaintiffs’ case.

Defendant No. 1 got recorded his statement as DW-1 and produced copies of the Khasra Girdwari as Exh.D-1 and after remand produced order of the Member Board of Revenue dated 19.12.2007 as Exh.D-2. DW-1 in his statement deposed that he was tenant of Anjuman Ahmadia; that land was allotted on the basis of Girdwari for the years 1971-72; that land was allotted after scrutiny; that the plaintiffs were minors at the time of death of their father. During cross-examination he deposed that girdwari was made in his name by the Anjuman Ahmadia itself; that they ousted the person who was not tenant; that beside the years 1971-72, the girdwari was already in his name; that after allotment the girdwari was remained only in his name; that all that time plaintiffs did not cultivate the land; that plaintiffs were his tenants rather tenants of Ahmadia Farm; that allotment was made in an open assembly. He denied the suggestion that they all brothers cultivated the land along with their father. He stated it incorrect that plaintiffs were cultivating the land from the life time of his father. He also denied the suggestion that their father partitioned the land in his life time. Plaintiffs were failed to shatter the evidence of Defendant No. 1 despite lengthy cross-examination.

1. The epitome of above discussion is that the plaintiffs did not succeed to prove their stance through available evidence. Learned counsel for the petitioners failed to point out any illegality, irregularity, mis-reading, non-reading of evidence or jurisdictional defect in the impugned judgment and decree of the learned appellate Court which require interference by this Court in exercise of its revisional jurisdiction under Section 115, CPC.

2. As a consequence of above, this civil revision has no force and the same is dismissed in limine.

(Y.A.) Civil revision dismissed

PLJ 2024 Lahore 550 [Bahawalpur Bench, Bahawalpur]

Present: Ahmad Nadeem Arshad, J.

PROVINCE OF PUNJAB, etc.--Petitioners

versus

MUHAMMAD YOUSAF--Respondent

C.R. No. 414-D of 2012, heard on 19.3.2024.

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

----S. 42--Allotment of land on lease--Temporary cultivation scheme--Non-payment of rent--Resuming of lease--Appeal--Dismissed--Dismissal of revision--Review petition--Accepted--Locus poetentiae--Jurisdiction--Ostensible exercise of power--No power of second review--Collector was required to independently apply his mind and decide to impose a penalty or order resumption of tenancy, but Collector had failed to perform both statutory obligations and directly proceeded to resume said lot--Therefore, basic resumption order was not in accordance with law--The suit property was allotted by Competent Authority after due verification of its status through revenue officials--There was no cavil with proposition that land falling within prohibited zone was immune from allotment under any scheme--Said allotment could not be cancelled--Under principle of locus potentiae, petitioners were not justified to act in complained manner to cancel land of respondent--The petitioners failed to bring on record any evidence to establish that at time of allotment or at time of resumption land was falling within a prohibited zone--The Board of Revenue exceeded its jurisdiction by passing orders in question in an ostensible exercise of power of review to vest in it--No power to review an order passed on a review petition by Board of Revenue was available--No power of second review was available under law, exercise of any such jurisdiction was without lawful authority and non-est--Petition dismissed.

[Pp. 555 & 557] A, B, C, D & E

1994 SCMR 975, 2012 SCMR 1007, 2008 CLC 825, 2022 MLD 1129 and 2006 YLR 2084 ref.

Review--

----It is well-settled that right of review is a substantive right and is always a creation of relevant statute on subject--The power of review being a statutory remedy cannot be assumed by an authority in absence of a clear-cut provision in this regard--Similarly, a second review does not exist if not created or granted by a statute--After final disposal of first application for review, no subsequent review including “curative review” shall lie. [P. 558] F

2022 SCMR 1592 ref.

Mr. Zafar Iqbal Awan, Addl. Advocate General for Petitioners.

Mr. Muhammad Asif Mahmood Pirzada, Advocate for Respondent No. 1.

Date of hearing: 19.3.2024.

Judgment

Through this Civil Revision filed u/S. 115 of Code of Civil Procedure, 1908, petitioners (Province of the Punjab, etc.) assailed the validity and legality of judgment & decree dated 18.04.2012 whereby the learned Appellate Court while accepting the appeal of the respondent set-aside the judgment & decree dated 15.07.2011 passed by the learned Trial Court and decreed his suit.

1. Relevant facts forming the background of this petition are that respondent/plaintiff instituted a suit for declaration on 11.04.2003 and sought declaration that he being lessee of state land from Rabi 1970 to Kharif 1979 under ten years temporary cultivation scheme through order of Collector dated 18.11.1969 and on the basis of review order passed by Member, Board of Revenue dated 05.07.1995 is entitled to get the suit property measuring 48 Kanals, 15 Marlas on the market rate along with 10% surcharges in 10 equal installments and challenged the orders dated 24.12.2001 and 21.09.2002 passed by Petitioner No. 2 (defendant No. 2 i.e. Member (Judicial) Board of Revenue, Punjab, Lahore) whereby he while using the power of second review set-aside the order of review of his predecessor dated 05.07.1995. The respondent (plaintiff) namely Muhammad Yousaf in his plaint maintained that he was allotted land by the Collector vide order dated 18.11.1969 for 10 years temporary cultivation scheme from Rabi 1970 to Kharif 1979; that Senior Member (Colonies), Board of Revenue vide order dated 05.07.1995 while reviewing its earlier order dated 26.02.1980 declared that he is entitled to purchase land measuring 48 Kanals, 15 Marlas under his possession on payment of the market price plus 10% surcharge, payable in 10 equal half yearly installments; that Petitioner No. 2 reviewed said order through order dated 24.12.2001 and subsequently vide order dated 21.09.2002 modified the order dated 24.12.2001; that suit property is under his possession since allotment and prayed that he be allowed to make payment of the suit property with 10% surcharge in 10 equal installments and proprietary rights be given to him.

2. Petitioners (defendants) resisted the suit through filing contesting written statement whereby they raised certain preliminary objections that plaintiff’s suit is not maintainable in its present form; that under Section 36 of the Colonization of Government Lands Act, 1912 the Civil Court has no jurisdiction to entertain the suit; that the plaintiff earlier instituted a suit with regard to the suit property and during the pendency of said suit, second suit is not proceedable; that the impugned orders were passed in accordance with law which have attained finality; that the suit property belongs to provincial government and situated within the prohibited zone which cannot be allotted; that the suit property was cancelled vide order dated 17.01.1978 due to non-fulfillment of the conditions and appeal against it was dismissed on 02.07.1979 and revision against said orders also met the same fate vide order dated 26.02.1980, therefore, the review filed against said order after lapse of 15 years was not maintainable and the said order of review dated 05.07.1995 had rightly been reviewed vide order dated 24.12.2001. While replying on facts, they refuted all the averments made in the plaint and prayed for the dismissal of the suit. Learned Trial Court, keeping in view divergent pleadings of the parties, framed necessary issues and invited them to produce their respective evidence. After recording evidence of the parties pro & contra, oral as well as documentary, dismissed the suit vide judgment & decree dated 15.07.2011. Feeling aggrieved, the respondent preferred an appeal which was allowed vide judgment & decree dated 18.04.2012 and as a consequence thereof judgment & decree of the learned Trial Court was set-aside and the suit was decreed. Being dissatisfied, petitioners approached this Court through instant Civil Revision.

3. I have heard learned counsel for the parties at length and perused the record with their able assistance.

4. It evinces from the record that the respondent Muhammad Yousaf appeared in the witness box as P.W.1 and produced Ghulam Mujtaba and Khadim Hussain as P.W.2 and P.W.3. He produced 13 documents as Exh.P.1 to Exh.P.13 and photocopies of four documents as Mark-A to Mark-D. In rebuttal, petitioners produced Fazal Mahmood concerned Patwari as D.W.1 but they did not produce any documentary evidence.

5. The respondent produced allotment order dated 18.11.1969 as Exh.P.1. Perusal of said document, it appears that Lot No. 35 consisting of 23 Acres, 02 Kanals & 01 Marla was allotted to the respondent on lease under temporary cultivation scheme for a period of 10 years from Rabi 1970 to Kharif 1979. District Collector resumed the said Lot vide order dated 17.01.1978 merely on the ground that the respondent/allottee failed to pay the rent. The respondent assailed said order of resumption before the Additional Commissioner (Revenue), Bahawalpur, who dismissed his appeal on 02.07.1979 by maintaining that the suit land was situated within the municipal limits of Municipal Committee, Hasilpur. The respondent challenged said orders through revision of revision (ROR No. 2114/1978-79) before the Member (Colonies), Board of Revenue, Punjab, who dismissed his revision vide order dated 26.02.1980 on the ground that the whole land except Khasra No. 328/6 stood transferred to the Municipal Committee and therefore Collector was not competent to grant its lease to the respondent. The orders dated 17.01.1978, 02.07.1979 and 26.02.1980 were not brought on record. Being dissatisfied, the respondent filed a review petition (Review Petition No. 216/1995). Said Review Petition was accepted by the Member (Colonies), Board of Revenue, Punjab, vide order dated 05.07.1995 (Exh.P.10) in the following terms:

“In this case, the petitioner has requested that 48 Kanals, 15 Marlas of rectangle No. 328/6 which is still in his possession and is situated within prohibited zone, may be allowed to him at market price. As the petitioner has not so far been ousted from the land in dispute, I, therefore, keeping in view long affiliation of the petitioner with the said land which remained under his lease allow him to purchase the same land i.e. 48 Kanals, 15 Marlas on payment of market price plus 10% surcharge, payable in 10 equal half yearly installments.”

1. The respondent approached the District Collector for the implementation of said order. The Settlement Officer/District Collector Bahawalpur through letter No. HVC/60 dated 17.01.1996 moved the review of the said order dated 05.07.1995 on the grounds that there is no policy with regard to the sale of the state land. Member (Judicial-IV), Board of Revenue, Punjab, Lahore (Petitioner No. 2) vide order dated 24.12.2001 (Exh.P.12) reviewed the order dated 05.07.1995 by declaring it unlawful and void. Subsequently, the District Officer (Revenue), Bahawalpur moved a letter dated 17.06.2002 (Exh.P.11) and sought review of the order dated 24.12.2001 with the contention that the review order dated 24.12.2001 was passed in the review petition of the respondent instead of the review petition filed by the District Collector and prayed that title of the case may be read as “The State through Deputy Commissioner Bahawalpur (petitioner) Versus Muhammad Yousaf (respondent)”. Member (Judicial-IV) in the light of said letter amended the order dated 24.12.2001 vide order dated 21.09.2002 (Exh.P.13) as under:

“State through the District Collector Bahawalpur (petitioner) versus Muhammad Yousaf s/o Abdul Razzaq (respondent).”

1. Perusal of Mark-A “C. Form No. 12” (Prescribed in Paragraph No. 19) Ledger for Temporary Cultivation Scheme, the respondent deposited the rent till 15.10.1976 but failed to deposit the rent for the year 1977, therefore, his tenancy was resumed for non-deposit of rent of one year. Provision of Section 24 of the Colonization of Government Lands Act, 1912 provided that whenever a breach of condition of tenancy had been committed by the tenant, Collector could either impose a penalty or order resumption of tenancy, but where the breach was capable of rectification, neither of the two measures could be taken before calling upon tenants to rectify the said breach within a reasonable period. Failure to do so within said time, the Collector was required to independently apply his mind and decide to impose a penalty or order resumption of tenancy, but the Collector had failed to perform both statutory obligations and directly proceeded to resume the said lot. Therefore, the basic resumption order was not in accordance with the law.

2. The respondent assailed the said order by preferring an appeal, the Additional Commissioner, while deciding the appeal should have seen the validity of said order under attack but he while dismissing the appeal upheld the resumption order on another ground that the suit land was situated within the municipal limits of Municipal Committee, Hasilpur. The Board of Revenue maintained the said order while dismissing the respondent’s revision petition.

3. Now the question arises whether the Additional Commissioner and Member, Board of Revenue could resume the land on the ground that the suit land had come within the prohibited zone. There is nothing on the record to show that at the time of allotment in favour of the respondent, the suit property was falling within the prohibitory zone. The suit property was allotted by the Competent Authority after due verification of its status through revenue officials. There is no cavil with the proposition that land falling within the prohibited zone is immune from allotment under any scheme. Said allotment could not be cancelled, because once the land was made available for allotment, it was transferred and settled on the respondent, it would supersede all the notifications imposing such prohibitions. Under the law, the presumption is that acts done by the statutory functionaries were done in good faith and in a lawful manner, according to law applicable at that time. Under the principle of locus potentiae, the petitioners were not justified to act in the complained manner to cancel the land of the respondent. The question as to whether a piece of land falls within a prohibited zone is to be determined from the date of allotment and not from the time of grant of proprietary rights. The petitioners failed to bring on record any evidence to establish that at the time of allotment or at the time of resumption the land was falling within a prohibited zone. The Hon’ble Supreme Court of Pakistan in a case titled “Province of Punjab through District Collector v. Ghulam Muhammad” (1994 SCMR 975) while dealing with a similar proposition observed as under:

“2. The respondent/tenant had been allotted land on temporary cultivation scheme which had to be resumed and thereafter he was settled on alternate land. When the question of conferment of proprietary rights to such tenant arose, the respondent was held not entitled to it on the ground that his allotted land fell within the prohibited zone and secondly it was excluded from allotment on the basis of being a part of ‘KHUSK BIAS’ river. On both these points the instructions of the Board of Revenue existed. As regards the prohibited zone, the instructions were that the distance should be measured as required when the allotment was made and not as when the proprietary rights were conferred. On this test, the allotment of the respondent was beyond three miles limits then applicable to him when he got the allotment but within five miles i.e., with the limits when he was to be given proprietary rights …..” (emphasis provided).

In another case titled “Province of Punjab through Secretary Colonies, Board of Revenue and others v. Ch. Abdul Sattar” (2012 SCMR 1007), august Supreme Court observed as under:

“Having considered the submissions made and the law declared, we find that admittedly when the land was allotted to Abdul Rehman, the same did not fall within the prohibited zone and therefore would not be hit by a subsequent notification to which reference has been made above.”

This Court also followed this dictum in the cases titled “Muhammad Akhtar v. Senior Member, Board of Revenue, Punjab, Lahore and another” (2008 CLC 825), “Muhammad Akhtar v. Senior Member Board of Revenue and another” (2011 MLD 589), “Province of Punjab through District Collector, Vehari v. Niaz Ali and 4 others” (2011 MLD 1149) and Muhammad Farooq and others v. Member (Judicial-II) Board of Revenue, Punjab, Lahore and others” (2022 MLD 1129).

1. The Member (Colonies), Board of Revenue, Punjab, keeping in view the facts & circumstances of the case reviewed his earlier order dated 26.02.1980 vide order dated 05.07.1995 and allowed the respondent to purchase the land under his possession measuring 48 Kanals, 15 Marlas out of total allotted land on payment of the market price plus 10% surcharge, payable in ten equal half yearly installments.

12. Said order of review was subsequently further reviewed by the Member (Colonies)vide order dated 24.12.2001 and 21.09.2002. Now the question arises, whether a second review was permissible and whether the Member, Board of Revenue was empowered to review the order of his predecessor? Under Section 08 of the West Pakistan Board of Revenue Act (XI of 1957), the power of review was available which was exercised by Board of Revenue while passing the order in the first review. Further review of the order passed in review could not have been done by the Board of Revenue in the absence of any such power to vest in the Board by law. The Board of Revenue exceeded its jurisdiction by passing orders in question in an ostensible exercise of the power of review to vest in it. No power to review an order passed on a review petition by the Board of Revenue was available. As no power of second review was available under the law, the exercise of any such jurisdiction was without lawful authority and non-est. In this regard guidance is sought from the case titled “Allah Wasaya v. Member (Conlonies), Board of Revenue, Punjab, Lahore”(2006 YLR 2084), wherein it was observed as under:

“8. There is no provision in the West Pakistan Board of Revenue Act for filing a second review petition. This legal question of maintainability of second review petition by the Board of Revenue has already been dealt with by the superior Courts. Careful analysis of the provisions of Section 8 (supra) leads to a conclusion that power of review can be exercised by the Board of Revenue, only upon an application filed by a person who considers himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed and the order was made. The Board has no power of suo motu review. In this context reliance can be placed to the case of Umar Din and others v. Member (Colonies), Board of Revenue and others (1984 CLC 17).

1. The power of entertaining second review application is neither contained in the West Pakistan Board of Revenue Act nor in the Civil Procedure Code as contained in rule 9 of Order XLVII (supra). In case of Muhammad Shafi v. The Member (Colonies), Board of Revenue and 2 others (1995 CLC 966), it has been observed that after dismissal of first review application, second review application on the same grounds and against the same order could neither be entertained nor adjudicated---Although there was no express prohibition for second review in West Pakistan Board of Revenue Act, 1957, yet the Act did not either expressly or impliedly exclude general principle of res judicata and rule of finality of judgment---Except for clerical or arithmetical mistakes or accidental slips or omissions in the decision which every Court, Tribunal or Authority has inherit powers to correct second application for review after the decision of first on its merits could not be competently instituted.”

2. It is well-settled that the right of review is a substantive right and is always a creation of the relevant statute on the subject. The power of review being a statutory remedy cannot be assumed by an authority in the absence of a clear-cut provision in this regard. Similarly, a second review does not exist if not created or granted by a statute. After the final disposal of the first application for review, no subsequent review including the “curative review” shall lie. The august Supreme Court of Pakistan while dealing with the proposition of second review in a case titled “Yar Muhammad and others v. Mst. Sameena Tayab and others” (2022 SCMR 1592) observed as under:

“The most important legal aspect of the case is that review petition of the petitioners before the Member (Judicial-II), Board of Revenue, Punjab was allowed vide order dated 14.07.1998 whereas transfer in the names of alleged Islamabad Oustees and the subsequent sale in the name of Respondent No. 1 was made on 31.07.1998. Respondent No. 1, after sale in her favour, challenged the order of review dated 14.07.1998 in favour of petitioners by way of yet another review petition whereas petitioners had filed an application under Section 30 of the Colonization of Government Lands (Punjab) Act, 1912 for cancellation of conveyance deed in favour of Respondents Nos. 4 to 7. Though the said review petition of Respondent No. 1 was dismissed on merits on 29.09.1999 but the question would be that how a review petition was entertained and considered against an order of review. Legally 2nd review petition was not competent and was unlawfully and illegally entertained which under the law should have been dismissed on its very inception and there was no need to discuss the merits of the case once again.”

1. The learned Appellate Court, keeping in view the facts & circumstances of the case as well as evidence available on the record, allowed the appeal of the respondent and decreed his suit. Learned Addl. Advocate General representing the petitioners remained unable to point out any illegality, irregularity or jurisdictional defect in the impugned judgment & decree of the Appellate Court.

2. For the foregoing reasons, this petition is dismissed being devoid of force/substance.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 559 (DB)

Present: Shahid Bilal Hassan and Masud Abid Naqvi, JJ.

IQBAL HUSSAIN etc.--Appellants

versus

GOVERNMENT OF THE PUNJAB etc.--Respondents

R.F.A. No. 10887 of 2021, heard on 19.3.2024.

Land Acquisition Act, 1894 (I of 1894)--

----S. 4--Acquisition of land--Announcement of award--Filing of reference petition--Dismissed--Assessment of value of land--Acquired land was situated in river bed-Legal obligation of petitioners--Appellants were failed to prove claim--Hearsay evidence--Plea of enhancement--Appellants were under legal obligation to prove their claim of inadequate assessment of acquired land and potential value of land through corroborative and unimpeachable oral and documentary evidence but neither of them deposed in their examination in chief any contemporary sale transaction of adjacent land nor exhibited any documentary evidence--The appellants miserably failed to prove their claim and mere claim of appellant without supportive evidence would be inconsequential--All PWs had no personal knowledge about proceedings of acquisition of land and just deposed hearsay evidence--The appellants were legally bound to produce tangible evidence in support of their plea of enhancement and they not only failed to discharge their burden but appellants also badly failed to substantiate their point of view--Referee Court had thoroughly appreciated material evidence placed on record while deciding reference, keeping in view price of adjacent land, market value of land acquired, its future potential value and prospective use of land--Neither any misreading or non-reading of evidence by learned referee Court had been pointed out--Appeal dismissed.

[Pp. 561 & 562] A, B, C, G & H

2023 SCMR 1005 and PLD 2014 SC 696 ref. PLD 2002 SC 84.

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

----Arts. 46, 64 & 71--Basic requirement--Duty of Court--It is basic requirement that oral evidence must, in all cases whatsoever, be direct--The use of word “must” in Article imposes a duty on Court to exclude all Oral evidence which is not “direct” and hearsay evidence is not admissible subject to certain exceptions provided in Articles 46 & 64 Qanun-e-Shahadat Order, 1984. [P. 562] D

2007 SCMR 957 ref.

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

----Art. 117--Burden of proof--If a person asserts his legal rights or liability depending upon existence of certain facts, he has to prove those facts and to discharge burden of proof under Article 117 of Qanun-e-Shahadat Order, 1984. [P. 562] E

PLD 2002 SC 84.

Words and Phrases--

----Onus probandi--If no evidence is produced by a person on whom burden lies then such issue must be decided against him. [P. 562] F

Raja Abdul Rehman, Advocate for Appellants.

Mr. Tahrim Iqbal Butt, Assistant Advocate General, Govt. of Punjab for Respondents.

Date of hearing: 19.3.2024.

Judgment

Masud Abid Naqvi, J.--Brief facts necessary for the adjudication of this appeal are that the Respondents No. 1 & 2 acquired a land measuring 28 Kanal 2 Marla owned by the appellants for construction of second new Ravi Bridge commonly known as Saggian Ravi Bridge, Lahore by issuing notifications under Land Acquisition Act, 1894 in years 1993-1994. Thereafter, Award was announced by assessing the value of land of appellants which was/is situated in the river-bed @ Rs. 1062 per Marla. Reference Petition was instituted by the appellants and keeping in view the pleadings of the parties, the issues were framed by learned referee Court and thereafter parties produced their respective oral & documentary evidence in support of their respective contentions and learned referee Court vide judgment dated 18.12.2020 dismissed the reference petition and upheld the award dated 19.08.2004. Feeling aggrieved by the judgment dated 18.12.2020, the appellants filed instant regular first appeal.

1. It has been contended on behalf of the appellants that the acquired land has been under-valued by the respondents and the price of the adjacent lands is much more than the compensation assessed. The value of the acquired land is not less than Rs. 65,000/- per marla. In support of their contentions, the appellants produced Sameer Ashfaq/PW-1, Muhammad Abu Bakar Malik/PW-2 and Ch. Muhammad Yaqoob/PW-3 and exhibited copy of inheritance mutation No. 6406/Ex.P-2, attested copy of Fard Malkiat/Ex.P-3 & copies of RFA & Order as Ex.P-4 & Ex.P-5. Conversely, it has been argued on behalf of the respondents by the Learned Assistant Advocate General that before announcing the award, proper procedure was followed and correctly assessed the value of appellants’ acquired land by the authorities which is admittedly situated in river bed and was not under the use & even same was not actually occupied by the appellants and none of other persons challenged the acquisition proceedings whose land(s) were also acquired. In support of their contentions, the respondents produced Land Collector Officer/DW-1.

2. We have heard the arguments of learned counsels for the parties and minutely gone through the record as well as the judgment passed by the learned referee Court.

3. Onus to prove issue No. 2 & 3 lies on the appellants and in order to prove that the assessment of compensation of acquired land is grossly inadequate by ignoring the potential value of land and the appellants are entitled for enhanced compensation, the appellants produced Sameer Ashfaq/PW-1, Muhammad Abu Bakar Malik/PW-2 and Ch. Muhammad Yaqoob/PW-3. While appearing on behalf of appellants, the PWs admitted in their respective cross-examination that land of the appellants is river land and adjacent land(s) were also acquired from different persons by the authority but intentionally withheld the information about initiation of any litigation by those persons against acquisition of their land(s) and simply denied any knowledge about the litigation. Appellants were under legal obligation to prove their claim of inadequate assessment of acquired land and potential value of land through corroborative and unimpeachable oral and documentary evidence but neither of them deposed in their examination in chief any contemporary sale transaction of adjacent land nor exhibited any documentary evidence i.e. sale deed or sale mutation. There is no documentary proof/revenue record about the cultivation of acquired land or value of adjacent land(s) situated in river-bed pertaining to years 1993-1994. Hence, the appellants miserably failed to prove/substantiate their claim and mere claim of owners/appellant without supportive evidence would be inconsequential. In a judgment reported as ‘Jind wadda & others v. General Manager NHA (LM & IS), Islamabad and others” (2023 SCMR 1005) the Hon’ble Supreme Court of Pakistan observed that:

“The appellants have failed to produce any independent, trustworthy and credible evidence for their claim qua enhancement of the compensation. The burden of proof in such cases is ‘incumbent’ upon land-owners [see Land Acquisition Collector v. Muhammad Sultan (PLD 2014 SC 696)].

1. All the PWs had no personal knowledge about the proceedings of acquisition of land and just deposed hearsay evidence or expressed their personal opinion which has minimal value until and unless same has been corroborated with other documentary evidence. Under Article 71 of Qanun-e-Shahadat Order, 1984, it is basic requirement that the oral evidence must, in all cases whatsoever, be direct. The use of word “must” in the Article imposes a duty on the Court to exclude all Oral evidence which is not “direct” and hearsay evidence is not admissible subject to certain exceptions provided in Articles 46 & 64 Qanun-e-Shahadat Order, 1984. Reliance is placed on judgment reported as “Abdul Qayyum v. Muhammad Sadiq” (2007 SCMR 957).

2. There is no cavil to the proposition that if a person asserts his legal rights or liability depending upon the existence of certain facts, he has to prove those facts and to discharge the burden of proof under Article 117 of Qanun-e-Shahadat Order, 1984. In view of the meaning of “onus probandi”, if no evidence is produced by a person on whom the burden lies then such issue must be decided against him. The appellants were legally bound to produce tangible evidence in support of their plea of enhancement and they not only failed to discharge their burden but the appellants also badly failed to substantiate their point of view through any authentic, oral as well as documentary evidence and the Honourable Supreme Court of Pakistan in a judgment reported as “Hyderabad Development through M.D Civic center Hyderabad vs. Abdul Majeed and others” (PLD 2002 SC 84) held that:

“However, during hearing of Reference under Section 18 of the Act, judicial proceedings are conducted, therefore, party interested in enhancement of the compensation owes a duty to discharge the burden by producing convincing evidence.” (Land Acquisition Collector v. Muhammad Sultan (PLD 2014 SC 696).

1. From the above detailed discussion, it is quite obvious that learned referee Court has thoroughly appreciated the material evidence placed on record while deciding the reference, keeping in view the price of adjacent land, market value of the land acquired, its future potential value and prospective use of the land. Neither any misreading or non-reading of evidence by learned referee Court has been pointed out, therefore, no interference is needed to be made in the impugned reference, which is in accordance with law, accordingly, this appeal is dismissed being devoid of any merit.

(Y.A.) Appeal dismissed

PLJ 2024 Lahore 563 (DB)

Present: Shahid Bilal Hassan and Masud Abid Naqvi, JJ.

IQBAL HUSSAIN etc.--Appellants

versus

GOVERNMENT OF THE PUNJAB etc.--Respondents

R.F.A. No. 10887 of 2021, decided on 19.3.2024.

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

----O.XLI R. 27--Application for production of additional evidence--Matter was pending in appellate Court--No valid reason--No sufficient cause--Additional evidence can be allowed only where trial Court has improperly refused to admit evidence which ought to have been admitted or appellate Court requires such document or witness and cannot pronounce judgment without such additional evidence or appellate Court requires such evidence for any other substantial cause--The appellants filed instant application seeking permission to place on file notification of 2004 as additional evidence--The request made by applicants was without disclosing any valid reasons or sufficient cause for seeking production of additional evidence at that stage--The case of appellants did not fall within mischief of Rule 27 of CPC. [P. 564] A & B

2016 SCMR 2067 ref.

Raja Abdul Rehman, Advocate for Applicants/Appellants.

Mr. Tahrim Iqbal Butt, Assistant Advocate General, Govt. of Punjab.

Date of hearing: 19.03.2024.

Order

C.M. No. 1-C-2022

The appellants/applicants have filed instant application for production of additional evidence.

1. Order 41 Rule 27 of CPC deals with production of additional evidence in appellate Court which is reproduced hereunder for better understanding:

“Rule 27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the Appellate Court. But if--

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which out to have been admitted, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”

From the perusal of above provisions of law it is quite clear that additional evidence can be allowed only where the trial Court has improperly refused to admit the evidence which ought to have been admitted or the appellate Court requires such document or witness and cannot pronounce judgment without such additional evidence or the appellate Court requires such evidence for any other substantial cause. While discussing the power under Order 41 Rule 27 of CPC, the August Supreme Court of Pakistan in a case reported as Rana Abdul Aleem Khan vs. Idara National Industrial Co-operative Finance Corporation defunct through Chairman Punjab Co-operative Board for Liquidation, Lahore and another (2016 SCMR 2067) held as under:

“the power under the provisions of Order XLI, Rule 27 of the C.P.C. for allowing additional evidence available is not unfettered nor does the Appellate Court has the discretion to allow additional evidence per its own caprice, rather it (discretion) is structured/limited by the factors enunciated in the said provision of law i.e. where the Court from whose decree the appeal has been preferred has refused to admit any evidence which is ought to have admit.”

1. The suit was filed on 23.07.2005 and the same was decided on 18.12.2020. The applicants/appellants have filed instant application seeking permission to place on file the notification of 2004 as additional evidence. The request made by the applicants is without disclosing any valid reasons or sufficient cause for seeking production of additional evidence at this stage. The case of the applicants/ appellants does not fall within the mischief of Rule 27 ibid, hence, this application is dismissed. This order be made part of the judgment of even date passed by this Court in main R.F.A.No. 10887 of 2021.

(Y.A.) Appeal dismissed

PLJ 2024 Lahore 565[Bahawalpur Bench Bahawalpur]

Present: Ahmad Nadeem Arshad, J.

ROZINA AHMED--Petitioner

versus

PROVINCE OF PUNJAB, etc.--Respondents

W.P. No. 1287 of 2023, decided on 13.3.2024.

Constitution of Pakistan, 1973--

----Art. 199--Recruitment for post of ESE--Advertisement--Recruitment committee--Contractual post--Letter of agreement--Verification of degrees--Withdrawal of letter of agreement--Issuance of result cards--Cut off date--Locus poenitentiae--Scrutiny process--Written test--Interview--Provisional result card--The only allegation against petitioner was that she submitted incomplete result card of MCS--In fact, examination result of one subject which was reflected in Final Transcript was yet to be awaited by University at time of issuing Provisional Result Card--This observation gets further support from fact that if petitioner was failed in one of subjects Institution would definitely mention this fact in Final Transcript that petitioner had qualified MCS degree examination in ‘Parts’ whereas no such thing was noted in Final Transcript--Whenever a job application is given by a candidate, same goes through scrutiny process by Department and after short listing only eligible candidates are allowed to appear in Test/Interview--There was nothing on record that prior to issuance of Agreement Letter, any objection qua qualification of petitioner was ever raised by Recruitment Committee--Petitioner had qualified her MCS degree before cut-off date of advertisement--She was simply awaiting her Final Final Transcript and in meanwhile posts of ESE were invited by respondent authorities--Since at relevant time she had not in possession of Final Transcript and cut-off date was going to expire she relied on her Provisional Card already issued by her Institution and applied for post of ESE and then successfully compete same among so many other candidates--Petition allowed. [Pp. 870, 872 & 873] A, B & C

2011 SCMR 1581, 2004 SCMR 303 and 2005 SCMR 85 ref. 2015 SCMR 1418.

Mr. Muhammad Yaseen Ataal, Advocate for Petitioner.

Mr. Zafar Iqbal Awan, Addl. Advocate General for Respondents.

Date of decision: 13.3.2024.

Judgment

Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner Rozina Ahmed has called in question the vires of Orders dated 24.10.2017, 10.01.2019, 01.02.2019 and 09.01.2023 passed by the respondent-authorities.

1. Relevant facts forming background of this writ petition are that the petitioner in response to an Advertisement, got published by the Deputy Commissioner/Chairman District Recruitment Committee, Bahawalpur (Respondent No. 2) in the newspapers, applied for the post of ESE (Sci-Math); that on the strength of her educational certificates duly fulfilled the prescribed criteria for the said post, was appointed as such in BS-9 in Government GPS School, Chak No. 114/DNB, Tehsil Yazman, District Bahawalpur on contract basis through ‘Letter of Agreement’ dated 31st July, 2017; that after fulfilling all codal formalities including verification of academic qualifications, she was allowed to join service; that in response to that letter of agreement petitioner submitted her joining report on 01.08.2017 and started teaching in the said School; that within a short span of time District Education Officer (M-EE), Bahawalpur (Respondent No. 5) withdrew her Letter of Agreement vide Order dated 24.10.2017 on the sole ground that Result Card of MCS issued by the concerned Institution/University was incompatible with the cut-off date of advertisement meaning thereby the petitioner at the time of applying for the aforementioned post was not in possession of degree of MCS, hence, the same was not acceptable according to the terms and conditions contained in the Recruitment Policy 2016-2017; being offended by that order, the petitioner approached this Court through Writ Petition No. 9488 of 2017/BWP which was disposed of vide order dated 24.04.2018 whereby matter was remitted to the Secretary Education (Schools), Government of the Punjab, Lahore (Respondent No. 1) with a direction to consider her petition as ‘Representation’ and decide the same in accordance with law, rules and policy on the subject after granting an opportunity of hearing to the petitioner and others; that in compliance with order of this Court, Respondent No. 1 after considering the submissions of the petitioner and other stake holders dismissed her Representation vide order dated 10.01.2019 with further direction to initiate departmental proceedings against the members of scrutiny committee under PEEDA Act, 2006 for extending undue benefit to the petitioner in violation of the provisions contained under Recruitment Policy 2016-2017; that later on in compliance with order passed by the Secretary Education (Schools), as mentioned above, Respondent No. 5 restored his order dated 24.10.2017 vide fresh order dated 01.02.2019.

2. It is worth mentioning that in another Writ Petition No. 10020/2017 involving the identical proposition of law, was allowed by this Court vide judgment dated 29.01.2019 in which petitioner of the said writ petition was allowed to continue his service on the post. Present petitioner Rozina Ahmed by taking the support of that judgment previously filed W.P No. 1775/2019 before this Court whereby vide order dated 01.06.2022 matter again referred to Respondent No. 1 to re-consider her case in the light of judgment dated 29.01.2019 and pass fresh order after providing proper opportunity of hearing to all concerned without being prejudiced by his earlier order dated 10.01.2019. In compliance with said order, Respondent No. 1 without taking into consideration the law point discussed in the aforementioned judgment again dismissed the Representation of the petitioner vide order dated 09.01.2023. Feeling aggrieved petitioner has challenged the vires of orders dated 24.10.2017, 10.01.2019, 01.02.2019 and 09.01.2023 passed by the respondent authorities through the instant writ petition.

4. Learned counsel for the petitioner in support of his contentions inter alia argued that the petitioner could not have been removed from service as she had obtained degree of MCS much prior to the last date for applying to the post of ESE (Sci-Math); adds that the petitioner was duly selected after going through recruitment process, therefore, could not have been terminated in view of principle laid down in the judgment dated 29.01.2019 with regard to rule of locus poenitentiae in favour of the employees as enunciated by the Hon’ble Supreme Court of Pakistan in a number of judgments. He placed reliance on the cases titled Mst. Basharat Jehan versus Director General, Federal Government Education, FGEI (C/Q) Rawalpindi and others (2015 SCMR 1418), Executive District Officer (Edu), Rawalpindi and others versus Mst. Rizwan Kausar and 4 others (2011 SCMR 1581), Collector of Customs and Central Excise Peshawar and 2 others versus Abdul Waheed and 2 others (2004 SCMR 303) and Muhammad Shoaib and 2 others versus Government of N.W.F.P. through The Collector, D.I. Khan and others (2005 SCMR 85).

1. On the other hand, learned law officer has vehemently opposed the contentions. The bottom line of arguments advanced on behalf of the respondent authorities was that at the time of applying for the post of ESE (Sci-Math) petitioner had not possessed MCS degree. He maintains that under the Recruitment Policy 2016-2017 she was required to file complete application in all respects; he adds that a candidate was required to have prescribed qualifications and or complete the degree before the last date of filing the application; that during the process of verification/scrutiny on a complaint it came to notice that the petitioner did not have the requisite qualification/ degree of MCS at the time of applying for the post of ESE (Sci-Math); that on query the petitioner produced her final Result Card/Final Transcript issued by her Institution/University whereby date of completion was mentioned as 07.04.2017 and date of issuance of the same was 13.04.2017 with variation of marks obtained by the petitioner, therefore, she was not entitled to apply for the said post at the time of advertisement.

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

3. It evinces from the record that after fulfilling all codal formalities including scrutiny process, written examination as well as interview, etc., the petitioner was selected against the post of ESE (Sci-Math) and as a consequence of which she was issued letter of Agreement/Appointment letter dated 31.07.2017. She submitted her joining report on 01.08.2017 and then started working as Teacher in GPS School Chak No. 114/DNB, Yazman. Almost two months later, her appointment letter was withdrawn by Respondent No. 5 through impugned order dated 24.10.2017 on the sole ground that petitioner had passed the MCS Examination after cut-off date of advertisement i.e 07.02.2017 which was not acceptable.

4. Undeniably, at the time of submission of application petitioner annexed Provisional Result Card issued by the Government Sadiq College Women University Bahawalpur on which date of issuance was mentioned as 27.01.2017 relating to academic Session 2014-2016. As per record, cut-off date mentioned in the advertisement was 07.02.2017 meaning thereby that she had passed the MCS degree Examination successfully much prior to the cut-off date. Record further reveals that after passing through the recruitment process, the petitioner was declared as successful candidate by the Recruitment Committee. She was selected/appointed as ESE (Sci-Math) in BS-9 vide Letter of Agreement dated 31.07.2017 and asked to join the duty in compliance with said order she joined her duty as Teacher ESE (Sci-Math) in GPS Yazman. After two months of her joining the duty, she was asked by Respondent No. 5 to produce final Result Card. Petitioner submitted Final Transcript/Result Card. It was containing the date of completion as 07.04.2017 whereas date of issuance was 13.04.2027. The respondent authorities instead of first getting clarification from the concerned University as to whether on 07.02.2017 petitioner had passed the MCS Examination (Sessions 2014-2016) straightaway withdrew her appointment letter vide impugned order dated 24.10.2017 maintaining that the same was issued after the cut-off date mentioned in the advertisement.

5. Admittedly, the Provisional Result Card and Final Transcript pertain to the same MCS Session 2014-2016. It is further observed that in both result cards marks obtained by the petitioner against each subject were same. Even the name of subjects were same in both the Result Cards. The main reason prevailed with respondent authorities for recalling appointment letter of the petitioner was that there was a difference with regard to total marks secured by her in the Provisional Result Card and Final Transcript.

6. In order to proceed further, firstly it is better to understand the meaning of ‘Provisional’. In this respect, guidance has been sought from the renowned dictionaries. The gist of which is reproduced below:-

The Black’s Law Dictionary defines the word ‘ Provisional’ as under:

‘Provisional’: Temporary . 2. Conditional.

PLJ 2024 Lahore 572 (DB) [Multan Bench, Multan]

Present: Muhammad Sajid Mehmood Sethi and Raheel Kamran, JJ.

UNITED BANK LTD.--Appellant

versus

MUHAMMAD AMJAD HAYAT KHAN--Respondent

E.F.A. No. 41 of 2023, heard on 18.4.2024.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLIV of 2001)--

----Ss. 9 & 19(7)--Civil Procedure Code, (V of 1908), Ss. 47/151/152--Application for revisiting of judgment & decree—Dismissed--Customer defaults in discharge of his obligation--Costs of funds—Suit for recovery--Dismissed--Respondent instituted a suit for recovery which was decreed and respondent was held entitled to get Rs.4,73,945.21 from appellant-bank with costs along with cost of funds from date of default till realization--Appellant instituted suit for recovery against respondent, which was dismissed for reason that excess amount belonging to respondent was lying with appellant, which order attained finality entitled to receive profit on amount lying with appellant-bank--Banking Court had committed gross illegality in dismissing appellant’s application--Questions relating to executability of an order or decree could be raised even in execution proceedings--Any decree passed by any Court or forum is void if Court or forum which passed it has no jurisdiction over subject matter--Appeal allowed.

[Pp. 574, 575 & 577] A, B, C, I, J, K

2022 CLC 1296; 2022 SCMR 566; 2005 CLD 122; 2021 CLD 1037; PLD 1961 SC 192; PLD 2001 SC 131; AIR 1991 AP 177 ref.

Cost of Funds--

----Costs of funds is basically cost that a financial institution is entitled to recover from borrower on account of funds which as per terms of ‘Finance’ or law ought to have been in custody of a financial institution. [P. 575] D

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLIV of 2001)--

----S. 3(2)--Default of Customer--Section 3(2) of Ordinance stipulates that where a customer defaults in discharge of his obligation, he is liable to pay for period from date off his default till realization of cost of funds. [P. 575] E

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLIV of 2001)--

----S. 17--Final Decree--Section 17 of Ordinance provides that final decree shall be passed by Banking Court with respect to payment from date of default of amounts. [P. 575] F

Words & Phrases--

----Casus Omissus--Principle of casus omissus--Said principle provides that, where legislature has not provided something in language of law, Court cannot travel beyond its jurisdiction and read something into laws as same would be ultra vires powers available to Court under Constitution and would constitute an order without jurisdiction. [P. 576] G

PLD 2013 SC 279; 2013 SCMR 1062; PLD 2017 SC 105 ref.

Words & Phrases--

----Casus Omissus--Principle of casus omissus--Principle of reading in or ‘casus omissus’ was not to be invoked lightly, rather it was to be used sparingly and only when situation demanded it.

[Pp. 576 & 577] H

2017 SCMR 1427 ref.

Ch. Saleem Akhtar Warraich, Advocate for Appellant.

Syed Tariq-ur-Rehman Hashmi, Advocate for Respondent.

Date of hearing: 18.4.2024.

Judgment

Muhammad Sajid Mehmood Sethi, J.--Through instant appeal, appellant has assailed vires of order dated 02.08.2023, passed by learned Judge Banking Court-I, Multan, Camp at Vehari, whereby appellant’s application under Section 47 read with Sections 151/152, CPC and Section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance (“FIO”), 2001, praying for revisiting of judgment & decree dated 03.03.2020, was dismissed.

1. Brief facts of the case are that respondent instituted a suit for recovery of Rs. 4,73,945.21 against appellant-bank, which was decreed vide judgment & decree dated 03.03.2020 (and respondent was held entitled to get Rs. 4,73,945.21 from appellant-bank with costs along with cost of funds from the date of default till realization, in the following manner:-

“13. In view of my findings on above issues, the suit for recovery is decreed in favour of plaintiff with the direction to the defendant bank to return the amount of Rs. 4,73,945.21 with costs. Plaintiff is further held entitled to realization of cost of funds as certified by State Bank of Pakistan from the period of date of default till realization. Decree sheet be drawn accordingly.”

During execution proceedings, appellant moved application under Section 47 read with Sections 151/152, CPC and Section 19(7) of the FIO, 2001, for revisiting the judgment & decree dated 03.03.2020, to the extent of award of cost of funds to the respondent/customer. Learned Judge Banking Court, after hearing arguments of learned counsel for the parties, proceeded to dismiss the aforesaid application vide order dated 02.08.2023. Hence, instant appeal.

1. Learned counsel for appellant-bank submits that impugned order regarding award of cost of funds is against facts, law and judgments of Hon’ble superior Courts on the subject. He adds that learned Executing Court did not take into consideration the objections raised by the appellant in the objection petition, therefore, impugned order is unsustainable in the eye of law. In support, he has relied upon Ahmad Abbas v. Additional District Judge and others (2022 CLC 1296).

2. Contrarily, learned counsel for respondent defends the impugned order by contending that learned counsel for appellant-bank failed to pinpoint any illegality therein. He adds that the judgment & decree dated 03.03.2020, passed in respondent’s favour has also attained finality, therefore, same is executable.

3. Arguments heard. Available record perused.

6. Record shows that initially appellant-bank instituted suit for recovery against respondent, which was dismissed vide order dated 07.11.2012 for the reason that excess amount of Rs. 4,73,945.21 belonging to respondent was lying with appellant, which order attained finality. Later on, respondent filed suit for recovery of said amount i.e. Rs. 4,73,945.21 with the contention that since the appellant-bank itself received mark-up of more than 13.50% from respondent, therefore, he is also entitled to receive profit on the aforesaid amount lying with appellant-bank. Ultimately, decree for recovery of aforesaid amount along with costs and cost of funds was passed in favour of respondent.

1. Cost of funds is basically the cost that a financial institution is entitled to recover from the borrower on account of funds which as per the terms of the ‘Finance’ or the law ought to have been in the custody of a financial institution but happened to be in the custody of the customer after default on the rationale that the financial institution has been deprived from placing the funds somewhere else for its financial benefit which is the core business of a financial institution Section 3(2) of the Ordinance stipulates that where a customer defaults in the discharge of his obligation, he is liable to pay for the period from the date of his default till realization of the cost of funds of the financial institution as certified by the State Bank of Pakistan from time to time. Section 3(3) of the Ordinance further states that a judgment against the customer under this Ordinance shall mean that he is in default of his duty to fulfill his obligation and the ensuing decree shall provide for payment of the cost of funds. Since cost of funds is attached to the provisions of funds, therefore, cost of funds is not awarded to a customer even where a customer establishes a breach of obligation on the part of the financial institution. Cost of funds is granted only to a financial institution on the principle that funds are only provided by a financial institution and not by a customer. Section 17 of the Ordinance provides that the final decree shall be passed by the Banking Court with respect to payment from the date of default of the amounts determined to be payable on account of default in fulfillment of the obligation and for costs including in the case of a suit filed by a financial institution cost of funds determined under section 3 of the Ordinance. Banking Court under the provisions of Section 3(2) of the FIO, 2001 is empowered to award cost of funds in favour of financial institutions and such privilege or benefit had not been conferred by statute to the customer. This interpretation is also supported by the Latin Legal Maxims used in legal interpretation (i) Expressio unius personae vel rei, est exclusio alterius – The express mention of one person or thing is the exclusion of another and (ii) Expressum facit cessare-tacitum What is expressed makes what is silent to cease. This view is further supported by the principle of Casus Omissus. In Deputy Director Finance and Administration Fata through Additional Chief Secretary FATA, Peshawar and others v. Dr.Lal Marjan and others (2022 SCMR 566), the Supreme Court while discussing the scope of principle of Casus Omissus held that the said principle provides that, where the legislature has not provided something in the language of the law, the Court cannot travel beyond its jurisdiction and read something into the law as the same would be ultra vires the powers available to the Court under the Constitution and would constitute an order without jurisdiction.

2. In Reference No. 01 of 2012 (PLD 2013 Supreme Court 279) = Nadeem Ahmed Advocate v. Federation of Pakistan (2013 SCMR 1062), the Supreme Court of Pakistan while explaining the principle of Casus Omissus held as follows:

“A Casus Omissus can, in no case, be supplied by the Court of law as that would amount to altering the provision. “It is not our function, as was held by Mr. Justice Walsh, in the case of “Attorney General v. Bihari, re Australia Factors Limited (1966) 67 S.R. (N.S.W.) 150; to repair the blunders that are to be found in the legislation”. They must be corrected by the legislator”. A Court of law is not entitled to read words into the Constitution or an Act of Parliament unless clear reason is found within the four corners of either of them.”

In Abdul Haq Khan and others v. Haji Ameerzada and others (PLD 2017 Supreme Court 105), the Supreme Court while discussing the doctrine of Casus Omissus observed that the Courts generally abstained from providing ‘casus omissus’ or omissions in a statute, through construction of interpretation. The Court observed that the exception to such rule was, when there was a self-evident omission in a provision and the purpose of the law as intended by the legislature could not otherwise be achieved, or if the literal construction of a particular provision led to manifestly absurd or anomalous results, which could not have been intended by the legislature. The Court further held that such power, however, was to be exercised cautiously, rarely and only in exceptional circumstances. In The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others (2017 SCMR 1427), the Supreme Court held that principle of reading in or ‘casus omissus’ was not to be invoked lightly, rather it was to be used sparingly and only when the situation demanded it. The Court held that the Courts should refrain from supplying an omission in the statute because to do so steered the Courts from the realms of interpretation or construction into those of legislation.

1. In view of the above, it is concluded that the Banking Court has committed gross illegality in dismissing appellant’s application filed under Section 47 read with Sections 151/152, CPC and Section 19(7) of the FIO, 2001. Further reliance in this regard is also placed upon Messrs Long Term Venture Capital Modaraba v. Messrs State Life Insurance Corporation of Pakistan (2005 CLD 122) and Bank of Punjab through Attorney v. Manzoor Qadir and another (2021 CLD 1037).

2. So far as respondent’s argument that judgment & decree dated 03.03.2020 has attained finality, is concerned, it suffices to say that there is no doubt about the fact that said decree has attained finality, but if the Court is satisfied that the decree is nullity/ void in the eyes of law, or the same has been passed by the Court having no jurisdiction or the rights of the decree-holder would not be infringed if the decree is refused to be executed or the decree has been passed in violation of any provision of law, Executing Court under the provisions of Section 47 CPC can question executability of decree. There is no cavil to the proposition that questions relating to the executability of an order or decree can be raised even in execution proceedings and it is open to the party against whom it is sought to be executed to show that it is null and void or had been made without jurisdiction or that it is incapable of execution. Reliance is placed upon Islamic Republic of Pakistan v. Muhammad Saeed (PLD 1961 Supreme Court 192) and Fakir Abdullah and others v. Government of Sindh through Secretary to Government of Sindh, Revenue Department, Sindh Secretariat, Karachi and others (PLD 2001 Supreme Court 131).

3. Needless to observe that it is not for the Executing Court to decide whether the decree passed is legal or illegal or whether it is erroneous or not, but it is open to the Executing Court to consider whether the decree sought to be executed is void or not. Any decree passed by any Court or forum is void if the Court or the forum which passed it has no jurisdiction over the subject matter. Reference can be made to v. Chinna Lakshmaiah v. Samurla Ramaiah and others (AIR 1991 AP 177).

4. In view of the above, instant appeal is allowed. Consequently, impugned order dated 02.08.2023 is set aside being illegal and without lawful authority. As a result, judgment & decree dated 03.03.2020 shall not be executed to the extent of award of cost of funds, which stands set aside to this extent.

(K.Q.B.) Appeal allowed

PLJ 2024 Lahore 578 (DB)

Present: Shahid Bilal Hassan and Masud Abid Naqvi, JJ.

Ch. MUHAMMAD ARSHAD--Petitioner

versus

PARVEZ ELAHI and 2 others--Respondents

W.P. No. 20729 of 2024, heard on 3.4.2024.

Election Act, 2017 (XXXIII of 2017)--

----Ss. 62(9) & 63--Constitution of Pakistan, 1973, Art. 199--Rejection of nomination papers--Appeal--Accepted--Concealment of--Objection on nomination papers--Eligibility criteria--Duty of R.O.-- It was duty of Returning Officer to scrutinize nomination paper, in best interest of justice and to uphold fundamental right of individual to contest elections--The Retuning Officers should not reject any nomination paper on ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith-- There is no bar for a candidate to participate in election as an independent candidate or to participate with certificate of a party being a party’s candidate--Election Tribunal had exhaustively dealt with matter and petitioner had miserably failed to substantiate his case by giving valid grounds for setting aside impugned order--Consequently, finding no merit in that petition, Petition dismissed. [Pp. 583 & 584] A, B, C & D

Mr. Muhammad Ramzan Ch., Advocate and Barrister Abdul Qudoos Sohal, Advocates for Petitioner.

M/s. Barrister Haris Azmat, Maryam Hayat, Farman Manais andMohsin Murtaza Cheema, Advocates for Respondent No. 1.

Mr. Imran Arif Ranjha, Advocate/learned Legal Advisor alongwith Haroon Kasi, Director Law, Election Commission of Pakistan for Respondent No. 3.

Mr. Tabish Mehmood Butt and Malik Ikram Hussain, Returning Officers PP-32 in person.

Date of hearing: 3.4.2024.

Judgment

Masud Abid Naqvi, J.--Through this writ petition, the petitioner has challenged the validity of impugned order dated 26.03.2024, passed by the learned Election Tribunal whereby the Election Appeal filed by Respondent No. 1 was allowed by setting aside order dated 21.03.2024 passed by the Returning Officer, PP-32, Gujrat-VI and the nomination papers of Respondent No. 1 were accepted.

1. At the very outset, learned counsel for the petitioner states that the petitioner is aggrieved from the findings of learned Election Tribunal in impugned order dated 26.03.2024 to the extent of Objections Nos.1, 8, 9, 10 & 11 and is assailing the impugned order to that extent. The learned counsel for the petitioner argues that in view of the provisions of relevant laws and as per Form-B, the Respondent No. 1 was/is under legal obligations to provide complete details of assets whether movable or immovable owned by him or his spouse but the Respondent No. 1 deliberately concealed those assets, informed by petitioner through fresh/new objections being voter of that constituency which were duly discussed by the Returning Officer. Hence, the Respondent No. 1 has not fulfilled the eligibility criteria, defined under the relevant laws & Constitution of Islamic Republic of Pakistan, 1973. In order to strengthen his arguments, the learned counsel for the petitioner has relied on number of judgments of Honourable Superior Courts for setting aside the impugned order. On the other hand, learned counsel for the Respondent No. 1 argues that in the previous two General Elections, the Respondent No. 1 filed nomination papers with the same details of assets and few objections on those nomination papers were either rejected by the Returning Officer or by the learned Election Tribunal, by this Court in writ petition and ultimately Respondent No. 1 contested General Election after the judgment of Hon’ble Supreme Court of Pakistan passed in C.P.No. 181 of 2024. Learned counsel for Respondent No. 1 further argues that Respondent No. 1 was arrested and imprisoned even before the last General Elections and he is still behind the bars, hence, it is not expected from an imprisoned candidate to provide all the details of his assets as well as assets of his spouse and the assets which have not been mentioned in the nomination papers are not of substantial nature. Further argues that in scrutiny process of Respondent No. 1’s nomination papers, the Returning Officer miserably failed to proceed under the second proviso to Section 62(9) of the Act. Learned counsel for the Respondent No. 1 has also relied on number of judgments of Honourable Superior Courts in support of the impugned order. Learned Legal Advisor of Election Commission of Pakistan/Respondent No. 3 also assisted this Court about certain facts, argued by the contesting parties after going through the summoned record.

Although, learned counsel for the Respondent No. 1 raised a legal question about the jurisdiction of this Court in entertaining the instant writ petition by relying on judgments yesterday but today he simply argues on the facts & law(s) in support of the impugned order while learned counsel for the petitioner as well as learned Advisor of Election Commission of Pakistan opposed the stance of learned counsel for the Respondent No. 1 by not only relying on judgments but also by drawing our attention to previous litigation where the Respondent No. 1 himself filed a writ petition before a Full Bench on this Court. Hence, after hearing the arguments of learned counsels and considering the peculiar facts of this litigation, there remains no doubt about the jurisdiction of this Court to entertain instant writ petition.

1. We have heard the arguments of the learned counsel for the parties and have minutely gone through record as well as the impugned order.

2. In recently decided election matters, Honourable Apex Court has educatively discussed about the democratic principles, duties of Returning Officers in election process and role of Courts as guardians of democracy and fundamental rights. Relevant portion of those judgments are reproduced hereunder for our guidance to decide instant petition:

C.P. No. 151 & 152 of 2024 …….. Elections stand as a manifestation of the collective will of a nation, reflecting the diverse voices and choices of its citizens. In this democratic process, individuals exercise their right to vote, contributing to the formation of a representative government. The rights involved are not only of those participating in the elections but also of the public. The Courts, in their role as guardians of democracy and fundamental rights, should approach electoral matters with circumspection, ensuring that their interventions uphold the democratic principles upon which the nation thrives and the fundamental rights of citizens to contest elections and vote for the candidates of their choice. The right to vote freely for the candidate of one’s choice is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. The working of democracy depends on whether the people can decide the fate of the elected form of government. It depends on the choices that people make in different ways. This choice of people cannot be compromised, as their mandate in elections changes the destinies of government. Through the electoral process and voting, citizens participate in democracy. By voting, citizens take part in the public affairs of the country. Thus, citizens by voting enjoy their right to choose the composition of their government by exercising their choice and ability to participate ……….. electoral laws must be interpreted in favour of enfranchisement rather than disenfranchisement so that maximum choice remains with the voters to elect their future leadership. With this approach rooted in the high constitutional rights and values, the Courts are to deal with the matters of acceptance or rejection of the nomination papers filed for contesting elections.

C.P. No. 181 of 2024 …….. At the heart of a thriving democracy lies the fundamental process of elections, an embodiment of the democratic principle that power should be vested in the hands of the people. And at its core, democracy is all about participation. Elections offer a structured and equitable way for citizens to participate in the democratic process and express their preferences for leaders and policies. The legitimacy of a democratic government hinges on its reflection of the people’s will, and this is only possible through widespread and inclusive participation of the candidates and voters in the election process. Pro-enfranchisement policies ensure that every eligible citizen, irrespective of his or her background, has the opportunity to vote, thus reinforcing the democratic tenet of equal representation. The threat of disenfranchisement by way of an improper rejection of nomination papers looms large in a democracy, which may undermine the fairness and integrity of the electoral process. A democratic society committed to fairness must actively combat disenfranchisement, ensuring that all voices are heard and valued in the political arena. Inclusive electoral processes contribute to political stability and social cohesion. This stability is essential for the long-term prosperity and peace of any society. The vitality of elections in a democracy cannot, therefore, be overstated. Further, the right to vote freely for the candidate of one’s choice is the essence of a democratic society, and any [undue] restrictions on that right strike at the heart of representative government. It is with this approach we deal with and decide upon the issues involved in the present case ………….. Had the petitioner not disputed his ownership of the said land, the RO may have directed him to mention the same in his statement of assets; as the second proviso to Section 62(9) of the Act specifically prescribes for the ROs that they should not reject any nomination paper on the ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith. These provisions show that the law is pro-inclusiveness in the election process. The rejection of the nomination paper of the petitioner on the said ground also is not legally sustainable.

C.P. No. 183 of 2024 …….. It goes without saying that it is against democratic norms and principles to add technical bottlenecks in the way of any individual, who is a citizen of this country, trying to contest elections. And in this backdrop, it is pertinent to say that electoral laws and rules cannot be used as an arbitrary filtering mechanism, dependent on the whims of a Returning Officer. Therefore, a Returning Officer should exercise the discretional powers available to him in a rational and meticulous manner …….. theReturning Officer must scrutinize all nomination papers submitted to him, in the best interest of justice and to uphold the fundamental right of any individual to contest elections. Returning Officers are an integral part of the electoral process and it is highly unbecoming of a Returning Officer to exercise the authority conferred upon him or her in a manner which sabotages the electoral process. Returning Officers must remember that it is a fundamental right of an individual to contest elections and if they sabotage an individual not only do they rob the individual of their fundamental right but they also rob the populace at large of voting for that individual, which is also a fundamental right protected by the Constitution.

1. In view of the above guidelines of Hon’ble Supreme Court of Pakistan and the facts and law, objection-wise findings of this Court are as under:-

(i) Objection No. 1: There is no denial of the fact that the similar objection was raised in previous general election which was not held in the year 2023 and the returning officer rejected the nomination paper of Respondent No. 1 but vide order dated 14.04.2023, learned Election Tribunal accepted the Respondent No. 1’s Election Appeal No. 24179 of 2023 after adjudicating upon all the questions of fact & law and that order was not assailed which attained finality. The returning officer rejected the Respondent No. 1’s nomination paper without even mentioning the order of learned Election Tribunal on the issue.

(ii) Objection No. 8: Returning officer rejected the nomination paper of Respondent No. 1 due to the non-disclosure of Respondent No. 1’s spouse land measuring 08-kanals 08-marlas in his statement of assets and while rejecting the nomination paper, the Returning Officer has not exercised his discretional powers available to him in a rational and meticulous manner. It was the duty of Returning Officer to scrutinize nomination paper, in the best interest of justice and to uphold the fundamental right of the individual to contest elections. Instead of rejecting the nomination paper, Returning Officer can direct the Respondent No. 1 to mention the same in his statement of assets because the second proviso to Section 62(9) of the Act specifically prescribes for the Retuning Officers that they should not reject any nomination paper on the ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith.

(iii) Objection No. 9: Returning officer rejected the nomination paper of Respondent No. 1 due to the non-disclosure of Respondent No. 1’s inherited land measuring 34 kanals 18 marlas in his statement of assets and while rejecting the nomination paper, the Returning Officer has not exercised his discretional powers available to him in a rational and meticulous manner. It was the duty of Returning Officer to scrutinize nomination paper, in the best interest of justice and to uphold the fundamental right of the individual to contest elections. Instead of rejecting the nomination paper, Returning Officer can direct the Respondent No. 1 to mention the same in his statement of assets because the second proviso to Section 62(9) of the Act specifically prescribes for the Retuning Officers that they should not reject any nomination paper on the ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith.

(iv) ObjectionNo. 10: Returning officer rejected the nomination paper of Respondent No. 1 due to the non-disclosure of Respondent No. 1’s weapons in his statement of assets. There is no column in election form where a candidate can give the details of his weapons but the value of these weapons are duly disclosed/ mentioned in statement of assets.

(v) Objection No. 11: There is no bar for a candidate to participate in the election as an independent candidate

or to participate with certificate of a party being a party’s candidate.

1. For the foregoing reasons, we are of the view that the learned Election Tribunal has exhaustively dealt with matter and the petitioner has miserably failed to substantiate his case by giving valid grounds for setting aside the impugned order dated 26.03.2024. Consequently, finding no merit in this petition, the same is dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 584 [Bahawalpur Bench, Bahawalpur]

Present: Ahmad Nadeem Arshad, J.

MUHAMMAD SIDDIQUE--Applicant

versus

RABIA RAFIQUE, etc.--Respondents

C.M. No. 7-C of 2023/BWP, decided on 5.4.2024.

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

----S. 12(2)--Specific Relief Act, (I of 1877), Ss. 42 & 54--Muslim Family Laws Ordinance, 1961, S. 7(1)--Filing of application to challenge decree on grounds of fraud and misrepresentation--Suit for declaration filed by Applicant No. 2 was partly decreed--Through consolidated judgment suit for Respondent No. 1, 2 was decreed--Evidence of Respondent No. 1, 2 was not rebutted by Applicant No. 2--Concurrent findings--Challenge to--PWs merely denied factum of Nikah of Imran Azam with Rabia Imran and birth of their son through their oral evidence--The Applicant No. 2 did not produce any documentary evidence in support of their version--Applicant No. 2 failed to rebut oral as well as documentary evidence of Respondents No. 1 & 2, therefore, Trial Court declared that Respondent No. 1 was legally wedded wife of Imran Azam and from their wedlock a son namely Ali Imran was born--Said findings remained intact upto august Supreme Court of Pakistan--Non sending of a copy of decree after obtaining Khula from Court Ordinance, 1961 failure to obtain certificate can at maximum entail penal consequences but could not invalidate decree of dissolution of marriage on basis of Khula--It is a trite proposition of law that no one can be compelled to give a sample for DNA testing as it would violate his liberty, dignity and privacy of a free person guaranteed under Article 14 of Constitution--The provisions of Section 12(2) C.P.C. could only be pressed into service when fraud has been practiced upon Court during proceedings of case and judgment & decree was obtained on basis of such fraud and misrepresentation--The version of applicants qua non-disclosure of earlier marriages, wrong mentioning of marital status and mentioning different ages by Respondent No. 1 in Nikahnama has no bearing on merits of case and does not amount to having practiced fraud with Court--If there is any fraud, at best, it is inter-se parties which do not attract provisions of Section 12(2) of C.P.C.--Applicant No. 1 filed his application after dismissal of CPLA filed by Applicant No. 2 and during pendency of review petition--Whereas, Applicant No. 2 filed an application under Section 12(2) C.P.C. after dismissal of review petition--After dismissal of CPLA and review application, ordinarily an application u/S. 12(2) C.P.C. would not be entertainable.

[Pp. 591, 592, 593, 594, 595, 596 & 598] A, B, C, D, F & G

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

----S. 12(2)--Scope of said provision is restricted and applicant is obliged to prove that fraud or misrepresentation was committed by adversary in connection with proceedings of Court. [P. 595] E

PLD 1983 SC 169, PLD 2019 SC 449, 2023 SCMR 2158, PLD 2024 SC 262, 1997 SCMR 610, 2008 SCMR 226 and PLD 2018 SC 828 ref.

Mr. Amir Aqeel Ansari, Advocate for Applicant No. 1.

M/s. Nadeem Iqbal Chaudhry and Rana Rizwan, Advocates for Applicant No. 2.

M/s. Hafeez-ur-Rehman Hafeez and Rana Ahtisham Shoukat, Advocates for Respondents No. 1 & 2.

Date of hearing: 22.3.2024.

Judgment

Through this judgment I would like to decide the instant application under Section 12(2) of the Code of Civil Procedure, 1908 (C.P.C.) as well as application titled “Irfan Azam, etc. v. Rabia Rafique, etc.” (C.M. No. 8-C of 2023) filed under Section 12(2) C.P.C. whereby the applicants have called into question the judgment & decree dated 19.10.2020 passed by this Court in Civil Revision No. 823 of 2018/BWP titled “Irfan Azam, etc. v. Rabia Rafiq, etc.” on the grounds of fraud and misrepresentation. However, for further discussion Muhammad Siddique applicant of C.M. No. 7-C of 2023 be referred to as the Applicant No. 1, the applicants of C.M. No. 8-C of 2023 be referred to as the Applicant No. 2. Whereas, Rabia Rafique (Rabia Imran) be referred to as the Respondent No. 1 and Ali Imran be referred to as the Respondent No. 2.

2. Facts in brevity are that the Applicant No. 2 instituted a suit for declaration whereby they sought declaration to the effect that they are the only legal heirs of deceased Imran Azam whereas Respondents No. 1 & 2 are neither his legal heirs nor entitled to get inheritance from his moveable and immoveable properties and only they are entitled to get inheritance as per their Sharia shares from the agricultural land as well as the amount available in the bank accounts of deceased. They also sought a declaration that if Respondents No. 1 & 2 have prepared any documents fraudulently to show themselves as the widow and son of the deceased, the same are against the facts & law, forged and fictitious, a result of collusiveness and having no effect upon their rights, void-ab-initio and liable to be cancelled. As a consequential relief, they prayed for the issuance of permanent injunction that Respondent No. 1 namely Mst. Rabia Imran alias Rabia Rafiq may be restrained permanently from posing herself as the widow of Imran Azam deceased and posing Respondent No. 2 as his son; that they also be restrained from claiming any right over the moveable and immoveable properties of the deceased, from withdrawing amounts from the bank accounts and from getting incorporate inheritance mutation in their favour. Respondents No. 1 & 2 resisted the suit by filing a contesting written statement. Besides this, they also instituted their independent suit for declaration and permanent injunction against the Applicant No. 2 and sought a declaration that the Respondent No. 1 and Naz Bibi (Applicant No. 2 of C.M No. 8-C) being widows and Respondent No. 2 being son of Imran Azam are owners in possession of the property (fully described in the plaint) being legal heirs according to their legal and Shari shares and challenged the validity and legality of oral sale Mutation No. 652 dated 30.06.2011 whereby land measuring 699 Kanals 06 Marlas was allegedly alienated to Irfan Azam (Applicant No. 1 of C.M. No. 8-C) from Imran Azam deceased. Said suit was contested by the Applicant No. 2.

1. The learned Trial Court consolidated both the suits, framed consolidated issues out of the divergent pleadings of the parties and invited them to lead evidence in support of their rival contentions. After recording evidence of the parties, pro & contra, oral as well as documentary, partially decreed the suit of the Applicant No. 2 by declaring Naz Bibi (Applicant No. 2 of C.M No. 8-C) and Rabia Rafiq (Respondent No. 1) as widows and Ali Imran (Respondent No. 2) as son of deceased Imran Azam being his legal heirs, whereas, suit of Respondents No. 1 & 2 was decreed in toto through consolidated judgment & decrees dated 15.02.2016. The Applicant No. 2 challenged said judgment and decrees by preferring an appeal which was dismissed by the learned Appellate Court videjudgment & decree dated 19.09.2018. Feeling aggrieved, they filed a revision petition (C.R. No. 823 of 2018/BWP) before this Court which was also dismissed via judgment & decree dated 19.10.2020. Being dissatisfied, the Applicant No. 2 filed C.P.L.A No. 1719-L of 2020 before the august Supreme Court of Pakistan and vide order dated 04.02.2021 leave was refused and their petition was dismissed. The Applicant No. 2 filed review petition No. Nil of 2021 in C.P.L.A No. 1719-L of 2020 which was dismissed by the august Supreme Court of Pakistan vide order dated 27.01.2023. During the pendency of the Review Petition, Applicant No. 1 namely Muhammad Siddique filed the application under Section 12(2) C.P.C. (C.M. No. 7-C of 2023/BWP) against Respondents No. 1 & 2 by impleading the Applicant No. 2 as rest of the respondents and after dismissal of the Review Petition, the Applicant No. 2 filed an application under Section 12(2) C.P.C. (C.M. No. 8-C of 2023/BWP) against the Respondents No. 1 & 2 by impleading the Applicant No. 1 as Respondent No. 3. The Applicant No. 1 and the Applicant No. 2 in their applications under Section 12(2) C.P.C. challenged the judgment and decree dated 19.10.2020 passed in Civil Revision No. 823 of 2018/BWP on the grounds of fraud and misrepresentation.

2. The Applicant No. 1 in his application maintained that he got married to Respondent No. 1 on 15.06.2006 and as a result of said wedlock Respondent No. 2 was born on 14.12.2006 and this fact is evident from the birth certificate of Respondent No. 2, whereas, Respondent No. 1 got prepared forged documents wherein the date of birth of Respondent No. 2 was shown as 14.12.2010 instead of 14.12.2006; that Respondent No. 1 concealed ex-parte judgment and decree whereby she got divorce from him on the basis of Khula and also concealed said fact at the time of her marriage with Imran Azam, therefore, the judgment and decree of this Court is not sustainable as having been obtained by practicing fraud and mis-representation with the Court.

3. The Applicant No. 2 in his application maintained that Aneela Bibi (Applicant No. 4 of C.M. No. 8-C of 2023) lodged a complaint in the year 2020 against Respondent No. 1 wherein after inquiry it was declared that Respondent No. 1 after the death of Imran Azam with the collusion of Molvi Muhammad Gull Gohar (Nikah Khawan), Abdul Rauf (Nikah Registrar) prepared ante-dated and forged Nikahnama with Imran Azam while making his forged signatures; that as a result of inquiry report, F.I.R No. 140/2021 dated 29.06.2021 was registered against Respondent No. 1 and her co-accused wherein she was arrested and challan was sent to the Court; that Respondent No. 1 admitted her Nikah dated 15.02.2006 with the Applicant No. 1, therefore, from this wedlock Respondent No. 2 was born and his date of birth was recorded as 14.12.2006 in the Union Council Ahmadpur Lamma, Rahim Yar Khan which falsifies her claim that Respondent No. 2 is son of Imran Azam; that Respondent No. 1 failed to prove her divorce from Respondent No. 3 as she could not bring on record any certificate of divorce issued by concerned Union Council at Faisalabad; that Respondent No. 1 prepared a forged birth certificate of Respondent No. 2 from Filed Office No. 12, Behboob Qureshian, Rahim Yar Khan wherein date of birth of Respondent No. 2 was shown as 14.12.2010 in order to connect his relation with Imran Azam; that Respondent No. 1 filed an application on 21.05.2013 for correction of date of birth of Respondent No. 2 in the record of U.C. Ahmedpur Lamma, Rahim Yar Khan which is not decided so far; that Respondent No. 1 refused to get DNA test of Respondent No. 2 during the inquiry before the Deputy Commissioner; that Respondent No. 2 was not son of Imran Azam rather he was born from the marital tie of Respondent No. 1 and the Applicant No. 1; that Respondent No. 1 prepared her fake Nikahnama with Imran Azam as well as birth certificate of Respondent No. 2; that Respondent No. 1 contracted Shari Nikah with Applicant No. 1 on 15.02.2006 and got it registered on 13.09.2006; that Respondent No. 1 also contracted marriage with one Makhdoom Ahmad Mahmood on 23.07.2002 and got divorce on 18.09.2004 and out of said wedlock a baby girl Bisma was born which fact was not disclosed by her; that Respondent No. 1 in her Nikahnamas showed her as virgin lady and concealed her previous Nikah; that she narrated different ages in her respective Nikahnamas; that Respondent No. 1 secured succession certificate of Respondent No. 2 against which appeal of the Applicant No. 2 is pending; that Respondent No. 1 applied for guardianship of Respondent No. 2 and the Applicant No. 1 moved an application for impleading him as a party wherein he claimed the Respondent No. 1 as his wife because she failed to get divorce certificate from the concerned Union Council; that the above referred facts verified the misrepresentation and fraud played by Respondent No. 1 who deceitfully concealed her previous marriages with different persons in her suit at all forums during the litigation with them and prayed for setting aside the decree dated 19.10.2020 passed by this Court in C.R. No. 823 of 2018 and dismissal of suit of the Respondents No. 1 & 2 with special costs.

4. This Court vide order dated 02.06.2023 issued notice to the respondents. Notices were also issued to the respondents in C.M No. 8-C of 2023/BWP vide order dated 06.07.2023.

5. It is pertinent to mention here that Applicant No. 1 moved an application (C.M. No. 1607 of 2024/BWP) and sought framing of issues and recording of evidence. The Applicant No. 2 also moved application (C.M. no.1606 of 2024/BWP) whereby they prayed for issuance of a direction to the respondents to file written reply of their application under Section 12(2) C.P.C. Both the applications have been decided through separate orders.

6. I have heard learned counsel for the parties on the C.Ms and perused the record of C.Ms as well as the record of Civil Revision No. 823 of 2018/BWP with their able assistance.

7. From the scanning of the applications and arguments advanced by the learned counsel for the Applicant No. 1 and the Applicant No. 2, their main allegations are that Respondent No. 1 contracted marriage with the Applicant No. 1 and during the subsistence of said marriage she gave birth to a son (Respondent No. 2) on 14.12.2006 which is evident from birth certificate brought on record as Annex-A, therefore, Respondent No. 2 is son of the Applicant No. 1 rather deceased Imran Azam; that the decree of dissolution of marriage on the basis of Khula was not effective because certificate of divorce was not obtained from the concerned Union Council, therefore, Respondent No. 1 is still legally wedded wife of the Applicant No. 1 and said facts were concealed by the Respondents No. 1 & 2 while obtaining the judgment and decree, hence, committed fraud and misrepresentation with the Court.

8. It is evident from the record that the Applicant No. 2 instituted a suit for declaration along with permanent injunction against Respondents No. 1 & 2 on 19.07.2012 by maintaining that they are legal heirs of deceased Imran Azam who died issueless on 27.01.2012 without any male or female issue; that a week ago it came to their knowledge that Respondents No. 1 & 2 made a conspiracy to pose Respondent No. 1 as widow and Respondent No. 2 as son of deceased Imran Azam and prepared forged documents in this regard; that neither Imran Azam contracted marriage during his lifetime with the Respondent No. 1 nor Respondent No. 2 was born from said wed-lock and sought declaration to the effect that they are the only legal heirs of deceased Imran Azam, whereas, Respondents No. 1 & 2 are neither his legal heirs nor entitled to get inheritance from his moveable and immoveable properties and only they are entitled to get inheritance as per their Sharia shares from the agricultural land as well as the amount available in the bank accounts of deceased. They also sought a declaration that if Respondents No. 1 & 2 have prepared any documents fraudulently to show themselves as widow and son of the deceased, the same are against the facts & law, forged and fictitious, result of collusiveness and having no effect upon their rights, void-ab-initio and liable to be cancelled. As a consequential relief, they prayed for the issuance of permanent injunction that Respondent No. 1 namely Mst. Rabia Imran alias Rabia Rafiq may be restrained permanently from posing herself as a widow of Imran Azam deceased and posing Respondent No. 2 as his son; that they also be restrained from claiming any right over the moveable and immoveable properties of the deceased, to withdraw amounts from the bank accounts and to get incorporate inheritance mutation in their favour.

9. The Respondents No. 1 & 2 resisted the suit by filing contesting written statement wherein they took a stance that Imran Azam contracted his first marriage with Naz Bibi (Applicant No. 2 of C.M. No. 8-C of 2023) but remained issueless despite the lapse of a considerable time; that he had an ardent desire to have children, legal heir of his property, hence, he contracted second marriage with Respondent No. 1; that in this regard Shari Nikah was performed by Qari Nazim in December, 2008; that thereafter deceased Imran Azam got registered the Nikah; that in the light of said marital tie a baby boy namely Ali Imran (Respondent No. 2) was born on 14.12.2010. Respondents No. 1 & 2 also instituted a suit for declaration with permanent injunction wherein they challenged the oral sale Mutation No. 652 dated 30.06.2011 whereby land measuring 699 Kanals & 06 Marlas was allegedly shown to be sold by Imran Azam to his brother Irfan Azam. The learned trial Court consolidated both the suits and framed consolidated issues. The basic controversy between the parties was as to who are legal heirs of Imran Azam deceased and to resolve said controversy issues No. 1 & 3 were framed in the following terms:

10. Whether plaintiffs Irfan Azam etc. are only legal heirs of deceased Imran Azam and as such they are entitled to the decree for declaration for the suit property? OPP Irfan Azam etc.

11. Whether defendants Rabia Imran etc. are also legal heirs alongwith plaintiffs as widow and son of Imran Azam and being so they are entitled to the decree for declaration regarding suit property? OPD Rabia Imran etc.

12. In order to substantiate their version, the Applicant No. 2 got examined nine witnesses as P.W.1 to P.W.9 and tendered 21 documents as Exh.P.1 to Exh.P.21, whereas, Respondents No. 1 & 2 produced 13 witnesses as D.W.1 to D.W.13 and placed on record 34 documents as Exh.D.1 to Exh.D.33 and Mark-A.

13. Perusal of the statements of PWs reflects that they merely denied the factum of Nikah of Imran Azam with Rabia Imran and birth of their son through their oral evidence. The Applicant No. 2 did not produce any documentary evidence in support of their version.

14. However, to substantiate their stance, Respondents No. 1 & 2 produced original Nikahnama as Exh.D.1 and to prove said Nikahnama they produced Abdul Rauf Nikah Registrar as D.W.1, Molvi Muhammad Gull Gohar Nikah Khawan as D.W.3, Muhammad Sajid and Zafar Iqbal witnesses of the Nikah as D.W.4 and D.W.5. Both D.W.4 and D.W.5 also deposed that they are witnesses of Shari Nikah performed between Imran Azam and Rabia Imran. To prove the factum of birth of Ali Imran during the marital ties between Imran Azam and Rabia Imran, they got examined Dr. Shazia Majid Khan Gynecologist as D.W.7. She deposed categorically that she conducted a cesarean operation upon Respondent No. 1 as a result of which Respondent No. 2 was born on 14.12.2010. She produced the birth certificate of minor as Exh.D.7. Respondents No. 1 & 2 also produced Muhammad Arshad Khan Sales Consultant EFU Company as D.W.10 who produced a copy of the Insurance Policy as Mark-A. In the said policy Imran Azam nominated his son namely Ali Imran as his nominee. Muhammad Azam Azad P.W.4 during cross-examination admitted that Imran Azam had obtained an insurance policy from EFU Insurance Company. Tariq Hussain, Project Manager, Ramay Developers appeared as D.W.11 and produced the original record of allotment of the plot in the name of Irfan Azam (Applicant No. 1 of C.M. No. 8-C of 2023). Copy of said record was brought on the record as Exh.D.8 wherein said Irfan Azam himself nominated Ali Imran son of Imran Azam as his nominee. It is also evident that Muhammad Azam Azad P.W.4 was surety in the said allotment letter. Said document was prepared on 24.05.2012 and bears the thumb impression of Irfan Azam. A copy of CNIC of Irfan Azam as well as a copy of CNIC of his wife Ruqiya Bibi was also attached with the said application of allotment. NADRA certificate was produced as Exh.D.9 wherein Ali Imran is shown as son of Imran Azam and Rabia Imran. An application addressed to Administrator Union Council G-7 Ahmadpur Lamma from Irfan Azam dated 15.06.2012 was available as Exh.D.32. In the said application, Irfan Azam maintained that the name of his nephew namely Ali Imran s/o Imran Azam is duly entered in the record of Union Council and prayed for issuance of its copy.

1. The Applicant No. 2 failed to rebut the oral as well as documentary evidence of Respondents No. 1 & 2, therefore, the learned Trial Court keeping in view evidence available on the record declared that Respondent No. 1 namely Rabia Imran was legally wedded wife of Imran Azam and from their wedlock a son namely Ali Imran was born on 14.12.2010. Said findings remained intact upto august Supreme Court of Pakistan.

2. The Applicant No. 1 in his application admits that Respondent No. 1 got divorce on the basis of Khula through a decree of the Court dated 31.03.2008, however, he claims that she is still his wife as she failed to obtain the certificate of effectiveness of divorce from the Union Council. The decree of Khula obtained through Court would not fall under Section 07 of the Muslim Family Laws Ordinance, 1961 which deals with an ordinary divorce given by a husband. The matter would, however, fall under Section 08 of the Ordinance ibid which deals with other types of divorce or dissolution of marriage. For ease, said section is reproduced as under:

Dissolution of marriage otherwise than by talaq.

Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of Section 7 shall, mutatis mutandis and so far as applicable, apply.

Section 08 of the Ordinance is a parallel provision to Section 07. The latter provides for the mechanism as to how the divorce by ‘any man’ who wishes to dissolve the marriage would become effective; while the former provision is not confined to Talaq by ‘any man’. Essentially it relates to other forms of dissolution of marriage. Said Section postulates two situations; one, divorce by a woman who has right of Tafweez and the other, when the wife sues for dissolution of marriage on other grounds including that of Khula. In cases of dissolution otherwise than when it is pronounced by a man Section 07 with necessary changes would apply.

With regard to the dissolution of marriage as mentioned in Section 8 “the provision of Section 7 shall mutatis mutendis and so far as applicable, apply”. Section 08, clearly places a condition on the application of Section 07 mainly that it would apply “so far as applicable” and that also with necessary changes (mutatis mutendis). Islamic Law does not permit revocation of dissolution of marriage effected through Khula. Section 07 has not changed the Islamic Law. Dissolution of marriage under the Family Courts Act, 1964 once having attained finality does not make it ineffective merely on the ground that notice of decree for dissolution of marriage was not given and certificate of effectiveness of said divorce was not issued by the concerned Union Council. For the sake of arguments, if it is presumed that Respondent No. 1 failed to give notice of the decree of dissolution of marriage, then it related to the question of contravention of the provision of Sub-section 01 of Section 07. Sub-section 02 of Section 07 provides that whosoever contravenes the provisions shall be sentenced to imprisonment for a term which may extend to one year or with a fine which may extend to 5000 rupees or with both. From the above discussion, it is crystal clear that non sending of a copy of decree after obtaining Khula from the Court under Sub-Section 01 of Section 07 or failure to obtain the certificate can at the maximum entail penal consequences but cannot invalidate the decree of dissolution of marriage on the basis of Khula.

1. During the course of arguments, learned counsel for the Applicant No. 1 argued that the consideration of Khula was not paid, therefore, the marriage of Respondent No. 1 with the Applicant No. 1 has not dissolved. Suffice is to say that where marriage was dissolved by way of Khula imposing a condition on wife first to return the benefits of husband to him, non-fulfillment of that condition by wife, would not render decree for dissolution of marriage on the basis of Khula as ineffective because imposition of such condition merely would create civil liability and decree for dissolution of marriage passed by way of Khula, could not be considered as dependent on requiring wife to fulfill condition first. The decree of dissolution of marriage, on the basis of Khula, even though made conditional upon the return of the benefits, would operate to dissolve the marriage, when it is passed and the effect thereof would not be postponed till the benefits were returned. Reliance in this regard is placed on the case of “Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana & others” (PLD 1983 Supreme Court 169), where it was observed as under:

“It was held in the case of Moonshee Buzul-ul-Raheem v. Luteefutoon Nisa (8 Moore’s Ind. App. 379) that non-payment of stipulated consideration for Khuladoes not invalidate the dissolution of marriage by Khula. Once the Family Court came to the conclusion that the parties cannot remain within the limits of God and the dissolution of marriage by Khula` must take place, the inquiry into the terms on which such dissolution shall take place does not affect the conclusion but only creates civil liabilities with regard to the benefits to be returned by the wife to the husband and does not affect the dissolution itself.”

1. The Applicant No. 1 also claims that Respondent No. 2 is his son. In support of his version, he relied upon birth certificate issued by Union Council Ahmadpur Lamma wherein the date of birth of Respondent No. 2 is written as 14.12.2006. Although, in the said certificate, the name of the child was written as Ali Imran but the name of his father was written as Imran Azam and mother’s name was written as Rabia Imran. Said entry was made on 10.09.2011. Despite the fact date of birth was written in the certificate as 14.12.2006 but it seems to be a clerical mistake as no corroborative material is available in this regard. Said date of birth does not co-relate and support the version of the Applicant No. 1 as the date of marriage mentioned in the Nikahanama of the Applicant No. 1 with Respondent No. 1 was 13.09.2006. Although, he took a stance that his Shari Nikah was solemnized with Respondent No. 1 in the month of February, 2006 but said fact was not supported through any other piece of evidence. Contrary to that, Respondents No. 1 & 2 proved their stance through overwhelming evidence and the competent Court of law after discussing the whole evidence declared that Respondent No. 2 is son of Imran Azam who was born on 14.12.2010. This Court while deciding the Civil Revision in Para No. 8 of the judgment also observed as under:

“It evince from the record that birth of child took place in Hamdani Hospital Sheikh Zaid Road, Rahim Yar Khan, Pakistan on 14th December, 2010. To this effect, Dr. Shazia Majid Khan, Gynecologist, Hamdani Hospital, Sheikh Zaid Road Rahim Yar Khan (DW-7) was examined who stated that she is scribe of birth certificate (EX.D-7). It is apparent therefrom that in the birth certificate parentage of the minor child is clearly mentioned.”

The august Supreme Court of Pakistan while dismissing the C.P.L.A also observed as under:

“We have heard the learned counsel for the parties. We have noticed that the learned Courts below have rightly appreciated the evidence produced by the parties available on the file. We are of the view that there is no need of reappraisal, even the argument of reappraisal of evidence by the learned counsel is not sustainable. There are findings of facts by the three Courts of competent jurisdiction against the petitioners. Learned counsel for the petitioners failed to make out a case for grant of leave, consequently, same is refused and this petition stands dismissed.”

1. It is also argued that Respondent No. 1 refused to get the DNA test of Respondent No. 2 during the inquiry before the Deputy Commissioner, which was necessary to reach a just conclusion. It is a trite proposition of law that no one can be compelled to give a sample for DNA testing as it would violate his liberty, dignity and privacy of a free person guaranteed under Article 14 of the Constitution of Islamic Republic of Pakistan, 1973. The august Supreme Court of Pakistan while elaborating this proposition in its judgment titled “Mst. Laila Qayyum v. Fawad Qayum and others” (PLD 2019 Supreme Court 449), observed as under:

“Learned Mr. Awan is also right in referring to the case of Salman Akram Raja wherein it was held that a free lady cannot be compelled to give a sample for DNA testing as it would violate her liberty. If a sample is forcibly taken from Laila to determine her paternity it would violate her liberty, dignity and privacy which Article 14 of the Constitution of the Islamic Republic of Pakistan (“the Constitution”) guarantees to a free person.”

It was further held that:

“There is yet another reason why a DNA should not be allowed. If proposed DNA testing is done it would neither confirm nor negate Laila’s paternity.”

1. The provisions of Section 12(2) C.P.C. can only be pressed into service when fraud has been practiced upon the Court during the proceedings of case and judgment & decree was obtained on the basis of such fraud and misrepresentation. The scope of said provision is restricted and the applicant is obliged to prove that fraud or misrepresentation was committed by the adversary in connection with the proceedings of the Court and to prove the following aspects:

i. The fraud and mis-presentation was procured during the proceedings in the Court;

ii. Alleged fraud included untrue statements by respondents who did not believe to be true and has committed active concealment of facts;

iii. Judgment was obtained on the basis of forged documents;

iv. The decree was collusively obtained.

1. A Division Bench of this Court while dealing with said proposition in a case titled “Ms. Shazia Ashraf v. Municipal Committee, Sahiwal Through Administrator and another” (2006 CLC 1018) observed as under:

“The provision of Section 12(2), C.P.C. would be attracted only when fraud or misrepresentation is alleged in connection with the proceeding of the Court and not prior to its initiation or after decision of the Court. Reliance is placed on Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Rehmat Ullah v. Ali Muhammad and another 1983 SCMR 1064; Hyesons Sugar Mills (Pvt.) Ltd. v. Consolidated Sugar Mills Ltd. and others 2003 CLD 996 and WAPDA through Chairman and 5 others v. Messrs Sea Gold Traders 2002 MLD 19, representation made to the Court which is deliberately false, amounts to fraud and would vitiate the order/decree subject to the exception that mere, falsity of claim to the knowledge of the person putting forward the claim would not be granted for setting aside the order or decree on the ground of fraud.”

1. The Applicant No. 2 in their suit for declaration sought a declaration that they are the only legal heirs of deceased Imran Azam and Respondents No. 1 & 2 are not his legal heirs. Whereas, Respondents No. 1 & 2 had to establish that Imran Azam contracted marriage with Respondent No. 1 and as a result of said wedlock Respondent No. 2 was born. The version of the applicants qua non-disclosure of earlier marriages, wrong mentioning of marital status and mentioning different ages by the Respondent No. 1 in the Nikahnama has no bearing on the merits of the case and does not amount to having practiced fraud with the Court. If there is any fraud, at best, it is inter-se the parties which do not attract the provisions of Section 12(2) of C.P.C. Reference is sought from the case titled “Sheikh Muhammad Iftikhar Ahmad and others v. Faiz Ahmad and others” (2023 SCMR 2158), wherein it was held as under:

“Essentially, no case under Section 12(2) of the C.P.C. is made out by the Appellants because no fraud was played on the Court. If there is any fraud, at best, it is inter se the parties which does not attract the provisions of Section 12(2) of the C.P.C. Section 12(2) of the C.P.C. requires that fraud or mis-representation be played on the Court and that consequently the order obtained is through fraud or mis-representation.”

1. The remedy of civil suit available for setting aside the judgment and decree obtained through fraud and misrepresentation prior to the enactment of sub-Section 2 of Section 12 C.P.C was taken away by this sub-Section but this remedy would not be available like a regular suit and the Court may dispose of an application under Section 12(2) C.P.C. without framing issues, recording evidence of the parties and following the procedure for trial of the suit.

The determination of allegation of fraud and misrepresentation usually involves investigation into the question of fact but it is not in every case that the Court would be under obligation to frame issues, record evidence of the parties and follow the procedure prescribed for the decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. The framing of issues depends on the circumstances of each case, the nature of alleged fraud and a decree so obtained. Framing of issues in every case to examine the merits of the application would certainly frustrate the object of Section 12(2), C.P.C which is to avoid, protracted and the time-consuming litigation and to save the genuine decree-holder from grave hardships and ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the Courts.

The august Supreme Court of Pakistan in its recent judgment while elaborating this proposition in a case titled “Hafiz Malik Kamran Akbar and others v. Muhammad Shafi (deceased) through L.RS. and others” (PLD 2024 Supreme Court 262) held as under:

“It is a well-settled exposition of law that for determining the grounds of alleged fraud, misrepresentation or want of jurisdiction, if any, raised in the application moved under Section 12(2), C.P.C., the Court is not obligated in each and every case to frame issues mandatorily in order to record the evidence of parties and exactly stick to the procedure prescribed for decision in the suit but it always rests upon the satisfaction of the Court to structure its proceedings and obviously, after analyzing the nature of allegations of fraud or misrepresentation, the Court may decide whether the case is fit for framing of issues and recording of evidence, without which the allegations levelled in the application filed under Section 12(2), C.P.C. cannot be decided.

It is correct that the determination of allegations of fraud and misrepresentation usually involve investigation into the questions of fact but it is not in every case that the Court would be under obligation to frame issues, record evidence of the parties, and follow the procedure prescribed for decision of the suit. If it were so, the purpose of providing the new remedy would be defeated. The matter is left to the satisfaction of the Court which has to regulate its proceedings, and keeping in view the nature of the allegations in the application, may adopt such mode for its disposal, as in consonance with justice, the circumstances of the case may require. Whereas in the case of Mrs. Amina Bibi through General Attorney v. Nasrullah and others (2000 SCMR 296), it was held by this Court that while dealing with the allegations under Section 12(2), C.P.C., it is not incumbent upon the Court that it must, in all circumstances, frame issues, record evidence and follow the procedure prescribed for decision of the suit. In the case of Amiran Bibi and others v. Muhammad Ramazan and others (1999 SCMR 1334), this Court held that there is no cavil that determination of allegations of fraud and misrepresentation ordinarily involve investigation into the questions of fact and in such cases an inquiry should ordinarily be held to adjudicate upon the matter in issue but it is not the requirement of law that the Court, while dealing with the allegation under Section 12(2), C.P.C., must in all circumstances frame issues, record evidence and follow the procedure prescribed for decision of the suit which depends upon the facts of each case in consonance with justice.”

1. It is a matter of record that the Applicant No. 1 filed his application under Section 12(2) C.P.C. after the dismissal of CPLA filed by the Applicant No. 2 and during the pendency of review petition. Whereas, the Applicant No. 2 filed an application under Section 12(2) C.P.C. after the dismissal of the review petition. After the dismissal of the CPLA and review application, ordinarily an application under Section 12(2) C.P.C. would not be entertainable. The findings of learned Trial Court were maintained by the apex Court of the country. This finality cannot be taken away on the ground that the applicants were ignorant of some facts. If the applicants are permitted to plead their ignorance of lack of information to advance their case, then there will be no end to the litigation. Hon’ble Supreme Court of Pakistan in a case titled “Mst. Dilbar Hamid v. Dr. Ghulam Bheek Khan and others” (1997 SCMR 610), observed as under:

“The application under Section 12(2) C.P.C simply does not lie after dismissal of the review petition by this Court”

The august Supreme Court of Pakistan in a case titled “Muhammad Hussain v. Mukhtar Ahmad” (2006 SCMR 71), held as under:

“To us the proposition canvassed is too naive to merit any serious consideration. Out of the pleadings the Court framed the issues and tried them. The verdict given by the trial Court has been examined by the High Court as well as by this Court and same has been finally upheld with the dismissal of the review application by this Court. The decree has attained finality. This finality cannot be taken away by urging that these petitioners were ignorant of some facts. No litigant can be permitted to plead his ignorance or lack of information to advance his case. Mr. Dogar is not correct in submitting that the improper or incorrect assertion affects the jurisdiction of the Court. Jurisdiction on Courts is conferred by law and does not depend on the litigants /parties stating correct facts in their pleadings. At best, as laid down in Order XLVII, Rule 1(c), C.P.C. discovery of new and important matter or evidence, subject to the condition laid therein, may provide a ground for review of decree. If what Mr. Dogar is suggesting is accepted, there will be no end to litigation and any party can launch a fresh round by pleading revelation of facts and his own ignorance and lack of diligence.”

In another case titled “Mst. Sabiran Bibi and others v. Ahmed Khan and others” (2008 SCMR 226), observed as under:

“I have carefully considered the submissions made at bar and am of the considered view that after dismissal of the CPLA and review application ordinarily, an application under Section 12(2) C.P.C. would not be entertainable. Furthermore, if a point has not been raised at the hearing of the petition and review stage before this Court, no new point of fact or law can be allowed to be urged in the proceedings under Section 12(2) C.P.C.”

25. Once the litigant opted to avail one out of the provided remedies, then it generally could not be permitted to initiate the other one. The apex Court of the country while discussing the doctrine of election in the case reported as “Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others” (PLD 2018 Supreme Court 828), held as under:

“The moment suitor intends to commence any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he has to elect and or choose from amongst host of actions or remedies available under the law. The choice to initiate and pursue one out of host of available concurrent or co-existent proceeding/ actions or remedy from a forum of competent jurisdiction vest with the suitor. Once choice is exercised and election is made then a suitor is prohibited from launching another proceeding to seek a relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/action and or remedy, which in legal parlance is recognized as doctrine of election, which doctrine is culled by the Courts of law from the well-recognized principles of waiver and or abandonment of a known right, claim, privilege or relief as contained in Order II, rule (2) C.P.C., principles of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order 1984 and principles of res-judicata as articulated in Section 11, C.P.C. and its explanations. Doctrine of election apply both to the original proceedings/action as well to defences and so also to challenge the outcome on culmination of such original proceedings/ action, in the form of order or judgment/decree (for illustration it may be noted that multiple remedies are available against possible outcome in the form of an order/judgement/decree etc. emanating from proceedings of civil nature, which could be challenged/defended under Order IX, rule 13 (if proceedings are ex-parte), Section 47 (objection to execution), Section 114 (by way of review of an order), Section 115 (revision), under Order XXI, rules 99 to 103 C.P.C. and Section 96 C.P.C. (appeal against the order/judgment) etc. Though there is no bar to concurrently invoke more than one remedy at the same time against an ex-parte order/judgment. However, once election or choice from amongst two or more available remedy is made and exhausted, judgment debtor cannot ordinarily be permitted subsequently to venture into other concurrently or coexisting available remedies. In a situation where an application under Order IX, rule 13, C.P.C. and also an application under Section 12(2), C.P.C. seeking setting aside of an ex-parte judgment before the same Court and so also an appeal is filed against an ex-parte judgment before higher forum, all aimed at seeking substantially similar if not identical relief of annulment or setting aside of ex-parte order/judgment. Court generally gives such suitor choice to elect one of the many remedies concurrently invoked against one and same ex-parte order/judgment, as multiple and simultaneous proceedings may be hit by principle of res-subjudice (Section 10, C.P.C.) and or where one of the proceeding is taken to its logical conclusion then other pending proceeding for the similar relief may be hit by principles of res-judicata. Giving choice to elect remedy from amongst several coexistent and or concurrent remedies does not frustrate or deny right of a person to choose any remedy, which best suits under the given circumstances but to prevent recourse to multiple or successive redressal of a singular wrong or impugned action before the competent forum/Court of original and or appellate jurisdiction, such rule of prudence has been evolved by Courts of law to curb multiplicity of proceedings. As long as a party does not avail of the remedy before a Court of competent jurisdiction all such remedies remain open to be invoked. Once the election is made then the party generally, cannot be allowed to hop over and shop for one after another coexistent remedies. In an illustrative case this Court in the case of Mst. Fehmida Begum v.

Muhammad Khalid and others (1992 SCMR 1908) encapsulated the doctrine of election as follows:

“However, it is one thing to concede a power to the statutory forum to recall an order obtained from it by fraud, but another to hold that such power of adjudication or jurisdiction is exclusive so as to hold that a suit filed in a civil Court of general jurisdiction is barred. I am therefore in agreement with my brother that a stranger to the proceedings, in a case of this nature has two remedies open to him. He can either go to the special forum with an application to recall or review the order, or file a separate suit. Once he acts to invoke either of the remedies, he will, on the general principles to avoid a conflict of decisions, ultimately before the higher appellate forums, be deemed to have given up and forfeited his right to the other remedy, unless as held in Mir Salah-ud-Din v. Qazi Zaheer-ud-Din PLD 1988 SC 221, the order passed by the hierarchy of forums under the Sindh Rented Premises Ordinance, leaves scope for approaching the Civil Court.”

1. For what has been discussed above, learned counsel for the applicants have failed to substantiate any allegation of fraud, misrepresentation committed during the proceedings of suit by the Respondents No. 1 & 2, to upset or overturn the concurrent findings recorded up to this Court. Hence, both applications are dismissed being meritless and not maintainable.

(Y.A.) Application dismissed

PLJ 2024 Lahore 601

Present: Masud Abid Naqvi, J.

FAYYAZ-UL-HASSAN ANWAR--Petitioner

versus

Mst. SHEHLA KHALID etc.--Respondents

W.P. No. 46618 of 2021, heard on 21.3.2024.

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

----S. 25--Application for custody of minor--Dismissal of petition as withdrawn--Visitation schedule--Appeal--Partly allowed--Petitioner was paying maintenance allowance--Petitioner was living alone without any female--Non-custodial parent--Amendment in visitation schedule--Challenge to--Counsel for petitioner, under instructions of petitioner fully assures High Court that petitioner will never ever remove minor from jurisdiction of Guardian Court--A minor not only needs love, affection, care and attention of a mother but also father and negating a non-custodial parent of his/her right to meet his/her minor children would lead to emotional deprivation--A non-custodial parent has an inherent right to effectively participate in upbringing of minor and that cannot be achieved without properly chalked visitation schedule--Visiting schedule significantly bridges a relationship between minor children and a non-custodial parent--Using visitation rights, a non-custodial parent can not only recolour emotions of minor children for him/her but also reinvigorate bond of love and affection with minor--Partly allowed. [Pp. 603 & 605] A, B & C

2018 SCMR 1991 ref.

Mr. Muhammad Mumtaz Faridi, Advocate for Petitioner.

Mr. Allah Ditta Naseem, Advocate for Respondent No. 1.

Date of hearing: 21.3.2024.

Judgment

Brief facts of this writ petition are that petitioner/ father filed an application under Section 25 of the Guardians & Wards Act, 1890 (“Act”) for custody of the minor namely Marosh Hassan, which was contested by Respondent No. 1/ mother by filing reply and raising certain legal as well as factual objections. Out of divergent pleadings of both the parties, issues were framed by the learned Guardian Court. Thereafter, on 10.06.2020, the petitioner/father appeared before the learned Guardian Court and got recorded his statement which is reproduced hereunder:

“stated that if schedule of the minor’s meeting with me as a real father be fixed by the Court then I would not be having any objection if the instant petition for custody of the minor be dismissed as withdrawn.”

Learned Guardian Court issued a schedule of meeting with minor and dismissed the petition as withdrawn vide order dated 10.06.2020. Feeling aggrieved, Respondent No. 1 filed an appeal and learned Additional District Judge, Pakpattan vide judgment dated 31.05.2021 partially allowed the appeal and issued new schedule for visitation of minor with the petitioner/father. Being dissatisfied, the petitioner/father has filed the instant writ petition and challenged the validity of impugned judgment passed by the learned Appellate Court.

1. During arguments, learned counsel for the petitioner has shown no objection on certain amendments in the order of learned Guardian Court, under instructions, while learned counsel for Respondent No. 1 fully supports the impugned judgment, passed by learned Appellate Court with the arguments that the petitioner/ father is living alone without any female in the house and will not properly maintain his ten years old minor daughter and the Respondent No. 1/mother seriously apprehends that overnight stay will be misused by the petitioner/father in removing the minor from the jurisdiction of the learned Guardian Court but also acknowledges that the petitioner/ father is paying the maintenance of minor without any arrears at this moment. On query, learned counsel for the petitioner, under instructions of petitioner present in the Court, fully assures this Court that the petitioner will never ever remove the minor from the jurisdiction of the learned Guardian Court. I have heard the arguments of the learned counsels for the parties and perused the available record as well as have minutely gone through the impugned judgment.

2. Perusal of record reveals that after recording the statement of the petitioner/father, the learned Guardian Court dismissed the application under Section 25 of the Guardians & Wards Act, 1890 as withdrawn and also issued a schedule of visitation, which is reproduced hereunder:-

(i) The interim custody of the minor will be handed over to the petitioner (father) on first Saturday of every Calendar month at 5:00p.m and respondent shall return the interim custody of the minor to the respondent (mother) on first Sunday at 5:00p.m.

(ii) On the second day of Eid-ul-Fitar the petitioner (father) shall be entitled for interim custody of the minor on 2nd day of Eid-ul-Fitar from 5:00p.m and petitioner shall return the interim custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Fitar at 5:00p.m.

(iii) On the second day of Eid-ul-Azha the petitioner (father) shall be entitled for interim custody of the minor on 2nd day of Eid-ul-Azha from 5:00p.m and petitioner shall return the interim custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Azha at 5:00p.m.

(iv) On the occasion of birthday of the minor, the petitioner (father) shall be entitled for interim custody of the minor from 5:00p.m and petitioner shall return the interim custody of minor to respondent (mother) on the next day of birthday of the minor at 5:00p.m.

(v) During summer vacations, the interim custody of the minor shall be handed over to the petitioner/father on the 1st Sunday of the summer vacations so declared by the School/Government and shall be returned to the respondent/mother at the evening on the 4th Sunday so that minor may have four weeks to spent with his father.

(vi) During winter vacations the interim custody of the minor shall be handed over to the petitioner/father for first half of the winter vacations and the minor shall be returned to the respondent/mother. All the above said meetings will be subject to submission of surety bonds to the tune of Rs. 700,000/- and fee payable to the bailiff by the petitioner.

Learned Appellate Court partially accepted the appeal of Respondent No. 1/mother and new schedule for visitation of minor with respondent was framed, which is reproduced hereunder:-

(i) The interim custody of the minor will be handed over to the respondent (father) on first Saturday of every Calendar month at 10:00 a.m and he shall return the interim custody of the minor to the appellant (mother) on the same day at 1:00 p.m. This meeting would be happened in the visitation room established inside the Court premises.

(ii) On second day of every Eid, at 11:00 a.m the custody of minor will be handed over to the respondent. And he will return her custody to appellant at 3:00 p.m on the same day subject to furnishing surety bond of Rs. 10,00,000/- . Surety will be responsible for safe custody of minor and handing over the custody of minor from one person to another.

(iii) On the occasion of birthday of the minor, the respondent (father) shall be entitled for interim custody of the minor from 1:00 p.m and he shall return the interim custody of minor to appellant (mother) on the same day at 4:00 p.m.

(iv) The respondent (father) will visit the minor during Summer and Winter vacations on every Saturday of month at 11:00 a.m. to 01:30 p.m. at Court premises because minor is of tender age and her custody cannot be handed over to the respondent for night stay.

(v) All the above said meetings will be subject to submission of surety bonds to the tune of Rs. 10,00,000/- and fee payable to the bailiff by the respondent (father).

1. It is a settled proposition of law that a non-custodial parent has all the rights to meet his/her children and neither right of access to his/her minor children can be denied nor a non-custodial parent will be considered as an alien to his/her children. A minor not only needs love, affection, care and attention of a mother but also the father and negating a non-custodial parent of his/her right to meet his/her minor children would lead to emotional deprivation. A non-custodial parent has an inherent right to effectively participate in upbringing of minor and that cannot be achieved without properly chalked visitation schedule. Due to lack of interaction with non-custodial parent, the children start forgetting and in many cases disliking the non-custodial parent and this phenomenon has been named as Parental Alienation Syndrome by the psychiatrists. Hence, visiting schedule significantly bridges a relationship between the minor children and a non-custodial parent. Using visitation rights, a non-custodial parent can not only recolour the emotions of minor children for him/her but also reinvigorate the bond of love and affection with minor.

5. Although, the law on the subject of visitation is contained in the Guardian & Wards Act (VIII of 1890) but without any guidelines about the duration, frequency of those visits of minor and about the visitation schedule, hence, while deciding about the visitation schedule, the paramount consideration is the welfare of minor. Considering the paramount consideration of welfare of minor and in view of the dictum laid down by the Honorable Superior Courts about chalking the visitation schedule of minor, especially the case reported as Mst. Madiha Younus vs. Imran Ahmed (2018 SCMR 1991), the petitioner is entitled to meet with his daughter/ minor as per new visitation schedule which is reproduced hereunder:

(i) The interim custody of the minor will be handed over to the petitioner (father) on first Saturday of every Calendar month at 5:00 pm and respondent shall return the interim custody of the minor to the respondent (mother) on first Sunday at 3:00 pm.

(ii) On the second day of Eid-ul-Fitar the petitioner (father) shall be entitled for interim custody of the minor from 5:00 pm and petitioner shall return the interim custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Fitar at 3:00 pm.

(iii) On the second day of Eid-ul-Azha the petitioner (father) shall be entitled for interim custody of the minor from 5:00 pm and petitioner shall return the interim custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Azha at 3:00 p.m.

(iv) On the occasion of birthday of the minor, the petitioner (father) shall be entitled for interim custody of the minor from 4:00 pm and petitioner shall return the interim custody of minor to respondent (mother) on the same day of birthday of the minor at 8:00 pm.

(v) During summer vacations, the interim custody of the minor shall be handed over to the petitioner/ father on the 1st Sunday of the summer vacations so declared by the School/Government and shall be returned to the respondent/mother by the petitioner after two weeks of minor’s stay with him & during winter vacations the interim custody of the minor shall be handed over to the petitioner/father for just first three days of the winter vacations and thereafter, minor shall be returned to the respondent/mother.

(vi) All the above said meetings will be subject to submission of surety bonds to the tune of Rs. 1000,000/- (rupees ten lacs only) by the petitioner/father to the satisfaction of the learned guardian Court prior to receiving the minor from respondent/mother and also surrendering his international valid passport during the minor’s stay with him and by paying fee payable to the Court’s bailiff by the petitioner.

1. In view of above discussion, instant petition is partly allowed by setting aside the impugned judgment of learned Appellate Court and by also amending the visitation schedule, chalked out by the learned Guardian Court.

(Y.A.) Partly allowed

PLJ 2024 Lahore 607

Present:Sardar Muhammad Sarfraz Dogar, J.

GHULAM SARWAR--Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE etc.--Respondents

W.P. No. 39257 of 2021, heard on 16.11.2022.

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

----Ss. 22-A & 22-B--Dismissal of petition for registration of FIR--Concealment of facts--Police report--Ulterior motive--No supportive evidence in favour of petitioner--False allegation--Witness of occurrence was on judicial remand on date of occurrence--It was evident from record that petitioner had concealed material facts in his application and if report was not summoned from local Police, registration of case on simple application of petitioner may causes harassment to innocent persons and would also be abuse of process of law--The cited witness of occurrence thus, it could not be possible for him to witness occurrence as such from face of it chances of false registration of case with ulterior motives could not be ruled out--The police did not get any supportive evidence in favour of petitioner as such JOP had rightly refused to issue direction to SHO concerned to register case against respondent--Ex-officio Justice of Peace had no other option except to consider report and parawise comments furnished by SHO concerned as narration of application under Section 22-A & 22-B, Cr.P.C. also revealed a false and baseless allegation--Report and parawise comments furnished by police could not be brushed aside if requisitioned by trial Court--Petition dismissed. [Pp. 617 & 618] D, E, F & G

2013 PCr.LJ 684, 2021 SCMR 468, 2014 PCr.LJ 1146 & PLD 2005 Lahore 470 ref.

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

----S. 154--Information in cognizable offence--If there is an information relating to commission of a cognizable offence, it falls under Section 154 of Code of Criminal Procedure. [P. 611] A

PLD 2005 Lahore 470 ref.

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

----S. 154--Duty of SHO--Provisions of Section 154, Cr.P.C. are quite explicit and duty of officer in charge of local Police Station in that regard is mandatory in nature. [P. 611] B

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

----S. 22-A(6)--Discretion of justice of peace--The provisions of Section 22-A (6), Cr.P.C. do not make it obligatory for an ex-officio Justice of Peace to necessarily or blind-foldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard as such Justice of Peace is still left with discretion to pass an order for registration of FIR that’s too in appropriate/certain cases. [P. 613] C

PLD 2005 Lahore 470.

Ch. Khursheed Anwar Bhinder, Advocate for Petitioner.

Mr. Shahzad Saleem Warriach, Advocate and Mian Muhammad Salman Idrees, Advocate for Respondent No. 3.

Mr. Muhammad Ajmal Adil, AAG for State.

Date of hearing: 16.11.2022.

Judgment

By means of this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Ghulam Sarwar impugns the order dated 22.12.2020 passed by the learned Ex-Officio Justice of Peace Ferozewala, whereby an application filed by the petitioner under Sections 22-A, 22-B, Cr.P.C. seeking registration of criminal case against private respondents has been dismissed.

1. The genesis of the controversy as narrated in the application moved by the petitioner under Sections 22-A & 22-B of the Code of Criminal Procedure, 1898 (hereinafter to be referred as “Cr.P.C.”) before Respondent No. 1 (Ex-Officio Justice of Peace Ferozewala District Sheikhupura) stating therein that on 28.2.2020 at 7.00 p.m. at the behest of Muhammad Moeen Chishti, Respondent No. 3, one Wajid s/o unknown armed with pistol, Ahmed s/o unknown armed with pump action, both employees of Respondent No. 3 and Moazam s/o unknown alongwith six other unknown persons armed with firearm weapons forcefully entered into the farm house of the petitioner and on gunpoint took away 15 buffalos after loading in two trucks. The accused also entered in the residential room of the petitioner and after breaking box of the petitioner took away 10 tolas of gold ornaments, clothes, one A.C. and one refrigerator after loading on trucks. Besides, the petitioner, the occurrence was witnessed by Ali Shamsher and Sadaqat. The petitioner had been demanding for return of his articles and cattle and the accused promised to return the same but subsequently refused to do so. The occurrence was reported by the petitioner to SHO Factory Area, District Sheikhupura, through online written complaint bearing No. 9077-2020/5/11-FA, dated 5.11.2020, but no action whatsoever was taken, whereupon the petitioner was constrained to file an application under Sections 22-A, 22-B, Cr.P.C. which was dismissed through the impugned order dated 22.12.2020. Hence, this petition.

3. Learned counsel for the petitioner contends that it is the mandatory duty of the police officer u/S. 154, Cr.P.C. to register FIR on the complaint of the complainant and then to enquire into the matter by summoning the parties, record their statements u/S. 161, Cr.P.C. and to collect evidence and on the basis of such exercise, he has to decide about the guilt or the innocence of the accused persons and if the information or report submitted by the complainant is found false, then he can be proceeded u/S. 182, PPC but in the instant case no case on the complaint of the petitioner has been registered rather the matter was investigated without registering the case which is not mandated by the law. Learned counsel for the petitioner further contends that the proposed accused does not have the right to be heard by the JOP when he deals with an application seeking registration of a case but in the instant case he heard the accused party which amounts to hearing the full-fledged case as the judicial Court, whereas JOP is mandated by law to act as a administrative forum and to take decision on the application of the complainant after hearing the complainant and perusing the police report, therefore, the JOP had acted beyond his power mandated by the law and as such the order passed by him being illegal is liable to be set aside. Learned counsel for the petitioner also contended that the JOP has to form an opinion about the offence being cognizable or non-cognizable from the facts narrated to him by the complainant orally or in writing and for such purpose he is not required to issue notice to accused or to police officer or to anybody else. It is also contended that the JOP has no judicial powers or judicial functions to perform under Section 22-A, Cr.P.C. and all his powers and functions are administrative and ministerial in nature. It is next contended that whether the application was moved with mala fide intention or bona fide intention could only be proved after recording statement of the complainant by the police. He further contends that police report could not be considered as a sole criterion for passing the order by the JOP and the learned JOP while calling report from the police has committed illegality which is against the mandate of law. Further contends that an inquiry cannot be conducted by the police before the registration of the case as the same is alien to the criminal jurisprudence. It is also contended that the jurisdiction of JOP was to see as to why the police officials who were duty bound to record the statement under Section 154, Cr.P.C. have refused to fulfil their duty. Learned counsel for the petitioner in support of his contentions has relied upon “Khizer Hayat and others vs. Inspector-General of Police (Punjab) Lahore and others” (PLD 2005 Lahore 470), “Muhammad Ali v. Additional I.G., Faisalabad and others” (PLD 2014 SC 753), “Mst. Bhaitan vs. The State and 3 others” (PLD 2005 Karachi 621), “Rab Nawaz vs. S.H.O. Police Station, Daharki and 4 others” (2012 MLD 736), “Pir Abdul Qayyum Shah vs. S.H.O. and 4 others” (2005 P.Cr.L.J. 357)[Lahore], “Muhammad Bashir v. Station House Officer, Okara Cantt and others ” (PLD 2007 SC 539), “Brig. (Retd) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamaba d and 2 others” (1994 SCMR 2142).

1. On the other hand, learned counsel for Respondent No. 3 and the learned Law Officer while opposing this petition have supported the impugned order of the learned Justice of Peace and they both have unanimously contended that the impugned order was passed lawfully which does not suffer from any jurisdictional defect and while referring the law laid down by the Hon’ble Supreme Court of Pakistan in Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581) and this Court in Abid Ali alias Imran and another v. City Police Officer, Faisalabad and 6 others (PLD 2021 Lahore 274), mandates that where the Officer In-Charge of a Police Station refuses to register FIR the aggrieved person must approach to the superior officers in the hierarchy before making an application under Section 22-A(6), Cr.P.C. to the Ex-Officio Justice of Peace (“JOP”). In the present case the petitioner moved Respondent No. 1 directly so that application was not competent. Lastly, learned counsel for the respondent while relying upon “Jamal Khan versus Secretary Home Department” (2021 SCMR 468), contended that the report submitted by the police does not support the petitioner’s claim, therefore, the learned JOP has very rightly refused to issue direction to the SHO concerned, therefore, the instant petition is liable to be dismissed on this score also.

2. I have heard the learned counsel for the parties and also gone through the impugned order with their able assistance.

6. After hearing the learned counsel for the parties and going through the case laws cited by the learned counsel for the parties, in order to resolve the controversy in the instant case, to my mind the following questions are necessitated to be dilated upon:-

(i) If there is an information relating to the commission of a cognizable offence, where such information is reported and under what provision of law?

(ii) where an aggrieved person could seek remedy against the Officer In-charge of a police station who refused registration of FIR?

(iii) whether the provisions of Section 22-A(6), Cr.P.C. make it obligatory for an ex-officio Justice of the Peace to necessarily or blind-foldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard?

(iv) what is the nature of functions which the JOP performs and as to whether the same are executive, administrative, ministerial or quasi-judicial? and

(v) how the JOP should decide the applications under Section 22-A (6), Cr.P.C. while exercising his powers under quasi-judicial? I

1. To start and to understand the criminal justice system with regard to registration of criminal case, the first point for elucidation is that if a person is aggrieved by the commission of cognizable offence, where and before whom such information is provided? To answer this basic question, it is observed that if there is an information relating to the commission of a cognizable offence, it falls under Section 154 of the Code of Criminal Procedure, which for the sake of ready reference is reproduced as under:-

“Section 154, Cr.P.C. Information in cognizable cases.

Every information relating to the commission of a cognizable offence if given orally to an officer incharge of a police station, shall be reduced into writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.”

From the perusal of above, there is no gainsaying the fact that the provisions of Section 154, Cr.P.C. are quite explicit and the duty of the officer in charge of the local Police Station in that regard is mandatory in nature. Reliance is placed on “Khizer Hayat and others vs. Inspector-General of Police (Punjab), Lahore and others” (PLD 2005 Lahore 470). As such a police officer is bound to receive a complaint when it is preferred to him or where the commission of an offence is reported to him orally, he is under statutory obligation to enter it in the prescribed register, but the condition precedent is simply twofold: first, it must be an information and, secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. Guidance is sought from “Saeed Ahmad and others v. Naseer Ahmad and others” (PLD 2000 Lahore 208), & “M. Anwar Barrister-at-law v. The Station House Officer, Civil Lines Police Station, Lahore, and another” (PLD 1972 Lahore 493). The relevant excerpt is reproduced as under:

“If there is an information relating to the commission of a cognizable offence, it falls under Section 154, of the Code of Criminal Procedure and a police officer is under a statutory obligation to enter it in the prescribed register. The condition precedent is simply two-fold; first, it must be an information and, secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events.”

1. Now, the question arises, where an aggrieved person could seek remedy against the Officer In-charge of a police station who refuses registration of FIR? On 21.11.2002, the Criminal Procedure (Third Amendment) Ordinance, 2002 (Federal Ordinance No. CXXXI of 2002), added sub-section (6) in Section 22-A, Cr.P.C. and conferred additional powers on the Ex-officio Justices of Peace in respect of entertaining complaints and issuance of appropriate directions to the police authorities concerned regarding registration of criminal cases, transfer of investigation of criminal cases and in respect of neglect, failure or excess committed by a police authority in relation to its functions and duties. The said provision reads as under:-

“Section 22-A(6). An ex-officio Justice of the 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.”]

(emphasis provided)

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.

It was the intention of the legislature that if there is a genuine grievance on the part of an individual against the police and most particularly with reference to non-registration of FIR, he will resort to the concerned Justice of Peace i.e. Sessions Judge or Additional Sessions Judge in a District for the redressal of his grievance and the concerned JOP would pass an appropriate order by keeping in view the fact and circumstance of the case. As such with insertion of clause (i) of Section 22-A(6), Cr.P.C. created a new forum where an aggrieved person could seek remedy against the Officer In-charge of a police station who refused registration of FIR.

1. Now come to the third question framed above, as to whether the provisions of Section 22-A(6), Cr.P.C. make it obligatory for an ex-officio Justice of the Peace to necessarily or blind-foldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard? In this context, it has been noticed that in Section 154, Cr.P.C. the word “sh all” has been used while in Section 22-A(6), Cr.P.C. the word “ma y” has been used, which manifests the intention of the legislature that the officer in charge of the relevant Police Station may be under a statutory obligation to register an FIR whenever information disclosing commission of a cognizable offence is provided to him but the provisions of Section 22-A (6), Cr.P.C. do not make it obligatory for an ex-officio Justice of the Peace to necessarily or blind-foldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard as such the Justice of Peace is still left with discretion to pass an order for the registration of FIR that’s too in appropriate/certain cases. Guidance is sought from the authoritative judgment of learned Full Bench of this Court in a case reported as “Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others” (PLD 2005 Lahore 470), wherein the learned Full Bench of this Court while dilating upon this issue was pleased to observe as under:

“As regards the complaints regarding failure of the police to register a criminal case despite commission of a cognizable offence having been reported to it there is no gainsaying the fact that the provisions of Section 154, Cr.P.C. in that respect are quite explicit and the duty of the officer in charge of the local Police Station in that regard is mandatory in nature. However, the officer in charge of the relevant Police Station may be under a statutory obligation to register an FIR whenever information disclosing commission of a cognizable offence is provided to him but the provisions of Section 22-A(6), Cr.P.C. do not make it obligatory for an ex-officio Justice of the Peace to necessarily or blind-foldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard. The use of the word “may” in Section 22-A(6), Cr.P.C. clearly shows that the jurisdiction of an ex-officio Justice of the Peace in that regard is discretionary in nature and understandably so.”

Even otherwise, the contention raised by the learned counsel for the petitioner while relying upon the case of “Muhammad Bashir vs. Station House Officer, Okara Cantt and others” (PLD 2007 Supreme Court 539), that the jurisdiction of the JOP is limited to the examination of the complaint/information laid before him and he should right away direct the Officer In-charge of police station to register FIR if it discloses commission of a cognizable offence being overruled by the judgment of the larger Bench of Hon’ble Supreme Court of Pakistan reported as “Younas Abbas and others vs. Additional Sessions Judge, Chakwal and others” (PLD 2016 SC 581), is hereby repelled. The relevant portion from Head Note-(b) is reproduced as under:

“Functions performed by the Ex-officio Justice of Peace were not executive, administrative or ministerial inasmuch as he did not carry out, manage or deal with things mechanically. Such functions as described in clauses (i), (ii) and (iii) of Section 22-A (6), Cr.P.C. were quasi-judicial as Ex-officio Justice of Peace entertained applications, examined the record, heard the parties, passed orders and issued directions with the application of mind. Every list before him demanded discretion and judgment. Functions so performed could not be termed as executive, administrative or ministerial on any account.”

1. The next question is “what is the nature of functions which the JOP performs and as to whether the same are executive, administrative, ministerial or quasi-judicial?” Learned counsel for the petitioner while referring the authoritative judgment of learned Full Bench of this Court reported as “Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others” (PLD 2005 Lahore 470) and “Muhammad Ali v. Additional I.G., Faisalabad and others” (PLD 2024 SC 753), has laid much emphasis that the powers and duties of a Justice of the Peace or an ex-officio Justice of the Peace in Pakistan as provided in Sections 22-A & 22-B, Cr.P.C. do not involve any jurisdiction which can be termed as judicial in nature or character and the functions to be performed by a JOP or an ex-officio justice of the Peace are merely administrative and ministerial in nature and character. But subsequently, the Larger Bench of Hon’ble Apex Court in a case reported as “Younas Abbas and others vs. Additional Sessions Judge, Chakwal and others” (PLD 2016 SC 581), did not agree with the ratio of the Khizar Hayat and Muhammad Ali’s cases (supra) to the extent of the nature of the functions of the Ex-Officio Justice of Peace and held that the functions, the Ex-officio Justice of Peace performs are not executive, administrative or ministerial while the same are quasi-judicial in nature. As such Full Bench decision of this Court in “Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others” (PLD 2005 Lahore 470), and “Muhammad Ali v. Additional I.G., Faisalabad and others” (PLD 2014 SC 753), also stands overruled by Younas Abbas’s case insofar as it says that the powers of the JOP are ministerial. The relevant extract from the above referred judgment of the Larger Bench of Hon’ble Apex Court is reproduced as under:

“11. The duties, the Justice of Peace performs, are executive, administrative, preventive and ministerial as is evident from sub-Sections (1), (2), (3), (4) and (5) of Sections 22-A and 22-B of the, Cr.P.C. Such duties have not been a subject-matter of controversy nor have they ever been caviled at by anybody. Controversy emerged with the insertion of sub-section (6) in Section 22-A and Section 25 of the, Cr.P.C. when the Sessions Judges and on nomination by them the Additional Sessions Judges became the Ex-Officio Justices of Peace. The functions, the Ex-Officio Justice of Peace performs, are not executive, administrative or ministerial inasmuch as he does not carry out, manage or deal with things mechanically. His functions as described in Clauses (i), (ii) and (iii) of sub-section (6) of Section 22-A, Cr.P.C. are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. Every lis before him demands discretion and judgment. Functions so performed cannot be termed as executive, administrative or ministerial on any account. We thus don’t agree with the ratio of the judgments rendered in the cases of Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) and Muhammad Ali v. Additional I.G. (PLD 2015 SC 753) inasmuch as it hold (sic) that the functions performed by the Ex-Officio Justice of Peace are executive, administrative or ministerial.”

From the perusal of above, it can safely be held that the contention of learned counsel for the petitioner that “the JOP has no judicial powers or judicial functions to perform under Section 22-A, Cr.P.C. and all his powers and functions are administrative and ministerial in nature” is not in consonance with the judgment of the Larger Bench of Hon’ble Apex Court mentioned supra.

1. The next point for consideration is that how the JOP should decide the applications under Section 22-A (6), Cr.P.C. while exercising his powers under quasi-judicial? In “ Namit Sharma v. Union of India, [2013] 13 SCR 1, the Supreme Court of India observed that a quasi-judicial act requires that “a decision is to be given not arbitrarily or in mere discretion of the authority but according to the facts and circumstances of the case as determined upon an inquiry held by the authority after giving an opportunity to the affected parties of being heard or wherever necessary of leading evidence in support of their contention.” It is significant to point out here that before “Younas Abbas and others v. Additional Sessions Judge, Chakwal, and others” (PLD 2016 SC 581), it was the Courts consistent view that the ‘proposed accused’ does not have the right to be heard by the JOP when he considers an application seeking registration of a case. However, Younas Abbas’s case mentioned supra has changed the situation. The use of the words “examines the record, hears the parties” contemplates hearing the proposed accused and going beyond the contents of the application for registration of case to determine whether sufficient incriminating material exists to justify the direction. The legal jurisprudence in our country is well settled that registration of FIR is not an adverse order. In this view of the matter, the Full Bench in Khizer Hayat’s case held that it is neither obligatory for the Officer In-charge of police station nor the JOP to afford an opportunity of hearing to the accused party before the registration of a criminal case or issuing a direction in that regard. The Hon’ble Supreme Court’s holding in Younas Abbas‘s case that the JOP exercises quasi-judicial functions does not overrule that said principle. As such, the JOP does not have the absolute duty to hear the accused while deciding an application under Section 22-A(6), Cr.P.C. and he may afford him audience only if the circumstances demand so. No hard and fast rule can be laid down in that respect.

2. So far as the contention of the learned counsel for the petitioner that the learned JOP has committed illegality while calling report from the Police is concerned, although an Ex-officio Justice of Peace is not bound to seek report from the police but when a report is called, then it should not be ignored. Reliance is placed on “Mureed Hussain v s. Additional Sessions Judge/Justice of Peace Jampur and 3 others” (2014 P.Cr.L.J. 1146), the relevant portion is reproduced as under:

“7. An-Ex-Officio Justice of Peace is not bound to seek report from the police at every cost and he is fully competent to decide the application and pass an order, even without any report by the police. But when a report is called, to know the truth and real facts, as per the above-mentioned dictum, then it should not be ignored. If Ex-Officio Justice of Peace does not agree with the report, then should give the reasons. Seeking and obtaining a police report but ignoring and passing an order contrary to it, without assigning any reason could not be appreciated. Special care to this situation is required.

Reliance is also placed on “Jamal Khan versus Secretary Home Department” (2021 SCMR 468), wherein the report submitted by the police did not support petitioner ’s claim and there was consensus that both the sides were locked in a dispute of civil nature. Against such peculiar backdrop, refusal by the Justice of Peace to issue direction to the Station House Officer and non-interference by the High Court therewith did not suffer from any jurisdictional error or flaw as such petition for leave to appeal was dismissed and leave was refused.

1. No doubt, the contention of the learned counsel for the petitioner that an inquiry cannot be conducted by the Police before the registration of the case is correct but it is evident from the record that the petitioner had concealed material facts in his application and if report is not summoned from the local Police, the registration of the case on the simple application of the petitioner may causes harassment to innocent persons and would also be abuse of process of law. Furthermore, where the Court felt that a preliminary inquiry or pre-registration inquiry can take place in the cases where the information was cryptic, without any substance, uncertain or vague which could create a doubt in the mind of the Court that the information laid before him does not clearly disclose commission of a cognizable offence and there is a need to conduct a further inquiry before registration of an FIR. Reliance is placed on “Khalid Anwar vs. Ex-officio Justice of Peace, Lahore and 3 others” (2013 P.Cr.L.J. 684).

2. Adverting to the merits of the case, having looked through the documents as well as the order impugned before me, I am of the considered view that there is nothing in the impugned order which could warrant interference by this Court. The contents of the application submitted by the petitioner qua the registration of the case are falsified as according to petitioner the occurrence had taken place on 28.2.2020 and besides the complainant the occurrence was witnessed by Ali Shamshair and Sadaqat, whereas, perusal of the record depicts otherwise, which transpires that the cited witness of the occurrence namely, Ali Shamshair was on judicial remand on 28.2.2020 in case FIR No. 239/2020, registered under Sections 380/411, PPC, thus, it could not be possible for him to witness the occurrence as such

from the face of it chances of false registration of the case with ulterior motives cannot be ruled out. Furthermore, from the contents of application, it has been gathered that the petitioner is just trying to blackmail the proposed accused in order to settle some scores as prior to this, son of the petitioner got a criminal case registered under Section 506-B, PPC against Khalid Shah etc, who were employees of Moeen Chishti, whereas, during the course of investigation said accused were found not connected. Even otherwise, the police also did not get any supportive evidence in favour of the petitioner as such the learned JOP has rightly refused to issue direction to the SHO concerned to register the case against the respondent. Reliance is placed on “Jamal Khan vs. Secretary Home Department” (2021 SCMR 468). In the attending circumstances, the learned Ex-officio Justice of Peace has no other option except to consider the report and parawise comments furnished by the SHO concerned as the narration of application under Section 22-A & 22-B, Cr.P.C. also reveals a false and baseless allegation. Even otherwise, report and parawise comments furnished by the police cannot be brushed aside if requisitioned by the learned trial Court. Reliance is placed on “Mureed Hussain vs. Additional Sessions Judge/Justice of Peace Jampur and 3 others” (2014 P.Cr.L.J. 1146) and “Khizer Hayat and others v. Inspector General of Police (Punjab) Lahore and others” (PLD 2005 Lahore 470).

1. For what has been discussed above, I do find no merit in the instant writ petition which is hereby dismissed. However, the petitioner is at liberty to file a private complaint before the competent forum, if so advised.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 618

Present: Masud Abid Naqvi, J.

RAB NAWAZ deceased son of Abdul Haq through his Legal Heirs etc.--Petitioners

versus

Mst. SAMRA ANDLEEB--Respondent

C.R. No. 44182 of 2024, decided on 12.7.2024.

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

----Ss. 96, 115--Gift mutation--Gift deed--General power of attorney--Trial Court decreed suit to extent of gift mutation and declaring gift deed as void ab initio--Partly decree--Written permission of principle of to attorney was not pleaded or exhibited by petitioners--Execution of GPA and ingredients of gift transaction were not proved by petitioners--Appeals--Dismissed--Challenge to--Invalid transaction--There was no denial of facts that petitioners had neither specifically pleaded in written statement about alleged specific permission of principal to his attorney to gift his property to his Petitioner No. 1-A through gift deed or original transaction of gift with time, date, day, month etc. nor three essential inseparable ingredients of valid gift i.e. offer, acceptance and delivery of possession--On basis of alleged general power of attorney, alleged gift deed was registered during lifetime of principal and it was strange that neither principal himself exercised right and power for purpose of making a gift to alleged donee in law by taking a mentally conscious decision nor signed disputed gift deed in favour of alleged donee, who had no mental or physical incapacity at that time--Petitioners miserably failed to plead and prove through evidence (i) execution of general power of attorney (ii) making of original oral gift transaction with its legal ingredients--Civil revision dismissed. [Pp. 620, 621 & 622] A, B, D & E

1994 SCMR 818, 1997 SCMR 1811, PLD 2003 SC 31, PLD 2003 SC 494, 2021 SCMR 1298, 2024 SCMR 734 ref.

Power of Attorney--

----Power of attorney is an instrument in writing, conferring authority or power by a principal to his attorney to do certain acts in a specific and limited manner. [P. 621] C

Farzana Nazir Bhullar, Advocate for Petitioners.

Date of hearing: 12.7.2024.

Judgment

Concise facts of this civil revision are that the daughter of deceased Abdul Haq /plaintiff/respondent challenged oral gift mutation No. 132 dated 04.07.1996 allegedly entered/sanctioned by the plaintiff/respondent’s deceased father in favour of his son/Defendant No. 1/predecessor in interest of the petitioners and also challenged the validity of general power of attorney No. 712/4 dated 10.11.2001/ Ex.D-3 allegedly executed by the plaintiff/respondent’s deceased father/ principal in favour of Defendant No. 1/his son/attorney who transferred the principal’s property to his wife/Defendant No. 2/Petitioner No. 1-A through gift deed No. 4000/1 dated 29.12.2004/Ex.D-1 without the special/express permission of principal. The suit was duly contested by the petitioners/defendants by filing written statement and by raising certain factual as well as legal objections. Out of divergent pleadings of the parties, issues were framed by the learned trial court. The parties produced their respective evidence and after recording the same, learned trial Court dismissed the suit of the plaintiff to the extent of gift mutation No. 132 dated 04.07.1996 and partially decreed the suit of plaintiff by declaring the gift transaction/gift deed gift deed No. 4000/1 dated 29.12.2004/Ex.D-1 executed on basis of general power of attorney No. 712/4 dated 10.11.2001/Ex.D-3 as void ab initio vide judgment and decree dated 08.06.2002. Feeling aggrieved, the plaintiff/respondent as well as defendants/petitioners filed their respective appeals and the learned Addl. District Judge, Sahiwal vide consolidated judgment and decrees dated 21.05.2024 dismissed both the appeals. Being dissatisfied, the defendants/petitioners have filed the instant civil revision and challenged the validity of the impugned judgments and decrees passed by the learned Courts below only to the extent of findings on gift transaction/gift deed No. 4000/1 dated 29.12.2004 & general power of attorney No. 712/4 dated 10.11.2001.

1. The learned counsel for the petitioners/defendants mainly argues that the disputed gift deed was registered by the Defendant No. 1/son of deceased Abdul Haq in favour of Defendant No. 2/his wife on behalf of his father after not only obtaining the oral permission/consent from his father/principal to gift the disputed property to his wife but also obtained an affidavit from his father, permitting the Defendant No. 1 to gift the land to his wife. On Court’s query, the learned counsel for the petitioners concedes that the alleged affidavit has not been pleaded or exhibited in evidence by the defendants/petitioners in their evidence.

2. I have heard the arguments of learned counsel for the petitioners and minutely gone through the record as well as the impugned judgments and decrees.

3. There is no denial of the facts that the defendants/petitioners have neither specifically pleaded in the written statement about the alleged special/specific permission of the principal/ father to his attorney/son/Defendant No. 1 to gift his property to his wife/Defendant No. 2/Petitioner No. 1-A through gift deed No. 4000/1 dated 29.12.2004 or the original transaction of gift with time, date, day, month etc. nor three essential/basic/inseparable ingredients of valid gift i.e. offer, acceptance and delivery of possession. The defendants/petitioners have also not pleaded/exhibited any document(s) especially showing the written consent/permission of the principal to the attorney as is allegedly written in the disputed gift deed. On the basis of alleged general power of attorney No. 712/4 dated 10.11.2001/Ex.D-3, alleged gift deed No. 4000/1/Ex.D-1 dated 29.12.2004 was registered during the lifetime of the principal and it is strange that neither the principal himself exercised the right and power for the purpose of making a gift to alleged donee/his daughter in law by taking a mentally conscious decision nor signed disputed gift deed in favour of the alleged donee, who had no mental or physical incapacity at that time, pleaded by the defendants/petitioners themselves in their written statement. Power of attorney is an instrument in writing, conferring authority or power by a principal to his attorney to do certain acts in a specific and limited manner and in the disputed general power of attorney No. 712/4 dated 10.11.2001/Ex.D-3, no specific powers were given by the principal/father to his attorney/his son to gift his land to attorney’s wife/Defendant No. 2/Petitioner No. 1-A by clearly specifying the name of done and the power of attorney is also not clearly indicating/conveying the principal’s knowledge, intention and consent for making gift of his land to his attorney’s wife/principal’s daughter in law. There is no cavil to the proposition that generally an attorney cannot utilize the powers conferred upon him to transfer the property to himself or his kith and kin, without special and specific consent/permission of the principal and in case of gift transaction, more strict conditions have been attached by the Superior Courts for proving the gift made by an attorney as a valid gift transaction because being voluntarily and gratuitous, gift reflects the personal sentiments of love, affection, kindness and compassion of donor for the donee or sometimes sentiments due to personal services rendered by the donee to the donor and personal sentiments of donor/principal cannot be expressed by an attorney on behalf of donor, therefore, the process of making valid gift must preferably be initiated & completed by the donor himself with the exception that the attorney may gift the property on the express permission and instructions of his principal. Strong personal sentiments of donor must necessarily be directly established in gift transaction in clear terms through pleadings and irrefutable evidence because alleged donor has allegedly deprived his daughter/plaintiff from his land. The resume of the discussion is that the defendants/petitioners miserably failed to plead and prove through evidence (i) execution of general power of attorney/Ex.D-3 & (ii) making of original oral gift transaction with its legal ingredients, valid gift with offer, acceptance and delivery of possession, express permission/instructions of donor/principal to his attorney for making gift & execution of gift deed/Ex.D-1. Reference is made to the cases reported as “Mst. Shumal Begum vs. Mst. Gulzar Begum and 3 others” (1994 SCMR 818), “Haji Faqir Muhammad and others vs. Pir Muhammad and another” (1997 SCMR 1811),”Maqsood Ahmad and others vs. Salman Ali” (PLD 2003 S.C. 31), “Jamil Akhtar and others

vs. Las Baba and others” (PLD 2003 S.C. 494), “Ijaz Bashir Qureshi vs. Shams-un-Nisa Qureshi and others” (2021 SCMR 1298), “Syed Atif Raza Shah vs. Syed Fida Hussain Shah and others” (2022 SCMR 1262) and “Babar Anwar vs. Muhammad Ashraf and another” (2024 SCMR 734).

1. In view of above, challenged findings of the learned Courts below in impugned judgments and decrees to the extent of declaring the gift deed No. 4000/1 dated 29.12.2004 as invalid transaction are upheld/maintained. Neither any misreading or non-reading of evidence on record nor any infirmity, legal or factual, has been pointed out in the challenged findings of the learned Courts below in impugned judgments and decrees passed by the learned Courts, therefore, this civil revision is, hereby, dismissed in limine.

(Y.A.) Civil revision dismissed

PLJ 2024 Lahore 622

Present: Ahmad Nadeem Arshad, J.

ASGHAR ALI (deceased) through LRs.--Appellants

versus

AHMAD ALI (deceased) through LRs, etc.--Respondents

R.S.A. No. 75 of 2002, decided on 29.4.2024.

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

----Ss. 8, 12 & 39--Agreement to sell--Earnest money--denial of execution of agreement to sell--Suit for recovery of possession, cancellation and specific performance--Decreed--Appeal--Allowed--Consensus during pendency of appeal between parties--Dismissal of appeal in light of consensus--Anti dated agreement to sell--Identity card of attesting witness was issued in 1989--Agreement to sell was executed in 1986--discretionary relief--Statement of registration clerk of NADRA--Challenge to--At time of arguments parties reached to a consensus that original record qua identity card of PW-2 witness be summoned and if in middle column figure “89” or figure after year “86” appears then suit of appellant be dismissed and if figure of “86” or before it reflects then appeal be dismissed--Said statement of respondents was accepted by General Attorney--Lower Appellate Court, in light of consensus arrived at between parties statement of Registration Clerk, entry in Register wherein it was specifically mentioned that Identity Card of PW-3 was prepared on 02.01.1989 allowed appeal and dismissed suit of appellant-- Court should not had acted so promptly, rather every possibility of ambiguity or emotions should have been ruled out before permitting such arrangement--The point upon which consensus developed between parties was a surprising thing for appellant, hence, appellant could resile or deviate from settlement--To allow a party to resile from his earlier commitment without adequate reason would amount to allowing him to play a game of hide and seek with other party and even would amount to abuse process of Court--It is settled proposition of law that offer once made by any party and accepted by other party becomes a binding contract between parties and nobody is allowed to resile or back out from it on principle of estoppel-- Appellate Court rightly decided appeal in light of consensus arrived at between parties--It was established on record that Identity Card had been issued to attesting witness on 02.01.1989, it made agreement to sell anti-date which was allegedly executed on 08.03.1986 wherein name of witness PW-3 was entered with his Identity Card--Appeal dismissed. [Pp. 626, 628, 629, 631& 632] A, B, C, D, E, F & G

PLD 1990 SC 841, 1974 SCMR 224, 1981 SCMR 162, 1995 SCMR 795, PLD 1996 SC 237 ref.

Mr. Hammad Khalid Butt, Advocate for Appellants.

M/s. Ch. Muhammad Jameel Zafar and Muhammad Talha Mushtaq, Advocates for Respondents No. 2 & 3.

M/s. Ch. Amjad Ali Bajwa and Khawar Shabbir Khan, Advocates for Respondents No. 4 & 5.

Date of hearing: 22.4.2024.

Judgment

Through this Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (‘CPC’), the appellant has called into question the vires, validity and legality of the judgment & decree of learned lower Appellate Court dated 22.03.2002 pursuant whereto the appeal preferred by the respondents was accepted, judgment & decree of the learned Trial Court dated 16.01.1996 was set-aside and consequently suit of the appellant was dismissed.

1. Relevant facts forming background of the proceedings in hand are that plaintiff/predecessor of appellants, namely, Asghar Ali, (hereinafter referred to as “appellant”) instituted a suit on 07.03.1990 for recovery of possession, cancellation of registered sale deed dated 03.05.1988 attested in favour of defendants/Respondents No. 2 to 4 (hereinafter referred to as “respondents”) from Defendant/ Respondent No. 1 Ahmad Ali and sought performance of an agreement to sell whereby Respondent No. 1 agreed to sell his land measuring 103 Kanals, 04 Marlas (hereinafter referred to as “suit property”) for a consideration of Rs. 165,000/- and after receipt of Rs. 130,000/- as an earnest money executed the agreement to sell on 08.03.1986. It was pleaded that after execution of the agreement to sell, Respondent No. 1 transferred the suit property to Respondents No. 2 to 4 through registered sale deed dated 03.05.1988 for a consideration of Rs. 380,000/- and thereafter Respondent No. 4 sold his share measuring 47 Kanals & 04 Marlas through oral sale mutation No. 1180 dated 28.02.1990 to Respondent No. 5 for a consideration of Rs. 180,000/-. Appellant prayed for cancellation of sale deeds and decree of his suit.

2. The suit was resisted by the respondents through filing of contesting written statements. Respondents in their written statement denied the execution of agreement to sell in favour of the appellant and claimed it to be forged and fictitious. They categorically denied the signatures of Respondent No. 1 on agreement to sell and purchasing of stamp paper, however, admitted that they purchased the suit property from Respondent No. 1 through registered sale deed with consideration and prayed for dismissal of the suit. Respondent No. 5 also denied the execution of the agreement to sell and maintained that said agreement was prepared through fraud and the signatures attributed to Respondent No. 1 are also forged and fictitious by maintaining that the agreement has been prepared ante-dated by procuring stamp papers of back dates. In last, he prayed for dismissal of the suit. In the light of divergent pleadings of the parties, learned Trial Court reduced the controversy into necessary issues and after recording evidence of the parties pro & contra, oral as well as documentary decreed the suit vide judgment & decree dated 16.01.1996. Feeling aggrieved, respondents preferred an appeal. During the pendency of said appeal, at the time of arguments parties reached to a consensus that original record qua identity card of witness Mubashir be summoned and if in the middle column figure “89” or the figure after the year “86” appears then the suit of the appellant be dismissed and if the figure of “86” or before it reflects, then, the appeal be dismissed. Said statement of respondents (appellants in the said appeal) was accepted by Muhammad Sarwar (General Attorney of Asghar Ali, appellant). Learned Appellate Court after recording statements of the parties, summoned the original file of the registration office of Identity Card and adjourned the proceedings for 09.01.1997. On the said date, Muhammad Asif Butt, Registration Clerk attended the Court along with relevant record but due to transfer of the Presiding Officer, no proceedings could be conducted. On that date, appellant also moved an application under Section 151 of C.P.C., for elaboration of interim order dated 08.12.1996 respondents submitted its written reply on 05.03.1997 and the learned lower Appellate Court vide order dated 19.02.2002 dismissed the same with cost of Rs. 3,000/-. The appellant moved a review petition on 12.03.2002 for recalling of said order and also deposited the cost. In the meanwhile learned lower Appellate Court recorded the statement of Clerk of the Registration Office who produced the original record with regard to the Identity Card of witness Muhammad Mubashir S/o Muhammad Siddique and after retaining the photocopy of the register as Mark-A returned the original register. Thereafter, in the light of said record of Registration Office wherein Identity Card of Mubashir was issued on 02.01.1989 the appeal was allowed by dismissing the appellant’s suit vide judgment and decree dated 22.03.2002 and the review petition filed by the appellant was also dismissed on the same date vide separate order. Feeling aggrieved, appellant filed instant Regular Second Appeal. The appeal was dismissed by this Court on the ground that the appellant failed to implead the parties of the suit in the memorandum of appeal by declaring that said appeal having not been properly constituted vide judgment & decree dated 05.06.2007. The appellant assailed said judgment & decree through appeal (Civil Appeal No. 255-L of 2010) before the Hon’ble Supreme Court of Pakistan which was allowed vide order dated 05.11.2020 with the observation that cases should be heard and decided on merits rather than being dismissed on such procedural technicalities and the matter was remanded with a direction to decide the same afresh on merits.

3. I have heard learned counsel for the parties at length and perused the record with their able assistance.

4. The appellant, through his suit, sought performance of the agreement to sell dated 08.03.1986 (Exh.P-1). Perusal of said document reflects that the stamp paper used for executing the said agreement to sell was issuedvide serial No. 1262 on 08.03.1986 in the name of Ahmad Ali (vendor). Said agreement has been shown to be witnessed by Muhammad Asghar Ali S/o Ali Muhammad (Identity Card No. 303-42-389888), Muhammad Azeem Hashmi s/o Ghulam Mohy-ud-Din (Identity Card No. 303-08-013996) and Muhammad Mubashir s/o Muhammad Siddique (Identity Card No. 305-89-446872). Respondents No. 1 to 4 and Respondent No. 5 in their written statements categorically denied the execution of said agreement to sell and claimed it to be forged and fictitious. Resondent No. 5 also took a stance that agreement to sell was prepared anti-dated while showing the back-dates. In this background, when one of the attesting witness namely Muhammad Mubashir appeared as P.W.2, he was specifically cross-examined on 17.11.1991. He deposed that when the agreement Exh.P-1 was executed, he was 16/17 years old, however, he maintained that when he witnessed the agreement at that time his Identity Card had been prepared. He maintained that only one Identity Card was issued to him and deposed that he did not remember as to when the same was prepared. Said Mubashir appeared as PW-3 on 08.03.1992 and produced his Identity Card as Exh.P-4 and during cross examination maintained that his Identity Card was prepared almost 2/3 years ago. Said Identity Card has become blur/obscure and most of the contents are illegible. The respondents specifically argued that according to the statement of PW at the time of execution of the agreement to sell (Exh.P-1) he was at the age of 16/17 years, whereas, his identity card was prepared in the year 1989 and it clearly shows that the agreement to sell (Exh.P-1) was prepared in the back dates which was shown to be executed on 08.03.1986. Learned Trial Court also replied the said objection in Para-12 of the judgment which reads as under:

“I am not in agreement with the argument advanced by learned counsel for the defendants because the identity-card Ex.P4 of P.W2 is absurd and entries on it are not readable. Further the defendants have not produced the record of identity-card office to prove that this identity-card was prepared in the year 1989. The perusal of agreement to sell Ex.P1 indicates that the figures of identity-card number of P.W2 are not under the ink of thumb impression of P.W2 on the agreement to sell, whereas the other word such as “تحصیل”is under the ink of the thumb impression. It means that the identity-card number of P.W2 on the agreement to sell Ex.P1 was not mentioned at the time of writing of agreement to sell. It looks that it was mentioned on it afterwards. It therefore, goes to show that it is an over act of plaintiff to further secure his rights. In view of this overact of the plaintiff, it cannot be observed that the document Ex.P1 was prepared in back dates particularly when its execution by Defendant No. 1 is proved from evidence on the record.”

1. The respondents in their memo of appeal also raised said ground. In the light of said scenario, at the time of arguments parties reached to a consensus that original record qua identity card of witness Mubashir be summoned and if in the middle column figure “89” or figure after the year “86” appears then the suit of the appellant be dismissed and if the figure of “86” or before it reflects then the appeal be dismissed. Said statement of respondents was accepted by Muhammad Sarwar (General Attorney of Asghar Ali, appellant). Learned Appellate Court after recording statements of the parties, summoned the original file of registration office of Identity Card and adjourned the proceedings for 09.01.1997. For better understanding, the order of Court dated 05.12.1996 with statements are reproduced in verbatim as under:

5-12-96

کونسل فریقین حاضر۔

رشید احمد۔ محمد یوسف۔ محمد سعید اپیلا نٹس اصالتا ًحاضر ۔

محمد سر ور ولد محمد شفیع مختار عام رسپانڈنٹ اصالتا حاضر۔

دورانِ بحث فریقین نے اس امر پر دعویٰ و اپیل کے فیصلے پر راضی ہوئے ہیں کہ گواہ مبشر (2-PW) کے شناختی کارڈ کا اصل ریکارڈ طلب کیا جائے اگر اس نے درمیانی خانے کا نمبر 89 ہو یا 86 کے بعد کا سال ہو تو مدعی کا دعویٰ خارج کیا جائے۔

بیان کو نسل اپیلا نٹس مدعا علیہم بلاحلف۔

بیان کیا کہ اپنے موکلان کی ہدایت پر بیان دیتا ہوں کہ مبشر ولد محمد صدیق گواہ کے شناختی کارڈ کی اصل مسل طلب کی جائے۔ اگر اس شناختی کارڈ میں درمیانی سال 1986کے بعد کا ہو تو اپیل ہذا منظور کر کے دعویٰ مدعی اصغر علی خارج کر دیا جائے اگر یہ سال 1986 سے پہلے کا ہو تو اپیل خارج کر کے دعویٰ ڈگری رہے۔

بیان محمد سر ور مختار عام اصغر علی مدعی با اقرار صالح

بیان کیا کہ فاضل کو نسل اپیلانٹس کا بیان سن لیا ہے۔ اس کے مطابق اپیل و دعویٰ کا فیصلہ صادر فرمایا جائے۔ مجھے تسلیم ہوگا۔

سنکر درست تسلیم کیا۔ 5/12/96

رجسٹریشن آفس شاختی کارڈ سیالکوٹ سے اصل مسل مبشر احمد ولد محمد صدیق موضع بن باجوه تحصیل پسرور بابت شناختی کارڈ305-illegible-446872 طلب کیا جائے۔ بتقرر9/1/97 پیش ہو۔

1. Perusal of said order reflects that Rasheed Ahmad, Muhammad Yousaf, appellants of said appeal put their thumb impressions while Muhammad Saeed made his signature. Their counsel also made his signature. Whereas, attorney of the appellant namely Muhammad Sarwar put his thumb impression and his counsel also made his signature on the margin of order-sheet. Said proceedings were conducted in presence of the learned counsel for the parties. On 09.01.1997 Muhammad Asif Butt, Registration Clerk Office of Identity Card Sialkot appeared with record, however, his statement could not be recorded due to transfer of the Presiding Officer. Appellant moved an application on 08.01.1997 under Section 151 C.P.C. for elaboration of interim order dated 05.12.1996 with the contention that he is an illiterate person who was not made to comprehend the position on 05.12.1996, as such, the consent given by him should be deemed as withdrawn, unless the interim order is modified to the extent that the proof of either side on the issue will also be taken in consideration. Said application was adjourned to 09.01.1997 and on the said date copy was handed over to the respondents for its reply. The respondents resisted the application by filing contesting written reply. The learned Trial Court dismissed said application on 19.02.2002 with cost of Rs. 3000/- and adjourned the proceedings for 12.03.2002. On the said date, cost was paid and the appellant moved another application under Section 114 read with Order XLVII Rule I for review of the order dated 19.02.2002 and the proceedings were adjourned to 21.03.2002 for arguments. On 21.03.2002, in the light of order dated 05.12.1996, Muhammad Iqbal Registration Clerk, Registration Office Sialkot appeared and got recorded his statement. He deposed that he has brought the Office Record and according to the record at page No. 94, serial No. 446872 of the register name of Mubashir Ahmad s/o Muhammad Siddique is entered and the said entry qua procuring Identity Card has been made on 02.01.1989. He produced original register and after inspection photocopy was placed on the record as Mark-A and original register was returned.

2. The learned lower Appellate Court, in the light of consensus arrived at between the parties on 05.12.1996 and keeping in view the statement of Registration Clerk, entry in Register (Mark-A) wherein it was specifically mentioned that Identity Card of Mubashir Ahmad was prepared on 02.01.1989 allowed the appeal and dismissed the suit of the appellant vide impugned judgment & decree dated 22.03.2002.

3. Learned counsel for the appellant argued that appellant promptly moved an application for withdrawal of his consent under Section 151 C.P.C. on 08.01.1997. He adds that the Court should have to be careful to see that such offer and acceptance are not recorded with the same snap speed with which they are made. Further states that the learned Court should not have acted so promptly, rather every possibility of ambiguity or emotions should have been ruled out before permitting such arrangement.

4. As discussed earlier, parties did not arrive at the consensus at the heat of the moment. Perusal of record reflects that respondents in their written statement and during the course of cross-examination over PW-2 namely Mubashir specifically put the question that he was minor when the agreement to sell (Exh.P-1) was allegedly executed and his Identity Card was prepared after the date of execution of the agreement to sell. In this regard, his Identity Card was brought on record as Exh.P-4 which was blur/obscure and not readable. Mubashir while recording his statement as PW-3 on 08.03.1992 admitted that his Identity Card was made 2/3 years back. However, his Identity Card number was mentioned in the agreement to sell (Exh.P-1) and the figure “89” is reflecting in the middle column, the year of preparation of Identity Card. Said point was argued before the learned Trial Court which was also discussed in the judgment of learned Trial Court which is reproduced supra. Moreover, this point was specifically taken by the respondents in their memorandum of appeal. In these circumstances, it cannot be said that the point upon which consensus developed between the parties was a surprising thing for the appellant, hence, in these circumstances, appellant cannot resile or deviate from the settlement.

5. The Hon‟ble Supreme Court of Pakistan in a case titled “Muhammad Ali vs. Major Muhammad Aslam and others” (PLD 1990 SC 841), observed that the question whether the party who has made an offer can resile from it depends upon the facts & circumstances of each case and explained such facts & circumstances in the following manner:

“11. In cases such as the present, where it is not possible to lay down guiding principles as to what facts or circumstances in a given case would induce a judge to permit a party to resile from either the offer or the acceptance, it is necessary for the Court to guard itself and the parties against snap decisions taken by the parties in this connection. More often that not, during examination of a party or a witness, or during a heated discussion or argument, a party in the excitement of the moment may be led to make a snap decision in this respect. He may in the heat of passion make such an offer, or accept such a one, which otherwise in a state of cool deliberation he would not do. The Court should be careful to see that such offers and acceptances are not recorded with the same snap speed with which they are made, for such offers and acceptances would not be founded in piety and grace and would not be made at the highest level of truth. For no sooner a person makes an offer to another to make a statement on the Holy Qur’an or his Holy Book, whichever it may be, with regard to any matter or fact, the effect of which will be to bind him in a particular manner, for good or for worse, he does so on the assumption that the person who will accept it is conscious of his trust and whilst making the statement on the Holy Book shall place himself figuratively before his Maker and his Holy Prophet and state the truth, on pain of divine wrath. The Court should, therefore, be somewhat circumspect in this matter and refrain from permitting parties to enter into such agreements, which otherwise do not appear to have been made by them in some reasonable frame of mind, or which appear to be the result of indecent haste, or which otherwise, from the apparent conduct of any of the parties, appear to be such as would make a mockery of the oath. The need for recording separate statements of the parties in respect of the offer and acceptance made in such cases deserves to be over-emphasized, for such a procedure would give parties some short time to think over the matter and extricate themselves from hasty decisions, before appending their signatures to their statements. We do not wish to go down on the record as suggesting that this procedure must invariably be observed, for there is no such legal compulsion, not do we want to suggest that certain safeguards suggested here should be treated as rules of prudence to be observed in such cases, because sections 9 to 11 of the Oaths Act do not admit of such intrusions, but we would say that all this may be treated as a note of caution, for a Court is as much bound to ensure the solemnity of these proceedings, as the parties are bound to respect them.”

12. Learned counsel for the appellant also argued that learned lower appellate Court while dismissing his application with cost allowed him to argue on the main appeal subject to payment of Rs. 3000/- and as the cost was paid, therefore, the learned Lower Appellate Court was bound to provide opportunity of arguments on main appeal and should have decided the main appeal after giving issue-wise findings. The said contention of learned counsel for the appellant has no force as the learned lower Appellate Court passed the order in the following terms:

“This application is dismissed with cost of Rs. 3000/- to the respondent. Respondent shall have a right of argument on main appeal subject to payment of Rs. 3000/-.”

Through the said order permission was granted, subject to payment of cost to argue his view point in the light of order dated 05.12.1996.

1. Appellant moved the application for recalling of his consent when the offer made by the respondents was accepted by him and had become a binding contract. Offer made by a party to decide the lis on a particular way when accepted by the other side had matured into an agreement, same was enforceable under the law and nobody would be allowed to resile from it unless said agreement/contract was either void or had become frustrated.

2. An agreement made in the Court is a settlement to which the Court is also a party, therefore, such an agreement is not one of those agreements which a party may keep or break as it liked. To allow a party to resile from his earlier commitment without adequate reason would amount to allowing him to play a game of hide and seek with other party and even would amount to abuse the process of Court.

3. Where parties choose deviation from normal course and a mode (procedure) for decision of lis is adopted by the Court on their request, the decision given in pursuance thereof should be given effect to and the parties are estopped from challenging such mode of decision and they could not resile or feel aggrieved against the procedure adopted by the Court.

4. Appellant would have no right whatsoever to wriggle out from such accepted offer being an agreement of binding nature and also on the principle of approbate and reprobate. It is settled proposition of law that offer once made by any party and accepted by the other party becomes a binding contract between the parties and nobody is allowed to resile or back out from it on the principle of estoppel. Reliance is placed on the cases titled “Saleem Ahmad vs. Khushi Muhammad” (1974 SCMR 224), “Attiq Ullah vs. Kafayat Ullah” (1981 SCMR 162), Muhammad Mansha and 7 others vs. Abdulsattar and 4 others (1995 SCMR 795) Muhammad Rafique and another vs. Sakhi Muhammad and others (PLD 1996 SC 237).

5. I have carefully gone through the case laws referred by learned counsel for the appellant (Muhammad Akbar and another vs. Muhammad Aslam and another (PLD 1970 SC 241), Ghulam Qadir vs. Fazal Din and 3 others (1971 SCMR 537) and Mirza Muhammad Siddique vs. Muhammad Abdullah (1989 MLD 54) and observed that the same are distinguishable from the facts and circumstances of the case in hand.

6. Learned counsel appearing on behalf of the appellant remained unable to point out any substantial error or procedural defect in the impugned judgment & decree of the lower Appellate Court. He failed to satisfy the Court with regard to presence of basic ingredients of regular second appeal that the impugned judgment and

decree is contrary to law or failed to determine material issue of law, or usage having the force of law; committed a substantial error or defect in the procedure provided by C.P.C, or by other law for the time being in-force, which may possibly have produced error or defect in the decision of the case upon the merits. The judgment & decree of the first Appellate Court is neither perverse nor arbitrary, so as to justify the interference of this Court in exercise of jurisdiction as contemplated under Section 100 of CPC.

1. The learned Appellate Court rightly decided the appeal in the light of consensus arrived at between the parties on 05.12.1996. Even otherwise when it was established on record that Identity Card had been issued to Mubashir witness on 02.01.1989, it made the agreement to sell anti-date/doubtful which was allegedly executed on 08.03.1986 wherein name of witness Mubashir was entered with his Identity Card No. 305-89-446872. The specific performance is a discretionary relief. Such discretion can be exercised or recognized on the principles of equity and fairness.

2. Consequently, instant Regular Second Appeal is dismissed being devoid of force/substance with no order as to costs.

(Y.A.) Appeal dismissed

PLJ 2024 Lahore 632 [Lahore High Court, Bahawalpur Bench]

Present: Ahmad Nadeem Arshad, J.

SAHIBZADI SAIRA MEHREEN ABBASI, etc.--Petitioners

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. Nos. 2916 of 2006/BWP and 7305 of 2019/BWP, decided on 8.4.2024.

Acceding State (Property) Order, 1961 (P.O No. 12 of 1961)--

----Art. 3--Constitution of Pakistan, 1973, Art. 199--Distribution o properties of late Ameer of BWP--Preparation of wandas--Order of distribution was challenged--Partly allowed--Case was remitted

to Central Government--Civil appeals--Dismissed--Review petition--Dismissed--Constitution of Committee--Recommendations of committee--Implementation committee--Compliance report-- Objections on wandas--Objections were forwarded to Central Government--Jurisdiction--The entire private property of late Ameer of Bahawalpur had been distributed amongst 23 legal heirs-- Implementation Committee, with assistance of Cholistan Development Authority, Bahawalpur prepared a draft allotment plan called ‘VANDAs’ and handed it over to Implementation Committee who in term submitted its ‘Compliance Report’--Some of them raised certain objections--The Implementation Committee forwarded their objections to Federal Government for appropriate decision--If petitioners had filed any objections within stipulated time, they might approach Federal Government for redressal of their grievance--Implementation Committee heard all surviving legal heirs and provided right of hearing--The petitioners impugned said notification while levelling general allegations to effect that ‘Wanda Jaat’ were not prepared in accordance with law, letter issued by Implementation Committee and judgments of Hon’ble Supreme Court of Pakistan but during lengthy arguments they failed to point out any specific shortcoming, illegality or irregularity in ‘Wanda Jaat’--Mere on general allegation hard work done by Implementation Committee could not be brushed aside-- After thorough deliberations Committee proposed its distribution plan and implemented through impugned notification which could not be set-aside merely on surmises and conjectures--All questions relating to distribution and devolution of properties of late Ameer of Bahawalpur would be resolved by Central Government--Petitions dismissed. [Pp. 647, 648 & 651] A, B, C, D, E & F

PLD 1982 SC 367, PLD 1984 SC 67, PLD 2002 SC 170 and 1982 SCMR 991 ref.

M/s. Abdul Mughni Farani & Syed Fouz-ul-Kabir, Advocates for Petitioners.

Mr. Usman Sultan, Advocate in C.M. No. 1723 of 2024.

Mr. Tahir Mahmood Mufti, Deputy Attorney General for Pakistan for Respondents.

Ch. Muhammad Jameel, Assistant Attorney General for Pakistan.

Malik Zafar Iqbal Awan, Addl. Advocate General.

Mr. Abdul Khaliq Khan Saddozai, Advocate/Law Officer of Cholistan Development Authority Bahawalpur.

Rao Nasir Mahmood Advocate.

Mr. Fazal Mahmood Chughtai, Advocate in C.M. Nos. 3738, 3739 of 2012.

Mr. Muhammad Khalid, Deputy Collector Irrigation, Bahawalpur.

Dates of hearing: 28.3.2024 & 30.3.2024.

Judgment

This single judgment shall dispose of above captioned Writ Petition as well as Writ Petition No. 7305 of 2019/BWP titled “Sahibzada Mujeeb-Bin-Afzal Abbasi, etc. vs Federal Government, etc.” as same questions of law & facts are involved in both the petitions.

It is also pertinent to mention here that said petitions were fixed for hearing on 28.03.2024. On that day, it was apprised to the Court that there is a written request for adjournment on behalf of petitioner’s counsel (Mr. Abdul Mughni Farani, Advocate). Said request was vehemently opposed from respondents’ side. Hence, while hearing arguments from respondents’ side, cases were reserved for announcement of judgment.

On 29.03.2024 learned counsel for the petitioners appeared in the Court and verbally requested that he be given an opportunity to argue his cases. In the interest of justice, opportunity of hearing is granted to the learned counsel for the petitioners on 30.03.2024. Learned counsel for the respondents present in the Court also avail right of rebuttal.

1. Through this Constitution Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed the vires of the notification No. SRO-436(I)2006 dated 10.05.2006 issued by Respondent No. 1 (Govt. of Pakistan through its States and Frontier Regions Division Secretary, Islamabad), whereby specific Wandas regarding the property of late Ameer of Bahawalpur Sir Sadiq Muhammad Khan Abbasi were made in favour of his twenty three legal heirs on the recommendation of implementation committee and prayed as under:

It is therefore most respectfully prayed that :-

(a) Allowing the writ petition the notification No. No. SRO 436(I)2006 issued by the Respondent No. 1 Govt. of Pakistan may very graciously be declared as illegal, ultra vires, without lawful authority and nullity in the eye of law.

(b) The Respondents No. 1 to 6 may please be orders to maintain joint Wandas in the Shikargah and in the alternative to reconstitute all the Wandas justly, equitably and fairly in accordance with law.

(c) That Implementation Committee may please be directed to strictly comply the report of Mr. Justice Abdul Shakoor-ul-Salam in the light of judgments of apex Court.

(d) Such other orders may please be passed as are just and beneficial to the petitioners.”

Whereas, in the second Writ Petition (7305 of 2019/BWP) petitioners of said Writ Petition prayed as under:

“It is therefore, most humbly prayed that by accepting instant constitutional petition, the impugned notification SRO. No. 436(I)2006 issued by the Respondent No. 1 is against the judgment dated 02.10.2018 passed by the Hon’ble Supreme Court of Pakistan and also against the judgment reported as PLJ 2002 Supreme Court 210 and also against the summary of worthy Prime Minister of Pakistan dated 20.11.2018 may kindly be set aside and declared as illegal, void, without lawful authority and is not sustainable in the eyes of law and is liable to be set aside and a direction may kindly be issued to the respondents that they should remain and abstain from distributing the resumed land of Shikargah measuring 277947 acres situated in Cholistan, Tehsil Yazman District Bahawalpur amongst the legal heirs of his Highness Ameer of Bahawalpur in the interest of justice. Any other appropriate relief, which this Hon’ble Court deem fit and proper in the circumstances of the case may also be awarded.”

1. Learned counsel for the petitioners while reiterating the facts and grounds as pleaded in the Writ Petitions, prayed for acceptance of the Writ Petitions.

2. Contrarily, the respondents vehemently opposed the contentions of learned counsel for the petitioners by maintaining that petitioners should have approached the Federal Government for redressal of their grievance and prayed for dismissal of the writ petitions.

3. I have heard learned counsel for the parties at full length and perused the record with their able assistance.

4. Before discussing further, it is better to see the background of the controversy. In 1947 through an Act of the British Parliament known as Indian Independence Act, 1947, the British Crown gave up its sovereignty in respect of various provinces of Sub-Continent known as British India and divided those into two dominions i.e. one of India and other of Pakistan. It also lacks its suzerainty in respect of the States in the Sub-Continent with which it had special relationship under treaties or agreements about foreign affairs, defence, etc. and who had otherwise remained to rule as before the advent of the British in the Sub-Continent. Henceforth, the States were to conduct their own affairs.

5. The State of Bahawalpur was ruled by His Highness Alhaj Sir Sadiq Muhammad Khan Abbasi. On 03.10.1947, the Ruler of Bahawalpur State through an instrument of accession acceded to Pakistan, which was accepted by the then Governor General. Supplementary instruments of accession were also executed between the Ruler of Bahawalpur and the Governor General. Before the formation of one unit in the western wing an agreement was executed on 17.12.1954 between the Ameer of Bahawalpur and the Government of Pakistan, by which Bahawalpur State reiterated its accessions to Pakistan and agreed to merge in West Pakistan.

6. In respect of the States in accession with Pakistan, on the 21st of August, 1961 the President of Pakistan, in pursuance of the proclamation of Martial Law, promulgated the President’s Order No. 12 of 1961 called the Acceding State (Properties) Order, 1961, (hereinafter referred to as Order, 1961).

7. On 24th May, 1966 his Highness Alhaj Sir Sadiq Muhammad Khan Abbasi, the Ruler of Bahawalpur State passed away. Some of the heirs of the late Ruler filed an application under Article 03 of the Order, 1961. The President appointed a Commission in 1967 to make an inquiry into the properties and their distribution etc. The commission headed by Mr. Abu Nasar submitted its report on 26.01.1968, whereby, detailed the properties both in Pakistan and abroad, i.e. United Kingdom and India, determined 24 heirs; 04 widows, 10 sons and 10 daughters, validated “Farmans” and dealt with the application of the Land Reforms Regulations. About properties in United Kingdom, on the basis of the “Will” of the late Ameer of Bahawalpur and her renunciation of any claim to the property in Pakistan, those were left with the Doweger Her Highness O.J. Abbasi. So far as property in India, compensation under the law was paid to the late Ameer in his life time. For the properties in Pakistan, excluding the Doweger Her Highness O.J. Abbasi, the remaining heirs were found to be 23: 03 widows, 10 sons and 10 daughters. The shares were found to be 1/8th for 03 widows, remaining 7/8th for the 10 sons and 10 daughters in the ratio of 2:1. The properties in the Pakistan were divided in two categories. One was given to the succeeding Nawab and the other was distributed amongst all the heirs of the late Ameer. In the light of said report, the President promulgated Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969, on 19th February, 1969 which was published in Gazette of Pakistan (extraordinary) on 20.02.1969.

10. Said order of 1969 was assailed by succeeding Ameer through Writ Petition before this Court by relying on instruments of accession, merger agreement, rule of custom i.e. primogeniture claiming that he was entitled to the entire estate included the ones distributed amongst all the heirs of the late Ameer in the schedule II. A learned Division Bench of this Court which was seized of the matter partly allowed the petition by declaring that the devolution order had not been passed by the Government of Pakistan in accordance with law and, therefore, it was of no legal effect. The case was, however, remitted to the Central Government for fresh disposal of the dispute before it, in accordance with law. The judgment was reported as “Brig. His Highness Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. Government of Pakistan, through the Joint Secretary, Ministry of States and Frontier Regions, Rawalpindi and 23 others” (PLD 1978 Lahore 1166). Said judgment was challenged by the Government of Pakistan as well as by the Nawab Brig. His Highness Muhammad Abbas Khan Abbasi through Civil Appeals. The august Supreme Court of Pakistan while dismissing these appeals, observed that Nawab Muhammad Abbas Khan Abbasi was not entitled to claim the properties left behind by the late Ameer on the rule of primogeniture. It was further observed that the entire estate of the late Ameer is to be distributed amongst all the legal heirs in accordance with the rule of Muslim Law. Said decision is reported in “Govt. of Pakistan v. Brig His Highness Nawab Muhammad Abbas Khan Abbasi and others” (PLD 1982 SC 367). Against the said judgment a review petition was filed which was dismissed with certain observations on 27.11.1983 that the matter of distribution/devolution required determination of intricate factual controversies among the legal heirs of the late Ameer of Bahawalpur which was the exclusive function of the Central Government to determine. Said judgment is reported as “Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. Govt. of Pakistan and others” (PLD 1984 SC 67).

1. In the light of said decisions of Hon’ble Supreme Court of Pakistan, Commission was appointed by the Central Government for distribution of the estate of the late Ameer amongst the legal heirs. Recommendations were made. For further action, another Committee was constituted. The Committee prepared a report but it was not signed. Another Committee was constituted, who recommended an interim package about urban properties. This interim package was challenged through Constitutional Petitions which were dismissed on 03.07.1997. The matter again went before the Hon’ble Supreme Court of Pakistan. The Hon’ble Supreme Court of Pakistan in its judgment “Prince A. M. Abbasi and another v. Federal Government through Secretary and 24 others” (PLD 2002 Supreme Court 170), observed as under:

“In view of what has been discussed above, we hold that in the circumstances of the case, the interim package announced by the Inquiry Commission does not meet the ends of justice and is also not in accordance with the direction of this Court contained in various pronouncements with regard thereto in general and two cases: one filed by the Government of Pakistan PLD 1982 SC 367 (supra) and secondly by Brig. H. H. Nawab Muhammad Abbas Khan Abbasi (supra) PLD 1984 SC 67 in particular.

1. The perusal of these judgments and the record, thus warrants that the controversy shall have to be resolved afresh in accordance with the direction contained in the case of Government of Pakistan PLD 1982 SC 367 (supra) and the observation made subsequently in review petition in “Brig. H. H. Nawab Muhammad Abbas Khan Abbasi (supra) by this Court.”

It was further held that:

“We are, therefore, of the considered view that in the interest of justice, equity and fair play and in order to render adjudication of the controversy once for all, the committee to be constituted by the Federal Government for making recommendation shall be headed by a learned Retired Judge of this Court.”

It was concluded that:

“Now the stage is set for considering out of the available retired Judges of this Court, the name of the learned Retired Judge to head the committee. After due consideration, we agreed on the name of Justice (R) Abdul Shakoor-ul-Salam residing at Lahore these days to head the committee for ascertaining the properties left by the late Ameer of Bahawalpur, the extent of the shares of various claimants therein and to suggest the mode of the distribution of the properties amongst the claimants/heirs, in the light of the two judgments rendered by this Court in (i) Government of Pakistan v. His Highness Nawab Muhammad Abbas Khan Abbasi and others” PLD 1982 SC 367 and (ii) Brig. H. H. Nawab Muhammad Abbas Khan Abbasi and others v. Govt. of Pakistan and others” PLD 1984 SC 67 and make recommendations to the Federal Government of Islamic Republic of Pakistan accordingly.”

1. In pursuance of said order of the Hon’ble Supreme Court, the Federal Government constituted a Committee under the Chairmanship of Justice (R) Abdul Shakoor-ul-Salam through SRO-140(1)/2002 on 07.03.2002 with the following terms of reference, namely:

“a) To ascertain the properties left by the Late Ameer of Bahawalpur.

b) To determine the shares of various claimants in the properties left by the late Ameer of Bahawalpur.

c) To suggest the mode of the distribution of the properties amongst the claimants/heirs in the light of the two judgments rendered by the Supreme Court i. Govt. of Pakistan v. His Highness Muhammad Abbas Abbasi and others” (PLD 1982 SC 367) and ii. Brig. H. H. Nawab Muhammad Abbas Khan Abbasi and others v. Govt. of Pakistan, etc. (PLD 1984 SC 67) and;

d) To make recommendation to the Federal Government of Islamic Republic of Pakistan accordingly. The Committee, in discharge of its function, may also deal with those who have encroached upon or disposed of the property of Late Ameer unauthorizedly or who are getting income from such a property illegally; and hear any or all legal heirs or their counsel. “

In the light of said terms of reference the Committee concluded as under:

“1. Properties left by the late Ameer subject matter of the Supreme Court judgments are those mentioned in Mr. Abu Nasir’s report and in the first and the second schedule of the Devolution and Distribution Order, 1969.

1. The share are: 03 widows 1/8, the rest 7/8 amongst 10 sons and 10 daughters in the ratio of 2:1.

2. Mode of devolution in view of the two judgments dealt with in the main report.

3. Other matter about encroachers and disposal unauthorizedly relating to third parties, normal law of the land would take care. No benefit can accrue by grouping in the dark.

4. However, it has come to notice that some heirs had usufruct of agriculture land in their possession, while others did not have any land in their possession. The total Revenue Authorities may be directed to investigate and estimate the loss to those deprived of their due, and the Federal Government from the compensation of the resumed land, make necessary adjustments.”

And made following recommendations:

“36 years have gone by. May heirs even their heirs has died in the meanwhile. Sharia law is being applied for the distribution of the inheritance. So, it is not only an official responsibility but an Islamic duty to finalize the matter as soon as possible. Therefore, it is recommended that action may taken step by step.

The shares of the heirs are undisputed and these are 03 widows 1/8th, the balance 7/8th amongst the 10 sons and 10 daughters in the ratio of 2:1.

First action should be taken under the Land Reforms Regulation in the light of the report of the Commission headed by Mr. Abu Nasir who was Chief Land Commissioner himself, had consulted the Land Reforms Commission and the report had been accepted by the President of Pakistan. He had noticed that most of the heirs, expecting 2 or 3 have already got ceiling limits. They be given choice as earlier decided. Other 2 or 3 be given land of their choice upto the ceiling. Rest of the land resumed and compensation paid. It had earlier been noted that revenue authorities had assured that the whole job can be done in 02 months. Let it be done now.

Secondly, the properties of the late Ameer should be distributed and dealt with as in para 21 and 22 above straightaway. Wherever, action is to take place, that should simultaneously be held within 2 or 3 months.

Thirdly, after keeping sufficient amount for administrative purposes and discharge of other liabilities of the late Ameer, the rest of his money in the hands of the State should be disbursed immediately amongst the heirs according to their Sharia share described above. We were told that some are in dire need.

If some omission occurs or error creeps in or there is something amiss, that may be looked after later but the major steps mentioned above should not be postponed, otherwise controversy or even litigation will go on without any benefit to anybody and loss to all including the State”.

1. The Committee also answered the objections of the parties who claimed to purchase the property of late Ameer of Bahawalpur from the co-sharers, on stamp paper. They prayed that the property purchased by them should be included in the respective shares of the heirs so that they do not face any difficulties afterwards in getting the same mutated in their favour. These properties were allegedly under agreements from the heirs or successors-in- interest. Title the specific properties did not vest in the sellers at the relevant time. The committee observed that the law (Art. 3 of P.O. 12 of 1961) in pursuance of which the committee is functioning, deals in question between persons claiming to be the heirs or successors to the property of late Ameer and not between the heirs or successors and third parties and disposed of their objections in the following terms:

“The purchasers may approach the relevant authorities like Land Reforms Authorities for relief and if their agreements are genuine, possession obtained in lieu thereof, the Authorities may accommodate them in accordance with law or they may approach the Courts of law for such relief on proof of their claim as may be available to them in accordance with law like following the property in the hands of their sellers or damages. The law (Article 3 of P.O.12 of 1961) in pursuance of which this Committee is functioning deals with questions between persons claiming to be the heirs of successors to the property of late Ameer and not between the heirs on successors and thirds’ parties. The relationship or transaction between then is governed by the Ordinary Law.”

Some persons have filed applications that they had been given land by the late Ameer on simple “Farman’s” and they have possession against the claimed land, but it was not mutated in the revenue record in his life time due to certain reasons. Therefore, the lands be devolved from the properties of the late Ameer. Committee observed that such property cannot be taken out from the devolution and distribution as there are no proofs in support of such contention.

Certain persons had submitted the copies of consent decrees issued by the Civil Courts against their claims and prayed that these decrees may be implemented in the revenue record. The committee decided not to interfere at this stage and those persons may approach the respective authorities to implement these decrees of Civil Court.

1. Through SRO-252(I)/2003 dated 07.03.2003 the Federal Government considered the recommendations of the Committee and made certain amendments in the paragraphs Nos.2, 3, 5, 1st schedule and added para Nos.3-a and the 3rd schedule in the Devolution and Distribution of the Property (Ameer of Bahawalpur) Order, 1969.

2. Through notification SRO-321(I)/2003 dated 26.03.2003 the Prime Minister approved the recommendations of the Committee and constituted an Implementation Committee headed by Justice (R) Abdul Shakoor-ul-Salam and directed the Committee to take action step-by-step as under:-

“a. Distribute all income in the hands of the state received from the production of properties of the late of Ameer of Bahawalpur amongst twenty-three legal heirs according to Shariah shares after keeping sufficient amount for administrative purposes and discharge of other liabilities of the late Ameer;

b. Recall the revenue record in respect of the properties of late Ameer of Bahawalpur Sir Sadiq Muhammad Khan Abbasi for necessary correction on the basis of devolution and distribution of property (Ameer of Bahawalpur) Order 1969, as amended by the Order No. S.R.O.252(I)/2003, dated the 7th March, 2003; hand over possession of allotted property on the basis of above order; and if desired, call for assistance of the Federal Government in the Ministry of KANA and SAFRON for the purpose assigned to them.”

1. However, Federal Governmentvide notification No. SRO 1117(I)/2003 dated 20.12.2003 due to ill-health of Mr. Justice (R) Abdul Shakoor-ul-Salam and his inability to act as the Chairman of the Implementation Committee appointed Justice (R) Abdul Qadeer Chaudhry as the Chairman.

2. The Chairman of the Implementation Committee wrote a letter No. F.2/1/Sce.VII/2002 dated 18.08.2004 to Managing Director Cholistan Development Authority, Bahawalpur, which reads as follows:

“Under the S.R.O. No. 321(I)/2003 dated the 26th March, 2003 the Federal Government constituted an Implementation Committee to implement the devolution and distribution of property (Ameer of Bahawalpur) Order , 1969 as amended by the Orders under S.R.O. No. 252(I)/2003 dated 7th March, 2003 and S.R.O. No. 946(I)/2003, dated the 30th September, 2003.

In order to implement the above stated SROs, a meeting of the Implementation Committee was held in the Circuit House, Bahawalpur on the 17th April, 2004 (copy of minutes of the meeting attached) under which it was decided, in light of the decision of the Hon’ble Supreme Court of Pakistan rendered in C.A. No. 130/78 dated 07.07.1982 read with the Federal Government’s SRO No. 946(I)/2003 dated 30th September, 2003 the land called “SHIKARGAH” measuring 312440 Acres should also be distributed amongst the 23 legal heirs of late Ameer of Bahawalpur according to the Sharia shares being a private property of late Sir Sadiq Muhammad Khan Abbasi, Ameer of Bahawalpur.

Keeping in view the facts, the Implementation Committee in its meeting held in Circuit House, Bahawalpur on 15th August, 2004, decided that the subject land measuring 34466 Acres already allotted by the Board of Revenue, Punjab, under different schemes the effectees be replaced by suitable alternate government land or be compensated through payment. Rest of the subject land measuring 277974 acres should be divided into the following two categories:

I. Cultivable land (ممکن)

II. Uncultivable land (غیر ممکن).

The subject land in categories (I) and (II) above should be distributed among the 23 legal heirs, whose name are mentioned in the attached list duly signed by me, with the following conditions:

(a) New JAMABANDI be prepared in the name of Sir Sadiq Muhammad Khan Abbasi, late Ameer of Bahawalpur in both categories separately.

(b) Total land be determined in both the categories, separately.

(c) Shares of each legal heir of the late Ameer of Bahawalpur be worked out according to the Sharia share as per Supreme Court of Pakistan’s judgment dated 07.07.1982.

(d) Mutation be entered in the revenue record in the name of each legal heir in category (I) according to their sharia share with the condition that the land already in the possession of the heirs should not be fragmented, but kept as one whole parcel as per their choice/possession strictly within their ceiling.

(e) Joint mutation be entered in revenue record in the name of 23 legal heirs in category (II) straightaway.”

1. The said Committee could not complete the task within the stipulated time, hence, the Prime Minister extended the tenure of Implementation Committee up to 18.02.2006 vide order No. SRO 819(I)/2005, dated 03.08.2005.

2. The Committee submitted its report and the recommendations of the said committee were considered by the Federal Government vide Notification No. SRO 820(I)/2005 dated 03.08.2005, and ordered the devolution and distribution of the properties, keeping in view 01 kanal in Bahawalpur is equal to 02 kanals in Ahmadpur East and 04 kanals in Dera Nawab Sahib and vice-versa. The private land measuring 4455 acres, 5 Kanals and 3 Marlas (Urban + Agricultural land) included Residences, Palaces, Shops and Buildings, etc. had been mutated in the revenue record in the names of twenty three legal heirs of late Ameer of Bahawalpur according to Shariah shares auction of the available moveable private property of the late Ameer of Bahawalpur was made amongst 23 legal heirs.

Auction proceeds was deposited into Bahawalpur A/c No. ELS-20223-DC Branch, Bahawalpur.

Distributed an amount of Rs. 2,25,00,000/- received from the production/rent of buildings and auction money received from the properties of the late Ameer of Bahawalpur amongst 23 legal heirs according to Shariah share.

With regard to the land known as ‘Shikargah’ (Cholistan measuring 3,12,440 Acres land) it was directed that the same shall be dealt with as mentioned in the Order of the Implementation Committee’s Instructions contained in Letter No. F.2/1/ Sec.VII/2002, dated 18 August, 2004 addressed to the Managing Director, Cholistan Authority, Bahawalpur. The Implementation Committee in its report dated 30th September, 2004 recommended as under:-

(a) 2,77,974 Acres unsettled land of ‘Shikargah’ be distributed among 23 legal heirs according to Shariah shares.

(b) Remaining land 34,466 Acres which was allotted to different Schemes, Board of Revenue, Punjab may accommodate the heirs, either by compensation at market value or land adjoining ‘Shikargah’ according to the heirs choice.

1. The Implementation Committee submitted compliance report through letter dated 21.03.2006. In the said compliance report, consisting upon 11 pages, the Implementation Committee in para No. 19 and 20 observed as under:

“The Committee mutated the entire property viz packages and joint mutations, belonging to the private property of late Ameer of Bahawalpur among his 23 legal heirs in the revenue record, according to the Sharia shares, except the land known “Shikargah” measuring 277974 Acres out of total land measuring 312440 Acres. In this regard, Committee decided that the issue of compensation in lieu of 34466 Acres land of late Ameer would be perused by the Federal Government. On the allotment of land known “Shikargah” Dr. Faisal Zahoor, District Revenue Officer, Bahawalpur, is of the view that the land was resumed under the West Pakistan Land Reforms Regulations, 1959, therefore, further action in this regard may not be taken. Moreover, the Chief Land Commissioner, Punjab, has assumed a Suo Motu Revision No. 11 of 1990. The Committee, however, concluded that the land known “Shikargah” has been adjudged in favour of legal heirs by order of the Federal Government vide SRO-820(I)/2005 dated 03.08.2005 superseded the decision/policy of the Board of Revenue, Punjab. Moreover, the Supreme Court’s judgments in Civil Appeal No. 130/78 set-aside the order of the Land Reforms Authorities till Respondent No. 3 the Federal Government makes the final order under Article 03 of the Acceding State (Property) Order, 1961. Therefore, the Committee decided that land measuring 277974 acres called Shikargah, Cholistan shall be distributed among 23 legal heirs of late Ameer of Bahawalpur in the light of the Implementation Committee’s instructions contained in letter No. 2/1/Sec.VII/2002, dated the 18th August, 2004 (Annex- XI) which is accordingly incorporated in the Implementation Committee Report 2004 and the Federal Government’s Order vide S.R.O-820(I)/2005 dated 03.08.2005.

1. In order to implement the order of the Federal Government notified in SRO-820(I)/2005 dated 03.08.2005 with regard to distribution of land called “Shikargah” measuring 277974 acres among 23 legal heirs, the Vice Chairman/Managing Director, Cholistan Development Authority, Bahawalpur was invited in the meeting of the Implementation Committee held on the 31st January, 2006 at Lahore. Wherein, it was decided that the Cholistan Development Authority (CDA), Bahawalpur may prepare the “Proposed Allotment Plan” and submit it in the next meeting of the Committee at Lahore. The Office of the CDA, Bahawalpur, prepared and presented the draft “Allotment Plan” along with map (Annex-XII) in the Committee’s meeting held on 13th February, 2006 at Lahore proposing 23 packages in two each category i.e. cultivable and uncultivable. At the request of some of the legal heirs of late Ameer, it was decided that they should submit their objections against the “Proposed VANDAs” by the 15th February, 2006. No such objection was filed within the stipulated period. However, on the request of some legal heirs, 15 days were granted to file the objections against “Proposed VANDAs”, subject to the condition that if the extension is granted by the Government as the tenure of the Committee is to expire on 18th February, 2006. No extension was granted uptil now, however, a publication was made in the newspaper dated 06th March, 2006 (Annex-XIII). Five applications were received and forwarded to the Federal Government for appropriate decision, as the Committee cannot dispose of these applications after 18th February, 2006.”

2. The Federal Government through Ministry of ‘SAFRON’ in exercise of the powers conferred under Article 3 of the Order 1961 subsequently through Notification No. SRO 436(I)/2006 dated 10.05.2006 distributed ‘Shikargah’ land measuring 2,77,974 acres out of total land measuring 3,12,440 acres amongst the legal heirs of Sir Sadiq Muhammad Khan Abbasi. All land of ‘Shikargah’ i.e. cultivable and non-cultivable has been distributed amongst 23 legal heirsvide said impugned notification according to ‘Shariah’ share. It was also directed through said Notification that the possession of allotted property shall also be handed over to the allottees in the following manner:

“2. The Implementation Committee headed by Mr. Justice (Retd) Abdul Qudeer Chaudhry shall hand over the possession of allotted property on the basis of this Order in terms of S.R.O.321(I)/2003 dated the 26th March, 2003.

1. The words ‘SARKAR DAULAT MADAR’ appearing in the revenue record of the Bahawalpur city may be substituted with the words ‘Government of the Punjab’ to protect government offices/institutions.

2. The amount lying in the account of National Bank of Pakistan, Bahawalpur, shall be distributed amongst twenty three legal heirs after determining the liabilities and keeping sufficient amount for administrative expenditure after mutation, transfer of the entire property.”

In this way the entire private property of late Ameer of Bahawalpur measuring 44055 Acres, 05 Kanalas & 03 Marlas (settled land) and 3,12,440 Acres (unsettled land) had been distributed amongst 23 legal heirs of late Ameer of Bahawalpur.

1. As far as the contention of the petitioners that ‘Wandas’ had not been prepared according to parameters recommended/decided by the Chairman, Implementation Committee is concerned, it is submitted that the Implementation Committee, with the assistance of the Cholistan Development Authority, Bahawalpur prepared a draft allotment plan called ‘VANDAs’ and handed it over to the Implementation Committee who in term submitted its ‘Compliance Report’ dated 21.03.2006 alongwith proposed 23 Packages (VANDAs) through the Federal Government (Ministry of SAFRON).

2. Majority of legal heirs of late Ameer of Bahawalpur appreciated the preparation of 24 ‘Wandas’ and its Notification dated 10.05.2006. However, some of them raised certain objections. The Implementation Committee forwarded their objections to the Federal Government for appropriate decision, as the Committee could not dispose of these objections after 18th February, 2006. If the petitioners have filed any objections within the stipulated time, they may approach the Federal Government for redressal of their grievance.

3. For two years between 2003-2005, the Implementation Committee heard all the surviving legal heirs and provided right of hearing. The seven legal heirs and sixty five decedents signed the Distribution Agreement. The Implementation Committee published the relevant hearing dates and the venue, in the newspapers in English and Urdu. After that the Implementation Committee made its recommendations to the Federal Government which were approved and notified on the 5th of August, 2005 and 10 May 2006.

The complaints that the shares inherited by them in the ‘Shikargah’ includes roads and canals have no value.

No active canal system exists in the desert i.e. ‘Shikargah’s land. Although an irrigation plan was proposed hundred years ago and may exists on a map in a department, but in reality, it was abandoned and whatever was began on the ground has long since disappeared under sand. Secondly, tarranced road in the share of the party, in the middle of the desert, can only increase that party land value.

1. The petitioners impugned the said notification while levelling general allegations to the effect that said ‘Wanda Jaat’ were not prepared in accordance with law, letter issued by the Implementation Committee and the judgments of the Hon’ble Supreme Court of Pakistan but during lengthy arguments they failed to point out any specific shortcoming, illegality or irregularity in the ‘Wanda Jaat’. Mere on general allegation the hard work done by the Implementation Committee cannot be brushed aside. The issue of the devolution and distribution of the land called ‘Shikargah’ was complicated. After thorough deliberations the Committee proposed its distribution plan and implemented through impugned notification which cannot be set-aside merely on surmises and conjectures.

2. Learned counsel for the petitioners also argued that the Implementation Committee totally ignored the recommendation made by the Committee headed by Mr. Justice (R) Abdul Shakoor-ul-Salam in its report dated 05.06.2002 whereby it was recommended that before actual partition of the land first of all the matter regarding the applicability of the Land Reforms Ordinance, 1959, was to be decided.

3. Said controversy was resolved by the august Supreme Court of Pakistan in its judgment dated 07.04.1982 passed in the case titled “Brig. His Highness Nawab Muhammad Abbas Khan Abbasi v. Deputy Land Commissioner, Bahawalpur and others” (1982 SCMR 991) wherein it was observed as under:

“The result will be that as soon as the final position of the holdings of the heirs of late Ameer of Bahawalpur has been decided by Respondent No. 3, Respondents Nos. 1 & 2 will be at liberty to proceed under the provisions of the Land Reforms Regulations, 1959 (M.L.R-64). The orders of the Land Reforms Authorities impugned before us are accordingly set aside with the clarification that as soon as Respondent No. 3 makes the final order under Article 03 of the Acceding State Property Order, 1961, the Respondents Nos.1 & 2 can proceed further in the matter in accordance with law.”

Although the Hon’ble Supreme Court of Pakistan while setting-aside the orders of the Land Reforms Authorities clarified that as soon as the Federal Government makes the final order under Article 3 of the Order, 1961, the Land Reforms Authorities can proceed further in the matter in accordance with law but the Chief Land Commissioner initiated suo motu proceedings on 20.02.1990, which was challenged through Writ Petition (W.P No. 15422/2010) “Prince A.M. Abbasi v. Land Commission, etc.”. Said Writ Petition was decided by Division Bench of this Court vide order dated 17.10.2011 and observed as under:

“In this view of the matter, without going into the merits of the case, judgment of the august Supreme Court of Pakistan, mentioned above, has to be implemented in letter and spirit and, therefore, the suo motu proceedings initiated by Chief Land Commissioner on 20.02.1990 are in violation of the judgment of the august Supreme Court of Pakistan dated 07.04.1982 and are, therefore, set-aside. Respondents are directed to implement the judgment of the august Supreme Court of Pakistan strictly in accordance with law and to proceed accordingly.”

Said judgment of this Court was assailed before the august Supreme Court of Pakistan and the said Court disposed of the appeal through order dated 02.10.2018 while observing as under:

“5. When confronted with the aforesaid state of affairs, the learned Addl. A. G. Punjab, states that the instant appeals have lost its efficacy as the conditions specified for proceedings under MLR-64 by the impugned judgment have been fulfilled. Under the circumstances, the instant appeals are liable to be disposed of.

1. In the above circumstances, these appeals are disposed of. Any person aggrieved by any future action taken by any authority can seek his remedy, if any, available under the law.”

The implementation Committee was well-aware of the decision of the august Supreme Court of Pakistan dated 07.04.1982 passed in Civil Appeal No. 130/78 and discussed it in para No. 19 of its report as referred supra and made its proposal. In the light of said proposal through notification No. SRO-946(I)2003 dated 30.09.2003 para 04 of the Order1969 was omitted and para 05 of the Order, 1969 was substituted as under:

“5. The entire property of the Late Ameer of Bahawalpur shall be distributed and dealt with first in the manner specified in paragraph 03 and thereafter action shall be taken in accordance with the provisions of the Land Reforms Regulation, 1959.”

In view of the above, the arguments advanced by the learned counsel for the petitioners have no force, hence, repelled accordingly.

1. The Federal Government through Notification No. SRO.257(I)/2019 dated 27.02.2019 reconstituted the Implementation Committee and settled its terms of reference as follows:-

“(a) Distribute all income in the hands of State received from production of properties of late Ameer of Bahawhalpur amongst 23 legal heirs according to Shariah shares after keeping sufficient amount for administrative purposes and discharge of their liabilities of the Ameer;

(b) Recall the revenue records in respect of the properties of late Ameer of Bahawalpur Sir Muhammad Khan Abbasi for necessary correction on the basis of devolution and distribution of property (Ameer of Bahawalpur) Order 1969 as amended by the Order No. SRO.252(I)/2003 dated 7th March, 2003;

(c) Hand over possession of allotted property on the basis of above order; And

(d) If desires call for assistance of the Federal Government in the Ministry of States and Frontier Regions”

1. As per the Acceding State (Property) Order, 1961 (President’s Order No. 12 of 1961), the ultimate decision of devolution and distribution of the property of late Ameer of Bahawalpur rests with the Federal Government. An important provision in Article 03 of this order lays down that where any question arises directly or indirectly between persons claiming to be the heirs and successors of the Ruler of a State or claiming to succeed to the State, concerning the devolution and distribution of any property of that State or of the Ruler, the question shall be decided by an order of the Central Government. In this manner, the Central Government was made the Arbitrator for the settlement of the disputes between the persons claiming to be the heirs and successors of the Ruler, concerning the devolution and distribution of his property. For ease, said Article is reproduced as under:

“Where any question arises directly or indirectly between persons claiming to be the heirs and successors of the Ruler of a State or claiming to succeed to the State, concerning the devolution and distribution of any property of that State or of Ruler the question shall be decided by an order of the Central Government”.

Another Article No. 7 of the President’s Order No. 12 of 1961 is also relevant which is reproduced as under:

“No Court shall have jurisdiction to entertain any such question as is referred to in Article 03, and no Court shall call in question any order of the Central Government made under that Article or Article 05 or any proceedings conducted therewith.”

1. As discussed above, all the questions relating to the distribution and devolution of properties of the late Ameer of Bahawalpur would be resolved by the Central Government. The Hon’ble Supreme Court of Pakistan while considering said aspect in a case titled “Sahibzada Muhammad Usman Khan Abbasi, etc. v. Islamic Republic of Pakistan through Secretary M/O KANA and SAFRON, Islamabad, etc.” vide order dated 21.05.2020 observed as under:

“Learned counsel for the petitioners contends that the impugned judgment passed by the learned High Court cannot be sustained on the ground that after the promulgation of Presidential Order No. 12 of 1961 called the Acceding State (Property) Order, 1961 (issued vide notification dated 02.11.1961), all the questions relating to the distribution and devolution of properties of the Ameer of Bahawalpur would be resolved by the Central Government. The dispute as to between the claimants of the property whether the legal heirs inter se or any other third party of that State or Ruler, is to be regulated in terms of Article 03 of the Presidential Order, 1961 referred to above. He further contends that Federal Government has finalized the devolution and distribution of the properties of the Ameer of Bahawalpur after considering in the recommendation of the Implementation Committee (placed at pages 82-92). He further contends that in terms of Presidential Order, 1961, no question could be raised before any Court yet Writ Petition was entertained wherein it was directed that controversy is to be resolved by the Senior Member Board of Revenue. It is stated that if at all any controversy is to be resolved it could only be resolved by the Federal Government as noted in the Presidential Order, 1961. Respondent No. 36 (Ghulam Rasool Khan) herein who claims to be acting as probono states that the property in

dispute cannot be given to the petitioners. When such controversy was raised before the High Court the matter was referred to the Senior Member Board of Revenue and the writ petition was disposed of accordingly.

1. As noted above, that whatever the nature of dispute is, in terms of the Presidential Order, 1961, it is to be resolved and decided by the Federal Government. Therefore, let the parties approach the Federal Government for the dispute impugned before the High Court and decide it in accordance with law. In view of the foregoing reasons the instant petition is converted into appeal and allowed.” (underline for emphasis)

In view of the above discussion this Court has no jurisdiction to adjudicate upon this matter.

1. For the foregoing reasons, Writ Petition No. 2916 of 2006/BWP and Writ Petition No. 7305 of 2019/BWP have no force/ substance which are dismissed accordingly. All the pending Civil Miscellaneous (including applications under Order I Rule 10 C.P.C.) are also disposed of accordingly.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 652

Present: Abid Aziz Sheikh, J.

M/s. PHIPSONS COMPANY (PVT.) LIMITED--Petitioner

versus

ZAHID MOYEEN etc.--Respondents

W.P. No. 1913 of 2020, decided on 11.7.2024.

Punjab Rented Premises Act, 2009 (VII of 2009)--

----S. 22(2)--Application for leave to contest--Dismissed--Time-barred--Ejectment petition--Allowed--Appeal--Dismissed--Lease agreement--Renewal of lease--Statutory period for leave to context--Authorization of mutwalli--Challenge to--Application for leave to contest filed by petitioner was within statutory period of ten days prescribed under Section 22(2) of Act, was not barred by time--Leave to contest application filed by petitioner was not dismissed merely being time barred, rather same was discussed and decided on merits, there was no need to remand case--Mutwalli was not only empowered to engage counsel for conduct of cases for waqf property but he would also be competent to lease property of waqf-- Present Mutwalli was not only receiving rent from petitioner on behalf of Trust but he was also authorized by Trust to operate bank account of Trust where said rent was being deposited--Property was vested in Trust, Mutwalli being authorized to lease out property and also receiving rent fall within definition of landlord and could file ejectment petition--Courts below had wrongly held that application for leave to contest was not within prescribed period of ten days, to that extent, impugned orders were not sustainable, however, on merits, no ground for leave to contest was made out hence ejectment petition was lawfully allowed against petitioner--Petition dismissed. [Pp. 657, 658 & 660] A, B, C, D & E

Ref. 1991 SCMR 1185.

M/s. Nadeemuddin Malik and H.M. Zeeshan Khan, Advocates Petitioner.

M/s. Malik Faisal Khalid, Malik Sahib Khan Awan and Qamar Zia Sandhu, Advocates for Respondents.

Date of hearing: 11.7.2024.

Judgment

This constitutional petition is directed against the final order dated 20.12.2017 and judgment dated 12.12.2019 passed by learned Special Judge (Rent) and Appellate Court respectively, whereby the ejectment petition filed by Respondent No. 1 (respondent) against the petitioner (petitioner) was allowed.

1. Relevant facts are that respondent being a Mutwalli of Ghulam Rasool Trust (Trust) filed ejectment petition on 30.1.2014 against the petitioner in respect of portion of the property (basement) measuring 16 marla situated at 60-Shahrah-e-Quaid-e-Azam, Ghulam Rasool Trust Building, Lahore (herein after referred to as rented premises). The petitioner filed leave to contest application under Section 22(2) of the Punjab Rented Premises Act, 2009 (Act), however, the same was treated beyond period of ten days by Courts below, nonetheless the ejectment petition was decided on merit and allowed by learned Special Judge (Rent) vide impugned final order dated 20.12.2017, which was also maintained by Appellate Court on 12.12.2019, hence this constitutional petition.

2. Learned counsel for the petitioner submits that petitioner appeared before the Court for the first time on 23.4.2014 and filed leave to contest application on 3.5.2014. He submits that first day of appearance i.e.23.4.2014 was required to be excluded while calculating period of ten days under Section 22(2) of the Act in view of Section 8 of the Punjab General Clauses Act, 1956 (Act of 1956), hence leave to contest application was within a period of ten days. He further submits that ejectment petition was filed by one Zahid Moyeen being a Mutwalli (Mutwalli) of the Trust and not by the Trust itself, hence he had no authority or locus-standi to file ejectment petition. In this context, he further explained that in the earlier round of litigation, three similar ejectment petitions were filed in year 1989, 1999 and 2000 but all those ejectment petitions were either filed by the Trust through its Mutwalli or by Mutwalli alongwith the Trust, hence this ejectment petition only by Mutwalli without any authority to file the same is not maintainable. He next argued that admittedly, the original lease with the Trust was for 10 years vide lease agreement dated 05.1.1962, however, on 27.3.1972, it was unanimously agreed that lease will be for 99 years and said mutual agreement was duly acknowledged by the then Mutwalli on 28.3.1972. He submits that though the respondent has denied the above assertion and claiming that lease was only for 10 years, however, this being a disputed question of fact could not be decided without grant of leave to contest and recording of evidence, hence impugned order and judgment is not sustainable.

3. Learned counsel for the respondent on the other hand submits that leave to contest application being beyond period of ten days was barred by time. He further submits that scheme was formulated for the management, control and administration of waqf properties of Trust through award dated 18.6.1989 and under the said award, Mutwalli is not only empowered to give on rent or lease out any property of the waqf but he is also receiving the rent and operating the bank accounts of the Trust on behalf of the Trust, therefore, he falls within the definition of landlord under Section 2(d) of the Act, hence can file the ejectment petition. On merit, he submits that the rented premises was handed over to the petitioner in year 1962 for period of 10 years, which expired in year 1972 and thereafter, lease was renewed from year to year basis till 2013 but thereafter, the lease was not further extended. Submits that no document was executed between the parties for 99 years perpetual lease. He submits that in the earlier ejectment petition filed in year 1989, the parties effected compromise on 29.5.1991 but it is nowhere specifically agreed in said compromise that lease is or was for period of 99 years. Further submits that in the subsequent ejectment petitions filed in year 1999 and 2000, petitioner filed written replies but never claimed that lease is for 99 years, hence it is afterthought and cannot be a ground for leave to contest the ejectment petition. Submits that notwithstanding the above factual position, in any case, the so called 99 years lease being not a registered document, will be treated on month to month basis after lapse of 11 months and therefore, ejectment petition was maintainable.

5. Arguments heard. Record perused.

6. Before touching merits of the case, I would like to decide the legal objection that whether the leave to contest application was within time or not. In this regard, it is admitted position on record that the ejectment petition by the respondent was filed on 30.1.2014, in which, the petitioner made its first appearance in the Court on 23.4.2014 and thereafter, filed leave to contest application on 03.5.2024. The petitioner under Section 22(2) of the Act was required to file leave to contest application within ten days of the first appearance. Admittedly, if the day of first appearance i.e. 23.4.2024 is included to compute the period of ten days, leave to contest application is time barred, however, if the said day is excluded, then the leave to contest application is within a period of ten days. Now the core legal question is that whether the first day of appearance is to be excluded or not for computing the ten days limitation under Section 22(2) of the Act.

1. The above legal question has already been examined by this Court in case titled Abdul Karim vs. Shakeel Ahmad etc (2012 CLC 261) and held that in view of Section 8 of the Act of 1956, the first day of appearance will be excluded for computing the period of ten days. In the aforesaid case, the first appearance before the Court was 05.9.2008 and the leave to contest application was filed on 15.9.2008. However, this Court held that in view of Section 8 of the Act of 1956, the first day shall be excluded, hence leave to contest application was within ten days. The relevant part of the judgment is reproduced hereunder:

“The submission of learned counsel for the petitioner is equally not convincing in view of Section 8 of West Pakistan General Clauses Act, 1956 which provides the exclusion of the first day in calculating the period of limitation. This provision more particularly is applicable to the statutes to which the Limitation Act, 1908 is not applicable. If the time of 10-days prescribed for filing leave application is counted according to the provisions of Section 8 then the application filed by the respondent on 15-9-2008 is well within time. The word “within” has been used in different other special statutes also; the interpretation for calculating time period shall be governed by provisions of General Clauses Act, 1956. Keeping in view this beneficial interpretation of Section 8 of Act (supra) this Court is of the view that the application filed by the respondent for contesting the ejectment petition was within the statutory period”.

Similarly in case of Mst. Saima Zameer vs. Muhammad Javed Iqbal (2017 CLC 1695), recovery suit was filed under Order XXXVII of the Code of Civil Procedure, 1908 (CPC) and as per Appendix-B of Form-IV of CPC, the leave to appear and defend was to be filed within ten days of the service of the summons. In said case, the service was effected on 15.4.2011 whereas the application for leave to appear and defend was filed on 25.4.2011, however, this Court held that in view of Section 8 of the Act of 1956 and Section 9 of General Clauses Act, 1897 (Act of 1897), the day of service will be excluded from computing the period of ten days. Relevant extract from the judgment is reproduced hereunder:

“The service of summons in summary suit is effected through summons available in the Appendix ‘B’ of Form IV of the C.P.C. It is mentioned that “within 10 days from the service” the defendant has to obtain leave to appear and defend the suit. As the service was effected on 15.04.2011, therefore, within 10 days means excluding 15.04.2011 and the last date for obtaining the leave to appear and defend was 25.04.2011, therefore, the application for leave to appear and defend the suit has been filed within the prescribed period of limitation. To strengthen this legal position, it is necessary to reproduce the language of Section 9 of the General Clauses Act, 1897 as well as Section 8 of the West Pakistan General Clauses Act, 1956, respectively, as follows:-

“9. Commencement and termination of time.--(1) In any [Central Act] or Regulation made after the commencement of this Act, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word “from”, and, for the purpose of including the last in a series of days or any other period of time, to use the word “to”.

(2) This section applies also to all [Central Acts] made after the third day of January, 1868, and to all Regulation made on or after the fourteenth day of January, 1887.”

“8. Commencement and termination of time.--In any West Pakistan Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time to use the word “from” and for the purpose of including the last in a series of days or any other period of time to use the word “to”.

It is clear that within 10 days from the service means that day of service be excluded from computing the period of 10 days, therefore, the time provided for filing an application for leave to appear and defend the suit was till 25.04.2011 when the day of service i.e. 15.04.2011 is excluded from computing the period of 10 days”.

In the case of Babar Jahangir and another vs. Nadir Ali (2022 YLR 570), the same view was also expressed by Sindh High Court in respect of leave to contest application filed in suit under Order XXXVII CPC. The relevant text of the judgment is reproduced hereunder:

“The service of the summons in the summary suit is effected through summons available in the Appendix „B‟ of Form IV of the C.P.C. It is mentioned that “within 10 days from the service” the defendant has to obtain leave to appear and defend the suit. As the service was effected on 16.3.2018, copy of the same is available on record, therefore, within ten days means excluding 16.3.2018 at lest the date of obtaining of leave to appear and defend was 26.3.2018, therefore, the application for leave to appear and defend the suit has been filed within the prescribed period of limitation”.

The Supreme Court in case of Raja vs. Tanveer Riaz and others (PLD Supreme Court 466), while computing the period of 30 days for deposit of zar-e-some under Section 24 of the Preemption Act, 1991 excluded the day on which order directing the pre-emptor to make the deposit was passed, in view of Section 8 of the Act of 1956.

1. In view of above discussion and case law, there is no manner of doubt that application for leave to contest filed by the petitioner was within statutory period of ten days prescribed under Section 22(2) of the Act, hence was not barred by time.

9. Notwithstanding the above legal position, it is noted that leave to contest application filed by the petitioner was not dismissed merely being time barred, rather same was discussed and decided on merits, hence there is no need to remand the case, rather this Court can adjudicate that whether the petitioner is entitled for leave to contest the ejectment petition on merits. In this regard, the perusal of leave to contest application shows that it is not disputed that petitioner is tenant of the Trust, however, the main contentions of the petitioner is that ejectment petition has not been filed by the Trust but by Mutwalli, who is not authorized to file ejectment petition and secondlyvide correspondence dated 27.3.1972 and 28.3.1972 with the then Mutwalli (Ch. Muhammad Afzal), the lease was extended for 99 years which will now expire in March, 2071, hence the ejectment petition is premature.

1. I have carefully examined above contentions on merits. So far as the maintainability of ejectment petition by Mutwalli is concerned, admittedly, the waqf properties were dedicated by Ch. Ghulam Rasool under the waqf deed dated 29.10.1917. However, subsequently, the dispute and difference arisen between the parties with regard to the control, management and supervision of the waqf properties and consequently, the arbitration was carried out between respective parties and arbitration award (arbitration award) was passed on 18.6.1989. Under the aforesaid arbitration award, the Mutwalli inter-alia has the following powers:-

Powers of Mutwalli.

(b) The Mutwalli shall have the powers to engage Vakil, Advocate or a Mukhtar for the conduct of cases for and against the property made waqf.

(d) That it would be in the competency of the Mutwalli of each unit to give on rent and lease out any property/properties for any period of time as he may deem fit and proper for the benefit of the waqf.

From the above clauses of arbitration award, it is manifest that Mutwalli is not only empowered to engage counsel for the conduct of cases for the waqf property but he would also be competent to lease the property of the waqf. Beside above, the present Mutwalli (Zahid Moyeen) is not only receiving the rent from the petitioner on behalf of Trust (as evident from the petitioner letter dated 25.9.2008) but he is also authorized by the Trust to operate bank account of the Trust where the said rent is being deposited. Under Section 15 of the Act, the “landlord” may seek eviction of the tenant on various grounds mentioned therein. The term “landlord” is defined under Section 2(d) of the Act which means owner of premises and includes a person entitled or authorized to receive rent in respect of the premises. In view of the above factual and legal position, notwithstanding the fact that property is vested in the Trust, the Mutwalli being authorized to lease out the property and also receiving rent fall within the definition of landlord and could file ejectment petition.

11. Regarding the next contention of the petitioner that lease was extended for period of 99 years vide petitioner’s offer dated 27.3.1972 acknowledged and responded by the then Mutwalli on 28.3.1972, suffice it to note that though respondent has vehemently denied the said assertion and claimed that lease was not further extended after 13.7.2013, however, even for the sake of argument if it is accepted that lease period was extended for period of 99 years, the said lease agreement being admittedly not a registered instrument as required under Section 17(d) and 49 of the Registration Act, 1908 (Registration Act) read with Section 107 of the Transfer of Property Act, 1882 (Transfer of Property Act), shall deem to be a lease from month to month basis terminable on part of lessor or lessee by 15 days notice.

1. The above legal position has been settled by Supreme Court in Habib Bank Limited vs. Dr. Munawar Ali Siddiqui (1991 SCMR 1185) where it is held as under:

“At this juncture, it may be pertinent to deal with the question, whether a lease in perpetuity can be created by a lease agreement, and if not, what rights the petitioner acquired under the lease agreement in issue. In this behalf, it may be pertinent to refer to Section 107 of the Transfer of Property Act, 1882, and Sections 17(d) and 49 of the Registration Act. Above Section 107 of the former Act inter alia provides that a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can only be made by a registered instrument, whereas Section 17(d) of the latter Act requires compulsory registration of a lease of the nature covered by Section 107 of the former Act. Section 49 of the latter Act provides for effect of non-registration of documents required to be registered as follows:--

“No document required to be registered under this Act or under any earlier law providing for or relating to registration of documents shall--

(a) operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property, or

(b) confer any power to adopt, unless it has been registered.”

It may he advantageous at this stage to refer to the case of Darbarilal Mudi and others by Raneegano Coal Association Ltd., reported in AIR 1944 Patna 30, in which a Division Bench of the Patna High Court held that a permanent lease, which has not been created by a registered instrument, is void under the provisions of Section 107 and the tenancy is under Section 106 deemed to be a lease from month to month terminable either on the part of the lessor or the lessee by 15 days notice. We are, therefore, of the view that the lease agreement, the copy of which has been filed with the above petition for leave, is not a legal document of the nature, on the basis of which the petitioner could have acquired lease in perpetuity”.

In this context, reliance is also placed on Supreme Court judgments tilted Govt. of Sindh etc vs. Muhammad Shafi etc (PLD 2015 SC 380) and Mirza Book Agency etc vs. Additional District Judge etc (2013 SCMR 1520) and judgments of this Court in Star Holdings vs. Dr. Nishat Afza Qureshi (2019 CLC 909), Messrs IRIS Communications (Pvt.) Ltd vs. Ahmad Khalid (2019 MLD 772) and Israr Hussaain vs. Imtiaz Ahmad Sheikh etc (2024 CLC 486).

1. It is also pertinent to note that though under Section 5(3) of the Act, the Rent Registrar shall enter the particulars of the tenancy in a Register and also affix his official seal on the tenancy agreement, however, under Section 5(4) of the Act, this entry will not absolve the landlord or tenant of the liability to register the tenancy agreement under the law relating to the registration of documents. Therefore, the law settled in aforesaid judgments and the effect of the non-registration are applicable to all the rent deeds even after the promulgation of the Act.

2. In view of above discussion, though Courts below have wrongly held that application for leave to contest was not within the prescribed period of ten days, hence to that extent, impugned orders are not sustainable, however, on merits, no ground for leave to contest is made out hence ejectment petition was lawfully allowed against the petitioner.

3. For what has been discussed above, this petition being meritless is dismissed.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 661 [Rawalpindi Bench, Rawalpindi]

Present: Mirza Viqas Rauf, J.

M/s. MADNI PAPER MART and another--Petitioners

versus

FEDERATION OF PAKISTAN through Secretary Commerce and 2 others--Respondents

W.P. No. 3965 of 2023, decided on 28.6.2024.

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

----Ss. 23 & 58--Civil Procedure Code, (V of 1898), O.VII R. 10--Investigation for imposing of anti-dumping duty--Issuance of final determination--Territorial jurisdiction--Sunset review--Direction to-- It is a well-entrenched and settled principle of law that before delving into matter in issue, a Court/Tribunal has to make sure that it has jurisdiction to ponder upon such issue--Jurisdiction cannot be vested to Court with consent of parties or at their whims unless it is so equipped under law--“Commission” could not conduct proceedings and instead after passing considerable period issued impugned notification for sunset review--Impugned notice was an offshoot of proceedings which not only came up in appeal before “Tribunal” but Islamabad High Court--Territorial jurisdiction with regard to matter in issue lies with Islamabad High Court, and High Court was precluded to exercise its jurisdiction under Article 199 of Constitution--Petition allowed.

[Pp. 662, 664 & 673] A, B, C, D & E

2008 SCMR 240, 2011 SCMR 743, 2005 SCMR 1388, PLD 1995 SC 66 and PLD 2024 SC 610 ref.

M/s. Shafqat Mehmood Chohan and Adnan Ahmed Paracha, Advocates for Petitioners.

Mr. Tahir Raheel Awan, Assistant Attorney General Pakistan.

Mr. Waqas Amir, Advocate for Respondent No. 2.

M/s. Saif Ullah Khan and Rais Mehmood Ali, Advocates for Respondent No. 3.

Date of hearing: 28.6.2024.

Order

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 calls in question the order dated 1st November, 2023 passed by the National Tariff Commission, Government of Pakistan (hereinafter referred to as “Commission”) whereby the “Commission” decided to initiate sunset review under Section 58 of the Anti-Dumping Duties Act, 2015 (hereinafter referred to as “Act, 2015”) in order to determine the likelihood of continuation or recurrence of dumping of the product under review by the exporters/producers of the exporting countries and likely continuation or recurrence of material injury to the domestic industry.

2. Facts forming background of instant petition are that an application was moved by Respondent No. 3 (hereinafter referred to as “respondent”) being the domestic industry, before the “Commission”, who started an investigation for imposition of the Anti-Dumping duty in terms of Section 23 of the “Act, 2015”. In furtherance whereof “Commission” issued final determination dated 30th March, 2018 imposing definitive Anti-Dumping duties on dumped imports of certain uncoated writing/printing paper into Pakistan originated from Brazil, China, Indonesia, Japan and Thailand. Being aggrieved from the final determination various exporters as well as importers preferred their respective appeals before the Anti-Dumping Appellate Tribunal Pakistan (hereinafter referred to as “Tribunal”) which were disposed of by way of judgment dated 6th August, 2020. After passing of the judgment by the “Tribunal” some of the importers preferred their appeals before the Islamabad High Court, Islamabad which are pending. The grievance of the petitioners is that sunset review for Indonesia can only be initiated in terms of Section 58 of the “Act, 2015” within five years from the expiry of the duty, whereas in the present case as the duty was set aside by the “Tribunal” vide judgment dated 6th August, 2020, so the matter has become past and closed transaction. In response to this petition, the respondents submitted their report and parawise comments.

1. I have heard learned counsel for the parties at considerable length and perused the record.

2. It is a well-entrenched and settled principle of law that before delving into matter in issue, a Court/Tribunal has to make sure that it has jurisdiction to ponder upon such issue. The question of territorial jurisdiction has though been raised by learned counsel representing Respondent No. 2 but halfheartedly. It is an oft repeated principle of law that jurisdiction cannot be vested to the Court with the consent of the parties or at their whims unless it is so equipped under the law. Reference to this effect can be made to Izhar Alam Rarooqi, Advocate versus Sheikh Abdul Sattar Lasi and others (2008 SCMR 240). The relevant extract from the same is reproduced below:

“6. It is true that a Court which has the jurisdiction to adjudicate the dispute and pass an order has also implicit power to have the order implemented and mere an erroneous order passed by the Court of competent jurisdiction does not render the order without jurisdiction. This is an established law that jurisdiction cannot be assumed with the consent of the parties and 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 because the jurisdictional defect is not removed by mere conclusion of trial or inquiry and objection to the jurisdiction can be raised at any subsequent stage. This Court in Rashid Ahmed v. State PLD 1972 SC 271 held as under:

“If a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any orders passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction.”

Guidance to the above effect can also be sought from Syed Muhammad Hussain Shah versus Abdul Qayyum and others (2011 SCMR 743), Munawar Hussain and 2 others versus Sultan Ahmad (2005 SCMR 1388) and Pir Sabir Shah versus Shad Muhammad Khan, Member Provincial Assembly, N.-.W.F.P. and another (PLD 1995 Supreme Court 66).

1. The petitioners are aggrieved of order of the “Commission”, whereby it has decided to initiate sunset review under Section 58 of the “Act, 2015” in order to determine the likelihood of continuation or recurrence of dumping of the product under review by the exporters/ producers of the exporting countries and likely continuation or recurrence of material injury to the domestic industry.

2. In order to properly appreciate the question of territorial jurisdiction it would be advantageous to observe that in order to give effect in Pakistan to the provisions of Article VI of the General Agreement on Tariffs and Trade, 1994, and to the Agreement on Implementation thereof and to amend and consolidate the law relating to imposition of anti-dumping duties to offset such dumping, to provide a framework for investigation and determination of dumping and injury in respect of goods imported into Pakistan and for matters ancillary thereto or connected therewith, “Act, 2015” was promulgated. Part VII of the “Act, 2015” deals with initiation and conduct of investigations whereunder “Commission” is empowered to conduct investigation upon a written application by or on behalf of domestic industry. Part IX of the “Act, 2015” deals with investigation procedures, preliminary and final determinations. Any person aggrieved or interested from the initiation of investigation or preliminary determination or even final determination can prefer an appeal before the “Tribunal” constituted by the Federal Government in terms of Section 64 of the “Act, 2015”.

3. The Respondent No. 3 being the domestic industry moved an application upon which investigation was started by the “Commission” on 15th January, 2016. In furtherance of which preliminary determination was made on 21st April, 2017 which later on matured into final determination on 30th March, 2018. Feeling offended from the final determination a large number of exporters preferred their appeals before the “Tribunal” alongwith two importers i.e. M/s. April International Enterprise, Private Limited and M/s. PT. Indah Kiat Pulp and Paper TBK, which are directly related to the petitioners being their importers. Through judgment dated 06th August, 2020 the “Tribunal” proceeded to dismiss all other appeals whereas Appeals No. 275 & 276 of 2018 were remanded to the “Commission” for fresh decision strictly in accordance with law after providing an appropriate opportunity of hearing to the appellants therein. Due to one reason or the other “Commission” could not conduct the proceedings and instead after passing considerable period issued the impugned notification for sunset review. It is thus evident without any hint of doubt that the impugned notice is an offshoot of the proceedings which not only came up in appeal before the “Tribunal” but the Islamabad High Court, Islamabad. In such a case exercise of constitutional jurisdiction by this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 would amount to launch parallel proceedings, which would certainly result into overlapping and conflicting of judgments. Moreover not only the “Commission” but the “Tribunal” are established at Islamabad. Even otherwise as an outcome of sunset review the matter would again became the subject of appeal before the “Tribunal”. In a previous round a Full Bench of this Court in M/s. Ashfaq Brothers and another versus Anti-Dumping Appellate Tribunal of Pakistan and others (2023 LHC 484 LHC website), while dealing with almost similar issue held as under:

“8. Section 70 deals with appellate procedures and it is the most pivotal provision for the resolution of the question raised before us. The decision of the “Appellate Tribunal” is appealable under sub-section (13) of Section 70 of the “Act”, which reads as under:

“70.

(1) --------------

(2) --------------

(3) --------------

(4) --------------

(5) --------------

(6) --------------

(7) --------------

(8) --------------

(9) --------------

(10) -----------------------------------------------------------------------------------------

(11) -----------------------------------------------------------------------------------------

(12)

(13) The decision of the Appellate Tribunal shall be appealable in the High Court. The High Court shall render a decision within ninety days of receiving an appeal from the decision of the Appellate Tribunal:

Provided that the High Court shall not make an interim order against the conduct of investigation by the Commission unless the Commission has been given notice of the application and has had an opportunity of being heard and the High Court for reasons to be recorded in writing, is satisfied that the interim order would not have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to the public interest [or State property] or of impeding the assessment or collection of public revenues:

Provided further that The Appellate Tribunal may, if it thinks fit accept an application from any party to an appeal in which the Appellate Tribunal has rendered its decision, for a clarification of any of the issues raised by the Appellate Tribunal in its decision:

Provided also that such application shall specify the precise issue in respect of which a clarification is sought and given reasons as to why a clarification is necessary”.

(underlining supplied for emphasis)

;

;

;

It is, thus, evident from the above that an appeal against the decision of the “Appellate Tribunal” lies before the High Court.

1. The term “High Court” is nowhere defined in the “Act”. This prompted the parties to raise the moot point. Part VII of the Constitution of the Islamic Republic of Pakistan, 1973 deals with the judicature and Chapter 1 defines the Courts. In terms of Article 175(1), there shall be a Supreme Court of Pakistan, a High Court for each Province and a High Court for Islamabad Capital Territory and such other Courts as may be established by law. Chapter 3 deals with the High Courts and Article 192 provides the composition and jurisdiction of a High Court. For ready reference and convenience, same is reproduced below:

“(1) A High Court shall consist of a Chief Justice and so many other Judges as may be determined by law or, until so determined, as may be fixed by the President.

[(2) The Sind and Baluchistan High Court shall cease to function as a common High Court for the Provinces of Baluchistan and Sind.

(3) The President shall, by Order, establish a High Court for each of the Provinces of Baluchistan and Sind and may make such provision in the Order for the principal seats of the two High Courts, transfer of the Judges of the common High Court, transfer of cases pending in the common High Court immediately before the establishment of two High Courts and, generally, for matters consequential or ancillary to the common High Court ceasing to function and the establishment of the two High Courts as he may deem fit.

(4) The jurisdiction of a High Court may, by Act of 2[Majlis-e-Shoora (Parliament)], be extended to any area in Pakistan not forming part of a Province”.

1. It would not be out of context to mention here that initially, Islamabad High Court was not in existence and it was ultimately established through Act No. XVII of 2010, dated 2nd August, 2010. By virtue of Section 4 of the said Act, jurisdiction of Islamabad High Court was extended in respect of the Islamabad Capital Territory, original, appellate, revisional and other jurisdiction, as under the constitution or the laws in force immediately before the commencement of the Act ibid, which was previously exercisable in respect of the said territory by the Lahore High Court.

2. Article 198 deals with seat of the High Court and reads as under:

[(1)] Each High Court in existence immediately before the commencing day shall continue to have its principal seat at the place where it had such seat before that day.

2[(1A)The High Court for Islamabad Capital Territory shall have its principal seat at Islamabad.]

[(2) Each High Court and the Judges and divisional Courts thereof shall sit at its principal seat and the seats of its Benches and may hold, at any place within its territorial jurisdiction, circuit Courts consisting of such of the Judges as may be nominated by the Chief Justice.

(3) The Lahore High Court shall have a Bench each at Bahawalpur, Multan and Rawalpindi; the High Court of Sindh shall have a Bench at Sukkur; the Peshawar High Court shall have a Bench each at Abbottabad [, Mingora] and Dera Ismail Khan and the High Court of Baluchistan shall have a Bench at Sibi [and Turbat.]

(4) Each of the High Courts may have Benches at such other places as the Governor may determine on the advice of the Cabinet and in consultation with the Chief Justice of the High Court.

(5) A Bench referred in clause (3), or established under clause (4), shall consist of such of the Judges of the High Court as may be nominated by the Chief Justice from time to time for a period of not less than one year.

(6) The Governor in consultation with the Chief Justice of the High Court shall make rules to provide the following matters, that is to say,--

(a) assigning the area in relation to which each Bench shall exercise jurisdiction vested in the High Court; and

(b) for all incidental, supplemental or consequential matters.]

1. There is no cavil to the proposition that the “Appellate Tribunal” is performing functions in connection with the affairs of the Federation and it is amenable to writ jurisdiction, but we have to examine as to whether in the circumstances, this Court can exercise the jurisdiction constitutional or appellate against the decision of the “Appellate Tribunal”. It is an admitted fact that initially investigation was started by the “Commission” at Islamabad, which resulted into passing of order in original. The said order was assailed through an appeal before the “Appellate Tribunal” under Section 70(1)(2) of the “Act”, who decided the same through impugned order.

2. We have noticed that the cause of action also arose either at Islamabad or Karachi and even the appellants before us while preferring their appeals before the “Appellate Tribunal” mentioned their addresses of places other than Rawalpindi. Apparently, the appellants have now changed addresses for their convenience or for any other reason best known to them.

3. It is trite law that the Court cannot assume jurisdiction on the whims of the parties or to facilitate any of them. We cannot ignore the doctrine of forum non conveniens. It is founded on the principle that if some other forum is more appropriate and the interest of justice would be served better, the Court may decline to exercise jurisdiction on the ground that a case could be suitably tried by another Court. The above doctrine has come under discussion before this Court in Hassan Shahjehan vs. FPSC through Chairman and others (PLD 2017 Lahore 665) and while outlining the scope and object of the same, it was held as under:

“19. Another dimension of the case is the principle of forum non conveniens which is a discretionary power that allows Courts to dismiss a case where another Court, or forum, is much better suited to hear the case. This dismissal does not prevent a plaintiff from refiling his or her case in the more appropriate forum: The doctrine allows a Court with jurisdiction over a case to dismiss it because the convenience of the parties and the interest of justice would be better served if the case were brought in a Court having proper jurisdiction in another venue. “The doctrine of forum non conveniens, i.e., that some other forum is more “appropriate” in the sense of more suitable for the ends of justice, was developed by the Scottish Courts in the nineteenth century, and was adopted (with some modifications) in the United States. The Scots rule is that the Court may decline to exercise jurisdiction, after giving consideration to the interests of the parties and the requirements of justice, on the ground that the case cannot be suitably tried in the Scottish Court nor full justice be done there, but only in another Court. The basic principle is that .... the Court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice. Applying this principle to the facts of the present case, the matter in hand, can best be resolved at the Supreme Court of Pakistan.

Guidance to the above effect can also be sought from Sandalbar Enterprises (Pvt.) Ltd. vs. Central Board of Revenue and others (PLD 1997 Supreme Court 334) and Let.-Gen.(R) Salahuddin Tirmizi vs. Election Commission of Pakistan (PLD 2008 Supreme Court 735).

1. In somewhat similar circumstances, in the case of Messrs Karachi Iron And Steel Mercants Association through Authorised Representative and 30 others vs. Anti-Dumping Appellate Tribunal and 22 others (2021 PTD 1150), the learned Sindh High Court observed as under:

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

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

16. So far judgment in the case of Trading Corporation of Pakistan (supra) heavily relied upon by the learned counsel for the appellants is concerned, it is observed that in the said case, facts were entirely different. Moreover, said judgment was rendered by the Hon’ble Apex Court with reference to Article 199 of the “Constitution”.

17. Though learned counsel has also relied upon Muhammmad Fayyaz vs. Federation of Pakistan and others (2022 PTD 399), but we have no hesitation to observe that a question of territorial jurisdiction was though raised before the learned Single Judge, but it was not at all consciously attended or responded by the Court.

18. The crux of above discussion is that word “High Court” used in sub-section (13) of Section 70 of the “Act” corresponds to Islamabad High Court and, as such, this Court lacks territorial jurisdiction to ponder upon the decision of the “Appellate Tribunal”.”

1. To betterly understand the core issue one can also seek guidance from Hassan Shahjehan versus FPSC through Chairman and others (PLD 2017 Lahore 665) wherein it is held as under:

“12. What does “Within the territorial jurisdiction of this Court” mean? Relying on our constitutional jurisprudence developed over the years and the provincial constitutional architecture of a High Court, writ cannot be issued by High Court against any person which is located geographically outside the territorial limits of the Province, having no physical or legal presence within the Province. See: Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334), Flying Kraft Paper Mills (Pvt.) Ltd., Charsadda v. Central Board of Revenue, Islamabad and 2 others (1997 SCMR 1874), Asghar Hussain v. The Election Commission Pakistan (PLD 1968 SC 387), Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others (1985 SCMR 758) and Messrs Sethi and Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others (2012 PTD 1869).

1. It is trite law that if the order or action of the Government or Authority (federal or provincial), present within the Province, affect the rights of a person within the Province, writ can be issued against the said Government or Authority (irrespective of its federal character) and relief given to the aggrieved person located within the Province.

2. The impugned Press Note dated 13.04.2016 does this and more, as it provides for quota for all the Provinces. Granting the prayer of the petitioner and striking down the Press Note would grant relief to the people of Punjab but simultaneously upset quotas belonging to the people of other Provinces and Areas. This would amount to issuing a writ beyond the territorial limits of the Court. A Provincial High Court can only grant relief to people of the Province and cannot meddle into the affairs of the other Provinces or affect the rights and privileges of the people of the other Provinces or Areas. 50% quota allocated to the Province of Punjab under the impugned Press Note is not inseparable from the quotas allocated to the other Provinces, hence striking down the Press Note will deprive the quota allocated to all the other Provinces and Areas. Any such writ issued by this Court would also amount to transgressing the territorial limits of the Province. So while technically, for the sake of argument, writ can be issued and relief can be granted to the people of Punjab by abolishing their quota, it would also, at the same time, have the effect of abolishing the quota of other Provinces and Areas. This unique situation begs the question; whether issuance of a writ as prayed for in this case, is constitutionally impermissible or inappropriate?

3. In order to answer the above question, let’s revisit the federalist structure of our Constitution. “The commonly accepted features of a federal constitution are: (i) existence of two levels of government; a general government for the whole country and two or more regional governments for different regions within that country; (ii) distribution of competence or power -legislature, executive, judicial, and financial — between the general and the regional governments; (iii) supremacy of the constitution — that is, the foregoing arrangements are not only incorporated in the constitution but they are also beyond the reach of either governments to the extent that neither of them can unilaterally change nor breach them; (iv) dispute resolution mechanism for determining the competence of the two governments for exercising any power or for performing any function. Federalism is in fact the basis of the division of powers...The principle of Federalism is a central organizational theme of the constitution and represents a political and legal response to underlying social and political realities... A federal system of government allows different provinces to pursue specific policies tailored to the particular concerns and interests of residents in that province. The Principle of Federalism also enables provinces to enact specific statues to pursue specific collective goals, and may promote different cultures and linguistic minorities within a specific province or areas. At the same time federalism allows citizens to construct and achieve goals on a national scale through a Federal Government acting within the limits of its jurisdiction. Consequently, federalism is key to enable citizens to participate in different collectivities and to pursue objectives at local, provincial and national levels.

4. Federalism or Federal Principle under our Constitution envisages independent federating units with autonomous legislature, executive and judiciary. Chapter 1 of Part V of the Constitution provides for distribution of legislative power between the Federation and the Provinces. Chapter 2 of the same Part deals with distribution of executive power between the Federation and the Provinces. Chapters 1 to 3 of Part-VII deal with Judicature and the vertical sharing of jurisdiction between the Supreme Court of Pakistan and the High Courts, as well as, the horizontal jurisdictional limits between the High Courts. The Constitution provides a separate High Court for each Province and a Supreme Court of Pakistan with an overarching jurisdiction with an overlapping power with the High Court under Article 184(3) of the Constitution. The provincial jurisdictional limits, delineating judicial power between co-ordinate High Courts on the basis of territory and the vertical overlap of judicial power under Article 184(3) between the High Court and the Supreme Court of Pakistan is judicial federalism. Every Provincial High Court and the High Court of the Islamabad Capital Territory has its own jurisdictional space. Any order passed by a High Court is, therefore, effective in the Province and has merely a non-binding persuasive value in other Provinces. Province is a federating unit and has its own legislature, executive and judiciary. Similarly, within the Province, the provincial High Court also functions on the same Federal Principle and exercises judicial power within the limited provincial jurisdictional space or within the Islamabad Capital Territory.”

5. In recent past in the case of Taufiq Asif and others versus General (Retd.) Pervez Musharraf and others (PLD 2024 Supreme Court 610) Supreme Court of Pakistan held as under:

“14. In the present case, the main grievance agitated and the ultimate relief sought by the respondent in his writ petition were about the acts done and the proceedings taken by the Special Court at Islamabad. Over such acts and proceedings, only the Islamabad High Court enjoyed territorial jurisdiction, and only the Islamabad High Court could judicially review the legality thereof under Article 199(1)(a)(ii) of the Constitution. The Lahore High Court had no such jurisdiction; it wrongly assumed and exercised the jurisdiction that was not vested in it by the Constitution with regard to the acts done and proceedings taken outside its territorial jurisdiction.”

After having an overview of the principles laid down in the above quoted precedents, I am of the considered view that territorial jurisdiction with regard to the matter in issue lies with the Islamabad High Court, Islamabad and this Court is precluded to exercise its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Resultantly office is directed to return this petition to the petitioners in terms of Order VII Rule 10 of the Code of Civil Procedure (V of 1908), so as to be presented before the Court concerned (Islamabad High Court, Islamabad).

(Y.A.) Petition disposed of

PLJ 2024 Lahore 674

Present: Rasaal Hasan Syed, J.

PUNJAB HIGHWAY DEPARTMENT and others--Appellants

versus

Sh. ABDUR RAZZAQ & COMPANY (PVT.) LTD.--Respondents

F.A.O. No. 524 of 2013, decided on 12.7.2024.

Arbitration Act, 1940 (X of 1940)--

----Ss. 15, 26 & 30--Arbitration--Award of arbitrator--Challenge to--Validity--Jurisdiction of Civil Courts--Modification of award--Objection to award--Opportunity of defence--Violation of contract--Time-barred--The arbitrators did not take authorized representative of objector along with them at time of site inspection and local inquiry and, thus, condemned it unheard which resulted in miscarriage of justice and that it was misconduct on part of arbitrators--The Court below acted illegally while going behind award and exercising powers under Section 15 of Act--And that Court could not interpret award by considering matters extraneous to award nor could act as a Court of appeal or go into merits of case; and further that trial Court wrongly interpreted that mobilization advance was payable by respondent--Once objections are observed to be time-barred, Court did not have any jurisdiction to look into award and shall proceed to pass an order, making it a rule of Court in a mechanical manner and that in instant case Court while modifying award exceeded its jurisdiction--The award can be set aside on ground that arbitrator(s) or umpire had misconducted themselves or proceedings--Material portion of objections were disposed of in a casual manner without considering their legal effect--Section 26-A of Act will be relevant in that regard which empowers Court to remit award which did not record reasons as contemplated by law for consideration Court to determine legal questions involved in matter--Appeal is accepted, impugned order is set aside, case is remanded to Civil Judge for decision afresh after framing issues and recording evidence and keeping in view rule applicable on subject as observed supra--Appeal accepted.

[Pp. 675, 676, 678, 679 & 682] A, B, C, D, E, F & G

Ref. 1984 CLC 1077, 2009 SCMR 29, 2006 SCMR 614, 1990 MLD 301.

Mr. Waheed Alam, Asst. Advocate General for Appellants.

Mr. Riaz Karim Qureshi, Advocate for Respondent.

Date of hearing: 30.5.2024.

Judgment

This order will dispose of the instant appeal as well as F.A.O. No. 390 of 2013 titled Sh. Abdur Razzaq & Company (Pvt) Limited v. The Punjab Highway Department, etc. as both appeals stem from the same order dated 27.7.2013 of learned Civil Judge, Lahore whereby the objections to the award of arbitrators were disposed of and award was made rule of Court.

2. Facts as will be pertinent for decision of the two appeals are that contract for construction of bridge over River Chenab at Shahbazpur, District Gujrat named “Ch. Zahoor Elahi Shaheed Bridge” was awarded to Sh. Abdur Razzaq & Company (Pvt) Limited (the “contractor”) on 01.8.2007. Value of the contract based on work was Rs. 1,345,120,000/-obligated to be completed in 24 months. Mobilization advance of Rs. 99,843,000.00 with interest deductible in five installments was paid against furnishing of bank guarantee. A dispute surfaced in respect of the contract qua which a reference was solicited for determination by arbitration through an application under Sections 8 and 9 of Arbitration Act, 1940 (the “Act”) by the contractor filed in civil Court. Appointment of two arbitrators was made on 24.2.2012 and the parties were directed to submit their claims before the arbitrators for final resolution of the dispute. The arbitrators entered upon the reference and made their award on 06.3.2013. Objections to the award were filed by Punjab Highway Department (the “department”) which were decided by the learned Civil Judge vide order dated 27.7.2013 in terms whereof the objections were rejected but exercising powers under Section 15 of the Act the Court modified the award to the extent of adjustment and reimbursement of excess mobilization advance which the respondent had received in terms of the contract. Against the order dated 27.7.2013. The present FAO was filed by the department for setting aside the award while the contractor filed FAO No. 390 of 2013 against the order to the extent of modification of award in respect of adjustment and reimbursement of the mobilization advance.

1. Learned AAG referred to the objections against the award filed in the Court below and submitted that the appellant amongst others specifically pleaded that the arbitrators had misconducted themselves and the proceedings; that the award was improperly procured by the arbitrators with mala fide; that the arbitrators did not give proper opportunity to defend the matter to the appellant; that the arbitrators did not take authorized representative of the objector along with them at the time of site inspection and local inquiry and, thus, condemned it unheard which resulted in miscarriage of justice and that it was misconduct on the part of the arbitrators; that the arbitrators violated the terms and conditions of the contract; that the objections could be decided only after framing issues and allowing opportunity of evidence which course was not adopted by the trial Court; and that the impugned order violated due process and the rule of natural, fair and proper justice. It was argued that the learned Civil Judge ignored that the award was not well-reasoned and speaking one and that the conclusions drawn by the arbitrators were not only violative of the contractual provisions but were also legally untenable. As against these arguments, in the perception of contractor’s learned counsel the objection was barred by time, therefore, the department had no case and that the mobilization advance was not a matter of dispute nor a subject-matter of reference, therefore, the Court below acted illegally while going behind the award and exercising powers under Section 15 of the Act. And that the Court could not interpret the award by considering matters extraneous to the award nor could act as a Court of appeal or go into the merits of the case; and further that the trial Court wrongly interpreted that the mobilization advance was payable by the respondent.

2. Submissions made by learned counsel for both sides have been given due consideration in the light of the available record. The ground amongst others for setting aside the impugned order raised by the learned AAG appearing for the department was that the objection raised against the award could not have been decided without framing of issues and giving opportunity of evidence denial whereof rendered the order violative of due process and rule of natural justice. Before opining on the findings of the Court below in the impugned order, it is necessary to consider the scope of jurisdiction of the Court and its obligations under the Act in respect of an award before making it a rule of Court. In the perception of learned counsel for the contractor, once the objections are observed to be time-barred, the Court did not have any jurisdiction to look into the award and shall proceed to pass an order, making it a rule of Court in a mechanical manner and that in the instant case learned Court while modifying the award exceeded its jurisdiction. The argument does not sound good. Under Section 30 of the Act, the award can be set aside on the ground that the arbitrator(s) or umpire had misconducted themselves or the proceedings; that the award was made after the issue of an order by the Court superseding the arbitration or after the arbitration proceedings had become invalid under Section 35. Section 17 of the Act mandates that where the Court sees no cause to remit the award or any of the matters referred to arbitration for consideration or to set aside the award the Court, after the time for making an application to set aside the award has expired or such application having been made, after refusing it, shall proceed to pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow. The provision of Section 17 ibid. and the scope of jurisdiction thereunder has remained subject-matter of consideration in number of cases by the superior Courts and the consistent rule is that the provision of Section 17 imposes the duty upon the Court to see that there is no cause to remit the award or any other matter referred to arbitration for consideration or to set aside the award and such power can be exercised suo motu by the Court and even in the cases where the objections were not filed or were time-barred. Reference in this respect can be made to the case of A. Qutubuddin Khan v. Chec Millwala Dredging Co. (Pvt.) Limited (2014 SCMR 1268) wherein it was observed as below:

3. In view of the above, the obvious question that floats to the surface is that in the eventuality that an Award was filed in the Court and objections thereto are either not filed or if filed found to be barred by limitation, whether the Court is to mechanically make such an Award, the Rule of the Court. The powers vested in the Court to make an Award the Rule of the Court are obviously judicial and not ministerial and it is now settled law that the absence of objections to such an Award does not absolve the Court of its responsibility to examine the same. In the instant case, the learned Single Judge, after concluding that the objections filed by the respondent were time barred, without conducting a judicial exercise of examining the Award qua its validity, made the same the Rule of the Court. Hence its order in this behalf dated 5.8.2000 was not sustainable in law and was rightly set aside by way of the impugned judgment and the case remanded.

Reference can also be made to M/s. Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another (1992 SCMR 65) where it was observed that:

1. But; in his submissions, he ignored the provisions of Section 17 of the Arbitration Act, which imposes a duty on Courts to see that there is no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award. This can be done by the Court suo motu, apart from the application which a party may make for either remission of the award or its reversal. Where, therefore an award is found to be nullity because of the invalidity of the arbitration agreement or, for any other reason or the award is prima facie illegal and not fit to be maintained, the Court has power under Section 17 of the Act to set it aside without waiting for an objection to award being filed or without considering any application for setting it aside, if there be any, and irrespective of the question whether or not any objection to the award was filed or whether the objection, if filed, was not within time…

In Karachi Dock Labour Board v. Messers Quality Builders Ltd. (PLD 2016 SC 121) it was observed as follows:

Therefore, although in the instant case an express objection to jurisdiction of the arbitrator was sought, we are of the view that notwithstanding the absence of objections filed by any party and/or the fact that parties may consent to the making the award a rule of Court, the Court is duty bound to examine the validity and legality of an award and it may sua sponte modify or set aside the award if the facts and dictates of justice so demand. The Court, in our opinion, cannot and certainly should not, remain dormant by merely affixing the judicial stamp on an award. The Court is not a part of an assembly line which has to churn out finished products mechanically without applying its judicial mind to the process involved …

It is manifest from the rule in the cases supra that while making an award rule of Court, in a case where the parties did not file objections, the Court is not supposed to act in a mechanical manner like the proverbial post office and place its seal on it but it is obligated to look into the award and if it finds patent illegality on the face of award it is empowered to set aside, modify or remit the award for reconsideration.

1. It is evident from the impugned order that material portion of objections were disposed of in a casual manner without considering their legal effect. It was a case where the contractor claimed various amounts as compensation for the losses and damages allegedly sustained on the plea of breach of contract by the department which were controverted by the department and raising serious objections against the contractor and maintaining that despite receiving huge amount of mobilization advance, the respondent had failed to perform its part. In the award the arbitrators allowed number of claims which were challenged item-wise in the objections by alleging that there was no basis or evidence for them and that the award was lacking reasons to allow such amount to the contractor. The learned Civil Judge failed to consider these objections in the legal perspective by assuming that the Court was not competent to look into the reasoning or the basis of award. The operative part of the order is as under:

… It is settled principle of law that trial Court cannot sit over the award as Court of appeal and to go through the merits of the case rather trial Court should lean in favour of award instead of setting aside the same. Both the Arbitrators were senior, competent, and experienced Engineers from the respondent’s department therefore, the respondent should not raise objection on Arbitrator’s award who after hearing the parties have submitted the award on the basis of the reference filed by the applicant …

1. It is thus obvious that the trial Court opted not to interfere in the award on the assumption that the Court could not look into it even for the purposes of satisfying as to whether the award was based on any evidence or that the reasons recorded by the arbitrators awarding huge amount did have any supporting evidence and as to whether there was any basis for assuming the amount as compensation. It is legal commonplace the Court while deciding the objections does not act as a Court of appeal nor could substitute the findings of the arbitrators, but it does not mean that it will endorse an award that had no evidentiary basis or if reasons given by the arbitrators were legally untenable.

2. Section 26-A of Act will be relevant in this regard which empowers the Court to remit the award which does not record reasons as contemplated by law for consideration of the Court to determine the legal questions involved in the matter. Section 26-A as incorporated in the Act itself by the Law Reforms Ordinance (XII) of 1972 reads as follows:

26-A. Award to set out reasons. (1) The arbitrators or umpire shall state in the award the reasons for the award in sufficient detail to enable the Court to consider any question of law arising out of the award.

(2) Where the award does not state the reasons in sufficient detail, the Court shall remit the award to the arbitrators or umpire and fix the time within which the arbitrator or umpire shall submit the award together with the reasons in sufficient detail.

Provided that any time so fixed may be extended by subsequent order of the Court.

(3) An award remitted under sub section (2) shall become void on the failure of the arbitrator or umpire to submit it in accordance with the direction of the Court.

In the case of Karachi Metropolitan Corporation v. Associated Constructors Ltd. (1984 CLC 1077) it was observed that the object of Section 26-A of the Act was that if the award is based on irrelevant and extraneous consideration or erroneous view of law or material facts or other relevant matters are not considered those could be made known to the parties so that any of them aggrieved by the award could challenge the same and also enable the Court to consider any question of law arising out of such award. It was observed that the Court will remit the award to the arbitrators where reasons were not articulated for awarding substantial amount to the party and how the arbitrator had arrived at those figures by mentioning separately various amounts awarded by them under various heads claimed by the contractor. In such cases the award had to be remitted. Excerpt from the above-noted precedent is as under:

1. We have already quoted the material part of the award and from its perusal, it is quite clear that except stating that he has reached the conclusion that the plaintiff (respondent) is entitled to a payment of Rs. 1,60,647/-(Rs.7,23,300 in the award in Suit No. 908 of 1981) which include escalation due to losses suffered by the respondent on account of delay caused by the appellant. He has, however, neither stated any reason for awarding such substantial amounts nor has he stated how he has arrived at these figures by mentioning separately the various amounts awarded by him under various heads claimed by the respondent. Indeed, in the absence of the reasons it was not possible for the appellant and for that matter for this Court to know what amount has been awarded by the Arbitrator under each head.

2. We have already stated that the learned Single Judge himself has observed that the awards are non-speaking awards. Indeed, he refused to look into the record for that reason. For all these reasons we find no substance in the first part of the submission.

Reference can also be made to the case of Umer Din through L.Rs. v. Mst. Shakeela Bibi and others (2009 SCMR 29) where it was observed as under:

1. The above noted text of the award clearly depicts that the Arbitrators had failed to give out the reasons for reaching to the conclusions of their decision. On the basis of which document, or evidence they had arrived at that conclusion was not given out in the award so as to enable the Court making the award a rule of Court, to examine the correctness of the reasons and conclusions. No sufficient detail has been found by us in the above noted award as envisaged by Section 26-A of the Arbitration Act, 1940 to perceive the decision noted in the award. Section 26-A of the Arbitration Act 1940 which was inserted by Arbitration (Amendment) Ordinance XV of 1981, was not interjected into the Act without any aim or purpose behind it by the Legislature. The Civil Court which had to make the award the rule of Court was granted an opportunity and power to examine the reasons of adjudication of the subject matter in dispute by the Arbitrators. As to how and on what basis, the Arbitrators had decided and made the award, was to be scrutinized critically by the learned Court, to check up as to whether the Award was based on whimsical grounds, without any foundation or reason or it was supported by and rendered on some basis, evidence and document. In other words, arbitrary, non-speaking, sketchy, careless and sleazy award, deciding the fate of the parties to the dispute was not to be blessed with approval to give them authority of Court, by making it a rule of Court. The award which does not contain reasons in sufficient detail has to be rejected and is not to be approved by the civil Court so as to make it rule of Court. An arbitration award is enforceable and is to be granted approval of the Court to be transferred into the shape and form of rule of Court when it complies with the essential characteristics and requirements as are contained in Section 26-A of the Arbitration Act of 1940. In the instant case no reason has been given by the Arbitrators, for deciding the dispute. Therefore, we fully endorse the view pronounced in 2001 SCMR 750, 2006 SCMR 614 and 2006 SCMR 1657 (supra) as referred to by the learned counsel for the appellants …

In the case of Allah Din & Company v. Trading Corporation of Pakistan and others (2006 SCMR 614) it was observed as under:

1. … The learned Division Bench in the impugned judgment had aptly rejected the above claim on the ground that compensation for loss of goodwill or reputation is generally not awarded, particularly in the absence of tangible evidence showing additional loss and further that since the purchaser was already awarded Rs. 1 million by the arbitrator as compensation for the anticipated loss of profit further compensation on account of loss of goodwill and reputation was not justified. We find ourselves in agreement with the reasoning of the learned Division Bench …

2. The contention of the learned counsel for the purchaser that the Court is not entitled to disagree with the findings of the Arbitrator is without force. It is true that the trial Court does not sit in appeal from the finding of the arbitrator but at the same time the Court is empowered to reverse the findings of the arbitrator on any issue if it does not find support from the evidence. The very incorporation of Section 26-A of the Arbitration Act requiring the arbitrator to furnish reasons for his finding was to enable the Court to examine the soundness of the reasons. As already held the arbitrator in the case before us had granted damages for loss of reputation and goodwill without there being any evidence to that effect. The Courts were, therefore, justified in denying this claim to the purchaser …

Reference can also be made to The Director Industries And Mineral Development v. Dada Bhoyhormusjee & Sons (1990 MLD 301) where it was observed to the effect that the arbitrator having ignored an important piece of evidence on record before him, it was patent that he misconducted the proceedings pending before him and that in view of Section 26-A whereby an arbitrator is required to give reasons for the award, a heavier responsibility lay on such domestic forums to deal with all matters going to the root of the dispute and failure to do so would constituted misconduct, for the required, to give reasons, is not a meaningless exercise.

1. In view of the rule supra, if the impugned order is considered, it is obvious that the learned Civil Judge neither considered the reasons for setting aside the award nor considered as to whether the award was liable to be remitted and by simply observing that the award had been delivered by two Arbitrators who are Officers of the Department irrespective of the fact whether the award was invalid, it was violative of the contract or otherwise violative of the rule of due process and that it had no basis. In these circumstances the case needs to be remanded for decision afresh on the objection to the award by framing proper issues and allowing the parties to produce evidence and in the light of the rule referred supra.

2. For the reasons hereinabove this appeal is accepted, impugned order is set aside, case is remanded to the Civil Judge for decision afresh after framing issues and recording evidence and keeping in view the rule applicable on the subject as observed supra while F.A.O. No. 390 of 2013 titled Sh. Abdur Razzaq & Company (Pvt) Limited v. The Punjab Highway Department, etc. having become infructuous is disposed of accordingly.

(Y.A.) Appeal accepted

PLJ 2024 Lahore 683 [Multan Bench, Multan]

Present:Ahmad Nadeem Arshad, J.

MASOOD-UL-HASSAN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 5215 of 2022, decided on 2.7.2024.

Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Suit for recovery of maintenance allowance and dowry articles was decreed--Execution of decree--Arrest of Respondents No. 5, 6--Application for setting aside ex-parte decree--Statement of counsel for respondents--Operation of judgment and decree was suspended--Releasing of--Submission of surety bond--Dismissal of application--Writ petition--Dismissed--Petitioner’s property was put to auction--Liability as surety--Challenge to-- Respondent No. 6 was sent to civil prison for a period of one year and after facing civil imprisonment he was released from jail-- Respondent No. 5 was also arrested twice for satisfaction of decree--Both judgment debtors were discharged by Court from paying decretal amount--The petitioner was only surety and he submitted surety bond in light of statement of counsel for decree holders and direction of executing Court--After dismissal of Respondent No. 5’s application for setting aside ex-parte judgment and decree he was again arrested and sent to jail--He moved an application for his release from jail and discharge him from payment of decretal amount--The Executing Court while deciding his application for his release from payment of decree--The petitioner bind himself to pay decretal amount being ‘surety’ and not given any fresh surety bond for satisfaction of whole decree--Orders of executing Court did not find mentioned that Respondent No. 5 would arrange a surety for payment of entire decretal amount--Petitioner stood surety amounting only, which he has paid before Executing Court on different occasions--Said fact was not denied by Respondents No. 2 to 4--Petitioner has satisfied amount for which he stood surety--Appeal accepted. [Pp. 686, 687, 688,690, 691] A, B, C, D & E

M/s. Muhammad Afzal Chaudhary & Muhammad Akhtar Chaudhry, Advocates for Petitioner.

Mr. Ejaz Hussain Mughal, Advocate for Respondent No. 2-4.

Date of hearing: 2.7.2024.

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 order dated 05.03.2022 whereby the learned Appellate Court while accepting the appeal of Respondents No. 2 to 4, set-aside the order dated 28.09.2021 and directed the learned Executing Court to proceed further in accordance with law to satisfy the decree.

2. Shorn of unnecessary details, Respondents No. 2 to 4 instituted a suit for recovery of maintenance allowance and dowry articles against the Respondents No. 5 & 6 on 20.11.2014; that suit was resisted by Respondents No. 5 & 6 through filing contesting written statement; that after failure of pre-trial reconciliation proceedings interim maintenance was fixed; that Respondents No. 5 & 6 failed to pay the interim maintenance allowance as well as cross-examine the plaintiffs’ witnesses, hence, ex-parte proceedings were conducted vide order dated 25.04.2015 and learned Trial Court after recording ex-parte evidence decreed the suit vide judgment & decree dated 29.06.2015 and declared that Respondent No. 2/Plaintiff No. 1 is entitled to recover maintenance allowance @ Rs. 2,000/-per month from institution of the suit till subsistence of marriage, the Respondents No. 3 & 4 were declared entitled to recover maintenance allowance @ Rs. 2,000/-per month from the institution of suit till their legal entitlement and also decreed alternate price of dowry articles as Rs. 2,00,000/-; that Respondents No. 2 to 4 filed an execution petition for the satisfaction of the said decree on 24.07.2015; that Respondents No. 5 & 6 failed to appear before the Court despite issuance of notices, therefore, non-bailable warrants of arrest were issued against them and in the light of said warrants Respondent No. 5 was arrested and produced before the Court on 03.11.2015; that said judgment debtor (Respondent No. 5) moved an application for setting aside the ex-parte judgment and decree coupled with an application for suspension of said decree on 18.11.2015; that learned counsel for the decree-holders made a no objection statement qua suspension of ex-parte judgment and decree and release of judgment-debtor subject to furnishing surety bond in the sum of Rs. 400,000/-with one local surety; that the learned executing Court subject to submission of surety bond in the sum of Rs. 400,000/-with one local surety in the like amount to the satisfaction of the Court suspended the judgment and decree dated 29.06.2015 and released the judgment-debtor vide order dated 28.11.2015; that petitioner stood surety of said Respondent No. 5 to the tune of Rs. 4,00,000/-and in this regard he submitted surety bond on 03.12.2015; that Respondent No. 6 (husband of Respondent No. 2) was also arrested and sent to civil prison for one year on 12.11.2019; that as the decree was not satisfied, therefore, proceedings against the petitioner/surety were initiated and his property was attachedvide order dated 26.07.2019; that petitioner applied for staying the auction proceedings and got recorded his statement on 07.10.2017 to the effect that if the judgment debtor failed to pay the decree then he being the surety would be responsible to satisfy the decree and in case of default he will have no objection upon the auction of his property; that he also submitted an affidavit on 11.11.2019 by maintaining that he has paid Rs. 50,000/-today and will deposit further amount of Rs. 50,000/-on 12.11.2019 and undertakes that he will be bound to pay the remaining decretal amount; that Respondent No. 5/judgment debtor moved an application for his release which was allowed by the learned Executing Court vide order dated 22.12.2020 with the observation that the father is bound to pay the maintenance allowance to his children and in case of his non-payment the grandfather is liable to pay the same if he has sufficient resources to pay the same but there is nothing on record to show that he has sufficient means to pay the decretal amount and keeping in view his old age he was released from the jail; that Respondents No. 2 to 4 assailed said order through preferring an appeal which was dismissed vide order dated 30.04.2021 by maintaining that as the surety (petitioner) got recorded his statement on 17.10.2017 that he will pay the decretal amount, therefore, for the satisfaction of remaining decretal amount of maintenance allowance the surety (petitioner) as well as his property is available; that the petitioner also moved an application on 17.11.2020 for his discharge being the surety of judgment debtor (Respondent No. 5) by maintaining that he has paid Rs. 4,00,000/-for which he stood surety, therefore, he be discharged being the surety of the judgment debtor (Respondent No. 5). Learned Executing Courtvide order dated 28.09.2021 allowed his application by declaring that surety (petitioner) is not responsible to pay any other amount and discharged him from his liability. Feeling aggrieved, Respondents No. 2 to 4 assailed said order through preferring an appeal. The learned Appellate Court vide judgment/order dated 05.03.2022 allowed the appeal by declaring that in the light of petitioner’s statement dated 07.10.2017 and his affidavit dated 11.11.2019 he is responsible for remaining decretal amount and set aside the order dated 28.09.2021 with direction to the learned Trial Court to proceed further in accordance with law to satisfy the decree. Being dissatisfied, petitioner has filed this petition.

1. I have heard learned counsel for the parties at length and perused the record with their able assistance.

2. It is matter of record that the learned Trial Court decreed the suit of the Respondents No. 2 to 4 for recovery of maintenance allowance and dowry articles in the following terms:

“What has been discussed above, the Plaintiff No. 1 is entitled to receive maintenance allowance from the defendant @ Rs. 2000/-per month from the institution of suit till the subsistence of marriage. While, the plaintiffs No. 2 & 3 are also entitled to receive maintenance allowance @ Rs. 2000/-per month from the institution of suit till they are legally entitled. The Plaintiff No. 1 is entitled to recover Rs. 200,000/-as alternate price of dowry articles. Suit of the defendant for restitution of conjugal rights is dismissed.”

Although, the suit was instituted against husband of Respondent No. 2 and father of Respondents No. 3 & 4 namely Muhammad Nadeem (Respondent No. 6) and his father namely Muhammad Nizam (Respondent No. 5) but the decree is silent whether said suit was decreed against both of them and they are bound to pay the decretal amount jointly and severely or the said decree is only against Respondent No. 6.

1. It is evident from the record that Respondent No. 6 was sent to civil prison for a period of one year on 12.11.2019 and after facing the civil imprisonment he was released from the jail. It is also evident from the record that Respondent No. 5 was also arrested twice for satisfaction of the decree. First time he was released on submission of surety bond of the petitioner and secondly he was released by the Court keeping in view his old age by observing that he was not in easy circumstances to pay the decretal amount.

In view of above, both the judgment debtors were discharged by the Court from paying the decretal amount.

1. From perusal of order sheet it appears that in compliance of non-bailable warrants of arrest, Respondent No. 5 was arrested and produced before the Court on 03.11.2015; that he moved an application on 28.11.2015 for setting aside the ex-parte judgment and decree dated 29.06.2015 coupled with an application for suspension of said decree; that learned counsel for the Respondents No. 2 to 4 appeared before the Court and made a statement that he has no objection if the operation of impugned judgment and decree is suspended and judgment debtor Muhammad Nizam (Respondent No. 5) be released subject to submission of surety bond in the sum of Rs. 400,000/-with one local surety in the like amount to the satisfaction of the Court. The learned executing Court in the light of his statement vide order dated 28.11.2015 suspended the operation of the impugned judgment and decree and directed to release the judgment debtor Muhammad Nizam if he submits surety bonds of Rs. 400,000/-with one local surety in the like amount to the satisfaction of the Court. The petitioner came forward and stood as surety of said Respondent No. 5 and submitted his surety bond of Rs. 4,00,000/-on 03.12.2015 in the light of order dated 28.11.2015. Perusal of the surety bond submitted by the petitioner reflects that petitioner stood surety with the following undertaking:

یہ کہ بروئے حکم عدالت جناب والہ حکم و ڈگری مورخہ 15-04-25 جو کہ منسوخ ہو چکی ہے اور مدعا علیہ نمبر 2 نظام دین جو کہ بند جوڈیشل حوالات ہے جس کی ضمانت/رہائی کا حکم عدالت جناب والہ سے مورخہ 15-11-28 کو ہو چکا ہے۔ بروئے حکم عدالت جناب والہ ضمانت نامہ داخل کروایا جارہا ہے۔

منکہ مسمی مسعود الحسن ولد محمد ابراہیم ذات ارائیں ساکن چک نمبر 24/WBتحصیل و ضلع وہاڑی کا ہوں اور بروئے حکم عدالت جناب والہ مالیتی 04 لاکھ روپے کا ضمانت نامہ بطور ضامن پیش ہو کر لکھ کر دیتا ہوں اور اقرار کرتا ہوں کہ میں حکم عدالت جناب والہ کا پابند رہوں گا اور اپنے آپ کو بطور ضامن پیش کرتا ہوں۔ بصورت دیگر عدالت جو بھی کاروائی کرے اعتراض نہ ہو گا۔"

In the light of said surety bond, learned Executing Court on 29.01.2016 passed the order in following terms.

“As per record, the judgment debtor Nizam in application for setting aside decree has submitted his surety bond of Rs. 4,00,000/-and he has been released from custody. Now to come up for payment of decretal amount on 09.02.2016.”

In this way, it appears that the petitioner was only surety for Rs. 4,00,000/-and he submitted the surety bond in the light of statement of learned counsel for the decree holders and the direction of learned executing Court.

1. It is evident from the perusal of record that the application for setting aside of ex-parte judgment and decree dated 29.06.2015 of Respondent No. 5 was dismissed on 16.03.2016 and appeal against it also met the same fate and dismissed by the learned Appellate Court vide order dated 26.08.2016 and the writ petition (W.P. No. 18033 of 2016) against said orders was dismissed as withdrawn on 29.05.2017.

2. After dismissal of Respondent No. 5’s application for setting aside the ex-parte judgment and decree he was again arrested and sent to jail. He moved an application for his release from the jail and discharge him from the payment of decretal amount. The learned Executing Court while deciding his application for his release from the payment of the decree videorder dated 22.12.2020 observed as under:

“It further reflects from perusal of record that earlier judgment debtor Muhammad Nizam was arrested and one Masood-ul-Hassan stood surety for him and surety has paid Rs. 4,00,000/-(four lac) for satisfaction of the decree. In the given circumstances, I am of the view that decree to the extent of dowry articles has been satisfied and further decree was partially satisfied decreed to the extent of maintenance is also satisfied. There is nothing on record to show that petitioner/judgment debtor Muhammad Nizam has sufficient resources to pay the decretal amount to the decree holder. Petitioner is an old-aged person, hence, it would not be appropriate to keep him in the civil prison. Hence, application of the petitioner is hereby accepted. Judgment debtor Muhammad Nizam is hereby released.”

1. Said order was assailed by Respondents No. 2 to 4 and the learned Appellate Court dismissed their appeal vide judgment/order dated 30.04.2021 while observing as under:

“Perusal of the record depicts that earlier Respondent No. 2/judgment debtor /Muhammad Nazim was arrested during the proceedings of execution petition and was released on submission of surety for him namely Masood-ul-Hassan for the satisfaction of decree. It is admitted thing that Rs. 4,00,000/-has been paid for the partial satisfaction of decree. Now the question before the Court is that to what extent of the decretal amount Respondent No. 2/judgment debtor/Muhammad Nazim is responsible. In this regard, it is observed that appellant/ decree holder filed a suit for maintenance allowance and dowry articles against the Respondent No. 1 Muhammad Nadeem and his father/Respondent No. 2/Muhammad Nazim and said suit was decreed vide judgment & decree dated 29.06.2015 to the extent of maintenance allowance of plaintiffs and dowry articles amounting to Rs. 200,000/-. It is observed that the judgment and decree is not clear that it was also passed against the Respondent No. 2/Muhammad Nazim regarding maintenance allowance of plaintiffs while to the extent of decretal amount of dowry articles i.e. Rs. 200,000/-has been paid. The Respondent No. 2/judgment debtor/Muhammad Nazim being grandfather of minor plaintiffs in the presence of father of minor plaintiffs Respondent No. 1, is not responsible to pay maintenance allowance of minors because it is primary responsibility of Respondent No. 1/judgment debtor being father to pay the maintenance allowance to his children and in case of non-payment of maintenance allowance, grandfather is duty bound to pay the maintenance allowance, if he has sufficient reasons to pay the same. But in this case, there is nothing on record to show that Respondent No. 2 has the easy circumstances to pay the maintenance allowance to his grandchildren.”

Said judgment was not assailed any further, hence, the same has attained finality. Through said orders, the learned Courts below discharged Respondent No. 5 for the satisfaction of the decree.

1. The petitioner failed to pay Rs. 4,00,000/-of his surety, hence, his property was put to auction. In order to stop the auction proceedings, petitioner appeared before the Court and got recorded his statement on 07.10.2017 in the following manner:

بیان کیا کہ میں مقدمہ ہذا میں ضامن مدیون ہوں۔ مقدمہ ہذا میں مورخہ 17-10-09 کو میری جائیداد کی نسبت نیلام عام کی کارروائی چل رہی ہے۔ آئندہ تاریخ پیشی پر زر ڈگری اگر مدیون کی طرف سے ادانہ ہو اتو بطور ضامن میں ادائیگی کا پابند رہوں گا۔ عدم ادائیگی کی صورت میں میری جائیداد نیلام عام کرنے پر کوئی اعتراض نہ ہو گا۔"

In the light of his statement auction proceedings was stayed.

1. The petitioner again defaulted to pay the decretal amount, therefore, his property was again put to auction, then he moved an application on 11.11.2019 by maintaining that he has already paid Rs. 128,000/-and wants to pay further amount of Rs. 50,000/-and prayed for stay of auction proceedings. In support of his application, he submitted his affidavit in the following terms:

یہ کہ حلفاً بیان کرتا ہوں کہ اجراء مندرجہ عنوانِ بالا میں من مخلف مدیون نمبر 2 نظام کا ضامن ہوں اور کارروائی اجراء میں نیلامی کا حکم ہوا ہے۔ من مخلف نے امروزہ مبلغ 50 ہزار روپے جمع عدالت کر دیے ہیں اور مبلغ 50 ہزار روپے مورخہ 19-11-12 جمع کروادوں گا۔ میری نیلامی رو کی جائے۔ یہ کہ حلفاً بیان کرتا ہوں کہ باقی زر ڈگری بھی ادا کرنے کا پابند رہوں گا۔"

In the light of said submission, the learned Executing Courtvide order dated 11.11.2019 stayed the auction proceedings and adjourned the matter to 12.11.2019. Petitioner submitted further amount of Rs. 50,000/-on the given date.

1. The learned appellate Court keeping in view the petitioner’s above referred statement dated 07.10.2017 and his affidavit dated 11.11.2019 declared him liable to pay the whole decretal amount vide impugned order dated 05.03.2022. Whereas, perusal of the above referred statement and affidavit reflects that the petitioner bind himself to pay the decretal amount being the ‘surety’ and not given any fresh surety bond for the satisfaction of whole decree. Admittedly, the petitioner stood surety for Rs. 4,00,000/-only and on 07.10.2017 the outstanding decree was also not more than Rs. 4,00,000/-.

2. It is argued on behalf of the Respondents No. 2 to 4 that this Court also declared the petitioner is liable to pay the whole decretal amount while deciding Writ Petition No. 11283 of 2019 titled “Masood-ul-Hassan v. Judge Family Court & others”. From the perusal of said order, it appears that the petitioner assailed the order dated 22.06.2019 of learned Executing Court whereby his property was put to auction. This Court while dismissing the said writ petition vide order dated 24.07.2019 observed as under:

“Having considered the submissions made by the learned counsel it is observed that the writ petition is wholly misconceived and untenable. Undeniably a decree was passed by the Family Court, execution proceedings started for the enforcement of decree, the petitioner opted to furnish surety on behalf of the judgment-debtor and that the judgment-debtor failed to discharge his liability under the decree. This being so, the learned Judge Family Court was legally justified to proceed against the surety who had committed and undertaken to satisfy the claim of decree-holder in the event of default on the part of judgment debtor. Undeniably, the judgment-debtor had failed to pay off the entire decretal amount and was not willing to satisfy the decree completely in result; the learned Judge Family Court was legally justified to proceed against the surety. Even otherwise, having furnished the surety to pay off the liability of judgment-debtor, the petitioner could not be allowed to find fault with order or to extend lame excuses to save his skin. The order for filing of the schedule for auction of the property of the surety and for its auction, in the given circumstances, does not suffer from any error of law. The order being interlocutory, no appeal being competent, the learned Addl. District Judge rightly declined interference.”

From the perusal of the above observation, it is clear that this Court only settled that in case of non-payment of decretal amount by the judgment debtor, the surety would responsible and in case of default on the part of surety, his property would be liable to be auctioned for the satisfaction of the decree. The only question before this Court was that whether the property of surety can be auctioned or not. A general observation was given by the Court and it was not decided to what extent the present petitioner/surety would be responsible, as this was not a fact in issue before the Court at that time.

1. From the perusal of the decree, it appears that no specific decree has been passed against Respondent No. 5. Said decree was consisting upon two parts i.e. a decree for recovery of maintenance allowance and a decree for recover of dowry articles. A decree for maintenance allowance also consisted upon two portions as it was passed in favour of Respondent No. 2/Plaintiff No. 1 wife of the Respondent No. 6 and in favour of Respondents No. 3 & 4 minors children of Respondent No. 6. Respondent No. 5 is grandfather of the minors and he can be bound only to the extent of maintenance of the minors being their grandfather, if he has easy circumstances to pay the same. Therefore, when the Courts have let off/released Respondent No. 5 Muhammad Nizam from the responsibility of satisfying the decree, then how his surety is responsible to satisfy the same.

2. A surety’s liability is co-extensive with that of the judgment debtor and he was as much bound by his undertaking as was the judgment debtor, and both were collectively and severely liable to make payment to the decree holder. While construing the tenure and extent of surety bond, the words and recitals of the surety bond must be taken into consideration to gather the intention of the executant of said bond and the bond must be strictly construed. A surety is liable only upto the extent to which he is clearly bound.

16. Through the order dated 28.11.2015 the learned executing Court directed Respondent No. 5 to submit surety bond of Rs. 400,000/- with one local surety in the like amount and in compliance of said order, the petitioner submitted surety bond of Rs. 400,000/-on 03.12.2015 and vide order dated 29.01.2016 the learned executing Court on submission of surety bond of Rs. 400,000/-released Respondent No. 5 which facts clearly established that the petitioner was stood surety only of Rs. 400,000/-. Contract of surety had provided that maximum he was liable to the tune of Rs. 400,000/-. Orders of learned executing Court did not find mentioned that the Respondent No. 5 would arrange a surety for the payment of the entire decretal amount. Petitioner stood surety amounting to Rs. 400,000/- only, which he has paid before the learned Executing Court on different occasions as detailed in his application to discharge him from the liability as surety. Said fact was not denied by Respondents No. 2 to 4. In these circumstances, the petitioner has satisfied the amount for which he stood surety.

1. For the foregoing reasons, learned Appellate Court has erred in law while allowing appeal of Respondents No. 2 to 4 and dismissing the application of the petitioner. Hence, by accepting this petition impugned order passed by the learned appellate Court dated 05.03.2022 is set-aside and order dated 28.09.2021 passed by the learned Executing Court is restored.

(Y.A.) Appeal accepted

PLJ 2024 Lahore 692 [Bahawalpur Bench, Bahawalpur]

Present: Asim Hafeez, J.

MUHAMMAD ASAD MEHMOOD--Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary Home Department, Punjab, Lahore & others--Respondents

W.P. No. 5770 of 2024, decided on 1.8.2024.

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

----S. 3(1)--Constitution of Pakistan, 1973, Art. 199--Detention orders--Allegation of--Affiliation with political party--Objection of availability of alternate remedy--Allegation of previous criminal record--Misuse of discretion and authority--Direction to--Claim of alternate remedy was misconceived and not adequate and efficacious to cure illegality and incidence of abdication of jurisdiction--Details of any criminal case was not referred in detention orders--It was unexplained that how mere registration of criminal cases--Registration of case does not per se justify preventive detention--Detention orders under reference were declared illegal and of no legal effect--Petition accepted.

[Pp. 695 & 696] A, B, C & D

PLD 1974 Lahore 7 and 1994 SCMR 1532 ref.

M/s. Asif Arshad, Muhammad Arshad Ali Singhaira, Sultan Qadir Altaf and Muhammad Akthar Chaudhary, Advocates for Petitioner.

Mr. Zafar Iqbal Awan, Addl. A.G.

Mr. Khurram Pervaiz Deputy Commissioner, Rahim Yar Khan.

Mr. Javed Akhtar Jatoi, SP Headquarter, Rahim Yar Khan.

Mr. Sohail SI Police Station, Khanpur.

Date of hearing: 1.8.2024.

Order

Instant petition seeks declaration of invalidity against detention orders, variously passed, apparently in exercise of powers under Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 (‘MPO, 1960’), on 25th July 2024 and 26th July 2024, pursuant thereto persons identified in the Schedule-A were detained – details of persons in the Schedule-A is lifted from the petition and each of the person is identified with reference to corresponding detention order. It is alleged that detainees are affiliated with the political party.

2. Learned law officer objects to the maintainability of this petition on the ground that representation/appeal of detainees is pending before the Secretary Home Department, Government of Punjab, which is an available alternate remedy.

1. On merits of the detention orders, learned law officer refers to a report, placed on record today, signed by the District Police Officer, Rahim Yar Khan. District Police Officer and Deputy Commissioner, Rahim Yar Khan, to demonstrate that detainees had previous criminal record and detention is essential to secure public peace, tranquility and prevent disturbance.

4. Heard. Detention orders replicate in content, except name(s)/identity(ies) of the persons referred therein. One of the detention order of 26.07.2024, available at page 22 of this petition, ordering detention of one Shabbir Ali, son of Khadim Hussain, is read with the assistance of law officer, text whereof, for convenience’s sake, is reproduced hereunder, “WHEREAS, the District Police Officer, Rahimyarkhan vide his letter No. 3465/SB dated 25.07.2024 has stated that as per report of SHO, PS “City Khanpur”, Shabbir Ali s/o Khadim Hussain Caste Pahoor R/o Model Town Khanpur is a quarrelsome/combative type of person. He is involved in instigating people to participate in anti state campaign, which can disturb the law & order situation and endanger the lives and properties of General Public of Rahimyarkhan. In prevailing situation, if he remains free, he will indulge in the activities prejudicial to public peace and tranquility. His activities are dangerous to public health and creating disharmony in the area due to which, people of the locality are feeling insecurity.

1. AND WHEREAS, Under the above circumstances, DPO, Rahimyarkhan has recommended that in order to prevent the said anti-social element from his unlawful activities and acting in a manner prejudicial to the public safety and the maintenance of public order, he may be detained u/S. 3(1) MPO, 1960 for a period of 30 days in the public interest.

2. WHEREAS, Considering the above said grounds given by the DPO, Rahimyarkhan, I am fully satisfied that in order to prevent the said person from acting in any manner prejudicial to public safety and the maintenance of public order, his detention is necessary and expedient in public interest.

3. NOW THEREFORE, I Khurram Pervaiz, Deputy Commissioner, Rahimyarkhan, in exercise of the powers conferred upon me u/S. 3(1) of the West Pakistan Maintenance of Public Order, ordinance, 1960, vide Home Department’s Notification No. SO(IS0I)3-12/2007 dated 16-02-2008 hereby order to detain Shabbir Ali s/o Khadim Hussain Caste Pahoor R/o Model Town Khanpur for a period of 30 days from the date of his entrance in District Jail, Rahimyarkhan to avoid any likelihood of breach of peace/unlawful assembly in the district.

4. The detainee is at liberty to make representation to Government of the Punjab against this order.

5. Given under my hand on this 26th day of July, 2024.”

5. Perusal of detention order indicates reference to some letter No. 3465/SB dated 25.07.2024 – [on perusal letter bears No. 3466/SB dated 25.07.2024] -of District Police Officer, Rahim Yar Khan. It is appropriate to reproduce contents of referred letter, which read as, “Subject: REQUEST FOR ISSUANCE OF DETENTION ORDER U/S 3-MPO.

Memorandum:

Kindly refer to the subject cited above.

1. It is stated that as per report submitted by SHO PS City Khanpur, Shabbir Ali s/o Khadim Hussain Caste Pahoor r/o Model Town Khanpur is a quarrelsome/combative type of person. He is involved in instigating the people to participate in anti-state campaign, which can disturb the law & order situation and endanger the lives and properties of General Public of this district.

2. In prevailing situation, if he remains free, he will indulge in the activities prejudicial to public peace and tranquility. His activities are dangerous to public health and creating disharmony in the area due to which, people of the locality are feeling insecurity.

3. In view of the above, it is requested that an order under Section 3-MPO may be issued against him for a period of 30-days in order to restrain him from indulging in the activities prejudicial to public and maintenance of law & order, please.

District Police Officer, Rahim Yar Khan.”

1. Heard.

7. Objection regarding availability of alternate remedy is repelled on the premise that order of detention is inherently defective, which evidently fails to meet the statutory test for encumbering one’s personal liberty/freedom, reasons provided infra. In the circumstances, claim of alternate remedy is misconceived and not adequate and efficacious to cure illegality and incidence of abdication of jurisdiction. There is no cavil that law permitting preventive detention has to be construed strictly. No reinventing of wheel is required; jurisprudence regarding scope of preventive detention, embodied in Section 3(1) MPO, 1960, is well-settled, which expounds that justification and justiciability of a detention order has to be ascertained and adjudged in the context of the material/evidence, available and referred to in the order and sufficient enough to meet exception to the fundamental rights, guaranteed under the Constitution of Pakistan – [Article 10 provides for such preventive detention subject to the law, which is MPO, 1960]. Perusal of detention order(s) manifest broad-spectrum/general allegations, attributing participation in anti-state campaign – which insinuations followed by repetitive cliché/platitudinous expressions in the text of detention order(s). When asked to provide specific facts/circumstances that led to the passing of detention orders, learned law officer emphasized that each of the detainee had previous criminal record, who responded to the query, that whether such details were refereed to or indicated in the detention orders or letter by District Police Officer, Rahim Yar Khan, with deafening silence. Details of any criminal case was not referred in the detention orders. It is unexplained that how mere registration of criminal cases – [It is evident that case FIR No. 695/24 u/S. 341/188/186/148/149, PPC PS Kotsmaba, and FIR No. 536/23 u/S. 341/188/148/149, PPC 16-MPO PS Saddar Khanpur] -would make detainee Anti-State campaigner” – often used cliché, which is akin to a “lawfare mechanism” adopted these days to cause problems for opponent(s) and presently so frequently employed that it lost credibility and even fails to meet straight face/giggle test. This is serious allegation and has had to be justified with compelling reasons/grounds conspicuously absent. Registration of case does not per se justify the preventive detention – See the case of “Mrs. Arshad Ali Khan vs. Government of The Punjab through Secretary, Home.” (1994 SCMR 1532). Contents of the detention orders smacks of mala-fide, whereby 28 persons are deprived of their liberty/freedom – on trumped-up allegations, surmises and conjectural basis, when no tangible evidence or sufficient support material is produced/shown to justify the grounds for preventive detention, which amount to an incidence of malice-in-law. Reference is made to the ratio in the case of “Begum Nazir Abdul Hamid vs. Pakistan (Federal Government) through The Secretary, Interior, Division Islamabad and another” (PLD 1974 Lahore 7), relevant portion therefrom is reproduced hereunder, “An order of detention is mala fide if it is made for a “collateral” or “ulterior” purpose, i.e. a purpose other than what the Legislature had in view in passing the law of preventive detention. In Shearer v. Shields (1) it was held that the person who inflicts a wrong or an injury upon a person in contravention of the law is not allowed to say that he did so with an innocent mind. It is “malice in law”, although so far as his mind is concerned, he may have acted honestly or innocently. The malice in law is to be inferred when an order is made contrary to the objects and purposes of the Act, or the rules made thereunder. It is not enough that the order is passed under a colour of the power conferred. It must be done in actual exercise of it and no power is conferred to make such an order in abuse of the Act.”

1. This appears to be a textbook case of misuse qua exercise of discretion and authority.

2. In view of the above, detention orders under reference are declared illegal and of no legal effect and directions are made for forthwith release of persons, mentioned in Schedule-A, provided same are not required in any other criminal case.

SCHEDULE-A

W.P. No. 5770/2024.

Muhammad Asad Mehmood

Versus

Government of Punjab through Secretary Home Department, Lahore & others

| | | | | --- | --- | --- | | Sr. No. | Name with Parentage of detained person | Date of detention Order. | | 1. | Muhammad Tanveer s/o Akhtar Hussain. | 26th July, 2024 | | 2. | Muhammad Khalid s/o Allah Bakhsh. | 26th July, 2024 | | 3. | Muhammad Yaqoob s/o Noor Din. | 26th July, 2024 | | 4. | Faheem Ahmad s/o Abdul Ghaffar. | 26th July, 2024 | | 5. | Muhammad Sanwal s/o Ibraheem. | 26th July, 2024 | | 6. | Muhammad Saghir Ali s/o Muhammad Yaqoob. | 26th July, 2024 | | 7. | Maaz s/o Mehrab Khan. | 26th July, 2024 | | 8. | Mujahid Hussain s/o Abdul Khaliq. | 25th July, 2024 | | 9. | Muhammad Saqlain s/o Abid Hussain. | 26th July, 2024 | | 10. | Muhammad Arslan s/o Akram. | 26th July, 2024 | | 11. | Shabbir Ali s/o Khadim Hussain. | 26th July, 2024 | | 12. | Asad s/o Ayaz Ahmed. | 26th July, 2024 | | 13. | Muhammad Shafiq s/o Muhammad Shafi. | 26th July, 2024 | | 14. | Mohammad Asghar s/o Bashir Ahmad. | 26th July, 2024 | | 15. | Muhammad Zeeshan s/o Muhammad Akram. | 26th July, 2024 | | 16. | Jam Mahboob Ahmed s/o Hajji Ahmed. | 25th July, 2024 | | 17. | Muhammad Shahzad s/o Sajjad Ahmad. | 25th July, 2024 | | 18. | Talib Hussain s/o Dost Ali. | 25th July, 2024 |

(ASIM HAFEEZ)

(Y.A.) Petition accepted

PLJ 2024 Lahore 698 [Multan Bench, Multan]

Present:Ahmad Nadeem Arshad, J.

RAZIA BEGUM and 5 others--Petitioners

versus

MEMBER (JUDICIAL-III) B.O.R., and 12 others--Respondents

W.P. No. 13531 of 2018, decided on 27.6.2024.

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

----S. 12--Suit for specific performance--Decreed subject to depositing of remaining sale consideration within period of one month--Appeal--Dismissed--After laps of for about 10 years application for implementation on decree was filed--Execution petition was filed--Dismissed as withdrawn--Mutation was incorporated during pendency of appeal--Review--Mutation was reviewed--Question of whether decree of specific performance can be implemented in revenue record directly through mutation or it can be enforced only through filing execution petition--Challenge to--Predecessor of petitioners instituted a suit for specific performance on 24.01.1987 and sought performance of an agreement to sell-- The predecessor of petitioners remained silent for about 10 years and thereafter he moved an application to District Collector for implementation of decree which was dismissed--Decree passed in favour of predecessor of petitioners was conditional subject to payment of remaining consideration within a period of one month and on failure of deposit of remaining consideration amount, suit would be deemed to have been dismissed--There was no proof on record which may suggest that predecessor of petitioners fulfilled said condition--Trial Court could not enlarge period for deposit of remaining consideration amount--After execution of sale deed, revenue authorities would be bound to give its effect in revenue record--Impugned order was well-reasoned, justified and passed in accordance with law which did not call for any interference by High Court while exercising constitutional jurisdiction--Petition dismissed.

[Pp. 699, 700, 701 & 703] A, B, C, F & G

Ref. 2016 SCMR 179.

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

----S. 42(1)--Mutation--Process of mutation would start from a time when a transaction of transfer of right in property has been effected. [P. 702] D

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

----S. 12--Decree for specific performance-- The decree for specific performance by itself does not transfer title. [P. 702] E

Ref. AIR 1938 All 4388, PLD 1959 Lah. 273, PLD 1974 BJ 25, PLD 1979 Lah. 909, 1989 CLC 1372.

M/s. Sheikh Muhammad Hanif Shahid and Rizwan Ahmad Khan, Advocates for Petitioners.

Mr. Kanwar Sajid Ali, Assistant Advocate General of Punjab for Respondents # 1 to 4.

Mr. Saghir Ahmad Bhatti, Advocate for Respondents # 5 to 12.

Date of hearing: 27.6.2024.

Judgment

Through the instant Constitution Petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have assailed the vires of order dated 27.02.2018 passed by Respondent No. 1 (Member Judicial-III, Board of Revenue, Punjab Lahore) whereby, while accepting the revision of revision (ROR No. 702 of 2017) filed by Respondents No. 5 to 12, set-aside the order dated 15.03.2017 passed by Respondent No. 2 (Additional Commissioner (Revenue), Multan) and restored the orders dated 28.01.2016 and 25.09.2014 of Respondents No. 3 & 4.

1. Shorn of unnecessary details, the petitioners’ predecessor namely Abdul Majeed got incorporated Mutation No. 1710 dated 27.01.2014 on the basis of decree dated 02.06.1998 passed in a suit for specific performance of an agreement to sell dated 15.01.1986; that said mutation was reviewed and set aside by Respondent No. 4 vide order dated 25.09.2014 and appeal preferred by the predecessor of the petitioners was dismissed in-limine by Respondent No. 3 on 28.01.2016; that predecessor of the petitioners assailed said orders through filing a revision petition which was allowed by Respondent No. 2 vide order dated 15.03.2017; that Respondents No. 5 to 12 challenged said order through revision of revision (ROR No. 702 of 2017) which was accepted by Respondent No. 1 vide impugned order dated 27.02.2018. Being dissatisfied, the petitioners have assailed said order dated 27.02.2018 of Respondent No. 1 through instant petition.

2. I have heard learned counsel for the parties at full length and perused the record with their able assistance.

3. It is evident from the record that predecessor of the petitioners namely Abdul Majeed instituted a suit for specific performance on 24.01.1987 and sought performance of an agreement to sell dated 15.01.1986, whereby, Muhammad Rafique (Respondent No. 13) agreed to sell half portion of his shop measuring 3 Sirsahi bearing Khasra No. 100/2/2, out of total shop measuring 06 Sirsahi for a consideration of Rs. 25,000/-while an amount of Rs. 15,000/-was paid as earnest money. He also challenged the entries of Mutation No. 533 dated 04.02.1986, whereby, Respondent No. 13 sold the suit shop to predecessor of Respondents No. 5 to 12 namely Gulzar Ahmad for a consideration of Rs. 70,000/-. Said suit, after full-fledged trial was decreed by the learned trial Court vide judgment and decree dated 02.06.1998 subject to deposit of the remaining consideration amount of Rs. 10,000/-within a period of one month, failing which the suit shall be deemed to have been dismissed and that the Mutation No. 533 dated 04.02.1986 become effective. Respondents No. 5 to 12 assailed said judgment and decree of learned trial Court by preferring an appeal which was dismissed vide judgment and decree dated 12.03.2002. The predecessor of the petitioners remained silent for about 10 years and thereafter he moved an application to the District Collector for implementation of the decree which was dismissed vide order dated 17.01.2012 with an observation that the petitioners should have approached the learned executing Court for execution of the decree. In the light of said observation, predecessor of the petitioners filed an execution petition on 27.03.2012 which was subsequently withdrawn and said execution petition was dismissed as withdrawnvide order dated 26.01.2013. During the pendency of said execution petition, the petitioners somehow succeeded to get incorporate Mutation No. 1652 on 14.11.2012 on the basis of decree. Said mutation was subsequently reviewed and set aside vide order dated 20.11.2012 and appeal against it was dismissed vide order dated 26.12.2013. Thereafter, predecessor of the petitioners instituted a suit for declaration and sought declaration of his title upon the suit property on the basis of decree dated 02.06.1998. Said suit was also dismissed as withdrawn vide order dated 25.03.2015. Subsequently, predecessor of the petitioners again succeeded to get incorporate Mutation No. 1710 on 27.01.2014. Said mutation was also dismissed by Respondent No. 3 while exercising the power of review vide order dated 25.09.2014. Predecessor of the petitioners assailed said order through preferring an appeal which was dismissed in-limine by Respondent No. 3vide order dated 28.01.2016. However, revision of the petitioners against said orders was allowed by Respondent No. 2 vide order dated 15.03.2017 and restored the Mutation No. 1710 dated 27.01.2014. Respondents No. 5 to 12 assailed said order through filing revision of revision (ROR No. 702 of 2017) before Respondent No. 1 which was allowed vide impugned order dated 27.02.2018.

4. No doubt a decree of specific performance exists in favour of predecessor of the petitioners. It is settled principle of law that decree never dies but the restriction of limitation always became a barrier for the enforcement of the decree through execution after prescribed period of limitation, however, it does not extinguish the right or title based on the decree.

6. Admittedly, decree passed in favour of the predecessor of the petitioners was conditional subject to payment of remaining consideration amount of Rs. 10,000/-within a period of one month and on failure of the deposit of the remaining consideration amount, the suit would be deemed to have been dismissed. There is no proof/material on record which may suggest that predecessor of the petitioners fulfilled the said condition as it is not established on the record at all if such deposit was ever made. Learned trial Court cannot enlarge the period for deposit of remaining consideration amount under Section 148 of the Code of Civil Procedure, 1908 after the lapse of stipulated period of one month. Jurisdiction with the trial Court was available only within the stipulated period of one month. The moment such period of one month was over, it ceased to have jurisdiction and became functus officio, in view of the condition incorporated in the decree. In such eventuality the decree passed by the learned trial Court could only have been challenged by the plaintiff in appeal and the appellate Court was competent to allow an application seeking extension of time for deposit of balance sale consideration, if justifiable grounds were found. For reference, the reliance is placed upon the case law titled as “Muhammad Wahid and another versus Nasrullah and another” (2016 SCMR 179)

1. Now the question arises whether decrees of specific performance can be implemented in the revenue record directly through mutation or it can be enforced only through filing execution petition? Learned counsel for the petitioners emphasized that a decree of Civil Court still exists in favour of the predecessor of the petitioners and the Revenue Officer is duty bound to incorporate said decree in the revenue record, through sanctioning of mutation irrespective of any delay.

2. No doubt, the decree granted by the Civil Court is binding on the Revenue Authorities and they are bound by the law to give effect the decree and change entries in the revenue record in accordance with the rights of the parties as determined by the Civil Court and a decree does not lose its utility for not having been effected within the period of limitation. For reference reliance is placed upon the case law titled as “Ali Ahmad and another versus Muhammad Fazal and another” (1972 SCMR 322)

3. Section 42(I) of the West Pakistan Land Revenue Act, 1967 provides that process of mutation would start from a time when a transaction of transfer of right in the property has been effected. Such acquisition of right in the estate should be as land owner either through inheritance, purchase, mortgage, gift or otherwise such as decree of Civil Court or as a tenant for a fixed term exceeding one year. But such acquisition of right must be with regard to either ownership right or tenancy right.

4. The decree for specific performance by itself does not transfer the title. A decree for specific performance of an agreement with regard to sale of the property only declares the right of decree-holder to have the property transferred in his favour covered by the decree and so long as the sale deed is not executed in his favour by the judgment-debtor or by the Court, the title of the property remains vested in the judgment-debtor. Unless the title in the immovable property is transferred by means of a registered sale deed, it cannot be deemed to have been transferred irrespective of the fact that an agreement to sell has been executed and a decree for its specific performance has also been passed. The purpose of the decree of specific performance is to get the sale deed executed and procure possession in accordance with the conditions mentioned therein, in so long as the sale deed is not executed in favour of the decree-holder either by the judgment-debtor or by the Court, the title in the property vested in the judgment-debtor. For reference the reliance is placed upon the case law titled as “Hakim Enayat Ullah v. Khalil Ullah Khan and another” (AIR 1938 All 438). Reference may also be made with advantage to four other decided cases of this Court titled “Majid v. Nizam Din and others” (PLD 1959 Lahore 273), “Haji Abdul Rehman and others v. Noor Ahmad and others” (PLD 1974 BJ 25), “Muhammad Ishaq v. Muhamamd Siddique” (PLD 1979 Lahore 909) and “Syed Manzoor Hussain Shah v. Khurshid Ahmad and 4 others” (1989 CLC 1372).

5. In order to get title of the property on the basis of a decree for specific performance, the decree holder has to file an execution petition through invoking provision of Order XXI Rule 32 of the Code of Civil Procedure, 1908, which deals with decrees for specific performance, restitution of conjugal rights and injunction. It provides various modes and steps for execution of said types of decree. By executing the decree for specific performance not only a sale deed is executed in favour of decree-holder but the possession is delivered as well subject to conditions as mentioned in the agreement/decree. The decree for specific performance enjoins the parties to perform their part of agreement and on their failure to do so, Court itself performs those obligations by carrying out the act required to be done. Said power is conferred under sub-rule (5) of Rule 32 of Order XXI, C.P.C. which runs as follows:

“Where a decree for specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the process aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.”

1. In view of the above discussion, this Court has reached to a conclusion that a decree for specific performance cannot be directly implemented in the revenue record without indulgence of the executing Court, who in execution of the decree shall get execute sale deed in favour of the decree-holder and deliver the possession in accordance with the agreement/decree. Of course, after execution of sale deed, the revenue authorities would be bound to give its effect in the revenue record.

2. For the foregoing reasons, Respondent No. 1 has rightly accepted the revision filed by Respondents No. 5 to 12 and restored the orders dated 28.01.2016 & 25.09.2014. Impugned order is well-reasoned, justified and passed in accordance with law which does not call for any interference by this Court while exercising constitutional jurisdiction.

14. Learned counsel for the petitioners failed to point out any illegality, material irregularity and jurisdictional defect in the findings of order passed by Respondent No. 1. In absence of a jurisdictional defect or illegality and irregularity or unless a case of grave miscarriage of justice was made out, this Court in exercise of its constitutional jurisdiction, normally did not interfere in the findings. I have seen no illegality, infirmity and jurisdictional defect in the impugned order.

15. Epitome of above discussion is that the instant petition is misconceived and not maintainable, hence, the same is hereby, dismissed. No order as to costs.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 704

Present:Asjad Javaid Ghural, J.

Dr. IQRAR AHMAD KHAN etc.--Petitioners

versus

c--Respondents

W.P. No. 9024 of 2021, decided on 9.7.2024.

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

----S. 561-A--Constitution of Pakistan, 1973, Arts. 199 & 199(1)(a)(ii)--Pakistan Penal Code, (XLV of 1860), Ss. 409, 468 & 471--Prevention of Corruption, (II of 1947), S. 5(2)--Quashment of FIR--Allegations of--Adhoc regular and contract appointments--Abuse of official powers--Lodging of FIR--JIT--Cancellation report--Powers of VC--No criminal act was committed--Ulterior motive--Mala fide--There was no allegation against Petitioner No. 2, who undisputedly neither had any role in appointments of employees in University nor there was any allegation against him qua financial embezzlement or misuse of authority but despite this fact he was booked in that case--Vice-Chancellor was not only empowered to create and fill temporary posts not beyond period of six months, sanction all expenditures but also appoint employee in National Pay Scale 1 to 16--In emergency law has empowered him to take action which was even not in his competence--Though certain appointments were made by VC on temporary/adhoc basis, while exercising his powers conferred under Act but he did not made even a single appointment on regular basis without advertisement or deviating proper procedure during his tenures--Investigating Teams could not find even a single instance where VC had made regular appointment without approval of Syndicate, as such there left no room to assume that VC while making any appointments had derogated any law or misused his authority-- The conduct of probe committee lacks transparency and it seems that it played in hand of incumbent Respondent No. 5--VC had not committed any criminal act for making appointments and apparently for this reason in two successive investigations, he was given clean chit--It was a long standing practice in University that Vice Chancellors alongwith others drew honorarium without sanction of Chancellor--Singling out petitioner in this charge was not only discriminatory but also shows mala fide and ulterior motive on part of authority--There was not material from which it could be inferred that while holding office of VC, he received any salary as Incharge of CAS, therefore, in two consecutive investigation, Investigating Agency recommended droppage of proceedings against VC--Merely due to pendency of Cancellation report before Trial Court, proceedings in quashment petition could not be halted--The entire proceedings against petitioners were orchestrated by Respondent No. 5 with mala fide intention and ulterior motive--The petitioners had been given clean chit by ACE in two consecutive investigations and cancellation report has been prepared--The petitioners could not be made shuttle cock to run from one Court to other merely on ground of pendency of cancellation report--Referring them again to Trial Court to pursue cancellation report would amount to continuation of harassment caused by Respondents No. 5 & 6 by initiating criminal proceedings against them--Petition allowed. [Pp. 710, 711, 712, 713, 714, 715, 717 & 718] A, B, C, D, E, F, H, I, J, K, L & M

Words and Pharasis--

----Perks and privileges are peculiar benefits for which Vice Chancellor was entitled while holding such post, whereas, honorarium is not given to a Vice Chancellor by virtue of his post, but same was a voluntary payment being made in recognition of meritorious services of an employee. [P. 713] G

2007 PCr.LJ 1957, PLD 1974 SC 151, PLD 2003 SC 265, PLD 2007 SC 16 and PLD 1987 SC 139 ref.

Mr. Abid Saqi, Advocate for Petitioners.

M/s. Muhammad Ahsan Bhoon and Muhammad Imran Sulehria, Advocates for Respondents No. 5 & 6.

M/s. Shan Saeed Ghumman and Sardar Haider Naeem, Advocates for Respondent No. 4/University of Agricultural, Faisalabad.

Rana Umair Abrar Khan, A.A.G.

Date of hearing: 9.7.2024.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners Dr. Iqrar Khan and Ch. Muhammad Hussain have sought quashing of impugned FIR No. 41/2020, in respect of offence under Sections 409, 468, 471 & 420, PPC read with Section 5(2) of Prevention of Corruption Act, 1947 (PCA), registered at P.S. ACE, Region Faisalabad.

2. Learned counsel for the petitioners submits that the impugned FIR is a result of mala fide and ulterior motives; that Petitioner No. 1 served as Vice Chancellor of the University of Agriculture, Faisalabad (University) for two terms consecutively; that during his term University went through an exceptional growth phase; that enrollments of students went up from 8000 to 25000, the recurring budget rose from rupees 700 million to 7 billion, research fund grew from rupees 300 million to 3000 million and the University ranking went up in the top 100 QS World subject category, a distinction that no other University in the country has achieved yet; that after completion of his two tenures, the University has advertised the post of Vice Chancellor again and the petitioner also applied for the said post; that Respondent No. 5 was also contesting candidate for the said post; that Government of the Punjab constituted a Search Committee to consider suitability of the candidates, and the petitioner stood at Sr.No. 1 of the merit list; that the Chief Minister in derogation of merit, appointed Respondent No. 5, who was lower in merit as Vice Chancellor of the University; that the petitioner challenged the appointment of Respondent No. 5 before this Court by way of Writ Petition No. 34743/2019; that due to that grudge Respondent No. 5 while holding the post of Vice Chancellor, in order to tarnish the image of the petitioner and influence upon the judicial proceedings, constituted an unlawful probe committee under the convenorship of Respondent No. 6 vide notification dated 03.06.2019; that the said committee without issuing any notice to the petitioners and affording them an opportunity to explain their position by preparing forged and fictitious record, held the petitioners guilty of making adhoc/contract/ regular appointments, abuse of official powers and drawing of honorarium without the permission of competent authority/Chancellor within eleven days of the constitution of the committee, that on the basis of findings of probe committee initially Respondent No. 8 filed a complaint before Anti-Corruption Establishment, (ACE), who subsequently withdrew the same by filing an affidavit; that thereafter Respondent No. 9, who has nothing to do with the internal affairs of the University was managed by Respondent No. 5, who again filed application before the ACE on the similar charges; that the inquiry remained pending for a considerable period of time and in the meanwhile, this Court vide judgment dated 17.01.2020 passed in aforesaid writ petition declared the appointment of Respondent No. 5 for the post of Vice Chancellor as illegal and unlawful and direction was issued to the competent authority to notify the petitioner as Vice Chancellor; that Respondent No. 5 challenged the order of learned Single Judge in Chamber in the Intra Court Appeal, which was accepted by the learned Division Bench vide judgment dated 05.03.2020 and Respondent No. 5 was restored as Vice Chancellor; that being aggrieved the petitioner challenged the vires of judgment of the learned Division Bench before the Apex Court, by filing C.Ps. No. 916-L and 1768 of 2020; that the Apex Court while granting leave to appeal suspended the operation of the orders of the learned Division Bench vide order dated 7.9.2020; that on smelling success of the petitioner, Respondent No. 5 while using his influence just after nineteen days of leave granting order of the Apex Court got lodged the impugned FIR; that sole purpose of lodging of impugned FIR was just to influence the judicial proceedings before the Apex Court and creating hurdle in the way of the petitioner for the post of Vice Chancellor; that prior to lodging of FIR, ACE coerced the petitioner to withdraw the CPs from the Apex Court; that regarding the same allegations the matter has already been thoroughly investigated by the NAB authorities, who vide letter dated 28.08.2018 recommended closure of investigation; that launching of investigation on the same allegations by the Anti-Corruption Establishment is in clear contravention of Section 18(d) of the National Accountability Ordinance, 1999; that the impugned FIR tantamounts to double jeopardy, which is barred under Article 13(a) of the Constitution; that even otherwise during two consecutive investigations, one conducted by the JIT, constituted by the order of learned Special Judge, Anti-Corruption, Faisalabad, the petitioners have been found innocent and the cancellation report, duly approved by the Director General, ACE and forwarded by the prosecution department has been submitted before the Trial Court; that despite elapse of almost eleven months the Trial Court has not decided the fate of said cancellation report; that after giving clean chit to the petitioners during investigation, there is no chance of their conviction, as such impugned FIR is liable to be quashed.

1. On the contrary, learned counsels for Respondents No. 5 & 6 submitted that impugned FIR was lodged against the petitioners, pursuant to the recommendations of the Probe Committee; that sufficient incriminating material in the shape of documentary evidence is available against the petitioners; that the allegations mentioned in the impugned FIR were neither investigated nor were the same subject matter of the investigation conducted by the NAB, as such there is no bar for the ACE to investigate into the allegations; that the cancellation report has already been submitted in the Trial Court and fixed for hearing, as such the petitioners may be advised to follow said proceedings. In the end, a prayer has been made for dismissal of instant writ petition.

2. Learned Assistant Advocate General, while conceding the fact that the petitioners have been given clean chit by the ACE in two consecutive investigations has submitted that since the cancellation report is pending before the Trial Court, the right course for the petitioners was to approach the said Court for early decision of the cancellation report and then if aggrieved avail alternate remedy of filing application before the said Court for their pre-mature acquittal.

3. I have heard the arguments advanced by the learned counsel for the petitioners, learned Assistant Advocate General assisted by learned counsel for Respondents No. 5 & 6 and gone through the record.

4. By way of this petition the petitioners have invoked extraordinary Constitutional jurisdiction of this Court for quashing of aforementioned impugned FIR. Ordinarily, time and again this Court has shown reluctance in interfering in the ongoing investigating process on the well cherished principle that the functions of Investigating Agency and judiciary are complementary and not overlapping and the combination of individual liberty with due observance of law and order can only be achieved if both the organs are allowed to function independently. However, this principle in any way cannot be construed an absolute bar on the power of this Court in quashing of FIR in cases where the Court is satisfied that investigation is launched with mala fide intention and without jurisdiction. In case reported as “Shahnaz Begum vs. Hon’ble Judge of the High Court of Sindh and Balochistan” (PLD 1971 SC 677), wherein it has been laid down as under:

“If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the Investigating Agencies to be corrected by proper proceedings either under Article 98 of the Constitution of 1962 or under the provisions of Section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under Section 561-A of the Criminal Procedure Code.”

Similarly, in case reported as “Anwar Ahmad Khan vs. The State (1996 SCMR 24)”, it has been laid down as under:

“It is well settled principle that where investigation is malfide or without jurisdiction, the High Court in exercise of its Constitutional jurisdiction under Article 199 is competent to correct such proceedings and pass necessary order to ensure justice and fair play. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims”.

In case reported as Raja Rustam Ali Khan vs. Muhammad Hanif (1997 SCMR 2008), it has been observed as under:

“It would, therefore, be seen that if an investigation is launched mala fide by the Investigating Agencies, the same is open to correction by invoking the constitutional jurisdiction of the High Court under Article 199 of the Constitution.”

In case reported as “Muhammad Irshad Khan vs. Chairman, National Accountability Bureau and 2 others (2007 PCr.LJ) 1957 the learned Division Bench of Sindh High Court, observed as under:

“Thus the consensus of the Honourable Supreme Court of Pakistan from the year 1971 and onward is that High Court has jurisdiction under Article 199 of the Constitution and competent to correct such proceedings and pass necessary orders to ensure justice and fairplay. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims, therefore, if the investigation is launched mala fidely or beyond the jurisdiction of investigating agency, then the same can be corrected and appropriate orders can be passed.”

The question what is “mala fide” has been answered by the Apex Court in case reported as “The Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan (PLD 1974 SC 151) in the following way:

“Mala fides” literally means “in bad faith”. Action taken in bad faith is usually taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above.”

Recently, in case reported as “F.I.A. through Director General, FIA and others vs. Syed Hamid Ali Shah and others (PLD 2023 SC 265)”, the Apex Court has observed as under:

“Article 199 (1)(a)(ii) of the Constitution empowers the High Courts to judicially review the acts done or proceedings taken by the persons performing functions in connection with the affairs of the Federation, a Province or a local authority and if find such acts or proceedings to have been done or taken without lawful authority, to declare them to be so and of no legal effect. The registration of an FIR and the doing of an investigation are the acts of officials of the police department (a provincial law enforcement agency) who perform functions in connection with the affairs of a Province and are thus amenable to the jurisdiction of the High Court under Article 199 (1)(a)(ii) of the Constitution. The High Courts can declare such acts of the police officers, to have been made without lawful authority and of no legal effect if they are found to be so and can also make appropriate incidental or consequential order to effectuate its decision, such as quashing the FIR and investigation proceedings.”

1. On the touchstone of above criteria, I have to determine the fate of instant case. From the contents of the impugned FIR, the allegations mentioned therein can be bifurcated in three parts. Firstly, Petitioner No. 1 (hereinafter shall be called as VC) made irregular appointments without advertisement in the press. Secondly, VC received honorarium of Rs. 9.12 million without the approval of the Chancellor. Thirdly, VC draw double salary at a time as VC and as Project Director, USP, CAS, AFS.

2. It is very shocking to note that there was no allegation against Petitioner No. 2, former Registrar of the University, who undisputedly neither has any role in appointments of the employees in the University nor there was any allegation against him qua financial embezzlement or misuse of authority but despite this fact he was booked in this case. Apparently, at the time of lodging of impugned FIR, arms of the ACE were twisted by some unknown power, who without taking note of above aspect of the matter booked Petitioner No. 2 in the instant case.

3. Now coming to the case of VC. First of all, I would like to discuss the allegation against him qua making of irregular appointments without advertisement in the newspapers. It is an admitted fact that the University is an autonomous body and its affairs are governed under the University of Agriculture, Faisalabad Act, 1973. Section 15(4) of the Act deals with the powers of Vice Chancellor. Its clauses (i),(ii) and (viii) relevant for resolving the dispute reads as under:

i. to create and fill temporary posts for a period not exceeding six months;

ii. to sanction all expenditure provided for in the approved budget and to re-appropriate funds within the same major head of expenditure.

iii. to appoint employees in National Pay Scales 1 to 16.

Similarly, by way of Section 15(3) of the Act ibid certain emergency powers were also conferred upon the Vice Chancellor which provides as under:

15(3) “Subject to such conditions as may be prescribed, the Vice Chancellor may, in an emergency, take an action which is not otherwise in the competence of the Vice Chancellor but is in the competence of any other Authority”.

15(3a) The Vice Chancellor shall, within seven days of taking an action under sub-section (3), submit a report of the action taken to the Pro-Chancellor and to the members of the Syndicate; and the Syndicate shall, within forty-five days of such an action of the Vice Chancellor, pass such orders as the Syndicate deems appropriate”.

It is thus manifestly clear that under the University Act the Vice Chancellor is not only empowered to create and fill temporary posts not beyond the period of six months, sanction all expenditures but also appoint employee in National Pay Scale 1 to 16. Similarly, in emergency the law has empowered him to take action which is even not in his competence. During two consecutive investigations, one conducted by the JIT constituted by the order of learned Special Judge, Anti-Corruption, Faisalabad, it came on surface that out of the list of 608 alleged irregular appointments, there was double entry of nine employees, whereas, out of the rest 599 employees 126 employees were appointed by the former Vice Chancellors. It further came on surface that though certain appointments were made by the VC on temporary/adhoc basis, while exercising his powers conferred under the Act but he did not made even a single appointment on regular basis without the advertisement in the press or deviating the proper procedure during his tenures.

A lot of emphasis was laid on the point that though the VC is empowered to make adhoc appointments but only for a period of six months but he extended the period of various employees beyond the period of six months. During investigation, it came on surface that it was long standing policy of the University approved by the Syndicate that the Adhoc arrangements are renewable after six months for another six months. However, Investigating Teams could not find even a single instance where the VC had made regular appointment without the approval of the Syndicate, as such there left no room to assume that the VC while making any appointments has derogated any law or misused his authority. It is a very unfortunate situation. Impugned FIR was lodged pursuant to the findings of Probe Committee of the University, who was constituted by the then Vice Chancellor, whose eligibility to hold the post was challenged by the petitioner before this Court and said committee within eleven days of its constitution held the VC guilty without even affording him a single opportunity to explain his position. Had it been done so the material presented by the VC to the Investigating Officer/ JIT showing that all what has been done in the process of appointments of the employees was within the parameters of law, then there might be no reason for involving the VC in the instant criminal case on such a fake charge. The conduct of the probe committee headed by Respondent No. 6 lacks transparency and it seems that it played in the hand of incumbent Vice Chancellor/ Respondent No. 5 and in order to please him recorded the findings which were contrary to the record. It is also important to note that neither any employee came on surface complaining that he obtained the job after giving money to the VC nor any contesting candidate lodged any complaint that his selection was not made despite falling on merits. In the absence of above, I am unable to understand how the offence under Section 409, PPC and Section 5(2) of PCA is attracted in the instant case. In case of FIA through D.G. FIA supra the Apex Court has observed as under:

“The argument of the learned counsel for the petitioner is totally misconceived, that the authority conferred upon the accused officers, who granted the illegal upgradations, was a trust and by misusing that authority, they have committed the offence of criminal breach of trust punishable under Section 409, P.P.C. and the offence of criminal misconduct punishable under Section 5(2), P.C.A. No doubt, the powers of the public servants are like trust conferred upon them and they should exercise them fairly, honestly and in good faith as a trustee; but the entrustment of the power to upgrade his subordinate officials is not equivalent to the entrustment of property as mentioned in Section 405, P.P.C. and its misuse, or use in violation of the relevant rules and regulations, does not constitute the cognizable offences punishable under Section 409, P.P.C. and Section 5(2), P.C.A.”

From the above discussion, it is manifestly clear that the VC has not committed any criminal act for making appointments and apparently for this reason in two successive investigations, he was given clean chit.

1. Next allegation set out in the impugned FIR is that he received honorarium of Rs. 9.12 million without the approval of the Chancellor. The case of the prosecution was that according to the terms and conditions of the appointment of VC only the Chancellor is vested with an authority to grant any perks and privilege to him, but he on its own draw the honorarium. I think the prosecution has intermingled term ‘perks and privileges’ with the ‘Honorarium’ which has entirely and distinct feature. The term ‘Honorarium’ has been explained by the Apex Court in case reported as “Mirza Muhammad Tufail vs. District Returning Officer and others (PLD 2007 Supreme Court 16)” in the following manner:

“The honorarium has been defined in Corpus Juris Secundem Vol. 44 at page 325 as under:--

In common understanding, the word means a voluntary reward for that for which no remuneration could be collected by law, hence a voluntary payment for a service rendered, an expression of gratitude for which an action cannot be maintained, a voluntary donation, in consideration of services which admit of no compensation in money. While it has been said to denote a compensatory payment, it may, be context, be construed as a gift. (emphasis supplied)”

On the contrary, term ‘privilege’ has been explained by the Apex Court in judgment reported as “Karamat Hussain and others vs. Muhammad Zaman and others PLD 1987 Supreme Court 139” in the following manner:

“A privilege is some particular benefit or advantage conferred on a person or a class of persons which other citizens do not enjoy. (emphasis supplied)”

In the light of the above definitions, we may conclude that perks and privileges are peculiar benefits for which the Vice Chancellor was entitled while holding such post, whereas, honorarium is not given to a Vice Chancellor by virtue of his post, but the same was a voluntary payment being made in recognition of meritorious services of an employee. Even otherwise, admittedly, the budget of the University was sanctioned by the Syndicate and Senate which was headed by the Chancellor and undisputedly the budget for the period in which the VC drew honorarium was duly sanctioned by the Syndicate and Senate, as such it cannot be said that the honorarium was drawn by him without the sanction of the Chancellor. Moreover, during investigation it came on surface that it was a long standing practice in the University that the Vice Chancellors along with others drew honorarium without the sanction of the Chancellor. JIT pointed out names of former Vice Chancellors Prof. Dr. Riaz Hussain Qureshi, Prof. Dr. Bashir Ahmad, Prof. Dr. Muhammad Iqbal Zafar, Prof. Dr. Zafar Iqbal and Prof. Dr. Muhammad Ashraf, who in their respective tenures received honorarium, therefore, singling out the petitioner in this charge is not only discriminatory but also shows mala fide and ulterior motive on the part of the authority, who launched probe in this regard.

1. Now coming to third allegation that the VC drew double salary at a time as Vice Chancellor and Project Director of “U.S Pakistan, Center for Advanced Studies in Agriculture and Food Security, University of Agriculture, Faisalabad” (CAS). During investigation, it came on surface that the aforesaid project was started in the year 2014 and in the agreement with the Government it was written that the VC shall took over the charge of said project as Chief of Party (COS) on completion of his tenure as Vice Chancellor on 22.1.2017 with an overlapping period of one month to transition which started in December 2016. The tenure of the VC was going to expire on 22.1.2017; therefore, he took over the charge as COS in December 2016. After expiry of his tenure as Vice Chancellor, the Governor/ Chancellor assigned him look after charge of the Vice Chancellor of the University. There is nothing on the record to suggest that duties of look after charge were assigned to the VC on his desire or request. In such an eventuality, VC was left with no option except to continue his services as COS and the Vice Chancellor simultaneously in compliance of the orders of the Governor/ Chancellor. During investigation, Treasurer of the University appeared before the Investigating Teams and in categorical terms denied that the VC ever received salaries of two posts at a time. After consulting with the record, Investigating Teams opined that the VC only drew single salary for the post of Vice Chancellor and till the holding of temporary charge of said post, he did not secure even a single penny as COS. Record further evinces that the VC relinquished the charge of the office of Vice Chancellor on 08-08-2017. The said project was supposed to continue till December 2019 but due to change of hierarchy in USA the same was terminated within seven months of taking over its charge by the VC and due to that very reason USAID gave severance pay to all the employees of project including the VC, who at the time of receipt of said salary was not even employee of the University. During investigation, it also came on surface that all the financial transactions were directly made by the US Embassy and not even a single penny was paid to the VC or other employees of USAID Project through the public account. There was not even a single iota of material from which it could be inferred that while holding the office of VC, he received any salary as Incharge of CAS, therefore, in two consecutive investigation, the Investigating Agency recommended droppage of the proceedings against the VC.

2. Moreso, despite being on merit the then Chief Minister denied appointment of the petitioner as Vice Chancellor, inter-alia, on the ground of lack of financial and administrative control during his previous tenures, which was challenged by the petitioner before this Court and finally the matter went to the Apex Court, who vide judgment dated 07.12.2020 passed in Civil Appeals No. 326-L & 327-L of 2020 brush aside such findings in the following manner:

“The record further reveals that the Secretary Agriculture Department, Government of the Punjab was part of the Search Committee. The said Secretary is the Principal Accounting Officer of the Government of Punjab. He was a member of the Search Committee that placed the Appellant at Serial No. 1 of the merit list. It is worth mentioning that the same Secretary has given the Appellant 10 out of 10 marks in the category of “ Administrative and Financial Management”. Further the Appellant was given 45 marks in the Interview. As against this, the Respondent was given only 31 marks in the Interview. The same Secretary was part of the interview as well. Therefore, when the representative of the Government who had first hand knowledge of all material and relevant facts also gave highest marks to the Appellant and low marks to the Respondent, we do not see why the Appellant was not appointed and that too without cogent and convincing reasons.”

The purpose of highlighting the above para is that if the VC has committed any financial embezzlement or misuse of authority in his previous tenures, the representative of the Government i.e. Secretary Agriculture, who had the first hand knowledge, was not supposed to award him ten out of ten marks in the “Administrative and Financial Management”.

1. Besides above, it is evident from the record that regarding the same allegations the matter was thoroughly inquired by the National Accountability Bureau (NAB), who vide letter dated 28.08.2018 recommended closure of the inquiry. Now the question arises whether after closure of the inquiry by the NAB authorities, on the same allegations, ACE is vested with any power to re-open/ re-investigate the same. Before proceeding further it is appropriate to go through the provisions of Section 18(d) of NAO, 1999 which reads as under:

“The responsibility of inquiry into and investigation of an offence alleged to have been committed under the Ordinance shall rest on the NAB to the exclusion of any other agency or authority, unless any such agency or authority is required to do so by the Chairman NAB or by an officer of the NAB duly authorized by him.”

Bare perusal of above section makes it abundantly clear that NAB authorities have exclusive jurisdiction to inquire into and investigate any offence which has been committed under the NAO, 1999 and once it assumes the jurisdiction, no other agency is empowered to investigate the same subject matter, unless directed by the Chairman NAB or an officer authorized by him in this regard. Learned counsel for Respondents No. 5 & 6 argued that the investigation being conducted by the ACE is regarding the offences which were not subject matter of NAB Ordinance. I am not convinced with this argument. Impugned FIR was registered against the petitioner, under Sections 409, 420,468 & 471, PPC read with Section 5(2) PCA, 1947. Sections 9(ix) & 9(xii) covered the offence under Sections 420 & 409, PPC respectively. Similarly, the Schedule attached with the NAO, 1999 covers the offences committed under Sections 468 & 471 PPC, whereas, Section 5(2) of PCA, 1947 is akin to the offences under Section 9(a) of the NAO, 1999, therefore, in any eventuality it cannot be said that the ACE had conducted investigation other than the offences upon which the NAB has already taken cognizance. In the above circumstances, I am of the considered view that launching of investigation by the ACE regarding the same subject matter, which has already been adjudicated upon and closed by the NAB, is in clear contravention of Section 18(d) of the Ordinance ibid and cannot be approved by this Court.

15. Learned counsel for Respondents No. 5 & 6 time and again argued that cancellation report of the impugned FIR is pending adjudication before the Trial Court and this Court vide order dated 11.12.2023 passed in W.P.No. 42718/23 filed by the complainant of the FIR, directed the Trial Court to decide the same after considering the findings of Special Judge, Anti-Corruption in para No. 21 of the order dated 08.05.2023, as such cancellation report ought to have been decided by the Trial Court. I am not convinced with this submission. Cancellation report and petition for quashing of FIR are entirely two different subjects falling under the jurisdiction of two different Courts, as such merely due to the pendency of Cancellation report before the Trial Court, proceedings in the quashment petition cannot be halted.

16. Learned counsel further while placing on record copy of order of this Court dated 12.01.2021 passed in Writ Petition No. 47510/20 laid much emphasis that regarding the self same relief earlier the petitioner’s petition has been dismissed. I have anxiously gone through the said order and observed that subject matter in the said petition was not quashing of impugned FIR rather proceedings initiated against the VC by various departments. Moreso, said application was not dismissed on merits rather this Court disposed of the same while observing that impugned proceedings have been initiated against the VC during the pendency of his CP before the Apex Court and he was advised to approach the said Court for redressal of his grievance. Civil Appeal filed by the petitioner before the Apex Court has already been allowed in his favour and presently no proceedings are pending in the said Court, as such the referred order of this Court stands nowhere in deciding of instant petition.

1. So far as the argument of the learned Law Officer that cancellation report has already been submitted in the trial Court, therefore, the petitioners must approach to the said Court, suffice it to say that it is well settled by now that once the Court arrived at a conclusion that the impugned FIR was lodged against an accused for some ulterior motive and continuance of proceedings before the trial forum would be a futile exercise, wastage of precious public time and there is no likelihood of conviction of the petitioner in any eventuality, it can quash the same notwithstanding the fact that even the challan has been submitted in the Court. Reliance is placed on cases reported as “The State vs. Asif Ali Zardari and another (1994 SCMR 798), Miraj Khan vs. Gul Ahmed and 3 others (2000 SCMR 122), Maqbool Rehman vs. The State and others (2002 SCMR 1076) and Muhammad Aslam (Amir Aslam) and others vs. District Police Officer, Rawalpindi and others (2009 SCMR 141). In the latter case, where even the formal charge has been framed, the Hon’ble Apex Court has observed as under:

“In the facts and circumstances of the case, we feel that continuation of the proceedings would be a futile exercise and wastage of time. In view of the material on file no offence has been made out and the charge on the face of it appears to be groundless and there is no possibility of conviction. In law, nothing warrants for the argument that since charge has been framed by the trial Court, the proceedings could not be buried by way of quashment. There is no invariable rule of law and it was dependent on the facts of each case whether to allow the proceedings to continue or to nip in the bud.”

1. From the above discussion, it has been established on record that the entire proceedings against the petitioners were orchestrated by Respondent No. 5 with mala fide intention and ulterior motive, whose eligibility to hold the office of Vice Chancellor being lower in merits, was challenged by the petitioner in this Court. Apparently, an attempt was made to coerce the VC to lay his hand off for contesting his legitimate right for the post of Vice Chancellor being on merit and unfortunately Respondent No. 6, being the convener of the Probe Committee extended full help to Respondent No. 5 for achieving his ulterior goals, while recording findings against the petitioners contrary to the record. Due to their mala fide act not only the petitioners were humiliated before the NAB, who closed the inquiry, but here in the ACE they faced the inquiries/investigations on the so called charges of their rivals continuously. The petitioners have been given clean chit by the ACE in two consecutive investigations and cancellation report has been prepared which was duly forwarded by the Prosecution Department, which means that there was no substance in the allegations against the petitioners but unfortunately, the Trial Court is sitting over it for the last more than eleven months. The petitioners cannot be made shuttle cock to run from one Court to the other merely on the ground of pendency of cancellation report. Referring them again to the Trial Court to pursue cancellation report would amount to continuation of the harassment caused by Respondents No. 5 & 6 by initiating the criminal proceedings against them.

2. In view of above, instant writ petition is allowed as a consequence thereof impugned FIR No. 41/2020, in respect of offence under Sections 409, 468, 471 & 420, PPC read with Section 5(2) of Prevention of Corruption Act, 1947 registered at P.S. ACE, Region Faisalabad is quashed.

(Y.A.) Petition allowed

PLJ 2024 Lahore 719 [Bahawalpur Bench, Bahawalpur]

Present: Asim Hafeez, J.

MILLAT LAW COLLEGE and others--Petitioners

versus

ISLAMIA UNIVERSITY OF BAHAWALPUR, etc.--Respondents

W.P. No. 4160 of 2024, decided on 15.7.2024.

Islamia University of Bahawalpur Act, 1975 (IV of 1975)--

----Ss. 15(1), 25(cc) & 29--Constitution of Pakistan, 1973, Art. 199--Constitution of fact, finding committee--LL.B. 3 year program--Powers of VC--Delegation power--Return of record of LL.B. 3 year program--Administrative domain--ICA--Allowed--Challenge to--An act of formation of Fact-Finding Committee, in wake of discrepancies in registration returns record of LLB 03-year program, was substantially a matter coming within domain of administrative functions of Vice Chancellor, who was assigned with duty of ensuring compliance with laws/statutes/regulations--No case for assumption and exercise of jurisdiction was made out, which assumption, in view of narrative, tantamount to interference in internal affairs of University and in fact constitute an act of usurpation of power of another decision-making authority, when no occasion arises for reviewing decision of decision-making authority--Order impugned manifests no illegality or any defect apparent thereupon requiring interference--Petition dismissed.

[P. 726] A, B & C

2024 SCMR 527 and 2019 SCMR 389 ref.

Mr. Bilal Ahmad Qazi, Advocate for Petitioners.

Dr. Malik Muhammad Hafeez, Advocate/Legal Advisor for Respondents – Islamia University of Bahawalpur with Murtaza Nawaz, Law Officer.

Date of hearing: 15.7.2024.

Order

This and connected constitutional petition bearing W.P. No. 4161/2024 (‘companion case’) raise and seek determination of common question of law, hence, decided through instant order.

1. Pertinent chronological perspective is that Fact-Finding committee was constituted, by the Vice Chancellor, through Notification No. 152/AF dated 13.09.2022 to probe into matter of discrepancies in the registration returns record of LLB 03-year program.

ISSUE-AT-HAND

Question, fundamentally, calling for determination is ‘Whether the Vice Chancellor of the Islamia University of Bahawalpur (‘the University’) possess the authority/power to constitute a Fact-Finding Committee, in the context of circumstances of instant case, or Whether such authority/power exclusively vests with the Authority(ies) indicated in Section 29 of the Islamia University of Bahawalpur Act, 1975 (Act, 1975).

1. For the purposes of defining the scope of adjudication, it is pertinent to point out that these constitutional petitions traced their origin from the order dated 13.12.2023, whereby learned Division Bench of this Court, while allowing the appeal, bearing ICA No. 137/2023, preferred against the decision of learned Single Judge of 05.06.2023, remitted for determination the question of jurisdiction of the Vice Chancellor, to the Syndicate of the University. Paragraph 9 of the order, containing relevant direction, is hereunder reproduced for adequate comprehension:

“In view of the above, instant as well as connected appeal and writ petition are allowed in the manner that we are inclined to transmit copies of writ petitions, along with annexures to respondent-Syndicate with direction to treat the same as objections on behalf of appellants/petitioners against constitution of the Fact Finding Committee and decide the same in accordance with law while keeping in view the relevant provisions of the Act of 1975, without being influenced by the impugned findings, after hearing the appellants/petitioners and all concerned, preferably within a period of thirty days from the date of receipt of certified copy of this order. In order to facilitate the process, appellants/petitioners shall appear before respondent-Syndicate on 21.12.2023 at 10:30 a.m. Learned Law Officer shall ensure compliance of this order. Compliance report shall be furnished to this Court through Deputy Registrar (Judicial). The impugned judgment stands modified accordingly.”

[Emphasis supplied]

1. Subsequent to passing of aforesaid order, matter was placed before the Syndicate of the University, in its 85th meeting, held on 27.02.2024, as Agenda Item No. 12 and was decided accordingly -extract of the minutes of the meeting regarding Item No. 12 was intimated through order dated 01.04.2024. Evidently, the Syndicate acknowledged, affirmed and validated the exercise of jurisdiction by the Vice Chancellor, that is an act of constituting Fact-Finding Committee – scope of recommendations by the Fact-finding committee are not subject matter of present challenge.

2. Determination of the question of jurisdiction of the Vice Chancellor, by the Syndicate in 85th meeting, is subject matter of present challenge.

3. Report and para-wise comments were solicited and submitted by the University.

4. Learned counsel for first and second petitioners contends that the Syndicate had failed to appreciate, construe and follow the mandate of the directions/observations recorded in paragraph 9 (supra). Submits that Syndicate, single mindedly, considered the scope, effect and applicability of Section 15(1) of Act, 1975, while conspicuously ignoring the relevance, scope and effect of the powers otherwise extended unto various Authorities, for purposes of composition of various committee(s), by virtue of Section 29 of the Act 1975, which details of Authorities conspicuously exclude the Vice Chancellor – Vice Chancellor is not classified as Authority under Section 21 of the Act, 1975. Learned counsel explains that Section 15(1) of Act, 1975 has no application in the context of the controversy, which provision of law cannot be relied upon to confer or extend purported power to the Vice Chancellor to constitute the Fact-Finding committee, which is the domain of the Authorities identified in Section 29, ibid.– [Syndicate for the purposes of present controversy].

5. Conversely, learned counsel for the University and others submits that exercise of power by the Vice Chancellor, to constitute the Fact-Finding committee, strictly comes within the scope of Section 15(1) of the Act, 1975, which empowers the Vice Chancellor, as principal executive officer of the University and responsible for administrative control over the affairs and officers of the University, to act accordingly. Adds that Section 29 of the Act, 1975, for the purposes of present controversy, is not attracted. Further submits that powers extended to the Vice Chancellor cannot be undermined by superimposing the effect of Section 29 of the Act, 1975, which provision has its peculiar contextual relevance within the context of the powers and duties, statutorily assigned to each of the Authority defined therein. Learned counsel also objects to assumption of jurisdiction in the context of observations recorded in the case of Pakistan Bar Council through Chairman and others vs. Federal Government through Establishment Division and others (2019 SCMR 389).

9. Heard. Learned counsel concur that scope and jurisprudential potentiality of Section 29 of the Act, 1975 is an unchartered territory and uncertainty encompassing it requires adjudication.

10. Despite plea of overshadowing uncertainty there appears a silver lining, which is an acknowledgment and recognition extended through order of 13.12.2023, whereby learned Division Bench affirmed the authority of the Syndicate to determine the scope and effect of jurisdiction exercised by the Vice Chancellor, while constituting the Fact-Finding committee. It is apparent from the reasoning of the order of 13.12.2023 that exercise of authority by the Vice Chancellor was analyzed and gauged in the context of power of delegation, extended to the Syndicate under Section 25(cc) of Act, 1975. It is pertinent to mention that Section 25(cc) of the Act, 1975 may not be relevant for the purposes of present controversy, since it never was the case of the University that power so exercised by the Vice Chancellor was a delegated authority of the Syndicate or borrowed one, but independently vesting in the Vice Chancellor under Section 15 of the Act, 1975.

In these circumstances, relevance and exclusivity of Section 15(1) of the Act, 1975 cannot be undermined, which in fact requires sharper focus while deciding the controversy. It is expedient to reproduce texts of Sections 15 and 29 of the Act, 1975 for reference, which read as:

1. Powers and duties of the Vice-Chancellor.--(1) The Vice-Chancellor shall be the principal executive and academic officer of the University and shall ensure that the provisions of this Act, the Statutes, the Regulations and the Rules are faithfully observed in order to promote teaching, research, publication, administration and the general efficiency and good order of the University. He shall have all powers necessary for this purpose including administrative control over all officers, teachers and other employees of the University.

(2) The Vice-Chancellor shall preside at the meetings of the Authorities of which he is the Chairman and be entitled to attend and preside at any meeting of any other Authority or body of the University.

(3) Subject to such conditions as may be prescribed, the Vice Chancellor may, in an emergency, take an action which is not otherwise in the competence of the Vice Chancellor but is in the competence of any other Authority.

(3a) The Vice Chancellor shall, within seven days of taking an action under sub-section (3), submit a report of the action taken to the Pro-Chancellor and to the members of the Syndicate; and, the Syndicate shall, within forty five days of such an action of the Vice-Chancellor, pass such orders as the Syndicate deems appropriate.

(4) The Vice-Chancellor shall also have the powers--

(i) to sanction all expenditure provided for in the approved budget, and to re-appropriate funds within the same major head of expenditure;

(ii) to sanction by re-appropriation an amount not exceeding Rs. 5,000 for an unforeseen item not provided for in the budget and report it to the Syndicate at the next meeting;

(iii) to appoint paper setters and examiners for all examinations of the University after receiving panels of names from the relevant Authorities;

(iv) to make such arrangements for the scrutiny of papers, marks and results as he may consider necessary;

(v) to direct teachers, officers and other employees of the University to take up such assignments in connection with teaching, research, examinations, administration and such other activities in the University as he may consider necessary for the purpose of the University;

(vi) to delegate, subject to such conditions, if any as may be prescribed, any of his powers under this Act to an officer or officers of the University;

(vii) to appoint employees below the initial monthly pay of Rs. 500; and

(viii) to exercise and perform such other powers and functions as may be prescribed.

1. Appointment of committees by certain Authorities.--The Senate, the Syndicate, the Academic Council and other Authorities may, from time to time, appoint such standing, special or advisory committees as they may deem fit and may nominate such persons on these committees as are not members of the Authorities appointing the committees.

[Emphasis supplied]

1. No objection regarding co-existence of Sections 15 and 29 of the Act, 1975 is raised, nor superiority of one provision over the other is pleaded. Conspicuously, powers and duties of the Vice Chancellor are defined under Section 15 of the Act, 1975. Likewise, the composition, powers and duties of the Syndicate are specified in Section 25 of the Act, 1975. Pertinent to mention that powers and duties of each of the Authority, identified in Section 29 of the Act, 1975, are otherwise separately listed in the Act, 1975. Syndicate is the executive body of the University, subjected to the provisions of the Act of 1975, which exercises general supervision over the affairs of the University. No power or corresponding duty is shown to vest in the Syndicate in the context of raison ďetre of the Fact-Finding committee. Whether Syndicate, if it deems fit, could proceed to direct formation/appointment of any standing, special or advisory committee(s) with respect to any power or corresponding duty, statutorily assigned to any other Authority – for instance if any specific power or duty is assigned to the Academic Council; whether committee could be constituted by Syndicate in the context of the power of the Academic Council or for that matter the Senate. Likewise, powers and duties assigned to each Authority and the Officers of the University – [defined under Section 10 of the Act, 1975] are Authority or officer specific, in the context of Act of 1975. Hence, intrusion by one Authority in the domain of powers conferred and duties assigned to other Authority or in the powers and duties prescribed for the Officers of the University, or by way of passing of any order by the Authority, in excess of the powers and duties defined in the Act, 1975, is impermissible, unjustified, devoid of authority and in fact a non-starter. Therefore, the assignment/power extended upon each of the Authority, in terms of Section 29 of the Act, 1975, to constitute committee(s) – [standing, special or advisory] – has to be read and construed in the company of the powers extended and duties assigned to each of the Authority and the Officers of the University. And building on this line of reasoning, there appears no cavil that exclusivity to constitute committees by each of the Authority is confined to the extent of the powers and duties prescribed. And any incidence of intrusion/encroachment, by constituting committee(s) with reference to any matter, otherwise falling outside the domain or authority of any particular Authority constitutes statutory wrong, having consequence of disturbing the structural balance and administrative framework knitted through the Act, 1975. By same analogy, the Syndicate lacks authority, in terms of Section 29 of the Act, 1975, to constitute committee(s) with reference to the matter, otherwise coming within the jurisdictional domain of the Vice Chancellor – scenario would be different if the Syndicate, while hearing any objection or representation against some action or decision of the Vice Chancellor, provided such course is provided in law, considers appropriate to constitute any committee, be it under Section 29 of the Act, 1975 or otherwise provided by virtue of Statutes, Regulations or Rules. In this case learned Division Bench remitted matter to the Syndicate for determining the question of jurisdiction of Vice Chancellor. Syndicate has neither claimed nor indicated any intent to exercise power under Section 29 of the Act, 1975. Additionally, no exclusivity is otherwise claimable by any of the Authority under Section 29 of the Act, 1975, but to the extent of the powers extended and duties assigned under the Act, 1975, Statutes, Regulations or Rules, as the case may be.

12. Argument by the counsel for the petitioner is otherwise flawed on its face. Textual reading of Section 29 of the Act, 1975, at the first blush, extends an impression that powers extended thereunder, exercisable by each of the Authority(ies) are discretionary and exercisable ‘as they may deem fit’. Now the context is that learned Division Bench of this Court, vide order of 13.12.2023, remitted matter to the Syndicate for determining validity of the decision of Vice Chancellor, and the Syndicate – decision-making authority had acknowledged and recognized the authority/jurisdiction of the Vice Chancellor under Section 15(1) of the Act, 1975 vis-à-vis an act of constituting the Fact-Finding committee. It is absurd to attribute ignorance to the Syndicate qua its powers and duties, including the authority extended under Section 29 of the Act, 1975. Acquiescence on the part of the Syndicate adequately answers and explains a lot. Whether such determination does not demand deference to the decision by the decision-making authority and showing restraint in exercise of judicial review jurisdiction. In fact, the jurisdiction of the Syndicate, to constitute a committee, is advocated tenaciously, however said Authority, when asked to adjudge the legality of act of the Vice Chancellor, had subscribed to it. This endorsement per se gravitates lawfulness qua the exercise of powers by Vice Chancellor by constituting the Fact-Finding committee, in the factual context of the case.

13. While exercising judicial review jurisdiction, substantially the elements of correctness and reasonableness need to be analyzed. Determination by the Syndicate meets the standard of correctness and standard of reasonableness, qua the order – absence of fairness or lack of provisioning of adequate opportunity are not pleaded as ground. And last but not the least, an act of formation of the Fact-Finding Committee, in wake of discrepancies in the registration returns record of LLB 03-year program, is substantially a matter coming within the domain of administrative functions of the Vice Chancellor, who is assigned with the duty of ensuring compliance with laws/statutes/ regulations. In wake of the affirmation by the Syndicate, that exercise of power/authority by Vice Chancellor is lawful and permissible, no case for assumption and exercise of jurisdiction is made out, which assumption, in view of the narrative, tantamount to interference in the internal affairs of the University and in fact constitute an act of usurpation of power of another decision-making authority, when no occasion arises for reviewing the decision of the decision-making authority. This kind of interference, in the circumstances of present case, in the guise of judicial review jurisdiction, is deprecated in terms of the ratio of decision in the case of Vice-Chancellor Agriculture University Peshawar and others v. Muhammad Shafiq (2024 SCMR 527). It is therefore, declared that Section 29 of Act, 1975 has no application to this case. Decision of the Syndicate is upheld on merits.

Objection qua absence of jurisdiction to hear this petition on merits is misconceived, wherein, primarily, questions raised is whether direction(s) by learned Division Bench, while allowing ICA No. 137/2023, were duly complied and whether any provision of Act, 1975 was misconstrued and misinterpreted to the prejudice of the petitioners. Scope of fact-finding committee and recommendations are not subject matter of adjudication, hence, observations recorded in the case of Pakistan Bar Council through Chairman and others v. Federal Government through Establishment Division and others (2019 SCMR 389) are not attracted. In view of above, order impugned manifests no illegality or any defect apparent thereupon requiring interference.

14. This and accompanied petitions are dismissed in wake of the narrative above.

(Y.A.) Petition dismissed

PLJ 2024 Lahore 727 [Multan Bench, Multan]

Present: Anwaar Hussain, J.

SULTAN MEHMOOD RANA--Petitioner

versus

NAEEM AHMAD, etc.--Respondents

C.R. No. 931-D of 2018, decided on 19.2.2024.

Arbitration Act, 1940 (X of 1940)--

----Ss. 14(1), 17 & 42--Limitation Act, (IX of 1908), Art. 178--Appointment of arbitrator with consent--Award was rendered--Application for making award rule of Court--Accepted--Limitation--Appeal--Allowed--Award was made in presence of petitioner--Respondent was filed application for cancellation of award--Consolidated judgment--Application was dismissed--Award was made in presence of petitioner, he had notice of making of award on said date as cheque given by respondent, was handed over to petitioner, which was admittedly presented and was dishonoured, petitioner had notice for making of award on said date--When respondent filed an application for cancellation of award, he also categorically acknowledged that Arbitrators had not issued any formal notice, in writing, to parties regarding making of award--Once an award was before Court, either through Arbitrator(s) or any party (for example respondent), then in terms of Section 17 of Act 1940, it was duty of Court to examine same and see whether it suffers from any patent illegality or if there is any cause to remit award to Arbitrator(s) irrespective of fact that opposite party (the petitioner in present case) has not approached Court within time--Respondent filed an application seeking cancellation of award means that it was admitted that award had been made and that proceedings under Section 17 of Act 1940 would commence--The Trial Court discharged that duty and passed decree on basis of award in favour of petitioner whereas Appellate Court had upended said findings without touching merits of case.

[Pp. 729, 731, 732, 733 & 734] A, E, F, G & H

1996 CLC 268, 1992 SCMR 65 & 2014 SCMR 1268 ref.

Limitation Act, 1908 (IX of 1908)--

----Art. 178--Limitation--The limitation starts from “the date of service of notice of making of award”. [P. 730] B

Arbitration Act, 1940 (X of 1940)--

----S. 14(1)--Notice-- Arbitrators after making and signing of award have to give a notice, in writing, of making and signing of award to parties. [P. 730] C

Arbitration Act, 1940 (X of 1940)--

----S. 42--Arbitration agreement--Any notice that is required to be served by an Arbitrator shall be served in manner provided in arbitration agreement or if there is no such provision then by delivering it to person on whom it is to be served or by sending it by post at usual address of such person. [P. 730] D

Syed Kabeer Ahmad Mehmood, Advocate for Petitioner.

Mr. Abdul Salam Alvi, Advocate for Respondent No. 1.

Date of hearing: 19.2.2024.

Judgment

The petitioner, Sultan Mehmood Rana and Respondent No. 1, Naeem Ahmad (“the respondent”) with their mutual consent appointed Respondents No. 2 to 6 as Arbitrators/Umpire (“Arbitrators”) to decide the controversy between them. An award dated 04.06.2015 was rendered by the Arbitrators. On 27.06.2015, the respondent filed an application for cancellation/setting aside of the award, whereas, on 28.01.2016, the petitioner filed an application for making the award a Rule of the Court. Through consolidated judgment dated 09.12.2017, Civil Judge Class-II, Jahanian dismissed the application of the respondent and accepted the application of the petitioner and made the award Rule of the Court. An appeal was preferred by the respondent and vide impugned judgment and decree dated 26.02.2018, the Appellate Court below, without touching the merits of the case, held that the award cannot be made Rule of the Court as it was not filed by the petitioner within 90-days time period stipulated under Article 178 of the Limitation Act, 1908 (“the Act 1908”).

1. Learned counsel for the petitioner submits that the judgments of the Courts below are at variance. Adds that while the findings on the merits of the award has been maintained including dismissal of the application of the respondent to the extent of cancellation/setting aside of the award, it is erroneous on part of the Appellate Court below to hold that the application of the petitioner was time barred as no formal notice was issued by the Arbitrators regarding making and signing of the award in terms of Article 178 of the Act 1908. Adds that the question of limitation was not raised by the respondent and the findings of the Arbitrators cannot be set aside on the basis of technicalities.

2. Conversely, learned counsel for the respondent has supported the findings of the Appellate Court below and avers that there was no need of issuance of any formal notice to the petitioner by the Arbitrators inasmuch as the respondent and the petitioner gave security cheque(s) to the Arbitrators and when it was found by the Arbitrators that respondent is liable to pay an amount of Rs.954,018/-, to the petitioner, the security cheque issued by the respondent was filled and handed over to the petitioner, by the Arbitrators, who admittedly submitted the same in his bank, which fact indicates that no formal notice was required in terms of Article 178 of the Act 1908 and the petitioner was well aware of making and singing of the award.

3. Arguments heard. Record perused.

4. Interplay of the factual matrix of the case and the applicable law raises following questions to be answered by this Court:--