SCMR 2012 Judgments

2012 S C M R 1

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Muhammad Sair Ali and Mian Saqib Nisar, JJ

IBRAHIM KAMAL---Appellant

Versus

Mst. MALOOKA BIBI and others---Respondents

Civil Appeal No. 883 of 2002, decided on 26th September, 2011.

(On appeal from the judgment dated 10-4-2002 of the Peshawar High Court, D.I. Khan Bench, passed in Civil Revision No. 38 of 2001).

Contract Act (IX of 1872)---

----Ss. 187 & 188---Civil Procedure Code (V of 1908), S. 11---Specific Relief Act (I of 1877), S.42---Declaration of title---Attorney, appointment of---Proof---Proceedings in another case---Effect---Plaintiffs assailed transfer of suit land in favour of defendant on the plea of fraud as allegedly the attorney who made the transaction was not appointed by them---Judgment and decree passed by Trial Court in favour of plaintiffs was maintained by Lower Appellate Court and High Court---Validity---Concurrent findings of facts were recorded by all three courts below to the effect that power of attorney was neither produced in original nor it had been proved in accordance with law, though the defendant was a beneficiary and he was required to do so---On account of some findings about power of attorney in another litigation, the rule of res judicata was not attracted, particularly when such judgments and decrees had not been shown to have been adduced in evidence by defendant before Trial Court---Supreme Court declined to interfere in concurrent judgments and decrees passed by the courts below---Appeal was dismissed.

Deo Narain Singh and others v. Bibi Khatoon and others AIR 1949 Patna 401; Brij Mohan Lal Murli Dhar v. Kishore and another AIR 1959 Punjab 555; Saddaqat Ali Khan through L.Rs. and others v. Collector Land Acquisition and others PLD 2010 SC 878 and Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 590 ref.

Gulzarin Kiyani, Senior Advocate Supreme Court and Abdul Aziz Kundi, Advocate-on-Record for Appellant.

Abdul Latif Yousafzai, Advocate Supreme Court for Respondents Nos. 2 to 6.

Tanvir-ul-Islam, Advocate Supreme Court for Respondent No.6(a).

Ex parte for Respondents Nos. 7 and 8.

Date of hearing: 26th September, 2011.

2012 S C M R 6

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

Rana AAMER RAZA ASHFAQ and another---Petitioners

Versus

Dr. MINHAJ AHMAD KHAN and another---Respondents

Civil Petition No. 1017-L of 2011, decided on 7th October, 2011.

(Against the judgment dated 11-5-2011 passed by the Lahore High Court, Multan Bench in W.P. No. 8930 of 2010).

Per Tassaduq Hussain Jillani, J

(a) Interpretation of Constitution---

----Object of Constitution---Role of Judiciary---Scope---Constitution of a country is a sacrosanct document which establishes various institutions, apparatus of government, defines relationship between individuals and the State, between Federation and its Federating units/Provinces and various organizations of the State---Judiciary is under oath to preserve and defend the Constitution under the rule of law and it does so by its power of judicial review.

(b) Interpretation of statutes---

----Referential legislation---Determining factors---In construing such piece of legislation, the court has to examine and keep in mind three things; (i) the Statement of Reasons and Objects given therein; (ii) the Statement of Objects given in other laws in pari materia to the one under consideration; and (iii) mandate of Constitutional provision which stands adopted by way of reference.

(c) Constitution of Pakistan---

----Arts 48 & 105---President and Governor---Working---System of Government---Advice of Prime Minister and Chief Minister---Scope---Constitutional intent and mandate of Arts. 48 and 105 of the Constitution are one of the foundational values of the constitutional scheme---Constitution of Pakistan underpins a system of Federal Parliamentary Democracy---Governor of a Province under the Constitution enjoys an exalted position, as he is a nominee of the President and a symbol of Federation in the Province, whereas Chief Minister is Chief Executive of the Province and is elected by Provincial Assembly---Except otherwise so provided under the Constitution, President and Governor are bound by the advice tendered by Prime Minister and Chief Minister respectively and in the manner as provided in the Constitution.

(d) Maxim---

----Verba relata hoc maxime operantur per referentiam ut in eis inesse vindentur---Meaning---Words to which reference is made in an instrument have the same effect and operation as if they were inserted in clause referring to them.

(e) Interpretation of statutes---

----Referential legislation---Kinds---Amendments incorporated in statute---Duty of court---Referential legislation broadly is of two kinds i.e., either a specific provision of a certain Act is incorporated into another statue or the provision of a certain statute is incorporated by a general reference---Laws including the adopted provisions do not remain static and issues crop up when adopted provisions are amended in earlier statute---Question whether subsequent amendments in such adopted provisions either by specific incorporation or by a general reference would be ipso facto read into the latter is a subject of judicial comment.

Bajaya v. Gopikabai and another AIR 1978 SC 793; Pakistan International Airlines Corporation v. Chairman, Punjab Labour Appellate Tribunal, Lahore PLD 1979 Lah. 415; Messrs Girnar Traders v. State of Maharashtra and others Civil Appeal No. 3703 of 2003 and Civil Appeal No. 292 of 2011 ref.

(f) Baha-ud-Din Zakariya University Act (III of 1975)---

----S.11(8)---Constitution of Pakistan, Art. 105---Appointment of Vice Chancellor---Recommendation of Chancellor (Governor)---Advice of Chief Minister---Respondent was the only Ph.D. candidate who was shortlisted for appointment as Vice-Chancellor and called for interview but as an inquiry was pending against him therefore, he was not considered for the post---High Court directed the University to convene a meeting of Selection Board and conduct interview of respondent along with shortlisted candidates afresh---Governor while acting as Chancellor, instead of acting on the advice tendered by Chief Minister, interviewed panel of three candidates and sent a memo to Chief Minister in purported exercise of appointing a person as Vice-Chancellor---Validity---Summary sent by Chancellor (Governor) to appoint a person of his choice as Vice-Chancellor against advice tendered by Chief Minister could be treated as a reference for reconsideration by Chief Minister---Letter of Chief Minister holding that Chancellor's attempt to appoint a person of his choice was violative of S. 11(8) of Baha-ud-Din Zakariya University Act, 1975, read with Art. 105(1) of the Constitution, reiterating earlier advice for appointment of candidate of his choice as Vice-Chancellor, would be deemed to be the advice of Chief Minister after reconsideration and was to be given effect accordingly---More than three months had gone by the summary/advice by Chief Minister after reconsideration and timeline provided under Art. 105 of the Constitution was ten days within which Chancellor was to act on the advice---Lack of appreciation reflected in summary of Chancellor/Governor of mandate of law could neither be permitted to frustrate legislative intent nor University's disarray could be allowed to remain unchecked---Summary sent by Chief Minister after reconsideration was deemed to have been acted upon and department concerned would issue the requisite notification accordingly---As respondent was the only Ph.D. among the shortlisted candidates for the appointment and despite having been called for interview he was not considered, therefore, interference by High Court and direction for de novo exercise of selection from amongst the shortlisted candidates was not against the canons of equity and no case for interference except partial modification of the judgment of High Court was made out---Supreme Court directed that meeting of Selection Committee should be convened by new Vice-Chancellor forthwith---Appeal was allowed partly.

Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84 at 93 to 95; Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 at 567; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; S.A. de Smith in his book "Administrative Action" (3rd Edn.) at p. 452; Federation of Pakistan v. Charsadda Sugar Mills Limited 1978 SCMR 428; Lord Dening in his book "The Closing Chapter" (in appeals of England and Wales 1948 1 KB 223, 234) and Messrs Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal 1986 SCMR 1071 ref.

(g) Interpretation of Constitution---

----Time bound constitutional provision is always mandatory unless the context otherwise provides.

(h) Interpretation of Constitution---

----Duty of Supreme Court---Scope---Supreme Court has to give a purposive interpretation to make Constitution a living document---One may imagine the consequences on affected institutions if legislative intent is not given effect to.

(i) Interpretation of Constitution---

----Judges, task of---Scope---Societies grow and nations progress by strict adherence to rule of law---Judges have nothing to do with shades of public opinion which holders of public office may represent or with passions of the day which sway public opinion---Task of Judges is to tenaciously and fiercely uphold and implement the Constitution and the law.

(j) Administration of justice---

----Judicial whistle---Principle---Blowing a "judicial whistle" is a constitutional mandate, which a Judge can either shun when it is time to blow, nor can do so without a just cause.

(k) Constitution of Pakistan---

----Arts. 4 & 9---Right to education---Scope---Right to education is a fundamental right as it ultimately affects quality of life which has nexus with other Fundamental Rights guaranteed under Arts. 4 and 9 of the Constitution---Awareness of rights and duties, growth of civic consciousness in a society, enjoyment of Fundamental Rights guaranteed under the Constitution and legal empowerment of people depend to a great extent on quality of education---People cannot be free in real sense unless they are properly educated.

Ahmed Abdullah v. Government of the Punjab PLD 2003 Lah. 752 at 791 rel.

(l) University---

----Role of University and Vice-Chancellor---Universities are seats of learning and centres of excellence---University not only enables future generations to equip themselves with degrees/practical tools to earn livelihood but also enriches them with learning, with wisdom and with visions for practical lives---To achieve its objects, University functions besides the Chancellor and Vice-Chancellor through its various institutions i.e., the Faculty, the Senate, the Syndicate and Board of Studies---Vice-Chancellor is a University's institutional head and enjoys a pivotal position---Being the executive and academic head of a University, it is for Vice-Chancellor to ensure that University's Statute, Regulations and Rules are faithfully observed---Vice-Chancellor presides over meetings of various bodies of University and affiliated colleges and in matters of urgent nature, it is the Vice-Chancellor who takes remedial steps; it is he who creates temporary posts when urgency requires; he sanctions expenditures provided for in approved budget, re-appropriates amounts not exceeding a certain amount; he convenes meetings of the Senate and the Syndicate---Vice-Chancellor is a bridge between executive and academic wings of University---Such multi-dimensional role of Vice Chancellor requires that person who occupies this office should be imbued with values and character traits of integrity, of academic excellence and administrative ability.

(m) Baha-ud-Din Zakariya University Act (III of 1975)---

----S. 11(1) & (8)---Constitution of Pakistan, Art. 105---Appointment of Vice Chancellor---Chancellor/Governor---Advice of Chief Minister---Scope---Governor while acting as Chancellor is a statutory functionary in terms of S. 11(1) of Baha-ud-Din Zakariya University Act, 1975; in the performance of his functions under the Act, the Governor is to act and is bound by the advice tendered by Chief Minister in the manner provided in S. 11(8) of the Baha-ud-Din Zakariya University Act, 1975, read with Art. 105 of the Constitution---Chancellor/Governor is bound by timeline given in proviso to Art. 105 of the Constitution, which stands incorporated in Baha-ud-Din Zakariya University Act, 1975, by legislative reference.

Per Asif Saeed Khan Khosa, J. agreeing

(n) Constitution of Pakistan---

----Art. 105---Functions of Governor---Constitutional/statutory---Provisions of Art. 105 of the Constitution do not recognize any distinction between Governor's functions under the Constitution and his functions under any statute.

Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 at 567 and Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad PLD 2011 SC 365 rel.

(o) Baha-ud-Din Zakariya University Act (III of 1975)---

----S. 11(8)---Constitution of Pakistan, Arts. 97, 101, 105(5), 137 & Fourth Schedule---Education, a provincial subject---Governor, role of--- Appointment of Vice Chancellor without advice of Chief Minister---Validity---Subject of education is within the exclusive legislative domain of the Provinces and according to Art. 97 of the Constitution, the executive authority of Federation extends to matters with respect to which Majlis-e-Shoora (Parliament) has power to make laws and by virtue of Art. 137 of the Constitution, executive authority of the Province extends to matters with respect to which the Provincial Assembly has power to make laws---Authority exercised by Chancellor vis-a-vis the affairs of his University is essentially an executive authority---If a Governor in his capacity as a Chancellor of a University situated within Province starts exercising the relevant executive authority treating the same as his personal and discretionary authority to be exercised without the advice of the Chief Executive of the Province i.e., the Chief Minister, then it practically amounts to the Federation or the Federal Government exercising that executive authority in the Province through its nominee, agent or representative---Such appointment by Governor would surely be violative of express constitutional intent and mandate, besides being offensive of the principle of provincial autonomy which is a cornerstone of constitutional dispensation.

Ahmad Raza, Advocate Supreme Court along with Sajid Iqbal in person for Petitioners.

Respondent No. 1 in person.

Nazir Ahmad Chishti, Deputy Registrar, BZU for Respondent No.2.

Maulvi Anwarul Haq, Attorney-General for Pakistan along with Salman Faisal, Syed Ali Mustafa Gillani, Mrs. Shafaq Mohsin.

Khawaja Haris Ahmed, Advocate-General Punjab, Khadim Hussain Qaiser, Additional A.-G. Punjab, Jawad Hassan, Additional A.-G. Punjab and K.K. Agha, Additional Attorney-General for Pakistan on Court's Call.

Dates of hearing: 19th August, 14th, 19th and 22nd September, 2011.

2012 S C M R 41

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

NIAZ AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 1282-L of 2010, decided on 25th February, 2011.

(Against the judgment dated 8-11-2010 passed by Lahore High Court, Lahore in Criminal Appeal No. 17 of 2010).

Control of Narcotic Substances Act (XXV of 1997)---

---- S. 9(c)---Constitution of Pakistan, Art. 185(3)---Recovery of narcotics--- Reappraisal of evidence--- Quantum of sentence---Reduction---Accused was convicted under S. 9(c) of Control of Narcotic Substances Act, 1997, and was sentenced to seven years---High Court in exercise of appellate jurisdiction reduced the sentence to five years---Accused did not assail the conviction but sought reduction in sentence---Validity---Request of accused was acceded to by High Court and his sentence was reduced from seven years to five years---On one hand accused wanted to retain the benefit of the order passed by High Court and on the other hand he had assailed the same---Petition for leave to appeal was barred by eleven days for which no sufficient cause had been propounded by accused in his application for condonation of delay---Leave to appeal was declined.

Ch. Anwar-ul-Haque Pannu, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional P.-G. for the State.

Date of hearing: 25th February, 2011.

2012 S C M R 43

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

TAJ---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.357-L of 2007, decided on 3rd April, 2011.

(Against the judgment dated 9-5-2007, passed by Lahore High Court, Lahore in Criminal Appeal No. 92 of 2004).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Re-appraisal of evidence---Injured witnesses---Accused was convicted by Trial Court and sentenced to imprisonment for life which was maintained by High Court---Validity---Injured witnesses had also received numerous injuries during the occurrence and doctor supported the factum of injuries, thus presence of such prosecution witnesses at the spot was established---Eye-witnesses were subject to cross examination but nothing had come to doubt their credibility---Presence of prosecution witnesses was natural as they sustained injuries along with deceased at the time of incident---Trial Court had already extended life imprisonment to accused and he was not entitled to any other relief---Judgment of High Court was based on proper appreciation of evidence---Supreme Court declined to interfere with the findings of courts below unless the same were arbitrary, fanciful or perverse---Leave to appeal was refused.

Ch. M. Anwar Ghuman, Advocate Supreme Court for Petitioner.

Shabbir Ahmed Lali, A.P.-G. for the State.

Date of hearing: 3rd April, 2009.

2012 S C M R 45

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, and another---Petitioners

Versus

SHAFIQUE AHMAD CHAUDHRY and others---Respondents

Civil Petitions Nos. 871-L to 877-L, 881-L to 886-L and 892-L to 898-L of 2011, decided on 11th July, 2011.

(Against the judgment dated 21-2-2011 passed by Punjab Service Tribunal, Lahore in Appeals Nos. 1387, 1456, 1458, 1492, 1493, 1495, 1496, 1400, 1447, 1449, 1451, 1455, 1494, 1448, 1450, 1452, 1453, 1454, 1457 and 1462 of 2010).

Punjab Employees' Efficiency, Discipline and Accountability Act (XII of 2006)---

----S. 7--- Punjab Service Tribunals Act (IX of 1974), S. 4---Constitution of Pakistan, Art. 212(3)---Withholding of promotion and recovery of loss caused to public exchequer, penalty of---Executive Engineers and Store-Keepers in Irrigation Department---Financial embezzlement, charges of---Appeal filed by such officials accepted by Service Tribunal---Validity---No evidence on record available to prove that Engineers were directly responsible for making purchases and were dishonest in such exercise or thereby made any financial gain---Store-Keepers by virtue of their functions could not be saddled with liability of irregularities in purchases---Tribunal had rightly annulled the order of departmental authority---Supreme Court refused to grant leave to appeal in circumstances.

University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1999 SCMR 1639 ref.

Shahid Mubeen, Additional A.-G., Punjab for Petitioners (in all petitions).

Nasim Saibr Ch. Advocate Supreme Court for Respondent No.1 (in Civil Petitions Nos. 871, 873 and 881-L).

Ch. M. Zafar Iqbal, Advocate Supreme Court for Respondents (in Civil Petition No. 898-L of 2011).

Date of hearing: 11th July, 2011.

2012 S C M R 51

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Jawwad S. Khawaja and Khilji Arif Hussain, JJ

PROVINCE OF PUNJAB through Collector/DOR District Chakwal and others---Petitioners

Versus

BAZ KHAN and others---Respondents

Civil Petition No. 1292 of 2011, decided on 14th September, 2011.

(On appeal from the judgment dated 1-6-2011 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Civil Revisions Nos. 777 of 2001, 127 of 2002).

(a) Constitution of Pakistan---

----Art. 185(3)---Leave to appeal, grant of---Principles---Grant of leave is a matter of discretion and is not of right---No limitation has been imposed by provision of Art. 185(3) of the Constitution, for grant of leave to appeal---Conduct of petitioner has substantial bearing on the question of leave to appeal or otherwise---Supreme Court is not a court of appeal while exercising power under Art.185(3) of the Constitution to reappraise evidence, except in exceptional circumstances.

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

----S.42---Constitution of Pakistan, Art. 185(3)---Suit for declaration---Plaintiffs were aggrieved of construction of road by defendants over the land owned by them---Trial Court decreed the suit in favour of plaintiffs and awarded a sum of Rs. 100,000 as compensation, which was reduced to Rs. 16,000 by Lower Appellate Court but High Court in exercise of revisional jurisdiction restored the amount to Rs. 100,000 as fixed by Trial Court---Validity---Defendants dispossessed plaintiffs from their land in the year 1983, despite decree of suit, not a single penny had been paid to plaintiffs for the last more than 27 years---Judgment passed by High Court was reasonable and proceeded on cogent ground---Defendants failed to point out any infirmity, legal or factual in the judgment passed by High Court, which could justify interference---Leave to appeal was refused.

Razzaq A. Mirza, Additional A.-G. Punjab for Petitioners.

Nemo for Respondents.

Date of hearing: 14-9-2011.

2012 S C M R 54

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Mian Saqib Nisar, JJ

Mst. NASEEM AKHTAR---Petitioner

Versus

G.M. (P & D) WATER, WAPDA and others---Respondents

Civil Petition No.2033-L of 2010, decided on 12th July, 2011.

(Against the judgment dated 5-11-2010 of the Lahore High Court, Lahore passed in Writ Petition No. 20970 of 2009).

Sanctioning Procedure of Grants of Widow Welfare Fund Rules---

----Constitution of Pakistan, Arts. 199 & 185(3)---Wapda Welfare Fund established for its retired employees---­Death of petitioner's husband after four years of his retirement from Service---Petitioner-widow falling within category of beneficiaries of such Fund filed application after 17 years of his death for granting benefits thereunder---Denial of such benefits to petitioner by Authority for her application being barred by time---Dismissal of petitioner's constitutional petition by High Court---Validity---Such Fund had attributes of a Private Trust---Persons responsible to administer such Fund for being trustees were responsible to make payments to beneficiaries in accordance with its rules---Petitioner would be entitled to benefits under such Fund from date of making application, but not to prior distributions already made---Non-making of application within time would not mean that petitioner had forfeited all rights as beneficiary even in respect of period starting with her application---No provision existed in Rules denying such benefits to widow for her failure to make an application within time---Petitioner's status as a beneficiary of such Fund still existed, thus, her rights could not be barred for all times to come---Supreme Court set aside impugned judgment and directed Authority to make payments to petitioner from date of her application as being made to other similarly placed widows.

Mian Jaffar Hussain, Advocate Supreme Court for Petitioner.

Faiz-ur-Rehman, Advocate-on-Record for Respondents.

Date of hearing: 12th July, 2011.

2012 S C M R 56

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

ZAHID PERVAIZ---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No. 67-L of 2011, decided on 14th July, 2011.

(On appeal from the judgment dated 1-2-2011 of the Lahore High Court, Lahore passed in Criminal Revision No. 947 of 2010).

Penal Code (XLV of 1860)---

----Ss. 324, 337-F(i) & 337-F(iii)---Attempt to commit qatl-e-amd, damyah and mutalahimah to any person---Reappraisal of evidence---Benefit of doubt---Interested witnesses---Previous enmity---Motive not proved---All eye-witnesses produced by prosecution were inimical towards accused on account of ongoing murder feud---Motive set up by prosecution was vague and unspecific and the same remained unproved---No weapon was recovered from the possession of accused during investigation---Conviction and sentence awarded to accused by Trial Court was maintained by Lower Appellate Court as well as by High Court---Validity---Medical evidence was of no avail to the extent of accused as no specific injury had been attributed to him which could find support from medical evidence, thus conviction of accused was a legal impossibility on lack of independent corroboration of evidence---Supreme Court set aside conviction and sentence awarded to accused by the courts below and he was acquitted of the charge---Appeal was allowed.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Akhtar Ali and others v. State 2008 SCMR 6 rel.

Ch. Nazir Ahmad Kamboh, Advocate Supreme Court for Appellant.

Asjad Javaid Ghural, Additional Prosecutor-General, Punjab for the State.

Nemo for Respondent No.2.

Date of hearing: 14th July, 2011.

2012 S C M R 59

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

AHMED JAN---Appellant

Versus

NASRULLAH and others---Respondents

Criminal Appeal No. 217 of 2003 and Criminal M.A. No. 143 of 2005, decided on 21st September, 2011.

(On appeal against the judgment dated 6-5-2003 passed by High Court of Balochistan, Quetta in Civil Petition No. 119 of 2003).

(a) Penal Code (XLV of 1860)---

----S. 302---Anti-Terrorism Act (XXVII of 1997), S. 6---Criminal Procedure Code (V of 1898), S. 169---Constitution of Pakistan, Art.185(3)---Qatl-e-amd---Leave to appeal was granted by Supreme Court to consider the contention of accused that case registered against him did not fulfil criteria laid down under S.6 of Anti-Terrorism Act, 1997, for the purpose of trial by Special Judge, as no lethal firearms were used by accused and other persons and it was a usual free fight between two factions, which had taken place at the spur of moment without any previous criminal intimidation; furthermore pistol was used by one accused who had been discharged by prosecution under S.169, Cr.P.C.

(b) Penal Code (XLV of 1860)---

----S. 302---Anti-Terrorism Act (XXVII of 1997), S.6---Criminal Procedure Code (V of 1898), S.173---Qatl-e-amd---'Terrorism'---Assumption of jurisdiction---Scope---Transfer of proceedings---Four accused one armed with pistol, one with knife and remaining with sticks attacked complainant party in consequence of which one person died and one received injuries and the case was transferred to Special Court of Anti-Terrorism for trial---Validity---No motive was alleged in F.I.R. against accused and police after due investigation submitted Challan/report under S.173, Cr.P.C. before Court of Sessions who entrusted to Additional Sessions judge who transmitted it to Special Court established under Anti-Terrorism Act, 1997---Supreme Court directed to transmit the record of case to Trial Court and set aside the judgment passed by High Court---Appeal was allowed.

Zainullah v. Special Judge Anti-Terrorist Court 2001 SCMR 1225; Bashir Ahmed v. State PLD 2009 SC 11; Basharat Ali v. Special Judge, Anti-Terrorism Court-II PLD 2004 Lah. 199; Bashir Ahmed v. Naveed Iqbal and others PLD 2001 SC 521 and Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841 rel.

M. Riaz Ahmed, Advocate Supreme Court/Advocate-on-Record for Appellant.

Nemo for Respondents.

Tahir Iqbal Khattak, Additional P.-G., Balochistan for the State.

Tariq Mehmood, Senior Advocate Supreme Court for the Applicant (in Criminal M.A. No. 143 of 2005).

Date of hearing: 21st September, 2011.

2012 S C M R 64

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ghulam Rabbani, JJ

TRUSTEES OF THE PORT OF KARACHI---Petitioner

Versus

SAQIB SAMDANI---Respondent

Civil Petition No. 19-K of 2011, decided on 14th June, 2011.

(On appeal from the judgment dated 7-10-2010 in Appeal No.747(K)CS/2000, passed by the Federal Service Tribunal, Karachi).

Service Tribunals Act (LXX of 1973)---

----S. 4---Contract employee---Reinstatment in service---Vested right---Scope---Respondent was employed on a contract of one year, whereafter, he was terminated from service---Service Tribunal allowed the appeal of respondent and reinstated him in service---Validity---Respondent was in employment on contract basis, hence no vested right was created in his favour for reinstatement in service---Respondent was not appointed as regular employee against any particular quota to give him a valid cause of action---Judgment passed by Service Tribunal was silent that termination of service of respondent violated any of his rights, therefore, his reinstatement under the judgment passed by Service Tribunal was not validly ordered---Supreme Court set aside the judgment passed by Service Tribunal---Appeal was allowed.

Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681; Karachi Port Trust through Chairman Board of Trustee v. Altaf Ahmed and another 1996 SCMR 1205 and Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmad and others 1995 SCMR 1593 distinguished.

Khaleeq Ahmed, Advocate Supreme Court for Petitioner.

M. Farogh Nasim, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent.

Date of hearing: 14th June, 2011.

2012 S C M R 68

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

MUHAMMAD YOUSAF---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.1246-L of 2010, decided on 14th March, 2011.

(On appeal from the order dated 25-10-2010 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.3 of 2010 in Criminal Appeal No.1616 of 2010).

Criminal Procedure Code (V of 1898)---

----S. 426--- Penal Code (XLV of 1860), S. 302--- Qatl-e-amd---Suspension of sentence---Counter version---Trial Court in its judgment found that eye-witnesses produced by prosecution had shown reckless disregard for the truth and it was the complainant party which had aggressed against accused party---Validity---In view of such findings recorded and conclusions arrived at by Trial Court the High Court had wrongly refused to consider such aspect of the case by maintaining that the same required deeper appreciation of evidence on record which was not called for while suspending the sentence---Question of culpability of accused would require serious reconsideration at the time of hearing of his main appeal before High Court---Sentence passed by Trial Court against accused was suspended by Supreme Court and he was released on bail.

Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

Asjad Javed Ghural, Additional Prosecutor-General, Punjab for the State.

Manzoor Qadir, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Respondent No.2.

Date of hearing: 14th March, 2011.

2012 S C M R 70

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

MUHAMMAD ISHAQ---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.434-L of 2011, decided on 30th June, 2011.

(Against the judgment dated 6-6-2011 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 5883-B of 2011).

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.337-A (i) & 452---Constitution of Pakistan, Art. 185(3)--- Shajah-i-Khafifah and trespassing---Pre-arrest bail, grant of---Further inquiry---Conflicting opinion---Accused was found by Investigating Officer to be involved in trespassing but Deputy Superintendent of Police did not agree with the finding of Investigating Officer---Effect---Sole injury attributed to accused in terms of F.I.R. was not only Shajah-i-Khafifah making the offence bailable but even if Investigating Officer found accused empty handed and such finding had not been varied, the question of application of S.452, P.P.C. would remain a moot point between two officers i.e. Investigating Officer and Deputy Superintendent of Police---Findings of Investigating Officer and the fact that sole injury attributed, attracted only bailable offence, the possibility of false involvement of accused could not be ruled out---Pre-arrest bail was allowed.

Sh. Irfan Akram, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner.

Asjad Javaid Ghural, Additional Prosecutor-General, Punjab and Ahmad Iqbal, S.-I. for the State.

Malik Mushtaq Ahmad, Advocate Supreme Court and Saleem Khan Cheechi, Advocate Supreme Court for Respondent No.2.

Date of hearing: 30th June, 2011.

2012 S C M R 72

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

Mst. FATIMA BIBI---Petitioner

Versus

PROVINCE OF PUNJAB through District Officer Revenue, Gujrat and others---Respondents

Civil Petition No.1228-L of 2009, decided on 20th May, 2011.

(On appeal from the order dated 3-6-2009 of the Lahore High Court, Lahore passed in Civil Revision No. 300 of 2009).

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2---Civil Procedure Code (V of 1908), S.11---Constitution of Pakistan, Art. 185(3)---Inheritance under Islamic Law---Death of "K" in year 1940 leaving behind a widow, a son, four daughters and two daughters from pre-deceased wife---Sanctioning of inheritance mutation in favour of only son (died issueless in year 1978) excluding all other legal heirs of deceased "K"---Supreme Court granted leave to appeal to consider questions as to whether estate of "K" after enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 should have been mutated in favour of all his legal heirs according to Islamic Law of Inheritance; whether petitioner along with her three real sisters were also entitled to inherit 2/3rd share out of inheritance of their real brother, who died issueless; and whether principle of res judicata had been wrongly applied in the present case in view of law laid down by Supreme Court in case of Muhammad Saleem Ullah v. Additional District Judge, Gujranwala and others (PLD-2005-SC-511).

Muhammad Sharif son of Petitioner.

Nemo for Respondents.

Date of hearing: 20th May, 2011.

2012 S C M R 74

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

Mst. SABEEHA---Appellant

Versus

IBRAR and others---Respondents

Criminal Appeal No. 347 of 2003 and Criminal M.A. No. 131 of 2008, decided on 15th September, 2011.

(On appeal from the judgment dated 23-1-2003 passed by the Peshawar High Court, Peshawar in J. Cr. A. 203 of 2002 and M.R. No.10 of 2002).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 367(5)---Qatl-e-amd---Sentence---Principles---Sentences provided under S. 302(b), P.P.C. are "death" or "life imprisonment"---If case stands proved against accused and court is not persuaded to award him death sentence and proceeds to award latter sentence, then under S.367(5), Criminal Procedure Code, 1898, court has to give reasons.

(b) Penal Code (XLV of 1860)---

----Ss.302 (b)/148/149---Qatl-e-amd and unlawful assembly armed with deadly weapons---Reappraisal of evidence---Life imprisonment---Sentence of death awarded to accused was converted into imprisonment for life---Validity---None of the prosecution witnesses including injured witnesses attributed any specific injury to any of the accused and three co-accused remained fugitive from law---Uncertainty regarding fatal injuries and prosecution case regarding two co­-accused was not worthy of reliance and they were acquitted---Judgment passed by High Court reducing sentence of death into imprisonment for life was neither arbitrary nor unjust---When an unlawful assembly armed with deadly weapons was resorting to indiscriminate firing, it was not possible to identify as to whose fire hit whom and in such circumstances, award of maximum sentence would not be in consonance with safe administration of justice---Supreme Court declined to interfere in the judgment passed by High Court---Appeal was dismissed.

Muhammad Latif v. The State 1984 SCMR 284; Allah Dad v. The State 1995 SCMR 142; Muhammad Tashfeen v. The State 2006 SCMR 577 and Naik Muhammad v. The State 2007 SCMR 1639 rel.

(c) Penal Code (XLV of 1860)---

----S. 302---Qatl-e-amd---Weapon produced by co-accused---Place of recovery---Effect---Plea raised by complainant was that empties of weapon matched with the weapon recovered---Validity---Weapon in question was neither produced by accused nor recovered from place, which was in his exclusive possession rather it was in the possession of co-accused who produced the weapon­---Plea of complainant was not tenable.

Jan Muhammad Khan, Advocate-on-Record for Appellant.

Nemo for Respondent No. 1.

Respondent No. 2 in person along with Alipur Khan, Surety and Noorul Baswar, Surety.

Syed Arshad Hussain, Additional A.-G., KPK for the State.

Date of hearing: 15th September, 2011.

2012 S C M R 80

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja and Mian Saqib Nisar, JJ

MUHAMMAD SULEMAN---Petitioner

Versus

COMMISSIONER OF INCOME TAX/ WEALTH TAX, FAISALABAD---Respondent

Civil Petition No.2433-L of 2003, decided on 7th February, 2011.

(Against the order dated 19-7-2003 passed by Federal Service Tribunal, Lahore Bench in Appeal No.459(L)(CS) of 2002).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Non-filing of appeal before Service Tribunal within 90 days of filing departmental representation---Dismissal of appeal by Service Tribunal---Appellant's plea that after filing representation on 13-9-1999, he filed reminder on 28-4-2001, which were dismissed vide order dated 11-6-2002, thus appeal thereagainst before Tribunal was not time-barred; and that during such period, he had approached the High Court---Validity---When departmental appeal was not decided within 90 days, then appellant could file appeal before Tribunal under Proviso (a) of S. 4 of Service Tribunal Act, 1973---Appellant had not explained such long period---Limitation could not be calculated from the reminder for not being a representation for first time---Appellant's action to ,have approached High Court during such period was absolutely irrelevant and would not extend period of limitation---Supreme Court refused to grant leave to appeal in circumstances.

Faiz-ur-Rehman, Advocate-on-Record for Petitioner.

Mian Yousaf Omer, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Respondent.

Date of hearing: 7th February, 2011.

2012 S C M R 82

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

MUHAMMAD SHARIFAN BIBI---Petitioner

Versus

MUHAMMAD YASIN and others---Respondents

Criminal Petitions Nos. 433-L and 434-L of 2009, decided on 30th June, 2011.

(Against the judgments dated 22-1-2009 passed by Lahore High Court, Lahore in Criminal Appeals Nos. 1856 and 2006 of 2003).

Penal Code (XLV of 1860)---

----Ss. 302/34---Constitution of Pakistan, Art. 185(3)---Appeal against acquittal---Qatl-e-amd---Reappraisal of evidence---Medical and ocular evidence--- Un-explained delay in F.I.R.--- Improvements in statements--- Trial Court convicted both the accused under S. 302(b), P.P.C. and sentenced one to death while the other to imprisonment for life---High Court allowed the appeal and acquitted both the accused---Three witnesses who furnished ocular account, if had seen the occurrence, nothing prevented them to get the case registered same day, instead they had waited for 2-3 days to have their statements recorded---Presence of prosecution witnesses became further doubtful as none of them accompanied deceased to hospital for postmortem examination---Such quality of ocular account was sought to be corroborated by medical evidence which High Court found to be in conflict with ocular account---Prosecution witnesses in their statements before police stated that deceased was fired upon at his neck but during trial they improved their version and said that it was below the neck---Such reasons being not conjectural or arbitrary and against the weight of evidence on record, thus acquittal of accused was unexceptionable---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Riaz Hussain Khan, Advocate Supreme Court and Faizur Rehman, Advocate-on-Record for Petitioner.

Ms. Aaliya Neelum, Advocate Supreme Court and Mahmoodul Islam, Advocate-on-Record for Respondents.

Asjad Javed Ghural, Additional P.-G. for the State.

Date of hearing: 30th July, 2011.

2012 S C M R 84

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Sarmad Jalal Osmany, JJ

Mst. RUBINA BADAR through L.R.---Petitioner

Versus

Messrs LONG LIFE BUILDERS and 4 others---Respondents

Civil Petition No. 614-K of 2011, decided on 29th September, 2011.

(On appeal against the judgment dated 6-12-2010 passed by High Court of Sindh, Karachi in S.A. No. 12 of 2011)

(a) Partnership Act (IX of 1932)---

----S.45---Dissolution of firm---Liability of partners to third party---Scope---True import of S.45 of Partnership Act 1932, is the continuing liability of partners for acts done by partners after dissolution of the firm, unless public notice is given thereof---As such the same is in order to protect third party who deals with partners of the firm after dissolution without such notice and in good faith.

Muhammad Jameel and Co. v. A.M. Wazir Ali (Proprietor of Sindh Oil Mills) PLD 1959 (W.P.) Kar. 472 and Ejaz Ali Siddique and another v. Rana Irshad Ahmed and others 1998 CLC 1684 rel.

(b) Transfer of Property Act (IV of 1882)---

----S. 41, proviso---Specific Relief Act (I of 1877), Ss. 12, 27(b), 42 & 54---Constitution of Pakistan, Art. 185(3)---Suit for specific performance, declaration and injunction--- Bona fide purchaser for valuable consideration--- Ostensible owner, principle of--- Plaintiff claimed ownership of the suit property on the basis of sale agreement, duly acknowledged receipt of sale consideration, public notice in newspaper physical possession, payment of property tax and utility bills etc.---Defendant resisted the suit on the basis of a registered lease deed duly executed in his favour by the attorney of the owner of suit property, six years earlier than the agreement to sell relied upon by plaintiff---Validity---Equitable doctrine as contained in proviso to S.41 of Transfer of Property Act, 1882, which protected a subsequent transferee, was to be established by him that he had acted in good faith and taken reasonable care before entering into the transaction and that he had given valuable consideration for such transfer-­--Such equitable doctrine was a deduction from the law of estoppel which must be pleaded clearly with specific facts to be relied upon in such regard---Onus to prove that a person was entitled to the benefit of S.41 of Transfer of Property Act, 1882, was always upon the person who pleaded such protection---Plaintiff never pleaded that she was a bona fide purchaser without notice of the earlier transaction vis-a-vis property in question between the owner and defendant---Neither the plaintiff had led any evidence to such effect before Trial Court---If the plaintiff had checked with the concerned Registrar, the earlier lease deed between the owner and defendant would have been discovered but the same was not done---No issue was framed by Trial Court since the plaintiff never raised the same and Supreme Court declined to give benefit of proviso to S.41 of Transfer of Property Act, 1882---Plaintiff even could not establish under S.27(b) of Specific Relief Act, 1877, to be a bona fide purchaser for valuable consideration without notice--- Supreme Court declined to interfere in the judgments and decrees passed by the courts below---Leave to appeal was refused.

Muhammad Ishaque (Represented by his Legal Heirs) v. Messrs Eros Theatre and others PLD 1977 SC 109; Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Ghulam Shabbir v. Mst. Nur Begum and others PLD 1977 SC 75 and Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 distinguished.

Allah Bakhsh and others v. Province of Punjab and others 2002 SCMR 2003 rel.

Ch. M. Jalib, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Imran Ahmed, Advocate Supreme Court for Respondent No.2.

Date of hearing: 29th September, 2011.

2012 S C M R 89

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

SAEED AHMAD---Petitioner

Versus

MUHAMMAD NAWAZ and others---Respondents

Criminal Petition No. 46-L of 2009, decided on 28th June, 2011.

(On appeal from the judgment dated 3-12-2008 passed by the Lahore High Court, Lahore in Criminal Appeal No. 546 of 2003 and M.R. No.182 of 2003).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Appeal against acquittal---Re-appraisal of evidence---Acquittal of accused---Benefit of doubt---Delay in F.I.R.---Conviction under S.302(b), P.P.C. and sentences of death awarded by Trial Court was set aside by High Court and accused was acquitted---Validity---Delay of nine hours in lodging F.I.R. and motive set was trivial in nature---Both the eye-witnesses were closely related to deceased as son and nephew---Occurrence had taken place in a broad daylight at public place but not a single witness appeared to support prosecution case---Injuries suffered by deceased were merely abrasions and finding that it reflected conflict between ocular account and medical account was not conjectural---Finding of acquittal in favour of accused was neither against evidence led nor arbitrary---Supreme Court declined to interfere in judgment of acquittal passed by High Court---Leave to appeal was refused.

Sh. Khizar Hayat, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional P.-G. for the State.

Date of hearing: 28th June, 2011.

2012 S C M R 91

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Mian Saqib Nisar, JJ

Malik ABDUL AZIZ AWAN and another---Petitioners

Versus

Rana MAQBOOL AHMAD KHAN and others---Respondents

Civil Petition No. 999-L of 2011, decided on 5th July, 2011.

(Against the judgment dated 8-6-2011 passed by Lahore High Court, Lahore in W.P. No. 23617 of 2010).

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 9, 15 & 22---Constitution of Pakistan, Arts. 185(3) & 199---Ejectment petition---Leave application by tenant---Tenant's plea that ejectment petition was not entertainable as tenancy was not in conformity with provisions of S. 9 of Punjab Rented Premises Act, 2009--- Dismissal of leave application by Rent Tribunal vide order dated 19-1-2010 and passing of final ejectment order on 16-3-2010---Dismissal of tenant' appeal and constitutional petition by Appellate Court and High Court respectively---Validity---Tenant had not further challenged order of dismissal of leave application either in constitutional petition or at first available opportunity of appeal filed against ejectment order---Supreme Court refused to grant leave to appeal in circumstances.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 22---Leave application---Framing of issues by Rent Tribunal---Scope---Law did not require Tribunal to frame issues necessarily in all cases---Trial of case would commence only after tenant successfully crossed stage of leave.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 5-A---Punjab Rented Premises Act (VII of 2009), Ss. 15 & 21---Ejectment petition---Default in payment of 25% increase in rent after every three years, ground of---Leave application---Tenant's plea that landlord had not served notice upon him asking for payment of increased rent, in absence of which tenant could not be said to have committed default in its payment---Validity---Tenant was bound to increase rent for same being envisaged by statute, failure whereof would entail consequences of wilful default---Default in payment of rent by tenant had been proved---Ejectment petition was accepted in circumstances.

Sheikh Naveed Shehryar, Advocate Supreme Court for Petitioners.

Respondent No. 1 in person.

Date of hearing: 5th July, 2011.

2012 S C M R 94

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

RIZWANA BIBI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No. 329 of 2011, decided on 15th September, 2011.

(On appeal from the judgment dated 13-5-2011 passed by High Court of Sindh, Hyderabad in Criminal Miscellaneous Appeals Nos.S-38 and S-39 of 2011).

(a) Penal Code (XLV of 1860)---

---S. 365-B---Criminal Procedure Code (V of 1898), S.561-A---Constitution of Pakistan, Art. 35--- Kidnapping for marriage---Quashing of F.I.R.--- Marriage, protection of--- Appellant sought quashing of F.I.R. on the ground that prosecution was mala fide and no one had abducted her---Appellant admitted before Supreme Court that after dissolution of her earlier marriage she subsequently married the accused out of which wedlock there was a baby girl---High Court declined to quash the F.I.R. registered against husband of appellant---Plea raised by State counsel was that appellant should appear before Trial Court---Validity---Statement of appellant before Supreme Court showed that mischief clauses of S. 365-B, P.P.C. were not attracted---Judgment and decree in the suit for dissolution of marriage though ex parte, despite lapse of more than two years was not challenged by the previous husband of appellant who knew about it, as he was no longer interested to pursue her, such conduct reflected his acquiescence---Statement of appellant before Supreme Court and her marriage with a person of her choice was a constitutional command---Prayer of State counsel for quashment of cases and insistence that appellant should appeal before Trial Court was repelled---Supreme Court condoned the delay in filing of appeal and quashed the proceedings pending before Trial Court---Petition was converted into appeal allowed accordingly.

Muhammad Siddique v. State PLD 2002 Lah. 444 rel.

(b) Public functionaries---

----State functionaries are duty bound to obey the law of land.

Petitioner in person along with Ms. Ayesha Zafar, Ms. Asma Batool, Women Police Station, Rawalpindi, Sajid Ali and minor girl.

Ghulam Mustafa, father and Abdul Hafeez, ex-husband for Respondent No.2.

Saleem Akhtar, Additional P.-G. for the State.

Mrs. Afshan Ghazanfar, Advocate Supreme Court for Amicus Curiae.

Date of hearing: 15th September, 2011.

2012 S C M R 101

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali, Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD YAMEEN---Applicant

Versus

ABDUL SATTAR NAREJO and others---Respondents

Criminal Miscellaneous Application No. 17-K of 2010 in Criminal Petition No. 34-K of 2007, decided on 11th February, 2011.

(For implementation of this Court's order dated 9-8-2007, whereby pre-arrest bail of respondent No.1 was cancelled and he was ordered to be taken into custody forthwith).

Criminal Procedure Code (V of 1898)---

----Ss. 54 & 154---Penal Code (XLV of 1860), S. 302---Cognizable offence---Arrest---Administration of justice---Accused was involved in a murder case and as he was an influential person, therefore, he was not arrested by police---After the occurrence, accused had been elected as Naib Nazim of a Union Council and was discharging his functions in the capacity of elected representative but the authorities knowing well about the involvement of accused in the murder case, failed to cause his arrest---Supreme Court was informed that those officers who had shown their reluctance to cause arrest of accused had been proceeded against departmentally---Effect---Supreme Court had shown its satisfaction that under the command of Regional Police Officer, all necessary steps were taken by the police for causing arrest of the accused and police had succeeded in arresting him as per the report placed on record along with remand letter---Legal course was required to be followed by all functionaries notwithstanding that what would be the position or status of wrongdoer and no one was to be considered above the law---Accused having been arrested, the law would take its own course---Application was disposed of.

Muhammad Yameen (in person) for Applicant.

Nemo for Respondent No.1.

Zafar Ahmad Khan, Additional P.-G. Sindh, Mushtaq Ahmed Shah, RPO, Hyderabad and Abid Qaim Khani, SP (Investigation) on Court Notice.

Mian Abdul Rauf, Advocate Supreme Court for Applicant (in Criminal M.A. No.20 of 2011).

Date of hearing: 11th February, 2011.

2012 S C M R 106

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

AKRAM UL HAQ ALVI---Appellant

Versus

JOINT SECRETARY (R-II) GOVERNMENT OF PAKISTAN, FINANCE DIVISION, ISLAMABAD and others---Respondents

Civil Appeal No. 245-L of 2011, decided on 29th June, 2011.

(On appeal against the order dated 16-11-2010 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1389(R)CS of 2010).

Civil Servants Act (LXXI of 1973)---

----S. 19---Civil Service Rules, R. 4---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan, Art. 212(3)---Appeal---Increase in pension of appellant allowed on gross pension through Notification dated 23-7-1999 withdrawn through Notification dated 4-9-2001 allowing same on net pension---Refusal of Service Tribunal to give appellant benefit of Notification of year 1999---Validity---Government under S. 19 of Civil Servants Act, 1973 had powers to fix an amount of pension, increase same, bring about changes therein from time to time and prescribe method for its calculation---In absence of any bar or restriction, Government was free to decide whether to grant increase in pension on gross or net pension---Previous mode of increase on gross pension could not restrain Government from changing same---Increase in pension was purely an executive act and based on a policy taking into consideration various factors including inflation and Government financial constraints---In absence of definition of pension for purpose of calculating increase therein, pension would be given meaning assigned thereto in instrument by which same was increased---According. to Cl. (f) of Para 16 of Notification dated 4-9-2001, rate of increase in pension in future would be calculated on net pension instead of gross pension---Supreme Court dismissed appeal in circumstances.

Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh 2004 SCMR 1864 and Government of Pakistan v. Village Development Organization 2005 SCMR 492 ref.

Civil Appeals Nos. 1305 to 1327 of 2003 fol.

Appellant in person.

Naseem Kashmiri, D.A.-G. and A.H. Masood, Advocate-on-Record for Respondents.

Date of hearing: 29th June, 2011.

2012 S C M R 109

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Nasir-ul-Mulk and Mian Saqib Nisar, JJ

MUSHTAQ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 70 and 71 of 2005, decided on 28th January, 2011.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench dated 14-11-2002 passed in Criminal Appeals Nos.36 and 38 of 1997 and Murder Reference No. 126 of 1997).

(a) Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider only the quantum of sentences.

(b) Penal Code (XLV of 1860)---

----Ss. 302/34---Qanun-e-Shahadat (10 of 1984), Art.43---Qatl-e-amd---Confession---Sentence, quantum of---On the basis of confessional statements made by all the three accused persons, they were sentenced to death but High Court converted sentence of one accused into imprisonment for life and maintained that of remaining two---Validity---Confessional statement of an accused could be made basis for his conviction for the crime while that of a co-accused could only be taken as circumstance against him but no conviction could be recorded upon it---Confessional statements of two accused could be used to corroborate the statement of third accused to the extent of facts admitted by the latter but not as regard the part denied by him---Confessional statement of an accused was to be accepted as a whole---As the accused did not admit to have killed the deceased, therefore, he could not be held responsible for killing on the confessional statements of co-accused---Supreme Court altered sentence of death awarded to accused into imprisonment for life---Appeal was allowed partly.

(c) Penal Code (XLV of 1860)---

----Ss. 302/34---Qanun-e-Shahadat (10 of 1984), Art.43---Qatl-e-amd---Confession--- Sentence, quantum of--- Motive--- On the basis of confessional statements made by all the three accused persons, they were sentenced to death but High Court converted sentence of one accused into imprisonment for life and maintained that of remaining two---Validity---Accused had immediate grievance against deceased for having been dismissed from service on the allegation of theft and was turned out of the house without payment of his salary---Accused admitted that he had decided to take his revenge after he was taunted by his aunt and he was motivated by revenge---Confessional statements of all the three accused, showed that the accused was mastermind of the plan and moving spirit behind it---Accused was the only one out of the three accused who in his confessional statement admitted to have participated in killing of deceased---Such admission of accused was corroborated from confessional statements of two co-accused---No mitigating circumstances were available to modify sentence awarded to him by Trial Court and upheld by appellate Court---Supreme Court declined to interfere in sentence of death awarded to accused by the courts below---Appeal was dismissed.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellants (in Criminal Appeal No. 70 of 2005).

Arshad Ali Chaudhry, Advocate Supreme Court for Appellants (in Criminal Appeal No. 71 of 2005).

Mian Abdul Rauf, Advocate Supreme Court for the Complainant (in both cases).

Ahmed Raza Gillani, Additional P.-G. for the State.

Date of hearing: 28th January, 2011.

2012 S C M R 114

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Anwar Zaheer Jamali, JJ

SECRETARY TO THE GOVERNMENT OF PUNJAB, REVENUE DEPARTMENT and others---Appellants

Versus

SAJJAD AHMAD and another---Respondents

Civil Appeal No. 347 of 2010, decided on 27th April, 2011.

(On appeal from judgment of Lahore High Court, Multan Bench, dated 6-12-2006 and 8-6-2009 passed in W.P. No.1664 of 2006 and I.C.A. No.14 of 2007).

(a) Land Acquisition Act (I of 1894)---

----S. 54---Punjab Land Acquisition Rules, 1983, R. 14(2)(ii)---Law Reforms Ordinance (XII of 1972), S. 3(2)---Intra court appeal---Maintainability---Certain portion of unutilized acquired land was restored to its original owners under the provisions of R. 14(2)(ii) of Punjab Land Acquisition Rules, 1983, with certain conditions imposed by Board of Revenue---High Court decided the petition in favour of the original owners of the land---Provincial Government assailed the judgment of High Court in intra court appeal---Division Bench of High Court dismissed the intra court appeal on the ground that the same was not maintainable as Provincial Government had a right to file appeal under S. 54 of Land Acquisition Act, 1894---Validity---Remedy of appeal in terms of S. 54 of Land Acquisition Act, 1894, was not available to parties, therefore, dismissal of intra court appeal on such ground regarding reference to S. 3(2) of Law Reforms Ordinance, 1972, was due to erroneous view formed by Division Bench of High Court--- Supreme Court set aside the order and remanded the matter to Division Bench of High Court for deciding intra court appeal afresh.

(b) Law Reforms Ordinance (XII of 1972)---

----S.3(2)---Intra court appeal----Maintainability---Scope.

Mudassar Khalid Abbasi, Assistant A.-G. Punjab for Appellants.

Sheikh Zamir Hussain, Senior Advocate Supreme Court for Respondents.

Date of hearing: 27th April, 2011.

2012 S C M R 117

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

DOST MUHAMMAD---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 300-L of 2011, decided on 11th May, 2011.

(On appeal against the order dated 18-4-2011 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.3201/B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 337-A(i)---Constitution of Pakistan, Art. 185(3)---Shajjah-i-Khafifah---Bail, grant of---Further inquiry---Accused was attributed only one injury which was initially found to be serious but later on Medical Board declared the same as Shajjah-i-Khafifah---Report of Medical Board brought the case within the mischief of S. 337-A(i), P.P.C. which was punishable with two years of imprisonment---In terms of injuries caused, case of accused did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused was behind the bars for the last more than one year and eleven months and no more required for further investigation---Bail was allowed.

Rai M. Tufail Khan Kharal, Advocate Supreme Court for Petitioner.

Asjad Javed Ghural, Additional P.-G., Naseer Ahmed, S.-I., Police Station City Tandlianwala, Faisalabad for the State.

Date of hearing: 11th May, 2011.

2012 S C M R 119

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Tariq Parvez, JJ

MEHMOOD HASSAN HARVI---Petitioner

Versus

THE STATE through D.-G., A.N.F.---Respondent

Criminal Review Petitions Nos. 55 and 111 of 2009 in Criminal Appeals Nos.28 of 2004 and 625 of 2006, decided on 24th November, 2009.

(Against the judgment dated 12-3-2009 passed by this Court in Criminal Appeals. Nos. 28 of 2004 and 625 of 2006).

Control of Narcotic Substances Act (XXV of 1997)---

----S. 15---Constitution of Pakistan, Art. 188---Recovery of narcotics---Review of Supreme Court judgment---On the basis of spy information a raid was conducted and Charas weighing 400 kilograms was recovered---Accused was arrested and he was convicted by Trial Court and sentenced to imprisonment for 10 years but High Court enhanced the sentence to imprisonment for life---Supreme Court in judgment under review set aside the sentence awarded by High Court and restored that of Trial Court---Plea raised by accused was that the conviction originally recorded by Trial Court as well enhanced by High Court was based on no evidence, therefore, judgment of acquittal should have been recorded---Validity---At the time of passing judgment under review, the Bench of Supreme Court, while taking into consideration and that too without discussing implication of a letter, did not consider other material available on record---Prosecution was duty bound to establish the case but if the prosecution evidence produced before Trial Court and on the basis of which the sentence had been enhanced by High Court, the court should have taken into consideration all evidence available on record---Supreme Court recalled its earlier judgment and appeal filed by accused would be deemed to have been pending for rehearing of the same---Petition was allowed.

Barkat Ali v. Arshad Ali and 2 others 1994 SCMR 492 rel.

S.M. Zafar, Senior Advocate Supreme Court for Petitioner (in Criminal R.P. No. 55 of 2009).

Niaz Ahmed Rathore, Advocate Supreme Court/P.-G., A.N.F. for the State (in Criminal R.P. No. 55 of 2009).

Nemo for Respondents (in both cases).

Date of hearing: 24th November, 2009.

2012 S C M R 123

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Anwar Zaheer Jamali, JJ

FAREED AHMED JANJUA---Appellant

Versus

PUNJAB SMALL INDUSTRIES CORPORATION and others---Respondents

Civil Appeal No. 962 of 2009, decided on 7th February, 2011.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 26-3-2009 passed in W.P. No.1018 of 2000).

Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S. 151---Constitutional Petition dismissed for non-prosecution by High Court---Restoration---Administration of justice---Affidavit---Constitutional petition was dismissed by High Court for non-prosecution as counsel for petitioner was absent due to his illness---Validity---Courts were generally inclined to have the lis before it decided on merits---Admission of appellant's constitutional petition to full hearing indicated that prima facie he had a good case---Factual aspects of the grounds raised by appellant in applications for restoration had not been countered factually by respondents---Ordinarily affidavit of a counsel about his illness, in absence of counter affidavit was to be taken on its face value and accepted---High Court did not at any stage, require the counsel to support his ground of illness by a medical certificate---Explanation furnished by the counsel of his absence on account of indisposition had to be accepted---Supreme Court set aside the order passed by High Court and restored the petition filed by appellant---Appeal was allowed.

Zeenit Textile Mills Ltd. v. Government of Punjab 1987 SCMR 770; Shaukat Hussain v. Qaisarah Begum 1988 SCMR 263 and Ghulam Mustafa Shah v. Haji 1993 SCMR 256 ref.

Sana Ullah Zahid, Advocate Supreme Court for Appellant.

Mian Abdul Rauf, Advocate Supreme Court for Respondents Nos.1 to 3.

Nemo for Respondent No.4.

Date of hearing: 7th February, 2011.

2012 S C M R 126

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

SECRETARY SCHOOL OF EDUCATION and others---Petitioners

Versus

Rana ARSHAD KHAN and others---Respondents

Constitutional Petitions Nos. 330-L, 469-L to 505-L, 510 to 525-L, 534-L to 541-L and 552-L of 2011, decided on 29th June, 2011.

(Against the judgment dated 22-12-2010 passed by the Punjab Service Tribunal, Lahore in Appeals Nos. 1933, 1934, 1962, 1937, 1938, 1940, 1941, 1942, 1943, 1944, 1947, 1948, 1949, 1950, 1951, 1952, 1954, 1955, 1956, 1958, 1959, 1961, 1962, 1963, 1964, 1965, 1967, 1968, 1970, 2066, 2067 of 2009 and 62 of 2010, 355, 1048, 1413, 1414, 1864 of 2010, 1945, 1960, 1966, 1969 of 2009, 356, 1406, 1407, 1409, 1410, 1411, 1412, 1810, 1840, 1865, 2471, 1939 of 2009, 2357 of 2010, 1953, 1957, 1946, 2596 of 2009, 637, 979 of 2010, 2472 of 2009 and 1080 of 2010).

Punjab Civil Servants Act (VIII of 1974)---

----Ss. 2(g-a)(g-b), 5 & 8---Punjab Service Tribunals Act (IX of 1974), S.4--- Constitution of Pakistan, Art. 212(3)--- Promotion--- Working papers regarding appellants' promotion prepared before their retirement from service on attaining age of superannuation---Denial of promotion to appellants due to their retirement---Service Tribunal while accepting appeal directed department to prepare working papers regarding appellants' promotion and place same before Selection Board for consideration--- Validity--- Department had delayed matter of appellants' promotion without any justifiable reason, for which they could not be made to suffer---Appellants' promotion after retirement from service would be pro forma promotion---Supreme Court refused to grant leave to appeal in circumstances.

Dr. Muhammad Amjad and another v. Dr. Israr Ahmed and others 2010 SCMR 1466 rel.

Ahmad Rauf, Additional Advocate-General, Punjab for Petitioners.

Nazir Ahmed Qureshi, Advocate Supreme Court with C.M. Latif, Advocate-on-Record for Respondents.

Respondents in person (in C.Ps. Nos. 502-L, 503-L, 504-L, 515-L, 516-L, 517-L, 518-L, 519-L and 520-L of 2011).

Date of hearing: 29th June, 2011.

2012 S C M R 130

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

RAHIM BAKHSH---Petitioner

Versus

GHULAM NABI---Respondent

Civil Petition No. 577-L of 2005, decided on 10th March, 2011.

(Against the judgment dated 10-3-2005 passed by Lahore High Court, Multan Bench in C.R. No.128-D of 2000).

Specific Relief Act (I of 1877)---

----S.39---Supreme Court Rules, 1980, O.XXX, R.6---Constitution of Pakistan, Art. 185(3)--- Cancellation of document--- Compromise between the parties---Jurisdiction of High Court to give effect to the compromise---Scope---After the appeal before Supreme Court was dismissed for non-prosecution, the parties filed an application under O.XXX, R. 6 of Supreme Court Rules, 1980, for disposing of the appeal in terms of the compromise---Supreme Court disposed of the application with the direction to parties to present the compromise before the court, whose decree was assailed---High Court in the light of direction passed by Supreme Court, could validily seek and requisition the record of the appeal which was decided earlier and had been consigned to record room---Plea raised by petitioner was that he did not enter into any compromise nor the compromise could be given effect in the appeal already decided---Validity---Plea of petitioner was belied by the order of Supreme Court passed in application under O. XXX, R. 6 of Supreme Court Rules, 1980, as the compromise, which was in writing, was brought on record along with the application--- At the time of deciding of the application, an advocate was marked present on behalf of the petitioner, who never objected or questioned execution or validity of agreement/compromise and it was conspicuously mentioned before Supreme Court that the parties had reached an agreement and if the same was granted, litigation between the parties would come to an end---Supreme Court, in a peculiar situation had advised the parties to approach the court whose decree was desired to be amended/modified---Petitioner was well aware of the agreement/compromise but he never approached any court for seeking cancellation of the document under the provisions of S.39 of Specific Relief Act, 1877, on any ground whatsoever---Resiling from the agreement / compromise by petitioner was a clear case of oblique motive and an afterthought with an object to cause prejudice to respondent, who had been running from pillar to post to seek fruits thereof---When in supervisory jurisdiction of High Court the matter had come before it, in order to give effect to the compromise, High Court could validly seek and requisition the record of appeal already decided and as per direction of Supreme Court could give effect thereto---Neither any injustice was caused to petitioner nor judgment passed by High Court suffered from any legal or factual infirmity calling for interference---Leave to appeal was refused.

Syed Shamim Abbas Bokhari, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

Zahid Hussain Khan, Advocate Supreme Court for Respondent.

Date of hearing: 10th March, 2011.

2012 S C M R 133

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ

E.D.O. (EDU.) BAHAWALNAGAR and another---Petitioners

Versus

MUHAMMAD AKRAM---Respondent

Civil Petition No. 19-L of 2010, decided on 9th September, 2010.

(Against the judgment dated 11-9-2009 passed by the Punjab Service Tribunal, Lahore in Appeal No. 3226 of 2006).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4--- Constitution of Pakistan, Art. 212(3)--- Dismissal from service---Appellant's appointment letter issued by District Education Officer (EDO) being bogus, charge of---Reinstatement of appellant in service by Service Tribunal after finding order passed against him to be on a cyclostyle form---Validity---Record did not show appellant's appointment to have been made by competent recruitment committee---District Education Officer had been compulsory retired from service for having issued numerous bogus appointment letters---Service Tribunal had not dealt with factual determination of Department that appellant's appointment letter was bogus--- Department had appropriately dealt with such bogus letters through a standard order---Supreme Court set aside impugned order of Service Tribunal in circumstances.

Imtiaz Ahmed Kaifi, Additional A.-G. and Qasim Ali, Dy. D.O. Manchanabad, Bahawalnagar for Petitioners.

Qazi Misbah-ul-Hassan, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondent.

Date of hearing: 9th September, 2010.

2012 S C M R 136

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Jawwad S. Khawaja, JJ

GUL MUHAMMAD---Appellant

Versus

M.C.B. BANK LIMITED through President and others---Respondents

Civil Appeals Nos. 196 and 197 of 2009, decided on 20th October, 2010.

(Appeal against the judgment of Islamabad High Court Islamabad dated 1-12-2008 passed in Labour Appeal No.22 of 2005).

Limitation Act (IX of 1908)---

----S. 5---Limitation--- Condonation of delay--- Delayed receipt of judgment---Appeal filed by appellant was barred by 21 days and condonation of delay was sought on the ground that copy of judgment was transmitted to appellant 15 days after announcement of the judgment--- Validity--- Judgment was announced by High Court on 1-12-2008 in open court and it was not the case of appellant that either it was not represented at the time of announcement of the judgment or was unaware of the same until it had received a copy of judgment on 16-12-2008---Time of limitation to impugn a judgment started running from the date the same was announced---In case of delay, the parties had to expressly state and show that they were unaware of the pronouncement of the judgment---Supreme Court declined to condone the delay in circumstances--- Appeal was dismissed.

Abdul Rehman Siddiqui, Advocate Supreme Court for Appellant (in C.A. 196 of 2009).

Abdul Rehman Siddiqui, Advocate Supreme Court for Respondents (in C.A. 197 of 2009).

Mian Abdul Rauf, Advocate Supreme Court for Appellant (in C.A. 197 of 2009).

Mian Abdul Rauf, Advocate Supreme Court for Respondents (in C.A. 196 of 2009).

Date of hearing: 20th October, 2010.

2012 S C M R 138

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Muhammad Sair Ali, JJ

MUHAMMAD ASLAM---Petitioner

Versus

NAZAR KHAN and another---Respondents

Criminal Petition No. 559-L of 2011, decided on 17th August, 2011.

(On appeal from the judgment dated 4-7-2011 passed by Lahore High Court, Lahore in Criminal Miscellaneous 7368-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(5)--- Penal Code (XLV of 1860), Ss. 302/324/337-F(ii)/ 337-A(i)/34---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, attempt to Qatl-e-amd, other hurts and Shajjah-e-Khafifa---Bail, cancellation of---Trial near completion---Statutory delay in trial---Only role attributed to accused was that of raising "lalkara" and due to delay in conclusion of trial High Court released the accused on bail---Complainant sought cancellation of bail on the ground that trial was at final stage and High Court should not have released the accused on bail---Validity---Delay of more than six years in conclusion of trial was a tenable ground which prevailed with High Court---Plea raised by complainant was the rule of propriety rather than a legal bar---Each case had its own distinct facts particularly in cases of bail---Discretion exercised by High Court in granting bail to accused was not arbitrary or against settled law---Supreme Court declined to interfere in the bail allowed to accused by High Court---Leave to appeal was refused.

Rehmatullah v. State 2011 SCMR 1332; Muhammad Sadik v. State 1980 SCMR 203; Shahadat Ali v. Mubarik Shah PLD 1986 SC 347 and Muhammad Siddiqui v. State PLD 1994 SC 93 ref.

Naveed Inayat Malik, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional P.-G. and Riaz, S.-I. for the State.

Date of hearing: 17th August, 2011.

2012 S C M R 140

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry C.J., Tariq Parvez and Amir Hani Muslim, JJ

JAVED IQBAL and another---Appellants

Versus

THE STATE---Respondent

Criminal M.A. No. 221 of 2011 and Criminal Appeal No. 600 of 2005, decided on 13th June, 2011.

(On appeal against the judgment dated 6-3-2002 passed by the Lahore High Court, Lahore in Criminal Appeal No. 792 of 2000 and M.R. No. 338-T of 1999).

(a) Penal Code (XLV of 1860)---

----S. 365-A---Abduction for ransom---Reappraisal of evidence---Quantum of sentence---Ransom, receipt---No recovery from accused---Conviction and sentence of 14 years of imprisonment, awarded by Trial Court to accused was maintained by High Court---Plea raised by accused was that no recovery was either effected from him or on his pointation---Validity---Plea raised by accused was insignificant as it was not the role but it was the goal of abduction for ransom which mattered---Presence of accused at the time when all accused persons picked the ransom near letter box at railway station was sufficient to connect him with the offence of abduction---Accused was also found in the company of co-accused at the time when deceased was abducted on motorcycle---Reasoning for award of sentence to accused by High Court and Trial Court were sound and did not warrant interference---Once the offence was proved , accused should have been awarded sentence of death but as legal heirs of deceased had entered into compromise with co-accused and the compromise had been accepted, therefore, Supreme Court enhanced the sentence of 14 years imprisonment to imprisonment for life with forfeiture of all moveable and immovable properties---Appeal was dismissed.

Maulana Nawab-ul-Hassan v. The State 2003 SCMR 658 ref.

(b) Penal Code (XLV of 1860)---

----S. 365-A--- Abduction for ransom--- Sentence--- Principle--- If prosecution proves its case, the court is bound to award death penalty and in case of extenuating circumstances, life imprisonment coupled with forfeiture of property but it cannot award a sentence lesser than the sentence provided in law.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellants (on State expenses).

M. Akram Ch., Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Appellant No.1.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellant No.2.

Irfan Malik, Additional P.-G. for the State.

M. Siddiqui Baloch, Advocate Supreme Court for the Complainant.

Date of hearing: 13th June, 2011.

2012 S C M R 145

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

HAMID HUSSAIN and others---Appellants

Versus

SECRETARY HEALTH, GOVERNMENT OF PUNJAB, and others---Respondents

Civil Appeal No. 742 of 2010, decided on 3rd December, 2010.

(On appeal against the judgment dated 10-5-2010 passed by Lahore High Court, Rawalpindi Bench in W.P. No.1552 of 2009).

Supreme Court Rules, 1980---

----O.XXVI---Review of Supreme Court judgment---Judgment passed in subsequent case---Seeking of adjournment---Appellant sought adjournment to see judgment passed in similar case pending before another Bench of the Supreme Court--- Validity--- Supreme Court declined to adjourn the appeal any further with the observation that if judgment in pending matter made out a case for appellants of that case, appellant would have the option to have the appeal resurrected by filing a review petition to which respondents had no objection---Appeal disposed of accordingly.

Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab, Lahore and others PLD 2010 SC 841 ref.

Manzoor Hussain Mughal, Advocate Supreme Court for Appellants.

Mian Abdul Rauf, Advocate Supreme Court for Respondents.

Date of hearing: 3rd December, 2010.

2012 S C M R 147

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Muhammad Sair Ali and Tariq Parvez, JJ

MUHAMMAD ASLAM (DECEASED) through L.Rs. and others---Petitioners

Versus

Molvi MUHAMMAD ISHAQ (DECEASED) through L.Rs.---Respondents

Civil Petitions Nos. 692 and 693 of 2010, decided on 14th September, 2011.

(On appeal from the judgment of the Peshawar High Court, Circuit Bench, Abbottabad, dated 8-3-2010 passed in 342 and 341 of 2009 respectively).

Civil Procedure Code (V of 1908)---

----S. 12(2)---Judgment, setting aside of---Forum---Judgments and decrees passed by Trial Court were modified by High Court but petitioner filed application under S. 12(2), C.P.C. before Trial Court for setting aside the same---Validity---Applications under S. 12(2), C.P.C. for setting aside judgments and decrees in question should have been filed before High Court as it passed final decrees in view of the modification made by it in its review jurisdiction---Resolution of question arising in judgments in question were interconnected with those raised in applications under S. 12(2), C.P.C.---Supreme Court directed that all matters should be decided finally by High Court together---Only the High Court could entertain application under S.12(2), C.P.C.---Supreme Court set aside judgments and decrees passed by High Court and remanded the matter to High Court for decision afresh---Appeal was allowed.

Abdul Qayyum v. Muhammad Aslam PLD 1979 SC 867 ref.

Abdul Latif Khan, Advocate Supreme Court with Arshad Ali Ch. Advocate-on-Record for Petitioners (in both cases).

Gulzarin Kiyani, Senior Advocate Supreme Court for Respondents (in both cases).

Date of hearing: 14th September, 2011.

2012 S C M R 152

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Jawwad S. Khawaja and Sarmad Jalal Osmany, JJ

MASOOD AHMED BHATTI and others---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary, M/O. Information Technology and Telecommunication and others---Respondents

Civil Appeals Nos. 239 to 241 of 2011, decided on 7th October, 2011.

(Against the consolidated judgment of the High Court of Sindh, Karachi dated 3-6-2010 passed in C.Ps. Nos. D-520 of 2009, D-2414 of 2007 and D-827 of 2007 respectively).

Pakistan Telecommunication Corporation (Reorganization) Act (XVII of 1996)---

----Ss. 35(1)(2) proviso & 36(1) proviso---Status of employees---Terms and conditions of service---Appellant was employed in service by Federal Government in Telephone and Telegraph Department, which Department was converted into Pakistan Telecommunication Corporation and ultimately became Pakistan Telecommunication Company Limited (PTCL)---Grievance of appellant, was that High Court declined to implement judgment passed by Service Tribunal in his favour, on the ground that he was employee of Pakistan Telecommunication Company Limited and his service was not governed by statutory rules---Plea raised by employer company was that Federal Government had guaranteed existing terms and conditions of service and rights including pensionary benefits of employees who stood transferred from the Corporation to the company---Validity---At the moment of transition when appellant ceased to remain the employee of the Corporation and became employee of the Company, he admittedly was governed by rules and regulations which had been protected by Pakistan Telecommunication (Reorganization) Act, 1996, therefore, said rules by definition were statutory rules---Corporation could make beneficial rules in relation to its employees which were in addition to the rules of employment prevailing on 1-1-1996, however by virtue of proviso to S. 35(2) of Pakistan Telecommunication (Reorganization) Act, 1996, the company had no power to "vary the terms and conditions of service" of its employees who were previously employees of the Corporation, "to their disadvantage"---Even Federal Government was debarred by virtue of S. 35 of Pakistan Telecommunication (Reorganization) Act, 1996, from varying such terms and conditions of service to the disadvantage of appellant---Guarantee did not change the nature or status of the company as the principal object required under the law was to adhere to protected terms and conditions of service of transferred employees such as the appellant---Only effect of guarantee was to ensure that in the event the company would become incapable of fulfilling its obligations as to pensionary or other benefits, for reasons such as bankruptcy etc., the employees did not suffer from such event of default---Distinction was drawn between the employees who stood transferred to the company by virtue of S. 35 of Pakistan Telecommunication (Reorganization) Act, 1996, and Vesting Order, on one hand and those employees who joined the company after 1-1-1996---Protection under Federal Government guarantee was not available to latter category whose terms and conditions of service could be contractual in nature and would, therefore, be non-statutory---Appellant was entitled to implementation of judgment of Service Tribunal, therefore, Supreme Court set aside the judgment passed by High Court and remaded the matter for implementation of the judgment---Appeal was allowed.

Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Raziuddin v. Chairman, PIAC PLD 1992 SC 531; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602; Ejaz Ali Bughti v. P.T.C.L. and others 2011 SCMR 333 = 2010 PLC (C.S.) 899 and Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681 ref.

Appellants in person (in C.As. 239 and 240 of 2011).

Abdur Rahim Bhatti, Advocate Supreme Court along with Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in C.A. 241 of 2011).

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondents (PTCL in all cases).

Date of hearing: 11th August, 2011.

2012 S C M R 165

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Amir Hani Muslim, JJ

DIRECTOR-GENERAL, INTELLIGENCE BUREAU, ISLAMABAD---Appellant

Versus

MUHAMMAD JAVED and others---Respondents

Civil Appeal No. 180-K of 2010, decided on 21st July, 2011.

(On appeal from judgment of Federal Service Tribunal, Karachi dated 30-3-2010 passed in Appeal No. 56(K) (CS) of 2008).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 5---Penal Code (XLV of 1860), Ss. 302 & 310---Criminal Procedure Code (V of 1898), S. 345---Constitution of Pakistan, Art.212(3)---Reinstatement in service---Civil servant was acquitted from murder charge, on the basis of compromise effected upon payment of Diyat---Civil servant was dismissed from service as he remained absent from duty during the period in detention but Service Tribunal allowed the appeal and reinstated him in service---Plea raised by authorities was that payment of Diyat was equated with conviction in crime---Validity---Period of absence of civil servant was treated by competent authority as extraordinary leave, therefore, ground of his illegal absence was no more available for awarding any punishment to him---Offence was lawfully compromised and disposed of whereby civil servant was acquitted---Such acquittal of civil servant could not be taken as his disqualification, coming in the way of his reinstatement in service---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Appeal was dismissed.

Ashiq Raza, Deputy Attorney-General and Abdul Saeed Khan Ghori, Advocate-on-Record for Appellant.

Abdul Latif Ansari, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondent No.1.

Respondents Nos. 2 and 3, Pro forma Respondents.

Date of hearing: 21st July, 2011.

2012 S C M R 167

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

THE STATE and another---Petitioners

Versus

Rana NISAR AHMAD and another---Respondents

Cr.R.P. No. 11-L of 2009 in Cr. P. No. 337-L of 2008 and Cr. R.P. No. 16-L of 2009 in J.P. 226 of 2008, decided on 9th August, 2011.

(On review from the judgment of this court dated 6-5-2009 passed in Cr. P. No. 337-L of 2008 and J.P. No. 226 of 2008).

(a) Control of Narcotic Substances Act (XXV of 1997)---

----S. 39---Forfeiture of assets---Limitation---Though no time period has been prescribed under S.39 of Control of Narcotic Substances Act, 1997, still law always insists initiation of application for forfeiture of assets within a reasonable time---Supreme Court assessed reasonable time to be between 90 to 120 days.

(b) Control of Narcotic Substances Act (XXV of 1997)---

----S. 39---Constitution of Pakistan, Art. 188---Review of Supreme Court judgment--- Assets purchased from drug money---Determination---Forfeiture of assets---Application for forfeiture of assets of accused (since dead) was filed about three years after the judgment was announced by Trial Court and application was dismissed as the assets were not proved by prosecution to have been purchased by drug money---Supreme Court declined to interfere in the judgment passed by High Court---Validity---State was supposed to remain vigilant in respect of proceedings of the court and it should also know the law on the subject---If prosecution was of the opinion that properties had been acquired by the convict (since dead) out of drug money same should have furnished at least prima facie evidence about it at the relevant time with promptitude but that had not been done and in the meanwhile matter had come before Supreme Court and judgment under review was passed---Supreme Court declined to interfere in the judgment passed by it earlier---Review was dismissed.

A.D. Naseem, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Petitioners (in Cr. R.P. No. 11-L of 2009).

Dr. A. Basit, Senior Advocate Supreme Court for Petitioners (in Cr. R. P. No.16-L of 2009).

Dr. A. Basit, Senior Advocate Supreme Court for Respondents (in Cr. R.P. No. 11-L of 2009).

Date of hearing: 9th August, 2011.

2012 S C M R 169

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ghulam Rabbani, JJ

FEDERATION OF PAKISTAN through Director-General of Intelligence and Investigation FBR, Karachi---Petitioner

Versus

MUHAMMAD JAMAL RIZVI and others---Respondents

Civil Petition No. 805-K of 2010, decided on 5th July, 2011.

(On appeal from the Judgment dated 13-10-2010 in C.P. No.D-2280 of 2010 passed by the High Court of Sindh Karachi).

Customs Act (IV of 1969)---

----S.171---Constitution of Pakistan, Art. 185(3)---Smuggled vehicle---Proof---Authorities detained vehicle of respondent on the plea of it being smuggled one---High Court in exercise of constitutional jurisdiction set aside the detention order---Validity---Vehicle in question was imported by Consulate of a foreign country and the same was subsequently sold to a company in Pakistan---Permission of sale of the vehicle was accorded by Government of Pakistan and in pursuance thereof, a sale certificate was also issued by the Consulate in favour of purchaser company---Customs authorities also issued "No Objection Certificate" for sale of vehicle in question and purchaser company deposited in year, 1998, all taxes etc. with Excise and Taxation department---Purchaser company sold the vehicle which having changed different names finally came to the lot of respondent, who got it transferred in his name---In the "No Objection Certificate" issued by Customs authorities, it was stated that the vehicle in question was used in Pakistan for over five years as such no customs duty, sales tax and other surcharge were leviable in respect thereof---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Akhtar Ali Mehmoodi, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 5th July, 2011.

2012 S C M R 172

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ

SHAHZAD TANVEER---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 386 of 2007, decided on 14th October, 2009.

(On appeal from the judgment dated 25-1-2007 of the Lahore High Court, Lahore passed in Cr. A. No. 367-J of 2001).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185 (3)---Qatl-e-amd---Leave to appeal was granted by Supreme Court for reappraisal of evidence for safe administration of criminal justice.

(b) Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-e-amd--- Reappraisal of evidence--- Benefit of doubt---Presence of prosecution witnesses---Proof---Father, mother and son faced trial for murder of a lady and at the conclusion of trial, father and mother were acquitted while the son was convicted and sentenced to death, which was maintained by High Court---Validity---None of the accused, while going to commit a capital offence, carried any weapon except a small kitchen knife, the total length and width of which was "6-1/2 inch x 1/2 inch" including its handle---None of the prosecution witnesses physically intervened in order to save the victim or apprehend accused at the spot---Neither clothes of any prosecution witness got stained with blood nor had they received any scratch on their persons, thus presence of prosecution witnesses at the time of occurrence was doubtful---According to prosecution occurrence had taken place at 7-30 a.m. and dead body of deceased was removed to the hospital immediately after occurrence at 10 a.m., which formed basis of formal F.I.R., whereas postmortem examination was conducted at 5-30 p.m.---Postmortem report did not bear F.I.R. number nor it bore signatures of doctor who appeared as prosecution witness, thus such omission on the part of investigating officer suggested that F.I.R. had been lodged much after the postmortem examination---Medical evidence did not fully support prosecution case with reference to time of occurrence and weapon used in the crime---Prosecution failed to prove its case against accused beyond reasonable doubt, therefore, Supreme Court set aside the conviction and sentence awarded to him by courts below and he was acquitted---Appeal was allowed.

(c) Medical jurisprudence---

----Time of death---Determination---Rigor mortis started after two hours of the death in the month of September and it was completed in 12 hours---Rigor mortis had been completed in the dead body, therefore, time between death and post mortem might be 14 hours.

Mian Abdul Rauf, Advocate Supreme Court and M. Javaid Aziz Sindhu, Advocate Supreme Court for Appellant.

Raja Shahid Mehmood Abbasi, D.P.-G. Punjab for the State.

Date of hearing: 14th October, 2009.

2012 S C M R 177

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Amir Hani Muslim, JJ

Mst. KULSOOM NAZ---Petitioner

Versus

Dr. ITIFAQ HUSSAIN and another---Respondents

Civil Miscellaneous Application No. 219-K of 2011 and Civil Appeal No. 71-K of 2011, decided on 10th November, 2011.

(Against the Judgment dated 4-2-2011, passed by the High Court of Sindh, Karachi, Hyderabad Circuit Bench in C.P. No. S-93 of 2009).

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

----S.15---Ejectment of tenant---Wilful default---Proof---Principle of acquisition/waiver--- Applicability--- Co-owner of premises sought ejectment of tenant on the ground that he failed to pay his share of rent from October, 1995 to 2002---Rent Controller and Lower Appellate Court concurrently declined to pass eviction order against tenant as default in payment of monthly rent was not proved­---High Court, in exercise of constitutional jurisdiction, set aside concurrent judgments and passed eviction order---Validity---Landlord had been withdrawing rent from the office of Rent Controller regularly since, 1996 and did not allege default, if any, committed by tenant and for the first time filed rent case in year, 2003---Landlord, despite having knowledge of deposit of rent for the month of October, 1995, in January, 1996, did not raise any objection and instead of filing ejectment proceedings on the ground of default filed case for enhancement of rent and for the first time filed ejectment application after seven years---Landlord could not claim ejectment on such ground of default as he had waived his right in that respect on the principle of acquisition/waiver by his conduct---Supreme Court set aside the order passed by High Court and restored eviction orders passed by two courts below---Appeal was allowed.

Badruddin v. Muhammad Yousuf 1994 SCMR 1900 and Haji Qasim through Legal Heirs v. Syed Rahim Shah 1999 MLD 1014 distinguished.

Joseph Dean v. Mrs. Miratur Ruqayya 1993 CLC 896 ref.

Rafique Ahmed, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Respondent No.1 in person.

Nemo for Respondent No.2.

Date of hearing: 10th November, 2011.

2012 S C M R 181

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ghulam Rabbani, JJ

PAKISTAN RAILWAYS through G.M. and another---Petitioners

Versus

ABDUL FATEH and another---Respondents

Civil Petition No. 66-K of 2011, decided on 9th June, 2011.

(On appeal from the judgment dated 11-10-2001 in Appeal No.127(K)(CS) of 2001 passed by the Service Tribunal, Karachi Bench).

(a) Constitution of Pakistan---

----Art. 212(3)---Petition for leave to appeal---Limitation---Copy of order under appeal was dispatched to petitioner vide letter dated 23-11-2010 of Registrar of Service Tribunal which was received by petitioner on 29-11-2010, as recorded in departmental record and petition for leave to appeal was filed on 26-1-2011, i.e. before expiry of statutory period of 60 days---Petition for leave to appeal was filed within time.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Reinstatement in service---Anonymous complaint---Multiple inquiries---Civil servant was dismissed from service and his departmental appeal was also dismissed---Service Tribunal set aside the order passed by authorities on the ground that since first Inquiry Officer did not prove the guilt against civil servant, there was no reason for holding four more inquiries on the same charge, and major punishment was awarded on an anonymous complaint without providing the civil servant an opportunity of cross examining complainant or any witness, which was not warranted under the law---Validity---Authorities failed to bring anything to the notice of Supreme Court to dislodge the view so expressed by Service Tribunal---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

Sanaullah Noor Ghouri, Advocate Supreme Court and Abdul Saeed Khan Ghouri, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 9th June, 2011.

2012 S C M R 184

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Asif Saeed Khan Khosa, JJ

ALLAH DITTA---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 160-L of 2011, decided on 17th March, 2011.

(On appeal from the order dated 1-2-2011 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 1220-B of 2011).

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 161---Penal Code (XLV of 1860), Ss. 302/109/34---Qatl-e-amd, abetment and common intention---Bail, grant of---Extra-judicial confession---Supplementary statement---Wajtakkar witnesses---Accused was implicated on the basis of supplementary statement recorded sixteen days after registration of F.I.R.-­--Evidence relied upon by prosecution against accused was extra judicial confession and statements of Wajtakkar witnesses---Validity---High Court had rightly opined that evidence relied upon by prosecution against accused was a weak type of evidence and evidentiary value of the same would be seen at the time of trial---Investigation of the case had already been finalized and continued custody of accused in jail would not serve any beneficial purpose at such stage---Bail was allowed.

Zahid Hussain Khan, Advocate Supreme Court for Petitioner.

Asjad Javed Ghural, Additional Prosecutor-General, Punjab with Hameedullah, S.-I. for the State.

C.M. Lateef, Advocate-on-Record for the Complainant.

Date of hearing: 17th March, 2011.

2012 S C M R 186

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmad and Ghulam Rabbani, JJ

HIGHER EDUCATION COMMISSION through Project Manager---Petitioner

Versus

SAJID ANWAR and others---Respondents

Civil Petitions Nos. 574 and 575 of 2010, decided on 19th April, 2011.

(On appeal from the order dated 20-1-2010 in W.Ps. Nos. 3680 and 3681 of 2009 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

(a) Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----S. 2(1)---Constitution of Pakistan, Arts. 14, 15 & 185(3)---Exit Control---Watch list---Dignity of a man---Right of movement---Respondents completed their Masters programme from a foreign country under an agreement with Higher Education Commission of Pakistan---Respondents were going abroad, when authorities off loaded them on the recommendations of Higher Education Commission, as their names had been put on watch list---High Court in exercise of constitutional jurisdiction directed the authorities to remove the name of respondents from watch list and allow them to proceed abroad---Validity---In pursuance of an agreement supported by a bond, the competent authority, who awarded scholarships to respondents for higher education outside the country subject to the conditions laid down therein, at the best could have enforced the agreement or bond but had no jurisdiction to deny fundamental rights of respondents enshrined under Articles 14 and 15 of the Constitution---In absence of any restriction imposed by law as it had been envisaged under Articles 14 and 15 of the Constitution, the Authorities had acted illegally and denied constitutional rights of respondents---If Authorities had any grievance, they could have approached court of law and enforced the agreements of bond or could claim any relief under civil litigation---No criminal action torturing educated persons, to have them off loaded at the instance of Higher Education Commission and allegedly keeping them in lockup for several hours, could be justified---Despite knowing that their action was illegal, authorities had assailed the judgment passed by High Court for relief to grant of leave to appeal---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Pakistan Muslim League (N) through Kh. Asif and others v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2007 SC 642 ref.

(b) Constitution of Pakistan---

----Part-II, Chapter 1 [Arts. 8 to 28]---Fundamental rights---Scope---Fundamental rights are subject to law and reasonable restrictions imposed by law.

Kh. Azhar Rasheed, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record with Asif Kaleem, Manager Project HEC for Petitioner.

Nemo for Respondents.

Date of hearing: 19th April, 2010.

2012 S C M R 193

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJALLAH WASAYA and others---Petitioners

Versus

SIKANDAR HAYAT and others---Respondents

Criminal Petition No. 188-L of 2011, decided on 13th May, 2011.

(On appeal from judgment dated 23-2-2011 of the Lahore High Court, Multan Bench, passed in Criminal Miscellaneous No. 1391-M of 2010).

Criminal Procedure Code (V of 1898)---

----Ss. 30 & 200---Penal Code (XLV of 1860), S. 336---Constitution of Pakistan, Art. 185(3)---Itlaf-i-salahiyyat-i-udw---Private complaint---Magistrate, jurisdiction of---Non-recording of statement of complainant---Effect---Plea raised by accused was that Trial Court being Magistrate could not proceed with the trial of offence falling within the mischief of S. 336, P.P.C.---Validity---Trial Court did not record statement of complainant at the first instance, which was a procedural irregularity warranting interference and it did not warrant dismissal of complaint---High Court had rightly held that in terms of S.30, Cr.P.C. a Magistrate (First-Class) could try all offences except those punishable with death---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Zahid Hussain Khan, Advocate Supreme Court for Petitioners.

Asjad Javed Ghural, Additional P.-G for the State

Date of hearing: 13th May, 2011.

2012 S C M R 195

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Amir Hani Muslim, JJ

SAJJAD HUSSAIN---Appellant

Versus

SECRETARY, MINISTRY OF RAILWAYS, ISLAMABAD and others---Respondents

Civil Appeal No. 224-K of 2010, decided on 9th August, 2011.

(On appeal from the order dated 5-7-2010 of the Federal Service Tribunal, Islamabad passed in Appeal No.21(K)(CS) of 2010).

Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal before Service Tribunal---Limitation---Time barred departmental representation---Service Tribunal dismissed the appeal filed by civil servant as the same was barred by limitation---Validity---Departmental appeal filed by civil servant was barred by time, therefore, even if the appeal filed before Service Tribunal was in time, no relief could be granted to him---Judgment passed by Service Tribunal was reasonable and proceeded on cogent ground---Civil servant was unable to advert to jurisdictional error or legal infirmity which could justify interference---Appeal was dismissed.

Muhammad Aslam v. WAPDA and others 2007 SCMR 513 and Zia-ur-Rehman v. Divisional Superintendent Postal Services, Abbottabad and others 2009 SCMR 1121 rel.

Sanaullah Noor Ghouri, Advocate Supreme Court and Abdul Saeed Khan Ghouri, Advocate-on-Record for Appellant

Munib Ahmed Khan, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondents

Date of hearing: 9th August, 2011.

2012 S C M R 196

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui and Amir Hani Muslim, JJ

Syed MAHBOOB SHAH---Appellant

Versus

TEHSIL NAZIM, PISHIN and another---Respondents

Civil Appeal No. 1285 of 2008, decided on 13th October, 2011.

(On appeal from the judgment dated 5-9-2008 of the Baluchsitan High Court, Quetta passed in Civil Revision No. 267 of 2003).

Civil Procedure Code (V of 1908)---

----O.XXVI, R.9---Specific Relief Act (I of 1877), S. 42---Declaration of title---Demarcation of land---Local inspection---Appointment of Commission---Dispute between the parties could be resolved by demarcation of land owned by plaintiff---Was yet to be established that disputed land formed part of a specific Killa number---Local Commission was appointed by Trial Court, who submitted his report but the same was set aside as it did not resolve the dispute regarding demarcation of land---Validity---Courts below did not properly decide the relevant issue touching real contention between the parties---Supreme Court set aside the findings of three courts below and remanded the matter to Trial Court for a fresh decision on all issues after getting disputed portion of land demarcated and directed that District Coordination Officer would demarcate the land in collaboration with survey department---Appeal was allowed.

Tariq Mehmood, Senior Advocate Supreme Court for Appellant.

Ajmal Khan Kasi, Advocate Supreme Court for Respondents.

Date of hearing: 25th April, 2011.

2012 S C M R 199

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Jawwad S. Khawaja, JJ

ABDUL GHAFOOR and others---Petitioners

Versus

ABBAS ALI and others---Respondents

Civil Petitions Nos. 1097 and 1199-L of 2010, decided on 2nd May, 2011.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 22-4-2010 passed in W.P. No.3788 of 2010).

West Pakistan Land Revenue Rules, 1968---

----R. 17---Punjab Board of Revenue Notification dated 22-10-2007, clause 8(a)---Lambardar---Grant of land---Words joining village/ adjoining villages---Connotation and scope---Respondent Lambardar was allotted land in another village as no State land was available in the village of his appointment---Appellant assailed the allotment on the ground that the land had already been allotted to him, resultantly allotment was cancelled but High Court while interpreting words "joining village/adjoining villages" in clause 8(a) of Notification dated 17-1-2006, held that State land in any village in the Tehsil could be allotted to Lambardar---Validity---No distinction could be drawn between "joining and adjoining" and word "joining village" was superfluous---"Joining" or "adjoining" village or villages were those which were physically contiguous to and share a common border with village of respondent Lambardar and would not include village or villages which were not physically connected with village of Lambardar---Village, where land was allotted to respondent, was located not contiguous to village where respondent had been appointed as Lambardar---Land in question did not fall within scope of clause 8(a) of Notification dated 22-10-2007 and High Court had fallen in error in allowing petition filed by respondent and declaring the grant void---Supreme Court set aside the judgment passed by High Court and restored that of Board of Revenue---Appeal was allowed.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioners (in C.P. No. 1097 of 2010).

Mudassar Khalid Abbassi, Additional A.-G., Punjab for Respondents Nos. 2 and 3 (in C.P. No. 1097 of 2010)

Mudassar Khalid Abbassi, Additional A.-G., Punjab and Maqbool Ahmed, Secretary (Colonies) for Petitioners (in C.P. No.1199-L of 2010)

Ch. Iqbal Ahmed, Advocate Supreme Court for Respondent No.1 (in both cases)

Muhammad Munir Peracha, Advocate Supreme Court for Respondent No.2 (in C.P. No. 1199-L of 2010).

Date of hearing: 2nd May, 2011.

2012 S C M R 201

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Ghulam Rabbani, JJ

Civil Petition No. 1517 of 2011

WALI MUHAMMAD---Petitioner

Versus

THE STATE through Prosecutor-General, Balochistan and others---Respondents

(On appeal from the judgment dated 25-8-2011 passed by High Court of Balochistan, Quetta, in Constitutional Petition No. 193 of 2011).

Civil Petition No. 246-Q of 2010

WALI MUHAMMAD---Petitioner

Versus

THE STATE and others---Respondents

(On appeal from the judgment dated 21-10-2010 passed by High Court of Balochistan, Quetta, in Constitutional Petition No.642 of 2009).

Civil Petition No. 270-Q of 2010

ALI AHMAD JAN---Petitioner

Versus

PARAS HABIB and others---Respondents

(On appeal from the judgment dated 22-10-2010 passed by High Court of Balochistan, Quetta, in Constitutional Petition No.615 of 2009).

Civil Petitions Nos. 1517 of 2011, 246-Q and 270-Q of 2010, decided on 19th October, 2011.

Anti-Terrorism Act (XXVII of 1997)---

----Ss. 12, 19(14) & 32---Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 4---Control of Narcotic Substances Act (XXV of 1997), S. 45---Constitution of Pakistan, Art. 185(3)---Accused being juvenile charged for committing offence falling under purview of Anti-Terrorism Act, 1997---Jurisdiction of Anti-Terrorism Court to try such accused---Scope---Supreme Court granted leave to appeal to consider questions as to what would be effect of S. 4 of Juvenile Justice System Ordinance, 2000 on S.45 of Control of Narcotic Substances Act, 1997 and S.12 of Anti-Terrorism Act, 1995 or any similar provisions of law conferring exclusive jurisdiction to try offence and whether provisions of S.19(14) of Anti-Terrorism Act, 1997 were wide enough for purposes of treating Special Court as Court of Session for purpose of S.4(2)(a) of Juvenile Justice System Ordinance, 2000 or whether they were merely confined to procedure required to be adopted by Special Court.

Aleem Ashraf v The State 2005 MLD 1028; Ghulam Mustafa Shah v The State PLD 2003 SC 138; Muhammad Din v. Muhammad Jehangir PLD 2004 Lah. 779 and Qamar Shah v. State PLD 2006 Kar 331 ref

Tariq Mehmood, Senior Advocate Supreme Court for Petitioner (in C.P. No. 1517 of 2011).

Abdul Saleem Ansari, Advocate-on-Record for Petitioner (in C.P. No. 246-Q of 2010)

Hadi Shakeel Ahmad, Advocate Supreme Court for Petitioner (in C.P. No. 270-Q of 2010).

Abdul Saleem Ansari, Advocate-on-Record for Respondent No.2 (in C.P. No. 270-Q of 2010)

Hadi Shakeel Ahmad, Advocate Supreme Court for Respondent No.3 (in C.P. No. 1517 of 2011).

Maulvi Anwar-ul-Haq, Attorney-General for Pakistan on Court Notice

Kh. Haris Ahmad, A.-G Punjab and Jawad Hassan, Additional A.-G Punjab on Court call

Date of hearing: 5th October, 2011.

2012 S C M R 207

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Jawwad S. Khawaja and Anwar Zaheer Jamali, JJ

Messrs SANA INDUSTRIES LIMITED---Appellant

Versus

GOVERNMENT OF PAKISTAN and another---Respondents

Civil Appeal No. 1106 of 2005, decided on 21st October, 2011.

(Against the judgment dated 14-12-2004 passed the High Court of Sindh, Karachi in Constitutional Petition No. 920 of 1995).

Companies Profits (Workers' Participation) Act (XII of 1968)---

----S.3 & Sched.---Workers' Participation Fund---5% profits of company for financial year 1-10-1991 to 30-9-1992 paid into such fund on 16-1-1993---Interest on such profit from 1-10­-1991 till its payment on 16-1-1993 claimed by such Fund --­Company's plea that no interest was payable on such profit paid during grace period of nine months after end of a financial year---Validity---According to provisions of S.3(2) of Companies Profits (Workers' Participation) Act, 1968, such profit payable by company stood allocated to and vested in such Fund on first day of the following financial year i.e. 1-10-1992---No legal nexus existed between such grace period and liability of a company to pay interest on delayed payment of such profit---According to scheme given in Schedule of the Act, interest to such Fund would accrue on and from first day of year next succeeding the year in which scheme became applicable to the company---Such scheme became applicable to company on 1-10-1992, thus, company was liable to pay claimed interest.

Dilshad Hussain and another v. Islamic Republic of Pakistan through Secretary, Ministry of Labour, Manpower and Overseas Pakistanis, Islamabad and another 2005 SCMR 530 distinguished.

M. Humayoon, Advocate Supreme Court for Appellant.

Respondents Ex part

Date of hearing: 18th October, 2011.

2012 S C M R 211

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Khilji Arif Hussain, J

Malik AMAN and others---Appellants

Versus

ABDUL AZIZ through LRs.---Respondents

Civil Appeal No. 1118 of 2011 in Civil Miscellaneous Appeal No.132 of 2011, decided on 14th December, 2011.

Constitution of Pakistan---

----Arts 185(2)(d) & 185(3)---Appeal to Supreme Court---Competency---Competency of appeal or petition for leave to appeal---Value of subject matter of dispute being more than Rs. 500,000 and order of civil court having been set aside by appellate court below, appeal before Supreme Court was competent under Article 185(2)(d) of the Constitution subject to all just and legal exceptions.

Gulzarin Kiyani, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-

Record for Appellants

Nemo for Respondents

Date of hearing: 14th December, 2011.

2012 S C M R 212

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Khilji Arif Hussain and Tariq

Parvez, JJ

ABDUL KARIM---Petitioner

Versus

Haji NOOR BADSHAH---Respondent

Civil Petition No. 631 of 2011, decided on 11th October, 2011.

(On appeal from the judgment dated 7-3-2011 of the Peshawar High Court, D.I. Khan Bench passed in C.R. No. 45 of 2007).

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

----O. XIV, R. 1 & XX, R. 5---Constitution of Pakistan, Art 185(3)---Suit for recovery of money on basis of receipt---­Defendant's denial to have executed disputed receipt---Suit decreed by Trial Court upheld in appeal and revision by Appellate Court and High Court respectively---Defendant's objection before Supreme Court was that Trial Court had not framed specific issue about authenticity of disputed receipt---Validity---Defendant was well aware of case filed against him and had led evidence without making an application to amend the issues---No prejudice had been caused to defendant by non-framing of such specific issue---Defendant had not raised such objection in appeal and revision, thus, same could not be allowed to be raised for first time before Supreme Court---Courts below had decreed suit after considering evidence led by parties about validity of disputed receipt---Supreme Court refused to grant leave to appeal in circumstances.

Fazal Muhammad Bhatti v. Saeeda Akhtar 1993 SCMR 4 rel

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

----O. XIV, R. 1 & O. XX, R. 5---Non-framing of a specific issue on a particular question of fact involved in the case---Powers of Trial Court to decide such question on the basis of evidence led by parties in support of their respective stances---Scope.

In the absence of miscarriage of justice due to non-framing of issue on a particular controversy in the matter, like where court did not allow the parties to lead their evidence in support of their contentions for want of issue, if on a question of fact a specific issue required to be framed in the light of the pleadings of the parties was not framed, but parties had led evidence in support of their respective stances, the decision on such question could be rendered in the light of evidence available on record without framing the issued.

Fazal Muhammad Bhatti v. Saeeda Akhtar 1993 SCMR 4 rel

Syed Zafar Ali Shah, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondent

Date of hearing: 11th October, 2011.

2012 S C M R 215

[Supreme Court of Pakistan]

Present: Tasadduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui

and Asif Saeed Khan Khosa, JJ

GHAZANFAR ALI @ PAPPU and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 55 and 56 of 2009, decided on 27th September, 2011.

(On appeal from the judgment dated 9-8-2008 passed by Lahore High Court, Lahore in Criminal Appeals Nos. 716, 317 and 438 of 2003 and Criminal Revision No. 305 of 2003).

(a) Penal Code (XLV of 1860)---

----Ss.302(b)/392/34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-e-amd, robbery and abetment---Identification parade---Proof---False implication--- Accused were convicted under Ss.302(b) and 392, P.P.C. by Trial Court and sentenced to imprisonment for life and ten years, respectively---Plea raised by accused was that they were falsely implicated in the case and they had been shown to prosecution witnesses before identification parade---Validity---Arrest of accused persons was result of incriminating evidence collected through elaborate investigation---Both the accused, next day after their arrest, were sent to judicial lockup and five days later, identification parade was held in lockup/jail premises---Nothing was available in evidence to indicate that accused were at police station where they were shown to witnesses or their photographs were taken---Accused while making such bald allegation did not specify time, date and place, when they were shown to witnesses neither they made such allegation before the Magistrate who supervised identification parade or in their statement under S. 342, Cr.P.C. during the trial---Evidence of identification inspired confidence and ocular account was corroborated by recovery of share amount from both the accused---One of the accused also led to recovery of .30 bore pistol which was taken into possession from his house---Forensic Science Expert revealed that empties recovered from the spot were wedded with the pistol recovered from the accused---Supreme Court declined to interfere in the conviction and sentences awarded to accused by the courts below---Appeal was dismissed.

Government of Sindh v. Sobharo 1993 SCMR 585; Asghar Ali alias Sabah v. State 1992 SCMR 2088; Nazir Ahmed v. Muhammad Iqbal 2011 SCMR 527; Lal Pasand v. State PLD 1981 SC 142 and Ram Nath Mahto v. State of Bihar ((1996) 8 Supreme Court Cases 630) ref.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 22--- Criminal trial--- Identity of accused--- Identification parade--- Scope--- Holding of identification parade is not mandatory and it is merely a corroborative piece of evidence---If statement of a witness qua identity of accused even in court inspires confidence and the witness is consistent on all material particulars and there is nothing in evidence to suggest that he is deposing falsely, absence of holding of identification parade would not be fatal to prosecution case.

Harbajan Singh v. State of Jammu and Kashmir ((1975) 4 Supreme Court Cases 480);Jadunath Singh v. State of U.P. ((1970) 3 Supreme Court Cases 518) and Muhammad Asghar and others v. State NLR 2004 SCJ 387 rel.

(c) Constitution of Pakistan---

----Art. 185---Appellate jurisdiction of Supreme Court---Scope---Concurrent findings of fact---Concurrent assessment of evidence is not ordinarily interfered with by Supreme Court unless there are exceptional circumstances to do so.

Clarke v. Edinburgh Tramways Co. (1919 (SC) HL 35, 35) and Muhammad Abid v. State 2011 SCMR 1148 rel

Sardar Muhammad Ishaq, Advocate Supreme Court for Appellants (in Criminal Appeal No. 55 of 2009).

Arshad Ali Chaudhry, Advocate Supreme Court for Appellants (in Criminal Appeal No. 56 of 2009).

Asjad Javed Ghural, Additional P.-G. for the State.

Date of hearing: 27th September, 2011.

2012 S C M R 226

[Supreme Court of Pakistan]

Present:

Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali, Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

NON-TRANSPARENT PROCEDURE OF PURCHASE OF 150 LOCOMOTIVES BY MINISTRY OF RAILWAYS RESULTANTLY CAUSING 40 BILLION LOSSES TO THE NATIONAL EXCHEQUER

Suo Motu Case No.7 of 2011, decided on 17th February, 2011.

Constitution of Pakistan---

----Art. 184(3)---Suo motu case---Purchase of 150 D.E. locomotives by Pakistan Railways from a foreign company without inviting tenders from other international companies capable to supply same at much lower rates---Validity---Secretary Railways stated before the Supreme Court that he had cancelled the impugned order of purchase and would issue fresh tenders through international competitive bidding inviting all international manufacturers of locomotives as per specifications of Pakistan Railways through a transparent method---Supreme Court disposed of the case with observations that after floating of fresh tenders, any body feeling dissatisfied with specifications of locomotives required to be supplied could avail appropriate remedy before competent forum.

Syed Ali Zafar, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record, Shahid Hussain Raja, Secretary/Chairman, Pakistan Railways, Shehzad Mehmood, Additional G.M., M. Naeem Malik, G.M. MES, M. Ishfaq Khokhar, G.M., Munawar Khan, Director Procurement and Abdul Saeed Khan, Director Technical for Pakistan Railways.

Salman Akram Raja, Advocate Supreme Court as Amicus Curiae.

Date of hearing: 17th February, 2011.

2012 S C M R 229

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Amir Hani Muslim, JJ

Mst. INAYATAN KHATOON and others---Appellants

Versus

MUHAMMAD RAMZAN and others---Respondents

Criminal Appeal No.26-K of 2011, decided on 11th November, 2011.

(On appeal from order dated 31-5-2011 of the High Court of Sindh, Circuit Court, Larkana, passed in Criminal Revision Application No.3 of 2011).

(a) Illegal Dispossession Act (XI of 2005)---

----Preamble---Object and scope of Illegal Dispossession Act, 2005---Illegal Dispossession Act, 2005, is a special enactment promulgated to discourage land grabbers and to protect right of owners and lawful occupants of property as against unauthorized and illegal occupants--- All cases of illegal occupants without any distinction are covered by Illegal Dispossession Act, 2005.

(b) Illegal Dispossession Act (XI of 2005)---

----Ss.4 & 5---Criminal Procedure Code (V of 1898), Ss. 154, 173, 190 & 200---Cognizance of offence---Investigation and procedure---"Cognizable case" and "private complaint"--- Distinction---Trial of an accused under Illegal Dispossession Act, 2005, cannot be equated as trial in a complaint case under S.190, Cr.P.C.---Court, under S.5 of Illegal Dispossession Act, 2005, may order Incharge of Police Station to investigate the matter and report---Illegal Dispossession Act, 2005, itself is a special law and overrides provisions of Criminal Procedure Code, 1898, in terms of S.4 of Illegal Dispossession Act, 2005---Complaint under Illegal Dispossession Act, 2005, can be equated as complaint under S.154, Cr.P.C., whereas report under S.5(1) of Illegal Dispossession Act, 2005, can be equated as report under S.173, Cr.P.C.---Trial Court on perusal of such report and other material can take cognizance as provided under S.190, Cr.P.C. but in no way the complaint under S.5(1) of Illegal Dispossession Act, 2005, can be equated with private complaint to be processed under S.200, Cr.P.C. before a Magistrate.

(c) Illegal Dispossession Act (XI of 2005)---

----Ss.2, 3, 4 & 5---Criminal Procedure Code (V of 1898), S.200---Illegal dispossession---Words "owner or occupier" in S.3, Illegal Dispossession Act, 2005---Definition---Trial proceedings--- Scope--- Trial Court entertained complaint filed against accused but High Court set aside the order on the ground that cognizance could only be taken by Trial Court following the procedure provided under S.200, Cr.P.C.---Validity---High Court erred in recording findings that examination of complainant under S.200, Cr.P.C. was mandatory before taking cognizance under Illegal Dispossession Act, 2005---Such findings of High Court were contrary to the language of Ss. 2, 3, 4 and 5 of Illegal Dispossession Act, 2005---High Court misdirected itself by holding that word "owner or occupier" defined in Illegal Dispossession Act, 2005, did not include more than one owner and or occupier, meaning thereby that if property was jointly owned or jointly occupied by complainants they could not approach Trial Court by filing complaint under S.5 of Illegal Dispossession Act, 2005--- Order of taking cognizance by Trial Court was within the parameters of Illegal Dispossession Act, 2005, and introducing procedure under Criminal Procedure Code, 1898 for proceeding with a private complaint after examining the complainant under S.200, Cr.P.C. was foreign to the language of Illegal Dispossession Act, 2005---Supreme Court set aside the judgment passed by High Court and remanded the matter to Trial Court for decision in accordance with law---Appeal was allowed.

Bhajandas Tejwani, Advocate Supreme Court for Appellants.

A.S.K. Ghori, Advocate-on-Record for Respondent No.1

Abdul Fatah Malik, AG (Sindh) and Zafar Ahmed Khan, AGP for Respondents

Date of hearing: 11th November, 2011.

2012 S C M R 235

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Tariq Parvez, JJ

MUHAMMAD NAZEEF KHAN---Appellant

Versus

GULBAT KHAN and others---Respondents

Civil Appeal No.77-P of 2010, decided on 15th July, 2011.

(On appeal from the judgment of the Peshawar High Court, D.I. Khan Bench, dated 19-10-2005 passed in C.R. No. 43 of 2005).

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 15---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether courts did not err in non-suiting the pre-emptor for not making Talb-e-Muwathibat before completion of sale.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S.2(d)---West Pakistan Land Revenue Act (XVII of 1967), S.45---Sale---Mutation, attestation of---Effect---Completion of sale of immovable property is not dependent upon attestation of its mutation---Sale may have been completed earlier and attestation of its mutation would merely be its manifestation.

Muhammad Subhan and others v. Mir Qadam Khan and others 2001 MLD 1716 distinguished.

(c) Interpretation of statutes---

----Identical expressions---Connotation---Principle---Ordinarily same meaning is attached to an expression used in different parts of same statute---Such rule is not strict and admits of departure, depending upon the context in which the expression appears in different provisions of the statute---Same word may be used in different senses in different parts of same enactment.

Craies on Statute Law, seventh Edn.; Maxwell on The Interpretation of Statutes "Change of Language" and sub title "Identical expressions"; Muhammad Rashid v. The State PLD 1960 SC 168 and Muhammad Abdul Haque v. Fazlul Quader Chowdhury PLD 1963 Dacca 669 rel

(d) Khyber Pakhtunkhawa Pre-emption Act (X of 1987)---

----Ss. 2(d) & 13---Pre-emption right---Scope---Sale, completion of---Attestation of mutation--- Talb-e-Muwathibat--- Postponement--- Pre-emptor, on getting information of sale in question, instead of immediately making Talb-e-Muwathibat, went to Revenue Officer to inquire about attestation of sale mutation---Judgment and decree passed by Trial Court, dismissing the suit of pre-emptor was maintained by Lower Appellate Court and High Court---Validity---For the purpose of exercise of right of pre-emption, sale must be complete in all respects in accordance with its definition given in S. 2(d) of Khyber Pakhtunkhwa Pre-emption Act, 1987, namely, permanent transfer of property and payment of valuable consideration---Right of pre-emption could not be exercised until the two conditions existed---Definition of "sale" would become relevant, when controversy had arisen as to whether or not the property in question was sold, conferring right of pre-emption on pre-emptor---Fulfilment or otherwise of the two conditions mentioned in S. 2(d) of Khyber Pakhtunkhwa Pre-emption Act, 1987, however, might not be relevant in the context in which the word "sale" in S. 13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987, had been used--- Latter provision mandated the pre-emptor to make immediately demand in same sitting or meeting in which he had acquired knowledge of the sale---Stringent provision having not allowed the pre-emptor to postpone making of Talb-e-Muwathibat in order to make further inquiry or probe as to whether or not the sale was complete in all respects---Expression "sale" in two statutory provisions was used in entirely different context---Definition of sale in S. 2(d) of Khyber Pakhtunkhwa Pre-emption Act, 1987, could not be applied to the same expression used in S.13 of Khyber Pakhtunkhwa Pre-emption Act, 1987, and pre-emptor was obliged to make the Talb, regardless of whether the conditions laid down for completion of sale had been fulfilled---Pre-emptor delayed making of Talb till attestation of sale mutation, thus his suit was rightly dismissed---Pre-emptor failed to make Talb-e-Muwathibat upon learning of sale, therefore, he failed to fulfill the requirement of S.13(1) and (2) of Khyber Pakhtunkhwa Pre-emption Act, 1987---Supreme Court declined to interfere in concurrent judgments and decrees passed by the Courts below---Appeal was dismissed.

Muhammad Inayat v. Fateh Muhammad PLD 2004 SC 778; Muhammad Inayat v. Mst. Nisar Fatima PLD 1994 SC 120; Zafar Ali v. Zainaul Abidin 1992 SCMR 1886; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Kanwal Nain v. Fateh Khan PLD 1983 SC 53 and Safia Begum v. Ibrahim PLD 1989 SC 314 ref.

Abdul Aziz Kundi, Advocate Supreme Court for the Appellant.

M. Zahoor Qureshi Azad, Advocate Supreme Court/Advocate-on-Record for

Respondents

Date of hearing: 15th July, 2011.

2012 S C M R 242

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui

and Asif Saeed Khan Khosa, JJ

ALI HASAN @ JAMSHAID---Petitioner

Versus

THE STATE---Respondent

Criminal Review Petition No.20 of 2010 in Jail Petition No.21 of 2009, decided on 29th September, 2011.

(To review the judgment of this Court dated 12-11-2009 passed in Jail Petition No.21 of 2009).

(a) Age---

----Determination of---National Database and Registration Authority (NADRA)---Scope---Entry made in record of NADRA may not be a conclusive proof of age.

(b) Penal Code (XLV of 1860)---

----S.302---Constitution of Pakistan, Art. 188---Supreme Court Rules, 1980, O. XXVI, R.1---Qatl-e-amd---Review of Supreme Court judgment---Age of accused---Determination---Conviction and sentence awarded to accused by Trial Court was maintained by High Court and leave to appeal was refused by Supreme Court---Plea raised by accused was that at the time of occurrence, he was below the age of eighteen years and the same was not properly determined by the courts below---Validity---Both the courts i.e. Trial Court and High Court examined the record of Registration of birth in NADRA to be 23 years---Even in voters' list, accused was of the same age at the time of occurrence and birth entry record of union council was found to be dubious---Review jurisdiction had a limited scope but as it was an issue of life and death, therefore, Supreme Court delved deeper into it, although question with regard to determination of age was primarily a question of fact to be decided by Trial Court---Supreme Court did not find any error apparent in the face of record to warrant review---Review petition was dismissed.

Muhammad Aslam v The State PLD 2009 SC 777 at 779 rel

Sultan Ahmad v. Additional Sessions Judge PLD 2004 SC 758; Muhammad Aslam v The State PLD 2009 SC 777; Atif Zaman v The State 2003 SC 758; Sh. Mehdi Hassan v. Province of Punjab 2007 SCMR 755; Babloo Pasi v. State of Jharkhand AIR 2009 SC 314, para 11; Bhola Bhagat v. State of Bihar AIR 1998 SC 238; Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363 at 386; Shah Muhammad v. Ramzan Bibi 1998 SCMR 2415; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741 at 768 and Rupa Ashok Hurra v. Ashok Hurra AIR 2001 SC 1771 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Barrister Natalia Kamal and Syed Riaz Hussain for Petitioner.

Kh. Muhammad Sharif, Advocate Supreme Court and Aftab Ahmed Khan, Advocate Supreme Court for the Complainant.

Asjad Javaid Ghural, Additional P.-G and Ahmad Raza Gillani, Additional P.-G for the State

Khawaja Haris Ahmed, Advocate-General Punjab on Court's Call

Date of hearing: 29th September, 2011.

2012 S C M R 248

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

JAVED KHAN ABBASI---Petitioner

Versus

ZUBAIR ASLAM and others---Respondents

Civil Petition No.1430 of 2011, decided on 17th October, 2011.

(On appeal from the judgment dated 8-7-2011 of the Islamabad High Court, Islamabad passed in W.P. No.2346 of 2008).

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 1(2), 2(k) & 17---SRO No. 83(RE)/02 dated 19-7-2002---Constitution of Pakistan, Art. 185(3)---Ejectment petition---Default in payment of rent by tenant, ground of---Ejectment order passed by Rent Controller was upheld in appeal and constitutional petition by Appellate Court and High Court respectively---Tenant's plea was that ejectment petition filed on 29-1-2003 was not entertainable by Rent Controller as jurisdiction to decide same vested in him subsequently through notification dated 29-6-2004 issued under S. 1(2) of Islamabad Rent Restriction Ordinance, 2001---Validity---Federal Government for the purposes of Islamabad Rent Restriction Ordinance, 2001 had specified urban areas by S.R.O. No. 83(RE)/02, dated 19-7-2002 issued under S.2(k) thereof and had extended thereto jurisdiction of Rent Controller through notification dated 29-6-2004 issued under S.1(2) thereof---Demised premises was situated within such specified urban area---Rent Controller had decided ejectment petition after having acquired jurisdiction during its pendency through such notification dated 29-6-2004---­Supreme Court dismissed petition for leave to appeal in circumstances.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 The State v. Muhammad Jamil and Muhammad Alam v. The State; Managing Director Oil and Gas Development Company Ltd. v. Syed Najmul Hassan Naqvi 2005 SCMR 89 rel.

(b) Jurisdiction---

----Tribunal/court lacking jurisdiction to entertain a lis at time of its institution could decide the same subsequently, if acquired jurisdiction during its pendency---Principles.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 and Managing Director Oil and Gas Development Company Ltd. v. Syed Najmul Hassan Naqvi 2005 SCMR 89 rel.

(c) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 2-J(ii) & 17---Ejectment petition---Denial of relationship of landlord and tenant by respondent on ground that after death of his father, his brother remained in possession of suit premises---Validity---Suit premises was rented out to father of respondent---Notice of ejectment petition was served upon respondent at suit premises--- Respondent's brother had not come forward to protect his possession over suit premises by claiming to be its tenant---According to S. 2-J(ii) of Islamabad Urban Rent Restriction Ordinance, 2001, after death of a tenant, his legal heir(s) actually remaining in possession/occupation of premises would become statutory tenants thereof---Evidence available on record showed that respondent was in possession of demised premises---Petition for leave to appeal against the order of the High Court was dismissed.

Sardar Muhammad Aslam, Advocate Supreme Court for Petitioner.

Nemo for Respondents

Date of hearing: 17th October, 2011.

2012 S C M R 254

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali and Ghulam Rabbani, JJ

HYDER ALI BHIMJI---Appellant

Versus

VITH ADDITIONAL DISTRICT JUDGE, KARACHI (SOUTH) and another---Respondents

Civil Appeal No.1009 of 2009, decided on 23rd February, 2011.

(On appeal from the judgment dated 19-5-2009 in C.P. No. S-08 of 2009 passed by the High Court of Sindh at Karachi)

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

----S.15(2)(iii)(a)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether High Court did not interpret the law in its true perspective because S.15(2)(iii)(a) of Sindh Rented Premises Ordinance, 1979, did not talk of subletting but it visualized handing over of the possession of premises to some other person, which possession had never been handed over and was still with the tenant.

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

----S. 15(2)(iii)(a)---Ejectment of tenant---Sub-letting of premises---Scope---Handing over of the possession of rented premises to some other person exposes a tenant to eviction, under S. 15(2)(iii)(a) of Sindh Rented Premises Ordinance, 1979---Ground of "sub-letting" does not find mention in S.15 of Sindh Rented Premises Ordinance, 1979---Grounds for eviction of tenant have been changed in Sindh Rented Premises Ordinance, 1979, and "sub-letting" has been omitted from the prescribed grounds thereof.

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

----S. 15(2)(iii)(a)--- Ejectment of tenant--- New plea, raising of---Landlord sought ejectment of tenant on the ground that he formed two independent business entities and sublet the rented premises to those business entities, without his permission---Rent Controller dismissed the ejectment application but Lower Appellate Court and High Court concurrently passed eviction order against the tenant---Validity---Tenant did not plead or depose before Rent Controller that company or firm were his licencees and were so inducted in demised premises to do business of tenant or their own---Tenant also failed to raise such plea before Lower Appellate Court, similarly neither in constitutional petition nor during arguments before High Court the tenant premise his case on the licencee status of the company/firm---Plea of tenant having never been raised before any forum or the courts by tenant, could not be considered for the first time by Supreme Court, particularly when no evidence on record existed to substantiate such a plea---Tenant without written consent of landlord, had handed over legal and physical possession of demised premises to the firm/company and other sharers therein by allowing the entities to operate/do business therefrom---Supreme Court declined to interfere in eviction order passed by two courts below---Appeal was dismissed.

Menek J. Mobed and another v Shah Behram and others PLD 1974 SC 351 rel

Muhammad Subhan and another v. Bilquis Begum through Legal Heirs and others 1994 SCMR 1507; Habibullah v. Rent Controller, Peshawar and 11 others 1998 SCMR 2656 and Muhammad Shafi v. State Life Insurance Corporation 2009 SCMR 893 distinguished.

Saeeda Begum v. Shameem Ahmad 1994 SCMR 791; Messrs Shalimar Tar Products Ltd. v. H.C. Sharma and others AIR 1988 SC 145; Menek J. Mobed and another v. Shah Behram and others PLD 1974 SC 351; Muhammad Subhan and another v. Mst. Bilquis Begum through Legal Heirs and others 1994 SCMR 1507 and Messrs Premier Mercantile Service and another v. S.M. Younus and 2 others PLD 1982 SC 79 ref.

(d) Pleadings---

----Binding effect---Scope---Party is legally bound by case set up in his pleadings and does not have freedom to depart therefrom and raise a different case---In absence of specific pleadings, court cannot allow any party to grope around and draw remote inferences in his favour from his vague expressions.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court and Abdul Qadir, Advocate Supreme Court for Appellant.

Rashid A. Rizvi, Senior Advocate Supreme Court for Respondents.

Date of hearing: 23rd February, 2011.

2012 S C M R 265

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Athar Saeed, JJ TALIB JAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No.104-P of 2011, decided on 14th December, 2011.

(On appeal from the judgment dated 23-9-2011 passed by the Peshawar High Court, D.I. Khan Bench in Cr. M.B.A. No.365 of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd, attempt to commit Qatl-e-amd and abetment---Bail, grant of---Further inquiry---Accused (father) was charged for commanding co-accused (son), who had gone into hiding and had been charged for firing effective shot at the deceased---Whether the role assigned to accused was result of exaggeration to rope him in, so that he may not be at large to pursue litigation; whether accused's stay in the village despite being named in F.I.R. could be held to be more consistent with innocence rather than guilt when co-accused had gone into hiding and whether the role of commanding attributed to accused who himself was armed with Kalashinkov could be held to be ornamental or at par with abetment, were questions calling for further inquiry---Accused's petition for leave to appeal was converted into appeal and allowing the same he was admitted to bail.

Khawaja Muhammad Khan Gara, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Petitioner

Miss S. Naz Muhammadzai, Advocate Supreme Court for the State.

Sabitullah Khan Khalil, Advocate Supreme Court and Abdul Qayyum Sarwar, Advocate-on-Record for Respondent No.2

Date of hearing: 14th December, 2011.

2012 S C M R 267

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Asif Saeed Khan Khosa and Amir Hani Muslim, JJ

MUHAMMAD MUMTAZ and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeals Nos. 221 and 222 of 2010, decided on 5th October, 2011.

(On appeal from the judgment dated 14-5-2009 passed by Lahore High Court, Lahore in Criminal Appeal No.1955 of 2003, M.R.895 of 2003).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to reappraise the entire evidence and to examine contentions raised by accused.

Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427; Zulfiqar Ali v The State 2008 SCMR 796 and Nazir Ahmed v The State 2009 SCMR 523 ref

(b) Penal Code (XLV of 1860)---

----S.302(b)---Qatl-e-amd---Reappraisal of evidence---Prompt F.I.R.---Concurrent findings of fact by two courts below---Death sentence awarded to accused by Trial Court was converted into imprisonment for life by High Court---Validity---Case of prompt F.I.R., lodged within 15 minutes of the occurrence where accused were specifically named with a specific role attributed to them and motive was alleged---Promptitude with which the matter was reported ruled out possibility of false implication and even otherwise it was repellent to common sense that complainant would let off real culprit and involve someone else---Both the witnesses remained consistent during the trial on all material particulars of prosecution case in so far as the role attributed to accused was concerned---Testimony of prosecution witnesses was corroborated by medical evidence, which was consistent with ocular account in so far as the weapon, locale of injury and time which lapsed between the injury and postmortem examination were concerned---Concurrent assessment of evidence made by two courts below culminating in finding of guilt was not arbitrary, capricious or against the evidence led by prosecution---Supreme Court declined to interfere in conviction and sentence awarded to accused by the High Court---Appeal was dismissed.

Promilla v. Safeer Alam 2000 SCMR 1166; Shaheb Ali v The State PLD 1970 SC 447; Muhammad Rafiq v. The State 1971 SCMR 378; Ghulam Muhammad v The State 1972 SCMR 393; Ameer Umar v. The State 1976 SCMr 338; Muhammad Jamal v The State 1997 SCMR 1595 and Muhammad Shafique and others v. Akhtar Shah and others 1997 SCMR 1964 ref.

(c) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Motive---Scope---Motive is not a condition precedent to warrant a finding of guilt.

Ahmad Khan v. Abdur Rasheed 2008 SCMR 378; Iftikhar Mehmood v. Qaiser Iftikhar 2011 SCMR 1165 and Muhammad Yaseen v. The State 2011 SCMR 905 rel.

Aftab Farrukh, Senior Advocate Supreme Court for Appellants (in Cr. A. No. 221 of 2010 and for the respondent in Cr. A. No. 222 of 2010).

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Appellants (in Cr. A. No. 222 of 2010).

Ahmed Raza Gillani, Additional P.-G and Mazhar Sher Awan, Additional P.-G for the State (in both cases).

Date of hearing: 5th October, 2011.

2012 S C M R 274

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq

Parvez, JJ

MUHAMMAD AFSAR---Petitioner

Versus

Malik MUHAMMAD FAROOQ---Respondent

Civil Petition No. 1498 of 2011, decided on 31st October, 2011.

(Against order dated 4-7-2011 of Islamabad High Court, Islamabad, passed in C.M. No.140 of 2011 in W.P. No.2248 of 2009).

(a) Administration of justice---

----Courts are duty bound to uphold constitutional mandate and keep up salutary principles of rule of law.

(b) Public Functionary---

----Duty of public functionaries to adhere to principle of transparency in performance of their duties and not to implement illegal orders of their superiors---Principles.

All acts should be done by the public functionaries in a transparent manner after applying judicious mind and after fulfilling all requirements. The public functionaries are supposed to adhere to the principle of transparency in the performance of their duties and are not bound to carry out/implement any order which is not in accordance with law and they are only obliged to carry out the lawful orders of their superiors and if they are being pressurized to implement an illegal order, they should put on record their dissenting notes.

(c) Accommodation Allocation Rules, 2002---

----Rr. 6 & 29-A---Constitution of Pakistan, Art. 9---Application for allotment of government accommodation---Powers of government---Scope--- Estate Officer, after receiving such applications on prescribed forms was bound to issue Registration Cards to applicants-employees and maintain general waiting list thereof---Employees who applied first would be entitled to such allotment first as and when same was made available---Government, having powers to relax rules and that too only in very exceptional circumstances and in cases of hardship, could not take away right accrued to an employee in such list without giving written justifiable reasons therefor and hearing likely affected employees in such list---Denial of right accrued to an employee in such List would be denial of fundamental right of life, which included shelter/house as guaranteed under Art. 9 of the Constitution---Supreme Court directed the authorities concerned to make such allotments strictly on merits on basis of such List.

(d) Accommodation Allocation Rules, 2002---

----Rr. 6 & 15(2)---Government house in possession of applicant previously allotted to his father before retirement from service---Applicant seeking allotment of such house---No rule existed under which an allotment order could be issued with retrospective effect.

Petitioner in person

Syed Arshad Hussain Shah, Advocate Supreme Court for Respondent No.1.

Dil Muhammad Alizai, D.A.-G., M.S. Khattak, Advocate-on-Record, Kamran Lashari, Secretary, M/o. Housing and Works, Asim Ayub, Estate Officer and Qaisar Mehmood, JEO for Respondents Nos.2 and 3.

Date of hearing: 19th October, 2011.

2012 S C M R 280

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Ghulam Rabbani, JJ

STATE BANK OF PAKISTAN through Governor and another---Appellants

Versus

IMTIAZ ALI KHAN and others---Respondents

Civil Appeal No. 581 of 2011, decided on 19th October, 2011.

(On appeal from the judgment/order dated 7-12-2010 passed by High Court of Sindh, Karachi in Constitutional Petition No.D-1684 of 2006).

(a) State Bank of Pakistan Staff Regulations, 1993---

----Regln. 19---State Bank of Pakistan Officers (Pension-cum­-Gratuity) Regulations, 1980, Regls 2(i) & 4---State Bank of Pakistan Act (XXXIII of 1956), S. 54(1) [as amended by State Bank of Pakistan (Amendment) Act (II of 1994)]---­Constitution of Pakistan, Arts. 185(3) & 199---Voluntary Golden Handshake Scheme, 1997 introduced by State Bank of Pakistan vide Circular No. 9 dated 23-10-1997 for its structuring with a view to improve its efficiency and performance by offering a voluntary exit to its surplus employees upto 22-11-1997 on payment of retirement benefits available to them under existing Rules and Regulations in addition to other normal benefits as compensation---Bank accepted option of 1400 employees of different ranks and paid them amount of their compensation---Appeals filed after six years by some employees claiming pensionary benefits returned by Service Tribunal---Constitutional petition filed by petitioners accepted by High Court while directing Bank to pay commutation of their gross-pension irrespective of such Scheme---Validity---Supreme Court granted leave to appeal, inter alia, to examine as to whether under such Scheme, employees who had served the Bank for a period of less than 25 years and more than 10 years on having opted such Scheme were paid compensation towards pensionary benefits equivalent to 50% commutation of Gross Pension as full and final settlement as a "Special Case" without creating any precedent, could still claim to be entitled to payment of pension on monthly basis.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref

(b) State Bank of Pakistan Staff Regulations, 1993---

----Regln. 19---State Bank of Pakistan Officers (Pension-cum-­Gratuity) Regulations, 1980, Reglns. 2(i) & 4---State Bank of Pakistan Act (XXXIII of 1956), S. 54(1) [as amended by State Bank of Pakistan (Amendment) Act (II of 1994)] --­Constitution of Pakistan, Arts 185(3) & 199---Voluntary Golden Handshake Scheme, 1997 introduced by State Bank of Pakistan vide Circular No. 9 dated 23-10-1997 for its structuring with a view to improve its efficiency and performance by offering a voluntary exit to its surplus employees upto 22-11-1997 on payment of retirement benefits available to them under existing Regulations in addition to other normal benefits as compensation as full and final settlement---Option of 1400 employees of different ranks accepted by Bank on payment of compensation---Appeal before Service Tribunal after six years by some employees claiming pensionary benefits on ground that by virtue of exercise of such option, their services were terminated and they stood retired---Tribunal returned appeal for its presentation before the competent forum---Constitutional petition filed by petitioners accepted by High Court while directing the Bank to pay commutation of their gross-pension irrespective of such Scheme---Bank's plea was that petitioners having voluntarily opted to leave the Bank on acceptance of such Scheme were not entitled to gross pension, which was payable to an employee after completing service of ten years or above---Validity---­Such Scheme was voluntary and was not imposed upon employees and none was compelled or under duress, pressure or coercion to opt for same---Petitioners had been allowed four weeks' time to ponder over such Scheme and before they exercised their option, they were circulated a print-out copy showing approximate benefit payable to them on its acceptance---Word "retirement" as per State Bank of Pakistan Officers (Pension-cum-Gratuity) Regulations, 1980 would mean retirement of an officer under State Bank of Pakistan Staff Regulations, 1993, meaning thereby that regular retirement of an employee would be either after completion of 25 years' service or on attaining age of 60 years entitling him to pensionary benefits---According to terms of such Scheme, employees having opted therefor would not be entitled to pensionary benefits, rather they would be paid compensation towards pensionary benefits equivalent to 50% commutation of gross pension, which would be a full and final settlement as a special case---Petitioners had not completed 25 years of service at time of exercising such option---Had petitioner not opted for such Scheme, but had claimed pension on basis of rendering more than 10 years' service, then they would have been entitled thereto for same being a regular retirement under the Regulations---Petitioners had not retired from service by application of Regulations, 1980 nor under Regulations, 1993, but they had left service voluntarily after accepting such Scheme, which would govern their cases---Petitioner had remained silent for more than six years after accepting such Scheme without any objection---Petitioners had failed to prove/show infringement of any right and were guilty of laches in approaching legal forum for redressal of their alleged grievance---Supreme Court set aside impugned judgment in circumstances.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; State Bank of Pakistan v. Khyber Zaman and others 2004 PLC (CS) 1213; Muhammad Idrees v. Agriculture Development Bank of Pakistan and others PLD 2007 SC 681; State Bank of Pakistan v. Muhammad Aslam Khan (Civil Appeal No.976-1000 of 2009); Muhammad Masihuzzaman v. Federation of Pakistan PLD 1992 SC 825; Muhammad Ahmed v. Government of Sindh 1999 SCMR 255; Muhammad Anwar Siddiqui v. Lahore Development Authority 2009 SCMR 177; S.A. Jamil v. Secretary to the Government of the Punjab 2005 SCMR 126; Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170 and Zia Ghafoor Piracha v. Chairman, Board of Intermediate and Secondary Education 2004 SCMR 35 ref.

(c) Words and phrases---

----"Termination"---Definition

Judicial Dictionary by K.J. Aiyar 13th Edition ref

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

----S. 11, O. VII, Rr. 1(g) & 8---Constructive res judicata---Failure of a party to ask for all relief to which he was entitled---Effect---Such relief, even if available and not asked for, could not be claimed by filing a subsequent legal proceedings as same would fall within mischief of constructive res judicata---Illustration.

United Bank Limited v. Shamim Ahmed Khan PLD 1999 SC 990 and Akram Zahoor v. Federation of Pakistan 2000 SCMR 1232 ref

(e) Laches---

----Doctrine of---Scope---Party having an enforceable right, if failed to exercise/enforce the same within time specified by law, could not enforce on account of laches---Principles.

Laches is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement, if it is found by the court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party, but he cannot enforce it. The limitation is examined by the Limitation Act, 1908 or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved does not approach the appropriate forum within the stipulated period/time, the grievance though remains, but it cannot be redressed because if on the one hand there was a right with a party which he could have enforced against the other, but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.

(f) Equity---

----Delay would defeat equity---Equity would aid vigilant and not an indolent.

Jawad Mir Muhammadi v. Haroon Mirza PLD 2007 SC 472; Smith v. Clay (1767) 3 Bro. C.C. 639n at 640n; Snell's Equity by John Meghee 12th Edition at p.35; Member (S&R)/Chief Settlement Commissioner v. Ashfaque Ali PLD 2003 SC 132; S.A. Jameel v. Secretary to the Government of the Punjab 2005 SCMR 126; Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119; John Objobo Agbeyegbe v. Festus Makene Ikomi PLD 1953 PC 19 and Erlanger v. New Sombrero Phosphate Company 1878 LR 3 AC at page 1279 rel.

Khalid Anwar, Senior Advocate Supreme Court for Appellants.

Abdul Rahim Bhatti, Senior Advocate Supreme Court for Respondents Nos. 1 - 132, 134 and 137 - 202.

Sardar Asmatullah, Senior Advocate Supreme Court for Respondent No.136.

Atif Hayat, Respondent No.133 in person

Ms. Anjum Naz, Respondent No.135 in person

Date of hearing: 27th September, 2011.

2012 S C M R 307

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Amir Hani Muslim, JJ

PROVINCE OF SINDH through Chief Secretary, Sindh, Sindh Secretariat and another---Petitioners

Versus

PROSECUTOR-GENERAL SINDH, CRIMINAL PROSECUTION DEPARTMENT and others---Respondents

Civil Petition No. 727-K of 2011, decided on 8th December, 2011.

(On appeal from judgment dated 3-6-2011 of the High Court of Sindh, Circuit Court, Hyderabad, passed in C.P.D. No.587 of 2011).

(a) Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act (IX of 2009)---

----Ss. 5(2)(3) & 6(1)---Constitution of Pakistan, Art. 185(3)---Transfer and posting---Prosecutor-General, powers of---Scope---Respondents were officials of Sindh Criminal Prosecution Service who assailed their transfer and posting orders issued by the Prosecutor-General---High Court dismissed the petition filed by respondents and maintained the posting orders---Validity---Power of transfer and posting was purposely retained with Prosecutor-General, who was otherwise head of the service under the Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009, as he was better placed to make informed decisions vis-à-vis transfer of members of the Service as opposed to Special Secretary, Law and Justice Department---Legislature keeping in view to achieve objects of independence of prosecution service, had, therefore, entrusted power of control, administration and supervision to Prosecutor-General by making him head of the service with sole object to effectuate his administration over the service---Entrustment of such powers essentially include power to "transfer" and "posting" of members of the service, as he was the best judge to post members according to their experience, expertise and professional knowledge---Inbuilt scheme existed whereby powers of transfer and posting were conferred upon the Prosecutor-General by using expression "administration" "control" and "Head of Service" under Ss.5(2), 5(3) and 6(1) of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009, respectively---Intention of Legislature was to make the Prosecutor-General responsible for administration and control of the service and words "control" would mean that he had the power to transfer and post his subordinates in terms of Ss. 5 and 6(1) of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

State of Assam v. Ranga Muhammad and others AIR 1967 SC 903; Iftikhar Ahmad v The Muslim Commercial Bank Ltd. PLD 1984 Lah. 69; Sharif Faridi v Federation of Pakistan and another PLD 1989 Kar 404; M.H. Mirza v. Federation of Pakistan 1994 SCMR 1024; Zia Ghafoor Piracha v. Chairman Board of Intermediate and Secondary Education, Rawalpindi 2004 SCMR 35; Abdul Haq v. Province of Sindh PLD 2000 Kar. 224; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Amanullah Khan Yousufzai v. Federation of Pakistan PLD 2011 Kar 451 and Muhammad Ali Satakzai v. Appointing Authority through Registrar Balochistan High Court 2011 SCMR 2011 ref.

(b) Words and phrases---

----'Administration'---Meaning

Black's Law Dictionary and Chambers 21st Century Dictionary rel.

(c) Words and phrases---

----'Control'---Meaning

Black's Law Dictionary and Ballentine's Law Dictionary rel

(d) Words and phrases---

----'Supervise'---Meaning.

Black's Law Dictionary and Ballentine's Law Dictionary rel

(e) Words and phrases---

----'Administration', 'control' and 'supervision'---Connotation---Phrase "administration, control and supervision" means management or executive duties relating to an institution---In order to perform duties of management effectively, head of institution is required to be equipped with absolute powers to have control over the members of the organization.

State of West Bengal v. Nripendra Nath AIR 1966 SC 447; Corporation of the City of Nagpur v. Ramchandra G. Modal and others AIR 1984 SC 636 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 rel.

(f) Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act (IX of 2009---

----Ss. 14, 16(2) & 18---Sindh Civil Servants Act (XIV of 1973), S.10---Sindh Government Rules of Business, 1986, Schedule-I, Sr. No.21, Col.4---Members of Prosecution service---Status---Members of the service are public servants as defined in S. 16(2) of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009, and they are not civil servants---Provision of S.18 of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009 is a non-obstante clause which excludes application of all other laws including Sindh Civil Servants Act, 1973, rules framed thereunder and Sindh Government Rules of Business, 1986.

Abdul Fateh Malik, Additional A.-G., Sindh for Petitioners

Abid S. Zubairi, Advocate Supreme Court for Respondent No.1.

Khalid Javed Khan, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondent No.2

Dates of hearing: 10th and 11th November, 2011.

Z 2012 S C M R 321

[Supreme Court of Pakistan]

Present: Ghulam Rabbani, J

HUMAN RIGHTS CASE NO. 24077-G OF 2011:

In the matter of Human Rights Case No. 24077-G of 2011, decided on 14th October, 2011.

(Application by Dr. Babar Awan, Senior Advocate Supreme Court).

Constitution of Pakistan---

----Arts. 184(3), 4 & 9---Human rights case---Petition by former Federal Minister seeking protection of his rights under Arts. 4 & 9 of the Constitution due to threats extended to his life by a Provincial Minister in his talk with media---Respondent's reply to such petition contained his denial of such allegations and his denial thereof already made at floor of Provincial Assembly and acceptance of his clarification by Opposition Leader---Respondent's counsel stated before Supreme Court that there was no danger to life of petitioner from respondent or Provincial Government and that petitioner would have full protection in accordance with provisions of the Constitution---Petitioner had not filed any rejoinder to the respondent's reply---Supreme Court disposed of such petition with observation that in case petitioner felt aggrieved, he might approach the concerned authority.

M. Shoaib Shaheen, D.A.-G on behalf of Muhammad Ramzan Chaudhry, Advocate Supreme Court for Petitioner

Ch. Khadim Hussain Qaiser, Additional A.-G Punjab for Respondent

Date of hearing: 14th October, 2011.

2012 S C M R 327

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

KHALID @ KHALIDI and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 190-L of 2009, decided on 14th December, 2011.

(On appeal from the judgment dated 29-1-2009 in Cr. A. No. 245 of 2004, M.R. No.106 of 2004 passed by the Lahore High Court, Lahore).

(a) Penal Code (XLV of 1860)---

----Ss. 302(b)/449/460/34---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-­e-amd and house-trespass---Reappraisal of evidence---Benefit of doubt---Medical and ocular account---Evidence, withholding of---Presumption---Trial Court convicted accused persons and sentenced them to death on two counts but High Court converted the sentence into imprisonment for life---Validity---Incident took place at 2-00 a.m., F.I.R. was recorded at 4/5 a.m., doctor medically examined injured persons at 4 a.m. but conducted post-mortem examination of deceased at 3:00 p.m. i.e. after about ten hours, such facts showed that F.I.R. was not lodged at the given time---Prosecution did not produce injured prosecution witness, from which an inference could be drawn against prosecution that if she was produced, she would have not supported prosecution version---Ocular account was not of such a character which could be relied upon in order to convict a person on a capital charge when the same was not corroborated by any other independent evidence as presence of both eye-witnesses at the place and time of occurrence was not established as their statements had been disbelieved by Appellate Court---Evidence was not of such a character which could be relied upon to convict a person on a capital charge as the eye-witness account was full of contradictions and doubts and benefit of such contradictions and doubts would go to the accused persons---Supreme Court set aside the conviction and sentence awarded to accused persons and they were acquitted of the charge---Appeal was allowed.

Ansar Ali and another v The State 2010 SCMR 1821; Ghulam Mustafa and others v The State 2009 SCMR 916 and Iftikhar Hussain and others v The State 2004 SCMR 1185 rel

(b) Penal Code (XLV of 1860)---

----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 22---Identification parade---Previously known accused---Effect---Identification parade lost its veracity when accused was previously known to those prosecution witnesses who were not produced---Such identification parade which had not been relied upon regarding involvement of acquitted accused, the same could not have been relied upon against convicted accused, as the witnesses had identified the accused who was previously known to them and the same had been disbelieved.

(c) Penal Code (XLV of 1860)---

----S.302(b)/449/460/34---Reappraisal of evidence---Medical evidence---Scope---Such evidence is only a supportive piece of evidence and can only be considered with reference to attribution of injuries made by eye-witnesses---When eye-witnesses have not attributed any specific injury to the accused person, corroborative value of medical evidence loses its efficacy.

Muhammad Yar Khan Daha, Advocate Supreme Court for Appellants.

Mazhar Sher Awan, Additional P.-G for the State

Date of hearing: 14th December, 2011.

2012 S C M R 334

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Muhammad Sair Ali and Sarmad Jalal Osmany, JJ

ALI KHAN KAKAR and 2 others---Petitioners

Versus

HAMMAD ABBASI---Respondent

H.R.C. No.3087 of 2006, C.M.A. No.28-Q of 2006 and Civil Petition No.1393 of 2010, decided on 17th October, 2011.

(Complaint from Director of Human Rights, Balochistan, Quetta)

Penal Code (XLV of 1860)---

----Ss. 302 & 307/34---Explosive Substances Act (XI of 1908), S. 3---Criminal Procedure Code (V of 1898), Ss. 35 & 397---Constitution of Pakistan, Art. 184(3)---Human rights case---Suo motu review---Different cases of bomb blasts and consequent murders against the accused---Accused was convicted for murder of ten persons and sentenced to death on ten counts; under S.3 of Explosive Substances Act, 1908 and sentenced to death and under S. 302, P.P.C. and sentenced to imprisonment for life---Appeals by accused in such cases were dismissed by High Court and Supreme Court---Powers of Supreme Court to reduce the sentences or direct running thereof concurrently---Scope---Discretionary power vested in a court to direct subsequent sentence to run concurrently with previous sentence awarded to an accused would be exercised in the light of facts of circumstances of each case depending on nature and gravity of offence---Cases registered against accused pertained to bomb blasts and consequent murders, which must have caused a sense of suicidal insecurity---High Court and Supreme Court had already exercised their discretion---No case for suo motu review was made out---Supreme Court dismissed human rights case in circumstances.

Shah Hussain v. State PLD 2009 SC 460 rel

Razzaq A. Mirza, Additional A-G Punjab for Petitioners (in C.P. No. 1393 of 2010)

M. Ilyas Siddiqui, Advocate Supreme Court for Respondent (in C.P. No. 1393 of 2010).

Khushdil Khan, Ex-Director, HR, Balochistan, Arif Ch. Advocate Supreme Court, Legal Consultant M/o Interior Razaq A Mirza, Additional P.-G Punja Azam Khan Khattak Additional A.-G Blochistan, Qasim Mirjat, Advocate Supreme Court on behalf of A.-G Sindh, Raja Abdul Ghafoor, Advocate-on-Record, Asjad Javed Ghural, Additional P.-G. Punjab, Ch. Akhtar Ali, Advocate-on-Record, Mudassir Khalid Abbasi, A.A.-G., Raja Aleem Khan Abbasi, D.A.-G., M. Ramzan Ch. Advocate Supreme Court, Inamul Haq, Advocate Supreme Court (in H.R.C. 3087 of 2006 and C.M.A. 28-Q of 2006).

Date of hearing: 17th October, 2011.

2012 S C M R 345

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Amir Hani Muslim, JJ

MUHAMMAD ANWAR---Appellant

Versus

MUHAMMAD ASLAM and others---Respondents

Civil Appeal No. 1429 of 2006, decided on 4th November, 2011.

(On appeal against the judgment dated 22-5-2006 passed by the Lahore High Court, Multan Bench in Civil Revision No.55-D of 2006).

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

----S. 12---Suit for specific performance of registered sale agreement---Plaintiff's plea was that at the time of oral agreement, defendant received entire sale price in advance and delivered him possession of suit land, which fact was later on acknowledged by defendant while executing suit agreement---Receipt of entire sale price from plaintiff denied by defendant---Statements of marginal witnesses of agreement made in court to the effect that no sale price was paid to defendant in their presence---Defendant's plea that plaintiff had failed to prove payment of entire sale price to him---Validity---Suit agreement was registered and had been exhibited in evidence without any objection---Defendant under suit agreement had acknowledged receipt of entire sale price in advance and delivery of possession of suit land to plaintiff---Defendant once having admitted contents of suit agreement could not take a contrary plea of non-payment of sale price---Such statements of marginal witnesses were immaterial and the plea of defendant was without substance---Suit was decreed in circumstances.

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

----S. 12---Colonization of Government Lands (Punjab) Act (V of 1912), S. 19---Contract Act (IX of 1872), Ss. 31 & 32---Suit for specific performance of agreement to sell State land against its tenant after acquiring its proprietary rights---Tenant's plea was that suit was not maintainable as the agreement was executed without obtaining permission from the Collector---Validity---Agreement showed that its specific performance had been postponed till acquisition of proprietary rights by tenant---Such a reservation in the agreement showed awareness of prohibition, recognition of its legal effect and effort on part of contracting parties to keep themselves well within confines of law to act in accordance with requirements of law---Such agreement was of contingent nature enforceable after conferment of proprietary rights on tenant and could not be termed to be violative of either provisions of S. 19 of Colonization of Government Lands (Punjab) Act, 1912 or public policy behind thereof---Tenant after acquiring proprietary rights had denied to transfer suit land to plaintiff, thus, suit filed by him was competent---Suit was decreed in circumstances.

(c) Contract Act (IX of 1872)---

----Ss.31 & 32---Contingent contract---Enforceability---Scope.

Section 32 of the Contract Act, 1872 provides as to how contingent contracts are enforceable in law. The law allows enforcement of a contingent contract, after the event upon which it was contingent, has happened. In order to seek enforcement of a contingent contract, the party suing to enforce an obligation, which is conditioned upon the occurrence of an event, has only to establish that the event has occurred in a manner contemplated by the contract for the obligation to arise.

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

----Ss. 12 & 27(b)---Suit for specific performance of sale agreement---Subsequent vendee claimed to be bona fide purchaser of suit land without having notice of prior agreement of sale in favour of first vendee--- Proof--- Statement of subsequent vendee to the effect that he was in the knowledge of dispute between vendor and first vendee and that he had attempted to resolve such dispute---Subsequent vendee could not claim to be a bona fide purchaser, in circumstances.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Muhammad Iqbal Khan, Advocate Supreme Court for Appellant.

Arshad Ali Ch., Advocate-on-Record for Respondent No.1

Other Respondents Ex parte

Date of hearing: 20th October, 2011.

2012 S C M R 354

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Sarmad Jalal Osmany, JJ

SHABEER---Petitioner

Versus

THE STATE---Respondent

Criminal P.L.A. No. 84-K of 2011, decided on 28th September, 2011.

(On appeal from order of High Court of Sindh, Circuit Court Larkana dated 15-8-2011 passed in Criminal Bail Application No. 256 of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497 [as amended by Code of Criminal Procedure (Amendment) Act (VIII of 2011)]---Penal Code (XLV of 1860), Ss. 302, 337-H(2), 148, 149 & 120-B---Qatl-e-amd, rash and negligent act, rioting and conspiracy---Bail, grant of---Delay in conclusion of trial---Accused was arrested on 14-11-2007 and since then he had been in the custody---Despite framing of charge on 29-7-2008, no proceedings had been concluded nor there was any reasonable possibility of conclusion of trial in near future---Bail was allowed.

Mahmood A. Qureshi, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner

Zafar Ahmed Khan, Additional Prosecutor-General, Sindh for the State

Date of hearing: 28th September, 2011.

2012 S C M R 356

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

MUHAMMAD ASHRAF KHAN and others---Appellants

Versus

MUHAMMAD KHAN and others---Respondents

Civil Appeal No. 626 of 2007, decided on 2nd December, 2011.

(On appeal from the judgment dated 17-12-2003 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in C.R. No.225-D of 2000).

Specific Relief Act (I of 1877)---

----S. 42--- Qanun-e-Shahadat (10 of 1984), Art. 64--- Suit for declaration---Share of inheritance from suit land claimed by plaintiffs for being collaterals of deceased who died in the year 1946---Defendant's pleas were that after death of deceased, suit land devolved on his widow, who later on gifted same in year 1966 to defendant and that suit challenging such gift was dismissed in year 1977---Validity---Plaintiffs had not denied that one of them, who appeared as plaintiff's witness in the present suit, had also appeared in suit challenging such gift and had disowned in his statement any relationship with deceased or his widow/donor---Pedigree tables of years 1905-06 and 1950-51 showed that plaintiffs were not successors-in-interest of deceased---Insertion of name of predecessor of plaintiff in subsequent pedigree table of year 1991 was not corroborated by evidence led in terms of Art.64 of Qanun-e-Shahadat, 1984---Suit was dismissed in circumstances.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063; Nazir Ahmad and others v. Abdullah and others 1997 SCMR 281; Aswar Muhammad and others v. Sharif Din and others 1983 SCMR 626; Ghulam Abbas v. Muhammad Ashraf 1993 SCMR 2289 and Mst. Reshman Bibi v. Amir and others 2004 SCMR 392 ref.

Ghulam Muhammad and another v. Allah Yar and others PLD 1965 Lah 482 rel

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Appellants.

Sh. Zamir Hussain, Senior Advocate Supreme Court, Gul Zarin Kiyani, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos. 1 to 4, 6 and 7.

Date of hearing: 2nd December, 2011.

2012 S C M R 361

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Ejaz Afzal Khan, JJ

Sheikh KHURSHID MEHBOOB ALAM---Appellant

Versus

Mirza HASHIM BAIG and another---Respondents

Civil Appeals Nos. 807 and 808 of 2007, decided on 20th December, 2011.

(On appeal from the judgment of the Lahore High Court, Lahore dated 10-12-2003 passed in C.Rs. Nos.2284 and 2285 of 2002).

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

----O. XVII, R. 3--- Constitution of Pakistan, Art. 185(3)--- Two consolidated rival suits for pre-emption---Trial Court dismissed respondent's suit on 24-3-1998 for failure to produce evidence despite availing several opportunities, while decreed petitioner's suit on 24-2-1999---Appellate Court accepted appeal filed against dismissal of respondent's suit, while dismissed petitioner's application seeking dismissal of respondent's appeal on ground that decree regarding suit property passed in petitioner's favour had attained finality---­High Court dismissed revision petitions filed by petitioner---­Validity---Supreme Court granted leave to appeal to consider question as to whether penal consequences of O. XVII, R. 3, C.P.C. would attract only when on an earlier occasion time for production of evidence or for doing any other act for progress of case was allowed at request of a party and not otherwise.

Pirzada Amir Hassan v. Mrs. Shamim Shah Nawaz 1984 CLS 3080; Shahnawaz v. Amir Muhammad PLD 1989 Lah 209 and Ghulam Qadir alias Qadir Baksh v. Haji Muhammad Suleman 2002 CLC 1111 ref.

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

----O. XVII, R. 3---Closure of evidence of a party for his failure to produce evidence---Scope---Where case was not adjourned on previous date at request of such party, then his right to lead evidence could not be closed under O. XVII, R. 3, C.P.C.

Shahnawaz v. Amir Muhammad PLD 1989 Lah 209 and Ghulam Qadir alias Qadir Baksh v. Haji Muhammad Suleman 2002 CLC 1111 ref.

Pirzada Amir Hassan v. Mrs. Shamim Shah Nawaz 1984 CLC 3080 and Qutub-ud-Din v. Gulzar PLD 1991 SC 1109 rel

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

----O. XVII, R. 3---Constitution of Pakistan, Art. 185(3)---Two consolidated rival suits for pre-emption---Trial Court dismissed respondent's suit on 24-3-1998 for failure to produce evidence despite availing several opportunities, while decreed petitioner's suit on 24-2-1999---Appellate Court accepted appeal filed against dismissal of respondent's suit, while dismissed petitioner's application seeking thereby dismissal of respondent's appeal on ground that decree passed regarding suit property in petitioner's favour had attained finality--­Dismissal of petitioner's revision petitions by High Court---­Validity---While dismissing respondent's suit for his failure to produce evidence, Trial Court had not referred to any provision of O. XVII, C.P.C., but since his suit was decided and dismissed, thus, court had proceeded under R. 3 thereof---Suits filed by petitioner and respondent had been consolidated, thus, same sought to have been decided together as they both had prayed for decree on same grounds regarding same suit land----Supreme Court dismissed appeal in circumstances.

Qutub-ud-Din v. Gulzar PLD 1991 SC 1109 rel

(d) Constitution of Pakistan---

----Arts.185 & 187---Appellate jurisdiction of Supreme Court---­Scope---Supreme Court would sparingly exercise its jurisdiction under Art.187 of the Constitution, but not in a case when a legal remedy would be available to a party praying for exercise of such power.

Gul Zarin Kiyani, Senior Advocate Supreme Court for Appellant (in both cases).

Malik Amjad Pervaiz, Advocate Supreme Court for Respondent No.1 (in both cases)

Respondent No.2 Ex parte (in both cases)

Date of hearing: 2nd December, 2011.

2012 S C M R 366

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Amir Hani Muslim, JJ

GHULAM AKBAR LANG---Appellant

Versus

DEWAN ASHIQ HUSSAIN BUKHARI and others---Respondents

Civil Appeal No.632 of 2011, decided on 29th November, 2011.

(On appeal against the judgment dated 25-5-2011 passed by the Lahore High Court, Multan Bench in Writ Petition No.11538 of 2010).

(a) Representation of the People Act (LXXXV of 1976)---

----S. 99(1)(cc)(d) & (e)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether High Court had not taken notice of the certificate issued by Higher Education Commission declaring degree of respondent as invalid.

(b) Representation of the People Act (LXXXV of 1976)---

----S. 99(1)(cc)--- University External Candidates Examination Regulations, 1987, Regln. 2---Qualification of candidate---Proof---Respondent was elected as Member of National Assembly and petitioner assailed his office before High Court, on the ground that respondent did not have required qualification and his degree of B.A. was forged and fake---High Court, in exercise of Constitutional jurisdiction, dismissed the petition---Plea raised by petitioner was that Assistant Controller of examination had declared the degree of respondent as invalid---Validity---Assistant Controller of examination, in law, did not have the authority to invalidate a degree secured by a candidate from the university after he was declared to have been passed his B.A. (Pass) examination---Assistant Controller had exceeded his authority by invalidating the degree issued to respondent by the university on the ground that B.A. (Pass) Part-II examination passed by respondent by appearing in both parts of B.A. (Pass) examination in the same year was violative of S. 2 of University External Candidates Examination Regulations, 1987--- No material was placed on record to substantiate that such violation of rules of a university entailed penalty of invalidation of the degree---University authorities had confirmed that B.A. (Pass) degree secured by respondent was neither forged nor invalid and respondent on the strength of such degree of B.A. (Pass) Part-II had passed in his M.A. examination---Supreme Court declined to interfere in the judgment passed by High Court---Appeal was dismissed.

(c) Representation of the People Act (LXXXV of 1976)---

----S. 99(cc)---Disqualification---Penalty---Principles---Disqualification clause under S. 99(cc) of Representation of the People Act, 1976, entails penalty which is attracted only if it is established that the degree secured by returned candidate was forged one and does not extend to attract degrees which have secured validly after passing examination---Passing of examination in deviation of some rules of the university like the one by appearing in both parts of the examination in the same year, in no way, invalidate a degree.

(d) Constitution of Pakistan---

---Art. 199---Civil Procedure Code (V of 1908), S. 11---Constitutional petition---Res judicata, principle of---Applicability---If High Court has already recorded finding on any issue raised which is again raised in subsequent proceedings and finding of High Court in earlier constitutional petition were not set aside, the subsequent petition on the same issue would be barred on the principle of constructive res judicata.

Ahmed Awais, Advocate Supreme Court and Qazi Muhammad Amin, Advocate Supreme Court for Appellant

Tariq Mehmood, Senior Advocate Supreme Court for Respondent No.1.

Khawaja Azhar Rasheed, Advocate Supreme Court for Respondent No.3.

Nemo for Respondents Nos.2, 4, 5 and 6

Date of hearing: 29th November, 2011.

2012 S C M R 371

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Amir Hani Muslim, JJ

COMMISSIONER OF INCOME TAX and another---Petitioners

Versus

Messrs PAKISTAN PETROLEUM LTD. and 2 others---Respondents

Civil Petitions Nos. 340-K, 385-K to 389-K, 520-K of 2009, 392-K to 394-K and 627-K to 630-K of 2011, decided on 19th December, 2011.

(a) Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----S. 2(f)(vi)---Income Tax Ordinance (XXXI of 1979), S. 156---Income Tax Ordinance (XLIX of 2001), S. 221---Constitution of Pakistan, Arts. 4 & 185(3)---Contribution under Workers' Welfare Fund Ordinance, 1971 paid by respondent corporation voluntarily and its reflection in assessment order by Assessing Officer---Assessment order challenged in appeal by respondent without claiming exemption from payment of such contribution---Rectification application by respondent claiming exemption by alleging such contribution made due to an inadvertent and bona fide mistake---Order of Assessing Officer dismissing such application upheld upto High Court---Validity---Under S. 156 of Income Tax Ordinance, 1979, Revenue had power to correct a mistake in tax calculation resulting in a short levy after terming such mistake to be apparent on face of record---­When a mistake resulting in a short levy could be termed as one apparent on face of record and rectifiable, then a mistake resulting in excess payment on part of taxpayer could be similarly treated, otherwise its denial would violate Art. 4 of the Constitution guaranteeing everyone equality before law--­Respondent was admittedly a corporation in which majority shares were as owned by Government, thus, same was covered by S. 2(f) of Workers Welfare Fund Ordinance, 1971---Supreme Court refused to grant leave to appeal in circumstances.

Commissioner of Income-Tax Company's-II, Karachi v. Messrs National Food Laboratories 1992 SCMR 687; Pak-Arab Fertilizers (Pvt.) Limited v. Income Tax Appellate Tribunal of Pakistan and others 2006 PTD 42; Commissioner of Income Tax, Peshawar v. Messrs Gul Cooking Oil and Vegetable Ghee (Pvt.) Ltd. and 6 others 2008 PTD 169 and Sindh High Court Bar Association through Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 789 ref.

Commissioner of Income Tax, Karachi v. Abdul Ghani 2007 PTD 967 distinguished.

(b) Words and phrases---

----"Corporation" and "company"---Definition.

Akhtar Ali Mehmood, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Petitioners (in C.Ps. Nos. 340-K, 385-K to 389-K and 520-K of 2009)

Nasrullah Awan, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.Ps. Nos 392-K to 394-K and 627-K to 630-K of 2011)

Makhdoom Ali Khan, Senior Advocate Supreme Court for Respondents (in C.Ps. Nos. 340-K, 385-K to 389-K of 2009 and 627-K to 630-K of 2011)

Salman Pasha, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents (in C.Ps. Nos. 392-K to 394-K and 627-K to 630-K of 2011)

Date of hearing: 19th December, 2011.

2012 S C M R 377

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Khilji Arif Hussain, J

Dr. Syed SIBTAIN RAZA NAQVI---Petitioner

Versus

HYDROCARBON DEVELOPMENT and others---Respondents

Civil Petition No. 1699 of 2011, decided on 18th November, 2011.

(On appeal from the judgment dated 24-6-2011 of the Islamabad High Court, Islamabad passed in W.P. No. 4088 of 2010).

(a) Limitation Act (IX of 1908)---

----Ss. 5 & 14---Appeal---Condonation of delay---Exclusion of time---Principle--- Time spent in pursuing proceedings before wrong appellate forum could not be excluded for the purposes of filing of an appeal---If appeal is barred by time, provisions of S.5 of Limitation Act, 1908, could only be invoked, that too, by showing sufficient cause.

(b) Limitation Act (IX of 1908)---

----Ss. 5 & 14---"Condonation of delay" and "exclusion of time"---Distinction---Power to condone delay and grant extension of time under S.5 of Limitation Act, 1908, is discretionary, whereas under S.14 of Limitation Act, 1908, exclusion of time is mandatory on the satisfaction of the condition prescribed in it.

(c) Limitation Act (IX of 1908)---

----Ss. 2(10) & 14---Constitution of Pakistan, Art. 185(3)---Word "suit"---Scope---Appeal---Condonation of delay---Exclusion of time---Petitioner filed constitutional petition which was dismissed on 24-6-2011 and filed intra court appeal before Division Bench of High Court, which was dismissed on 22-9-2011, being not maintainable---Petitioner sought exclusion of time spent by him before Division Bench of High Court---Validity---Legislature specifically excluded appeal or application from the purview of "suit"---Benefit of S.14 of Limitation Act, 1908, could not be extended to exclude time consumed in prosecuting an appeal before wrong forum having no jurisdiction, for the purposes of filing of appeal before a forum having jurisdiction---Petitioner instead of filing petition for leave to appeal before Supreme Court, within time, filed the same on 27-10-2011 and did not give any plausible explanation for not filing the same within reasonable time after the dismissal of intra court appeal---Supreme Court declined to condone the delay by excluding time spent by petitioner before Division Bench of High Court---Petition was dismissed.

Sherin v. Fazal Muhammad 1995 SCMR 584 and Tasneem Ismail v. Wafi Associates 2007 SCMR 1464 distinguished.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court and Arshed Ali Chaudhry, Advocate-on-Record for Petitioner

Nemo for Respondents

Date of hearing: 18th November, 2011.

2012 S C M R 380

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Ejaz Afzal Khan, JJ

MUHAMMAD YOUSAF---Appellant

Versus

Mst. AZRA PARVEEN---Respondent

Civil Appeal No. 343 of 2007, decided on 30th November, 2011.

(On appeal from the judgment dated 13-10-2006 passed by Lahore High Court, Lahore in C.R. No.1002 of 2005).

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

----S. 12---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether High Court had appreciated relevant law and evidence on record in its correct perspective while allowing revision petition filed by respondent.

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

----S. 12---Contract Act (IX of 1872), S. 202---Suit for specific performance of agreement to sell---Power of attorney---Authority coupled with interest---Plaintiff sought specific performance of agreement to sell on the ground that after receipt of earnest money, defendant executed power of attorney in his favour---Defendant resisted the suit on the ground that amount received by him from plaintiff was a loan and not part payment of sale consideration---Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court dismissed the same---High Court in exercise of revisional jurisdiction restored judgment and decree passed by Trial Court and set aside that of Lower Appellate Court---Validity---Finding of High Court was correct and amount so received could not be given a colour of loan when preponderance of evidence on record did not tend to support it---Even power of attorney and agreement to sell, execution of which was established through aboveboard evidence, left no foothold for defendant to stand up and deny execution of the same with his chin up, as power of attorney was executed on receipt of sale consideration---Subject matter of agency was coupled with an interest of agent in it---Purpose behind creating the agency was to secure and protect an interest accruing to plaintiff upon payment of amount to defendant-­--Supreme Court declined to agree that no transfer could be made by donee of power of attorney without obtaining consent of its donor---Present was a case of authority coupled with an interest falling within the purview of S.202 of Contract Act, 1872---Judgment and decree passed by High Court was free from any taint of misreading or non-reading of evidence or any other error which could be called jurisdictional---Supreme Court declined to interfere in the judgment and decree passed by High Court---Appeal was dismissed.

Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341; Jamil Akhtar v. Las Baba and others PLD 2003 SC 494 and Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others PLD 2008 SC 389 distinguished.

Halsbury's Laws of England Para 868 rel

Malik Munsif Awan, Advocate Supreme Court for Appellant.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Respondents Nos. 1 and 2.

Date of hearing: 30th November, 2011.

2012 S C M R 385

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Amir Hani Muslim, JJ

COMMANDANT PAKISTAN MILITARY ACADEMY, ABBOTTABAD---Petitioner

Versus

NAZRAN ABBASI and others---Respondents

Civil Review Petition No.31 of 2011 in Civil Petition No.13 of 2011.

(On appeal against the order dated 21-1-2011 passed by this Court in C.P. No. 13 of 2011).

ESTACODE---

----Sr. No.6, para 2---Constitution of Pakistan, Art.188---Review of Supreme Court judgment---Premature retirement---Withdrawal of application---Application of civil servant for withdrawal of his request of premature retirement was allowed by Service Tribunal and the same was maintained by Supreme Court in judgment under review---Validity---No sooner application for premature retirement was accepted, the competent authority did not have any authority to withdraw the same on the basis of subsequent application made for withdrawal of previous application for premature retirement---Supreme Court in exercise of jurisdiction under Art.188 of the Constitution, reviewed its earlier judgment and after converting petition into appeal set aside the judgment passed by Service Tribunal---Appeal was allowed.

Government of Sindh through Secretary S&GAD v. Raja Muhammad Inayat Khan 2000 SCMR 1964; Muhammad Naseer v. Deputy Inspector-General of Police, Multan Range, Multan and another 2005 SCMR 1928; N.E.D. University of Engineering and Technology v. Syed Ashfaq Hussaini Shah 2006 SCMR 453 and Muhammad Nisar Gul Khan v. District Coordination Officer and others 2008 SCMR 1078 distinguished.

F.K. Butt, Advocate Supreme Court for Petitioner.

Nazir Ahmad Butta, Advocate Supreme Court for Respondents.

Date of hearing: 29th November, 2011.

2012 S C M R 387

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Gulzar Ahmed, JJ

MUHAMMAD WASEEM---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 756-L of 2011, decided on 19th December, 2011.

(Against the order dated 19-8-2011 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 8657-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Joint extra judicial confession---Completion of challan---Further inquiry---Contention of accused was that the only evidence against him was of joint extra judicial confession and evidence of witnesses of Wajtakkar---Validity---Extra judicial confession allegedly made by accused and his co-accused prima facie had trappings of a joint confession which was inadmissible in evidence---Witnesses of Wajtakkar evidence had come forward to implicate accused with noticeable delay---Investigation had already been finalized and challan was submitted, thus physical custody of accused was not required for the purposes of investigation---Bail was allowed.

Qazi Misbah-ul-Hassan, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner

Mazhar Sher Awan, Additional Prosecutor-General, Punjab along with Zafar Khan, S.-I., Police Station Saddar Pasrur, Sialkot for the State.

Date of hearing: 19th December, 2011.

2012 S C M R 388

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

Mst. ROHAIFA---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and others---Respondents

Constitution Petition No. 1 of 2012, decided on 10th February, 2012.

(a) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition---Missing persons---Authorities, on the previous date of hearing, had been directed to produce seven such persons before the court, out of which four were reportedly admitted in a hospital and three were allegedly in an Internment Centre---Authorities had filed replies to the direction of the court but compliance of same had not been made---Effect---Detention of persons in Internment Centre would mean that they were in the custody of civil administration because a person cannot be kept in such Center without the sanction of the competent authority/Governor of the Province, and similarly other persons were in a civil hospital, therefore the civil administration ought to have inquired about them---Authorities had the responsibility of complying with the order of the court in letter and spirit and non-appearance of counsel of authorities suggested that reluctance was being shown from producing the said persons before the Supreme Court---Authorities were directed, severally and jointly, to ensure production of said persons before the Supreme Court in safe custody without fail on the next date of hearing---Order accordingly.

(b) Actions (in Aid of Civil Power) Regulation, 2011---

----Regln. 14---Constitution of Pakistan, Art. 184(3)---Constitutional petition---Missing persons---Oversight Board---Authorities, on the previous date of hearing, had been directed to produce seven detenus before the court, out of which three were allegedly in an Internment Centre---Authorities had filed replies to the direction of the court but compliance of same had not been made---Detention of detenus in Internment Centre would mean that they were in the custody of civil administration because a person cannot be kept in such Centre without the sanction of the competent authority/Governor of the Province---Notice was issued to the Governor, through the Chief Secretary to apprise the court as to whether in terms of Regln. 14 of the Actions (in Aid of Civil Power) Regulation, 2011, an Oversight Board had been constituted, and if it was, a report was to be procured from the Board to determine whether they had visited the persons who were allegedly detained in the Internment Centre for the purpose of ascertaining their condition---Order accordingly.

Tariq Asad, Advocate Supreme Court for Petitioner.

Maulvi Anwar-ul-Haq, Attorney-General for Pakistan, Asadullah Chamkani, A.-G., KPK and Imtiaz Ahmad, DSP City, Peshawar on Court Notice.

Ch. Muhammad Yaqoob and J.S. Comdr. Muhammad Hussain Shahbaz, Director Legal, Ministry of Defence for Respondent No.1.

Raja Muhammad Irshad, Senior Advocate Supreme Court (absent) for Respondents Nos. 2 to 4.

Nemo for Respondent No.5.

Date of hearing: 10th February, 2012.

2012 S C M R 392

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ

PAKISTAN STATE OIL COMPANY LIMITED---Appellant

Versus

COLLECTOR OF CUSTOMS, EXCISE AND SALES TAX and others---Respondents

Civil Appeals Nos. 1965 to 1970 of 2007, decided on 29th October, 2009.

(On appeal against the judgment dated 20-3-2007 passed by High Court of Sindh at Karachi in Custom Appeals Nos. 201 to 206 of 2006).

Customs Act (IV of 1969)---

----Ss.32 & 106---Constitution of Pakistan, Art. 185(3)---Mis-declaration of petroleum products to be duty free provisions and stores under S.106 of Customs Act, 1969---Charging of customs duty etc., from Pakistan Navy on supply of such products by the company---Notice under S.32 of Customs Act, 1969 issued to company for having evaded customs duty on such supply---Validity---Supreme Court granted leave to appeal to consider question whether non-payment of customs duty on such supply was intentional, lawful or same was an innocent act on account of long standing practice whereby oil supply was exempted from payment of customs duty.

Sajid Zahid, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant (in all cases)

Raja Muhammad Iqbal, Advocate Supreme Court for Respondents (in all cases)

Date of hearing: 29th October, 2009

2012 S C M R 395

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Sarmad Jalal Osmany and Amir Hani Muslim, JJ

GHULAM MURTAZA---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Petition No.1526 of 2011, decided on 17th November, 2011.

(On appeal against the judgment dated 18-8-2011 passed by Lahore High Court, Rawalpindi Bench in W.P. No.1182 of 2011).

Punjab Mining Concession Rules, 2002---

----R. 185---Demarcation of areas after award of mining leases and reducing mining area of petitioner while increasing that of respondent---Impugned demarcation notification set aside by Appellate Authority, but restored by High Court---Validity---Petitioner's bid of Rs.81 million and that of respondent Rs. 10 million were submitted on the basis of previous demarcation which establish that mining area of petitioner was larger than that for which respondent had submitted its bid---Acting upon impugned notification would be manifestly unfair for the same had significantly reduced the area of mining lease of petitioner and increased that of respondent---Supreme Court accepted appeal while directing the Authority to notify demarcation of disputed areas prior to the auction process in future.

Ahmad Awais, Advocate Supreme Court and Masood A. Qureshi, Advocate-on-Record for Petitioner.

Javad Hasan, Additional A.-G., Punjab for Respondents Nos.2 to 6.

A.R. Sheikh, Advocate Supreme Court for Respondent No.7.

Date of hearing: 17th November, 2011.

2012 S C M R 399

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Sarmad Jalal Osmany, JJ

Mst. GULNAZ---Petitioner

Versus

TANVIR HUSSAIN NADEEM and others---Respondents

Civil Petition No. 1805 of 2011, decided on 13th January, 2012.

(On appeal from the judgment dated 4-10-2011 of the Lahore High Court, Lahore passed in W.P. No. 14695 of 2011).

Administration of justice---

----Dispensation of justice by courts---Primary duty of Prosecution Agencies and Advocates stated.

The Prosecution Agencies, Bar Associations/Advocates are integral part and important components of dispensation of justice system. Without their assistance and cooperation, it is very difficult to deliver the justice within the reasonable period of time. It has been noted that the State is one of the party in major part of litigation in court litigating against their subject without having any proper legal advice, filed appeals one after the other in routine from the money of tax payer against them. The counsel being officers of the courts are under obligation to carefully examine briefs and assist the court with their best efforts and abilities to avoid multiplicity of the proceedings. Their primary responsibility is to act fairly and assist the court in reaching just and equitable conclusion in consonance with law.

Mst. Mehbooba v. Abdul Jalil 1996 SCMR 1063 and Karthiyani Amma v. Padmanabha Pillai AIR 1951 Travancore-Cochin 176 ref.

Sh. Zamir Hussain, Advocate Supreme Court for Petitioner.

Muhammad Farooq Qureshi Chishti, Advocate Supreme Court for Respondents.

Date of hearing: 13th January, 2012.

2012 S C M R 402

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

Maulana ABDUL HAQ BALOCH and others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN and others---Respondents

Civil Petition No. 796 of 2007 and C.M.As. Nos. 4560 and 4561 of 2009 and C.M.A. No. 116 of 2011, C.M.As. Nos. 403 and 406 of 2012, Criminal Miscellaneous A. No.8 of 2011 in C.P. No.796 of 2007, Constitutional Petition No.68 of 2010, Constitutional Petition No.69 of 2010 and Criminal O.P. No.1 of 2011, Constitutional Petitions Nos.1 and 4 of 2011 and Human Rights Case No. 5377-P of 2010.

International Arbitration---

----Public Interest Litigation---Dispute over legality and validity of joint venture agreements between Provincial Government and transnational corporations/international companies---Arbitration over such dispute---Application to stay arbitration proceedings at International Council for Commercial Arbitration (ICCA) and International Centre for Settlement of Investment Disputes (ICSID)---Appointment of arbitrator by Provincial Government---Petitioner had moved an application to direct the respondents not to take further steps in the arbitration of the matter and also withdraw request for arbitration at the International Council for Commercial Arbitration (ICCA) and International Centre for Settlement of Investment Disputes (ICSID), till the Supreme Court decided upon the legality and validity of the joint venture agreements---Validity---Provincial and Federal Government were directed by Supreme Court to make a request to the International Council for Commercial Arbitration (ICCA) and International Centre for Settlement of Investment Disputes (ICSID), not to take any further steps in the arbitration proceedings and extend the period for nomination of arbitrator, so that Supreme Court could finally dispose of the petitions filed before it on the same subject and matter.

Raza Kazim, Senior Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Petitioners (in C.P. 796 of 2007)

Tariq Asad, Advocate Supreme Court for Petitioner in person (in Constitutional Petition No. 68 of 2010)

Barrister Zafarullah Khan, Advocate Supreme Court for Petitioners (in Constitutional Petition No.69 of 2010).

Sahibzada Ahmed Raza Qasuri, Senior Advocate Supreme Court for Petitioners (in Constitutional Petition No.1 of 2011).

Nemo for Petitioners (in Constitutional Petition No.4 of 2011)

Shafi Muhammad Chandio, D.A.-G., Raja Abdul Ghafoor, Advocate-on-Record and Irshad Ali Khokhar, D.-G for M/o. Petroleum

Amanullah Kanrani, A.-G. (Blo), Ahmer Bilal Soofi, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Azhar Ghafar, Dy. Dir. for Government of Balochistan.

Nemo for Balochistan Development Authority

Nemo for Respondent No.6 (in Constitutional Petition No. 68 of 2010)

Raja Muqsit Nawaz Khan, Advocate Supreme Court for Respondent No.7 (in Constitutional Petition No.1 of 2011).

Khalid Anwar, Senior Advocate Supreme Court for Respondent No.4 (in Constitutional Petition No.1 of 2011).

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.4 (in C.P. No. 796 of 2007)

Barrister Sajid Zahid, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents Nos. 5 and 7 (in C.P. No. 796 of 2007).

Khalid Anwar, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.6 (in C.P. No. 796 of 2007)

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondent No.8 (in C.P. No.796 of 2007).

Qazi A. Naeem Qureshi, Advocate Supreme Court (Absent) for State Bank of Pakistan (in C.P. No. 796 of 2007).

Malik Shakeel-ur-Rehman, Advocate Supreme Court (Absent) for the Applicant (in C.M.As. Nos. 3680, 3687 of 2010 and 151 of 2011)

M. Ikram Ch., Advocate Supreme Court (Absent) for the Applicant (in C.M.A. 215 of 2011).

Raja Abdul Rehman, Advocate Supreme Court for the Applicant (in C.M.A. No. 414 of 2011).

Saleem Khan, Advocate Supreme Court (Absent) and Ms. Afshan Ghazanfar, Advocate Supreme Court (Absent) (in C.M.A. No.414 of 2011).

Date of hearing: 7th February, 2012.

2012 S C M R 406

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Gulzar Ahmed, JJ

TEHSIL MUNICIPAL ADMINISTRATION, MURREE---Petitioner

Versus

Messrs PREMIER GAS LINK, LAHORE---Respondent

Civil Petition No. 2353 of 2010, decided on 17th November, 2011.

(On appeal from judgment of Lahore High Court, Rawalpindi Bench dated 31-5-2010, passed in Writ Petition No.1836 of 2010).

Punjab Local Government Ordinance (XIII of 2001)---

----Sixth Sched. Para-27(6)---Constitution of Pakistan, Art. 185(3)---Supreme Court Rules, 1980, O. XXIII, R. 1---Law Reforms Ordinance (XII of 1972), S. 3---Non-sanctioning of plan of building by Authority within statutory period---Order of High Court passed in first constitutional petition directing authority to process petitioner's application for sanction of plan within statutory period---Second constitutional petition by petitioner on failure of Authority to comply with such order of High Court---Similar order passed by High Court in second constitutional petition against authority challenged through intra-court appeal (ICA) instead of petition for leave to appeal before Supreme Court---Dismissal of intra court appeal for being non-maintainable---Dismissal of petition for leave to appeal by Supreme Court filed against dismissal of intra court appeal---Filing of second petition for leave to appeal before Supreme Court against order of High Court passed in second constitutional petition---Delay of 92 days---Application by Authority for condoning such delay by excluding time consumed in filing intra court appeal and then first petition for leave to appeal---Validity---Nothing was available on record to show that such exercise of litigation undertaken by Authority was bona fide---Conduct of officials of Authority had throughout been found to be shabby as they had failed to fulfil their statutory obligations to approve or reject such plan within statutory period even after such orders of High Court, which was binding upon them---Authority was not entitled to condonation of such inordinate delay on account of some ill-advised litigation before wrong forum---Supreme Court dismissed petition for leave to appeal for being time barred.

Sadiq Mohy-ud-Din v. Secretary, District Allotment Committee 1981 SCMR 817; Noor Muhammad v. Assistant Commissioner 1986 SCMR 292 and Hajran Khatoon v. Chief Settlement Commissioner Punjab 1987 SCMR 1153 ref.

Muhammad Shauaib Abbasi, Advocate Supreme Court for Petitioner.

Gul Zarin Kiyani, Senior Advocate Supreme Court for Respondent.

Date of hearing: 17th November, 2011.

2012 S C M R 409

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Ejaz Afzal Khan, JJ

COLLECTOR OF CUSTOMS and others---Appellants

Versus

MAPLE LEAF CEMENT FACTORY LTD. and others---Respondents

Civil Appeals Nos. 1946, 1258 of 2000, 1307 of 2001 and 1802 of 2005, decided on 21st December, 2011.

Customs Act (IV of 1969)---

----Ss.19 & 193---Machinery for Cement Plant imported pursuant to S.R.O. No.484(I)/92, dated 14-5-1992 exempting same from customs duty for not being locally manufactured---Show-cause notice issued by Authority demanding customs duty on such machinery alleging the same being manufactured locally---Revenue's plea before Supreme Court was that if respondent was prepared to file reply to such notice by raising pleas available to him under law, Authority would have decided same accordingly---Supreme Court set aside impugned judgment of the High Court and directed the appellant to file reply to such notice within specified time, and in case of failure to do so, Authority would proceed against him in accordance with law.

Izharul Haq, Senior Advocate Supreme Court for Appellants (in C.As. Nos.1946 of 2000 and 1307 of 2001)

Raja Muhammad Iqbal, Advocate Supreme Court for Appellants (in C.As. Nos.1258 of 2000 and 1307 of 2001

M. Bilal, Senior Advocate Supreme Court for Appellants (in C.As. Nos.1258 of 2000 and 1307 of 2001)

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court for Appellants (in C.A. No.1802 of 2005).

Mehmood A. Sh., Advocate-on-Record for Appellants (in C.A. 1946 of 2000)

Gohar Ali Khan, Advocate Supreme Court for Appellants (in C.A. No. 1802 of 2005).

Salman Akram Raja, Advocate Supreme Court for Respondents (in C.A. No. 1946 of 2000).

Khawaja Muhammad Farooq, Senior Advocate Supreme Court for Respondents (in C.A. No. 1258 of 2000).

Salman Aslam Butt, Advocate Supreme Court for Respondents (in C.A. 1307 of 2001).

Raja Muhammad Iqbal, Advocate Supreme Court for Respondents (in C.A. 1802 of 2005).

Akhtar Ali Mahmud, Advocate Supreme Court for Respondents (in C.A. 1802 of 2005).

Sharif-ud-Din Pirzada, Senior Advocate Supreme Court for Respondents (in C.A. No.1307 of 2001)

Date of hearing: 21st December, 2011.

2012 S C M R 412

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Sarmad Jalal Osmany, JJ

NATIONAL ASSEMBLY OF PAKISTAN through Speaker---Petitioner

Versus

MUHAMMAD ASLAM SHAMI and others---Respondents

Civil Petitions Nos. 756 and 1046-L of 2011, decided on 20th January, 2012.

(On appeal against the judgment dated 18-3-2011 passed by Federal Service Tribunal, Lahore in A. No. 310(L) of 2010).

Civil service---

----Deputation---Permanent absorption of deputationist in borrowing department--- Scope--- Proposal for such absorption must be initiated by borrowing department at least six months before expiry of deputation period---Deputationist in case of non-acceptance of such proposal would revert back to his parent department---Illustration.

ESTACODE and Hamida Begum v. Government of Pakistan, Ministry of Education through Secretary and others 2010 PLC (CS) 297 rel.

Athar Minallah, Advocate Supreme Court, Dil M. Alizai, D.A.-G. and Saadat Hussain, L.O. for Petitioner.

Akram Gondal, Advocate Supreme Court for M. Aslam Shami.

Khadim Hussain Qaiser, A.A.-G. and M. Akram, D.R. (LHC) for Government of Punjab/H.C.

Date of hearing: 20th January, 2012.

2012 S C M R 416

[Supreme Court of Pakistan]

Present: Javed Iqbal, Asif Saeed Khan Khosa and Amir Hani Muslim, JJ

COLLECTOR OF CUSTOMS and another---Appellants

Versus

Messrs FATIMA ENTERPRISES LTD. and others---Respondents

Civil Appeals Nos. 231, 232 of 2004 and 949 of 2007, decided on 5th April, 2011.

(On appeal from judgment dated 16-7-2003 of the High Court of Sindh, Karachi, passed in C.Ps. Nos. 350 and 351-D of 1995 and judgment dated 16-2-2006 passed in Spl. Customs Reference Application No. 174 of 2005).

Customs Act (IV of 1969)---

----Ss.80 & 193---Refund claim---Such claim was refused by the Authority, but accepted by High Court---Plea of Revenue was that demand raised under S.80 of Customs Act, 1969 was appealable under S.193 thereof against imposition of enhanced customs duty and that High Court could not set aside demand/order of Authority for payment of customs duty from petitioner, when alternate remedy was available to him---Validity---High Court while passing impugned judgment had encroached upon jurisdiction of Collector (Appeals)---High Court could not have decided such factual controversy---Supreme Court set aside impugned judgment of High court in circumstances.

Raja Muhammad Iqbal, Advocate Supreme Court for Appellants.

Nemo for Respondent No.1

Maulvi Anwar-ul-Haq, Attorney-General for Pakistan for Respondents Nos. 2 and 3

Shaiq Usmani, Senior Advocate Supreme Court for Respondent No.4.

Date of hearing: 5th April, 2011.

2012 S C M R 419

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

MUHAMMAD ASHRAF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.447 of 2007, decided on 3rd January, 2012.

(On appeal from the judgment dated 9-5-2006 in Cr. A. No.1796 of 2004 passed by the Lahore High Court, Lahore).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art.185(3)---Qatl-e-amd---Delay in lodging F.I.R.---Delay in conducting post mortem---Post mortem report contradicting the ocular account---Dishonest improvements by prosecution's witnesses in their statements---Witnesses related to deceased---Motive not proved---Plea of grave and sudden provocation by accused---Leave to appeal was granted by Supreme Court to consider whether the case against accused was proved beyond reasonable doubt.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Trial Court convicted the accused under S.302(b), P.P.C., and sentenced him to imprisonment for life, while the co-accused was acquitted---Appeal of accused was dismissed by the High Court---Contention of accused was that F.I.R. was not recorded promptly and both eye-witnesses were not present at the spot and made dishonest improvements in their statements---Validity---Incident had allegedly taken place in the evening and F.I.R. was lodged at 9 p.m. on the same day, but post-mortem was conducted on the next morning at 10 a.m., which raised the question that if F.I.R. was recorded with such promptitude, why the postmortem was conducted with such a delay---Postmortem report provided time between death and conduct of postmortem as fifteen to sixteen hours, so, F.I.R. recorded with delay could not be used against the accused as a corroborative piece of evidence---Medical evidence contradicted the ocular account that the incident was promptly reported---Prosecution had produced two witnesses, father and brother of the deceased, to prove the ocular account, but both were related with the deceased and said eye-witnesses were chance witnesses as the incident had not taken place in front of their places of residence or business---Quarrel took place at the spur of the moment and it was questionable as to how the witnesses reached the spot and saw the incident---Said witnesses claimed to have seen the incident and attributed only one injury to the accused at the back of deceased's ear, but failed to explain the two injuries caused with a blunt weapon on the forehead and left eye of the deceased---Same witnesses, when appearing before Trial Court, had attributed the blunt weapon injuries to the co-accused who was allegedly armed with sota---Improvements were introduced by said witnesses to bring the ocular version in line with the medical evidence and High Court had found that they made dishonest improvements in their statements recorded under Ss. 154 and 161, Cr.P.C, qua the role ascribed to the co-accused---Motive had not been proved through the evidence on record and recovery of hatchet was also of no help to the prosecution as same was not stained with blood---Accused's appeal was dismissed by the High Court and Supreme Court granted leave to appeal to consider whether the case against accused was proved beyond reasonable doubt---Accused had taken a specific plea of grave and sudden provocation claiming that the deceased had illicit relations with his wife, due to which he had shifted his place of residence and started living at a place far from the deceased's house, and the incident took place when accused saw his wife in compromising position with the deceased---Accused had stated that deceased succeeded in running away from the place of incident and he followed him and injured him with a hatchet---Accused neither appeared in his defence plea as required under S.340(2), Cr.P.C, nor produced any evidence to support his defence plea and witnesses had also denied such plea of accused---Defence plea of accused was not accepted---Prosecution, however in circumstances, having failed to prove the case against the accused beyond any reasonable doubt, conviction and sentence awarded to accused were set aside and he was acquitted of the charge---Appeal was allowed accordingly.

M. Ghufran Khurshid Imtiazi, Advocate Supreme Court for Appellant.

Asjad Javed Ghoral, Additional P.-G. Punjab for the State.

Date of hearing: 3rd January, 2012.

2012 S C M R 424

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Tariq Parvez, Mian Saqib Nisar and Amir Hani Muslim, JJ

Syed YOUSAF RAZA GILLANI, PRIME MINISTER OF PAKISTAN---Appellant

Versus

ASSISTANT REGISTRAR, SUPREME COURT OF PAKISTAN and another---Respondents

Intra Court Appeal No.1 of 2012, decided on 10th February, 2012.

(Against the order dated 2-2-2012 passed by this Court in Criminal Original No.6 of 2012).

Contempt of Court Ordinance (V of 2003)---

----Ss. 17 & 19---Constitution of Pakistan, Art.204---Contempt of Court---Supreme Court had directed the Federal Government and the Prime Minister as Chief Executive to take immediate steps, including writing a letter to foreign authorities/courts, to seek revival of requests for mutual assistance from foreign authorities/courts for securing the status of civil party and claims launched relating to the allegedly laundered money lying in foreign countries, but same was not done---Show-cause notice was issued to the appellant (Prime Minister) under S.17(1) of Contempt of Court Ordinance, 2003, and he was called upon to show cause as to why contempt proceedings should not be taken against him for not complying with the direction of the Supreme Court for the revival of the proceedings outside the country, which could only be possible under the Rules of Business by the Federal Government through the Chief Executive---Appellant's contention was that sufficient opportunity had not been provided to him to put up his case before the Supreme Court and that the impugned order having been passed without assigning any reason---Validity---Impugned order having been passed strictly in accordance with the provisions of S.17(1) and (3) of Contempt of Court Ordinance, 2003, following the settled principles of the criminal administration of justice, appeal was dismissed.

Aitzaz Ahsan, Senior Advocate Supreme Court, assisted by Gohar Ali Khan and M.S. Khattak, Advocate-on-Record for Appellant.

Nemo for Respondents.

Date of hearing: 9th and 10th February, 2012.

2012 S C M R 428

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Ejaz Afzal Khan, JJ

ZEESHAN @ SHANI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.499 of 2009, decided on 26th December, 2011.

(On appeal from the judgment dated 9-6-2009 of the Lahore High Court, Rawalpindi Bench passed in Criminal Appeal No.477-T of 2006).

(a) Anti-Terrorism Act (XXVII of 1997)---

----S. 7(a) & (b)---Terrorism---Death due to terrorist act---Reappraisal of evidence---Benefit of doubt---Identification of accused---Delay in F.I.R.---Investigation of police encounter---Police claimed that accused opened fire on police party which resulted into death of one constable---Accused was convicted and sentenced to death by Trial Court but High Court converted the sentence into imprisonment for life---Plea raised by accused was that it was night time occurrence and identity of assailant was not proved on record---Validity---Allegation that accused was already known to complainant and prosecution witnesses remained unproved and unsubstantiated, as accused had neither criminal background nor involvement of accused was proved on the record---Question as to how could the complainant and prosecution witnesses identify the accused, was unanswered---Delay of more than one hour in lodging report had also given rise to the inference that occurrence did not take place in the manner projected by prosecution and time was consumed in making effort to give a coherent attire to prosecution case, which hardly proved successful---Such delay was all the more fatal when police station, besides being connected with the scene of occurrence through a metalled road, was at a distance of 11 kilometers from the latter---Supreme Court observed that standard of proof should have been far higher as compared to any other criminal case, when according to prosecution, it was a case of police encounter and it was desirable and even imperative that such case should have been investigated by some other agency, as police in such case, could not have been investigators of their own cause---Such investigation which was woefully lacking independent character could not be made basis for conviction in a charge involving capital sentence, that too when it was riddled with many lacunas and loopholes, quite apart from the after-thoughts and improvements---To maintain conviction and sentence of accused in such circumstances would not be in accord with safe administration of justice---Supreme Court extended benefit of doubt to accused and acquitted him of the charge---Appeal was allowed.

(b) Penal Code (XLV of 1860)---

----S. 302---Qatl-e-amd---Forensic Science Laboratory report---Matching of empties with weapon---Effect---Such report, at the best, can be taken as corroborative and not evidence of the charge---Report of Forensic Science Laboratory cannot prove guilt of accused where his identification has not been established beyond doubt.

Nazir Ahmad Rathor, Advocate Supreme Court for Appellant.

Ch. Zubair Ahmed Farooq, Additional P.-G. Punjab for the State.

Date of hearing: 26th December, 2011.

2012 S C M R 433

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Mahmood Akhtar Shahid Siddiqui and Amir Hani Muslim, JJ

FAZAL-E-RABBI and others---Petitioners

Versus

Messrs NATIONAL AGRICULTURE LIMITED and others---Respondents

Civil Review Petition No. 47 of 2005 and Civil Miscellaneous Application No. 3019 of 2007 in Civil Appeal No. 663 of 2001, Civil Review Petition No.331 of 2005 and Civil Miscellaneous Application No. 3018 of 2007 in Civil Appeal No. 663 of 2001 and Civil Miscellaneous Application No. 6178 of 2006 in Civil Appeal No. 663 of 2001, decided on 27th April, 2011.

(a) Supreme Court Rules, 1980---

----O.XXVI, R.1---Constitution of Pakistan, Art. 188---Civil Procedure Code (V of 1908), O.XLVII, R.1--- Review of Supreme Court judgment---Plea was that impugned judgment did not find mention of required legal grounds and evidence in its support---Validity---Impugned judgment did contain most of required legal conditions having been made grounds for decision of appeal---Review petition was dismissed, in circumstances.

(b) Supreme Court Rules, 1980---

----O.XXVI, R.1---Review of Supreme Court judgment---Request by another counsel to represent petitioner in place of original counsel having appeared in the main appeal---Validity---Original counsel though being available had not appeared in review petition, thus, another counsel could not be permitted to represent the petitioner---Supreme Court dismissed review petition, in circumstances.

Jehangir A. Jhojha, Senior Advocate Supreme Court for Petitioners (in C.R.P. No. 47 of 2005 and C.M.A. No. 3019 of 2007 in C.A. No. 663 of 2001).

S.M. Zafar, Senior Advocate Supreme Court for Respondent No.1 (in C.R.P. No. 47 of 2005 and C.M.A. No. 3019 of 2007 in C.A. No. 663 of 2001).

Gulzarin Kiyani, Senior Advocate Supreme Court for Applicant (in C.M.A. No. 3019 of 2007).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Petitioners (in C.R.P. No. 331 of 2005 and C.M.A. No. 3018 of 2007 in C.A. No. 663 of 2001).

Jehangir A. Jhojha, Senior Advocate Supreme Court for Respondents Nos. 1 and 2 (in C.R.P. No. 331 of 2005 and C.M.A. No.3018 of 2007 in C.A. No. 663 of 2001).

S.M. Zafar, Senior Advocate Supreme Court for Respondent No.3 (in C.R.P. No. 331 of 2005 and C.M.A. No. 3018 of 2007 in C.A. No. 663 of 2001).

Gulzarin Kiyani, Senior Advocate Supreme Court for Applicant (in C.M. No. 3018 of 2007).

Zulfiqar Khalid Maluka, Advocate Supreme Court for Applicant (in C.M.A. No. 6178 of 2006 in C.A. No. 663 of 2001).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Intervener (in C.M.A. 6178 of 2006 in C.A. No. 663 of 2001).

S.M. Zafar, Senior Advocate Supreme Court for National Agriculture Ltd. (in C.M.A. No. 6178 of 2006 in C.A. No. 663 of 2001).

Date of hearing: 27th April, 2011.

2012 S C M R 437

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., and Khilji Arif Hussain, J

SUO MOTU ACTION REGARDING NON-PAYMENT OF THE COMPENSATION AMOUNT TO THE POOR ELECTRICIAN, WHO HAS BEEN PRESSURIZED BY THE POLITICAL FIGURE OF PML(N) AS WELL AS BY THE POLICE TO ENTER INTO A COMPROMISE WITH THE ACCUSED MURDERERS OF HIS 12 YEARS OLD SON: In the matter of

Suo Motu Case No. 19 of 2011, decided on 13th December, 2011.

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

----S. 156---Conducting of investigation---Principle---Investigating agency to conduct case properly with full determination and commitment instead of unnecessarily allowing concession to persons, if they are involved in commission of offence.

(b) Penal Code (XLV of 1860)---

----Ss.310 & 323---Diyat amount---Determination---Mode of payment---Dispute regarding Diyat amount arose between the parties after compromise of offence---Validity---Amount of Diyat would be determined according to prevailing rate of Diyat at the time when compromise was effected because it was the accused who actually requested victim party to favour him and if, as a result, such favour was extended then payment of compensation should be determined and made at the rate prevailing at the time when compromise was effected and executed by the court---Word "property", under explanation to S.310, P.P.C., included both movable and immovable property, therefore, compensation equal to Nisab prevailing at the time when compromise was effected after determining the value of moveable and immovable property could also be paid---Supreme Court directed the Trial Court to dispose of the matter expeditiously---Matter was disposed of accordingly.

Abdul Ghafoor v. State 1992 SCMR 1218; Ali Sher v. State 1992 PCr.LJ 1583; Safdar Ali v. State PLD 1991 SC 202; Niaz v. State 2009 PCr.LJ 1479 and Ali Dost v. State 2006 PCr.LJ 80 ref.

Maulvi Anwar-ul-Haq, Attorney-General for Pakistan, Muhammad Hanif Khatana, Additional Advocate-General, Punjab, Jawad Hassan, Additional A.-G., Punjab, Aftab Cheema, RPO Faisalabad, Bilal Siddiqui Kamyana, CPO Faislabad, Ashiq Ali, DSP, Mansha, SI/IO and Shahid Ali Complainant in Attendance.

Date of hearing: 13th December, 2011.

2012 S C M R 440

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Jawwad S. Khawaja and Ijaz Ahmed Chaudhry, JJ

MUHAMMAD AKRAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 146 of 2011, decided on 7th December, 2011.

(On appeal from the judgment dated 18-10-2010 in Cr. A. No.898 of 2005, M. R. No. 466 of 2005 passed by the Lahore High Court, Lahore).

(a) Penal Code (XLV of 1860)---

----Ss. 302(b)(c) & 100---Reappraisal of evidence---Two versions---Principle---In case of two versions, one is to be believed in toto and not in piecemeal.

(b) Penal Code (XLV of 1860)---

----Ss. 100 & 302(b)(c)---Criminal Procedure Code (V of 1898), S.342---Qatl-e-amd---Reappreaisal of evidence---Right of self-defence---Benefit of doubt---Cross-version---Effect---Trial Court convicted accused under S.302(b), P.P.C. and sentenced him to death but High Court converted conviction under S.302(c), P.P.C. and sentenced him to fifteen years of imprisonment---Validity---Except for oral statements of eye-witnesses there was nothing on record which could establish the presence of both the eye-witnesses at the spot and as their presence at the spot was doubtful, no reliance could be placed on their testimonies to convict accused on a capital charge---Same set of evidence was disbelieved regarding involvement of co-accused, as such, the same evidence could not be relied upon in order to convict the accused on a capital charge as statements of both eye-witnesses did not find any corroboration from any piece of independent evidence---Report of Forensic Science Laboratory regarding status of pistol, recovered from accused along with crime empties, though the same were sent to Forensic Science Laboratory, was not produced by prosecution---Mere recovery of pistol from accused alone was not sufficient to corroborate ocular account which was not believable---When both versions were kept in juxtaposition, the version put forward by accused appeared to be natural and was believable---Accused received five fire-arm injuries at the hands of deceased and his companions fell semi-unconscious and in such state of affairs only and only in order to save his life fired a single shot which hit the deceased due to which he lost his life---Explanation and stance of accused was natural as the deceased and his companions were not abstaining themselves from further firing on the accused and their further firing could have taken life of accused, who had acted in his self-defence and not exceeded the same---Supreme Court set aside conviction awarded to accused by both the courts and he was set at liberty---Appeal was allowed.

Safdar Ali v. Crown PLD 1953 FC 93; Nadeem ul Haq Khan and others v. The State 1985 SCMR 510; Munshi Ram and others v. Delhi Administration AIR 1968 SC 702; Mashal Khan v. The State PLD 1988 SC 25; Muhammad Younas v. The State 1992 SCMR 1592; Mukhtar Ahmad v. The State PLD 2002 SC 792 and Saeed Muhammad v. The State 2007 SCMR 203 rel.

(c) Penal Code (XLV of 1860)---

----S. 97---Right of self-defence---Scope---Right of self-defence is recognized by law but it is to be exercised if circumstances so warrant---Every citizen is entitled to resist attack and defend himself and his property when he or his property is faced with danger and when immediately State machinery is not readily available---Citizen is entitled to protect himself and his property in circumstances.

Mir Afzal, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

M. Irfan Malik, Additional P.-G. for the State.

Date of hearing: 7th December, 2011.

2012 S C M R 448

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain, Tariq Parvez

and Sarmad Jalal Osmany, JJ

IMRAN KHAN and others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Constitution Petitions Nos. 31 of 2011, 45 and 57 of 2007, decided on 6th February, 2012.

(a) Constitution of Pakistan

----Arts. 218, 219(b) [as amended by the Constitution (Eighteenth Amendment) Act (10 of 2010)] & 184(3)---Election Commission, duties of---Bye-elections held not in accordance with the Constitution---Effect---Suspension of notification of Members of Senate, National Assembly and Provincial Assemblies---Under Art. 219(b) of the Constitution (as amended by the Constitution (Eighteenth Amendment) Act (10 of 2010)), bye-elections of members of Senate, National Assembly and Provincial Assemblies were to be organized by the Election Commission but instead same were conducted by the Election Commissioner, which was not in accordance with the Constitution---Representatives, who got elected through such bye-elections were sent several notices and after a lapse of considerable period no progress had been made by the Government, Election Commissioner and Election Commission to resolve the matter, except for informing the court that efforts were being made to lay a Constitutional Amendment before the National Assembly and Senate to rectify the matter---Parliamentarians and Members of Provincial Assemblies who got elected through said bye-elections, having the knowledge that their election was not in accordance with the Constitution, they should have voluntarily stayed themselves from functioning in either capacity in order to uphold the command and the supremacy of the Constitution till the rectification by incorporating the Constitutional Amendment---Supreme Court exercised restraint and instead of declaring the bye-elections as unconstitutional directed that notifications issued by the Election Commission in respect of the said Parliamentarians and Members of Provincial Assemblies should remain suspended with all constitutional and legal consequences till the time rectification had not been obtained through a Constitutional Amendment and as soon as such Constitutional Amendment was passed in accordance with the Constitution, their membership would stand revived without any order by the court.

(b) Constitution of Pakistan---

----Arts. 218(3), 219 & 184(3)---Election Commission, duties of---Bye-elections---Bogus voters' list---Good number of voters had been found bogus and illegal, in the voters' list therefore, election could not be held on the same---Bye-elections in constituencies could not be organized on the basis of bogus voters' list as such elections would be against the command of Art. 218(3) of the Constitution, which cast a duty upon the Election Commission to conduct elections and to make such arrangements as were necessary to ensure that election was conducted honestly, justly and fairly and in accordance with the law and that corrupt practices were guarded against--- Election Commission was bound to ensure that elections in constituencies were held according to unpolluted and free from bogus/verified electoral list.

(c) Constitution of Pakistan---

----Arts. 218(3) & 219---Election Commission, duties of---Voters' list---Election Commission was bound to ensure that elections in constituencies were held according to unpolluted and free from bogus/verified electoral list.

(d) Constitution of Pakistan---

----Third Sched. & Arts. 65 & 127---Oath of Office---Members of Senate, National Assembly and Provincial Assemblies are bound with the mandate of the Constitution because of their oath.

(e) Constitution of Pakistan---

----Third Sched. & Art. 178---Oath of Office---Judges of Supreme Court---Judges of the Supreme Court are bound to protect and preserve the Constitution.

Hamid Khan, Senior Advocate Supreme Court and Muhammad Waqar Rana, Advocate Supreme Court for Petitioners (in Constitutional Petition No.31 of 2011).

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court and Jehangir Badar, Secy. Gen., PPPP for Petitioners (in Constitutional Petition No.45 of 2007).

Zafarullah Khan, Petitioner in person (in Constitutional Petition No.57 of 2007).

Begum Nasim Chaudhry, MNA/Chairperson Standing Committee of National Assembly on Law, Justice and Parliamentary Affairs, voluntarily appeared.

Dil Muhammad Alizai, D.A.-G. for the Federation.

Syed Sher Afgan, D.-G. (Election) and Muhammad Nawaz, Director for Election Commission.

Afnan Karim Kundi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for NADRA.

Naseer Ahmed Bhutta, Advocate Supreme Court (on behalf of Sardar Mumtaz Khan, MNA, Sardar Muhammad Shafqat Hayat Khan, MNA and Ch. Tassaduq Hussain Khan, MNA), Ibadur Rehman Lodhi, Advocate Supreme Court (on behalf of Syed Ahmed Mujtaba Gillani, Ijaz Ahmed Kahlon and Malik Ghulam Raza MPAs), Mehmood A. Sheikh, Advocate-on-Record (on behalf of Jamshed Dasti, MNA and Mrs. Rana Rizvi, MPA), Qari Abdul Rashid, Advocate Supreme Court (on behalf of Ghulam Qadir Bhetani and Rashad Khan, MPAs, KPK), Zulfiqar Ahmed Bhutta, Advocate Supreme Court (on behalf of Syed Sajid Hussain Zaidi, Senator and Haji Khuda Bux Rajavi MNA) and Shah Khawar, Advocate Supreme Court (absent) (on behalf of Mrs. Rana Rizvi, MPA Punjab) and Ch. Asghar Ali Jutt, MNA (in person) for Parliamentarians on Court Notice.

Abdul Hafeez Sheikh, Senator, Dr. Asim Hussain, Senator, Mst. Khadija Aamir Yar Malik, MNA, Sardar Awais Ahmed Khan Leghari, MNA, Muhammad Akhtar Kanju, MNA, Syed Basit Ahmed Sultan, MPA Punjab, Mian Muhammad Ajmal Asif, MPA Punjab, Sardar Meer Badshah Qaisrani, MPA Punjab, Malik Saif-ul-Malook Khokhar, MPA Punjab, Mst. Humaira Awais Shahid, MPA Punjab, Safiuddin Khalid, MPA Sindh, Arif Masih, MPA Sindh, Rasheed Khan Bhahi, MPA Sindh, Chettan Mal, MPA Sindh and Molvi Muhammad Sarwar, MPA Balochistan, absent Parliamentarians.

Date of hearing: 6th February, 2012.

2012 S C M R 455

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Ejaz Afzal Khan, JJ

Dr. AKHTAR HASSAN KHAN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. 5 and 15 of 2004, C.M.A No.4251 of 2011 and H.R.C. No. 14144-S of 2009, decided on 29th November, 2011.

(a) Privatization Commission Ordinance (LII of 2000)---

----Preamble & Part V--- Constitution of Pakistan, Art. 184(3)---Constitutional petition--- Privatization of--- Validity and legality of privatization---Private Foundation successfully bid for the Bank as the highest bidder, which was accepted by the Privatization Commission on 30th of December, 2003 as it found the Foundation's bid to be higher than the reference price---State Bank of Pakistan also provided their clearance for declaring the Foundation as successful bidder and Cabinet Committee on Privatization (Privatization Committee) accepted the recommendation of the Privatization Commission, and the Foundation paid the initial sale price and entered into an agreement on 26th of February 2004 with the Privatization Committee and the State Bank of Pakistan for the purchase of 51% share of the government stake in the Bank and for taking over the management of the Bank---Contention of petitioners was that privatization of Bank had been carried out in haste, in a non-transparent manner and on the desire of the International Monetary Fund (IMF)---Validity---Federal Government examined the issue of privatization of the Bank in the year 1995 and a summary was initiated, report was requisitioned from the Bank which among other things included taking ways and means to improve the performance of the Bank so as to make it a profit earning enterprise rather than a loss making entity for sale---Privatization Commission in December 1998, invited Expressions of Interest in relation to sale of 26% shares of the Bank and eight parties submitted the Expression of interest, and Commission thereafter, called for Statement of Qualification from potential bidders, but this process had to be abandoned in view of the military takeover in October, 1999---Privatization Commission Ordinance, 2000 was promulgated to provide a legal regime to the privatization process and the Commission appointed a firm of Chartered Accountants as the Financial Advisor for such exercise---Being dissatisfied with the number of statement of qualifications submitted in the year 2002, Commission once again called for Expression of interest in April 2003 and this time 19 parties submitted the expression of interest followed by submission of statement of qualifications---Said statements of the bidders were examined by a Pre-qualification Committee and such bidders were also granted access to all the relevant information regarding the Bank and its assets so that the bidders could carry out due diligence at their end---Commission in November 2003, decided that while bidders would be required to bid for 51% of the issued and paid up capital of the Bank, they would also have the option of either purchasing the entire 51% stake at once or first to acquire a 26% or more stake with management control and then pay for the remaining stake within a period of not exceeding two years---Pre-qualification Committee formed by the Commission in its meeting, held in December, 2003, permitted three potential bidders to participate in the bidding process, including, the Foundation---Reference price recommended by the Financial Advisor was Rs.20.609 billion for the value of government stake of 51% in the Bank which was being invested, however, said reference price was revised by the Commission itself and fixed at Rs.22.143 billion, which was also later approved by the Cabinet Committee on Privatization (Privatization Committee)--- Bidding for the sale of 51% shares was held on 29-12-2003 but only two parties, including the Foundation submitted the bidding documents and the earnest money---Highest bid was received from the Foundation and was accepted by the Privatization Commission in its meeting on 30th of December, 2003 as it found it to be higher than the reference price of Rs. 22.143 billion---State Bank of Pakistan also provided their clearance for declaring the Foundation as successful bidder vide letter dated 31st December, 2003 and Privatization Committee accepted the recommendation of the Privatization Commission on 1st of January 2004, and the Foundation paid the initial sale price and entered into an agreement on 26th of February, 2004 with the Privatization Committee and the State Bank of Pakistan for the purchase of 51% share of the government stake in the Bank and for taking over the management of the Bank---Privatization of Bank was part of the overall policy of privatization whereby several financial institutions were disinvested to improve their financial viability---Process of privatization of the Bank, in circumstances, showed that the impugned privatization was neither done in utter haste nor it was institution specific---Decline in financial worth of the Bank could be gathered from a comparison of its 50% share of the local commercial banking market prior to its nationalization with the volume of its non-performing loans after nationalization which grew from Rs. 25.00 billion to Rs. 198.00 billion in the period between 1989 to 1998---Privatization Commission and Committee were conscious of the history of the Bank's privatization, the critical state of its finances and how the earlier attempts made since 1995 could not be successful, which must have made them wiser to take every step with care and without unnecessary delay to search for a credible buyer---Nationalized banks were privatized because they were no longer profit bearing enterprises and their poor performance and dismal balance sheets was attributable to a host of factors, including overstaffing, over-branching, political interference for grant and recovery of loans leading to huge portfolios of non-performing loans, under capitalization, poor customer services and lack of professional management---Adverse effects of growing losses on national economy were some of the compelling reasons requiring privatization of the Bank---Contention of petitioners that impugned privatization was undertaken merely at the behest of the International Monetary Fund (IMF) or done in undue haste, lacked any concrete proof and entailing factual inquiry could not be a valid basis for interference in constitutional jurisdiction of the Supreme Court---Mere advice or suggestion from an international financial institution, which assists and aids developing countries towards economic progress, may not amount to a pressure of the kind to have deprived the competent authority under the law to have taken independent decision---Better performance and rising profits of the Bank justified the impugned process of sale and made it a credible exercise---Approval of the Bank's privatization by the Privatization Committee was within the purview of Privatization Commission and the whole process did not reflect violation of any statutory provision---Constitutional petition was dismissed, in circumstances.

(b) Privatization Commission Ordinance (LII of 2000)---

----Preamble & Part V---Privatization Commission (Modes and Procedures) Rules, 2001. Rr. 3,4,5 & 6---Privatization Commission (Hiring of Valuers) Regulations, 2001 Regln. 3---Privatization Commission (Valuation of Property) Rules, 2001 Rr. 4, 5 & 6(2)---Constitution of Pakistan, Art. 184(3)---Constitutional petition---Judicial review of administrative action---Scope---Manner and procedure for privatization, approval or rejection of highest ranked bidder, additional modes of privatization, negotiated sale, manner and procedure for hiring of valuers, valuation of property by the valuer and adviser and processing of valuation report---Privatization of a Bank----Allegations of mala fides in the privatization procedure---Private Foundation as the highest bidder---Validity---Foundation successfully bid for the Bank as the highest bidder, which was accepted by the Privatization Commission on 30th of December, 2003 as it found the Foundation's bid to be higher than the reference price---State Bank of Pakistan also provided their clearance for declaring the Foundation as successful bidder and Cabinet Committee on Privatization (Privatization Committee) accepted the recommendation of the Privatization Commission, and the Foundation paid the initial sale price and entered into an agreement on 26th of February 2004 with the Privatization Committee and the State Bank of Pakistan for the purchase of 51% share of the government stake in the Bank and for taking over the management of the Bank---Contention of petitioners was that procedure adopted for privatization of the Bank was tainted with mala fides; procedure was carried out in violation of the Privatization Commission Ordinance, 2000 and that approval of the Foundation as the highest bidder by the Privatization Committee warranted interference under judicial review---Validity---No allegation was made regarding some personal gain made by any Member of the Privatization Committee or Commission or the Financial Advisor, or that any one of them wanted to help the highest bidder for mala fide reasons---General allegations of being influenced by International Monetary Fund (IMF) or crony capitalism were insufficient to establish that the impugned privatization was tainted with mala fides warranting interference in judicial review---Substantial compliance was made with the relevant provisions of the Privatization Commission Ordinance, 2000 and the Rules/Regulations framed thereunder and minor deviation of Rules or Regulations, if any, in absence of any credible allegation of mala fides or corruption would not furnish a valid ground for interference in judicial review---Important steps taken by the Privatization Commission in compliance of Privatization Commission Ordinance, 2000 and the Rules/Regulations framed thereunder, included, appointment of Chartered Accountants as Financial Advisor because of the slow international response for the search of potential buyers; calling for Expressions of Interest through advertisement; requisition of Statements of Qualification from bidders; constitution of a Pre-qualification Committee; the screening of three parties by the said Committee and recommendations of three parties by the Pre-qualification Committee for undertaking due diligence---Said three parties, recommended by the Pre-qualification Committee were invited to review the documentation relating to the Bank, however only the Foundation submitted a Confidentiality Agreement in December, 2002 and at that point Privatization Commission, if it intended to help the Foundation, could have declared it the highest bidder, but instead in April 2003, the Commission again called for Expressions of Interest through advertisements---Pre-qualification Committee, thereafter, recommended the Foundation and two other potential buyers, which was approved by the Privatization Commission, after which, Data Room of the Bank remained open for the potential buyers to carry out their due diligence---Privatization Commission simultaneously also finalized the process of privatization by taking various steps in compliance of Rules 3, 4 and 5 of Privatization Commission (Modes and Procedures) Rules, 2001---Bid of the Foundation, being the highest bid, was also higher than the reference price approved by the Privatization Committee---All such steps indicated that there was substantial compliance with the relevant provisions of the Privatization Commission Ordinance, 2000 and the Rules/Regulations framed thereunder---Process of privatization was neither tainted with lack of transparency or mala fides nor the Foundation lacked qualifications prescribed in law---Constitutional petition was dismissed accordingly.

(c) Privatization Commission Ordinance (LII of 2000)---

----Preamble---Privatization Commission (Modes and Procedures) Rules, 2001, Rr. 3, 4, 5 & 6---Privatization Commission (Hiring of Valuers) Regulations, 2001 Regln. 3---Privatization Commission (Valuation of Property) Rules, 2001, Rr. 4, 5 & 6(2)---Constitution of Pakistan, Art. 184(3)---Constitutional petition---Judicial review---Scope---Minor deviation from Rules/Regulations framed under Privatization Commission Ordinance, 2000, if any, in absence of any credible allegation of mala fides or corruption would not furnish a valid ground for interference in judicial review---Constitutional petition was dismissed, accordingly.

(d) Privatization Commission Ordinance (LII of 2000)---

----Preamble---Privatization Commission (Modes and Procedures) Rules, 2001, Rr. 3, 4, 5 & 6---Constitution of Pakistan, Art. 184(3)---Constitutional petition---Manner and procedure for privatization, approval or rejection of highest ranked bidder, additional modes of privatization, negotiated sale--- Privatization of Bank--- Private Foundation as highest bidder--- Validity--- Steps taken by Privatization Commission in compliance of Rules 3, 4, 5 & 6 of Privatization Commission (Modes and Procedures) Rules, 2001, recorded--- Constitutional petition was dismissed in circumstances.

(e) Privatization Commission Ordinance (LII of 2000)---

---Preamble---Privatization Commission (Valuation of Property) Rules, 2001, Rr. 4 & 5---Constitution of Pakistan, Art. 184(3)---Constitutional petition---Manner and procedure for valuation of property by the valuer and adviser hired by the Commission---Transfer of non-performing loans of value of Rs.1.283 billion to CIRC (Corporate Industrial Restructuring Corporation) and issuance of recovery bonds worth Rs.9.804 billion in respect of tax refunds in the Bank prior to privatization---Validity---Transfer of non-performing loans to CIRC (Corporate Industrial Restructuring Corporation) was carried out in an entirely transparent manner and all the bidders were informed in advance---Loans were transferred from the Bank to CIRC in the years 2001 and 2003, and some loans were then transferred back and various other amounts were also adjusted by mutual consent after which an amount of Rs.994.076 million was paid to the Bank by CIRC---Transfer of bad loans to CIRC was a well thought out and fully planned strategy which had the effect of enhancing the value of the Bank and contact was established between the Bank and officials of the Finance Ministry on a regular basis in order to execute the transfer efficiently---Transfer to CIRC was completed after CIRC's due diligence and resolution of Bank's non-performing loans with State Bank of Pakistan's Resolution Committee--- Government had issued bonds against the Bank's admitted tax liability, when taxation authorities had collected taxes from the Bank in excess of its actual liability---Both the transfer of non-performing loans to CIRC and issuance of bonds were duly considered by the valuer in assessing the value of the Bank---Constitutional petition was dismissed, in circumstances.

(f) Privatization Commission Ordinance (LII of 2000)---

----Preamble---Privatization Commission (Valuation of Property) Rules, 2001, Rr. 4, 5 & 6 (2)---Constitution of Pakistan, Art. 184(3)---Constitutional petition---Judicial review---Manner of processing for valuation report and procedure for valuation of property by the Valuer and Adviser hired by the Commission---Privatization of Bank---Valuation and determination of fair price of the Bank---Discounted Dividend Method for valuation of Bank--- Allegations of non-compliance with valuation Rules and collusion in appointment of Valuer---Validity---Reserve price of the Bank was fixed on the basis of a methodology known as "Discounted Dividend Method" which was different from the "Discounted Cash Flow" methodology and in case of determination of reserve price of banks 'Discounted Dividend Method' was used---Petitioners did not controvert the explanation given by the Privatization Commission for the valuation and determination of fair price of the Bank and it was also not disputed that the valuation was carried out in terms of the Financial Advisory Services Agreements; that the mode of valuation adopted by the valuer was permissible under the Privatization Commission (Valuation of Property) Rules, 2001 and that the valuation report was processed by the Board of the Privatization Commission in accord with Privatization Commission (Valuation of Property) Rules, 2001---Approval of the highest bid of the Foundation by the Privatization Committee being higher than the reference price was neither improper nor violative of the law governing the process of privatization to call for judicial review---No material was available on record to establish that either the valuer was appointed collusively or the valuation carried out by it was against the Rules or best practices being followed---Constitutional petition was dismissed accordingly.

(g) Privatization Commission Ordinance (LII of 2000)---

----Preamble---Constitution of Pakistan, Art. 184(3)---Constitutional petition---Privatization of Bank----Recapitalization/Bail out of the Bank prior to its privatization---Private Foundation successfully bid for the Bank as the highest bidder, which was accepted by the Privatization Commission on 30th of December, 2003 as it found the Foundation's bid to be higher than the reference price---Government had contributed a sum of Rs.17.7 billion to recapitalize/bail out the Bank, prior to its privatization, citing the reason that by not doing so would have brought the Bank close to bankruptcy---Validity---Injecting money into banks had been a worldwide phenomenon during the period of financial crunch---When said amount was injected into the Bank in question, the volume of its non-performing loans was huge and the Federal Government and its Financial Experts deemed it proper to finance the Bank---Petitioners had not referred to any opinion of some reputed economist holding the impugned bail out to be inappropriate or unwise or against best practices being followed---Keeping in view the opinions of academics and heads of states who were at the helm of affairs during the economic and banking crisis, decision of Government to recapitalize/bail out the Bank and privatize it subsequently, was motivated by bona fide considerations---Government's injection of money into banks was amongst the known methods to prop up the banks and such bail outs were not intended to merely help the banks, rather these were also designed to keep the economy afloat, so that the banks continued to advance loans for further investments which in turn meant more jobs and greater productivity---Measures taken by Government to recapitalize the Bank or to reduce the volume of its non-performing loans to make it more attractive for sale was neither against the law or the best practices being followed, nor did it reflect mala fides to furnish a ground for interference---Constitutional petition was dismissed, in circumstances.

(h) Privatization Commission Ordinance (LII of 2000)---

----Preamble---Constitution of Pakistan, Art. 184(3)---Constitutional petition---Privatization of Bank through bidding----Recapitalization/bail out the Bank prior to its privatization---Extracts from books/papers of heads of State and academics, explaining and justifying bail out of banks in different parts of the world during economic crisis provided.

Autobiography Decision Points by George W. Bush; On the Brink by Henry M. Paulson Jr.; Beyond the Crises by Gordon Brown and White Paper on All the Options for Managing a Systemic Bank Crises co-authored by three academicians cited.

(i) Privatization Commission Ordinance (LII of 2000)---

----Preamble---Constitution of Pakistan, Art. 184(3), Part II, Chap.1---Constitutional petition---Maintainability---Privatization of Bank through bidding---Locus standi of the petitioners---Petitions were in the nature of public interest litigation and the court in exercise of its constitutional jurisdiction qua matters of public importance relating to enforcement of Fundamental Rights had been liberal particularly if the issue raised was relatable to a public injury arising from breach of public duty---Petitions were maintainable.

(j) Constitution of Pakistan---

----Art. 184(3)---Judicial review of Executive's authority---Scope and limitations---Once the competent authority in the government has taken a decision backed by law, it would not be in consonance with the well established norms of judicial review to interfere in policy making domain of the executive authority.

Asia Foundation and Construction Ltd. v. Trafalgar House Construction (I) Ltd. ((1997) 1 Supreme Court Cases 738) ref.

(k) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition---Judicial review of award of contract by government---Scope and limitations---Duty of the court is to confine itself to the question of legality and its concern should be, whether a decision-making authority, exceeded its powers; committed an error of law; committed a breach of the rules of natural justice; reached a decision which no reasonable tribunal would have reached , or abused its powers---Question whether a particular policy of a particular decision taken in the fulfilment of that policy is fair, is not for the court to determine and it is only concerned with the manner in which those decisions have been taken---Court must exercise its discretionary powers of judicial review with circumspection and only in furtherance of public interest and not merely for making out of a legal point and it should always keep the larger public interest in mind to decide whether to interfere or not---Only when the public interest overwhelms any other consideration, the court should interfere.

Tata Cellular v. Union of India (36(1994) 6 SCC 651) and Air India Ltd. v. Cochin International Airport Ltd. ((2000) 2 Supreme Court Cases 617) ref

(l) Constitution of Pakistan---

----Art. 184(3)--- Constitutional petition--- Judicial review of administrative action--- Grounds--- Grounds upon which an administrative action is subject to control by judicial review, includes, illegality, which means the decision-maker must understand the law correctly that regulates his decision-making power and must give effect to it; irrationality, namely, Wednesbury unreasonableness, and procedural impropriety.

Tata Cellular v. Union of India (36(1994) 6 SCC 651) ref.

(m) Constitution of Pakistan---

----Art. 184(3)--- Constitutional petition--- Judicial review of administrative action--- Scope--- Not every wandering from the precise paths of best practice, lend fuel to a claim for judicial review.

R.V. Deptt. of Constitutional Affairs [2006 All ER (D) 201] quoted.

(n) Constitution of Pakistan---

----Art. 184(3)--- Constitutional petition--- Judicial review of administrative action--- Scope--- Judicial review would be available only if public law element is apparent which would arise only in a case of bribery, corruption, implementation of unlawful policy and the like.

Airport Developers (P) Ltd. v. Airports Authority of Indian and others [(2006) 10 SCC] quoted.

(o) Constitution of Pakistan---

----Art. 184(3)--- Constitutional petition--- Judicial review of administrative action on account of mala fides---Scope---In absence of some un-rebuttable material on record qua mala fides, the court would not annul the order of executive authority which otherwise does not reflect any illegality or jurisdictional defect.

(p) Constitution of Pakistan---

----Art. 184(3)--- Constitutional petition--- Judicial review of administrative action on basis of mala fides---Proof of mala fides---Scope---Onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides---Mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the government for the purposes of fishing out some kind of a case.

Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151 quoted.

(q) Mala fides---

----Definition and Scope---Male fides literally means in bad faith and action taken in bad faith is usually action taken maliciously, 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.

Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151 quoted.

(r) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition---Judicial review of cases concerning financial management or awarding of contracts by the government---Scope and limitations---Courts while dealing with such cases must appreciate that these are either policy issues or commercial transactions requiring knowledge in the specialized fields and courts lack the expertise to express any opinion on the soundness or otherwise of such acts/transactions---Court should ordinarily refrain from interfering in policy making domain of executive authority or in the award of contracts unless those acts smack of arbitrariness, favoritism and a total disregard of the mandate of law---Court, under judicial review, cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State and have inherent limitations on the scope of any such enquiry, but at the same time the court can certainly examine whether decision making process was reasonable rational, not arbitrary and violative of the Constitution.

Watan Party v. Federation of Pakistan PLD 2006 SC 697 fol

Sterling Computers Ltd. v. M & N Publications Ltd. ((1993) 1 Supreme Court Cases 445) quoted.

(s) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition---Judicial review of economic decisions by government---Scope and limitations---Court refrains from interfering with economic decisions as it has been recognized that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the court would decline to interfere---Government while taking a decision related to economic issues, has a right to trial and error as long as both trial and error are bona fide and within limits of authority. Messrs Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582 and BALCO Employees Union (Regd.) v. Union of India AIR 2002 SC 350 ref.

(t) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition---Administrative decisions of government bodies--- Judicial restraint and judicial review---Principles---Scope---Court does not sit as a court of appeal but merely reviews the manner in which decision was taken by the government because the court does not have the expertise in the domain of administrative decision making. Tata Cellular v. Union of India ((1994) 6 Supreme Court Cases 651) ref

(u) Constitution of Pakistan---

----Arts. 184(3) & 199---Constitutional petition---Scope---Where a legal wrong or a legal injury is caused to a person or to a determinate class of person by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court and in case of breach of any fundamental right of such person or determinate class of persons, in the Supreme Court seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.

S.P. Gupta and others v. President of India and others AIR 1982 SC 149 ref.

(v) Constitution of Pakistan---

----Part II, Chap. 1 & Art. 184(3)---Constitutional petition---Scope---Fundamental Rights---Locus standi of petitioner---Scope---Group or class actions---Where there is violation of Fundamental Rights of a class or a group of persons who are unable to seek redress from the court, then the traditional rule of locus standi can be dispensed with, and the procedure available in public interest litigation can he made use of, if it is brought to the notice of the court by a person acting bona fide---Article 184(3) of the Constitution provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction and it would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class actions from case to case.

Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.

(w) Constitution of Pakistan---

----Arts. 184(3) & 199---Constitutional petition---Judicial review---Scope---Availability of alternate remedy---Even the existence of an alternate remedy cannot prevent the court from exercising its power of judicial review if the said alternate remedy is neither efficacious nor expeditious---If an adequate remedy provided by law is less convenient, beneficial and effective in case of a legal right to performance of a legal duty, the jurisdiction of the High Court can be invoked and if a statutory functionary acts mala fide or in a partial, unjust and oppressive manner the court in exercise of its writ jurisdiction has power to grant relief to the aggrieved party

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263 ref.

Watan Party through President v. Federation of Pakistan PLD 2006 SC 697 quoted.

(x) Constitution of Pakistan---

----Arts. 184(3) & 199---Public interest litigation---Scope---Frivolous petitions which are neither of public importance nor relatable to enforcement of a fundamental right or public duty---Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the veil of public interest a private malice, vested interest and/or publicity seeking is not lurking---Public interest litigation should be aimed at redressal of genuine public wrong or public injury and not publicity oriented cases or those founded on personal vendetta---Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration---Such petitions deserve to be rejected at the threshold, and, in appropriate cases with exemplary costs.

Ashok Kumar Pandey v. State of West Bengal AIR 2004 SC 280 ref.

M. Ikram Ch. Senior Advocate Supreme Court for Petitioner (in Constitutional Petition No.5 of 2004)

Barrister Zafarullah Khan, Senior Advocate Supreme Court for Petitioner (in Constitutional Petition No.15 of 2004).

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court assisted by Faisal Qausain Naqvi for Respondent No.2 (in Constitutional Petition No.5 of 2004).

Barrister Gohar Ali Khan, and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.3 (in Constitutional Petition No.15 of 2004)

Makhdoom Ali Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record assisted by Saad Hashmi for Respondent No.3 (in Constitutional Petition No.5 of 2004) and for Respondent No.5 (in Constitional Petition No.15 of 2004).

S.M. Zafar, Senior Advocate Supreme Court, Syed Ali Zafar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record assisted by Talib Hussain for Respondent No.4 (in Constitutional Petition No.5 of 2004) and for Respondent No.6 (in Constitutional Petition No.15 of 2004).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Respondents Nos. 7 to 23 (in Constitutional Petition No.5 of 2004).

Maulvi Anwar ul Haq, Attorney-General for Pakistan for Respondent No.1 (in Constitutional Petitions Nos.5 and 15 of 2005)

Dates of hearing: 27th October, 21st, 22nd, 23rd, 24th, 28th and 29th November, 2011.

2012 S C M R 508

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Tariq Parvez, JJ

ABDUL KHALIQ (DECEASED) through L.Rs.---Appellant

Versus

Ch. REHMAT ALI (DECEASED) through L.Rs. and others---Respondents

Civil Appeal No. 2021 of 2004, decided on 14th December, 2011.

(On appeal from judgment of Lahore High Court, Lahore dated 12-7-2000 passed in R.S.A. No.54 of 1995)

(a) Constitution of Pakistan---

----Art. 185(2) & (3)---Petition for leave to appeal---Delay, condonation of---Principle---Civil petition for leave to appeal against judgment dated 12-7-2000, passed by High Court was filed on 24-7-2000 i.e., within 12 days---Supreme Court had granted permission for conversion of petition into civil appeal in an earlier order---Appeal so converted was to be deemed to have been instituted from the date the petition was filed---No prejudice was caused to respondent nor any question of limitation could legitimately be raised as regards filing of the civil appeal.

(b) Punjab Pre-emption Act (I of 1913)---

----S. 21---Pre-emption suit---Superior right of pre-emption---Mutation, attestation of---Effect---Benami transaction---Proof---Suit filed by pre-emptor was decreed in his favour by Trial Court but Lower Appellate Court allowed the appeal and dismissed the suit---High Court in exercise of appellate jurisdiction reversed finding of Lower Appellate Court and restored judgment and decree passed by Trial Court in favour of pre-emptor---Validity---Vendee had acquired actual title in suit land as its real owner through registered sale deed dated 30-4-1978, while subsequent dispute between vendee and ostensible owner in such regard was resolved through award, followed by civil court decree dated 9-2-1982, which stood implemented accordingly vide mutation entry dated 23-2-1982---All such events occurred much prior to asserting his claim for pre-emption or filing of the suit for pre-emption by pre-emptor, on 17-2-1983---Even pleadings of pre-emptor in his plaint were absolutely silent in such regard, therefore, it could not be said that it was a collusive and fraudulent transaction between vendee and ostensible owner, merely to defeat pre-emption claim of pre-emptor---Lower Appellate Court in its judgment had assigned cogent and valid reasons to hold on the basis of mutation entry dated, 23-2-1982, no right of pre-emption had accrued in favour of pre-emptor being only affirmation of his half share in suit land as per registered sale deed but High Court failed to advert to or rebut such findings of Lower Appellate Court by recording any convincing, sound or cogent reason---Mutation entry spoke only about payment of Rs. 207,000 as sale consideration but did not denote that any payment was actually made at the time of attestation of such mutation entry, rather it was a mere reference to payment of earlier sale consideration with reference to sale-deed dated 30-4-1978, wherein ostensible owner held 50% share of vendee in suit land as benamidar and that dispute was resolved in terms of award, which was made rule of the court---Supreme Court set aside judgment and decree passed by High Court and pre-emption suit filed by pre-emptor was dismissed---Appeal was allowed.

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

----S. 115---Revisional jurisdiction---Scope---Revisional court has limited scope of its jurisdiction under S. 115, C.P.C., which is primarily meant for correction of jurisdictional defects in proceedings or some patent illegality/irregularity effecting merits of case and not merely for substituting and replacing its own findings with findings of appellate Court, unless the same were found to be arbitrary, perverse, fanciful and based on misreading or non-reading of material pieces of evidence.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Appellant.

Mian Allah Nawaz, Senior Advocate Supreme Court for Respondent No.1(iii).

Other Respondents, Ex parte.

Date of hearing: 14th December, 2011.

2012 S C M R 517

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Amir Hani Muslim, JJ

NAZEER AHMED and others---Petitioners

Versus

NOORUDDIN and another---Respondents

Criminal Petition for Leave to Appeal No. 47-K of 2011, decided on 22nd July, 2011.

(a) Anti-Terrorism Act (XXVII of 1997)----

----S.6---Constitution of Pakistan, Art. 185(3)---Jurisdiction of Anti-Terrorism Court, determination of---Accused (petitioners) had challenged the order passed by High Court, by which it directed the Investigating Officer to submit challan of accused before the Anti-Terrorism Court---Validity---High Court had examined the material at length and had rightly concluded that the act of the accused created sense of insecurity amongst the villagers and did destabilize the public at large and, therefore, attracted the provisions of S.6 of Anti-Terrorism Act, 1997---Neither motive nor intention for commission of the offence was relevant for the purpose of conferring jurisdiction of the Anti-Terrorism Court and it was the act which was designed to create sense of insecurity and/or to destabilize the public at large, which attracted the provisions of S.6 of Anti-Terrorism Act, 1997---Accused's act created sense of insecurity amongst the co-villagers---Order of High Court being well reasoned, Supreme Court dismissed accused's' petition and refused leave to appeal.

Mohabat Ali v. The State 2007 SCMR 142 and Bashir Ahmed v. Muhammad Siddiq PLD 2009 SC 11 distinguished.

(b) Anti-Terrorism Act (XXVII of 1997)----

----S. 6---Jurisdiction of Anti-Terrorism Court, determination of---Principles---Neither motive nor intention for commission of the offence was relevant for the purpose of conferring jurisdiction on the Anti-Terrorism Court and it was the act which was designed to create sense of insecurity and/or to destabilize the public at large, which attracted the provisions of S.6 of Anti-Terrorism Act, 1997.

Salahuddin Panhwar, Advocate Supreme Court for Petitioners.

Respondent No.1 in person.

Date of hearing: 22nd July, 2011.

2012 S C M R 519

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Tariq Parvez, Mian Saqib Nisar and Amir Hani Muslim, JJ

Syed YOUSAF RAZA GILLANI, PRIME MINISTER OF PAKISTAN---Appellant

Versus

ASSISTANT REGISTRAR, SUPREME COURT OF PAKISTAN and another---Respondents

Intra Court Appeal No.1 of 2012, decided on 9th February, 2012.

(Against the order dated 2-2-2012 passed by this Court in Criminal Original No.6 of 2012).

Contempt of Court Ordinance (V of 2003)---

----S. 19---Constitution of Pakistan, Art.204---Contempt of Court---Intra court appeal---Deletion of questions of law raised in pleadings of intra court appeal---Questions in issue in the appeal were phrased in such a manner, which should have not been recorded by the appellant, who being the Prime Minister was supposed to possess highest moral values being the constitutional head and the impression was being created as if the judiciary as a whole was being influenced, on account of alleged favourable actions done by the appellant, for its Members by performing the acts noted in the questions---Said questions were not tantamount to embarrass the court, but the appellant himself as he ought not to have claimed relief or presumed that some relief should be given to him for actions noted in the questions---Contention of appellant (Prime Minister) was that questions in issue were framed with a view to show respect and deference to the judiciary and they should not be considered to be influencing the judiciary for any purpose---Validity---Counsel for the appellant, however under instructions, made request to the Court to delete the said questions from the pleadings and the Supreme Court acceded to the same---Questions were deleted from pleadings of intra court appeal accordingly.

Aitzaz Ahsan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant

Nemo for Respondents.

Date of hearing: 9th February, 2012.

2012 S C M R 522

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

MUHAMMAD FAYYAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.489 of 2009, decided on 5th January, 2012.

(On appeal from the judgment dated 1-4-2009 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No.7 of 2004 and Murder Reference No.21 of 2004).

Penal Code (XLV of 1860)---

----Ss. 302(b), 396 & 460---Qanun-e-Shahadat (10 of 1984), Art. 22---Criminal Procedure Code (V of 1898), S. 342---Qatl-e-amd, dacoity with murder and lurking house-trespass---Reappraisal of evidence---Benefit of doubt---Identification parade---Role, non-description of---Abscondance, effect of---Incriminating evidence not put to accused---Trial Court convicted the accused and sentenced him to death but High Court converted the sentence into imprisonment for life---Validity---After the arrest of accused, he was put to test identification parade and although he had been correctly picked up by eye-witnesses yet indisputably such identification had been made without any reference to the role allegedly played by accused during the incident---Evidentiary value of such identification in test identification parade was next to nothing---Courts below failed to appreciate that accused was not nominated in F.I.R. and no evidence was brought on record to establish that his absence or avoidance of arrest was intentional---No question was put to accused at the time of recording of statement under S.342, Cr.P.C. regarding his alleged abscondance---Accused did not fire at anybody during the incident and alleged recovery of pistol from his custody during investigation had been discarded by Trial Court itself---Prosecution failed to prove its case against accused beyond reasonable doubt---Delay in filing of appeal was condoned by Supreme Court and conviction and sentence awarded to accused was set aside---Supreme Court acquitted the accused of the charge extending him benefit of doubt---Appeal was allowed.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Asjad Javed Ghural, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 5th January, 2012.

2012 S C M R 524

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Jawwad S. Khawaja and Amir Hani Muslim, JJ

FAIZULLAH and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 41 and 42 of 2007, decided on 16th December, 2011.

(Against the judgment dated 5-9-2005 of the Balochistan High Court, Quetta passed in Jail Appeal (ATA) No. 41 of 2004 and Criminal Appeals Nos. 133-134 of 2004).

Per Jawwad S. Khawaja, J; Mian Shakirullah Jan, J agreeing; Amir Hani Muslim, J disagreeing [Majority View]

Anti-Terrorism Act (XXVII of 1997)---

----S. 7(a)---Penal Code (XLV of 1860), Ss. 395 & 109---Criminal Procedure Code (V of 1898), S. 164---Dacoity with murder and abetment--- Reappreaisal of evidence--- Confessional statement---Admissibility---Six persons were prosecuted and convicted by Trial Court but conviction and sentence of only one accused was maintained by High Court while remaining were acquitted---Validity---Only material distinction between case of convicted and acquitted to-accused was a confessional statement, which was made by him under S. 164, Cr.P.C. before Judicial Magistrate---Evidence adduced in all other particulars was insufficient to sustain conviction as it was on the same evidence that remaining accused had been found innocent---Confessional statement was neither voluntary nor was it made without duress or fear---Such confessional statement could not be relied upon to convict accused and to award capital punishment to him as other evidence adduced by prosecution had been found by High Court to be unworthy of credence---Supreme Court set aside conviction and sentence awarded to accused and he was acquitted of the charge---Appeal was allowed.

Ch. Muhammad Yaqoob and others v. The State and others 1992 SCMR 1983 ref

Per Amir Hani Muslim, J [Minority View]

Anti-Terrorism Act (XXVII of 1997)---

----S. 7(a)---Penal Code (XLV of 1860), Ss. 395 & 109---Criminal Procedure Code (V of 1898), Ss. 164 & 342---Dacoity with murder and abetment---Reappraisal of evidence---Confession---Proof---Accused on the basis of confession made by him was convicted for double murder during dacoity and sentenced to death, while all other accused were acquitted---Validity---Normally admission or denial of a convict under S. 342, Cr.P.C. had no significance and it did not absolve prosecution from proving case beyond reasonable doubt---Plea taken by defence was of torture by police, whereas under S. 342, Cr.P.C. a contrary plea was taken by accused that he was never produced before Magistrate---Such had reflected that case against accused was proved by prosecution---Accused was identified by complainant and recovery of looted money and pistol was effected from him---Vehicle used in crime was also recovered on the pointation of accused who was assigned a specific role by prosecution witnesses---All such pieces of evidence coupled with the confession before Magistrate had connected the accused with commission of alleged offence---Prosecution witnesses were independent witnesses, who had identified the accused through people who were attracted at place of occurrence---Both prosecution witnesses had no enmity or acquaintance with accused---Role of accused had been fully specified by two prosecution witnesses, who were inside the shop and they were not cross-examined, which evidence corroborated evidence of other two prosecution witnesses---Prosecution had succeeded in proving case against accused beyond reasonable doubt and Trial Court and High Court were justified in convicting him---Both the courts awarded death sentence to the accused and since Division Bench of High Court had acquitted co-accused, therefore, propriety demanded that death penalty should be commuted to that of life imprisonment--- Supreme Court maintained the conviction but converted death sentence into imprisonment for life---Appeal was dismissed.

Imran Ashraf v. The State 2001 SCMR 424 and Khurshid v. The State PLD 1996 SC 305 ref.

Ali Ahmed Kurd, Advocate Supreme Court for Appellant (in Criminal Appeal No. 41 of 2007).

Tahir Khattak, Additional P.-G. Balochistan for the State (in Criminal Appeal No. 41 of 2007).

Tariq Mehmood, Senior Advocate Supreme Court for the Complainant (in Criminal Appeal No. 41 of 2007).

Tariq Mehmood, Senior Advocate Supreme Court for the Appellant (in Criminal Appeal No. 42 of 2007).

Kamran Murtaza, Advocate Supreme Court along with Muhammad Azam for Respondent No.1 (in Criminal Appeal No.42 of 2007).

Nemo for Respondent No.2 (in Criminal Appeal No. 42 of 2007).

Tahir Khattak, Additional P.-G. Balochistan for Respondent No.3(State) (in Criminal Appeal No. 42 of 2007).

Date of hearing: 16th December, 2011.

2012 S C M R 538

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

FAIZ-UR-REHMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.391 of 2009, decided on 4th January, 2012.

(On appeal from the judgment dated 17-4-2003 of the Peshawar High Court, Peshawar passed in Jail Criminal Appeal No.81 of 2001).

Penal Code (XLV of 1860)---

----S. 365-A---Abduction for ransom---Reappraisal of evidence---Non-recovery of abductee---Identification of accused---Ransom---Proof---Condonation of delay--- Accused was convicted and sentenced to 25 years of imprisonment which was maintained by High Court---Validity---No test identification parade was held so as to positively incriminate the accused---Alleged abductee was not recovered from custody of accused who surfaced on his own and had appeared before police on his own volition--- No ransom was paid by complainant or alleged abductee or by anybody else to accused or any other person---Taxi car wherein alleged abductee was statedly abducted by accused was not recovered from the possession of accused---In absence of any other evidence on record establishing involvement of accused in alleged offence, prosecution failed to prove its case against reasonable doubt---Supreme Court condoned the delay in filing of appeal and set aside conviction and sentence awarded to accused by the court below and acquitted him of the charge---Appeal was allowed.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant

Syed Arshad Hussain, Additional Prosecutor-General, KPK for the State.

Date of hearing: 4th January, 2012.

2012 S C M R 540

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Jawwad S. Khawaja and Amir Hani Muslim, JJ

Col. (Retd.) MANSOOR AKBAR---Petitioner

Versus

FAZAL-E-RAB PIRZADA and others---Respondents

Civil Peitition No.1143 of 2011, decided on 13th January, 2012.

(On appeal against the judgment dated 26-5-2011 passed by the Islamabad High Court, Islamabad, in R.F.A. No.70 of 2010).

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

----Ss. 2(11), O.I, R.10 & O.IX, R.13---Qanun-e-Shahadat (10 of 1984), Arts.123 & 124---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan, Art. 185(3)---Suit for specific performance of sale agreement---Order of ex parte proceedings against defendant due to his non-appearance in court---Application under O.I, R.10, C.P.C. by legal representatives of defendant for impleading them in his place alleging him to be missing for reason not known to them---Dismissal of such application by Trial Court---Subsequent suit for declaration and permanent injunction by wife of missing defendant claiming to be owner of suit property given to her in lieu of dower much before suit agreement---Ex parte decree against missing defendant challenged in appeal by his legal representatives---Maintainability---Plea that defendant had not deliberately avoided proceedings nor his absence before Trial Court was wilful, rather he was missing before passing of order of ex parte proceedings against him---Validity---Prior to passing of ex parte decree against defendant, his wife had lodged F.I.R. for locating him---Suit for declaration filed by wife after dismissal of her such application was pending in Trial Court---Wife had filed objections in execution proceedings---Factum of defendant being missing once not in dispute, then formal order of court regarding his presumptive death would not be required or necessary---Order depriving legal representatives from contesting proceedings before Trial Court or Appellate Court could be passed on giving proof by plaintiff that defendant or his counsel had deliberately avoided proceedings before Trial Court or his whereabouts were known to them---According to Art.124 of Qanun-e-Shahadat, 1984 burden lay on plaintiff to prove that defendant was alive and had intentionally avoided participating in proceedings---Plaintiff had not brought on record any material to rebut such plea of legal representatives of defendant---Civil Procedure Code, 1908 did not provide procedure to secure interest of a missing person---When one of legal representative of defendant pleaded before Trial Court that defendant went missing prior to passing of ex parte decree, then right to challenge same in appeal would accrue to his legal representatives---Findings of Trial Court on such application under O.I, R.10, C.P.C. if not challenged any further, would not debar legal representatives of defendant from challenging ex parte decree against him---Appeal filed by legal representatives of missing defendant was maintainable, in circumstances---Leave to appeal was refused.

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

----O.IX, R.13---Ex parte decree, passing of---Purpose stated.

The purpose for passing ex parte decree is to penalize a party which deliberately avoids appearance either in person or through his counsel, with the ulterior object to defeat or delay and or frustrate the litigation or is grossly negligent or fails to appear without sufficient cause.

Gulzarin Kiani, Senior Advocate Supreme Court and Akhtar Ali, Advocate-on-Record for Petitioner.

Nemo for Respondent No.1.

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court for Respondents Nos. 2 to 5.

Date of hearing: 13th January, 2012.

2012 S C M R 549

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Tariq Parvez, JJ

MUHAMMAD SARFRAZ---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.351 of 2009, decided on 11th May, 2010.

(On appeal from the judgment dated 21-5-2009 of the Lahore High Court, Lahore passed on Criminal Appeal No. 1119 of 2003 and Murder Reference No.449 of 2003).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 310---Criminal Procedure Code (V of 1898), Ss. 342 & 345--- Constitution of Pakistan, Art. 185(3)--- Qatl-e-amd---Compounding of offence---Age of accused---Determination---Statement under S.342, Cr.P.C.---Effect---Leave to appeal was granted by Supreme Court to consider whether death sentence awarded by Trial Court and confirmed by High Court was justified in view of the compromise made by two of the legal heirs and whether on the date of occurrence, accused was below the age of 18 years as he claimed to be 19 years old when his statement under S.342, Cr.P.C. was recorded by Trial Court.

Amir and another v The State 2003 SCMR 561 and Muhammad Anwar v The State 2008 SCMR 987 ref

Malik Amjad Parvez, Advocate Supreme Court and Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Syed Ali Imran, D.P.-G. for the State.

Date of hearing: 11th May, 2010.

2012 S C M R 552

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk and Sarmad Jalal Osmany, JJ

MUHAMMAD JAMEEL RAHI---Petitioner

Versus

D.-G. NAB and others---Respondents

Civil Petition No. 2212-L of 2011, decided on 9th February, 2012.

(On appeal from the judgment dated 17-10-2011 passed by Lahore High Court, Lahore in Writ Petition No. 15265 of 2011).

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(ix) & (b)---Cheating members of public at large---Bail, grant of---Delay in conclusion of trial---Accused who started his career as a school teacher and when arrested was an Assistant Education Officer, was behind the bars for the last more than 28 months and during that period, out of 416 prosecution witnesses only 150 witnesses had been examined and conclusion of trial in near future was not in sight---Effect---Nothing was available on record to indicate that accused was in any manner, responsible for the delay nor it had been alleged by prosecution---Bail was allowed.

Muhammad Saeed Mehdi v. State 2002 SCMR 282; Muhammad Jehangir Badar v. State PLD 2003 SC 525; Abdul Aziz Khan Niazi v. State PLD 2003 SC 668 and Arif Sharif v. Chairman NAB 2004 SCMR 1805 rel.

M. Asad Manzoor Butt, Advocate Supreme Court for Petitioner.

Fauzi Zafar, ADPG, NAB and Mukarram Abbas, Dy. Dir. NAB, I/O for Respondents

Date of hearing: 9th February, 2012.

2012 S C M R 556

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Hamid Farooq, JJ

MUMTAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 583-L of 2008, decided on 24th December, 2008.

(On appeal from order dated 12-11-2008 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.10264-B of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd and common intention---Bail, grant of---Medical and ocular account---Conflict---Plea raised by accused was that there was conflict in medical and ocular account---Validity---Accused was prima facie connected with the offence alleged in F.I.R.---Conflict between medical and ocular account could not be appreciated without a deeper appraisal of evidence and the same was not warranted at bail stage---Bail was refused.

Malik Rab Nawaz, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Petitioner

Zafarullah, S.-I., Police Station Chenab Nagar, Jhang for the State.

Date of hearing: 24th December, 2008.

2012 S C M R 557

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ

A.P. MOLLER through Maersk Pakistan (Pvt.) Ltd.---Petitioner

Versus

COMMISSIONER OF INCOME TAX, ZONE I, KARACHI

and another---Respondents

Civil Petition No.553 of 2011, decided on 24th January, 2012.

(On appeal from the judgment dated 27-1-2011 of the High Court of Sindh, Karachi passed in ITRA No.205 of 2007).

Income Tax Ordinance (XLIX of 2001)---

----Ss. 7(1)(b), 101, 107(2) & 239(10)---Profits earned by non-resident shipping carrier on in-bound cargo on account of freight received in Pakistan---Taxability of such profits as earned from sources within Pakistan---Scope---Pak-Danish Double Taxation Agreement (DTA) did not contain express renunciation of taxing right by Pakistan in relation of profits earned therefrom ships operated in international traffic---In case of possibility of two reasonable interpretations of DTA or doubt or ambiguity in its interpretation especially in relation to expression "profits derived from sources within the Contracting State" as used therein, same would be resolved in favour of Pakistan having taxing right---"Sources State" would be regarded such State in which payment was made and would be entitled to tax such payments---Carrier would be entitled to freight charges only if cargo was actually carried to port of destination---Port of destination in the present case was a Port of Pakistan---Both terminus of event by which carrier earned income i.e. carriage of goods and actual payment, were within Pakistan---Payment in the present case was made by a Pakistan buyer, thus, same being profits derived by such carrier from sources within Pakistan could be reasonably regarded as within taxing right of Pakistan---Principles.

Dr. Ikram ul Haq, Advocate Supreme Court for Petitioner.

Respondents not represented.

Date of hearing: 23rd January, 2012.

2012 S C M R 567

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Tariq Parvez, JJ

GUL BADSHAH---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.599 of 2009, decided on 11th May, 2010.

(On appeal from the judgment dated 28-5-2009 of the Lahore High Court, Rawalpindi Bench passed in CSR No.6-N-2006 and Criminal Appeal No.135 of 2006).

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Constitution of Pakistan, Art. 185(3)---Narcotics, recovery of--- Quantum of sentence--- Leave to appeal was granted by Supreme Court to consider; whether quantum of sentence was appropriate punishment awarded to accused or he could have been punished to imprisonment for life having the effect of deterrence as well.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner

Syed Ali Imran, D.P.-G. for the State.

Date of hearing: 11th May, 2010.

2012 S C M R 569

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Sarmad Jalal Osmany, JJ

NATIONAL HIGHWAY AUTHORITY, ISLAMABAD---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 395 of 2011, decided on 14th November, 2011.

(On appeal from the judgment and order of the Peshawar High Court, Abbottabad Bench, Abbottabad, dated 4-7-2011 passed in Criminal Miscellaneous No.3 of 2011).

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

---Ss. 145 & 146---Constitution of Pakistan, Art. 185(3)---Dispute concerning land likely to cause breach of peace, power to attach subject of dispute---Attachment of toll tax plaza likely to create unrest in the area---Mala fide---Dispute over collection of toll tax---Petitioner (Highway Authority) had placed an advertisement in a newspaper for auction of collection of toll tax, in response to which respondent (District Government) filed a civil suit against petitioner for the specific performance of an agreement, to allow the respondent to administer the toll plaza---Suit was dismissed and simultaneously Station House Officer (SHO) of the area filed a complaint under S.145, Cr.P.C. for attachment of toll tax plaza, as it was likely to create unrest resulting in law and order situation, citing an incident in the year 2004, where in a protest against the collection of tax, a police constable lost his life---Magistrate ordered the attachment of the toll plaza under S.146, Cr.P.C., which order was upheld by Appellate Court and High Court---Validity--- Toll tax was being collected for ten years from the year 2000 to 2010, and even after the year 2004 incident cited by the SHO, collection continued for six years---Station House Officer's complaint and process initiated by respondents was tainted with mala fide when no such action was taken during ten years when the toll tax continued to be collected until year 2010---Petition for leave to appeal was converted into appeal and impugned judgment was set aside and order of attachment passed by the Magistrate was recalled.

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

----Ss. 145 & 146---Constitution of Pakistan, Art. 185(3)---Dispute concerning land likely to cause breach of peace, power to attach subject of dispute---Cognizance by Magistrate---Scope---Attachment of toll tax plaza likely to create unrest in the area---Dispute over collection of toll tax---Respondent (District Government) had filed a civil suit against petitioners (Highway Authority) for the specific performance of an agreement, to allow the respondent to administer the toll plaza and during pendency of the civil suit, Station House Officer (SHO) of the area filed a complaint under S. 145, Cr.P.C for attachment of toll tax plaza, as it was likely to create unrest resulting in law and order situation---Magistrate ordered the attachment of the toll plaza under S.146, Cr.P.C., which order was upheld by Appellate Court and High Court---Validity---Magistrate's order of attachment under S.146, Cr.P.C. was flawed as same had ordered attachment till decision by civil court, when there was nothing for the civil court to decide as the only ground for moving application under S.145, Cr.P.C. was the apprehension of breach of peace---Dispute between petitioner and respondent stood determined by the civil court when court dismissed the respondent's suit---Magistrate could take cognizance under S.145, Cr.P.C., when there existed not merely an apprehension of breach of peace but same should emanate from a dispute concerning any land or water or boundaries thereof, but in the present case the courts below had overlooked the requirement of the second condition and had maintained the order of the attachment under S.146, Cr.P.C., only upon apprehension of the breach of peace---Petition for leave to appeal was converted into appeal by Supreme Court and impugned judgment was set aside and order of attachment passed by the Magistrate was recalled.

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

----Ss. 145 & 146---Dispute concerning land likely to cause breach of peace, power to attach subject of dispute---Cognizance by Magistrate---Scope and requirements---Magistrate can take cognizance under S.145, Cr.P.C., when there exists not merely an apprehension of breach of peace but same should emanate from a dispute concerning any land or water or boundaries thereof.

Mir Muhammad Ghufran Khurshid, Advocate Supreme Court and Bashir Ahmed, A.D. (Legal) for Petitioner

Asadullah Chamkani, A.-G. K.P.K. and Ejaz Ahmed, D.P.O., Mansehra for Respondents Nos. 1 to 3.

Ghulam Mustafa Khan Swati, Advocate Supreme Court for Respondent No.4.

Date of hearing: 14th November, 2011.

2012 S C M R 573

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Athar Saeed, JJ

JAMAL-UD-DIN alias ZUBAIR KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.119-P of 2011, decided on 10th December, 2011.

(On appeal from the order dated 31-10-2011 of the Peshawar High Court, Peshawar passed in Criminal Miscellaneous No.1549 of 2011).

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan, Art. 185(3)---Recovery of narcotics---Bail, grant of---Maximum punishment, possibility of---Involving in other similar cases---Accused contended that Chars weighing 4 kilograms was recovered from path and not from his personal possession, therefore, there was no possibility of maximum sentence provided for the offence---Validity---Court while hearing petition for bail was not to keep in view the maximum sentence provided by statute but the one which was likely to be entailed in the facts and circumstances of the case---Accused had been in jail for three months, yet commencement of his trial let alone its conclusion was not in sight, had also tilted scales of justice in favour of bail rather than jail---Involvement of accused in two other cases of similar nature would not come in the way of petitioner, so long as there was nothing on the record to show that accused had been convicted in any one of those---Petition for leave to appeal was converted into appeal and accused was released on bail.

Noor Alam Khan, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Petitioner

Ms. S. Naz Muhammadzai, Advocate Supreme Court for the State.

Date of hearing: 16th December, 2011.

2012 S C M R 575

[Supreme Court of Pakistan]

Present: Tariq Parvez and Amir Hani Muslim, JJ

TARIQ IQBAL @ TARIQ---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 626 of 2010, decided on 28th June, 2011.

(On appeal against the judgment dated 26-10-2010 passed by the Lahore High Court, Multan Bench Multan, in Criminal Appeal No.52 of 2006 and Murder Reference No.143 of 2006).

Penal Code (XLV of 1860)---

----Ss. 302/392---Constitution of Pakistan, Art 185(3)---Qatl-e-amd, robbery---Quantum of sentence, consideration of---Delay in recording confessional statement---Recovery of weapon and robbed articles while accused was in police custody for two weeks---Delay between extra judicial and judicial confession---Accused had been awarded death sentence by the Trial Court which, on appeal, was confirmed by the High Court---Leave to appeal was granted by Supreme Court to consider accused's quantum of sentence as his case was based on circumstantial evidence and such evidence had to be re-adjudged to consider three questions, firstly that whether death sentence awarded to accused was justified in view of delay of fifteen days between accused's arrest and his confessional statement; secondly, the question of alleged recovery of crime weapon and robbed articles after accused remained in police custody for two weeks, and, thirdly, the delay between accused's alleged extra judicial confession before witnesses and his judicial confession.

M. Ghufran Khursheed Imtiazi, Advocate Supreme Court for Petitioner.

Ahmed Raza Gaillani, Additional P.-G. for the State.

Date of hearing: 28th June, 2011.

2012 S C M R 577

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Ejaz Afzal Khan, JJ

AMJAD ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.58-P of 2010, decided on 7th December, 2011.

(On appeal from the judgment dated 21-4-2009 passed by Peshawar High Court, Peshawar in Criminal Appeal No.466 of 2007).

Control of Narcotic Substances Act (XXV of 1997)---

----S.9(c)---Recovery of narcotics---Re-appraisal of evidence---Benefit of doubt---Recovery---Proof---Case property, failure to produce---Charas weighing 20 kilograms was recovered from secret cavities of door and spare wheel of car---Accused was convicted and sentenced to imprisonment for life by Trial Court which was maintained by High Court---Validity---Although prosecution sought to corroborate testimony of recovery witnesses with report of Forensic Science Laboratory to the effect that contraband item recovered from secret cavities was Charas, yet sanctity of report of Laboratory was eroded by evidence of official who could not correctly reply as to where samples remained between the dates when those were allegedly taken into possession from car and the date those were received by Forensic Science Laboratory---Official witness even could not tell the date as to when samples were sent for examination and which official had taken samples to the Laboratory---Case property, the spare wheel of car, was never produced during trial to verify as to whether it could contain such a huge quantity of narcotics in question---Element of doubt surrounding prosecution case led court to hold that prosecution had failed to prove its case beyond reasonable doubt to sustain conviction---Supreme Court set aside the conviction and sentence awarded to accused by the courts below and he was acquitted of the charge---Appeal was allowed.

Noor Alam Khan, Advocate Supreme Court for Appellant.

Muhammad Bilal, Senior Advocate Supreme Court and M. Siddiqui Khan Baloch, Advocate Supreme Court (Both for AG KPK) for the State

Date of hearing: 7th December, 2011.

2012 S C M R 580

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

Mir ZAMAN and 5 others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 220 to 225 of 2007, decided on 4th January, 2012.

(On appeal from the judgment dated 8-5-2004 of the Peshawar High Court, Peshawar passed in Criminal Appeals Nos. 686, 688, 689, 690, 697 and 700 of 2003 in Murder Reference No.37 of 2003).

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

----S. 17(4)---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.164---Dacoity with murder and act of terrorism---Reappraisal of evidence---Benefit of doubt---Retracted confession---Both the accused confessed their guilt before Magistrate through their statements recorded under S.164, Cr.P.C., which statements were subsequently retracted by accused---Trial Court convicted both the accused and sentenced to death on two counts---High Court maintained the sentence awarded by Trial Court---Validity---Retracted confession should have been corroborated by some other independent evidence and the same seldom sufficed by itself to record a conviction on the basis of the same---Weapons and cash recovered during investigation did not stand connected with alleged offences and there was no other piece of evidence produced by prosecution to provide any corroboration to retracted confessions attributed to accused persons---Prosecution failed to prove its case against accused beyond reasonable doubt---Supreme Court set aside convictions and sentences awarded to both the accused by the courts below and extending them benefit of doubt, they were acquitted of the charge---Appeal was allowed.

Basharatullah, Senior Advocate Supreme Court for Appellants (in Criminal Appeals Nos.220 and 223 of 2007).

Noor Alam Khan, Advocate Supreme Court for Appellants (in Criminal Appeal No. 221 of 2007).

Arshad Ali Chaudhry, Advocate Supreme Court for Appellants (in Criminal Appeals Nos. 224 and 225 of 2007).

Zubair Khan, the Complainant in person.

Naveed Akhtar, Additional Advocate-General, KPK for the State.

Date of hearing: 4th January, 2012.

2012 S C M R 583

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Khilji Arif Hussain and Asif Saeed Khan Khosa, JJ

AJMAL KHAN---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.224 of 2009, decided on 27th May, 2010.

(On appeal from the judgment dated 17-3-2009 of the Peshawar High Court, Peshawar passed in Criminal Appeal No.340 of 2007 with M.R. No.15 of 2007).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Related eye-witnesses---Administration of justice---Leave to appeal was granted by Supreme Court to consider contentions of accused that it was a case of no evidence and only two eye-witnesses who were closely related to the deceased could not reasonably explain their presence at the spot; and whether principles laid down by Supreme Court for safe administration of justice were kept in view while rendering the judgment under appeal.

Sahab Khan v. The State 1997 SCMR 871 and Farrukh Sayyar v. Chairman, NAB, Islamabad 2004 SCMR 1 ref.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Syed Arshad Hussain, Additional P.-G., KPK for the State.

Date of hearing: 27th May, 2010.

2012 S C M R 584

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Main Shakirullah Jan, Tassaduq Hussain Jillani, Jawwad S. Khawaja, Tariq Parvez, Mian Saqib Nisar, Amir Hani Muslim, Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ

WATAN PARTY and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petitions Nos.77 to 85, 89 of 2011 and C.M.A. No.5505 of 2011 in Constitution Petition No. 79 of 2011, decided on 1st December, 2011.

(Constitution Petition under Article 184(3) of the Constitution regarding alleged Memorandum to Admiral Mike Mullen by Mr. Hussain Haqqani, former Ambassador of Pakistan to the United States of America)

(a) Constitution of Pakistan---

----Art. 5---Loyalty to State and obedience to Constitution---Basic duty of every citizen is to be loyal to the State and to be obedient to the Constitution and law, being inviolable obligation wherever he may be and of every other person for the time being within Pakistan.

(b) Constitution of Pakistan---

----Arts. 184(3) & 6---Constitutional petition under Art.184(3) of the Constitution by petitioners belonging to political parties and others hailing from all federating units of Pakistan including Azad Jammu & Kashmir and Gilgit-Baltistan, in the wake of confidential memorandum, which was handed over by an American businessman of Pakistani origin to the then Chairman, Joint Chiefs of Staff of the United States through former National Security Advisor of the United States---Said American businessman claimed that memorandum containing message from the Pakistan Government was handed over to him by the then Pakistan Ambassador in the United States; according to him both the then Chairman, Joint Chiefs of Staff of the United States and former National Security Advisor confirmed the contents of the memorandum---Such disclosure by the said American businessman caused unrest amongst the political government and the defence agencies as according to the contents of the memorandum, which was published in the foreign as well as local media, prima facie, there was highly objectionable material relating to compromising the sovereignty and independence of Pakistan---Exchange of S.M.S. messages and Blackberry messages between the said American businessman and the Pakistan Ambassador had also been admitted---Matter was open for investigation and Supreme Court was to examine as to who had initiated these messages---Petitioners, in circumstances, contended that if the allegations were established, then the culprits whosoever were involved, should be held liable for action and Commission be constituted to probe into the memorandum scandal---Attorney General, stated that he was not against the probe, but as the matter was pending before the Parliamentary Committee on National Security, therefore, the result of the committee's proceedings be awaited---Both the forums were not against probe into the matter and subject to constitutionality of the Committee, proceedings could be taken up simultaneously; object and purpose both of the Parliament Committee and the Supreme Court was that there should not be any compromise on the sovereignty, security and independence of the Country---Memorandum, issuance whereof, prima facie, seemed to be established, had posed immediately two questions, one with regard to civil/constitutional liability with its consequences as envisaged by Art.6 of the Constitution, and the second, the criminal liability as well---President of Pakistan, the Army Chief, I.S.I. were to file their replies to explain their position---Supreme Court observed that it was considered appropriate that in the meantime, the respondents file their replies to all the petitions within 15 days of the passing of present order, to protect and preserve the evidence, a Commission, comprising a competent officer (named) was appointed for the purpose of collecting evidence on the issues, as highlighted, including the question of authenticity of memorandum, and the circumstances under which the same was sent and the object behind addressing such memorandum to the highups of a foreign country, and whether such an act was tantamount to compromising the sovereignty, security and independence of Pakistan---Supreme Court directed that all the concerned authorities of Federal and the Provincial Governments shall extend their full cooperation to the Commission in collecting evidence who would be free to associate with him any other sitting and/or retired officer of the police or any other technical person to collect evidence; that he would be holding the probe in the Cabinet Division; that Cabinet Secretary shall provide him all logistic support for the purpose of performing the function on behalf of the Supreme Court; that he was required to complete the task as early as possible, preferably within a period of three weeks from the receipt of present order and that in case the person declines to act as the Commission, he may inform the Registrar who shall place the matter in Chambers for passing of appropriate order for taking up the matter either in the court or holding proceedings in the Chambers---Former Ambassador of Pakistan in the United States, who had already resigned, should fully cooperate with the Commission and during the pendency of the cases before the Supreme Court, he would not be leaving the country without prior permission of the Supreme Court.

United States v. Richard M. Nixon, President of the United States [418 US 683]; Imtiaz Ahmad v. Government of Pakistan 1994 SCMR 2142 and Benazir Bhutto v. State PLD 1999 SC 937 ref.

Barrister Zafarullah Khan, Advocate Supreme Court in person, Tariq Asad, Advocate Supreme Court in person, Rashid A. Razvi, Senior Advocate Supreme Court, Senator Muhammad Ishaq Dar and Khawaja Muhammad Asif, MNA in person, Muhammad Rafiq Rajwana, Advocate Supreme Court, Attique Shah, Advocate Supreme Court, M. Salahuddin Mengal, Advocate Supreme Court, Sardar Asmatullah Khan, Advocate Supreme Court, Syed Ghous Ali Shah, Advocate Supreme Court, Dr. M. Shamim Rana, Advocate Supreme Court, Naseer Ahmad Bhutta, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record assisted by Mustafa Ramday and Syed Ali Shah Gillani for Petitioners.

Nemo for the President of Pakistan.

Nemo for the Prime Minister of Pakistan.

Maulvi Anwar-ul-Haq, Attorney-General for Pakistan and Dil Muhammad Alizai, D.A.-G. for Chief of Army Staff, DG, ISI & M/o of Cabinet, Defence, Foreign Affairs, Interior and Law.

Ms. Asma Jahangir, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record assisted by Idrees Ashraf and Asad Jamal for Hussain Haqqani.

Nemo for Mansoor Ijaz.

Dates of hearing: 19 - 23rd and 27th to 30th December, 2011.

2012 S C M R 593

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

MUHAMMAD ASLAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.517 of 2009, decided on 6th January, 2012.

(On appeal from the judgment dated 8-7-2009 in Criminal Appeal No.777 of 2004 passed by the Lahore High Court, Lahore).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Trial Court convicted the appellant under S.302(b), P.P.C., and sentenced him to death---Appeal of appellant was dismissed by the High Court, however sentence of death recorded by Trial Court was altered to life imprisonment---Validity---F.I.R. was promptly lodged, allowing no time to the prosecution to concoct a false story---Post-mortem was conducted without any delay and it supported the statements of the prosecution witnesses---No previous enmity existed between the parties and witnesses were not only related to the deceased but also with the appellant, therefore, they had no motive to falsely implicate the appellant and their relationship with deceased was not sufficient to term them as interested witnesses---Prosecution witnesses were residents of the village where occurrence took place and their presence at the spot had been established beyond any shadow of doubt---Specific role of firing had been attributed to the appellant---Statements of witnesses with regard to the appellant were consistent with each other and despite lengthy cross-examination, defence failed to gain anything---Motive of the occurrence was almost admitted by the appellant himself by stating that he suspected the deceased to have concealed his mother (who was real sister of the deceased), who had been missing for three years---Alleged involvement of deceased in criminal cases did not give a licence to the general public to commit his murder---Fact of delay in sending crime weapon and empties to the Forensic Science Laboratory did not, overweigh the ocular evidence which was in line with and supported by the medical evidence---Prosecution had been able to prove the case against the appellant beyond any shadow of doubt---Appeal was dismissed in circumstances.

Nizamuddin v. The State 2010 SCMR 1752 rel.

Mir Muhammad Ghafran Khurshid Imtiaz, Advocate Supreme Court for Appellant.

Asjad Javed Ghoral, Additional P.-G., Punjab for the State.

Date of hearing: 6th January, 2012.

2012 S C M R 597

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Sair Ali and Ghulam Rabbani, JJ

CHAIRMAN, FBR and others---Appellants

Versus

IDREES TRADERS and others---Respondents

Civil Appeals Nos. 1306 to 1327, 1426 to 1480 of 2009, 204, 1068 to 1101, 1105, 1108 to 1112, 1119 to 1124, 1132 to 1140, 1147, 1148, 1207 to 1224, 1226 to 1228, 1102 to 1104, 1106 to 1107, 1113 to 1118, 1125 to 1131, 1141 to 1146, 1225 and 1229 of 2010, decided on 24th February, 2011.

(On appeal from the judgments dated 14-7-2009, 17-7-2009, 27-7-2009, 28-7-2009, 19-10-2006, 15-10-2009, 12-10-2009, 29-10-2009, 19-10-2009, 26-10-2009, 29-10-2009, 2-11-2009, 9-10-2009, 29-10-2009, 4-11-2009, 5-11-2009, 7-10-2009, 19-10-2009, 7-10-2009, 16-10-2009, 12-10-2009, 15-10-2009, 16-10-2009, 20-10-2009, 21-10-2009, 29-10-2009, 10-11-2009, 16-10-2009, 12-10-2009, 15-10-2009, 20-10-2009, 26-10-2009, 4-11-2009, 11-11-2009, 17-11-2009, 23-11-2009, 11-11-2009, 20-11-2009, 20-11-2009, 23-11-2009, 20-10-2009, 19-11-2009, 23-11-2009, 23-11-2009, 26-11-2009, 24-11-2009, 1-12-2009, 7-12-2009, 16-12-2009, 12-10-2009, 20-11-2009, 1-12-2009, 11-12-2009, 14-12-2009, 14-12-2009, 14-12-2009, 13-10-2009, 10-11-2009, 11-12-2009, 17-12-2009, 23-12-2009, 11-1-2010, 11-1-2010, 17-7-2009, 16-2-2010, 17-7-2009, 12-4-2010, 16-4-2010, 10-11-2009, 7-12-2009, 7-12-2009, 7-12-2009, 2-3-2010, 16-3-2010 of Lahore High Court, Lahore passed in Civil Appeals Nos.5752, 6143, 6769, 6783, 6384, 6385, 6386, 6387, 6389, 7499, 14849, 14850, 14940, 14942, 14943, 14946, 14947, 15044, 145044, 15046 of 2009, 4673 of 2008, 6127, 4398, 4810, 4811, 5073, 5192, 5216, 5537, 5583, 5825, 5946, 5947, 6004, 6030, 6333, 6037, 6038, 6127, 6129, 6157, 6175, 6241, 6334, 6521, 6666, 6667, 6694, 6771, 6779, 6780, 6781, 6931, 6816, 6948, 6953, 7101, 7398, 7423, 7425, 7443, 7505, 7550, 7551, 7664, 6128, 6290, 6390, 9270, 7093, 8454, 8892, 8893, 10090, 11097 of 2009, 10069 of 2006, 20218 of 2009, 19859 of 2009, 21295 of 2009, 20439, 20440, 20442 of 2009, 20986 of 2009, 21291 of 2009, 21510, 21508, 21509 of 2009, 19642 of 2009, 21308 of 2009, 21662 of 2009, 21791 of 2009, 19429 of 2009, 20441 of 2009, 19416, 19428 of 2009, 20339, 20340 of 2009, 19893 of 2009, 20208 of 2009, 20306, 20573 of 2009, 20670 of 2009, 21292 of 2009, 21971, 21972 of 2009, 20303 of 2009, 19886 of 2009, 20207, 20211 of 2009, 20571 of 2009, 20693, 20978 of 2009, 21700 of 2009, 22068 of 2009, 22467 of 2009, 22847 of 2009, 22067 of 2009, 22731 of 2009, 22732 of 2009, 22858 of 2009, 22859 of 2009, 20570 of 2009, 22601 of 2009, 22844 of 2009, 22845, 22846 of 2009, 23086 of 2009, 22923 of 2009, 23165, 23164 of 2009, 23402 of 2009, 24027 of 2009, 19820 of 2009, 22729 of 2009, 23166 of 2009, 23750 of 2009, 23830 of 2009, 23831 of 2009, 23875 of 2009, 29681 of 2009, 21993 of 2009, 23717 of 2009, 24160 of 2009, 24577 of 2009, 103 of 2010, 104, 153, 200 of 2010, 8896 of 2009, 2920 of 2010, 10322 of 2009, 7640 of 2010, 7640 of 2010, 22010 of 2009, 13534 of 2009, 21542 of 2009, 12100 of 2009, 14147 of 2009, 17064 of 2009, 17067 of 2009, 14399, 22245, 8535, 12478, 17063, 17068, 20446, 12475, 12130, 18334, 12125, 9148 of 2009, 21486 of 2010, 2505 of 2010).

Income Tax Ordinance (XLIX of 2001)---

----S. 177(4)---Constitution of Pakistan, Art.199---Conduct of audit---Letters issued to appoint or authorize auditors---High Court by two orders, directed to issue letters for appointment of auditors---Validity---Supreme Court set aside the order of the High Court and observed that without availing departmental remedies, filing of constitutional petition was not appreciable; and if the letters had not been withdrawn, reasons should be assigned; and after providing opportunity to the taxpayers, it be clearly pointed out to them that their cases were not covered under the Policy and they could apply afresh, if need be---If the department intended to proceed, then sufficient opportunity be given to the taxpayers to put up pleas so that no prejudice could cause to them in any manner---Said conclusion having been conceded to by all the counsel, appeals were disposed of accordingly.

Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 PTD 1392 = 2009 SCMR 1279 rel.

Syed Arshad Hussain Shah Advocate Supreme Court, M.A. Zaidi, Advocate-on-Record for Appellants (in C.As. No. 1306 to 1327 of 2009).

Muhammad Ilyas Khan, Senior Advocate Supreme Court for Appellants (in C.As. 1427 to 1480 of 2009, 1068 to 1088 of 2010, 1097 to 1101, 1124, 1132 to 1135, 1141 to 1146 of 2010, 1113 to 1118, 1126 to 1131 of 2010, 1102 to 1104, 1106 to 1107 of 2010).

Sirajuddin Khalid, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Appellants (in C.As. 1426 of 2009, 204 of 2010, 1208 to 1209 of 2010, 1222 of 2010 and 1474 of 2009) Mian Yousaf Umar, Advocate Supreme Court (in C.As. 1108 to 1112 of 2010, 1119 to 1123 of 2010, 1136, 1140 of 2010, 1147 to 1148 of 2010, 1069, 1090 to 1096 of 2010).

Faiz-ur-Rehman, Advocate Supreme Court for Respondents (in C.As. Nos. 1307 of 2009, 1309 to 1316 of 2009).

Asghar Kharal, Advocate Supreme Court for Respondents (in C.As. Nos. 1428 to 1429 of 2010, 1432 of 2010, 1220 of 2010).

Mian Ashiq Hussain, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondents (in C.As. Nos.1430 of 2009, 1480 of 2009).

M.A. Zaidi, Advocate-on-Record for Respondents (in C.As. Nos. 1439 to 1441 of 2009, 1134 of 2010)

Sirajuddin Khalid, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondents (in C.As. Nos.1451, 1456, 1459 and 1473 of 2009).

Rana Muhammad Afzal, Advocate Supreme Court for Respondents (in C.A. No. 1460 of 2009).

M. Ilyas Khan, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents (in C.As. Nos.204, 1212, 1213 of 2010).

Iqbal Hashmi, Advocate Supreme Court for Respondents (in C.As. Nos.1071 to 1074, 1084, 1105, 1124, 1132, 1139 of 2010).

Sh. Khizar Hayat, Senior Advocate Supreme Court for Respondents (in C.A. No.1135 of 2010).

Malik Shakeel ur Rehman, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents (in C.As. 1209, 1210, 1227 of 2010).

Mukhtar Ahmad Chaudhry, Advocate Supreme Court for Respondents (in C.A. No. 1097 of 2010).

Amjad Hameed Ghori, Advocate Supreme Court for Respondents (in C.A. No. 1131 of 2010).

Date of hearing: 24th February, 2011.

2012 S C M R 604

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ

MAHMOOD KHALID---Petitioner

Versus

SENIOR MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and others---Respondents

Civil Petition No.1004 of 2011, decided on 27th January, 2012.

(On appeal from the order dated 30-6-2011 of the Lahore High Court, Bahawalpur Bench in W.P. No.3531 of 2011/BWP).

Pakistan Environmental Protection Act (XXXIV of 1997)---

----S. 21---Criminal Procedure Code (V of 1898), S. 133---Constitution of Pakistan, Art. 185(3)---Public Nuisance---Nuisance created by machines in grind mill installed in inhabited area---Notices were issued by Supreme Court to Director-General Environment to explain as to whether installation of grind mill in inhabited area was permissible---Director-General Environment submitted report outlining, the different forms of nuisances created by the machines installed; the reasons for the nuisance; remedial measures that could be adopted to reverse the impact of the nuisance, and the fact that machines had since been sealed and were not operational on orders of the Assistant Commissioner---Contention of petitioner was that the grind mill was a nuisance in all forms and manifestations and it was required to be removed---Validity---Respondent had stated that machines installed by him had been sealed under order of the Assistant Commissioner and in case he operated them again, same would abide by all the remedial measures suggested by the Director-General Environment in his report---Petition for leave to appeal was disposed of accordingly.

Syed Saleem-ud-Din Aftab, Advocate Supreme Court for Petitioner.

Muddassir Khalid Abbasi, A.A.-G. Punjab for Respondents Nos. 1 to 3 and 5.

Date of hearing: 27th January, 2012.

2012 S C M R 606

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

JAFAR @ JAFARI---Appellant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.429 of 2010 in Criminal Appeal No.7 of 2010, decided on 3rd February, 2012.

(On appeal from the judgment/order dated 26-5-2009 passed by Lahore High Court, Lahore in Criminal Appeal No.2243 of 2003 and Murder Reference No.894 of 2003).

Penal Code (XLV of 1860)---

----Ss.302(b) & 311---Criminal Procedure Code (V of 1898), S.345(3)---Qatl-e-amd, tazir after waiver or compounding of right of qisas in qatl-e-amd---Reappraisal of evidence---Compromise between the parties---Contention of prosecution was that appellant had also abducted the deceased before committing her murder and that another F.I.R. was registered against the appellant, on account of which he deserved no concession and under the relevant provisions of S.311, P.P.C., adequate sentence should be awarded to accused while accepting the compromise--- Validity--- No sufficient evidence was available on record to conclude that the appellant was habitual offender and although another F.I.R. was registered against him, but same was not sufficient to prove the appellant as habitual offender, unless it was proved that he had been convicted and his conviction had been finally maintained by superior courts---Report from Trial Court proved the genuineness of the compromise and right of qisas and diyat had also been exercised by the complainant side, by which they forgave the appellant---Case was disposed of in terms of compromise and appellant was permitted to compound the offence in terms of S.345(3), Cr.P.C.---Conviction and sentence recorded by High Court were set aside and appellant was directed to be released---Appeal was allowed.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Mian Subah Sadiq Klasson, Advocate Supreme Court for Appellant.

M. Irfran Malik, Additional P.-G. for the State.

Date of hearing: 3rd February, 2012.

2012 S C M R 609

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Amir Hani Muslim, JJ

MUHAMMAD NADEEM QADIR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Civil Petition No.1535-L of 2011, decided on 20th February, 2012.

(On appeal from judgment dated 24-6-2011 of the Lahore High Court, Lahore, passed in W.P. No. 1670 of 2009).

Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan, Art. 185(3)---Custody of minors---Application of father (petitioner) seeking custody of minors and restraining respondent (mother) from removing minors from jurisdiction of the court, was dismissed by Guardian Judge and first Appellate Court---Constitutional petition filed by the father, assailing the judgments of the courts below was also dismissed by High Court with the observations that father had not made any attempt by filing an application for restraining the departure of minors from the jurisdiction of the High Court; that the minors were residing in a better atmosphere than existing in the country where the father resided, and that minors had a long disassociation from their father and therefore the father may be a stranger to them---Validity---Father had in fact filed an application before the Guardian Judge with the contention that the mother be restrained from removing the children to a place outside the jurisdiction of the court---Father had throughout agitated his right of custody and/or visiting rights, but without success---Disassociation between the father and the minors was attributable to the mother as she was the one who took the minors abroad---Observation made by the High Court that minors were residing in a better atmosphere than the one existing in the father's country of rsidence were not borne out from the record and there was no evidence to such effect---Mother did not appear as a witness nor did any counsel appear on her behalf---Father had established through evidence that he was depositing the amount of maintenance but still he had not been allowed visiting rights---Counsel for mother had stated before Supreme Court that she was willing to ensure visiting rights to the father---Petition for leave to appeal, in circumstances, was converted into appeal and allowed as a result whereof the impugned judgments of courts below were set aside and the parties were directed to appear before the Guardian Judge, where application for custody of minors was deemed to be pending.

Tariq Masood, Advocate Supreme Court for Petitioner.

Malik Ejaz Hussain Gorcha, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Respondent No.3.

Date of hearing: 20th February, 2012.

2012 S C M R 613

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

ABDUL WAHAB KHAN---Appellant/Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Civil Appeal No.2254 of 2008 and Civil Petitions Nos.3056-L of 2000 and 3616-L of 2001, decided on 16th June, 2009.

(Against the judgments/order dated 3-7-2000 and 14-9-2001 passed by the Punjab Service Tribunal, Lahore and Lahore High Court, Lahore in Appeals Nos. 104 of 1995, 993 of 1993 and I.C.A. No.130 of 2001 respectively).

Civil service---

----Disciplinary proceedings---Penalty awarded to an employee found by court not to be sustainable---Effect---Officer having awarded such penalty would be liable to be penalized in respect of dues ultimately to be paid to such employee instead of burdening to public exchequer---Illustration.

Syed Yaqoob Shah v. XEN, PESCO (WAPDA) Peshawar and another PLD 2002 SC 667 rel.

Appellant/Petitioner in person.

Mudassar Khalid Abbasi, A.A.-G. for Respondents.

Date of hearing: 16th June, 2009.

2012 S C M R 617

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ

SADIA JABBAR and 3 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Revenue Division, Islamabad and others---Respondents

Civil Petitions Nos.813 to 816 of 2011, decided on 24th January, 2012.

(On appeal from the judgment dated 28-2-2011 in Constitutional Petitions Nos. D-2673 of 2009, D-707, 1101 and 1269 of 2010 passed by the High Court of Sindh, Karachi)

Customs Act (IV of 1969)---

----Ss. 18, 25 & 25A---Constitution of Pakistan, Art. 185(3)---Goods dutiable, determination of customs value of goods, powers to determine the customs value---Contention of petitioners that when S.25 of Customs Act, 1969 exhaustively provided the modes for determination of value, resorting to S. 25A of the Act without any convincing reason was uncalled for, and that S.18 of Customs Act, 1969 dealt with determination of the value of the goods imported, which could not be stretched to include the goods to be imported---Validity---Case had been sent back to department (Director Evaluation) for determination of value afresh which was not in any way detrimental to the petitioners---Impugned judgment of the High Court contained nothing which could show that any of the provisions of the Customs Act, 1969 in general or S.18 thereof in particular had been overstretched against its letter and spirit---Apprehension of petitioners in circumstances appeared to be conjectural---Petitions were time barred by four days and no plausible explanation had been offered for the delay---No adverse decision had been passed against the petitioners---Petition for leave to appeal was dismissed accordingly.

Shehzada Mazhar, Advocate Supreme Court for Petitioners (in all cases)

Raja Muhammad Iqbal, Advocate Supreme Court for Respondent No.4.

Date of hearing: 24th January, 2012.

2012 S C M R 619

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Athar Saeed, JJ

GOVERNMENT OF KPK and others---Petitioners

Versus

KHALID MEHMOOD---Respondent

Civil Petition No.76-P of 2011, decided on 16th February, 2012.

(On appeal from the judgment dated 25-11-2010 of the Peshawar High Court, Peshawar passed in Writ Petition No.945 of 2009).

(a) Notification---

----Notification could not be given retrospective effect.

(b) Undertaking (promise)---

----Undertaking given under mistake of law or fact---Effect---Excess amount paid to Government on such undertaking could be recovered.

Messrs Pfizer Laboratories Ltd. v. Federation of Pakistan PLD 1998 SC 64 rel.

(c) Taxation---

----Tax/duty could be levied strictly in accordance with parameters provided in the charging statute.

(d) Notification---

----Notification levying or enhancing duty with retrospective effect---Validity---Such notification could not be given effect to as same would impair vested rights acquired by taxpayer in accordance with provisions in force at time of its promulgation.

Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652 and Collector of Central Excise and Land Customs and others v. Azizuddin Industries PLD 1970 SC 439 rel.

(e) North-West Frontier Province Forest Ordinance (XIX of 2002)---

----S. 56---Notification No.SOFT-1(FFW) V.105/99 dated 18-9-1999---Notification No.SOFT(Tech)ED / V.544 / 2044 / KC / 120-28 dated 16-2-2005---Constitution of Pakistan, Arts. 185(3)---Levy of enhanced forest duty @ Rs.90 per cft., on timber imported from Afghanistan through Bin Shahi route vide Notification No.SOFT(Tech)ED/ V.544/2044/KC/120-28, dated 16-2-2005 w.e.f. 1-4-2004---Validity---Government could levy such duty by issuing notification, but not through policy---Enhanced forest duty levied by policy issued by government on 16-10-2003 for bringing timber through Bin Shahi route was of no legal effect and could not be implemented---Petitioner had imported timber when Notification SOFT-1(FFW) V.105/99, dated 18-9-1999 was in force, thus, he had acquired vested right to pay duty @ Rs.40 per cft., specified therein---Such vested right could not be taken away by issuing impugned notification dated 16-2-2005, which could not be given retrospective effect, rather same would come into effect on date of its publication i.e. 5-5-2005 and not prior thereto---Supreme Court upheld judgment of High Court.

Chief Administrator Auqaf v. Mst. Amina Bibi 2008 SCMR 1717; Mst. Umatullah v. Province of Sindh PLD 2010 Kar. 236; Muhammad Ashiq v. Chief Administrator of Auqaf PLD 1977 SC 639; Muhammad Suleman v. Abdul Ghani PLD 1978 SC 190; Mina Musarat Shah v. Government of West Pakistan PLD 1974 Pesh. 18; Imtiaz Ahmad v. Punjab Public Service Commission PLD 2006 SC 472; Commissioner of Sales Tax v. Messrs Kruddsons Ltd. PLD 1974 SC 180 and Messrs Pfizer Laboratories Ltd. v. Federation of Pakistan PLD 1998 SC 64 ref.

Anoud Power Generation Ltd. v. Federation of Pakistan PLD 2001 SC 340; Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652; Collector of Central Excise and Land Customs and others v. Azizuddin Industries PLD 1970 SC 439 and Tehsil Municipal Administration, Faisalabad v. Secretary, Local Government, Government of the Punjab, Lahore and others PLJ 2006 SC 783 rel.

(f) Undertaking (promise)---

----Undertaking or consent given in connection to policy, which was not in accordance with law would not be binding upon person giving such undertaking/consent.

Messrs Pfizer Laboratories Ltd. v. Federation of Pakistan PLD 1998 SC 64 rel.

Naveed Akhtar, Additional A.-G. KPK for Petitioners.

Imtiaz Ali, Advocate Supreme Court for Respondent.

Date of hearing: 16th February, 2012.

2012 S C M R 633

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

Haji ALLAH RAKHA---Petitioner

Versus

ABDUL SATTAR---Respondent

Civil Petition No.1815-L of 2011, decided on 20th February, 2012.

(Against the judgment dated 10-8-2011 of the Lahore High Court, Lahore, passed in SAO No.108 of 2009).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan, Art. 185(3)---Tenant becoming co-sharer by purchasing half of the suit property---Leave to appeal was granted by Supreme Court, to consider the question whether having purchased half of the suit property, was not the tenant (petitioner) entitled to retain possession of the joint property till its partition, and whether he could be ejected in such circumstances.

Mst. Sanobar Sultan and others v. Obaidullah Khan PLD 2009 SC 71 and Abdul Zahir v. Jaffar Khan 2010 SCMR 189 ref.

Ahmed Awais Khurram, Advocate Supreme Court for Petitioner.

Respondent not represented.

Date of hearing: 20th February, 2012.

2012 S C M R 635

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Athar Saeed, JJ

FAZAL-UR-REHMAN---Appellant

Versus

KHURSHID ALI and another---Respondents

Civil Appeals Nos. 1023 and 1061 of 2006, decided on 21st February, 2012.

(On appeal from the judgment dated 13-1-2003 and 14-11-2003 passed by Peshawar High Court, Peshawar in Civil Revisions Nos. 31 of 2000 and 571 of 2002).

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether immediate demand (talb) and demand (talb) through notice could be said to have been made in accordance with requirements of S.13 of Punjab Pre-emption Act, 1991.

(b) Khayber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O.VI, R. 2---Talbs---Plaint, necessary particulars---Suits filed by pre-emptor were dismissed by Trial Court but the same were decreed by Lower Appellate Court and High Court---Plea raised by vendee was that failure to mention time and place of making of Talb-e-Muwathibat in plaint was fatal to pre-emptor---Validity---Pre-emptors mentioned only dates and not time and place of making talbs---Time and place of making immediate demand (talb) and demand through notice were essential particulars of pleadings which were also required to be mentioned in plaint to prove as to when and where pre-emptor received information and how he responded to the same---If particulars as to the date, time and place of making immediate demand and demand through notice were particulars of evidence and the same were not to be mentioned in plaint, then plaintiff could not defend the judgments as such particulars had not been mentioned even in his evidence recorded in Trial Court---Such particulars in the first place were required to be stated in court by pre-emptor himself---Where pre-emptor opted not to appear as witness of his own without there being any disability on his part, such particulars ought to have been mentioned by his attorney in his evidence---Attorney of pre-­emptor also did not mention any such particulars---Though the attorney of pre­-emptor mentioned that he received information about sale on 16-11-1993 but when and where he informed his brother and what was the time, was not mentioned---Pre-emptor could not prove requisite demands (talbs) in accordance with requirements of law---With such state of evidence, pre-emptor failed to succeed in his suits for enforcement of right of pre-emption under the latest dispensation---Supreme Court set aside judgments and decrees passed by High Court and Lower Appellate Court and that of Trial Court was restored---Appeal was allowed.

Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302; Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957; Mst. Lalan Bibi v. Muhammad Khan 2007 SCMR 1193 and Multiline Associates v. Ardeshir Cowasjee 1995 SCMR 362 ref.

Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314; The Province of East Pakistan v. Dr. Abdul Aziz PLD 1963 SC 296 and Ardeshir Cowasjee v. Karachi Building Control Authority [KMC] 1999 SCMR 2883 distinguished.

Abdul Sattar Khan, Advocate Supreme Court for Appellant.

Abdul Samad Khan, Senior Advocate Supreme Court for Respondents.

Date of hearing: 21st February, 2012.

2012 S C M R 641

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

TARIQ SAEED---Petitioner

Versus

IFRA NAZ and others---Respondents

Civil Petitions Nos. 957-L and 958-L of 2011, decided on 23rd February, 2012.

(Against the judgment dated 14-3-2011 of the Lahore High Court, Multan Bench, Multan, passed in Writ Petitions Nos. 6759-F of 2005 and 34-F of 2006).

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan, Art. 185(3)---Recovery of maintenance allowance and dowry articles---Husband (petitioner) contented that High Court decreed the suit for recovery of dowry articles without adverting to the evidence; that the High Court did not keep in view the law with regard to actionable claims in the context of the Schedule attached to the West Pakistan Family Courts Act, 1964 and that High Court while directing that the wife (respondent) was entitled to the maintenance amount, did not appreciate that as per her own statement she was no longer his (petitioner's) wife and stood divorced---Validity---Supreme Court granted leave to appeal to consider the contentions raised by the petitioner-husband.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan, Art. 185(3)---Recovery of maintenance allowance and dowry articles---Stay of execution proceedings---Conditions---Husband (petitioner) contented that High Court decreed the suit for recovery of dowry articles without adverting to the evidence; that the High Court did not keep in view the law with regard to actionable claims in the context of the Schedule attached to the West Pakistan Family Courts Act, 1964, and that High Court while directing that wife (respondent) was entitled to maintenance amount, did not appreciate that as per her own statement she was no longer his (petitioner's) wife and stood divorced---Validity---Leave to appeal was granted by Supreme Court to consider the contentions raised by the husband---Executing proceedings qua the recovery of the maintenance amount granted to wife and the recovery of dower amount were stayed by the Supreme Court subject to the husband depositing the dower amount before the Executing Court and the rent of the properties, which were subject matter of present petitions, also had to be deposited with the Executing Court.

Muhammad Aslam Zar, Advocate Supreme Court for Petitioner (in both Petitions).

Shamim Abbas Bokhari, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Respondents (in both Petitions).

Date of hearing: 23rd February, 2012.

2012 S C M R 643

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Khilji Arif Hussain, J

MUHAMMAD RAFIQUE---Petitioner

Versus

AMIR BAKHSH and others---Respondents

Civil Petition No.1158-L of 2009, decided on 20th February, 2012.

(On appeal from the judgment dated 9-6-2009 passed by the Lahore High Court, Multan Bench in Civil Revision No.73-D of 2008).

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----Ss. 22 & 25---Constitution of Pakistan, Art. 185(3)---Finality of orders, bar of jurisdiction---Determination of status of property--- High Court while deciding the question of jurisdiction, disposed of civil revision filed by petitioner with the finding that in view of the bar under S.22 read with S.25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a civil suit against the order passed by the Settlement Authority for transfer of property was not competent---Contention of petitioner that suit property was Muslim property which was transferred in his name by means of Will Deed, therefore, property could not be treated as evacuee property, and that the High Court should have referred the matter to the Trial Court for taking into consideration the evidence in order to determine the status of the property---Validity---Petitioner and respondent in view of the contentions of the petitioner and material available on record, particularly the report of Local Commission both agreed that impugned judgment of High Court should be set aside and case should be remanded to the High Court for disposal of the revision petition on the question of jurisdiction, after providing opportunity of hearing to both the parties, and if S.22 read with S.25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 were not an impediment in the way of the petitioner, High Court was competent to decide the matter on merits, and if need be to send the matter back to the Trial Court for recording additional evidence and then decide the case on merits---Petition for leave to appeal was converted into appeal, impugned judgment of High Court was set aside and case was remanded to the High Court.

Ch. Abdul Ghani, Advocate Supreme Court for Petitioner.

Mian Shah Abbas, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Respondents Nos. 1 to 8.

Date of hearing: 20th February, 2012.

2012 S C M R 646

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Amir Hani Muslim, JJ

MUHAMMAD ESSA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No.23-L of 2012, decided on 20th February, 2012.

(On appeal from order dated 5-10-2011 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.12530-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-F(i)/337-F(iii)/334---Constitution of Pakistan, Art. 185(3)---Ghayr-jaifah-damiyah, ghayr-jaifah-mutalahimah, itlaf-i-udw---Pre-arrest bail, grant of---High Court dismissed pre-arrest bail application of accused with the reasoning that there was no malice on part of the complainant to rope the accused---Validity---F.I.R. was lodged eight days after the alleged injuries to the prosecution witness and such delay had not been explained---Said witness did not appear before the medical board---Offences alleged did not fall within the prohibitory clause of S. 497, Cr.P.C.---Possibility of accused having been roped along with the other accused as a result of malice existed---Supreme Court converted the petition into appeal and admitted the accused to pre-arrest bail, in circumstances.

Sardar Mohabbat Ali Dogar, Advocate Supreme Court and Haji M. Rafi Siddiquie, Advocate-on-Record for Petitioner.

Mazhar Sher Awan, Additional P.-G., Punjab and Maqbool Hussain, A.S.-I. for the State.

Date of hearing: 20th February, 2012.

2012 S C M R 647

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

AABID---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No. 1065-L of 2011, decided on 22nd February, 2012.

(Against the judgment dated 24-6-2011 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.6872-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 365-B/364/337-H(ii)/ 148/149--- Constitution of Pakistan, Art. 185(3)--- Kidnapping, abducting or inducing woman to compel for marriage etc., kidnapping or abducting in order to murder, hurt by rash or negligent act, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Major part of prosecution story had been found to be false and all co-accused were on bail---One of the abductees had exonerated the accused---Question of accused's guilt required further inquiry---Supreme Court converted the petition into appeal and admitted the accused to bail, in circumstances.

Muhammad Ahmed Bakhsh, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional P.-G. for the State.

Date of hearing: 22nd February, 2012.

2012 S C M R 649

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

GHULAM AHMED CHISHTI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.10 of 2012, decided on 13th February, 2012.

(Against order dated 20-12-2011 of Lahore High Court, Lahore, passed in Criminal Miscellaneous No.16360-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 498--- Penal Code (XLV of 1860), Ss.302, 324, 427, 149 & 148---Constitution of Pakistan, Art.185(3)---Qatl-e-amd, attempt to commit qatl-e-amd, causing damage rioting armed with deadly weapons, unlawful assembly---Pre-arrest bail, grant of---Absconding accused---Contention of complainant was that police was not cooperating to cause arrest of accused and knowing well that Additional Sessions Judge had issued warrants of arrest; the Station House Office of police station concerned was reluctant to appear for one reason or the other---Effect---Accused though had obtained bail from High Court but a person who was, prima facie, fugitive from law could not claim relief from Supreme Court without approaching it with clean hands---Ad interim bail granted to accused was recalled by Supreme Court and judgment passed by High Court was maintained and bail was refused---Leave to appeal was refused.

Shawar Khilji, Advocate Supreme Court for Petitioner.

Ehtisham Qadir Shah, Advocate Supreme Court for the Complainant.

M. Irfan Malik, Additional P.-G., Zahid Hussain Shah, SSP, Abdul Qadir Qayyum, SSP, Ejaz Ahmed, Inspector SHO, Khadim Hussain, SI/IO Police Station Haveli Lakha, Okara for the State.

Date of hearing: 13th February, 2012.

2012 S C M R 656

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Amir Hani Muslim, JJ

Mst. SURAYA PARVEEN---Petitioner

Versus

Mst. RUKHSANA HANIF and others---Respondents

Civil Petition No.2520 of 2010, decided on 1st February, 2012.

(On appeal against the judgment dated 18-10-2010 of the Lahore High Court, Bahawalpur Bench, passed in Writ Petition No.2918 of 2010).

Civil Procedure Code (V of 1908)---

----O. IX, R.8---Specific Relief Act (I of 1877), Ss. 39 & 42---Constitution of Pakistan, Art. 185(3)---Suit for cancellation of document and declaration---Dismissal for non-prosecution---Date of hearing---Scope---Act of court---Date on which the suit was dismissed for non-prosecution was not the date fixed for hearing---Validity---Plaintiff was not at fault and, therefore, she could not be blamed for dismissal of her suit for non-prosecution---Error was with Trial Court, which did not go through the record to ascertain background which had led to transfer of case to it---Question of limitation in respect of application seeking restoration of the suit was only relevant if dismissal itself was proper---Suit filed by plaintiff was dismissed without notice to her on a date which was not a "date of hearing"---Such dismissal of suit for non-prosecution was not legally sustainable and the same was set aside---Supreme Court remanded the case to Trial Court for decision afresh.

Muhammad Qasim v. Moujuddin 1995 SCMR 218 rel.

Gulzarin Kiani, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Muhammad Munir Peracha, Advocate Supreme Court for Respondents Nos. 1 to 5.

Nemo for Respondents Nos. 5 to 7.

Date of hearing: 1st February, 2012.

2012 S C M R 662

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

GHULAM MUJTABA QADRI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.10-L of 2012, decided on 24th February, 2012.

(Against the judgment dated 10-10-2011 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.11339-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Penal Code (XLV of 1860), Ss. 302/324/109---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, attempt to commit qatl-e-amd, abetment---Bail, grant of---Further inquiry---High Court had dismissed the bail application of the accused on the basis that specific role had been assigned to him---Validity---Neither the accused had been attributed any role in causing the murder nor he was connected with the motive part of the prosecution story---Guilt of accused required further inquiry---Supreme Court converted the petition into appeal and allowing the same, admitted the accused to bail.

Bashir A. Mujahid, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional P.-G. for the State.

Date of hearing: 24th February, 2012.

2012 S C M R 664

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Athar Saeed, JJ

PROVINCE OF PUNJAB through Collector Sargodha---Appellant

Versus

MUHAMMAD BAKHSH and another---Respondents

Civil Appeal No.1383 of 2006, decided on 23rd February, 2012.

(On appeal from the judgment dated 10-5-2006 passed by Lahore High Court, Lahore in Civil Revision No.120 of 2006).

Jurisdiction---

----Court or Tribunal making an error of law in its decision would go outside of its jurisdiction---Principles.

The very condition for the conferment of a jurisdiction on a court of law is that it should decide every lis before it fairly, justly and in accordance with law. Where a court or a Tribunal makes an error of law on which the decision of the case depends, it goes outside its jurisdiction.

Muhammad Nazir Khan v. Ahmad and 2 others 2008 SCMR 521; Province of the Punjab through Collector District Khushab, Jauharabad and others 2007 SCMR 554; Muhammad Ishaq v. Abdul Ghani and 3 others 2000 SCMR 1083; Anisminic Ltd. v. Foreign Compensation Commission; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338; Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24 and Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. 1988 SCMR 2514 rel.

Mudasar Khalid Abbasi, A.A.-G. Punjab, Maqbool Ahmed, Secretary Colonies and Abdul Rauf, General Assistant, Revenue Sargodha for Appellant.

Zulfiqar Khalid Maluka, Advocate Supreme Court, Nazir Ahmed Bhutta, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 23rd February, 2012.

2012 S C M R 669

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Anwar Zaheer Jamali, JJ

Capt. (Retd.) NAYYAR ISLAM---Petitioner

Versus

JUDGE, ACCOUNTABILITY COURT NO.III and others---Respondents

Civil Petition No.154 of 2012, decided on 15th February, 2012.

(On appeal from the judgment dated 23-1-2012 passed by Lahore High Court, Rawalpindi Bench in W.P. No.3122 of 2011).

(a) Interpretation of statutes---

----Special law excludes application of general law in the context in which the former provision has been enacted.

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

----S. 16-A(b)--- Criminal Procedure Code (V of 1898), S.526---Constitution of Pakistan, Art. 185(3)--- Transfer of case---Complainant's right--- Special and general law--- Applicability---Petitioner sought transfer of criminal case from a court of ordinary jurisdiction to Accountability Court but High Court declined to interfere in the matter---Plea raised by petitioner was that provisions of National Accountability Ordinance, 1999, had not excluded application of general law i.e. S.526, Cr.P.C.---Validity---Insertion of S.16-A in National Accountability Ordinance, 1999, was intended to lay down a special procedure and thereby provided a right to Chairman NAB and also to Prosecutor-General Accountability and accused in a given case to seek transfer on grounds stipulated therein, as such it was to limit such right to those who were directly involved in a case so as to prevent and avoid vexatious proceedings and frivolous petitions---If petitioner felt strongly about the grounds agitated in his constitutional petition before High Court, he could move the Chairman NAB and the latter had to proceed as mandated in law---Supreme Court declined to interfere in the judgment passed by High Court as the same was unexceptionable---Leave to appeal was refused.

Sardar Muhammad Ghazi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 15th February, 2012.

2012 S C M R 671

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Amir Hani Muslim, JJ

KHADEEJA BIBI and others---Petitioners

Versus

ABDUL RAHEEM and others---Respondents

Civil Petition No.1829-L of 2011, decided on 21st February, 2012.

(On appeal from judgment dated 4-8-2011 of the Lahore High Court, Lahore, passed in W.P. No.7385 of 2010).

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5---Suit for recovery of dowry articles and maintenance allowance for minors---Increase in maintenance allowance---Principle---Dispute was with regard to automatic increase in maintenance for minor children and dowry articles---Mother of minor children wanted to lead evidence in the form of financial statistics including Sensitive Price Index (SPI) to persuade Family Court to grant annual increase in line with such statistical data---Validity---No factual basis were brought on record to justify such annual increase---Supreme Court set aside judgments and decrees passed by High Court and Lower Appellate Court and remanded the case to Family Court with directions to frame specific issues relating to dowry articles as well as enhancement of maintenance awarded to minor children and decide the matter afresh after recording of evidence--- Appeal was allowed.

Ch. Muhammad Anwar Ghumman, Advocate Supreme Court for Petitioners.

Kh. Muhammad Saeed, Advocate Supreme Court and Ms. Tasneem Amin, Advocate-on-Record for Respondent No.1.

Date of hearing: 21st February, 2012.

2012 S C M R 673

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Tariq Parvez, JJ

MUHAMMAD ALI and 11 others---Petitioners

Versus

PROVINCE OF KPK through Secretary, Elementary and Secondary Education, Peshawar and others---Respondents

Civil Petitions Nos. 2036 to 2046 of 2011 and Civil Petition No.145 of 2012, decided on 24th February, 2012.

(On appeal from judgment of Khyber Pakhtunkhwa Service Tribunal, Peshawar dated 27-10-2011, passed in Service Appeals Nos.1407, 1558, 1999, 2443, 2444, 3046, 3047, 3048 of 2010 and 109, 110 of 2011 and 2445 of 2010 respectively).

Civil service---

----Appointments made without advertisement of vacancies, inviting of applications and completion of codal formalities---­Termination of service of such employees without providing them opportunity of hearing---Validity---"He who seeks equity must do equity" and "approach court with clean hands"---"Ill-gotten gains could not be protected"---Such employees had got their appointments through backdoor, thus, could not agitate any grievance on pretext of denial of due opportunity of hearing to them---Such employees could not challenge principle of good governance adopted at highest level mandating each and every appointment in government service to be made on merits as per relevant rules and completion of codal formalities---Appeals filed by such employees were dismissed in circumstances.

Ghulam Nabi Khan, Advocate Supreme Court for Petitioners (in all cases).

Nemo for Respondents.

Date of hearing: 24th February, 2012.

2012 S C M R 678

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

MUHAMMAD AHMED and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Petition No.1075-L of 2011, decided on 21st February, 2012.

(On appeal from the order dated 21-12-2011 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.16461/B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 498--- Penal Code (XLV of 1860), Ss. 452/354/448/511---Constitution of Pakistan, Art. 185(3)---House-trespass after preparation for hurt, assault or wrongful restraint, assault or criminal force to woman with intent to outrage her modesty, house-trespass, attempting to commit offences punishable with imprisonment for life or for a shorter term---Pre-arrest bail, grant of---Dispute over right of way---Complainant and accused's father were owners of separate plots, which had separate streets in front of them---Contention of accused was that his father closed access/right of way from his plot towards the street but complainant wanted to have right of way on both sides, i.e. from her plot and that of accused's father, which was neither legally warranted nor morally justified---Validity---Application of S.452, P.P.C., in circumstances of the case, remained a moot point and possibility of false implication of accused for reasons other than bona fide could not be ruled out---Supreme Court converted the petition into appeal and allowing the same admitted the accused to pre-arrest bail.

Rai Bashir Ahmed, Advocate Supreme Court for Petitioners.

Mazhar Sher Awan, Additional P.-G. and Faiz Ahmed, A.S.-I. Saddar, Tandlianwala for the State.

Complainant in person.

Date of hearing: 21st February, 2012.

2012 S C M R 680

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany, Gulzar Ahmed and Muhammad Athar Saeed, JJ

MUHAMMAD FAHIM SOOMRO---Petitioner

Versus

WAQAR AHMED QADRI and others---Respondents

Civil Petition No.188-K of 2011, decided on 6th March, 2012.

(On appeal against the judgment dated 8-1-2011 passed by High Court of Sindh, Karachi in C.P. No.D-2256 of 2008).

Sindh Civil Servants Act (XIV of 1974)---

----S. 9-A---Out of turn promotion by Chief Minister on 25-10-2008 after deletion of S.9-A of Sindh Civil Servants Act, 1974 w.e.f. 26-2-2008---Validity---Such promotion would be illegal.

Ghulam Shabbir v. Muhammad Munir Abbasi and others 2011 PLC (C.S.) 763 ref.

M.M. Aqil Awan, Senior Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Masood A. Norrani, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondents Nos.1 to 25.

Date of hearing: 6th March, 2012.

2012 S C M R 685

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Sarmad Jalal Osmany and Amir Hani Muslim, JJ

Mst. REHANA ZEB---Petitioner

Versus

Dr. MATWARRA HUSSAIN and others---Respondents

Civil Petition No.2404 of 2010, decided on 17th February, 2012.

(On appeal against the judgment dated 11-10-2010 passed by Lahore High Court, Rawalpindi Bench in C.R. No.991 of 2010).

Constitution of Pakistan---

----Art. 185(3)---Petition for leave to appeal---Concurrent findings of fact by Trial Court, Appellate Court and Revisional Court---Absence of misreading or non-reading of any material evidence by courts below---Effect---Supreme Court dismissed the petition in circumstances.

Muhammad Ikram Chaudhry, Senior Advocate Supreme Court for Petitioner.

Gul Zarin Kiyani, Senior Advocate Supreme Court for Respondents Nos.1 to 4.

Nemo for Respondent No.5.

Date of hearing: 17th February, 2012.

2012 S C M R 686

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk and Sarmad Jalal Osmany, JJ

GOVERNMENT OF PUNJAB through Secretary (S&GAD), Lahore and another---Appellants

Versus

ZAFAR MAQBOOL KHAN and others---Respondents

Civil Appeals Nos. 749 and 750 of 2008, decided on 9th February, 2012.

(On appeal from the judgment dated 7-4-2008 and 10-4-2008 passed by Lahore High Court, Lahore in W.Ps. Nos. 4587 of 2007 and 5061 of 2007).

(a) Punjab Provincial Management Service Rules, 2004---

----Rr. 5, 22 & Sched. I--- Punjab Public Service Commission Ordinance (II of 1978), S. 10--- Punjab Public Service Commission Regulations, 2000, Regln. 22---Constitution of Pakistan, Art. 185(3)--­Provincial Management Service Examination---Prescribed and advertised qualification for such examination being "Graduate in Second Division"---Petitioner having graduated in 3rd division and obtained 2nd class in master degree---Placing of petitioner's name in merit list after qualifying written test and interview---­Rejection of petitioner's candidature by Public Service Commission for lacking prescribed and advertised qualification---Acceptance of petitioner's constitutional petition by High Court---Validity---Supreme Court granted leave to appeal, inter alia, to consider questions as to whether a candidate obtaining 3rd division in graduation with a 2nd class master degree would be eligible for applying for a post for which minimum requirement was graduation in 2nd class, and whether in doing so High Court violated provisions of Regln. 22 of Punjab Public Service Commission Regulations, 2002; and whether impugned judgment was not against settled law to the effect that court once having found Regulations/Rules framed under statutory power to be within ambit of relevant statute, could not sit in its judgment over wisdom of effectiveness or otherwise of policy laid down by statutory body and could not declare such Regulations to be ultra vires merely considering that same would not serve the object and purpose of the Act.

Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others PLD 1993 SC 210; Civil Petition No. 1478-L of 2009 and Human Rights Case No.6741-G of 2009 ref.

(b) Punjab Provincial Management Service Rules, 2004---

----R. 39---Punjab Public Service Commission Ordinance (II of 1978), S. 10---Punjab Public Service Commission Regulations, 2000, Regln. 22---Provincial Management Service Combined Examination---Petitioner's name placed in merit list after qualifying written test and interview---Rejection of petitioner's candidature for having appeared for 4th time in such examination and become dis-entitled to compete after availing three chances earlier---Acceptance of petitioner's constitutional petition by High Court---Validity---Supreme Court granted leave to appeal, inter alia, to consider questions of law as to whether impugned judgment was not violative of Regln. 39 of Punjab Public Service Commission Regulations, 2000; and such Regulations having statutory sanction, violation thereof would amount to violation of law rendering impugned judgment as illegal; and whether High Court in exercise of constitutional jurisdiction could not declare a policy decision to be in violation of principles of natural justice and hold that no constraint could be laid down by Government for requiring appearance of a candidate in examination for induction into civil service

Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others PLD 1993 SC 210 ref

(c) Civil service---

---- Appointment--- Eligibility of a candidate, determination of---Criteria

The eligibility of a candidate has to be determined in accord with the advertisement for the post, service rules governing the appointments and any amendment or instruction backed by law.

(d) Punjab Provincial Management Service Rules, 2004---

----R. 39---Punjab Public Service Commission Ordinance (II of 1978), S. 10--- Punjab Public Service Commission Regulations, 2000, Regln.22---Constitution of Pakistan, Art. 185(3)---Posts of Provincial Management Service--- Combined Competitive Examination---Petitioner's name placed in merit list after qualifying written test and interview, but his candidature rejected for having appeared for 4th time in such examination after three earlier availed chances---Petitioner's constitutional petition accepted by High Court on the ground that nomenclature of present posts was different from the one in which he had earlier appeared and availed three chances, which were not countable towards chances available to him in present examination--- Validity--- Regulation 39 of Punjab Provincial Management Service Rules, 2004 provided three chances irrespective of type or categories of posts grouped in such examination--- Such examination was point of reference to count chances availed and not name of such posts--- Supreme Court set aside impugned judgment of High Court and dismissed constitutional petition in circumstances.

Mudasir Khalid Abbasi, Assistant A.-G. Punjab, M. Farooq Raja, Dy. Dir Legal, PPSC, Lahore and M. Aslam Khan, SO (S&GAD), Lahore for Appellants (in both cases)

Mushtaq Ahmed Mohal, Advocate Supreme Court for Respondent No.1 (in C.A. No.749 of 2008).

Mushtaq Ahmed Mohal, Advocate Supreme Court for Respondents Nos. 4 to 5 (in C.A. No.750 of 2008).

Date of hearing: 9th February, 2012.

2012 S C M R 695

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Athar Saeed, JJ

QAMAR SULTAN and others---Petitioners

Versus

Mst. BIBI SUFAIDAN and others---Respondents

Civil Petition No.1131 of 2010 and C.M.A. No.1754 of 2010, decided on 2nd March, 2012.

(On appeal against the judgment dated 26-5-2010 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in C.R. No.69 of 2002).

(a) Islamic Law---

----Inheritance---Sect---Deceased being issueless left behind a mother and sister---Mother's statement in court to the effect that her deceased son was shia by faith---Validity---Sister would retain remaining property, if deceased was found to be a shia by faith---Such evidence of mother aimed at benefiting her daughter was interested and discarded in circumstances.

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

----S. 135---Partition of agricultural property---Jurisdiction of Revenue court or civil court---Scope---Jurisdiction to grant such relief would lay with Revenue court---Decree of civil court granting such relief would be nullity in eye of law.

(c) Qanun-e-Shahadat (10 of 1984)---

----Arts. 76(f), 78 & 85(1)(iii)--- Secondary evidence--- Proof of signature on an application by a person since deceased---Scope---Application by said person (deceased) to Deputy Commissioner---Tendering of certified copy in evidence without proving signature of deceased on such application---Validity---Secondary evidence to prove such signature on such copy would not be necessary for same being certified copy of such application.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Petitioners.

Gulzarin Kiani, Senior Advocate Supreme Court for Respondents Nos. 3, 4 and 5.

Ch. Abdul Aziz, Naib Tehsildar for Respondents Nos.7 and 8.

Date of hearing: 2nd March, 2012.

2012 S C M R 702

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Khilji Arif Hussain, J

TARIQ MEHMOOD A. KHAN and others---Petitioners

Versus

SINDH BAR COUNCIL and another---Respondents

Civil Petition No.1305 of 2011, decided on 9th March, 2012.

(On appeal from the order dated 27-5-2011 of the High Court of Sindh at Karachi passed in C.P. No.D-306 of 2010).

Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S. 16---Pakistan Legal Practitioners and Bar Councils Rules, 1976, R.5---Constitution of Pakistan, Art. 199---Constitutional petition---Election of Sindh Bar Council---­Death of elected member of the Council---Order of Chairman directing filling up vacant seat of deceased member by next member having secured highest votes in the election---Plea that re-election ought to have been held for such seat---Validity---­Parties being practising advocates ought to have resolved their dispute through their own forums in terms of Legal Practitioners and Bar Councils Act, 1973 having provided a domestic alternative remedy to aggrieved persons---Supreme Court upheld order of High Court dismissing constitutional petition.

Rasheed A. Razvi, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.

Muhammad Aqil, Advocate Supreme Court for Respondent No.1.

Ms. Asma Jehangir, Advocate Supreme Court for Respondent No.2.

Date of hearing: 6th March, 2012.

2012 S C M R 707

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ

MUHAMMAD AFZAL---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.1026-L of 2009, decided on 23rd November, 2009.

(On appeal from the order of the Lahore High Court, Lahore dated 16-7-2009 passed in Criminal Miscellaneous No.8162-B of 2009).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Plea of alibi---Accused pressed into service plea of alibi and contended that he was employee of transport company and was at place "S" and not at his house at place "J" at the time of occurrence---Validity---High Court had rightly observed that such was a matter, the veracity whereof would be determined at trial---Supreme Court declined to differ with High Court---Bail was refused.

Khawar Mahmood, Advocate Supreme Court for Petitioner.

Amanat Ali Bukhari, Dy. P.-G. Punjab with Muhammad Mumtaz, ASI, Police Station Lalian, District Jhang for the State.

Malik Rab Nawaz, Advocate Supreme Court for the Complainant.

Date of hearing: 23rd November, 2009.

2012 S C M R 709

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Nasir-ul-Mulk and Ejaz Afzal Khan, JJ

Messrs LAHORE POLYPROPYLENE INDUSTRIES (PVT.) LTD. and others---Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeals Nos. 152 to 190, 1156 to 1162, 1165 to 1169, 1174, 1176, 1177, 1181 and 1182 of 2010, decided on 13th March, 2012.

(On appeal against the judgment dated 24-12-2009 passed by the Lahore High Court, Lahore, in I.C.A. No.462/2009 in W.Ps. Nos.13145/2008 and 10144/2008, I.C.A. No.363/2009 in W.P.No.1849/2009, I.C.A. No.362/2009 in W.P. No.12196/2008, I.C.A. No.463/2009 in W.P. No.13828/2008, I.C.A. No.464/2009 in W.P. No.13825/2008, I.C.A. No.465/2009 in W.P. No.13827/2009, I.C.A. No.354/2009 in W.P. No.13715/2008, I.C.A. No.405/2009 in W.P. No.14063/2008, I.C.A. No.392/2009 in W.P. No.802/2008, I.C.A. No.395/2009 in W.P. No.14592/2008, I.C.A. No.393/2009 in W.P. No.4976/2008 and W.P. No.13770/2008, I.C.A. No.371/2009 in W.P. No.16500/2008, I.C.A. No.667/2009 in W.P. No.14592/2008, I.C.A. No.443/2009, I.C.A. No.635/2009 in W.P. No.8872/2008, I.C.A. No.488/2009 in W.P. No.14592/2008, I.C.A. No.563/2009 in W.P. No.18407/2009, I.C.A. No.370/2009 in W.P. No.12214/2008, I.C.A. No.443/2009 in W.P. No.13997/2008, I.C.A. No.397/2009 in W.P. No.13874/2008, I.C.A. No.442/2009, I.C.A. No.697/2009, I.C.A. No.445/2009 in W.P. No.3225/2008, I.C.A. No.322/2009, I.C.A. No.472/2009, I.C.A. No.328/2009, I.C.A. No.331/2009 in W.P. No.15352/2008, I.C.A. No.384/2009 in W.P. No.16594/2008, I.C.A. No.385/2009 in W.P. No.15695/2008, I.C.A. No.387/2009 in W.P. No.15353/2008, I.C.A. No.352/2009, I.C.A. No.386/2009 in W.P. No.16595/2008, I.C.A. No.484/2009 in W.P. No.18645/2008, I.C.A. No.938/2009 in W.P. No.8872/2008, I.C.A. No.613/2009 in W.P. No.1284/2009, I.C.A. No.448/2009).

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

----Ss. 147 & 235---Constitution of Pakistan, Arts. 2-A, 3, 4, 77, 185(3) & 242(c) & Federal Legislative List, Entry No. 47---­Finance Act (I of 2008), S.18---Advance tax with increase in its percentage imposed through Finance Act, 2008 on amount of electricity bills of a commercial/industrial consumer---Validity---Supreme Court granted leave to appeal to consider, inter alia, questions as to whether such tax could be levied pursuant to provision of S. 235 of Income Tax Ordinance, 2001 and in view of categorical bar imposed under Art.142(c) of the Constitution; whether such levy was covered up under Entry 47 of Federal Legislative List; whether apparent distinction between provisions of Ss. 147 & 235 of Income Tax Ordinance, 2001 had been taken care of; whether such levy could be imposed without their being any corresponding income on subjects falling under Provincial fiscal domain; and whether such levy was violative of Arts.2-A, 3, 4 & 77 of the Constitution.

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

----Ss. 147 & 235---Constitution of Pakistan, Art. 242(c) & Federal Legislative List, Entry No. 47---Advance tax with increase on its percentage imposed on amount of electricity bills of a commercial/industrial consumer---Validity---Income of such consumer would ultimately constitute decisive factor and would be taxed, but not its expenditure---Such tax could not be treated as tax on expenditure---Principles.

Messrs Sh. Abdur Rahim, Allah Ditta v. Federation of Pakistan PLD 1988 SC 670; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan and 6 others PLD 1997 SC 582; Pakistan Tobacco Company Ltd. and another v. Federation of Pakistan and 3 others 1999 SCMR 382; Pakistan Industrial Development Corporation v. Pakistan through Ministry of Finance 1992 PTD 576; Reference under the Government of Ireland Act, 1920 (Privy Council) 1936; Buxa Dooars Tea Company Ltd. and others v. State of West Bengal and others (1989) 3 Supreme Court cases 211; State and another v. Sajjad Hussain and others 1993 SCMR 1523; Azizur Rehman v. the State (Cr. A. No.17(S)/1990 - SCMR Vol.XXVI); Call Tell (Pvt.) Ltd. v. Federation of Pakistan 2004 PTD 3032; Government of Pakistan and others v. Muhammad Ashraf and others PLD 1993 SC 176; Messrs Hoechst Pharmaceuticals Ltd. and another v. State of Bihar AIR 1983 SC 1019; Messrs Geeta Enterprises and others v. State of U.P. and others (AIR 1983 SC 1098), The Elel Hotels and Investment Ltd. v. Union of India AIR 1990 SC 1664; Federation of Pakistan v. Muhammad Sadiq 2007 PTD 57; Riaz Bottlers Pvt. Ltd. v. Lahore Electric Supply Co. 2010 PTD 1295 and Aized Hussain v. Motor Registration Authority PLD 2010 SC 983 ref.

Mudassar Khalid Abbasi, A.A.-G., Punjab, Lal Jan Khattak, Additional A.-G. KPK and Qasim Mirjat, Additional A.-G. Sindh on Court Notice on behalf of Provinces.

Mian Ashiq Hussain, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Appellants (in C.As. 152 to 177, 1174, 1176 of 2010).

Nemo for Appellants (in C.As. 178, 188 to 190 of 2010).

Nemo for Appellants (in C.As. 179 to 187 of 2010).

Nemo for Appellants (in C.As. 1156 to 1162, 1165 to 1169 of 2010).

Nemo for Appellants (in C.A. 1177 of 2010).

Nemo for Appellants (in C.As. 1181 to 1182 of 2010).

Respondent No.3 (in C.As. 152 to 158, 160 to 168, 170 to 177, 1158, 1174, 1176 and 1181 of 2010).

M. Ilyas Khan, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.4 (in C.As. 1159, 1160 and 1162 of 2010).

M. Ramzan Ch., Senior Advocate Supreme Court for Respondent No.3 on behalf of LESCO (in C.A. 1168 of 2010) for Respondent No.4 on behalf of LESCO (in C.As. 152 to 178, 180 to 183, 185 to 190, 1156 to 1158, 1161, 1174, 1177, 1181 and 1182 of 2010) and for Respondent No.5 on behalf of LESCO (in C.As. 165, 1159, 1160, 1162, 1165, 1166 and 1167 of 2010).

Syed Arshad Hussain Shah, Advocate Supreme Court for Respondent No.1 on behalf of LESCO (in C.As. 159 to 190 of 2010) and for Respondent No.2 on behalf of LESCO (in C.As. 152 to 158 of 2010).

Mian M. Javed, Advocate Supreme Court for Respondent No.6 on behalf of FESCO (in C.As. 161 to 163, 169 to 177, 180, 187 and 189 of 2010).

Nemo for other Respondents on behalf of FESCO (in all cases).

Dates of hearing: 12th and 13th March, 2012.

2012 S C M R 721

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Anwar Zaheer Jamali and Mian Saqib Nisar, JJ

MUHAMMAD RIAZ and others---Appellants

Versus

BILQIAZ KHAN and others---Respondents

Criminal Appeals Nos. 79-P and 80-P of 2010, decided on 17th February, 2012.

(On appeal from the judgment dated 8-7-2010 passed by Peshawar High Court, Peshawar passed in Criminal Appeal No.572 of 2009).

(a) Penal Code (XLV of 1860)---

----Ss.365 & 365-A---Constitution of Pakistan, Art 185(3)---Abduction and abduction for ransom---Leave to appeal was granted by Supreme Court where High Court disbelieved most of the evidence of prosecution and on such score converted conviction of accused from offence under S.365-A, P.P.C. to S. 365, P.P.C.

(b) Penal Code (XLV of 1860)---

----Ss. 365 & 365-A---Abduction and abduction for ransom---Re-appraisal of evidence---Pre-conditions---Passing of ransom---Proof---Accused were convicted under S.365-A, P.P.C. by Trial Court for abduction for ransom and sentenced to imprisonment for life but High Court converted the conviction to only abduction under S.365, P.P.C. and sentence was reduced to 7 years' imprisonment---Reasons which found favour with High Court to reverse conviction under S.365-A, P.P.C. to one under S.365 P.P.C. were that middle man who received the ransom amount for onward transmission to accused was neither made an approver nor a witness; nothing was brought in evidence as to wherefrom ransom amount was obtained or borrowed and manager of the bank from where money was drawn was also not produced and payment of amount was not free from doubt---Validity---Such observations of High Court were conjectural, fanciful and reflected non-reading of material evidence---Prosecution was not obliged to make middle man as approver or to explain as to from where ransom amount was drawn or to produce the bank manager---Passage of money was not a pre-requisite to prove S.365-A, P.P.C.---Accused had abducted two persons for the purpose of extorting ransom and had compelled complainant to comply demand for cash/ransom for releasing the abductees---Supreme Court set aside conviction and sentence passed by High Court and restored that of Trial Court---Appeal was allowed.

Muhammad Amjad v. State PLD 2003 SC 704 ref.

Ghulam Mohi-ud-Din, Advocate Supreme Court for Appellants (in Cr. A. 79-P of 2010).

Taufiq Asif, Advocate Supreme Court for Appellants (in Cr. A. 80-P of 2010).

Taufiq Asif, Advocate Supreme Court for Respondents (in Cr. A. 79-P of 2010).

Ghulam Mohi-ud-Din, Advocate Supreme Court for Respondents (in Cr. A. 80-P of 2010).

M. Siddiqui Khan Baloch, Advocate Supreme Court for AG KPK for the State.

Date of hearing: 17th February, 2012.

2012 S C M R 728

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

SHEERIN ZAFAR and another---Petitioners

Versus

ZAHID REHMAN and others---Respondents

Criminal Petitions Nos. 568 and 581 of 2011, decided on 9th March, 2012.

(Against the judgment dated 23-11-2011 passed by the Islamabad High Court, Islamabad in Criminal Appeal No.30 of 2004, Murder Reference No.54 of 2005 and Criminal Revision No.19 of 2004).

Penal Code (XLV of 1860)---

----Ss. 302(b), 306(b) & 308---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, Qatl-e-amd not liable to Qisas---Conflicting judgments of Supreme Court---Leave to appeal was granted by Supreme Court to consider factual and legal aspects of the present case highlighted by accused and for pronouncement of an authoritative judgment by a larger Bench of the Supreme Court to settle the legal controversy at rest which had resulted due to divergence of opinion expressed by different Benches of Supreme Court.

Naseer Ahmed v. The State PLD 2000 SC 813; Dil Bagh Hussain v. The State 2001 SCMR 232; Muhammad Abdullah Khan v. The State 2001 SCMR 1775; Amanat Ali v. Nazim Ali and another 2003 SCMR 608; Muhammad Ilyas v. The State 2008 SCMR 396; Khalid Mehmood v. The State 2011 SCMR 1110; Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Muhammad Afzal alias Seema v. The State 1999 SCMR 2652; Umar Hayat v. Jahangir and another 2002 SCMR 629; Muhammad Akram v. The State 2003 SCMR 855; Ghulam Murtaza v. The State 2004 SCMR 4; Nasir Mehmood and another v. The State 2006 SCMR 204; Abdul Jabbar v. The State and others 2007 SCMR 1496; Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111 and Tauqeer Ahmad Khan v. Zaheer Ahmad and others 2009 SCMR 420 ref.

Khawaja Haris Ahmad, Advocate Supreme Court for Petitioners (in Cr. P. 581 of 2011).

Munir Ahmad Bhatti, Advocate Supreme Court for Petitioners (in Cr. P. 568 of 2011).

Nemo for Respondents (in both cases).

Date of hearing: 9th March, 2012.

2012 S C M R 730

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Anwar Zaheer Jamali, JJ

ADMINISTRATOR, THAL DEVELOPMENT through EACO Bhakkar and others---Appellants

Versus

ALI MUHAMMAD---Respondent

Civil Appeal No.1970 of 2006, decided on 6th March, 2012.

(On appeal from judgment of Lahore High Court, Lahore dated 21-3-2002 passed in Civil Revision No.358-D of 1994).

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

----S. 115---Revisional jurisdiction of High Court---Scope---­Concurrent findings of facts of courts below, if based on proper appreciation of evidence, could not be interfered in such jurisdiction---Such jurisdiction was meant for correction of jurisdictional defect/error and material illegalities/irregularities resulting in miscarriage of justice to a party.

(b) Jurisdiction---

----Consent of parties could neither confer nor take away jurisdiction of a Court/Tribunal unless so conferred or barred by law---Bounden duty of every Court/Tribunal would be to examine issue of maintainability of suit or bar of its jurisdiction at the earliest opportunity---Court/Tribunal could not bypass such issue on mere concession of a party or his counsel---Principles.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 10 & 36---West Pakistan Land Revenue Act (XVII of 1967), S.161---Civil Procedure Code (V of 1908), S. 9---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Resumption of State land by Colony Officer due to non-fulfilment of required pre-conditions by the plaintiff---Jurisdiction of civil court to entertain such suit---Scope---Plaintiff had not availed remedy of appeal under S. 161 of West Pakistan Land Revenue Act, 1967, thus, jurisdiction of civil court was impliedly barred---Jurisdiction to resolve such dispute exclusively vested with Revenue Courts.

Abdul Hamid v. Province of the Punjab 1989 SCMR 1741; Alam Sher v. Muhammad Sharif 1998 SCMR 468; Muhammad Ali v. Province of Punjab 2005 SCMR 1302 and Province of the Punjab v. Yaqoob Khan 2007 SCMR 554 ref.

Razzaq A. Mirza, Additional Advocate-General, Punjab for Appellants.

Qazi Khurshid Alam Siddiqui, Advocate Supreme Court for Respondent.

Irfan Qadir, Deputy Secretary (Colonies), BOR and Shakeel Ahmed, Colony Assistant, Office of the Distt. Collector, Bhakkar on Court Notice.

Date of hearing: 29th February, 2012.

2012 S C M R 736

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Khilji Arif Hussain and Tariq Parvez, JJ

Syed JAVED IQBAL BOKHARI---Appellant

Versus

THE STATE through Prosecutor-General, National Accountability Bureau, Islamabad---Respondent

Criminal Petition No.384 of 2003, decided on 5th March, 2012.

(On appeal from the judgment/order dated 26-5-2003 passed by Lahore High Court, Lahore in Criminal Accountability Appeal 15 of 2003).

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi)--- Misuse of authority--- Reappraisal of evidence---Mens rea---Accused was Secretary Cooperatives who availed financial facility from Cooperative Society without proper security or personal guarantee---Trial Court convicted the accused and sentenced him to 5 years' imprisonment along with fine but High Court reduced the sentence to imprisonment for 3 years---Validity---Accused was DMG officer, posted in Lahore in year, 1987, and while using his official status and position, had obtained a huge amount in shape of financial facility from Cooperative Society in question---Accused subsequently became Secretary Cooperatives and during such period he kept on making withdrawals, without making any adjustment/repayment of loan---Despite judicial verdict against accused, he failed to execute decree against him and kept quiet until NAB authorities took the charge of the case and only then accused agreed for return of loan amount/financial facility---Such was not temporary withholding of loan amount but a permanent default on his part to repay loan money , which was taken by him between the period 1988 to 1991---Such conduct of accused expressly displayed his mala fide and mens rea---Supreme Court declined to interfere in conviction and sentence awarded to accused by High Court---Appeal was dismissed.

Abid Hassan Minto, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Akbar Hayat Tarrar, Additional P.-G. for the NAB.

Date of hearing: 6th February, 2012.

2012 S C M R 743

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bukhari, JJ

QAISAR and others---Petitioners

Versus

MUHAMMAD SHAFAQAT SHARIF---Respondent

Civil Petition No.90-L of 2009, decided on 27th May, 2009.

(On appeal from the judgment dated 18-11-2008 of the Lahore High Court, Lahore passed in Labour Appeal No.393 of 2005).

Industrial Relations Ordinance (XCI of 2002)---

----S. 2(xxx) & 46---Removal from service---Production Supervisor---Abolition of post---Grievance petition---Petitioner's plea was that he was removed from service without any show-cause notice or inquiry---Employer's plea was that petitioner was not a "workman", thus, Labour Court had no jurisdiction to hear the petition---Validity---Record showed that petitioner was not provided right to defend himself---Employer did not cross-examine petitioner's statement to the effect that he performed his functions manually---Not the designation, but nature of duty would determine whether a person was a "workman" or not---Petitioner was a workman, thus Labour Court had jurisdiction to decide the petition---Impugned order for lacking reasons did not fulfil legal requirements---Record showed that persons junior to petitioner were still holding their posts, thus, employer's stance that post of petitioner had been abolished stood negated---Grievance petition was accepted in circumstances.

PLD 1999 SC 231 rel.

Malik Rab Nawaz, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 27th May, 2009.

2012 S C M R 745

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

I.-G. PUNJAB, LAHORE and others---Appellants

Versus

IQBAL MEHMOOD---Respondent

Civil Appeal No.389-L of 2011, decided on 26th March, 2012.

(On appeal from the judgment dated 4-1-2011 passed by Punjab Service Tribunal Lahore in Appeal No.1301 of 2010).

Punjab Civil Services Pension Rules, 1995---

----R. 3.5---Punjab Service Tribunals Act (IX of 1974), S. 4--­Constitution of Pakistan, Art. 212(3)--- Leave preparatory to retirement---Order of Authority refusing to allow appellant to withdraw request for voluntary retirement after its acceptance---Service Tribunal in appeal set aside such order and allowed withdrawal of request for retirement---Validity---Appellant could withdraw request for retirement, if same had not been acted upon; leave preparatory to retirement had been given effect to after acceptance of request for retirement, Supreme Court set aside order of Service Tribunal.

Government of Sindh v. Muhammad Inayat Khan 2000 SCMR 1964 and Section Officer v. Ghulam Shabbir 2010 SCMR 1425 ref.

Ch. Muhammad Iqbal, Additional A.-G. for Appellants.

Pervaiz Inayat Malik, Advocate Supreme Court for Respondent.

Date of hearing: 26th March, 2012.

2012 S C M R 748

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Anwar Zaheer Jamali, JJ

MUNEER HUSSAIN GILLANI---Judgment Debtor

Versus

HABIB BANK LIMITED and another---Respondent/Decree Holder

C.M.A. No.871 of 2009 in C.R.P. Nos.73, 74 and 82 of 2007, decided on 6th March, 2012.

(For refund of Rs. 22,00,000).

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

----S. 19--- Constitution of Pakistan, Art. 185(3)--- Execution proceedings---Auction of property---Deposit of decretal amount by judgment debtor in Supreme Court in pursuance of its interim order---Acceptance of judgment-debtor's appeal by Supreme Court setting aside such auction and allowing auction purchaser to withdraw such amount--- Application by auction purchaser for refund of such amount with compensatory interest--- Validity--- Such amount deposited by judgment debtor was lying in current account of Supreme Court bearing no interest/mark-up thereon---Plea of compound interest or future interest raised by auction purchaser was not tenable as same was beyond stipulation contained in such order of the Supreme Court---Application was disposed of in circumstances.

Gulzarin Kiyani, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Judgment Debtor.

Muhammad Aslam Awan, Advocate Supreme Court and M. M. Malik, Attorney for Applicant/Auction Purchaser.

Ms. Aaliya Nelum, Advocate Supreme Court for Habib Bank Limited.

Pervaiz Ahmed, Ex-Deputy Registrar, SCP on Court Notice.

Date of hearing: 6th March, 2012.

2012 S C M R 754

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

PRESIDENT BALOCHISTAN HIGH COURT BAR ASSOCIATION---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.77 of 2010 and H.R.Cs. Nos. 13124-P, 40303-P, 40220-G and 43103-B of 2011 and C.M.As. Nos.42-43 of 2012 and C.M.A. No.431 of 2012 in Constitutional Petition No.77 of 2010 and C.M.A. No.178-Q of 2012 in Constitutional Petition No.77 of 2010, decided on 5th April, 2012.

(Gruesome and Sensational Murder of wife and daughter of Mir Bakhtiar Domki at Karachi on 30-1-2012).

(Appeal for missing persons cases of Balochistan).

Constitution of Pakistan---

----Arts. 4, 32, 140-A & 184(3)---Balochistan Levies Force Act (IV of 2010), S.7---Criminal Procedure Code (V of 1898), S. 173---Constitutional petition before Supreme Court under Art. 184(3) of the Constitution---Matters concerning, recovery of dead bodies, involvement of Frontier Constabulary (F.C.) personnel in killing of persons, target and sectarian killings, abduction/kidnapping for ransom and missing persons in the Province---Right of individuals to be dealt with in accordance with law, etc. promotion of Local Government institutions---Police investigation---Scope---Duties and functions of the Levies Force---Scope---Presumption of innocence---Principles---Complainant and accused under the Constitution had the right to be dealt with in accordance with law---When Police conducted investigation without fear and favour, there was always a possibility to reach a just conclusion---Presumption could not be drawn against persons, who had been involved in cases unless evidence was collected---Police authorities as well as the Levies were bound under the law to collect the evidence and finally determine about the guilt or innocence of the persons nominated in the F.I.R.---Supreme Court observed that the main problem of the Province was of socio-economic nature, which could only be solved, if the general public of the Province was empowered by holding the election of the local bodies, which otherwise was the obligation of the Government in terms of Art.32 of the Constitution, and that under Art.140-A of the Constitution, each provincial government was bound by law to establish a Local Government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the Local Governments.

Syed Ayaz Zahoor, Senior Advocate Supreme Court, Hadi Shakeel Ahmed, Advocate Supreme Court, Kamran Murtaza, Advocate Supreme Court, Syed Qair Shah, Advocate Supreme Court, Malik Zahoor Shahwani, President Balochistan High Court Bar for Petitioner.

Nasrullah Baloch, Voice for Baloch Missing Persons, Bajair Baloch, Ms. Farzana Majeed, Allah Bakhsh, Mst. Bakhtawar Bibi, Ms. Sami, Ms. Sumair Baloch and Ghulam Farooq, the Complainants (all in person).

Malik Sikandar Khan, Dy. Attorney-General on Court Notice.

Amanullah Kanrani, Advocate-General, Tariq Ali Tahir, Additional A.-G., Babar Yaqoob Fateh Muhammad, C.S. Naseebullah Bazai, Secy. Home Deptt., Rao Amin Hashim, I.-G.P., Munir Badini, Secy. Education, Naseem Lahri, Commissioner Quetta, Ahsan Mahboob, CCPO, Quetta, Hamid Shakeel, DIG Quetta, Qazi Abdul Wahid, DIG Operation and Noshair Younis, Focal person for Government of Balochistan.

Mushtaq Mahr, DIG, CID, Naeem Sheikh, SSP, Tariq Darejo, SP and Zamir, DSP for Sindh Police.

Nemo for M/o Defence, IB and FC.

Date of hearing: 5th April, 2012.

2012 S C M R 764

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

PRESIDENT BALOCHISTAN HIGH COURT BAR ASSOCIATION---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.77 of 2010 and H.R.Cs. Nos. 13124-P, 40303-P, 40220-G and 43103-B of 2011 and C.M.As. Nos.42-43 of 2012 and C.M.A. No.431 of 2012 in Constitutional Petition No.77 of 2010 and C.M.A. No.178-Q of 2012 in Constitutional Petition No.77 of 2010, decided on 6th April, 2012.

(Gruesome and Sensational Murder of wife and daughter of Mir Bakhtiar Domki at Karachi on 30-1-2012).

(Appeal for missing persons cases of Balochistan).

(a) Constitution of Pakistan---

----Arts. 63(1)(g), 65, 184(3) & Third Sched.---Constitutional petition before Supreme Court under Art. 184(3) of the Constitution---Oaths of office---Presumption---Allegation made by Provincial Ministers against Frontier Constabulary (F.C.) personnel for kidnapping and consequently killing two persons---Scope---Supreme Court observed that such an allegation was of very serious nature and entailed independent consequences in terms of Art.63(1)(g) of the Constitution, and the presumption was that representative, who took oath under the Constitution, was fully aware of consequences of the statement, whichever was being made.

(b) Constitution of Pakistan---

----Arts. 9, 14, 15, 18, 24, 148(3) & 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Security of person, inviolability of dignity of man, etc., freedom of movement, etc., freedom of trade, business or profession, protection of property rights---Obligation of Provinces and Federation---Scope---Activities in the Province relating to, recovery of dead bodies, involvement of Frontier Constabulary (F.C.) personnel in killing of persons, target and sectarian killings, abduction/kidnapping for ransom, missing persons, etc.---Supreme Court observed that such activities related to the denial of the fundamental rights of the citizens enshrined in Arts.9, 14, 15, 18 & 24 of the Constitution, therefore, not only it was the duty of the Provincial Government to take necessary steps but at the same time in terms of Art.148(3) of the Constitution, the Federal Government was also equally responsible to assist the Provincial Government in maintaining law and order situation; restoring the peace, and to protect the lives and properties of its citizens.

Watan Party v. Federation of Pakistan PLD 2011 SC 997 ref.

Syed Ayaz Zahoor, Senior Advocate Supreme Court, Hadi Shakeel Ahmed, Advocate Supreme Court, Kamran Murtaza, Advocate Supreme Court, Syed Qair Shah, Advocate Supreme Court, Malik Zahoor Shahwani, President Balochistan High Court Bar for Petitioner.

Nasrullah Baloch, Voice for Baloch Missing Persons, Ms. Sumaira Baloch, Azam Khan and Ms. Rukhsana Baloch, the Complainants.

Malik Sikandar Khan, DAG on Court Notice.

Amanullah Kanrani, Advocate-General, Naseebullah Bazai, Secy. Home Deptt., Rao Amin Hashim, I.-G.P., Ahsan Mahboob, CCPO, Quetta, Hamid Shakeel, DIG Quetta, Qazi Abdul Wahid, DIG Operation, Noshed Younis, AIG Crime/Focal Person for Missing Persons. Fared Barech, SP Operation, Fayaz Bhatti, SP Investigation, Muhammad Tariq, SP City, Noor Muhammad, SHO, Zafar Iqbal, Dy. Dir. Home Deptt. for Government of Balochistan.

Maj. Gen. Obaidullah, IG for FC.

Mushtaq Mahr, DIG, CID and Naeem Sheikh, SSP for Sindh Police.

Nemo for M/o Defence and IB.

Date of hearing: 6th April, 2012.

2012 S C M R 773

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry C.J. and Khilji Arif Hussain, J

ALLEGED CORRUPTION IN RENTAL POWER PLANTS ETC.: In the matter of

Human Rights Cases Nos.7734-G/2009, 1003-G/2010, and 56712 of 2010, decided on 30th March, 2012.

(a) Constitution of Pakistan---

----Preamble---Constitution mandates that State shall exercise its powers and authority through chosen representatives of the people---Democratic order in place, through the representatives of people, being the members of Parliament, obligates the elected representatives to fulfil their commitments bestowed upon them under the Constitution, and in their representative capacity, they are bound to perform their functions honestly, to the best of their ability, faithfully, in accordance with the Constitution and the laws as well as the rules of the Assembly, and always in the interest of sovereignty, integrity, solidarity, well being and prosperity of Pakistan---Such a binding force of the Constitution commands them to ensure well being and prosperity of Pakistan, so whenever they feel threat to the well being of the people of Pakistan for any reasons, they are bound to preserve the same.

(b) Constitution of Pakistan-

----Art. 24--- Protection of property rights--- Government/Executive being the custodian of the national resources on behalf of the nation is bound to preserve and protect the same by strictly adhering to the relevant laws, conventions, experiences and have no authority to compromise with the resources, which fall within the definition of property in terms of constitutional provisions, belonging to general masses falling within the ambit of Art.24 of the Constitution.

(c) Constitution of Pakistan---

----Arts. 29 & 2A--- Principles of Policy--- Objectives Resolution---Government under Art.29 read with Art.2A of the Constitution is bound to formulate policies for the promotion of social and economic well being of the people, which includes provision of facilities to the citizens for work and adequate livelihood with a reasonable rest and leisure, etc.---Energy/electricity is essentially one of the significant facilities required by the citizens for manifold purposes, namely, uplifting of their social and economic status---Non-supply of electricity to the citizens regularly, is tantamount to depriving them of one of the essentials of the life including the security of economic activities, which are relatable to their fundamental rights protected under Arts. 9 and 14 of the Constitution.

(d) Constitution of Pakistan---

----Art. 9---Security of person---Scope of Art.9 is enlarged to each and every aspect of human life---Whenever a policy is framed with reference to uplifting the socio-economic conditions of the citizens, object should be to ensure enforcement of their fundamental rights.

Bank of Punjab v. Haris Steel Industries PLD 2010 SC 1109; Liaqat Hussain v. The Federation of Pakistan (Constitution Petition No.50/2011), In Re: Human Rights Case regarding fast food chain in F-9 Park PLD 2010 SC 759; In Re: SMC No.13/2009 (Case regarding Multi-Professional Housing Schemes); PLD 2011 SC 619 and Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

(e) Constitution of Pakistan---

----Art. 184---Judicial review---Scope---Power of Supreme Court to examine polices of the Government---Award of contract---As far as transparency in the implementation of the policy, if available, the process of awarding contract is concerned, it clearly falls within the jurisdiction of Supreme Court available to it under the Constitution and the power of judicial review.

BALCO Employees Union (Regd.) v. Union of India AIR 2002 SC 350; Watan Party v. Federation of Pakistan PLD 2006 SC 697; Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; Pakistan Steels's case PLD 2010 SC 759; HRC No.4688/06 PLD 2001 SC 619; Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489]; Tata Cellular v. Union of India [(1994) 6 SCC 651] = (AIR 1996 SC 11); Raunaq International Ltd. v. I.V.R. Construction Ltd. (AIR 2004 SC 4299) = [(1999) 1 SCC 492]; Air India Ltd. v. Cochin International Airport Ltd. [(2000) 2 SCC 617]; Reliance Energy Ltd. v. Maharashtra State Road Development Corp. Ltd. [(2007) 8 SCC 1] and Nokia Siemens Networks Pvt. Ltd. v. Union of India (Judgment dated 24-8-2009 And. Pra. High Court) ref.

(f) Constitution of Pakistan---

----Art. 184---Judicial review---Scope---Transparency in award of contract---Executive authorities are bound to enter into contracts for supplies at the least expense to the public exchequer---Most significant consideration for every department of the Government must be the best economic mode of meeting the public needs---Agreements for pecuniary considerations are against public policy and, are void---Every action taken by the Government must be in public interest and its action would be liable to be invalidated on the touchstone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid---Principles.

Tool Company v. Norris [69 U.S. (2 Well.) 45 (1864)]; Ramana Dayaram Shetty v. International Airport Authority of India (AIR 1979 SC 1628; Nagar Nigam, Meerut v. Al Faheem Meat Exports (Pvt.) Ltd. [(2007) 1 Supreme 704; Ram and Shyam Co. v. State of Haryana (AIR 1985 SC 1147) and Haji T.M. Hasan v. Kerala Financial Corpn. (AIR 1988 SC 157) ref.

(g) Public Procurement Regulatory Authority Ordinance (XXII of 2002)---

----S. 5---Functions and powers of the Authority---Procurement of electricity through Rental Power Projects---Procurement Authority may take such measures and exercise such powers as may be necessary for improving governance, management, transparency, accountability and quality of public procurement of goods, services and works in the public sector---Words 'transparency' and 'accountability' are of high importance and cast a duty upon the Authority who had invited the bids to ensure openness of the transaction without withholding any information---Competition to establish transparency between the interested parties is in fact the theme of the Public Procurement Regulatory Authority Ordinance, 2002 as well as the Rules framed thereunder (Public Procurement Rules, 2004)---Bidders have to compete with each other by filing their respective bids, therefore, while making procurement of an item like electricity through Rental Power Projects, the Authority is required to fix a reserved price while quoting lump sum Rental Charges, Rental Rate and Reference Fuel Cost Components---In absence of such reserved prices, there would not be transparent competition and accountability of the bidders and procurers---In a sale by auction, subject to reserve price, every offer/bid and its acceptance is conditional; the public is informed by the fact, that the sale is subject to a reserve price; the auctioneer has agreed to sell for the amount which the bidder is prepared to give only in case that amount is equal to or higher than the reserve price; the reserve price puts a limit on the authority of the auctioneer and he cannot accept a price below the upset/reserve price---In the present case, neither the reserved price had been mentioned in the publication, in pursuance whereof the bids were invited, nor such reserve price had been disclosed in RFP---In advertisement made by PPIB, except mentioning Rental Power Project of 200 MW cumulative capacity near Karachi, neither the sites were indicated nor the type of fuel or technology of plant was mentioned for this purpose and there was no bidding process for unsolicited RPPs.

McManus v. Fortescue [(1907) 2 KB 1] ref.

(h) Public Procurement Rules, 2004----

----R. 42---Alternative methods of procurements---Direct contracting Procurement of electricity through Rental Power Projects---Direct procurement of unsolicited proposal for Rental Power Projects without following procedure of fair competition---Validity---Rule 42(c) of Public Procurement Rules, 2004 indicated that it was not applicable in the case of such direct procurement of unsolicited proposal---Mala fide---Scope---No material had been brought on record to canvass that there was no mala fide; therefore, having been left with no option except to believe that on account of such unsolicited proposals, authorities had indulged in corruption.

(i) Regulation of Generation, Transmission and Distribution of Power Act (XL of 1997)---

----Ss. 7, 17 & 31---National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, R.17---Process of procurement of electricity through Rental Power Projects---Role of National Electric Regulatory Authority---Scope.

(j) Contract Act (IX of 1972)---

----S. 2(h) & (g)---"Contract"---Contract being a bilateral document has to be reduced into writing by means of an agreement enforceable by law between the person who had made the proposal and the one who had accepted the same, or those who had made an offer to do a particular thing and accepted the same---Agreement enforceable by law is a "contract".

(k) Public Procurement Rules, 2004---

----R. 2(f)---Where in a contract, procedure laid down in the Public Procurement Rules, 2004 was not followed the expression "unsolicited" was used for such contract.

(l) Contempt of Court---

----Scope---Contempt proceedings are drawn when there is a violation of the court order, or the authority of the court is undermined or ridiculed.

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

----S. 9---Public Procurement Regulatory Authority Ordinance (XXII of 2005), S. 5---Corruption and corrupt practices---Procurement of electricity through Rental Power Projects---Violation of principle of transparency and decision of ECC---All the Government functionaries, including the Ministers for Water and Power holding charge from 2006 and onward up to 2008 during whose tenure the Rental Power Projects were approved/set up, prima facie, violated the principle of transparency, therefore, their involvement in getting financial benefits out of the same by indulging in corruption and corrupt practices could not be overruled---Consequently, they were liable to be dealt with under the National Accountability Ordinance, 1999------Similarly, all the functionaries of Pakistan Electric Power Company, Generation Companies and National Electric Power Regulatory Authority along with sponsors who had derived financial benefits from the said projects contracts were, prima facie, involved in corruption and corrupt practices therefore, they were liable both for the civil and criminal action---Supreme Court, while identifying the violations in procurement of electricity through Rental Power Projects, issued detailed directions for dealing with the matter and persons involved in corruption and corrupt practices.

Makhdoom Syed Faisal Saleh Hayat Federal Minister for Housing and Works, Khawaja Muhammad Asif, MNA assisted by Mustafa Ramday and Syed Ali Shah Gillani, Advocates (Applicants in person).

M. Anwar Kamal, Senior Advocate Supreme Court: Amicus Curiae.

On Court Notice

Syed Najmul Hassan Kazmi, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record, Syed Safeer Hussain, Registrar and Syed Insaf Ahmad DG for NEPRA.

Kh. Ahmed Tariq Rahim, Senior Advocate Supreme Court, Abbas Mirza, Advocate Supreme Court, Moazzam Ali Rizvi, Advocate Supreme Court, Syed Zafar Abbas Naqvi, Advocate-on-Record, Arshad Ali Ch., Advocate on Record assisted by Ijaz A. Babar, Finance Director, PEPCO, Barrister Asghar Khan, SML, PPIB, Hamid Ali Khan, Addl. Secretary, M/o W&P, Masood Akhtar, GM NPCC, Mansoor Ali Khan, CE, WPPO, Rana Muhammad Amjad, GM, WPPO, Rana Asif Saeed, Chief Legal Advisor, Salman Iqbal, Executive Director (Legal), Abdul Jabbar Memon, CRRO, WAPDA, KHI, Anisuddin Alvi, DD, CRRO, Razi Abbas, Former CFO, Abdul Jabbar Shaikh, DM, LPGCL, Faizullah Dahri, FD, LPGCL, Muhammad Anwar Brohi, CEO, LPGCL and Sultan Muhammad Zafar, CEO, GENCO-III for PEPCO/GENCOs/ WAPDA & M/o W&P.

Wasim Sajjad, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record assisted by Idrees Ashraf, Advocate for Raja Pervez Ashraf Former Minister W&P.

Muhammad Akram Shaikh, Senior Advocate Supreme Court, Azid Nafees, Advocate Supreme Court assisted by Syed Ahmad Hassan Shah, Ms. Natalia Kamal and Sajeel Shehryar, Advocate for Karkey.

Syed Ali Zafar, Advocate Supreme Court, Raja Zafar Khaliq, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Gulf & Sialkot Power.

Raja M. Anwar-ul-Haq, Advocate Supreme Court for Techno Sahuwal and Techno E Services.

Shahid Hamid, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Walters Power.

Dr. Parvez Hassan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Pakistan Power.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Sikandar Bashir Mohmand, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record assisted by Hameed Ahmed and Mustafa Aftab Sherpao, Advocates for Reshma Power and Kamoki Energy.

Sh. Zamir Hussain, Senior Advocate Supreme Court for Young Gen. Power.

Muhammad Iqbal Awan, Addl. Secretary for M/o Finance.

Salman Siddiqui, Chairman, FBR for FBR.

Dates of hearing: 26th - 28th and 31st October, 1st - 4th, 14th - 17th and 21st - 24th November and 12th - 14th December, 2011.

2012SCMR854

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Anwar Zaheer Jamali, JJ

MUHAMMAD AJMAL KHAN and others---Petitioners

versus

RASHID SHAFIQUE and others---Respondents

C.P.L.A. No.415-P of 2011, decided on 26th March, 2012.

(On appeal from judgment of Peshawar High Court, Peshawar dated 8-6-2011 passed in Writ Petition No.1347 of 2011).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan, Art. 185(3)---Eviction of tenant---Landlords (petitioners), sought eviction of tenant (respondent) on the grounds of demolition and reconstruction of the building and personal bona fide need---Ejectment application of landlords was dismissed by Rent Controller, Appellate Court and High Court on the grounds that claim of demolition and reconstruction of the building was not bona fide; that period for permission for reconstruction accorded by competent authority had expired and same was not renewed by the landlords, and that plea of personal need also was not bona fide as two of the landlords were settled abroad---Validity---Landlords had categorically urged the ground of demolition of building and its reconstruction as a whole, including the area of the two shops in possession of tenant, and in support of their plea they had also produced the requisite permission for construction and building plans, approved by the competent authority---To support the claim of personal bona fide need , one of the landlords appeared in the witness box in his personal capt'city and deposed in unequivocal terms about their personal bona fide need, and such statement on oath remained consistent with the assertions made in the eviction application and also remained un-shuttered in the cross-examination---Fact that two other shops were lying vacant in the building, which were not let out by the landlords since long should have been taken as a positive factor in their favour to prove their bona fide, but same to the misfortune of the landlords was considered as a negative factor to conclude that eviction on grounds of personal need was not bona fide---Section 13(2)(vi) of West Pakistan Urban Rent Restriction Ordinance, 1959, made it obligatory for the owner/landlord of the building to obtain necessary sanction for reconstruction or erection from the relevant authorities at the time of filing of eviction application or even during its pendency, but S.13(2)(vi) did not require it to be renewed again and again before starting the actual process of reconstruction of the building after obtaining its physical possession from the tenant---Once the landlords had obtained approval of their building plans and permission for reconstruction from the competent authority they were not required to get it renewed again and again till the final eviction order was passed and they were able to secure possession---Irrespective of the condition of the building, it was the sole prerogative of the owners of a building/landlords to decide whether they wanted to demolish and reconstruct the same as per their choice and suitability---Perusal of site plan of the building revealed that two shops were in the possession of the tenant, while another shop was in the possession of another tenant, and major portion of ground floor and upper floors of the building were stated to be in the exclusive possession of the landlords---Such factual background made it inconceivable and hard to believe that eviction application filed by the landlords on the ground of reconstruction was mala fide, as they had to demolish not only the two shops in possession of tenant , but also other portions of the building, including the vacant shops in their possession---Mere fact that two of the landlords were abroad since long was no ground for questioning their bona fide---Section 13(4) & (5) of West Pakistan Urban Rent Restriction Ordinance, 1959, provided sufficient safeguards to protect the interests of the tenant, and the Rent Controller and courts below could not have arbitrarily proceeded to form a contrary view regarding reasonableness, good faith/bona fide of the landlords, overlooking said provisions of law---Supreme Court converted petition for leave to appeal into appeal, set aside impugned judgments and eviction

application of landlords was allowed on the grounds of reconstruction and personal need, Toheed Khanam v. Muhammad Shamshad 1980 SCMR 593 and Fazal Azim v. Tariq Mahmood PLD 1982 SC 218 rel.

(b) West Pakistan Urban Rent Restriction Ordihance (VI of 1959)---

----S. 13(2)(vi)---Eviction of tenant on grounds of reconstruction of building--- Permission , for reconstruction for such building---Scope---Provisions of S.13(2)(vi) of West Pakistan Urban Rent Restriction Ordinance, 1959, made it obligatory for the owner/landlord of the building to obtain necessary sanction for reconstruction or erection from the relevant authorities at the time of filing of eviction application or even during its pendency, but said provision did not require it to be renewed again and again before starting the actual process of reconstruction of the building after obtaining its physical possession from the tenant.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(2)(vi)---Constitution of Pakistan, Art.185(3)---Eviction of tenant on grounds of demolition and reconstruction of building---Scope---Contention of tenant that building was neither required by the landlords for demolition and reconstruction nor for their personal need as the building was in good condition---Validity---Irrespective of the condition of the building, it was the sole prerogative of the owners of a building/landlords to decide whether they wanted to' demolish and reconstruct the same as per their choice and suitability---Even where the structure of the building was habitable, it was still the choice of the landlord to demolish and reconstruct the same as per his suitability and need, therefore, a tenant could not validly resist his eviction on such ground.

Tariq Javed, Advocate Supreme Court for Petitioners.

Muhammad Jamil, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record for Respondent No.l.

Nemo for Respondents Nos. 2 to 3.

Date of hearing: 26th March, 2012.

2012 SCMR 860

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Gulzar Ahmed, JJ

AJMAL HASSAN KHAN and another---Appellants

versus

GOVERNMENT OF SINDH and others---Respondents

Civil Appeals Nos. 51-K and 52-K of 2011, decided on 15th March, 2012.

(On appeals from the judgment dated 21-9-2010, passed by the Sindh Services Tribunal, Karachi in Appeals-Nos. 99 and 100 of 2009).

Sindh Civil Servants Act (XIV of 1973)---

----S. 9---West Pakistan Secretariat (Section Officers) Service Rules, 1962, R.5---Dispute over seniority list---Civil servants (appellants) promoted to posts reserved for direct recruits, claiming to be on a regular senior position above the direct recruits (respondents)---Validity---Eligibility for promotion of civil servants (appellants) was to be considered in terms of S.9 of the Sindh Civil Servants Act, 1973, which provided for reservation of quota for departmental promotion---Rule 5 of West Pakistan Secretariat (Section Officers) Service Rules, 1962, prescribed that 50% of initial recruitment of officers was to be filled on the basis of competitive examination and the remaining 50% of the vacancies shall be filled by selection on merits with due regard to the seniority from among the superintendents---Said rule was further exemplified by a notification which provided for quota of 50% by initial appointment and 50% by promotion---Civil Servants, in the present case, were promoted to the posts of Section Officers against the quota reserved for direct recruits, as there was no vacancy for their promotion against such posts---Civil servants being promotees to the posts reserved for direct recruits could not claim themselves to be on a regular senior position above the direct recruits as their promotion was to be adjusted as per quota of promotees and direct recruits---Promotion of civil servants was an ad hoc and temporary one, and on adjustment being made by seniority list, they were rightly relegated to the post to which they were entitled under the rules---No illegality or perversity in the impugned judgment having been found, appeals of civil servants were dismissed by the Supreme Court.

Federation of Pakistan v. Azam Ali and others 1985 SCMR 386 and Nasim ul Haque Malik v. Chief Secretary, Sindh and 4 others 1996 PLC (CS) 921 fol.

Abdul Saeed Khan Ghori, Advocate Supreme Court/Advocate on-Record for Appellants (in both cases).

Shafi M. Memon, Additional A.-G. for Respondents Nos.1 and 2.

Nemo for Respondents Nos. 3, 5 and 8.

Ansari Abdul Lateef Senior Advocate Supreme Court for Respondents Nos. 13 to 16.

Ex parte for Respondents Nos.4, 6, 7, 9-18, 22, 24, 25, 28-30 and 33-34.

M. M. Aqil Awan, Senior Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondents Nos. 19, 20, 23, 26 and 32.

Date of hearing: 15th March, 2012.

2012 SCMR 864

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

SENIOR MEMBER BOR and others---Appellants

versus

Sardar BAKHSH BHUTTA and another---Respondents

Civil Appeal No.417-L of 2011, decided on 28th March, 2012.

(On appeal from the judgment dated 7-12-2010 passed by Punjab Service Tribunal, Lahore in Appeal No.2047 of 2010).

(a) Civil service---

----Appointment--- Notification--- Retrospective effect of--- Scope--Contention of civil servant (respondent) was that appointments for the post of Naib Tehsildar had to be made in terms of the notification of the Department but the said notification could not have retrospective effect-Validity---Claim of civil servant to be selected as Naib Tehsildar against the promotion quota was relatable to a period much before the enforcement of the Rules (notification) which came into effect at a later period, and therefore, such Rules (notification) could not have retrospective effect---Insertion or deletion of any provision in the Rules (notification) or the law, if merely procedural in nature would apply retrospectively but not if it effected substantial rights, which already stood accrued at the time when the unamended Rules or provision was in vogue---Judgment of Service Tribunal being unexceptionable, appeal was dismissed by the Supreme Court accordingly.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; WAPDA v. Irtiqa Rasool Hashmi 1978 SCMR 359 and Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315 fol.

(b) Interpretation of statutes---

----Retrospective effect---Scope---Insertion or deletion of any provision in the Rules or the law, if merely procedural in nature would apply retrospectively but not if it effected substantial rights, which already stood accrued at the time when the un-amended rule or provision was in vogue.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 ref.

(c) Interpretation of statutes--

----Retrospective effect of notification/executive order---Scope---Notification and/or executive order could operate prospectively and not retrospectively--- Same principle was equally applicable to a statute in the absence of any express or implied intendment contrary to it.

Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315 ref.

Imtiaz Ahmed Kaifi, Additional A.-G. and Aamir Nazir, A/C. Jalalpur, Multan for Appellants.

Muhammad Ramzan Khalid Joya, Advocate Supreme Court for Respondent No.l.

Date of hearing: 28th March, 2012.

2012SCMR 869

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Gulzar Ahmed, JJ

PROVINCE OF SINDH and others---Petitioners

versus

Syed AFTAB ALI SHAH---Respondent

C.P.L.A. No.822-K of 2011, decided on 14th March, 2012, (On appeal from judgment of Sindh Service Tribunal, Karachi dated 2-7-2011 passed in Service Appeal No.122 of 2010).

Constitution of Pakistan---

----Art. 212(3)---Civil service---Promotion---Hardship case---Service Tribunal restored an earlier order in favour of the civil servant (respondent), which order was made on a one time (hardship case) with the observation that same should not be quoted as precedent by other officers of the branch---Supreme Court granted leave to appeal to examine the legality and propriety of such order of the Tribunal as well as the order which had been restored thereby.

Shafi Muhammad Memon, Additional Advocate-General, Sindh and Shiraz Iqbal Chaudhry, Advocate-on-Record for Petitioners.

Ansari Abdul Latif, Senior Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondent.

Date of hearing: 14th March, 2012.

2012 SC MR 870

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

REGIONAL DIRECTOR, ANTI-NARCOTICS FORCE---Petitioner

versus

RIZWAN AHMED KHAN and others---Respondents

C.M.A. No.1362 of 2012 and Civil Petition No.357 of 2012, decided on 10th April, 2012.

Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 6, 9(c), 14 & 15---Constitution of Pakistan, Art. 185(3)---Possession of narcotic, aiding, abetment or association in narcotic offences---Allegations were that Ministry of Health had favoured two companies by extending/granting to them quotas of Ephedrine against the Rules and inquiry into such allegation was being obstructed and hampered---Supreme Court observed that commission of the crime, as disclosed in the F.I.R., was of a serious nature, notwithstanding whosoever was involved and what was his status, and concerned authorities should have allowed a transparent inquiry and investigation instead of causing obstructions and hampering the same for one reason or the other---Supreme Court directed that transfer/posting of Director-General, Regional Director and Deputy Director of Anti-Narcotics Force, in colourable exercise of powers, was not free from extraneous consideration, therefore, Regional Director and Deputy Director of Anti-Narcotics Force were not to relinquish the charge and they should continue with the investigation of the case without being influenced in any manner from any one---Order accordingly.

Muhammad Akram Sheikh, Senior Advocate Supreme Court, Brig. Fahim Ahmed Khan, Force Commander and Abid Zulfiqar, Dy. Director/IO, ANF for Petitioner.

Nemo for Respondents.

Date of hearing: 10th April, 2012.

2012 SCMR 880

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

COMMISSIONER OF INCOME TAX/WEALTH TAX, COMPANIES ZONE, PESHAWAR and another---Appellants

versus

Messrs SHAHZAD GHEE MILLS (PVT.) LTD. and 4 others---Respondents

Civil Appeals Nos. 831, 832, 1216, 1217, 1441 of 2007 and 410 of 2010, decided on 18th October, 2011.

(Against the judgments dated 14-9-2006 of the Peshawar High Court, Peshawar passed in T.Rs. Nos.81, 82 and dated 19-12-2006 in T.Rs. Nos.110, 112, 113 and 2-4-2009 in T.R. No.81 of 2007).

(a) Income Tax Ordinance (XXXI of 1979)---

----S. 80-DD---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider whether while introducing S.80-DD in the Income Tax Ordinance, 1979, Legislature was presumed to be fully aware of existing law and prima facie no new tax liability was created by insertion of said new section and it seemed that only recovery process of tax was accelerated.

Ellahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582 ref.

(b)Words and phrases---

----"For the time being "---Defined.

Words and Phrases; Legally Defined (Second Edition) at page 267; Advanced Law Lexicon, 3rd Edition 2005 at page 1877; Cambridge Dictionary of American Idioms; Farlex clipart collection. © 2003-2008 Princeton University and Cambridge Idioms Dictionary, 2nd Ed. ref.

(c) Income Tax Ordinance (XXXI of 1979)---

----Ss.14 (2), 50(5), 52-A, 80-DD & Second Schedule, clause (118C)---Economic Reforms Act (XII of 1992), S.6---Notification No. S. R. 0.1283(1)/90, dated 30-12-1990--- Assessment--- Exemption, grant of---Deduction of tax at source, on import of edible oil, was treated as final liability under S.80-DD of Income Tax Ordinance, 1979 and tax short deducted was recovered through separate order passed under S.52-A of Income Tax Ordinance, 1979--- Rectifications filed by assessees were declined by assessment officer but Commissioner Income Tax (Appeals) accepted appeals and declared that assessees were entitled to exemptions under clause (118C) of Second Schedule to Income Tax Ordinance, 1979---Income Tax Appellate Tribunal and High Court maintained the judgment passed by Commissioner Income Tax (Appeals)--- Validity--- According to Notification No. S. R. 0.1283(1)/90, dated 30-12-1990, exemption under clause (118C) of Second Schedule of Income Tax Ordinance, 1979, was applicable to profits and gains derived by assessee from industrial undertaking set up between 1-12-1990 and 13-6-1995, both days inclusive for a period of 8 years beginning with the month in which undertaking was set up or commercial production was commenced, whichever was later---Assessees was to substantiate that industry was established during such period---No evidence had come on record, inasmuch as, income tax authorities, including Commissioner Income Tax (Appeals) and Income Tax Appellate Tribunal seized with the matter did not pass speaking order with reference to questions involved in the matter---Claim of exemption was only available in terms of S.50(5) read with S.80-DD of Income Tax Ordinance, 1979, if assessee would succeed in establishing that after promulgation of Economic Reforms Act, 1992, whenever fresh tax was imposed, might be under newly enacted provision, the exemption was to continue but such protection was prima facie not available to the assessees---To ascertain factual aspect of case and to provide opportunity to parties to establish their respective claims, Supreme Court set aside judgments passed by High Court, Income Tax Appellate Tribunal and Commissioner Income Tax (Appeals) and remanded appeals of assessees to the Commissioner for disposing of the same keeping in view observations made by Supreme Court---Appeal was allowed.

Collector of Customs v. Ravi Spinning Ltd. 1999 SCMR 412 rel.

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for Appellants (in Civil Appeals Nos. 831, 832, 1216, 1217 and 1441 of 2007).

Farhat Nawaz Lodhi, Advocate Supreme Court for Appellants (in Civil Appeal No.410 of 2010).

Abdul Rauf Rohaila, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Respondents (in Civil Appeals Nos.831 to 832 and 1441 of 2007).

Sh. Iftikhar Ahmed, Advocate Supreme Court for Respondents (in Civil Appeal No.1216 of 2007).

M. Ilyas Mian, Advocate Supreme Court for Respondents (in Civil Appeal No.1217 of 2007).

M. Munir Peracha, Advocate Supreme Court and M. Habib Qureshi, Advocate Supreme Court for Respondents (in Civil Appeal No.410 of 2010).

Date of hearing: 18th October, 2011.

2012 SCMR 887

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Athar Saeed, JJ

MAZHAR HUSSAIN---Petitioner

versus

THE STATE and another---Respondents

Criminal Petition No.45 of 2012, decided on 6th April, 2012.

(Against the order dated 11-1-2012 of the Lahore High Court, Rawalpindi Bench passed in Criminal Miscellaneous No.1887-B of 2011).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/337-F (iv)148/149--Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, attempt to commit qatl-e-amd, ghayr jaifah mudihah, rioting armed with deadly weapons, unlawful . assembly---Bail, grant of---Further inquiry---Contention of accused was that charge appeared to be an outcome of exaggeration as the entire family had been roped in, and that charge for inflicting an injury on the person of the complainant appeared to be doubtful when tampering in changing the nature of the injury from 'lacerated' to 'incised' was writ large on the face of the record--Validity---Accused was not charged for firing any shot at the deceased and was only charged for inflicting an injury on the head of the deceased with the sharp side of his hatchet--- Said injury in the first instance was mentioned as lacerated' but then changed asincised'---Question as to what was the nature of the injury; whether charge, in the matrix of the case could be held to be exaggerated; whether the accused in view of the role assigned to him, could be held to be vicariously responsible for the murder of the deceased, and whether accused could be awarded sentence in terms of imprisonment in view of proviso to 5.337-N(2), P.P.C., when as yet there was nothing on record to show that he was hardened, habitual, dangerous or desperate criminal, were questions requiring further inquiry---Accused had been in jail for almost 10 months, and such fact further tilted the scales of justice in favour of bail rather than jail---Contention of prosecution that an expression of opinion at bail stage might prejudice the case of either of the sides when the trial had commenced and was likely to be concluded within a couple of months, did not deter the Supreme Court from granting bail, when a case of further inquiry was made out---Supreme Court converted petition for leave to appeal into appeal, and allowing the same directed the release of the accused on bail.

Agha Muhammad Ali Khan, Advocate Supreme Court for Petitioner.

Syed Zia Hussain Kazmi, Advocate Supreme Court for the Complainant.

Ch. Zubair Ahmed Farooq, A.P.-G. for the State.

Date of hearing: 6th April, 2012.

2012 SCMR 890

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Gulzar Ahmed, JJ

ASADULLAH, INTELLIGENCE OFFICER and others---Petitioners

versus

Haji MUHAMMAD RAFIQ---Respondent

Civil Petition No.416-P of 2011, decided on 31st January, 2012.

(On appeal from the judgment dated 11-7-2011, passed by the Peshawar High Court, Peshawar in R.F.A.. No.29 of 2011 and C.M. No.6 of 2011).

Customs Act (IV of 1969)---

----S. 217---Constitution of Pakistan, Art. 185(3)---Seizure of vehicle used as public transport by customs authorities on suspecion the same was non-custom paid-Term "acting in good faith "---Specific plea not considered---Contention of petitioners was that respondent filed . civil suit against petitioner, who was a customs official but none of the courts below dilated upon the plea of "acting in good faith", in terms of 5.217 of Customs Act, 1969 whereas such plea was specifically taken before the . High Court---Validity---Leave to appeal was granted by Supreme Court to consider whether petitioners customs (officials) wereprotected from civil litigation under S.217 of Customs Act, 1969, particularly when Adjudicating officer had ordered confiscation of vehicle in question.

Abdul Rauf Rohaila, Senior Advocate Supreme Court and Haji Zahir Shah, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 31st January, 2012.

2012 SC MR 892

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Khilji Arif Hussain and Tariq Parvez, JJ

PRESIDENT, BALOCHISTAN HIGH COURT BAR ASSOCIATION---Petitioner

versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition No.77 of 2010 and HRC Nos.13124-P, 40303-P, 40220-G and 43103-B of 2011 and C.M.As. Nos.42 to 43 of 2012 and C.M.A. No.431 of 2012 in Constitution Petition No.77 of 2010 and C.M.A. No.178-Q of 2012 in Constitutional Petition No.77 of 2010, decided on 12th April, 2012.

(Gruesome and Sensational Murder of wife and daughter of Mir Bakhtiar Domki at Karachi on 30-1-2012).

(Appeal for missing persons cases of Balochistan).

Constitution of Pakistan---

----Arts. 10 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution for recovery of missing persons in the Province---Safeguards as to arrest and detention--Scope---Detention of persons without showing arrest or obtaining remand from the court---Validity---Police or for that matter any other agency had no authority to detain such persons, without showing their arrests in a particular case and obtaining their remands from the court of law---Supreme Court directed the police official to set at liberty the three persons who were produced before the Supreme Court, and to take them safely to their houses so that they may not face any difficulty and that no one should cause their arrest in future without informing the Supreme Court---

Order accordingly.

Malik Zahoor Shahwani, Advocate President, Balochistan High Court Bar for Petitioner.

Maulvi Anwarul Haq, A.-G.P. on Court Notice.

Amanullah Kanrani, Advocate-General, Babar Yaqoob Fateh Muhammad, Chief Secy. Balochistan, Qazi Abdul Wahid, D.I.-G. Operation, Wazir Hussain, Inspector, Mansab Khan, S.-I., Muhammad Ramzan along with Mir Jan son of Amir Khan, Amir Khan son of Gul

Bahar and Gul Mir son of Bahran Khan (Missing persons) for Government of Balochistan.

Asadullah Chamkani, A.-G., Syed Arshad Hussain Shah, Additional A.-G. and Ghulam Dastgir, Chief Secy. for KPK Government.

Mudassar Khalid Abbasi, A.A.-G., Khizar Hayat Gondal, Secy. L&G and Sikandar Suleman Raja, Secy. for Punjab Government.

Abdul Fateh Malik, A.-G., Qasim Mirjat, Additional A.-G., Raja M. Abbas, Chief Secy., Syed Mushtaq Ahmed Shah, I.-G., Mushtaq Mahr, D.I.-G., CID, Aftab Nasir, SSP South, Zameer Ahmed Abbasi, DSP and Muhammad Mubeen, SHO/lO for Sindh Government.

Cmdr. Hussain Shahbaz, Dir. (Legal) for M/o Defence. Nemo for FC & IB.

Date of hearing: 12th April, 2012.

2012SCMR897

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

PRESIDENT. BALOCHISTAN HIGH COURT BAR ASSOCIATION---Petitioner

versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.77 of 2010 and H.R.C. Nos. 13124-P, 40303-P, 40220-G and .43103-B of 2011 and C.M.As. Nos. 42 to 43 of 2012, decided on 17th April, 2012.

(a) Constitution of Pakistan---

----Arts. 9 & 184(3)---Constitutional petition under Art. 184(3) of the

Constitution for recovery of missing persons in the Province---Security of person---Duties of police and Levies Force---Scope---Prima facie it was the duty of Police and Levies to provide protection to the life and security to the citizens in urban and rural areas in terms of Art. 9 of the Constitution.

(b) Constitution of Pakistan---

----Arts. 9, 24 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution for recovery of missing persons in the Province--Security of person---Protection of property rights---Duties of Provincial and Federal Government---Scope---Provincial and Federal Government were under the duty to maintain law and order and to provide security to the life and property of the citizens being subject of the Constitution---Supreme Court observed that situation prevailing in the Province needed special interest and attention of both Provincial and the Federal Governments.

Nemo for Petitioner.

Shafi M. Chandio, D.A.-G. on Court Notice.

Amanullah Kanarani, A.-G. and Muhammad Tariq, SP City Quetta for Government of Balochistan.

Nemo for M/o Defence, FC & IB. Date of hearing: 17th April, 2012.

2012SCMR900

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Muhammad flthar Saeed, JJ

MUHAMMAD SHARIF and others---Appellants

versus

NABI BAKHSH and others---Respondents

Civil Appeal No.435-L of 2011, decided on 13th March, 2012.

(Against the order dated 17-5-2011 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in FAO No.43 of 2008/BWP).

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

----Ss. 12 & 27---Civil Procedure Code (V of 1908), O.X, R.1-A & 0.XXXIX, Rr. 1, 2---Constitution of Pakistan, Arts. 10-A & 37(d)---Suit for specific performance of sale agreement---Order of Trial Court granting interim injunction to plaintiff subject to deposit of balance sale price in court within 30 days set aside by High Court in appeal---Validity---Defendant in his earlier suit sought cancellation of such agreement for plaintiff's failure to pay balance sale price within stipulated period despite defendant having redeemed suit land from Bank, obtained inheritance mutation and got dismissed suit of third party to restrain alienation of suit land---Plaintiffs suit and defendant's suit containing same factual objections had been consolidated--Plaintiff in memo of appeal stated that Trial Court had granted him very short time for depositing balance sale price---Plaintiff had not paid outstanding amount to defendant though five years had elapsed since date of such agreement---Nothing was available on record to show tendering of outstanding amount for payment to defendant---Trial Court on the basis of such pleadings of parties and documents available on record of Trial Court and High Court could decide as preliminary issue as to whether plaintiff was entitled to decree for specific performance being a discretionary relief---Delay in adjudication of suit might redound to benefit of plaintiff and to detriment of defendant due to continuous increase in prices of immovable properties---Discretionary equitable remedies like specific performance would be amenable to expeditious adjudication in cases where equitable considerations were readily discernible or could be ascertained under provisions of 0.X, C.P.C.---Supreme Court restored order of Trial Court while directing framing and deciding a preliminary issue as to whether plaintiff could be granted discretionary relief by way of specific performance of such agreement considering circumstances of case.

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

----Ss. 12 & 27---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Constitution of Pakistan, Art. 185(3)---Suit for specific performance of sale agreement---Order of Trial Court granting interim injunction to plaintiff subject to deposit of balance sale price in court within 30 days set aside by High Court in appeal---Validity---Supreme Court granted leave to appeal to consider question as to whether imposition of such condition at time of granting interim injunction could yet relate to "ready and willingness" of plaintiff in such suit.

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

----Ss. 12 & 27---Suit for specific performance of sale agreement---Powers of court---Scope---Remedy by way of specific performance for being an equitable relief and discretionary could not be claimed as of right---Court would not be bound to grant such relief merely because doing so would be lawful.

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

---O.X, R. 1A---Specific Relief Act (I of 1877) S. 12---Constitution of Pakistan Art. 37(d)--- Expeditious and inexpensive justice--Discretionary remedies such as specific performance are particularly amenable to expeditious adjudication in cases where equitabl considerations are readily discernable or can be ascertained under the provisions of Order X of C.P.C.---Provisions of Rule IA of Order X C.P.C. are of particular significance which allow the court to "ado'', any lawful procedure.... to conduct preliminary proceedings and issue orders for expediting processing of the case "---Rule IA of Order X, C. P. C. appears to be a legislative attempt to give effect to the commanc of Art.37(d) of the Constitution---Supreme Court observed that no, much attention appears to have been paid to the said Rule, and it waa time that it was done.

Nadeem Iqbal Chaudhry, Advocate Supreme Court and Qazi Zia Zahid, Advocate Supreme Court for Appellants.

Ghulam Sabir Kaifi, Advocate Supreme Court for Respondents.

Date of hearing: 13th March, 2012.

2012 SC MR 906

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Athar Saeed, JJ

CHIEF EXECUTIVE, MULTAN ELECTRIC POWER COMPANY (MEPCO), MULTAN and others---Petitioners

versus

Messrs COLONY TEXTILE MILLS LIMITED and others---Respondents

Crl. Org. Petition No.47 of 2011 in C.R.P. No.7 of 2003, decided on 19th March, 2012.

(Against non-compliance of order dated 8-11-2006 passed by this Court in C.R.P. No.7 of 2003).

Contempt of Court Ordinance (V of 2003)---

----S. 19---Electricity Act (IX of 1910), S. 26-A---Dispute over assessment of electricity charges---Constitution of committee to resolve such dispute--- Supreme Court had sent the dispute to Chairman Water and Power Development Authority (WAPDA) to decide the same after constituting a committee of three independent engineers, against which a review petition was filed and Supreme Court gave directions that in place of the Chairman WAPDA, some other person was to be appointed as committee member to decide the dispute---Electric company (petitioner) filed petition for contempt of court with the contention that decision of committee was not unanimous and request was made to the Chairman WAPDA to intervene and pass some decisive order , but same was marred by hesitation and indecision---Validity---Petitioner/Electric company had previously filed a petition for contempt of court after getting an inkling that the committee handed down a finding adverse to them---Supreme Court, while deciding the said petition observed that its order with regard to the proceedings of the committee had been complied with and no contempt was committed, and the petitioner Electric company might avail remedy before the competent forum in view of the findings of the committee---Once finding had been handed down by the committee, Supreme Court would not comment upon it, as court could not sit in judgment over the said finding as a court of appeal---Supreme Court could not determine any remedy in the present case as the court was not seized of a reference where it was required to exercise its advisory jurisdiction to advice the Electric Company or to determine the future course of the case---Petition for contempt of court was dismissed, in circumstances.

Mian Allah Nawaz, Senior Advocate Supreme Court for Petitioners.

Sajjad Mehmood Sh., Advocate Supreme Court for Respondent No.!.

Date of hearing: 19th March, 2012.

2012SCMR909

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Gulzar Ahmed and Muhammad Athar Saeed, JJ

CONTEMPT PROCEEDINGS AGAINST SYED YOUSAF RAZA GILLANI, THE PRIME MINISTER OF PAKISTAN: In the matter of

Criminal Original Petition No.6 of 2012 in Suo Motu Case No.4 of 2010, decided on 26th April, 2012.

(Contempt proceedings against Syed Yousaf Raza Gillani, the Prime Minister of Pakistan regarding noncompliance of this Court's order dated 16-1-2012).

Constitution of Pakistan---

----Arts. 204 & 63(1)(g)---Contempt of Court Ordinance (V of 2003), Ss. 3 & 5---Contempt of Supreme Court---Wilful flouting, disregard and disobedience by the Prime Minister/Chief Executive of the directions given by the Supreme Court in the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265)---Effect---Prime

Minister/Chief Executive of the Federation was found guilty of, and convicted for, contempt of court under Art. 204(2) of the Constitution read with S.3 of the Contempt of Court Ordinance, 2003 on the satisfaction of the Supreme Court that the contempt committed was substantially detrimental to the administration of justice and tended to bring the Supreme Court and the judiciary into ridicule---Supreme Court observed that its findings and the conviction for contempt for court were . likely to entail some serious consequences in terms of Art.63(1)(g) of the Constitution which might be treated as mitigating factors towards the sentence to be passed against the Prime Minister/Chief Executive---Prime Minister/Chief Executive was punished under S.5 of the Contempt of Court Ordinance, 2003, with imprisonment till rising of the court---Order accordingly.

Dr. Mobahsir Hassan v. Federation of Pakistan PLD 2010 SC 265 ref.

Irfan Qadir, Prosecutor/Attorney-General for Pakistan for the Prosecution.

Barrister Aitzaz Ahsan, Senior Advocate Supreme Court, assisted by Barrister Gohar Ali Khan, Shaukat Ali Javid, Shahid Saeed, Kashif Malik, Bilal Khokar, Ms. Zunaira Fayyaz, Ms. Ayesha Malik, Fahad Usman, Tayyab Jan, Ch. Babras, Advocates with M.S. Khattak, Advocate-on-Record for Respondent.

Dates of hearing: 19th January, Ist, 2nd, 13th, 22nd, 28th February, 7th, 8th, 21st, 22nd, 26th, 27th March, 12th, 13th, 16th to 20th, 24th and 26th April of 2012.

2012 S C M R 911

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Ijaz Ahmed Chaudhry, JJ

MUHAMMAD ISMAIL---Petitioner

versus

MUHAMMAD YOUSAF---Respondent

Civil Petition No.1867-L of 2008, decided on 6th April, 2012.

(On appeal from the judgment dated 8-9-2008 passed by Lahore High Court, Lahore in Civil Revision No.2189 of 2005).

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Constitution of Pakistan, 185(3)---Suit for pre-emption---Making of Talb-e-Muwathibat---Principles---Mentioning time, place and witness before whom Talb-e-Muwathibat was made was sine qua non to prove the same---Pre-emptor (petitioner) did not mention the time and place where he came to know about the impugned sale transaction and also the name of the persons in whose presence, the Talb-e-Muwathibat was made---Supreme Court refused leave to appeal, in circumstances.

Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302; Bashiran Begum v. Nazar Hussain PLD 2008 SC 559; Haq Nawaz v. Muhammad Kabir 2009 SCMR 630 and Ghafoor Khan v. Israr Ahmed 2011 SCMR 1545 fol.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for pre-emption---Making of Talb-e-Muwathibat and Talb-e-Ishhad---Principles---Plaint wherein date, place and time of making of Talb-e-Muwathibat and date of issuing notice of Talb-e-Ishhad in terms of S.13 of Punjab Pre-emption Act, 1991, is not provided, that would be fatal for the suit.

Bashiran Begum v. Nazar Hussain PLD 2008 SC 559 quoted.

(c) Constitution of Pakistan---

----Arts. 2A & 185(3)---Punjab Pre-emption Act (IX of 1991), S. 13---Suit for pre-emption---Objectives Resolution---Scope---Contention of pre-emptor was that provisions of Punjab Pre-emption Act, 1991, had to be interpreted in accordance with Shariah and in Islamic law time and place for performance of Talb-e-Muwathibat was not sine qua non to prove the same, and that under Art. 2A of the Constitution, any provision of law which was not in consonance with Islamic law could not be enforced---Validity---Mentioning time, place and witness before whom Talb-e-Muwathibat was made was sine qua non to prove the same---Article 2A of the Constitution was not a self-executory provision and by virtue of the said Article Objectives Resolution was made part of the Constitution--- Article 2A of the Constitution was at best a beacon light to guide the legislature to enact the law in accord with the aspirations reflected therein and for all those concerned with the governance in the country to regulate their affairs accordingly.

(d) Constitution of Pakistan---

----Art. 2A---Objectives Resolution---Scope---Duties of courts stated.

The provisions of Article 2A were never intended at any stage to be self-executory or to be adopted as a test of repugnancy or of contrariety. It was beyond the power of the court to have applied the test of repugnancy by invoking Article 2A of the Constitution for striking down any other provision of the Constitution.

The Court's primary duty is to adjudicate by reference to positive law in a manner to lend certainty, clarity and precision to the application of law to concrete questions of law and fact necessarily required to be decided. The court should not undertake examination of theoretical and academic questions nor should ordinarily look for anomalies in the Constitution with a view to suggest to Parliament amendment or improvement in the constitution. If the introduction of Article 2A of the Constitution as a substantive provision of the Constitution does not by itself authorise the court to adopt it as a test of repugnancy with regard to the other constitutional provisions it would be better for the superior courts not to undertake this exercise or to record opinions on merits with regard to such repugnancy. That would be a commitment not conducive to the purely judicial functions that the courts are required to perform under the Constitution.

Hakim Khan v. Government of Pakistan PLD 1992 SC 595 at page 634 quoted.

Mst. Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901 ref.

Saleem Khan Chechi, Advocate Supreme Court for Petitioner.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Respondent.

2012 S C M R 917

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Anwar Zaheer Jamali, JJ

Civil Appeal No. 2103 of 2000

(On appeal judgment of Lahore High Court, Multan Bench dated 21-3-2000 passed in W.P. No.1521 of 1983)

MAQBOOL AHMAD and others---Appellants

versus

FAZAL-I-HAQ and others---Respondents

Civil Appeal No. 2104 of 2000

(On appeal judgment of Lahore High Court, Multan Bench dated 21-3-2000 passed in W.P. No.989 of 1971)

MAQBOOL AHMAD and others---Appellants

versus

MUHAMMAD YASIN and others---Respondents

Civil Appeals Nos. 2103 and 2104 of 2000, decided on 12th April, 2012.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----S. 2-A---Succession prior to year, 1948---Limited owner---Legal heirs, entitlement of---Partition of property---After demise of owner of suit property in year, 1937, his estate was inherited by three persons, i.e. his two sons and one widow, in equal shares and the same had happened under customs prevailing at the relevant time among "Bodla" families---Widow was not full owner of 1/3rd share so inherited by her, from her deceased husband---After demise of widow on 5-3­-1962, litigation had commenced between legal heirs of deceased owner of the property and legal heirs of widow---Controversy between the parties was whether only legal heirs of widow were entitled to inherit 1/3rd share acquired by her from owner (deceased) as limited owner being her exclusive legal heirs or such estate would revert and devolve upon all legal heirs of the last male owner (deceased), thereby reducing their entitlement from 1/3rd estate of widow to the extent of her own entitlement as his widow---Supreme Court overruled/set aside judgment and orders of High Court containing contrary view and cases were remanded to Chief Settlement Commissioner to determine in accordance with law to the effect that persons were entitled to inherit from last male owner on the respective dates of termination of limited interests of female allottees according to provisions of Muslim Personal Law (Shariat) Application Act, 1962---Appeal was dismissed.

Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi PLD 1971 SC 791; Sher Muhammad v. The Additional Settlement and Rahabilitation Commissioner PLD 1968 Lah. 234; Babu Ali Muhammad v. Mahmood-ul-Hassan PLD 1968 Lah. 329; Sadaquat Ali Khan v. Collector, Land Acquisition PLD 2010 SC 878; Mt. Channi Bibi v. Ahmad Khan AIR 1924 Lah. 265; Nawab v. Muhammad Fazil PLD 1964 Lah. 334; Muhammad Iqbal v. Durab Khan 1976 SCMR 149; Zarmina v. Munjawar 1975 SCMR 487; Muhammad Din v. Imam Din PLD 1980 Lah. 672; Muhammad Aslam v. Abdul Hamid 1991 SCMR 552; Hashmat Ali v. Jantan 1993 SCMR 950; Saeed Ahmed v. Abdul Wahid 1999 SCMR 1852; Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407; Ghulam Haider Khan v. Muhammad Hayat 1990 SCMR 338; Mst. Ghulam Jannat v. Ghulam Janat 2003 SCMR 362; Muhammad Saleem Ullah v. Additional District Judge, Gujranwala PLD 2005 SC 511 and Bashir Ahmed v. Abdul Aziz 2009 SCMR 1014 ref.

Mian Saeed-ur-Rehman Farrukh, Senior Advocate Supreme Court, Kh. Saeed-uz-Zafar, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in Civil Appeals Nos.2103 and 2104 of 2000).

Gulzarin Kiyani, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos. 1, 2, 3(i-v), 4-7, 9(ii-iii), 10, 11, 13(i) to (iii) and 14 (in Civil Appeal No.2103 of 2000).

Nemo for Respondents Nos. 15 - 24 and 25 - 27 (in Civil Appeal No.2103 of 2000).

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Respondents Nos. 28 to 31 (in Civil Appeal No.2103 of 2000).

Nemo for Respondents Nos. 1(a) to (d), 2, 7(B) and 9 (in Civil Appeal No.2104 of 2000).

Gulzarin Kiyani, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos. 3, 4, 5-A, 6-B, 6-C, 7-A, 7-B, 7-D, 7-E, 7-F, 7-G, 7-H, 8-A, 10-A, 10-B, 1-C and 10-D (in Civil Appeal No.2104 of 2000).

2012 S C M R 930

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Amir Hani Muslim, JJ

ALI MUHAMMAD and another---Appellants

versus

MUHAMMAD BASHIR and another---Respondents

Civil Appeals Nos. 852 and 853 of 2006, decided on 19th April, 2012.

(On appeal against the judgment 12-1-2005 passed by the Lahore High Court, Multan Bench in Civil Revisions Nos.538 and 539 of 1981).

Specific Relief Act (I of 1877)---

----Ss. 39 & 42---Civil Procedure Code (V of 1908), O. II, R. 2---­Suit for declaration of title---Maintainability---Defendant alleged to be in possession of suit land on basis of registered sale deed---Absence of prayer in suit for cancellation of such deed and possession of suit land---Effect---Second suit for possession could not be filed subsequently as such right was available to the plaintiff at the time of filing of present suit---­Second suit, if filed, would be barred under O.II, R. 2, C.P.C.---­Plaintiff had no right to claim declaration in absence of prayer for possession and cancellation of such deed---Present suit for being incompetent was dismissed in circumstances.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Appellants (in both cases.).

Rai M. Nawaz Kharal, Advocate Supreme Court for Respondent No.1 (in both cases).

Ex parte for Respondent No.2 (in both cases).

2012 S C M R 935

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Muhammad Athar Saeed, JJ

GHULAM SARWAR and others---Appellants

versus

Qazi MUHAMMAD BAKHSH and others---Respondents

Civil Appeal No.281 of 2001, decided on 4th April, 2012.

(On appeal from the judgment dated 7-12-2000 of the Lahore High Court, Multan Bench passed in R.F.A. No.98 of 1987).

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

----Ss. 27(b) & 12---Registration Act (XVI of 1908), S. 60---Suit for specific performance of registered agreement for sale of land---Subsequent vendee's claim to be bona fide purchaser for value without having notice of prior agreement in favour of plaintiff---Proof---Subsequent sale was for a price almost 60% of price mentioned in prior agreement---Nothing on record to show that either price in prior agreement had been over-stated due to fear of pre-emption or price mentioned in subsequent sale was actual market price of suit land at relevant time and its price had fallen between prior agreement and subsequent sale---Subsequent vendee knew vendor for a long time---Plaintiff had published public notices in well know newspapers in the locality regarding his prior agreement---Prior agreement for being registered with Registrar was in itself a notice to general public---Nothing on record to show that subsequent vendee had acted as a man of ordinary prudence in making effort expected from a purchaser wanting to acquire title on payment of price---Subsequent vendee had not specifically denied lack of knowledge about prior agreement, but had mentioned in written statement that if there was an agreement between plaintiff and vendor, then same had ceased to exist because of default on part of plaintiff---Publication of such notices in newspapers would be considered as source of information to existence or cancellation of prior agreement requiring a prudent man to inquire from vendor about his stand on its validity and cancellation---Evidence on record showed that subsequent agreement was not executed in good faith without notice---Suit was decreed, in circumstances.

Muhammad Anwar v. Muhammad Aslam and others 2012 SCMR 345; Mst. Rubina Badar through LR v. Messrs Long Life Builders and 4 others 2012 SCMR 84 and Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 ref.

Hafiz Tassauq Hussain v. Lal Khatoon and others PLD 2011 SC 296 rel.

(b) Registration Act (XVI of 1908)---

----S. 60---Transfer of Property Act (IV of 1882), S. 54---­Specific Relief Act (I of 1877), S. 27(b)---Agreement for sale of land, registration of---Effect---Such registration itself would be a notice to general public.

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

----S. 27(b)---Subsequent vendee's claim to be bona fide purchaser---Publication of public notice in newspaper by first vendee about prior agreement in his favour by vendor---­Effect---Such notice would be considered as source of information to existence or cancellation of such agreement and would require a prudent man to inquire from vendor about his stand on its validity and cancellation.

Muhammad Munir Peracha, Advocate Supreme Court for Appellants.

Abdul Rashid Awan, Advocate Supreme Court for Respondents Nos.1 to 20.

Ex parte for Respondents Nos. 21 to 23.

2012 S C M R 947

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

ABDUL JABBAR and others---Appellants

versus

Mst. MAQBOOL JAN and others---Respondents

Civil Appeals Nos. 1146 and 1147 of 2002, decided on 18th April, 2012.

(On appeal from the judgment dated 30-6-1999 of the Lahore High Court, Multan Bench Multan passed in Civil Revision Nos.619 and 621 of 1986).

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 19---Transfer of Property Act (IV of 1882), S. 53-A--­-Agreement for sale of State land---Delivery of possession of such land by its allottee to vendee after receipt of entire sale consideration---Agreement containing term regarding transfer of such land to vendee after acquisition of its proprietary rights by allottee on payment of its full price to Government---Effect---Vendee had been given possession of such land in part performance of agreement in terms of S. 53-A of Transfer of Property Act, 1882---Such agreement could not be termed as a complete sale or sale deed, thus, was not barred by S. 18 of Colonization of Government Lands (Punjab) Act, 1912.

(b) Transfer of Property Act (IV of 1882)---

----S.54---Sale and contract for sale of immovable property---Validity---Sale of property would be a transfer of ownership in exchange for a price of Rs. 100 or upward could be made only by a registered instrument---Sale of property in case of contract would take effect in terms settled therein between the parties, but such contract would not by itself create any interest in or charge thereon.

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

----Ss. 12 & 27(b)---Suit for specific performance of agreement for sale of land---Subsequent vendee claiming to be bona fide purchaser for value without having notice of such previous agreement in favour of plaintiff---Proof---Evidence on record showed that before registration of sale deed in favour of subsequent vendee, he had met plaintiff , who in cultivating possession of suit land---Subsequent vendee ought to have inquired from plaintiff about status of his possession and agreement in his favour---Possession would tantamount to notice of title of party in possession---Duty of purchaser would be to enquire nature and extent of interest of party in possession---Specific performance could be ordered against every transferee from promisor except a bona fide purchaser under S. 27 of Specific Relief Act, 1877---Subsequent vendee had not discharged burden to protect his title as bona fide purchaser--­Such plea of subsequent vendee was repelled in circumstances.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Allah Rakha v. Mukhtar Ahmad Baig 1996 SCMR 1501; Chairman District Evacuee Trust Committee, Rawalpindi v. Sharif Ahmad and others PLD 1991 SC 246; Shah Nawaz through L.Rs. v. Abdul Ghafoor and others 2008 SCMR 352; Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821; Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others 1992 SCMR 1510 and Abdul Jabbar v. Abdullah 2006 SCMR 1541 ref.

Daniels v. Davison (1809) 10 RR 171; Baburam Beg and another v. Madhab Chandra Pally and others AIR 1914 Calcutta 333 and Magil Brahma v. Bholi Das 19 CLJ 352 rel.

Amir Alam Khan, Senior Advocate Supreme Court, Saeed ur Rehman Farrukh, Senior Advocate Supreme Court and Ahmed Raza, Advocate Supreme Court for Appellants.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Respondents.

2012 S C M R 954

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

ABDUL REHMAN and another---Appellants

versus

ZIA-UL-HAQUE MAKHDOOM and others---Respondents

Civil Appeals Nos. 1197 and 1198 of 2009, decided on 11th April, 2012.

(On appeal from the judgment dated 13-8-2009 of Sindh High Court at Karachi in Cons. Ps. Nos.333 and 334 of 2009).

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

----Ss. 8 & 9---Constitution of Pakistan, Arts. 185(3) & 199---Constitutional petition---Fair rent, fixation of---Rent enhanced by Rent Controller and Appellate Court under S. 8 of Sindh Rented Premises Ordinance, 1979 but High Court under it constitutional jurisdiction enhanced the same by applying provision of S.9 thereof---Validity---Leave to appeal was granted by Supreme Court to consider question as to whether High Court in exercise of writ jurisdiction could not modify rent and which amount/rent had never been fixed by any of the courts below and also could not enhance rent under S.9 of Sindh Rented Premises Ordinance, 1979 @ 10% per annum or 30% after three years as there were no findings to the such effect of any of court below.

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

----S. 8(1)(a) to (d)---Fair rent, fixation of---Factors/conditions stated in S.8(1) of Sindh Rented Premises Ordinance, 1979---Validity---All such factors would not be construed and considered as integrated or composite whole, rather as independent of each other---One factor might supplement other facilitating fixation of rent by Rent Controller---More than one such factors, if prevalent and proved, could be made basis for such fixation by Rent Controller---Principles.

Abdul Ghaffar and another v. Mst. Noor Jehan Malik 1988 SCMR 1410; Volkart (Pakistan) Ltd. Karachi v. Interavia Pakistan Limited, Karachi 2001 SCMR 671; Mian Hussain Muhammad v. Col. Muhammad Ilyas and 7 others 1981 SCMR 1028 and Khyber Insurance Company Ltd. v. Pakistan National Shipping Corporation PLD 1994 SC 725 ref.

(c) Qanun-e-Shahadat (10 of 1984)---

----Arts. 85, 87 & 88---Sindh Rented Premises Ordinance (XVII of 1979), Ss. 8 & 9---Photocopies of rent deeds placed on record---Validity---Such copies for being secondary evidence, if not proved in accordance with law, would be inadmissible in evidence.

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

----S. 8---Constitution of Pakistan, Art. 199---Constitutional petition before High Court---Fair rent, fixation of---Sub-lease agreement placed on record by landlord-petitioner through a miscellaneous application---Rent fixed by courts below modified by High on basis of such agreement---Validity---Neither landlord had sought permission to produce additional evidence nor same was granted to him by High Court---Such agreement was not part of record in constitutional proceedings arising out of judicial or quasi judicial proceedings---Not permissible for High Court in proper exercise of its jurisdiction to randomly pick up a document brought on record otherwise than in accordance with law and without providing fair opportunity to other side to refute the same---High Court could not look into such agreement and base its judgment thereon, in circumstances.

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

----Art. 133---Omission to cross-examine statement of opponent---Effect---Only specific and material fact of utmost importance having significant impact on case, but not general statement in examination-in-chief not containing concrete and material facts, if remained unchecked in cross-examination, would amount to admission on part of cross-examining party.

Mian Hamid Farooq, Advocate Supreme Court for Appellants (in C.A. No.1197 of 2009).

Iftikhar A. Qazi, Advocate Supreme Court for Appellants (in C.A. No. 1198 of 2009).

Tariq Mehmood, Senior Advocate Supreme Court for Appellants (in both cases).

Munir A. Malik, Senior Advocate Supreme Court for Respondents (in both cases).

2012 S C M R 962

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Muhammad Athar Saeed, JJ

NATIONAL GASES LTD. and another---Petitioners

versus

BOC PAKISTAN LTD.---Respondent

C.P.L.As. Nos. 43 and 44 of 2012, decided on 5th March, 2012.

Arbitration Act (X of 1940)---

----S. 20---Constitution of Pakistan, Art. 185(3)---Supplier (respondent) entered into agreement with the appellants (petitioners) to supply the same with its product along with some equipment---Said agreement provided that equipment supplied would remain property of supplier at all times; that agreement would be terminated in case appellants failed to make payment when due or where a material breach committed by appellants was not rectified within thirty days of supplier's written notice; that upon termination of agreement supplier would be entitled to recover possession of its equipment, and that the dispute will be resolved through arbitration in accordance with the Arbitration Act, 1940---Appellants failed to make payment of some supplies and supplier filed applications before the High Court under S.20 of Arbitration Act, 1940, along with interim applications for return of equipment supplied to the parties---Interim applications for return of equipment were allowed by the High Court and appeal filed thereagainst by the appellants were dismissed---Contention of appellants was that application under S.20 of Arbitration Act, 1940, was not maintainable, therefore any interim order could not be justifiably passed, and that the agreements with the supplier were for ten (10) years, therefore, same could not have been terminated by the supplier---Validity---Appellants had admitted that application under S.20 of Arbitration Act, 1940, was pending in the High Court---Question as to whether the agreement could have been terminated or not concerned merits of the case, and in the present petition Supreme Court was only concerned with the recovery of the equipment by the supplier---Supplier was entitled to recover the equipment on termination of the agreement and it was an admitted fact that agreement was terminated by the supplier---No illegality or perversity was found in the impugned order nor same called for any interference---Supreme Court dismissed petitions for leave to appeal, in circumstances.

Abdul Kadir Khan, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Petitioners.

Nemo for Respondent.

2012 S C M R 965

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Amir Hani Muslim, JJ

WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE through Chairman and others---Appellants

versus

Haji ABDUL AZIZ and others---Respondents

Civil Appeals Nos. 121 to 123 of 2011, decided on 16th April, 2012.

(On appeal from judgment dated 2-10-2009 of the Federal Service Tribunal, Islamabad, passed in Appeals Nos.331ÒCS/2007, 332ÒCS/2007 and 2173ÒCE/2005).

(a) WAPDA (Water Wing) Service of Engineer Rules, 1968---

----R. 5(2)(e)(ii)---Constitution of Pakistan, Art. 212---Amendment in rules effecting promotion rights of employees retrospectively---Validity---Employees (respondents) were working as sub-engineers in WAPDA and were placed in BS-16--­WAPDA (appellant) made amendment in rule 5(2)(e)(ii) of WAPDA (Water Wing) Service of Engineer Rules, 1968, by which amendment condition of holding office in BS-16 was done away with and all sub-engineers who otherwise qualified were entitled for consideration for promotion to junior-engineers in terms of amended rule---Contentions of employees were that prior to the amendment, twenty six (26) vacancies were available, and employees were entitled to promotion on such vacancies on the basis of the seniority list; that after introduction of amended rule, those who did not fall within the seniority list of BS-16 were allowed to compete with the employees for promotion, and that amended rule could not be allowed to operate retrospectively to the disadvantage of the employees, who were entitled to promotion prior to the amendment against the vacant seats---Validity---Rules operated prospectively and if a right was created in favour of an employee under the old rule, it could not be taken away on the ground that the amended rule had allowed others to compete---Twenty six vacancies were available before the amendment of rule, and employees were entitled to promotion on such vacancies under the seniority list, but the department did not promote them without offering any plausible explanation---Amended rule did not permit the department to overlook the rights of employees created under the law by applying the amended rule to the extend benefit to those who were not in run for promotion at the time when the right of the employees for promotion matured on basis of the seniority list---Finding of Tribunal was in conformity with the settled law and no exception could be taken to the same---Appeals were dismissed by Supreme Court with costs.

Dr. Muhammad Amjad v. Dr. Israr Ahmed 2010 SCMR 1466; Mrs. Farkhanda Talat v. Federation of Pakistan 2007 SCMR 886 and Luqman Zareen v. Secretary Education 2006 SCMR 1938 ref.

(b) Interpretation of statutes---

----Amendment of a statute/rule affecting right of individual---Scope---Any amendment which deprives a person of his right has to be construed prospectively.

Aurangzeb Mirza, Advocate Supreme Court for Appellants (in all appeals).

Abdur Rehman Siddiqui, Advocate Supreme Court for Respondents (in C.A. 122 of 2011).

Abdur Rehman Siddiqui, Advocate Supreme Court for Respondents Nos.1, 7 to 13 (in C.A. No. 123 of 2011).

Respondents Nos. 2, 3, 4 and 6 in person (in C.A. No.123 of 2011).

2012 S C M R 969

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Anwar Zaheer Jamali, JJ

MAQBOOL AHMAD and others---Petitioners

versus

MUHAMMAD ASLAM and others---Respondents

Criminal Original Petition No.76 of 2010 in Civil Appeal No.2103 of 2000, decided on 12th April, 2012.

(For initiation of Contempt Proceedings for violation of order of this Court dated 4-5-2000).

Supreme Court Rules, 1980---

----O. XXVII---Constitution of Pakistan, Art. 204---Contempt of Supreme Court---Allegation against accused (respondents) was that they violated an interim order of the Supreme Court, to the effect that possession of complainants (petitioners) over disputed land was not to be disturbed, and that proceedings before the Revenue Officer were not stayed---Contention of the complainants was that interim order had been deliberately violated by the accused persons, as a result whereof mutations had been changed and complainants had been dispossessed from the disputed land---Validity---Appeals filed by complainants in the matter had been dismissed by the Supreme Court, and allegation of violation of the said interim order, prima-facie, did not have much substance, as the proceedings before the Revenue Court were not stayed during the pendency of the appeals---No fruitful purpose would have been served if contempt proceedings were initiated at the present stage after a lapse of more than a decade---Question of violation of court order, was one, which was strictly between the court and the alleged violator of such order---Complainants could pursue their remedy before the proper forum, in case they suffered some damages due to any wrongful act of the alleged accused persons---Petition was dismissed, in circumstances.

Mian Saeed-ur-Rehman Farrukh, Senior Advocate Supreme Court and Kh. Saeed-uz-Zafar, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2012 S C M R 971

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Gulzar Ahmed, JJ

MUHAMMAD ZAHIR RAJA---Appellant

versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Appeal No. 134 of 2011, decided on 10th April, 2012.

(Against the judgment dated 22-3-2012 passed by the Federal Service Tribunal, Islamabad in Appeal No.704(R) CS/2008).

(a) Service Tribunals Act (LXX of 1973)---

----S. 4(1)(b)---Civil Servants Act (LXXI of 1973), S.9(1)---Constitution of Pakistan, Art. 212---Promotion, supersession in---"Eligibility for promotion" and "determination of fitness"---Distinction and scope---Determination of fitness of civil servant by Central Selection Board---Scope---Contentions of the civil servant (appellant) were that he had an excellent career and his PERs showed his integrity to be above board; that he was superseded on the ground of excellence and comparative merit despite the fact that nothing adverse vis-a-vis his integrity and efficiency was observed by the Central Selection Board, and that some of the civil servants who had been promoted, had adverse entries in their PERs as well as their pro formas prepared by the Central Selection Board---Validity---"Eligibility for promotion" and "fitness" were two separate criteria---Eligibility related primarily to the terms and conditions of service and their applicability to the concerned civil servants, whereas, question of fitness was a subjective evaluation on the basis of objective criteria and hence was not justiciable---Section 4(1)(b) of Service Tribunals Act, 1973, specifically barred right to appeal to the Tribunal against the order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher grade---Such discretion given to the concerned authorities in the matter of fitness etc. of a civil servant for promotion, had to be exercised in a fair, open and just manner which should be based on reasonable assessment of the civil servant's performance and such exercise should not be arbitrary or colorable in any manner---When considering the question of fitness, the criteria of excellence in favour of a particular candidate should be based on reason and there should be something in writing which should influence the Central Selection Board while exercising their discretion in favour of a particular candidate---In the present case, said exercise was entirely missing and civil servant's pro forma prepared by the Central Selection Board only contained a bald assertion that civil servant could not come up to the required threshold---Civil servant had an excellent record yet he was superseded on the policy of best of the best, whereas another civil servant who had adverse entries in his PERs, which were reproduced in the pro-forma prepared by the Central Selection Board had been promoted---Such exercise of discretion by concerned authorities could not be supported on any reasonable interpretation of either the law or the facts of the case---Appeal was allowed by the Supreme Court, and directions were given to Central Selection Board to consider the case of the civil servant in question for promotion from BPS-19 to BPS-20 and if found fit for promotion, he would take seniority from the date his batch mates were promoted.

Secretary Revenue Division, CBR/Federal Board of Revenue, Islamabad v. Gul Muhammad and others 2011 SCMR 295; Tariq Aziz-ud-Din and others: in re 2010 SCMR 1301; Fazali Rehmani v. Chief Minister, N.-W.F.P., Peshawar and others PLD 2008 769; Zafar Iqbal and another v. Director, Secondary Education, Multan Division and 3 others 2006 SCMR 1427 and Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 ref.

(b) Civil Servants Act (LXXI of 1973)---

----S. 9(1)---Right to promotion---Scope---Section 9(1) of the Civil Servants Act, 1973, provided a civil servant with the right to be considered for promotion if same was eligible on account of possessing the prescribed minimum qualification etc., however, civil servant had no vested right to be promoted.

Sahibzada Anwar Hamid, Advocate Supreme Court for Appellant.

Raja M. Aleem Abbasi, D.A.-G., M.S. Khattak, Advocate-on-Record and Zakaullah Jan, S.O. (Est.) for Respondents.

2012 S C M R 976

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ghulam Rabbani, JJ

ABDUL RAZZAK---Petitioner

versus

SHABNAM NOONARI and others---Respondents

C.P.L.A. No.486-K of 2011, decided on 17th June, 2011.

(On appeal from order of High Court of Sindh, Bench at Sukkur dated 18-4-2011 passed in C.P. No.457 of 2009).

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan, Art. 185(3)---Recovery of maintenance allowance and dowry articles---Suit filed by wife (respondent) for maintenance and recovery of dower amount was decreed by the Family court with the order that wife was entitled for past and future maintenance at the rate of Rs.3,000 per month with a 5% increase per year till legal entitlement, while each minor daughter was entitled to past and future maintenance at the rate of Rs. 2,000 per month with a 5% increase per year till their marriage---Husband (petitioner) filed appeal and constitutional petition against said order before First Appellate Court and High Court respectively, but both were dismissed---Contention of husband was that courts below had not taken into account the financial status and limited source of income of the husband, which was not sufficient to meet monthly maintenance as ordered by the Family Court---Validity---All courts below had given due attention to the pleadings of the parties, evidence adduced by them before the Family Court and after proper appreciation of the evidence, awarded the decree for maintenance etc., and it was for that reason that the High Court, while exercising its equitable and discretionary jurisdiction under Article 199 of the Constitution declined to intervene in the matter---Supreme Court dismissed petition for leave to appeal, in circumstances.

Abdul Qadir Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2012 S C M R 979

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Gulzar Ahmed, JJ

MUHAMMAD MUSA---Appellant

versus

HABIB BANK LIMITED and others---Respondents

C.A. No.1157 of 2008, decided on 11th April, 2012.

(On appeal from the judgment dated 29-5-2007, passed by the Lahore High Court, Lahore, in Labour Appeal No.87 of 2004).

(a) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----Sched, S.Os. 15(2)(iv) & 15(3)(b)---Misconduct----Submission of bogus examination result, mark-sheet and certificate to gain promotion---Effect---Employee (appellant) was serving as a guard at the Bank (respondent) and applied for promotion as cashier, for which purpose he submitted result sheet, certificate and mark-sheet of his intermediate examination, along with a letter of the Controller of Examination of the Education Board---Said documents were found to be bogus and show cause notices were issued to the employee---Regular inquiry was conducted in which employee was found to be guilty and his services were terminated---Grievance petition of employee was allowed by the Labour Court by ordering his reinstatement with back benefits---High Court set aside said order of Labour Court---Contentions of the employee were that submission of bogus intermediate certificate did not amount to misconduct under Standing Order 15(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and that employee had a long service with the bank because of which some leniency should be extended to him and his punishment be reduced---Validity---Acts and omissions of the employee squarely fell within Standing Order 15(3)(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, in that by producing bogus intermediate mark-sheet and certificate , the employee committed fraud and dishonesty, and further by obtaining benefit of promotion on the basis of such mark-sheet/certificate, the employee again committed fraud and dishonesty in respect of employer's business and property in that he procured for himself unlawful gain in the form of monetary benefits which amounted to defrauding the property of the employer---Act of employee rendered him liable to be punished in terms of Standing Order 15(2)(iv) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which was dismissal from service without payment of compensation in lieu of notice---No mitigating circumstances having been found on the basis of which any lenient punishment might be substituted--- Appeal was dismissed by Supreme Court, in circumstances.

Messrs Millat Tractors Limited v. Punjab Labour Court No.3, Lahore and 2 others 1996 SCMR 883 distinguished.

Anwar Ali and another v. Chief Executive Hesco (WAPDA) Hyderabad and others 2009 SCMR 1492 ref.

(b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----Sched, O. 15(3)(b)---Gaining promotion in bank through fraudulent and dishonest means---Scope and effect---Employee who gains promotion in a bank through fraudulent and dishonest means, amounts to commission of fraud and dishonesty in the business and with the property of the bank and same will fall within the mischief of Standing Order 15(3)(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which on being proved will render the employee to be dealt with punishment of dismissal from service. [p. 982] B

Abid Saqi, Advocate Supreme Court for Appellant.

Mian Abdul Rashid, Advocate Supreme Court for Respondents.

2012 S C M R 983

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

Mst. TABASSUM SHAHEEN---Petitioner

versus

Mst. UZMA RAHAT and others---Respondents

Civil Petition No.105 of 2010, decided on 2nd May, 2012.

(On appeal from the judgment dated 21-12-2009 passed by Peshawar High Court, Peshawar in Civil Revision No.1326 of 2007).

(a) Transfer of Property Act (IV of 1882)---

----Ss. 52 & 41---Transfer of property pending suit relating thereto---Doctrine of lis pendens---Applicability---Status of proceedings before expiry of limitation period to file appeal---Scope---Trial Court directed the plaintiff (respondent) to return the property in question to the defendant (respondent)---Plaintiff filed appeal against said order of Trial Court within the limitation period, but prior to filing of said appeal defendant had already sold the property in question to the alleged bona fide purchaser (petitioner) through the impugned sale transaction---Plaintiff filed declaratory civil suit impugning the sale transaction which was dismissed by the Trial Court but upheld by both the appellate courts below---Contention of the alleged bona fide purchaser (petitioner) was that impugned sale transaction was relatable to a period when there was no lis pending as admittedly appeal was filed after the impugned sale---Validity---Section 52 of the Transfer of Property Act, 1882, enshrined the equitable principle of "ut lite pendente nihil innovetur" (pending litigation, nothing new should be introduced), and stipulated that parties to a pending litigation, wherein rights to an immovable property were in question, no party could alienate or otherwise deal with such property to the detriment of his opponent---Any transfer so made would be hit by S.52 of the Transfer of Property Act, 1882---Doctrine of lis pendens underpinned the rationale that no action or suit would succeed if alienations made during pendency of proceedings in the said suit or action were allowed to prevail---Effect of such alienation would be that the plaintiff would be defeated by the defendants alienating the suit property before the judgment or decree and the former would be obliged to initiate de novo proceedings and that too with the fear that he could again by defeated---Under S.52 of the Transfer of Property Act, 1882, if appeal against a judgment or decree had not been filed but the period of limitation to file appeal had not expired, the proceedings would be deemed to be pending---In the present case, appeal of the plaintiff against the judgment and decree of the Trial Court was filed within the time and property in question was decreed in her favour---Impugned sale was made during the pendency of the proceedings and was squarely hit by the principle of lis pendens---In terms of S.41 of the Transfer of Property Act, 1882, a bona fide purchaser for value was fully protected but the doctrine of lis pendens enshrined under S.52 of the Act was an exception and the impugned sale had rightly been held to be hit by the principle of lis pendens---Concurrent judgments and decrees of both the courts below were unexceptionable---Petition for leave to appeal was dismissed, in circumstances.

Lalji Singh v. Rameshuwar Misra ((1983) 9 All LR 269 (271) (All)) and Muhammad Ashraf Butt v. Muhammad Asif Bhatti PLD 2011 SC 905 rel.

(b) Transfer of Property Act (IV of 1882)---

----S. 52---Doctrine/rule of lis pendens---Scope---Doctrine of lis pendens in pith and substance was not only based on equity but also on good conscience and justice.

(c) Transfer of Property Act (IV of 1882)---

----S. 52---Transfer of property pending suit relating thereto---Lis pendens, principle of---Ingredients---Conditions precedent to attract the principles of lis pendens with respect to S.52 of the Transfer of Property Act, 1882, are, the pendency of any suit or proceedings in a court of law; the court must have jurisdiction over the person or property; the property must be specifically described and should be affected by the termination of the suit or proceedings; the right to the said property is directly and specifically in question in any suit or proceedings; the alienation of such immovable property without the permission or order of the court, and the alienation should be during the pendency of any such suit or proceedings.

Lalji Singh v. Rameshuwar Misra ((1983) 9 All LR 269 (271) (All)) rel.

(d) Transfer of Property Act (IV of 1882)---

----S. 52--- Lis pendens, principle of--- Rights of parties--- Scope---Principle of lis pendens unambiguously prescribes that the rights of the party to the suit, who ultimately succeeds in the matter are not affected in any manner whatsoever on account of the alienation, and the transferee of the property shall acquire the title to the property subject to the final outcome of the lis---In view of the rule/doctrine of lis pendens, a transferee of the suit property, even if a bona fide purchaser, without notice of the pendency of suit, shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound---Transferee therefore does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest.

Muhammad Ashraf Butt v. Muhammad Asif Bhatti PLD 2011 SC 905 rel.

Salahuddin Khan, Advocate Supreme Court for Petitioner.

Javed Yousafzai, Advocate Supreme Court for Respondent No.1.

2012 S C M R 992

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Amir Hani Muslim, JJ

PAKISTAN SPORTS BOARD and another---Appellants

versus

PAKISTAN VOLLEY BALL FEDERATION and others---Respondents

Civil Appeals Nos. 368 to 370 of 2011, decided on 8th May, 2012.

(Against the judgment dated 28-10-2010 passed by the Lahore High Court, Lahore in W.Ps. Nos. 10398 of 2008, 17812 of 2009 and 20670 of 2010 respectively.).

Sports (Development and Control) Ordinance (XVI of 1962)---

----Ss. 3 & 4---National Sports Policy, 2005, Paras 10(5) & 11---Constitution of Pakistan, Art. 17---Freedom of association---Tenure of office---Affiliation with Sports Board---Respondents were Federations of Volleyball, Handball, Cycling and Gymnastic and their grievance related to restrictions imposed on third time election of office bearers---Validity---Pakistan Sports Board was not interfering in freedom of association guaranteed to members of respondent Federations under Art.17 of the Constitution---Pakistan Sports Board could not regulate or control any Association which did not seek affiliation with it and members of respondent Associations had a right to form their associations without interference of Pakistan Sports Board but it could only happen if the respondents did not voluntarily and on their own initiative had sought affiliation of the Board---If respondents wanted to be affiliated with Pakistan Sports Board and to reap benefits which accrue with such affiliation, they could not claim any exemptions from following the directives which might be given by the Board in accordance with Pakistan Sports Board Rules---High Court proceeded on erroneous grounds while allowing constitutional petition filed by respondent Federations---Supreme Court set aside judgment passed by High Court---Appeal was allowed.

Ghulam Rasul v. Chief Administrator of Auqaf PLD 1996 Lah. 978; Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 673; Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26 and I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 distinguished.

M. Munir Piracha, Advocate Supreme Court for Appellants (in all cases).

M. Akram Sheikh, Senior Advocate Supreme Court and Ali Raza, Advocate Supreme Court for Respondents Nos.1 to 4 (in C.A. No.368 of 2011).

M. Akram Sheikh, Senior Advocate Supreme Court and Ali Raza, Advocate Supreme Court for Respondent No.5 (in C.A. No.368 of 2011).

M. Akram Sheikh, Senior Advocate Supreme Court and Ali Raza, Advocate Supreme Court for Respondents Nos.1 to 2 (in C.A. No.369 of 2011).

M. Akram Sheikh, Senior Advocate Supreme Court and Ali Raza, Advocate Supreme Court for Respondent No.2 (in C.A. No.370 of 2011).

Nemo for Respondents Nos. 3 to 4 (in C.A. No.370 of 2011).

Ex parte for Respondent Nos. 1 and 5 (in C.A. No.370 of 2011).

2012 S C M R 997

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

MAZHAR AHMED---Petitioner

versus

THE STATE and another---Respondents

Criminal Petition No.591 of 2011, decided on 8th May, 2012.

(On appeal from the judgment dated 23-11-2011 passed by Lahore High Court, Multan Bench in Criminal Miscellaneous No.1 of 2011 in Criminal Appeal No.264 of 2011).

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

----S. 426---Penal Code (XLV of 1860), Ss. 420/161---Prevention of Corruption Act (II of 1947), S.5(2)---Cheating and dishonestly inducing delivery of property, public servant taking gratification other than legal remuneration in respect of an official act, criminal misconduct---Suspension of sentence---Principles---Surrender before police not a condition precedent under S.426, Cr.P.C.---Appearance before court amounting to surrender---Scope---Accused filed petition for suspension of sentence before the High Court but same was not considered and dismissed on the ground that accused remained an absconder for one month after the pronouncement of the judgment against him---Contentions of the accused were that the High Court could not have summarily dismissed his petition for suspension of sentence having entertained the appeal against his conviction; that S.426, Cr.P.C., had two parts; one pertained to a situation when appeal was filed along with a petition for suspension for sentence and the accused might not be in confinement, whereas the second part of the said section was relatable to circumstances when accused had been arrested and was in lockup and filed a petition for suspension of sentence and release, and that the court seized of the appeal could suspend the sentence in both the eventualities---Validity---Section 426, Cr.P.C., had two parts, one part was relatable to a situation when a petition for suspension was filed along with the appeal and the convict had not surrendered before the police but appeared before the court, in such a situation the court may "order that the execution of the sentence or order appealed against be suspended"---Second part of S.426, Cr.P.C., was relatable to a situation when the convict had already been arrested and for such an eventuality S.426, Cr.P.C., stipulated that "and, also if he is in confinement, that he be released on bail or on his own bond"--- Contention that appearance before the court in a petition under S.426, Cr.P.C., was not equivalent to surrender was not tenable---In the present case, accused had appeared before the High Court which amounted to surrender and the court could not have dismissed the petition merely because the convict had not surrendered before the police---High Court could have allowed the petition or could have dismissed the same on merits, but could not have refused to even consider the petition---Impugned order of the High Court was set aside, petition of accused for suspension of sentence would be deemed to be pending before the High Court, which would decide the same within two weeks of the accused's appearance before it.

Bakhta v. State 1985 SCMR 97; Musharaf Khan v. The State 1985 SCMR 900 and Zahid v. The State PLD 1991 SC 379 ref.

Shamshad Hussain v. Gulraiz Akhtar PLD 2007 SC 564; Musharaf Khan v. The State 1985 SCMR 900 and Zahid v. The State PLD 1991 SC 379 rel.

Bakhta v. State 1985 SCMR 97 distinguished.

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

----Ss. 426 & 497---Suspension of sentence and grant of bail---Principles---In absence of any guideline, the principles which govern S.497, Cr.P.C. may guide the exercise of discretion under S.426, Cr.P.C.

Shamshad Hussain v. Gulraiz Akhtar PLD 2007 SC 564 rel.

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

----Ss. 426 & 497---Suspension of sentence and grant of bail---Principles---Provisions under S.426(1), Cr.P.C. are analogous to the one contained in S.497, Cr.P.C. as in both the cases the sentence or detention is to be suspended pending hearing of appeal/trial and the convict or the detenu is to be released on bail with the only difference that in the former case the person is a convict who has been already found guilty while in the latter case he has been charged only to face trial and is still to be proved guilty---In absence of any guideline, it would be appropriate to follow the one provided under S.497, Cr.P.C. on the principle that where a statute lays down certain principles for doing some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the court---Under S.497, Cr.P.C., existence and non-existence of reasonable grounds for believing that person is guilty of the offence and the scope of further inquiry are the criteria/hallmarks and for arriving at such conclusion tentative assessment and not minute or detailed assessment of evidence has been made permissible---In case of suspension of sentence, only tentative assessment of available evidence and of judgment is permissible and detailed appraisal of evidence is to be avoided.

Shamshad Hussain v. Gulraiz Akhtar PLD 2007 SC 564 rel.

Ch. Afrasiab Khan, Advocate Supreme Court along with Petitioner in person.

Sardar Muhammad Ishaq, Senior Advocate Supreme Court and Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Amicus curiae.

Jawad Hassan, Additional A.-G. and Muhammad Irfan Malik, Additional P.-G. on Courts Call.

2012 S C M R 1004

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Amir Hani Muslim, JJ

MUHAMMAD DIN---Appellant

versus

ABDUL GHANI and another---Respondents

Civil Appeal No.670 of 2006, decided on 17th April, 2012.

(On appeal from judgment dated 9-5-2005 of the Lahore High Court, Lahore, passed in W.P. No.21358 of 2000).

Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches---Effect---High Court on finding constitutional petition to be barred by laches, would not be required to decide on merits the issue raised therein.

Kh. Muhammad Farooq Mehta, Advocate Supreme Court for Appellant.

Gul Zarain Kiyani, Senior Advocate Supreme Court for Respondent No.1.

2012 S C M R 1007

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

PROVINCE OF PUNJAB through Secretary Colonies, Board of Revenue, Lahore and others---Appellants

versus

Ch. ABDUS SATTAR---Respondent

Civil Appeal No. 2128 of 2006, decided on 11th May, 2012.

(On appeal from the judgment dated 18-7-2006 passed by the Lahore High Court, Bahawalpur Bench in W.P. No.519-2006/BWP).

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

---S. 19---Original allottee assigning/alienating his land which fell within the prohibited zone---Such land not falling within the prohibited zone at the time of its original allotment---Permission required for assigning/alienating such land obtained---Scope--Original allottee (respondent) was allotted land under a scheme and upon execution of a sale agreement with the Provincial Government, he was put in to the possession of the same land---Original allottee subsequently executed a sale deed in favour of the assignee (respondent), after obtaining permission from the Commissioner under S.19 of the Colonization of Government Lands (Punjab) Act, 1912---Assignee applied for "Patta Malkiyat" in regard to the land in question, which request was turned down by the Board of Revenue on the basis that land in question fell in the prohibited zone, however, High Court allowed the same on the ground that at the time of allotment to the original allottee, the land did not fall within the prohibited zone---Contentions of the counsel of Revenue Board (appellant) were that land in question fell within the prohibited zone of the Municipal Committee and in view of a notification issued by the Board of Revenue, proprietary rights could not be granted with regard to such a land; that original allottee had executed a sale agreement in favour of the Provincial Government/ Collector and a clause of the said agreement provided that the allotte would not transfer or alienate the land without the written permission of the Government---Validity---When the land in question was allotted to the original allottee, it did not fall within the prohibited zone and therefore, would not be hit by the subsequent notification relied to by the Revenue Board---Sale agreement between the original allottee and Provincial Government contained a clause to the effect that the original allottee could assign, sublet or transfer by mortgage or otherwise or part with the land or any part thereof, with the written permission of the Government---Admittedly, the original allottee had applied to the Commissioner and obtained the required permission in writing before alienating the land in favour of the assignee--- Permission obtained by the Commissioner was neither challenged by anyone nor was it ever varied--- Alienation of the land in question was made pursuant to the order of the Commissioner and was for all intents and purposes, an assignment permissible under the agreement between the original allottee and the Provincial Government---Fact that the original allottee and subsequent assignee had applied to the Commissioner for according permission, reflected that both of them were aware of the bar contained in S.19 of the Colonization of Government Lands (Punjab) Act, 1912---Impugned judgment of the High Court was unexceptionable---Appeal was dismissed, in circumstances.

Province of Punjab through District Collector Vehari v. Ghulam Muhammad 1994 SCMR 975 ref.

Province of Punjab through District Collector Vehari v. Ghulam Muhammad 1994 SCMR 975; Muhammad Iqbal v. Muhammad Hussain PLD 1986 SC 70 and Muhammad Siddique v. Muhammad Ramzan 2002 SCMR 1821 rel.

(b) Words and phrases---

----"Assign"---Definition---Assign has been defined as "to convey; to transfer rights or property".

Black's Law Dictionary ref.

Mudasir Khalid Abbasi, A.A.-G. and Ifran Qadir, Dy Secy. BOR, Punjab for Appellants.

Ejaz Ahmed Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 11th May, 2012.

2012 S C M R 1014

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

MUHAMMAD YAR---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.358-L of 2010, decided on 21st May, 2012.

(On appeal from the judgment dated 15-3-2010 in Criminal Appeal No.1764 of 2004 and Murder Reference No.629 of 2004 passed by the Lahore High Court, Lahore).

(a) Penal Code (XLV of 1860)---

----Ss. 100/302(b)/148/149---Right of private defence, qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Reappraisal of evidence---Right of private defence of the body extending to causing death---Scope---Allegation against the accused was that he murdered the deceased due to a property dispute and resorted to aerial firing along with co-accused, resulting in injuries to several prosecution witnesses---Contentions of the accused were that the complainant party tried to take forcible possession of the disputed property and started to beat his wife and daughters, therefore, the accused while exercising his right of self-defence fired at the deceased; that the evidence on basis of which he was convicted and sentenced had been disbelieved qua the involvement of the co-accused; that prosecution had failed to prove motive against the accused, and that the eye-witnesses had made improvements while appearing before the Trial Court---Validity---Deceased and others came to the house of the accused and there was confrontation between the parties, but there was no evidence that the complainant party was fully armed and came to the house to cause trouble---Only allegation against the complainant party was that it had come to the spot to take possession of the disputed property and started beating the wife and daughters of the deceased, therefore, case of the accused did not fall within the ambit of S.100, P.P.C., as no evidence had come on record to suggest that complainant party came fully armed to cause trouble---None of the women folk or the females who had allegedly been given a beating by the complainant party had been produced during the investigation---Despite lengthy cross-examination all the witnesses had made consistent statements with respect to the role ascribed to the accused and their statements were fully supported by the medical evidence---Weapon of offence had been recovered from the accused and empties had also been recovered from the spot-­--Empties had been sent to the Forensic Science Laboratory and the report submitted by the Laboratory was in positive--- Case of the prosecution was on sound footings qua involvement of the accused in the incident and his case was not at par with that of his co-accused, as no weapon of offence was recovered from the co-accused during the investigation---Accused had failed to make out a case for reduction in his sentence--- Both the courts below had not committed any illegality or irregularity in sentencing the accused to death---Petition for leave to appeal was dismissed, in circumstances.

Ghulam Farid v. The State 2009 SCMR 929; Karuppa Pillai v. State 1996 Cri. LJ 3880 and Aramana Joseph alias Pappachan v. State of Kerla 1996 Cri. LJ 2140 ref.

(b) Penal Code (XLV of 1860)---

----S. 100---Right of self-defence extending to causing of death---Scope and pre- requisites--- Law authorizes a man who is under a reasonable apprehension that his life or the life of another is in danger or there is a risk of grievous hurt, to inflict death upon the assailants but the apprehension must be reasonable and the violence inflicted must not be greater than is reasonably necessary for the purpose of self-defence---Person exercising the right of self-defence must be careful in modulating his acts---Self-defence must be proportionate and commensurate with the quality and character of the act it is intended to meet and anything done in excess is not protected under the law---For self-defence the most important question was whether there was any reasonable apprehension of danger to the accused and he committed the act of violence in exercise of such right.

Ghulam Farid v. The State 2009 SCMR 929; Karuppa Pillai v. State 1996 Cri. LJ 3880 and Aramana Joseph alias Pappachan v. State of Kerla 1996 Cri. LJ 2140 ref.

Miss Aaliya Neelum, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Petitioner.

Asjad Javed Ghural, Additional P.-G. for the State.

2012 S C M R 1022

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Jawwad S. Khawaja and Amir Hani Muslim, JJ

MUHAMMAD TANVEER---Appellant

versus

FEDERAL PUBLIC SERVICE COMMISSION and others---Respondents

Civil Appeals Nos. 186 and 187 of 2012, decided on 23rd April, 2012.

(On appeal against the judgment dated 12-12-2011 passed by the Islamabad High Court, Islamabad, in W.P. No.527 of 2011 and F.A.O. No.9 of 2011).

Central Superior Services (CSS) Examination Rules, 2009---

----Rr. 25(ii) & 27---Federal Public Service Commission Ordinance (XLV of 1977), Ss.7(a) & 10---Candidate not selected for any occupational group/service after failing to qualify for the groups/services he had provided as his preferences---Purpose and scope of Rule 25 of CSS Examination Rules, 2009---Contentions of the candidate were that he ought to have been assigned any of the occupational group by the Federal Public Service Commission, as on merit he was placed at No. 130; that on the one hand Rule 25 of CSS Examination Rules, 2009, provided that a candidate was restricted to be considered only for the groups/services which he had indicated in the application form, however, candidates had been given a choice to revise their choice of occupational groups at the time of viva voce, which preference was to be treated as final and no subsequent change was allowed, and on the other hand under Rule 27 of CSS Examination Rules, 2009, Government had the discretion to allocate a candidate any group/service irrespective of the preference of the candidate, and as such Rules 25(ii) and 27, negated each other---Validity---Rule 25 of the of CSS Examination Rules, 2009, debarred a candidate from being considered for any occupational groups/services, for which he had not applied, but the said rule provided a chance to the candidate to revise his choice of occupational groups/services at the time of viva voce, and preferences so revised, were to be considered as final and no subsequent change was allowed---Rule 25 of CSS Examination Rules, 2009, had been framed under S. 7(a) read with S.10 of the Federal Public Service Commission Ordinance, 1977, and clearly provided for encouragement of a candidate on merit---Contention of the candidate that he was placed at No.130 of the merit list and, therefore, must be given any of the occupational groups/services other than the ones he preferred and was found unsuitable for, was misconceived and violative of the language and spirit of Rule 25 of CSS Examination Rules, 2009, purpose of which rule was to regulate the choices of the candidates vis-a-vis their merit and to reflect transparency in the conduct and regulation of the CSS examination---Rule 25 of CSS Examination Rules, 2009, did not provide that a candidate who had passed the examination, must be inducted in any of the occupational groups, once he was found not suitable for the occupational groups that he had preferred---Candidate in the present case, had changed his preference of occupational groups twice after submitting his application for appearing in the CSS examination---If the candidate was allocated any other group, which he had not preferred, that would amount to depriving the other candidates who had opted for such group---Candidate could not be given premium over those candidates who had opted for a particular group and got induction on the basis of merit-cum-choice---Rule 27 of the CSS Examination Rules, 2009, did not negate the spirit of Rule 25 of the said Rules, and powers of the Government in terms of Rule 27 could only be exercised in the public interest and not otherwise---Rule 25 of the CSS Examination Rules, 2009, was in conformity with the provisions of the Federal Public Service Commission Ordinance, 1977, and in no way infringed any of the fundamental rights of the candidate---Appeals were dismissed, in circumstances.

Mian Hamid Farooq, Senior Advocate Supreme Court and Syed Ehtesham Qadir Shah, Advocate Supreme Court for Appellant (in both cases).

Nemo for Respondents Nos.1 and 2.

Dil Muhammad Khan Alizai, D.A.-G., Syed Safdar Hussain, Advocate-on-Record, Pir Muhammad Ishaq, Director FPSC and Mumtaz Hussain Shaukat, Assistant Director for Respondents Nos.3 and 4 (in both cases).

2012 S C M R 1027

[[2010] UKSC 14 = [2010] 3 All ER 1]

Present: Lord Phillips P., Lord Mance, Lord Collins, Lord Kerr and Lord Clarke SCJ

RTS FLEXIBLE SYSTEMS LTD.---Appellant

versus

MOLKEREI ALOIS MULLER GmbH AND CO. KG---Respondent

(a) Contract---

----Existence of contract "subject to signed written agreement"---Scope---Failure to form a formal signed agreement---Effect---Letter of Intent---Expiry of---Contract formed after expiry of Letter of Intent---Scope---Claimant-company (appellant) and defendant-company (respondent) entered into negotiations for a project---Defendant sent a Letter of Intent (LOI) to the claimant on 21st February, 2005, confirming that it intended to move ahead with the project, subject to some specified terms, which included that the full contractual terms would be agreed and signed within four weeks, and that such terms would be based on the Model Form of General Conditions of Contract (MF/1), as amended by the defendant---Claimant sent a letter to the defendant on 1st March, 2005, confirming that it had started performing work on the project, but with a variation to some terms of the Letter of Intent, which variations were agreed to by the defendant---First draft contract was prepared by the defendant on 15th March, 2005, containing clauses based on the MF/1 terms, one of which was a 'subject to contract' clause, i.e. that a contract would only come into existence if a written agreement was entered into by the parties---Letter of Intent expired on 22nd March, 2005, but the parties kept on extending it till 27th May, 2005, so that a full contract could be formed---Parties had agreed with substantial parts of the contract before the expiry of the Letter of Intent---Claimant continued working on the project even after expiry of the Letter of Intent---Parties finally agreed to a contract on 5th July, 2005, but never formally signed it---Parties made some changes to the alleged final contract between them in August, 2005---Subsequently claimant issued invoices to the defendant for the work done, which were paid by the defendant, however because of a dispute between the parties, claimant initiated proceedings against the defendant for recovery of money due under a contract or alternatively to pay damages---High Court held that the parties had concluded a contract that did not incorporate the MF/1 terms, but on appeal the Court of Appeal held that the parties did not enter into any contract after the Letter of Intent contract came to an end---Validity---Main issue, in the present appeal, was whether the parties made a contract after the expiry of the Letter of Intent and, if so, on what terms---Where an agreement was "subject to a contract" the question was whether the parties had nevertheless agreed to enter into contractual relations on particular terms notwithstanding their earlier understanding or agreement; in such a situation it was possible for an agreement "subject to contract" or "subject to written contract" to become legally binding if the parties later agreed to waive that condition as they were in effect making a firm contract by reference to the terms of the earlier agreement, or to put it in another way, the parties were waiving the "subject to [written] contract" term or understanding---In the present case, an essential agreement had been reached between the parties on 5th July, 2005, and none of the issues remaining after that date were regarded by the parties as essential which required agreement before a contract could be binding---Even though the parties had not proceeded with the project on the basis of all the agreed conditions and not all of the schedules had been agreed with, but such failure did not prevent the contract from having a binding effect---Both the parties treated the variations made in August, 2005 as variations to the agreement they had reached on 5th July, 2005---None of the parties suggested in August that there was no contract and thus nothing to vary, and it was not until November, 2005, when the parties were in dispute, that question was raised as to whether there was a contract---Parties had agreed to be bound by the agreed term without the necessity of a formal written contract, and this was so because price of the project had been agreed, significant amount of work had been carried out, agreement had been reached on 5th July, 2005, and the subsequent variation in August, 2005, was reached without any suggestion that the variation was agreed "subject to contract"---In circumstances, clear inference was that the parties had agreed to waive the 'subject to contract' clause, and any other conclusion would make no commercial sense---Applying the standard of a reasonable, honest businessman, he would have concluded that the parties intended that the work be carried out for the agreed price on the agreed terms, as varied in August, 2005, without the necessity for a formal written agreement, which had been overtaken by events---Clauses in the draft contract, which were based on the MF/1 terms, were negotiated in some detail, therefore, said clauses were essentially agreed upon---At no time parties reached agreement on the terms, without the MF/1 terms as amended, which formed an important part of the contract---Parties had agreed to the clauses of the contract on 5th July, 2005, and everything else was also agreed upon except for a provision and items which it was not necessary to complete or which were to be completed in the course of the project---MF/1 conditions had for all intents and purposes been agreed with and there was unequivocal conduct on part of both the parties which led to the conclusion that it was agreed that the project would be carried out by the claimant on the terms agreed by 5th July as varied in August, 2005---Appeal was allowed accordingly and judgment of Court of Appeal was set aside.

Galliard Homes Ltd. v. Jarvis and Sons plc (1999) 71 ConLR 219 and The Law of Real Property (5th Edn. 1984) pp.568-569 ref.

(b) Contract---

----Existence of a binding contract and terms thereof---Scope---Question as to whether there was a binding contract between the parties, and, if so, on what terms depended upon what the parties had agreed---Said question did not depend upon the subjective state of mind of the parties, but upon a consideration of what was communicated between them by words or conduct, and whether that led objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law required as essential for the formation of legally binding relations.

(c) Contract---

----Failure to finalize terms of agreement---Effect---Existence of a binding agreement---Scope---Even if certain terms of economic or other significance to the parties have not been finalized, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be pre-condition to a concluded and legally binding agreement.

Stuart Catchpole QC and Charles Manzoni QC (instructed by Addleshaw Goddard LLP) for Appellant.

Kenneth MacLean QC and Michael Fealy (instructed by Pinsent Masons LLP) for Respondent.

2012 S C M R 1066

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

KHIZAR HAYAT---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.174 of 2003, decided on 23rd April, 2012.

(Against the judgment dated 27-2-2003 passed by the Lahore High Court, Multan Bench, Multan in Criminal Revision No.80 of 2002).

Penal Code (XLV of 1860)---

----Ss. 324/34/337-D--- Attempt to commit qatl-e-amd, common intention, jaifah---Constitution of Pakistan, Art. 12(1)(b)---Criminal Procedure Code (V of 1898), S. 238, Cr.P.C.---Protection against retrospective punishment, conviction for minor offence---Scope---Accused (appellant) had been convicted and sentenced under Ss.324, 34 and 337-D, P.P.C.---Contentions of the accused were that the occurrence had taken place at a time when S.324, P.P.C., only carried a sentence of up to ten years' imprisonment and fine, and that the charge framed against him was in respect of Ss.324 and 34, P.P.C., therefore, he could not have been convicted under S.337-D, P.P.C.---Validity---At the time of the alleged occurrence, an offence under S.324, P.P.C., carried a maximum sentence of ten years' imprisonment and fine, and subsequently said section was amended by which a person committing an offence under S.324, P.P.C. was not only to be punished with a maximum sentence of ten years' imprisonment and fine for his intention to commit qatl-e-amd but he was also to be additionally punished for the injury caused by him with that intention----Occurrence, in the present case, had taken place prior to the said amendment and, therefore, by virtue of Art.12(1)(b) of the Constitution, sentence of the accused could not have been enhanced retrospectively---Section 238, Cr.P.C., allowed the court to convict a person for minor offence rather than for the major offence with which the accused had been charged but, in the present case, provisions of S.337-D, P.P.C. could not have been treated as constituting a minor offence vis-a-vis the offence under S.324, P.P.C., to invoke the provisions of S.238, Cr.P.C.--- Appeal was partially allowed, conviction and sentence of accused recorded under S.337-D, P.P.C., was set aside while those in respect of Ss.324 and 34, P.P.C., were maintained---Order accordingly.

Haq Nawaz v. The State PLD 1958 (W.P.) Baghdad-ul-Jadid 5; Nardeo Singh and others v. The State AIR 1953 All. 726; Muhammad Farooq v. The State PLD 1956 SC 248 and Akhtar Hassan Khan v. The State 1974 SCMR 199 ref.

Sheikh Khizar Hayat, Senior Advocate Supreme Court for Appellant.

Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab for the State.

Jawad Hassan, Additional Advocate-General, Punjab, Tariq Ali Tahir, Additional Advocate-General, Balochistan, Muhammad Aslam Ghumman, Additional Advocate-General, Khyber Pakhtunkhwa and Raja Aleem Abbasi, Deputy Attorney-General on Court Notice.

2012 S C M R 1069

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

SURAYA BEGUM---Petitioner

versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and others---Respondents

Civil Petition No.297 of 2012, decided on 8th May, 2012.

(On appeal from the judgment/order dated 15-2-2012 passed by Lahore High Court, Lahore in Writ Petition No.26937 of 2011).

Penal Code (XLV of 1860)---

----Ss. 365, 181 & 182---Constitution of Pakistan, Art. 185(3)---Kidnapping or abducting with intent secretly and wrongfully to confine person---Lodging of false complaint to settle civil dispute---Effect---Complainant (petitioner) in order to settle her civil dispute with her opponents in respect of a house, moved the machinery of law on a false pretext---False assertion had been made by the complainant (petitioner) before the police while lodging the F.I.R. under S.365, P.P.C., contending therein that her son was in illegal custody---Complainant made fabricated and concocted statements and sworn in false affidavits before the High Court and the Supreme Court---As soon as the complainant's opponents withdrew the execution application filed by them in pursuance of the civil court's decree and handed over the possession of the disputed property to the complainant, she and her husband within one hour produced the alleged abductee before the police, which fact was evident from the record as well as the report submitted by the police---Conduct of the complainant was illegal, which could not be left unnoticed---Police was directed to proceed against the complainant, who prima facie had lodged a false complaint---Case was sent to the High Court for proceedings against the complainant---Order accordingly.

Muhammad Afzal v. The State 2001 SCMR 1615 ref.

M. Siddique Baloch, Advocate Supreme Court with the Petitioner, her husband Abbas and son Almas (alleged abductee) for Petitioner.

Jawwad Hassan, Additional A.-G., Punjab, Capt. (R) Amin Wains, RPO Gujranwala, Ahmed Nasir Aziz Virk, SSP, Imran Saleem, S.H.O. along with Almas, alleged abductee for Respondents.

2012 S C M R 1072

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Ghulam Rabbani, JJ

FARHAD ALI---Petitioner

versus

MUTALIB KHAN and another---Respondents

Criminal P.L.A. No.33-K of 2010, decided on 23rd June, 2010.

(On appeal from order of High Court of Sindh, Karachi dated 2-4-2010 passed in Criminal Revision Application No.42 of 2010).

Criminal Procedure Code (V of 1898)---

----S. 439(2)---Constitution of Pakistan, Art. 185(3)---High Court, as revisional court, while setting aside the order passed by the court below, remanded the case to the Trial Court with direction to decide the same on the material produced by the complainant at the preliminary stage of the complaint---Contention of the accused (petitioner) was that he was one of the nominated accused in the complaint and neither any notice was issued to him before passing of the impugned order nor any opportunity of hearing was provided to him---Validity---In view of S.439(2), Cr.P.C., it was mandatory for the High Court, as revisional court, to have afforded a proper opportunity to the accused, after due notice to him, which admittedly was not done---Petition for leave to appeal was converted into appeal, impugned order passed by the High Court was set aside and the case was remanded to the High Court for fresh disposal in accordance with the law, after affording due opportunity of hearing to all the parties.

Mahmood A. Qureshi, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Nemo for Respondent No.1.

Zafar Ahmed, Additional Prosecutor-General, Sindh for Respondent No.2.

2012 S C M R 1074

[2010 UKPC 3 = 2010 1 ALL ER 988]

Present: Lord Hope, Lord Brown, Lord Mance, Lord Clarke and Sir Jonathan Parker

THERESA HENRY and another---Appellants

versus

CALIXTUS HENRY---Respondent

(a) Estoppel---

----Doctrine of 'proprietary estoppel'--- Essentials--- Reliance on assurance---Scope---Detriment suffered by the claimant---Undivided plot of land in which 'G' and 'M' had half share each --- 'G' promised the claimant (respondent) that on her death she would leave him a share in the plot if he cared for her and worked/cultivated the land---Claimant resided on 'G's' land for more than 30 years and not only worked on the land but also looked after 'G'---Claimant did not pay any rent to 'G'; he reaped the produce of the land and sold any surplus produce, retaining all proceeds thereof---'G' sold her half share in the undivided land to 'T'---Subsequently 'T' and 'M' (appellants) were registered as proprietors of the land---'T' gave notice to the claimant to leave the land---Claimant initiated proceedings against 'T' and 'M' claiming half share in the land, including a claim for proprietary estoppel---Trial Court found that the claimant had not acted to his detriment since he resided in the land for decades without paying any rent; since the land was the main source of his livelihood and he reaped the produce of the land, and since he sold any surplus produce and kept all proceeds from such a sale, therefore his claim of 'proprietary estoppel' should fail---On appeal, Court of Appeal held that equity had arisen in favour of the claimant and he had an overriding interest in the land, which was binding on 'T', therefore, claimant was entitled to a full half share in the land belonging to 'T'---Validity---Existence and extent of any equity arising under the doctrine of 'proprietary estoppel' was dependent on all the circumstances of the particular case, including the nature and quality of any detriment suffered by the claimant in reliance on the defendant's assurances---In the present case, disadvantages/detriment suffered by the claimant by reason of his reliance on 'G's' promises/assurances should have been weighed against any countervailing advantages he had enjoyed by reason of that reliance---Claimant remained on the plot not only for his own benefit and that of his family but for 'G's' benefit too by providing her with food and caring for her---Detriment to the claimant laid in the fact that by relying on 'G's' assurance he effectively deprived himself of the opportunity of a better life elsewhere---Perusal of the evidence conveyed that by relying on 'G's' promise, the claimant had opted for a hard life, in which he had to struggle to make ends meet and to provide for his family, in circumstances where more attractive prospects beckoned elsewhere---Detriment to the claimant was not outweighed by the advantages referred to by the Trial Court, therefore, the requirement of detriment was met---Although reliance and detriment might, in the abstract, be regarded as different concepts, but in applying the principles of proprietary estoppel they were often intertwined , as they were in the present case----Contention of the appellant, 'T', that issue of proprietary estoppel had to be considered afresh in relation to her position as a third party purchaser, did not carry much substance, as the issue did not arise in the present case since the defence of 'T' and 'M' contained no plea to that effect, nor was any such case pursued on their behalf at the trial---Although possibility could not be ruled out that cases might arise in which the particular circumstances surrounding a third party purchase might, notwithstanding, claimant's overriding interest, require the court to reassess the extent of the claimant's equity in the property---Equity had arisen in the claimant's favour under the doctrine of proprietary estoppel in respect of 'T's' half share in the land in circumstances--- Proportionality laid at the heart of the doctrine of proprietary estoppel and permeated its every application for satisfaction of equity--- Appropriate relief to achieve the minimum equity required to do justice to the claimant was to award him one-half of 'T's' undivided half share in the land--- Appeal was allowed, accordingly.

Gillett v. Holt [2000] 2 All ER 289; Jennings v. Rice [2002] EWCA Civ 159 and Hutchison v. Steria Ltd. [2006] EWCA Civ 1551, ref.

(b) Estoppel---

----Doctrine of 'proprietary estoppel'--- Essentials--- Reliance on assurance---Scope---Detriment suffered by the claimant--- Requirement of unconscionability---Scope---Quality of the relevant assurance might influence the issue of reliance---Reliance and detriment were often intertwined, and question as to whether there was a need for a 'mutual understanding' might depend on how the other elements were formulated and understood---Fundamental principle that equity was concerned to prevent unconscionable conduct permeated all the elements of the doctrine.

Gillett v. Holt [2000] 2 All ER 289 ref.

(c) Estoppel---

----Doctrine of 'proprietary estoppel'--- Applicability--- Essentials---Doctrine of proprietary estoppel could apply in a wide variety of factual situations, therefore, wide variation existed in the two main elements of the doctrine, that is the quality of the assurances which gave rise to the claimant's expectations and the extent of the claimant's detrimental reliance on the assurances---Doctrine of proprietary estoppel applied only if said two elements, in combination, made it unconscionable for the person giving the assurances to go back on them.

Jennings v. Rice [2002] EWCA Civ 159 ref.

(d) Estoppel---

----Doctrine of 'proprietary estoppel'---Essentials---Reliance on assurance---Detriment suffered by the claimant---'Reliance' and 'detriment'---Concepts---'Reliance' and 'detriment' were distinct concepts, both of which were relevant and needed to be separately addressed in determining whether an estoppel had been established.

Hutchison v. Steria Ltd. [2006] EWCA Civ 1551 ref.

(e) Estoppel---

----Doctrine of 'proprietary estoppel'--- Essentials--- 'Reliance' and 'detriment'---Relationship---Scope---In the context of the doctrine of proprietary estoppel, just as the inquiry as to reliance fell to be made in the context of the nature and quality of the particular assurances which were said to form the basis of the estoppel, so the inquiry as to detriment fell to be made in the context of the nature and quality of the particular conduct or course of conduct adopted by the claimant in reliance on those assurances---As such in applying the principles of 'proprietary estoppel', the two requirements are often intertwined, notwithstanding the fact that they might in the abstract be regarded as different concepts.

Gillett v. Holt [2000] 2 All ER 289 ref.

Myriam Stacey (instructed by Myers, Fletcher and Gordon) for Appellant.

Cohn Foster of the St. Lucia Bar for Respondent.

2012 S C M R 1093

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

GHULAM NABI and 8 others---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary Defence Production Division, Government of Pakistan, Rawalpindi and others---Respondents

Civil Appeals Nos. 773 to 781 of 2010, decided on 9th May, 2012.

(On appeal from the judgment dated 12-5-2010 passed by the Federal Service Tribunal in Appeals Nos. 761 to 771(R)CS of 2009).

Civil Service---

----Grant of selection grade---Expression "joint seniority list"---Connotation---Appellants were working as machinists in various grades in Pakistan Aeronautical Complex and were ignored when their juniors were granted Selection Grade---Appellants filed appeals before the Federal Services Tribunal with the contention that as per two memos of the Government, inter se seniority of the employees of the Complex had to be determined on "joint seniority basis", i.e. seniority of the employees working in different trades within the Aeronautical Complex had to be considered jointly for the grant of Selection Grade whereas the Organization (respondent) had granted Selection Grade trade-wise---Validity---First memorandum issued by the Government stated that grant of Selection Grade was relatable to "posts" of various kinds in the department/organization, which was the reason why the number of Selection Grades granted in the Aeronautical Complex had been categorized as "post-wise" in the list prepared---Material available on record further indicated that the number of posts which were granted Selection Grades "post-wise" were duly revised periodically since the year 1997---Second memorandum issued by the Government had clarified that even a promotee was eligible for the grant of Selection Grade by stating that "once promotee has been appointed to a post requiring diploma for direct appointment, he is equally entitled to selection grade like diploma holders---Selection Grade was to be given on the basis of joint seniority in a post of and not on qualification---"Joint seniority list" had been issued in accordance with said clarification and machinists working in various units of the Complex had been granted Selection Grades subject to their meeting the threshold provided in the two memorandums---Appellants had confused the expression "joint seniority list" by construing the same to mean that seniority list of employees of a certain grade was to be prepared irrespective of the category of posts, and Selection Grades were to be granted accordingly---Such understanding of the expression was neither the intention of the rule making authority nor it was ever so construed by the concerned department---"Joint seniority list" and the Selection Grade was being given in accordance with the current formula since the year 1996 and it remained unchallenged---Contention of the appellants that there had been miscalculation in the number of posts available for the grant of Selection Grade within a "post" or a "trade", could not be agreed with--- Impugned judgment of the Service Tribunal was unexceptionable, more so when no question of law of public importance within the meaning of Art. 212(3) of the Constitution had been raised---Appeals were dismissed, in circumstances.

Ghulam Sabir, Advocate Supreme Court for Appellants.

Raja Aleem Abbasi, D.A.-G. for Respondents.

2012 S C M R 1101

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

Syed MEHMOOD AKHTAR NAQVI---Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Law and others---Respondents

Constitution Petition No.5 of 2012, decided on 25th May, 2012.

Constitution of Pakistan---

----Preamble, Arts. 63(1)(c), 65 & 184(3)---Pakistan Citizenship Act (II of 1951), Ss. 14 & 14-A---Constitutional petition under Art. 184(3) of the Constitution---Dual nationalities of members of Parliament---Competency of the Supreme Court to examine such matter---Scope---Respondent taking oath as citizen of foreign country and acquiring the citizenship thereof--- Effect--- Suspension of membership of Parliament---Respondent (member of Parliament) had contended that she was a natural born citizen of Pakistan as well as of the foreign country (United States of America) by virtue of the permission granted by the Citizenship Act, 1951 and by the Constitution; that she took oath at the time she was elected as a member of Parliament to be faithful and loyal to Pakistan, and that her dual citizenship had not and would not undermine her loyalty to Pakistan---Validity---Where elected representatives were holding positions in the Parliament and at the same time were enjoying the benefit of dual nationality against the provisions of Art. 63(1)(c) of the Constitution, the Supreme Court which was bound to preserve and defend the Constitution, was empowered and competent to enforce the fundamental rights of the citizens in terms of Art.184(3) of the Constitution---Respondent, after her election as member of Parliament , had taken oath under Art.65 of the Constitution, and at the same time, while acquiring the citizenship of the foreign country, she had also taken the oath of the foreign country of dual nationality---While filing nomination papers before the Election Commission of Pakistan to contest the election and taking oath under the Constitution, applicant had not disclosed that she had already renounced her citizenship of Pakistan and had abjured all allegiance and fidelity to her country of birth, i.e. Pakistan, as per contents of her oath taken at the time of acquiring citizenship of the foreign country---Members of Parliament occupied their positions as chosen representatives of the people of Pakistan and if the chosen representatives had already renounced their citizenship, prima facie under the Constitutional dispensation, they had no right to represent the citizens and decide the issues of national importance, therefore, it would be in the interest of the country/nation as well as for enforcement of the Constitution, that applicant's membership of the Parliament was suspended---Supreme Court directed that respondent would neither be attending the sessions of the Parliament or any committee nor she would be participating in the affairs of making policies for the country/nation, till the final decision of the case---Order accordingly.

Petitioner in person.

Irfan Qadir, Attorney-General for Pakistan and Dil Muhammad Khan Alizai, D.A.-G. for Respondents Nos. 1, 2, 4, 6, 8 and 10 on Court Notice.

Qasim Mir Jat, Additional A.-G. Sindh for Respondent No.3.

Jawwad Hassan, Additional A.-G. Punjab for Respondent No.5.

Azam Khattak, Additional A.-G. Balochistan for Respondent No.7.

Syed Arshad Hussain, Additional A.-G. KPK for Respondent No.9.

Ch. Akhtar Ali, Advocate-on-Record for Ms. Farah Naz Asfahani.

M. Azhar Chaudhry, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Rehman A. Malik.

Mian Abdul Rauf, Advocate Supreme Court for Zahid Iqbal, MNA.

Nemo for Ch. Iftikhar Nazir, MNA.

2012 S C M R 1106

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

DILSHAD BEGUM---Appellant

versus

Mst. NISAR AKHTAR---Respondent

Civial Appeal No.1506 of 2006, decided on 25th April, 2012.

(On appeal from the judgment dated 7-8-2006 passed by Peshawar High Court, Peshawar in Civil Revision No.510 of 2000).

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Suit for pre-emption--- Performance of Talb-i-Muwathibat--- Proof through attorney---Scope---Non-appearance of pre-emptor making Talb-i-Muwathibat without any valid reason---Presumption that appearance of pre-emptor would be unfavourable evidence---Scope---Contentions of the defendant (appellant) were that Talb-e-Muwathibat had not been proved in accordance with the law as the pre-emptor (plaintiff) did not appear personally nor any reason was given for her non-appearance; that Talb-e-Muwathibat was personal to the pre-emptor and could not have been proved through special attorney as the veracity of said Talb could only be examined if the pre-emptor herself had appeared---Validity---Pre-emptor did not appear herself and elected to be represented through her attorney, but neither the attorney nor any witness gave any reason for non-appearance of the pre-emptor---Attorney had stated in his examination-in-chief that the pre-emptor was his sister-in-law and resided with him but he gave no reason as to why she did not appear herself---Special power of attorney in favour of the attorney indicated that he was not even authorized as a witness on pre-emptor's behalf with regard to the performance of Talb-e-Muwathibat---Pre-emptor could be represented through an attorney but there had to be valid reasons for non-appearance, which reasons were lacking in the present case---High Court decreed the pre-emption suit in favour of the pre-emptor on the ground that she could not "afford and endure the agonies of appearing as a witness in civil matters"---Validity---Pre-emptor gave power of attorney in the premises of the Tehsil court, and if she could appear there, question was what prevented her from appearing before the Trial Court or having herself examined through a commission---Best evidence with regard to performance of Talb-e-Muwathibat was the person who had made such a Talb but, in the present case, such piece of evidence was withheld and not produced, because of which Art.129(g) of the Qanun-e-Shahadat, 1984, was applicable to the case--- High Court, in reversing the concurrent judgments of the courts below, had not read material pieces of evidence---Appeal was allowed, impugned judgment of the High Court was set aside and judgment of the Trial Court dismissing pre-emption suit was restored.

Muhammad Younis v. Mst. Mehr Afzoon PLD 2002 Pesh. 109 ref.

Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957; Hassan Bano v. Wali-ur-Rehman 2007 SCMR 1344; Abdullah Khan v. Nisar Muhammad Khan and others PLD 1959 (W.P.) Pesh. 81 and Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 14---Suit for pre-emption---Demand by agent---Performance of Talb-i-Muwathibat---Scope---Section 14 of Khyber Pakhtunkhwa Pre-emption Act, 1987, could only be availed if the pre-emptor was unable to make demands and had valid reasons for non-appearance---Reasons included minority, sickness or any disability, but such reason had to be pleaded in terms of the said section.

Muhammad Saleem Khan, Advocate Supreme Court for Appellant.

Shakeel Ahmed, Advocate Supreme Court for Respondent.

2012 S C M R 1112

[[2010] UKSC 44 = [2010] 4 All ER 1011]

Present: Lord Phillips P., Lord Rodger, Lord Walker, Lord Brown, Lord Mance, Lord Clarke and Sir John Dyson SCJJ

OCEANBULK SHIPPING AND TRADING SA---Appellant

versus

TMT ASIA LTD. and others---Respondents

Per Lord Clarke; Lord Roger, Lord Walker, Lord Brown, Lord Mance and Sir John Dyson agreeing.

(a) Interpretation of Agreement---

----'Without prejudice' rule--- Scope--- Exceptions--- Negotiations expressed to be 'without prejudice' to compromise dispute resulting in a settlement agreement--- Evidentiary value--- Dispute over interpretation/construction of terms of the settlement agreement---Facts/representations made during without prejudice negotiations admissible as evidence to aid interpretation/construction of the settlement agreement notwithstanding the without prejudice rule---Scope---Parties had entered into negotiations which were expressed to be 'without prejudice' to settle a dispute between them and subsequently entered into a written settlement agreement to compromise the dispute---Disagreement between the parties over the interpretation of the terms of the settlement agreement---Contention of the defendant (appellant) was that representations made during the 'without prejudice' negotiations could be relied upon as an aid to interpreting the settlement agreement between the parties---Validity---Evidence in support of representations made during 'without prejudice' negotiations was in principle admissible as part of the factual matrix or surrounding circumstances on the true construction of the settlement agreement---No reason existed, in circumstances, why the ordinary principles governing the interpretation of a settlement agreement should be any different regardless of whether the negotiations which led to it were without prejudice---Process of interpretation of the settlement agreement should in principle be the same, whether the negotiations were 'without prejudice' or not, as in both the cases the evidence is admitted in order to enable the court to make an objective assessment of the parties' intentions---Where a party to negotiations knew that, in the event of a dispute pertaining to what a settlement agreement meant, objective facts which emerged during the negotiations would be admitted in order to assist the court to interpret the said settlement agreement in accordance with the parties' true intentions; settlement was likely to be encouraged and not discouraged---Such an approach was the only way in which the modern principles of construction of contracts could be properly respected---Interpretation exception should be recognized as an exception to the 'without prejudice' rule but same did not mean that the importance of the said rule was to be underplayed or the exception was to be extended beyond the evidence which was admissible in order to explain the factual matrix or surrounding circumstances to the court---Appeal was allowed, accordingly.

[2001] 1 All ER 783 at 791-793; [2000] 1 WLR 2436 at 2444-2446; Underwood v. Cox (1912) 4 DLR 66; Hodgkinson and Corby Ltd. v. Wards Mobility Services Ltd. [1997] FSR 178 at 19; Forster v. Friedland [1992] CA Transcript 1052; Walker v. Wilsher (1889) 23 QBD 335 at 338; [1984] 1 All ER 597 at 613; Pearlman v. National Life Assurance Co. of Canada (1917) 39 QLR 141; Butler v. Countrywide Finance Ltd. (1992) 5 PRNZ 447 and Ofulue's case [2009] 3 All ER 93 at [57], [2009] AC 990 ref.

(b) Agreement---

----'Without prejudice' rule--- Exceptions to the rule enumerated.

[2001] 1 All ER 783 at 791-793; [2000] 1 WLR 2436 at 2444-2446; Underwood v. Cox (1912) 4 DLR 66; Hodgkinson and Corby Ltd. v. Wards Mobility Services Ltd. [1997] FSR 178 at 19; Forster v. Friedland [1992] CA Transcript 1052; Walker v. Wilsher (1889) 23 QBD 335 at 338; [1984] 1 All ER 597 at 613; Pearlman v. National Life Assurance Co. of Canada (1917) 39 QLR 141 and Butler v. Countrywide Finance Ltd. (1992) 5 PRNZ 447 ref.

Per Lord Phillip; agreeing with Lord Clarke

(c) Interpretation of Contract---

----'Without prejudice' rule--- Exceptions--- Without prejudice negotiations resulting in a contract--- Dispute over meaning of contract---Facts conveyed during without prejudice negotiations admissible as evidence---Scope---When construing a contract between two parties, evidence of facts within their common knowledge was admissible where those facts had a bearing on the meaning that was to be given to the words of the contract, and it was so even where the knowledge of those facts was conveyed by one party to the other in the course of negotiations that were conducted 'without prejudice'---Such a principle applied both in the case of a contract that resulted from the without prejudice negotiations and in the case of any other subsequent contract concluded between the same parties---Appeal was allowed, accordingly.

Alistair Schaff QC and James Willan (instructed by Berwin Leighton Paisner LLP) for Appellant.

Jonathan Crow QC and James Leabeater (instructed by Ince and Co.) for Respondent.

2012 S C M R 1133

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Amir Hani Muslim, JJ

NAVEED AHMED---Appellant

versus

FEDERATION OF PAKISTAN---Respondent

Civil Appeal No.459 of 2006, decided on 30th April, 2012.

(Against the judgment dated 10-5-2004 passed by Federal Service Tribunal, Karachi in Appeal No.824(K) of 1999).

Civil Servants Act (LXXI of 1973)---

----S. 8(2) & (3)---Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990, R. 7(4)---Civil Servants (Seniority) Rules, 1993, R. 2---Constitution of Pakistan, Art. 212---Change in service group---Request for ante-dated seniority---Appellant (civil servant) was inducted in the Foreign Service Group in BS-19 in the year 1992, whereafter he filed an application requesting change of his service group to District Management Group, which request was acceded to and he was allocated to the District Management Group with the batch of 1994---Appellant requested relevant authorities to fix his seniority along with his batch-mates appointed in the year 1992, which request was turned down by the authorities and the Service Tribunal---Contentions of the appellant were that the Government had the power to grant ante-dated seniority as per S.23 of the Civil Servants Act, 1973; that he had been unfairly discriminated against as other officers who were similarly placed were granted seniority with their original batch-mates upon change of their group; that Rule 7(4) of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990, would not stand in the way of the appellant as said rule only related to inter se seniority between the same batch whereas the appellant was claiming seniority along with his original batch-mates of the year 1992---Validity---Laws/rules concerning seniority, which included Ss. 8(2) and 8(3) of the Civil Servants Act, 1973, Rule 7(4) of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 and Rule 2 of Civil Servants (Seniority) Rules, 1993, did not cater for ante-dated seniority---Seniority of civil servants inter se regarding their batch-mates would depend upon the results of their performance in the Civil Services Academy---Induction of the appellant in the District Management Group, was allowed vide letter of the relevant authorities, which letter specified the terms and conditions of his appointment, including as to how his seniority would be governed--- Appellant had accepted the said terms and conditions and he could not later request ante-dated seniority along with his batch-mates of the year 1992---Batch-mates of the appellant who were given ante-dated seniority on change of their groups , related to a period of time before the year 1990 when the Civil Servants (Seniority) Rules, 1993, were not in existence, therefore, appellant could not take benefit of the same---Grant of ante-dated seniority to the appellant would have upset the entire service structure of the District Management Group for the year 1995, which in circumstances of the case was not justifiable at all---Appeal was dismissed, in circumstances.

M.M. Aqil Awan, Senior Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellant.

Ashiq Raza, D.A.-G. and A.S.K. Ghori, Advocate-on-Record for Respondents Nos. 1 to 2.

Respondent No.12 in person.

Nemo for Respondents Nos. 3 to 11, 13 and 14.

2012 S C M R 1137

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

EHSAN ULLAH---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.358-L of 2012, decided on 23rd May, 2012.

(Against the order dated 6-3-2011 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.466-B of 2012).

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

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/427/109/ 148/149---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, attempt to qatl-e-amd, mischief causing damage, abetment and rioting---Bail, grant of---Version of State and complainant---Distinction---Further inquiry---Accused was nominated in F.I.R. but no specific injury to any person had been attributed to him and only generalized and collective allegation was levelled against him---Investigating agency had reached at definite conclusion that accused was not even present at the scene of crime at relevant time and had provided behind-the-scene abetment to his co-accused for commission of alleged offence---Accused had been recommended for trial only in respect of an offence under S.109, P.P.C.---Prosecution itself had two versions vis-a-vis the accused, first was of complainant party according to which accused was present at the spot and had resorted to firing and second of investigating agency according to which accused was not present at the spot and he was abetting his co-accused behind the scene---Such considerations render the case against accused one of further inquiry into his guilt---Bail was allowed.

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

----S. 497(2)---Bail---Abscondence---Further inquiry---In a case calling for further inquiry into the guilt of accused, bail is to be allowed to him as of right and not by way of grace or concession---Mere abscondence of accused person may not be sufficient to refuse bail to him.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Ibrahim v. Hayat Gul and others 1985 SCMR 382 and Qamar alias Mitho v. The State and others PLD 2012 SC 222 rel.

C.M. Latif, Advocate-on-Record and Ch. Abdul Ghaffar, Advocate Supreme Court for Petitioner.

Ms. Tabinda Islam, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for the Complainant.

Asjad Javaid Ghural, Additional Prosecutor-General, Punjab for the State.

2012 S C M R 1140

[Supreme Court of India]

Present: Asok Kumar Ganguly and Swatanter Kumar, JJ

SPECIAL LAND ACQUISITION OFFICER and another---Appellants

versus

M.K. RAFIQ SAHEB---Respondent

Civil Appeal No.1086 of 2006, decided on 5th July, 2011.

(a) Land Acquisition Act (I of 1894)---

----Ss. 23 & 18---Determination of compensation---Land Acquisition Officer (Appellant) assailed orders of the High Court whereby in the appeal filed by the respondents, the compensation for the respondents was enhanced---Land Acquisition Officer contended that land was agricultural land and no conversion charges were to be paid to convert the same into non-agricultural land---Validity---Land ceased to be agricultural land and was capable of being used as a residential or industrial site as was determined concurrently by the courts below---Land Acquisition Officer did not challenge said finding of Reference Court in appeal, and therefore, could not question the same---Land was situated adjacent to residential locality and was in the midst of a highly developed industrial locality and was capable of being used for non-agricultural purposes and should, therefore, be considered as non-agricultural land in determination of compensation---Appeal was dismissed.

Anjani Molu Dessai v. State of Goa and another (2010) 13 SCC 710 rel.

(b) Land Acquisition Act (I of 1894)---

----S. 23---Determination of compensation of large pieces of land on basis of comparison with sale deeds of smaller pieces of land---Principles---Certain circumstances could be there when sale deeds of small pieces of land could be used to determine the value of the acquired land which was comparatively large in area---Sale instances of large tracks of land were far and few; and said limitation of sale transactions of large tracks of land could not operate to the disadvantage of the claimants---Courts should look into sale instances of smaller pieces of land while applying the reasonable elements of deduction---Proposition that rate fixed for small plots of land could not be the basis for fixation of the rate of compensation could not be laid down as an absolute proposition---Where there was no other material, it may in appropriate cases, be open to the court to make comparison of the prices paid for small plots; and necessary deductions/adjustments had to be made while determining such compensation.

Land Acquisition Officer, Kammarapally Village, Nizamabad District, Andhra Pradesh v. Nookala Rajamallu and others 2003 AIR SCW 6674; Bhagwathula Samanna and others v. Special Tahsildar and Land Acquisition Officer 1992 AIR SCW 2791; Land Acquisition Officer, Revenue Divisional Officer, Chittoor v. Smt. L. Kamalamma (dead) through L.Rs. and others AIR 1998 SCW 497) and Smt. Basavva and others v. Special Land Acquisition Officer and others AIR 1996 SCW 1854 rel.

P.P. Malhotra, ASG, Ms. Vimla Sinha, Ms. Sunita Sharma and Mrs. Anil Katiyar for Appellants.

Ms. Kiran Suri and Vijay Verma for Respondents.

2012 S C M R 1147

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Khilji Arif Hussain and Tariq Parvez, JJ

PRESS CLIPPING PUBLISHED IN DAILY EXPRESS DATED 14-11-2009 REGARDING ISSUANCE OF CNIC TO HINDU MARRIED LADIES: In the matter of

Suo Motu Case No.22 of 2009, decided on 23rd April, 2012.

National Database and Registration Authority (Application for National Identity Card) Regulation, 2002---

----Preamble---Constitution of Pakistan, Art. 184(3)---Suo motu notice by the Supreme Court under Art. 184(3) of the Constitution on the basis of an article published in a newspaper narrating the difficulties faced by womenfolk of the Hindu community of Pakistan in getting Computerized National Identity Cards (CNIC) from National Database and Registration Authority (NADRA)---Submission of affidavit as proof of her marriage by the woman---Scope---Applicant, a Hindu lady, had applied for obtaining a passport, but she could not get the same, as she was not in possession of a Computerized National Identity Card, which card had not been issued by NADRA because there was no documentary evidence to establish her tie of marriage with her husband--- Police official of the district from which the applicant belonged had stated that present situation had arisen because of a lacuna in the policy issued by NADRA, but with his intervention NADRA authorities had agreed to issue Computerized National Identity Card to the applicant, subject to her furnishing an affidavit---NADRA official had stated that a Regulation was being framed to ensure that the fundamental rights of the Hindu community were fully protected, for which a Board meeting had been called, but in the meantime standing instructions had been issued to ensure that the members of the Hindu community faced no difficulty in getting Computerized National Identity Cards---Chairman NADRA was directed to submit his report in the matter to the Supreme Court and the Regulation so issued was to be made public in the electronic and print media so that members of the Hindu community might acquire knowledge about the facility being extended to them for getting Computerized National Identity Cards---Order accordingly.

Jawwad Hassan, Additional A.-G., Punjab and Mujahid Khan, Dy. Dir (Leg) NADRA in Attendance.

2012 S C M R 1151

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Tariq Parvez, JJ

Messrs OCEAN PAKISTAN LTD.---Petitioner

versus

FEDERAL BOARD OF REVENUE, ISLAMABAD and others---Respondents

Civil Petition No.773 of 2012, decided on 25th May, 2012.

(On appeal from the judgment/order dated 16-4-2012 passed by Islamabad High Court Islamabad in W.P. No.2959 of 2011).

Income Tax Ordinance (XLIX of 2001)---

----Ss. 120, 122(5A) & (9)---Constitution of Pakistan, Art. 185(3)---Sale of working interest by Oil Exploring Company---Issuance of show-cause notice by Authority proposing to re-open finalized assessment of petitioner for not having offered itself for tax liability on gain earned from such sale---Dismissal of constitutional petition by High Court---Validity---Petitioner had submitted reply to impugned notice raising therein all objections raised in constitutional petition---Findings on any such objections, if given by Supreme Court, would prejudice petitioner's case before Income Tax hierarchy---Authority would yet decide whether such sale fell outside domain of agreement and applicable law---Petitioner could raise all possible factual and legal objections before competent authority, which had sought its explanation by issuing impugned notice---Supreme Court declined to grant leave to appeal in circumstances.

Al Ahram Builders v. Income Tax Appellate Tribunal 1993 SCMR 29; Deputy Commissioner of Income Tax/Wealth Tax v. Punjab Beverage Co. Pvt. Ltd. 2007 PTD 1347; Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 SCMR 1279; Commissioner of Income Tax v. Hamdard Dawakhana (Waqf) PLD 1992 SC 847; Edulji Dinshaw Ltd. v. Income-tax Officer PLD 1990 SC 399 and Commissioner of Income Tax v. Shaw Wallace and Co. AIR 1932 Privy Council 138 ref.

M. Akram Sheikh, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

M. Bilal, Senior Advocate Supreme Court and Baber Bilal, Advocate Supreme Court for Respondent No.2.

Nemo for Respondents Nos. 1 and 3.

2012 S C M R 1156

[Supreme Court of India]

Present: P. Sathasivam and Dr. B.S. Chauhan, JJ

RAMACHANDRAN and others---Appellants

versus

STATE OF KERALA---Respondent

Criminal Appeal No.162 of 2006, decided on 2nd September, 2011.

(a) Penal Code (XLV of 1860)---

----S. 149--- Unlawful assembly--- Expression "common object"---Scope---Common object formed on the spur of the moment---Scope---For "common object", it was not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object might form on spur of the moment, and it was enough if it was adopted by all the members and was shared by all of them.

Bhanwar Singh and others v. State of M.P. AIR 2009 SC 768 ref.

(b) Penal Code (XLV of 1860)---

----S. 149---Unlawful assembly---Offence not committed in the direct prosecution of common object---Effect---Expression "know"---Scope---Even if the offence committed was not in direct prosecution of the common object of the assembly, it might still fall under S.149 of the Penal Code, if it could be held that the offence was such as the members knew was likely to be committed---Expression 'know' did not mean a mere possibility, such as might or might not happen.

(c) Penal Code (XLV of 1860)---

----S. 149--- Unlawful assembly--- Scope--- "Common object" established---Effect---Once it was established that the unlawful assembly had common object, it was not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act---For incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rested upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object.

Daya Kishan v. State of Haryana AIR 2010 SC 2147; Sikandar Singh v. State of Bihar AIR 2010 SC 3580 and Debashis Daw v. State of W.B. AIR 2010 SC 3633 ref.

(d) Penal Code (XLV of 1860)---

----Ss. 141 & 149---Unlawful assembly---Determination---Scope---Passive association or presence in an unlawful assembly---Effect---Crucial question for determination was whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects specified by S.141 of the Penal Code---While determining said question, it was relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly---Mere presence or association with other members of the unlawful assembly alone was not per se sufficient to hold every one of them criminally liable for the offences committed by the others unless there was sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act.

Masalti v. State of Uttar Pradesh AIR 1965 SC 202 and K.M. Ravi and others v. State of Karnataka (2009) 16 SCC 337 ref.

(e) Penal Code (XLV of 1860)---

----S. 149---Unlawful assembly---Determination---Scope---Expression "common object"---Connotation---Formation of "common object"---Scope--- Expression 'in prosecution of common object'---Interpretation---Crucial question to determine was whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in S.141 of the Penal Code---Word 'object' meant the purpose or design and in order to make it 'common', it must be shared by all i.e., the object should be common to the persons, who composed the assembly and they should all be aware of it and concur in it---Common object might be formed by express agreement after mutual consultation, but that was by no means necessary and it might be formed at any stage by all or a few members of the assembly and the other members might just join and adopt it---Once common object was formed, it did not have to continue to be the same and might be modified or altered or abandoned at any stage---Expression 'in prosecution of common object' appearing in S.149 of the Penal Code had to be strictly construed as equivalent to 'in order to attain the common object'---Same must be immediately connected with the common object by virtue of the nature of the object, and there must be community of object and the object might exist only up to a particular stage, and not thereafter.

Charan Singh v. State of U.P. AIR 2004 SC 2828 ref.

(f) Penal Code (XLV of 1860)---

----S. 149---Unlawful assembly---Reappraisal of evidence---Seventeen members (accused) forming part of unlawful assembly---Incident ending within a short span of time---Contention that in such circumstances it was not possible for witnesses to give detailed description as had been given in the present case, and that there were several contradictions in the witness statements---Validity---Minor contradictions, in circumstances, were to be ignored for the reason that it was natural that exact version of the incident revealing minute details i.e. meticulous exactitude of individual acts, could not be expected from the eye-witnesses---Appeal was disposed of, accordingly.

Abdul Sayeed v. State of Madhya Pradesh AIR 2010 SCW 5701 ref.

C.N. Sree Kumar for Appellants.

M.T. George for Respondent.

2012 S C M R 1172

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

ABDUL MAJEED and another---Petitioners

versus

SHAUKAT ALI and others---Respondents

Civil Petitions Nos. 840-L to 842-L, 944-L and 966-L of 2009, decided on 28th May, 2012.

(On appeal from the judgment dated 27-4-2009 passed by Lahore High Court, Lahore in Writ Petitions Nos. 11114 of 2006, 13365 of 2006, Civil Revision No.185 of 2007 and Writ Petition No.3709 of 2007).

Specific Relief Act (I of 1877)---

----S. 12 & 35--- Civil Procedure Code (V of 1908) S. 12(2)---Constitution of Pakistan, Art. 185(3)---Suit for specific performance of agreement to sell immovable property was decreed in terms of a compromise whereafter the plaintiff deposited the decretal amount in court---Lis pendens, principle of---Applicability---Subsequently, on application under S.12(2) of the C.P.C. by the wife of the judgment-debtor; the Trial Court suspended the decree---Plaintiff on the suspension of the decree; withdrew the decretal amount with the permission of the Trial Court as well as the permission of the judgment-debtor---Application of judgment-debtor's wife under S.12(2), C.P.C. and for interim relief was ultimately dismissed by the High Court after which the plaintiff filed an application for re-deposit of decretal amount which was allowed and the decree was executed whereby mutation of the suit land was sanctioned in favour of the plaintiff---Contention of the defendant was that he was a bona fide purchaser of the suit land and had purchased the same from the wife of the judgment-debtor and that the plaintiff's non-deposit of the decretal amount immediately after the dismissal of the judgment debtor's application under S.12(2), C.P.C. was a contumacious act and had to be visited with dismissal of the suit for specific performance---Validity---Decretal amount was withdrawn with the permission of the court and with the consent of the judgment-debtor on account of the interim order granted against judgment and decree in the application under S.12(2) of the C.P.C. by the wife of the judgment debtor; after which, without any unreasonable delay, the said amount was re-deposited and had been withdrawn by the judgment-debtor after execution of judgment and decree--- Contention of the defendant that he was a bona fide purchaser was of no avail as he admitted that the transaction in question was dated when the suit was pending and the said transaction was, therefore, hit by the principle of lis pendens---Petition for leave to appeal was dismissed, in circumstances.

Shabbir Ahmed and others v. Zahoor Bibi and others PLD 2004 SC 790 and Muhammad Ashraf Butt v. Muhammad Asif Bhatti PLD 2011 SC 905 rel. and quoted.

Ch. Mushtaq Masood, Advocate Supreme Court for Petitioners (in C.Ps. 840-L to 842-L and 944-L of 2009).

M. A. Qureshi, Advocate Supreme Court/Advocate-on-Record for Petitioners (in C.P. 966-L of 2009).

Mian Ghulam Hussain, Advocate Supreme Court/Advocate-on-Record for Respondents (in all cases).

2012 S C M R 1179

[Supreme Court of India]

Present: Dr. Mukundakam Sharma and Anil R. Dave, JJ

SPECIAL LAND ACQUISITION OFFICER---Appellant

versus

MAHARANI BISWAL and others---Respondents

Civil Appeal No.2672 of 2004, decided on 24th August, 2011.

Land Acquisition Act (I of 1894)---

----Ss. 23, 18, 4 & 54--- Determination of compensation--- Land Acquisition Officer (Appellant) assailed orders of the High Court whereby in the appeal filed by the respondents, the compensation for the respondents was enhanced from Rupees 10,000 per acre (as determined by the Reference Court) to Rupees 75,000 per acre---Contention of the Land Acquisition Officer was that the High Court did not appreciate the evidence on record and based its findings on sale deeds of small pieces of land which were sold in the area, which did not reflect the correct market value---Validity---Notification under S.4 of the Act was issued in on 18-2-1987 and therefore the market vale existing near about the said date was to be determined and assessed---High Court had failed to indicate as to how the findings of the Reference Court were unreasonable and enhanced compensation without any appreciation of record and without considering the findings of the Reference Court---High Court was to have given reasons for its disagreement with the findings of the Reference Court which, in the present case, was not done and instead it arrived at an abrupt decision of raising the compensation to Rupees 75,000 per acre---Findings of fact arrived by the Reference Court could not have been interfered with by the High Court on surmises and conjectures---High Court had proceeded on the wrong notion that sale deeds of small pieces of land could be the determining factor for compensation as said sale deeds were of land which was not even equivalent to one decimal of the land acquired; and the same tantamount to misreading of evidence on record and misinterpretation of legal propositions---Supreme Court set aside impugned order of High Court and remanded the case to the High Court for decision afresh on the appeal with the direction to give proper findings based on the appreciation of both oral and documentary evidence---Appeal was allowed, accordingly.

Navanath and others v. State of Maharashtra AIR 2009 SC (Supp) 1540 rel.

Suresh Chandra Tripathy for Appellant.

Janaranjan Das, Swetaketu Mishra and P.P. Nayak for Respondents.

2012 S C M R 1185

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Gulzar Ahmed, JJ

MUHAMMAD YOUSAF alias YOUSAF ALI through L.Rs. and others---Petitioners

Versus

TALIB HUSSAIN and others---Respondents

Civil Petition No.1454-L of 2008, decided on 30th May, 2012.

(On appeal from the judgment dated 16-6-2008, passed by the Lahore High Court, Lahore in Civil Revision No.253 of 2002).

Punjab Pre-emption Act (I of 1913)---

----Preamble---Islamic Law---Suit for pre-emption filed on 5-12-1978; covered by the Punjab Pre-emption Act, 1913---Succession of the right of pre-emption during pendency of the pre-emption suit to the legal heirs of the deceased pre-emptor---Validity---In absence of codified law on the subject, the principles of Islamic Law would govern the case; which did not provide the pre-emption right to be inheritable---Legal heirs would have no right to continue with the pre-emption suit on the death of the pre-emptor during the pendency of the pre-emption suit.

Allah Dad and another v. Hukam Dad and others PLD 1960 (W.P.) Lah. 900; Khuda Yar through Legal Heirs and 10 others v. Ghulam Muhammad and another 1999 SCMR 1808; Nazir Hussain and others v. Mushtaq Ahmad (deceased) through Legal Heirs and others PLD 2010 SC 1048; Muhammad Ishaq v. Muhammad Sadiq 2007 SCMR 1478 and Azizur Rehman and others v. Muhammad Nawaz PLD 1988 SC 384 ref.

Muhammad Younas v. Khushal 1989 SCMR 69 and Malik Ghulam Nabi and others v. Member III, Board of Revenue and 5 others PLD 1990 SC 1043 rel.

S.M. Masud, Advocate Supreme Court for Petitioners.

Sh. Naveed Shahryar, Advocate Supreme Court for Respondents.

Date of hearing: 30th May, 2012.

2012 S C M R 1195

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

GHULAM ABBAS---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.831-L of 2010, decided on 23rd May, 2012.

(On appeal from the judgment dated 17-6-2010 in Criminal Appeal No.677 of 2004, Murder Reference No.706 of 2004 passed by the Lahore High Court, Multan Bench).

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Re-appraisal of evidence---Grave and sudden provocation---Verbal abuses and threat--- Scope--- Accused had murdered (son of the complainant) in court premises---Alleged motive behind the incident was that one of the complainant's son had allegedly murdered the real brother of the accused---Trial Court convicted the accused under S.302(b), P.P.C., and sentenced him to death---Contentions of the accused were that the deceased abused him by threatening to commit zina with his sister, therefore, he committed the murder due to sudden and grave provocation, and that carrying a weapon was a routine matter for the people of the area from which he belonged---Validity---Place of incident and firing at the deceased by the accused had been admitted by both the parties---Presence of both eye-witnesses at the spot was natural as on the day of the incident they were attending court for the trial of one of complainant's son---Both the prosecution witnesses had made consistent statements regarding the incident---Accused was arrested from the spot duly armed---F.I.R. was recorded immediately after the occurrence and the postmortem was also conducted without any delay---Even if it was assumed that the deceased had abused the accused, then the latter should have fired immediately out of grave and sudden provocation but according to the ocular account as well as medical evidence, all the injuries sustained by the deceased were on the back side of his chest---Case of the accused was not that the deceased abused him and started running, whereafter the accused fired at him---Statement of the accused regarding grave and sudden provocation, in circumstances, was an afterthought and it was not the stance he had taken at the time of his arrest---Plea of grave and sudden provocation was not borne out from the record---Accused neither appeared as his own witness under S.340(2), Cr.P.C., to prove his plea nor produced any witness in support of it---Accused had been captured and arrested by two police constables, who were present at the spot, but said constables were not cross-examined on the issue of plea of grave and sudden provocation---Admittedly the accused brought an unlicensed weapon with him and fired five to six shots on the back of the deceased's chest in the court premises, therefore, it had been rightly held by the courts below that the accused had come prepared at the place of incident to commit the murder of the deceased---Accused had acted in brutal manner while firing at the deceased and was apprehended at the spot with the weapon of offence---Courts below, in circumstances, had rightly rejected the plea of the accused regarding grave and sudden provocation, and committed no illegality or irregularity in sentencing him to death---Petition for leave to appeal was dismissed, in circumstances.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Re-appraisal of evidence---Plea of grave and sudden provocation---Verbal abuses and threats---Scope---Mere verbal abuses and threats were never to be accepted as sufficient for accepting a plea of grave and sudden provocation.

(c) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Re-appraisal of evidence---Plea of grave and sudden provocation---Burden of proof---Scope---Burden of proving the existence of circumstances bringing the case within the ambit of grave and sudden provocation laid upon the accused---Plea of grave and sudden provocation had to be taken into account in toto and not in piecemeal while deciding the case.

(d) Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Re-appraisal of evidence---Benefit of doubt---Principle---Where there was any doubt in the prosecution case, benefit of the same would go to the accused and not to the prosecution.

(e) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Sentence---Imposition of death penalty---Scope---Circumstances under which penalty of death must be imposed and lesser punishment of life imprisonment should not be awarded---Such factors included the manner and method of the incident, which were clearly suggestive of the fact that the deceased was done to death in a brutal manner---Courts also had to consider the heinousness of the act committed by the accused and to proceed very carefully and cautiously while exercising the discretion to withhold the death penalty and should not ignore the circumstances and cause of occurrence.

Sh. Khizar Hayat, Advocate Supreme Court and Imtiaz A. Shoukat, Advocate-on-Record for Petitioner.

Asjad Javed Ghural, Additional P.-G. for the State.

Date of hearing: 23rd May, 2012.

2012 S C M R 1201

[Supreme Court of India]

Present: R.V. Raveendran and Markandey Katju, JJ

KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY and another---Appellants

Versus

GOBINDA CHANDRA MAKAL and another---Respondents

Civil Appeals No.5938 with 6024, 6025 of 2007 and C.As. Nos.1931, 1932, 1933 of 2008, decided on 2nd September, 2011.

Land Acquisition Act (I of 1894)---

----Ss. 23 & 4---Determination of compensation---"Date of publication of notification", connotation---Appellant Development Authority assailed orders of the High Court whereby the compensation determined by the Reference Court for land acquired by the Development Authority, was upheld---Validity---Reference Court after considering the facts found that one third value of the small developed plot should be deducted towards development cost to arrive at the value of the acquired land, and the High Court did not interfere with said findings and therefore, no reason could be found to alter said percentage of deduction---Land Acquisition Officer, if in anticipation of acquisition had made any payment to a landowner; they would be entitled to credit therefor with interest from the date of payment to the date of publication of preliminary notification under S.4 of the Act---Rise in market value after publication of notification under S.4(1) of the Act should not be taken into account for the purpose of determination of compensation---­Words "date of publication of notification" used in S.23(1) "would refer to the date of publication of notification in the Gazette and was different to the context in which the said words were used in S.4(1) of the Act---Appeal was allowed partly and compensation was reduced in view of the findings recorded by the Supreme Court.

ONGC Ltd. v. Rameshbhai Jivanbhai Patel (AIR 2008 SC (Supp) 465: 2008 AIR SCW 5947); Administrator General of West Bengal v. Collector, Varanasi AIR 1988 SC 943; Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona AIR 1988 SC 1652; K. Vasundara Devi v. Revenue Divisional Officer (LAO) AIR 1995 SC 2481: 1995 AIR SCW 3655; Basavva v. Special Land Acquisition Officer AIR 1996 SC 3168 : 1996 AIR SCW 1854); Shaji Kuriakose v. Indian Oil Corporation Ltd. AIR 2001 SC 3341: 2001 AIR SCW 3186); Atma Singh through L.Rs. v. State of Haryana AIR 2008 SC 709 : 2007 AIR SCW 7835; Kanta Devi v. State of Haryana AIR 2008 SC 3107 : 2008 AIR SCW 5241; Lal Chand v. Union of India AIR 2010 SC 170) (2009 AIR SCW 5810) and Justice G.P. Singh's Principles of Statutory Interpretation 12th Edition - Pages 356 to 358 rel.

Pradeep Ghosh, Shati Bhushan, Ranjit Kumar, Senior Advocate, Ms. Anindita Gupta, Rajesh Srivastava, Raghavendra Pratap Singh, Dhruv Mehta, Debasis Guin, B.P. Yadav, Mrs. Sarla Chandra, H.K. Puri, S.K. Puri, V.M. Chauhan, Mrs. Priya Puri for Appearing Parties.

2012 S C M R 1217

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

MUHAMMAD SAEED AHSAN---Appellant

Versus

Mst. RAJ BEGUM and others---Respondents

Civil Appeal No.207 of 2005, decided on 17th May, 2012.

(On appeal from the judgment dated 9-10-2002 of Lahore High Court, Rawalpindi, passed in C.R. No.331 of 1992).

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 10 & 11---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.3--- Constitution of Pakistan, Art.185(3)---Plaintiff's plea that land already allotted to him through parchi-taqseem and RL-II in year 1960-61 could not be allotted to defendant in year 1982 for being available land---Dismissal of suit by Trial Court set aside by Appellate Court, but upheld by High Court---Validity---Supreme Court granted leave to appeal to consider questions as to whether land already allotted to plaintiff through Parchi-Taqseem and RL-II could be allotted to defendant without first cancelling allotment from plaintiff's name; whether description of suit land mentioned in RL-II would have preference over suit mutation and vice versa; whether suit land was available in year 1982 for allotment in favour of defendant by Notified Officer as being a pending matter; and whether promulgation of Martial Law Regulation No. 84 enforced on 28-12-1960 had any effect upon the suit allotment with reference to time of allotment.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 10 & 11--- Parchi-taqseem--- Evidentiary value--- Parchi-taqseem being a fundamental document, if not proved in accordance with law, then RL-II founded thereupon would have no legal sanctity.

Kh. Muhammad Farooq, Senior Advocate Supreme Court for Appellant.

Gul Zarin Kiyani, Senior Advocate Supreme Court for Respondent No.2.

Muhammad Munir Peracha, Advocate Supreme Court for Respondent No.3.

Ex parte for Respondents Nos. 4 to 14.

Nemo for Respondent No.1.

Date of hearing: 17th May, 2012.

2012 S C M R 1222

[Supreme Court of India]

Present: V.S. Sirpurkar and Cyriac Joseph, JJ

STATE OF HARYANA and others---Appellants

Versus

Messrs MALIK TRADERS---Respondent

Civil Appeal No.7033 of 2011 (arising out of S.L.P. (C) No.24107 of 2009), decided on 17th August, 2011.

(a) Contract Act (IX of 1872)---

----S.5---Revocation of offer before acceptance---Scope---Tender---Right to forfeit bid security---Scope---Bid (offer) made for tender with deposit of bid security---Validity period of bid---Condition that bid security would be forfeited if bid withdrawn (revoked) during its validity period---Withdrawal of bid within its validity period when it had not been accepted---Bid security could be forfeited, in circumstances---Provincial authorities (appellant), in the present case, invited tenders from interested persons for appointment as agent for collection of toll at a bridge---'M' (respondent) was one of the bidders and under the terms and conditions of the bid, deposited Rs. 2 million as bid security---As per terms and conditions of the bid, 'M' agreed to keep the bid/ offer open for acceptance for up to 90 days; agreed that the bid security would be forfeited should 'M' withdraw or modify its bid during the validity period of 90 days, and also agreed that 'M' would be bound by the communication of acceptance of the bid dispatched within the period of 90 days---­Letter of acceptance was issued to 'M', which letter stated that security amount and first instalment had to be deposited within 21 days of the receipt of the acceptance letter, but 'M' failed to do the same---Provincial authorities cancelled and withdrew the letter of acceptance issued to 'M' and forfeited its bid security of Rs. 2 million---'M' filed constitutional petition before the High Court with the contention that before receipt of letter of acceptance, it had sent a letter to the Provincial authorities informing them that 'M' was not interested in the work, therefore, the amount of bid security should be refunded---Constitutional petition was allowed by the High Court, letter of acceptance issued by the Provincial authorities was quashed and it was directed to refund the bid security amount of Rs. 2 million to 'M'---Validity---Although 'M' had sent its letter withdrawing the bid (offer) before receipt of the acceptance letter, but 'M' had agreed to keep the bid open for acceptance for up to 90 days---'M' had also agreed that it would be bound by the communication of acceptance of the bid dispatched within the said period of 90 days, therefore, 'M' could not have withdrawn the bid before the expiry of the period of 90 days---Admittedly the acceptance of 'M' bid was communicated to it within the period of 90 days, therefore, 'M' was bound by the said acceptance of the bid, despite its withdrawal---'M' had also agreed that the full value of the bid security would be forfeited, should it withdraw or modify its bid/offer, and since 'M' withdrew its bid/offer in violation of the agreement, the full value of the bid security was liable to be forfeited---Although under the Contract Act, 1872, a proposal/offer could be revoked at any time before its acceptance was complete as against the proposer/offeror, but 'M' in the present case was bound by the agreement to keep the bid/offer open for acceptance for up to 90 days, and he was liable to suffer the consequences if he did not do the same---Under the cover of S.5 of the Contract Act, 1872, 'M' could not escape from the obligations and liabilities of the agreement---High Court was not justified in quashing the acceptance letter of the Provincial authorities and directing them to refund the bid security to 'M'---Appeal was allowed and impugned order of the High Court was set aside.

National Highways Authority of India v. Ganga Enterprises and another AIR 2003 SC 3823 and 2003 AIR SCW 4381 ref.

(b) Contract Act (IX of 1872)---

----S.5---Revocation of offer before acceptance---Scope---Agreement to keep the offer open for a specific period of time---Penalty for revoking/withdrawing the offer before the end of the specific period of time---Effect---Right to withdraw an offer before its acceptance could not nullify the agreement to suffer any penalty for the withdrawal of the offer against the terms of the agreement.

Date of hearing: 17th August, 2011.

2012 S C M R 1229

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Amir Hani Muslim, JJ

FEDERATION OF PAKISTAN through Secretary Defence and others---Appellants

Versus

ABDUL BASIT---Respondent

Civil Appeal No.1236 of 2007, decided on 29th May, 2012.

(On appeal from judgment dated 16-1-2007 of the Lahore High Court, Rawalpindi Bench, passed in W.P. No.2639 of 2004).

(a) Pakistan Air Force Act (VI of 1953)---

----S. 20(1)---Pakistan Air Force Rules, 1957, R.31-A---Constitution of Pakistan, Art. 199(3)---Constitutional jurisdiction of High Court---Ouster clause under Art.199(3) of the Constitution---Applicability---Scope---Removal of Pakistan Air force employee from service without any benefits---Involvement in criminal case---Acquittal from the said case---Effect---Employee (respondent) assailed the order of his removal before High Court under constitutional jurisdiction, which petition was allowed in his favour with the direction to the authorities (appellants) to discharge the employee administratively with benefits contained in the letter/circular which governed his employment---Contentions raised by the authorities were that jurisdiction of the High Court was barred under Art.199(3) of the Constitution, therefore, impugned judgment was without jurisdiction; that circular in question did not take away the powers of the authority to remove the employee from service if his case was covered under any of the sub-paragraphs of paragraph 4 of the circular, and that the competent authority was satisfied that the employee was involved in an offence involving moral turpitude, therefore, he was rightly removed from service---Validity---Employee had been removed from service on the ground that he was involved in a criminal case but it was admitted that he had been acquitted in the said case by the Trial Court which extended him benefit of doubt---Retention or termination of service of the employee was dependent on paragraph 5 of the circular in question, which had to read with paragraph 4(ii) of the same circular---Authorities claimed that the employee was not entitled to pensionary benefits for want of length of service, but was entitled to gratuity--- Removal order of the employee passed by the authority was not in conformity with the terms of the circular---Law did not authorize the authority to remove such an employee from service if he was acquitted by the court of competent jurisdiction by extending him benefit of doubt---Case of the employee was covered by the circular which had to be read with S.20, sub-note 1(b) of the Pakistan Air Force Act, 1953, under which he was liable to be discharged with pension or gratuity--- Article 199(3) of the Constitution did not provide blanket cover to the authorities and was subject to judicial review if the action on part of the authorities was coram non judice, without jurisdiction or mala fide---In the present case, the authorities could not overlook the provision of S.20 of the Pakistan Air Force Act, 1953 read with the circular, which provided that the employee was to be discharged from service with pension/gratuity---Impugned judgment of the High Court was in conformity with the law---Appeal was dismissed, in circumstances.

Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar Civil Appeals Nos. 1274 and 1275 of 2005 rel.

(b) Constitution of Pakistan---

----Art. 199(3)---Pakistan Air Force Act (VI of 1953), S. 20(1)---Pakistan Air Force Rules, 1957, R.31-A---Constitutional jurisdiction of High Court---Ouster clause under Art. 199(3) of the Constitution---Applicability and interpretation---Member of Armed Forces---Removal from service---Article 199(3) of the Constitution had to be strictly construed and where an action of the authority was in colourful exercise of power and/or was tainted with malice, Art.199(3) would not come in the way of the High Court to entertain such a petition.

Babar Ali, D.A.-G. and Ch. Akhter Ali, Advocate-on-Record for Appellants.

Respondent in person.

Date of hearing: 29th May, 2012.

2012 S C M R 1235

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Muhammad Athar Saeed, JJ

BABAR HUSSAIN SHAH and another---Appellants

Versus

MUJEEB AHMED KHAN and another---Respondents

Civil Appeals Nos. 1990 and 1991 of 2008, decided on 25th May, 2012.

(On appeal from the judgment dated 27-10-2008 of the Islamabad High Court, Islamabad passed in R.F.A. No.38 of 2004).

(a) Limitation Act (IX of 1908)---

----Art 168 & S.12---Constitution of Pakistan, Art. 185(3)---Appeal---Limitation---Leave to appeal was granted to consider whether the time for filing appeal or application for restoration of appeal dismissed for non-prosecution would run from the date of impugned order or from the date of getting knowledge of the same by the appellant.

(b) Limitation Act (IX of 1908)---

----Art. 168---Civil Procedure Code (V of 1908), O.XLI, R.19---Readmission of an appeal dismissed for non-prosecution---Limitation---Determination---Re-listing of appeal in different High Court---No notice issued to the defendant of such re-listing---Effect---Appeal filed by the defendant (respondent) transferred from the (Lahore) High Court to (Islamabad) High Court without giving any notice to the defendant or his counsel---Appeal re-listed in the (Islamabad) High Court after directions to the office to issue notice to the defendant and his counsel---No such notice issued---Appeal dismissed for "non-prosecution" due to non-presence of the defendant and his counsel---Application of defendant for restoration of his appeal and condonation of delay was allowed by the (Islamabad) High Court through the impugned judgment---Validity---(Islamabad) High Court had directed the office to re-list the case (appeal) after issuance of notice to the defendant and his counsel, but the office re-fixed the case without issuing notices---Where during the hearing of a case, a date was given in the presence of a counsel, then his non-appearance could be taken notice of and the case could be dismissed for non-prosecution but where date was not given in his presence and his name did not appear in the cause list then an order for dismissal for non-prosecution would not be considered to be legal---In the present case, although the name of the counsel who filed his 'Vakalatnama' in the (Lahore) High Court on behalf of the defendant, appeared in the cause list but same was no consequence because the 'Vakalatnama' was given to appear before the (Lahore) High Court and not before (Islamabad) High Court---Issuance of notice to the defendant was necessary before the case could be dismissed for non-prosecution---Order of (Islamabad) High Court by which it dismissed the appeal for non-prosecution had been passed in complete violation of the rules of natural justice and void---Supreme Court directoral the Islamabad High Court to treat the matter pending and fix the same for hearing after issuance of notices to all the parties.

Sindh Industrial Trading Estates v. West Pakistah Water and Power Development Authority PLD 1991 SC 250; Haji Ghulam Sarwar v. Daya Ram 1975 SCMR 179; 2007 SCMR 1570; Messrs Texzone v. The Additional Collector of Customs, Export Collectorate, Custom House, Karachi and another 2006 CLC 1434; Akhtar Nawaz and another v. Muhammad Nazir and 3 others 2005 YLR 2277; Ch. Muhammad Ali v. Haji Feroz Din 2003 CLC 1218; Naeem Ullah Khan v. Abdul Muneem Karrak and 3 others 2001 YLR 590; Mahmood and another v. Chief Administrator Auqaf Punjab, Lahore and others 1996 SCMR 1508; M. Saadullah and 28 others v. Tahir Ali and 2 others 1986 CLC 2643; Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 SC 21; Muhammad Siddique and 8 others v. Hameedullah and 5 others 1993 SCMR 451; National Bank of Pakistan v. The Additional District Judge, Lahore and 2 others PLD 1985 Lah. 326-327 and Muhammad Sadiq v. Mst. Bashiran and 9 others PLD 2000 SC 820 ref.

Collector, Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681; New Jubilee Insurance Company Limited, Karachi v. National Bank of Pakistan, Karachi PLD 1999 SC 1126; Aftab Shahban Mirani v. President of Pakistan 1998 SCMR 1863 and Mehmood and another v. Chief Administrator Auqaf, Punjab Lahore and others 1996 SCMR 1508 rel.

(c) Constitution of Pakistan---

----Art. 10A---Right to fair trial---Scope---Order passed in violation of due process---Effect---Concept of fair trial and due process had always been the golden principles of administration of justice but after incorporation of Art. 10A of the Constitution, it had become more important that due process should be adopted for conducting a fair trial and an order passed in violation of due process might be considered to be void.

Collector, Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681 ref.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Appellants (in C.A. No.1990 of 2008).

M. Ilyas Sheikh, Advocate Supreme Court for Appellants (in C.A. No.1991 of 2008).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Respondent No.1 (in both cases).

M. Ilyas Sheikh, Advocate Supreme Court for Respondent No.2 (in C.A. No.1990 of 2008).

Date of hearing: 4th April, 2012.

2012 S C M R 1243

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

SHAMS UL AKKBAR SADIQ and another---Petitioners

Versus

PROJECT MANAGER SKD and others---Respondents

Civil Petition No.544 of 2012, decided on 18th May, 2012.

(On appeal from the judgment dated 27-3-2012 of the Islamabad High Court, Islamabad passed in C.R. No.70 of 2011).

Civil Procedure Code (V of 1908)---

----O.XXI, R.68---Constitution of Pakistan, Art. 185(3)---Sale of judgment-debtors property---Timing---Scope and object---Auction--- Notice of auction in the newspaper and the auction itself taking place on the same date---Validity---Order XXI, Rule 68 of C.P.C. provided that no sale without the consent in writing of the judgment-debtor could take place until after expiry of at least fifteen (15) days in case of movable property and thirty (30) days in case of immovable property calculated from the date of which a copy of promulgation had been affixed on the Court-house of the Judge ordering the sale---Object of said provision appeared to be to provide an opportunity to judgment-debtors or any party claiming interest in the property to file their objections before the executing court and to attract maximum number of bidders to participate in the auction so as to get the best possible price of the property to be auctioned---In the present case, the property was auctioned on the very day when the notice was published in the newspaper---Non-compliance with O.XXI, R.68, C.P.C. was a material irregularity and as such the same was rightly set aside by the Executing Court---Impugned judgment of the High Court was reasonable and proceeded on cogent grounds---Petition for leave to appeal was dismissed, in circumstances.

Qazi Zakiuddin, Advocate Supreme Court for Petitioners.

Dr. A. Basit, Senior Advocate Supreme Court for Respondents.

Date of hearing: 18th May, 2012.

2012 S C M R 1246

[Supreme Court of India]

Present: Markandey Katju and Chandramauli Kr. Prasad, JJ

NANJEGOWDA and another---Appellants

Versus

GANGAMMA and others---Respondents

Civil Appeal No.2006 of 2006, decided on 25th August, 2011.

(a) Transfer of Property Act (IV of 1882)---

----S. 53-A---Benefit of part performance---Scope---Agreement to sell disputed property---Such agreement not executed and registered due to a ban on registration of property---Claim over disputed property on basis of agreement to sell and irrevocable power of attorney issued by the transferor---Failure to prove possession over disputed property---Effect---Benefit of part performance not available without proof of possession---Scope---Plaintiffs (respondents) had filed suit for declaration and possession over disputed property---Defendant (appellant) contested the suit and claimed title over the disputed property with the contentions that the deceased, who was predecessor-in-interest of the plaintiffs, had executed an agreement to sell in favour of the defendant; that defendant was put in possession of the disputed property; that after the execution of the agreement to sell, there was a ban on registration of property, therefore, deceased executed an irrevocable power of attorney and sworn affidavit acknowledging possession of the defendant---Trial Court while disagreeing with the defendant, decreed the suit of the plaintiffs---Appeal against order of the Trial Court was dismissed by the High Court---Validity---Agreement to sell stated that deceased had handed over possession of the disputed property to the defendant, who contended that due to a ban on registration of property, the deceased executed an irrevocable power of attorney in her favour---Contents of the said power of attorney showed that at the time of its execution, disputed property was in possession of the deceased (transferor)-­- Had the defendant got possession of the disputed property in pursuance of the agreement to sell, there was no occasion for the deceased (transferor) to state in the power of attorney, that he was in possession of the disputed property---Findings of the both the courts below that defendant did not get possession of the disputed property after execution of the agreement to sell, were correct and did not call for any interference---Section 53-A of the Transfer of Property Act, 1882, was not attracted in the present case and defendant could not take advantage of the same---Appeal was dismissed, accordingly.

(b) Transfer of Property Act (IV of 1882)---

----S. 53-A---Part performance---Essentials---Party could take benefit of S. 53-A of Transfer of Property Act, 1882, where the contract was in writing, signed by or on behalf of the transferor; where the transferee had possession of the immovable property covered by the contract; where the transferee had done some act in furtherance of the contract, and where the transferee had either performed his part of the contract or was willing to perform his part of the contract---All said conditions were sine qua non and had to be satisfied before a party could take advantage of S.53-A of Transfer of Property Act, 1882.

Girish Ananthamurty for Appellants.

S. N. Bhat for Respondents.

2012 S C M R 1251

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

Mst. LATIFAN BIBI---Appellant

Versus

REHMAT ALI and others---Respondents

Civil Appeal No.2384 of 2006, decided on 17th May, 2012.

(On appeal from the judgment dated 28-3-2000 passed by Lahore High Court, Lahore in Civil Revision No.1496-D of 1994).

(a) Islamic Law---

----Constitution of Pakistan, Art. 185(3)---Faith---Inheritance---Leave to appeal was granted to consider the submission inter alia that judgment of High Court as regards faith of the deceased and inheritance of his property by the parties, suffered from gross misreading and non-reading of evidence on record

(b) Islamic Law---

----Faith---Inheritance---Dispute over inheritance of property of the deceased--- Faith of the deceased--­- Determination--- Scope---Plaintiffs/respondents (nephews of the deceased) claiming that the deceased was a Muslim, therefore, they were entitled to inherit his property--­Defendant/appellant (niece of the deceased) being an 'Ahmadi' claiming that the deceased converted into an 'Ahmadi', therefore, she alone was entitled to inherit---Plaintiffs filed a declaratory suit in regard to said dispute, which suit was dismissed by the Trial Court but was allowed in appeal by both the Appellate courts below---Contentions of the defendant/appellant were that sufficient evidence was available to show that the deceased was an 'Ahmadi'; that merely because deceased was mentioned as a Muslim in his application form for the issuance of Identity Card did not make him a Muslim; that the summary inquiry carried out by the Tehsildar preceding the impugned mutation clearly established that the deceased was an 'Ahmadi'---Validity---Admittedly the deceased was born a Muslim and allegedly he converted into an 'Ahmadi'---No direct documentary evidence existed with regard to the faith of the deceased in the form of his own affidavit or in the shape of his registered membership of an organization of any faith or sect---Evidence led by the defendant to prove that the deceased was converted into an 'Ahmadi' was not credible---Witness to the alleged conversion could not mention the date and time of the alleged conversion, but admitted that the father of the deceased was a Muslim and that he was buried in a Muslim graveyard---None of the persons who appeared before the Tehsildar, during the trial stated that the deceased was an 'Ahmadi'---Plaintiffs had led strong circumstantial evidence to prove that the deceased was a Muslim---Testimony of the some of the witnesses appearing on behalf of the plaintiff with regard to the fact that the funeral prayer of the deceased was performed by a Muslim moulvi; that the deceased was buried in a Muslim graveyard, and that he offered his Friday (Juma) prayers in a Muslim mosque, remained unchallenged in cross-examination---Documentary evidence of application form of the deceased for the issuance of Identity Card and record of the Election Officer (voters list) further corroborated the oral evidence---Defendant had not pointed out any misreading or non-reading in the impugned concurrent judgments of both the Appellate Courts below---Appeal was dismissed, in circumstances.

Akbarally v. Mahomedally AIR 1932 Bombay 356; Mst. Sardar Bibi v. Muhammad Bakhsh PLD 1954 Lah. 480; Pathana v. Mst. Wasai PLD 1965 SC 134; Ghulam Shabbir v. Bakhat Khatoon 2009 SCMR 644; Sakina Bibi v. Nazar 2000 SCMR 1126 and Muhammad Bashir v. Latifa Bibi SCMR 1915 ref.

(c) Islamic Law---

----Faith---Inheritance---Dispute over inheritance of property of the deceased--- Faith of the deceased--- Determination--- Principle--- In such cases, the courts have to weigh evidence with care keeping in mind the fact that a great majority of people in Pakistan were Hanfi Muslims and the party alleging otherwise was under a heavy onus.

Akbarally v. Mahomedally AIR 1932 Bombay 356; Mst. Sardar Bibi v. Muhammad Bakhsh PLD 1954 Lah. 480; Pathana v. Mst. Wasai PLD 1965 SC 134 and Ghulam Shabbir v. Bakhat Khatoon 2009 SCMR 644 ref.

(d) Islamic Law---

----Faith---Determination---Principle---No principle of universal application was available to determine faith of a person---Determination of faith depended on surrounding circumstances, way of life, parental faith and faith of kiths and kins---Question of sect of a person could not be determined by opinion of parties but could be inferred from facts creating a presumption one way or the other.

Muhammad Bashir v. Latifa Bibi 2010 SCMR 1915 rel.

(e) Islamic Law---

----Faith---Inheritance---Dispute over inheritance of property of the deceased--- Faith of the deceased--- Determination--- Evidence of witnesses---Evidentiary value---Opinion of witnesses might not be conclusive to determine the faith of a person.

Sh. Naseer Ahmad, Advocate Supreme Court for Appellant.

Dr. Danishwar Malik, Advocate Supreme Court for Respondents.

Date of hearing: 17th May, 2012.

2012 S C M R 1258

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Athar Saeed, JJ

Syed SHARIF UL HASSAN through L.Rs.---Appellants

Versus

Hafiz MUHAMMAD AMIN and others---Respondents

Civil Appeal No.1130 of 2002, decided on 4th June, 2012.

(On appeal against the judgment dated 12-2-2002 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in R.S.A. No.15 of 1986).

(a) Pardanashin lady---

----Execution of a document by Pardanashin affecting a right or interest in an immovable property---Production of evidence---Scope---Where a Pardanashin lady was a party to a transaction affecting her right and interest in an immovable property, it was always on the person claiming such a right and interest to establish affirmatively that she substantially understood the nature of transaction and had the benefit of independent advice---Evidence in such regard must be aboveboard and unimpeachable.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 59---Civil Procedure Code (V of 1908), O.XLI, R.23---Alleged execution of an agreement to sell by pardanashin ladies in favour of the plaintiffs (respondents)-Disputed thumb impressions--- Failure to send such thumb impressions to the Finger Prints Expert for comparison---Effect---Plaintiffs filed suit for declaration and specific performance on basis of the alleged execution of agreement to sell by pardanashin ladies, which suit was decreed by both the courts below---Contentions of the defendants (appellants) were that where identity of the ladies entering into an agreement to sell had not been established on the record, such agreement had no sanctity in the eyes of law; that the Local Commissioner had failed either to satisfy himself as to the identity of the persons appearing before him and alleging to have executed the agreement or to inquire whether such document was executed by the persons it was purported to have been executed by; that the report of Local Commissioner could not be held to be free from the taint of manipulation as it had been submitted after a lapse of three months, and that where pardanashin illiterate ladies were involved, the burden to prove bona fides and genuineness of the transaction laid on the person who alleged it---Validity---Both the courts below did not send the disputed thumb impressions of the ladies with their specimen thumb impressions to the Finger Prints Expert for comparison, which was essential for the just decision of the case---Although the parties had contended that most of the pardanashin ladies were dead because of which their specimen thumb impressions could not be obtained, but there could be many other documents like the record of National Registration Office or any other record where admitted thumb impressions of the said ladies could be found---Persons who had allegedly put their thumb impressions and signatures on the alleged agreement to sell denied doing the same, and neither of the parties ran the risk of examining them as witnesses---Statements of witnesses examined by either of the parties were not of the class which could prove their respective claims---Appellate Court below should have permitted opinion of Finger Prints Expert as additional evidence but by failing to do so it had failed to exercise jurisdiction vested in it---Appeal was allowed, judgments and decrees of both the courts below were set-side and the case was remanded to the Trial Court for decision afresh in the light of the opinion of the Finger Prints Expert.

Surajpal Singh and others v. Shri 108 Puja Pad Udit Panch, Parmeshwar Panchaiti Akhara Uddasi Nirwani and another AIR 1939 Allahabad 486; Begum Farkhanda Akhtar and others v. Capt. M. Asif Akhtar and others 1995 CLC 75; Malik Riaz Ahmed and others v. Mian Inayatullah and others 1992 SCMR 1488; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642 and Sakinabai wife of Hatimbhai v. Sakinabai wife of Ibrahimbhai Bohra and another AIR 1963 Madia Perdesh 286 ref.

Bombay Cotton Manufacturing Co. v. R.B. Motilal Shivial AIR 1915 Privy Council 1; Abdul Majid and others v. Khalil Ahmad PLD 1955 Federal Court 38; Ghulam Rasool through L.Rs. and others v. Muhammad Hussain and others PLD 2011 SC 119; Prem Singh Hyanki and another v. Deb Singh Bisht and another AIR 1948 Privy Council 20; Harry Young Lai v. Benjamin Cho Fook Lun and another PLD 1957 Privy Council 89; Mumtaz and 3 others v. Mian Khan PLD 1973 Lah. 47; Ramzan Ali Ansari v. Ghulam Qadir and others PLD 1966 West Pakistan Lah. 455; Abdul Rashid v. Bashiran and another 1996 SCMR 808; Syed Rafiul Qadre Naqvi v. Syeda Safia Sultana and others 2009 SCMR 254 and Ratilal Balabhai Nazar v. Ranchhodbhai Shankarbhai Patel and another AIR 1966 SC 439 distinguished.

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

----O. XLI, R.27---Appellate Court failing to record additional evidence which is essential for just decision of the case---Effect---Such act on the part of the Appellate Court amounted to exercising jurisdiction illegally and with material irregularity.

(d) Administration of justice---

----Adjudication---Principles---Where a lis involving a disputed question of fact was decided, it had to be decided on a proper appraisal of evidence, and where a lis involving appreciation of evidence or interpretation of law was decided, it had to be decided in accordance with the well-recognized principles laid down by the Supreme Court from time to time.

(e) Administration of justice---

----Procedural technicalities--- Justice at no cost and at no stage should be allowed to fall prey to procedural technicalities, which may be ignored if they tend to create hurdles in the way of justice.

Mian Allah Nawaz, Advocate Supreme Court for Appellants.

M. Munir Paracha, Advocate Supreme Court for Respondents Nos.1, 2 and 10 to 40.

Gulzarin Kiyani, Senior Advocate Supreme Court for Respondents Nos. 3 to 9.

Date of hearing: 22nd May, 2012. (Judgment Reserved)

2012 S C M R 1267

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Jawwad S. Khawaja and Amir Hani Muslim, JJ

C.V. "LEMON BAY" and others---Appellants

Versus

SADRUDDIN and others---Respondents

Civil Appeals Nos. 1444 to 1447 of 2004, decided on 9th May, 2012.

(Against the judgment dated 30-3-2004 passed by the High Court of Sindh at Karachi in Admiralty Appeals Nos. 8 and 9 of 2009).

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

----Ss. 3(2)(h) & 4(4)---Admiralty Jurisdiction of High Court---Arrest of ships---Action in personam---Scope---Action in rem against a sister vessel/ship---Scope---Contract of carriage---Plaintiff/consignor shipped first consignment through vessels 'A' (defendant) and 'B', while the second consignment was sent through vessels 'C' (defendant) and 'D'---Failure on part of the shipping companies (defendants) to obtain bank guarantees necessary for the release of consignments---Effect---Plaintiff suffered monetary loss and consequently filed two suits against the defendants in the High Court which were decreed in its favour---Appellate Bench of the High Court modified the decree of the High Court by reducing the amount of the decree on the basis that in the first suit vessel 'B' had not been impleaded as a defendant nor was it averred in the plaint that the vessel 'B' was a sister ship of 'A' and similarly in the second suit plaintiff had not impleaded vessel 'D' as a defendant nor had any averment been made in the plaint that said vessel was a sister ship of the vessel 'C'---Contention of the defendants was that the sister ships 'B' and 'D' had been wrongfully and unlawfully arrested in the suits because said ships were not parties and in the absence of pleadings to establish their relationship with other vessels, the sister ships could not be burdened with the liability for the plaintiff's claim---Validity---Claim of the plaintiff was based on the contract of carriage executed on behalf of the shipping companies and the modification agreed by them that the consignments would be released against bank guarantees and not on DAP basis as originally agreed---Admittedly the bank guarantees which the shipping companies were obliged to obtain on behalf of the plaintiff, before releasing the consignment to the consignee were forged---Defendants released the consignments without obtaining the bank guarantees because of which the plaintiff did suffer a monetary loss---Sections 3(2)(h) and 4(4) of the Admiralty Jurisdiction of High Courts Ordinance, 1980, made it clear that an action in personam could be founded on any agreement such as a bill of lading relating to the carriage of goods in a ship, and that admiralty jurisdiction of the court could also be invoked for an action in rem for the arrest of a sister ship such as 'B' and 'D' in the present proceedings---Even if it was held that the sister ships had not been impleaded as defendants in the two suits and that there was no averment in the plaint asserting a claim against the sister ships, the decree in personam could still have been passed against the defendants even if a decree in rem was not permissible against the sister ships in view of S.4(4) of the Admiralty Jurisdiction of High Courts Ordinance, 1980---Appellate bench of the High Court fell in error when it reduced the amounts decreed by the Single Judge of High Court---Judgment and decree of the Appellate bench of the High Court was set aside and that of the Single Judge of High Court was restored---Order accordingly.

R.F. Virjee, Advocate Supreme Court for Appellants (in C.As. Nos.1444 and 1445 of 2004).

Shaiq Usmani, Senior Advocate Supreme Court for Appellants (in C.As. Nos.1446 and 1447 of 2004).

Shaiq Usmani, Senior Advocate Supreme Court for Respondent No.1 (in C.As. Nos. 1444 and 1445 of 2004).

Ex parte for Respondent No.2 (in C.As. Nos. 1444 and 1445 of 2004).

R.F. Virjee, Advocate Supreme Court for Respondent No.1 (in C.As. Nos. 1446 and 1447 of 2004).

Ex parte for Respondents Nos. 2 to 4 (in C.As. Nos. 1446 and 1447 of 2004).

Date of hearing: 9th May, 2012.

2012 S C M R 1273

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa and Sh. Azmat Saeed, JJ

IKRAM-UL-HAQ---Petitioner

Versus

Raja NAVEED SABIR and others---Respondents

Criminal Petition No.116 of 2012, decided on 15th June, 2012.

(Against the order dated 13-3-2012 passed by the Islamabad High Court, Islamabad in Criminal Miscellaneous No.101-B of 2012).

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

----Ss. 497(5) & 497(2)---Penal Code (XLV of 1860), Ss.302/324/148/ 149/411---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, dishonestly receiving stolen property--- Petition for cancellation of bail---Accused (respondent) had not been nominated in the F.I.R. in any capacity whatsoever and his name had surfaced in the case for the first time through a supplementary statement made by the complainant (petitioner) and also through statements made by the eye-witnesses under S.161, Cr.P.C.---Complainant was not an eye-witness of the alleged occurrence---Accused was not connected with the motive set-up in the F.I.R.---Accused was not visible as one of the assailants present at the scene of the crime at the relevant time in the Closed-circuit Television (CCTV) footage of the occurrence---Although the accused had remained a fugitive from the law and had been declared a proclaimed offender, but in a case calling for further inquiry into the guilt of the accused , bail was to be allowed to him as a matter of right and not by way of grace and concession---Investigation of the case had been finalized and challan had been submitted, therefore, physical custody of the accused was not required for the purposes of investigation---No allegation or material had been brought on the record regarding any misuse or abuse of the concession of bail by the accused---Petition for cancellation of bail/leave to appeal was dismissed, in circumstances.

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

----S. 497(2)---Bail---Case of further inquiry---Abscondment of the accused---Effect---Where a case called for further inquiry into the guilt of an accused, bail was to be allowed to him as a matter of right and not by way of grace or concession---Bail was sometimes refused to an accused person on account of his abscondment but such refusal of bail proceeded primarily upon the question of propriety, and whenever a question of propriety was confronted with a question of a right, the latter must prevail.

Ibrahim v. Hayat Gul and others 1985 SCMR 382; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and Qamar alias Mitho v. The State and others PLD 2012 SC 222 ref.

Mir Afzal Malik, Advocate Supreme Court for Petitioner.

Muhammad Farooq Raja, Advocate Supreme Court for Respondent No.1.

Malik M. Irfan, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 15th June, 2012.

2012 S C M R 1276

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Tariq Parvez and Amir Hani Muslim, JJ

SHAH MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.56-Q of 2009, decided on 7th June, 2012.

(On appeal from the Order dated 20-11-2008 passed by the High Court of Balochistan, Quetta in Criminal Appeal(s) No.3 of 2008).

Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 9(c) & 35---Possession of narcotic---Reappraisal of evidence---Allegation against the accused (appellant) was that he was apprehended after a pursuit and 340 kilograms of charas was recovered from the trunk of his car, which was present in seventeen (17) bags, each containing twenty (20) packets weighing 1 kilogram each---Trial Court convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997---Contentions of the accused were that there was a delay in sending the samples because of which possibility could not be ruled out that the samples were tampered with; that under S.35 of the Control of Narcotic Substances Act, 1997, the Chemical Examiner was not a notified analyst, therefore, his report had to be excluded from consideration; that there was contradiction in the evidence of persecution witnesses as one of them stated that from each 'packet' 10 grams of charas had been separated for dispatch, while the other witness stated that 10 grams of charas sample had been taken out from each 'bag' and not packet; that accused had produced in his defence a police official, according to whom the accused was arrested on the day of the incident for some other offence and was released on the same day at 7-30 p.m., while the case of the prosecution was that the accused was arrested for the present case at 6-30 p.m., and that the samples were not taken from all the recovered packets but from only seventeen (17) packets, weighing 170 grams, therefore, case of the accused fell within the scope of S.9(b) of Control of Narcotic Substances Act, 1997---Validity---Provincial Government had notified the Chemical Examiner in question through a notification---Since the proceedings before the Trial Court (Special Judge Narcotics) were conducted under the Criminal Procedure Code, 1898, therefore notification in favour of the Chemical Examiner in question would make him competent to prepare the report---With regard to contention of accused concerning delay in sending of samples, ground realities had to be realized that the police had less means of communication and manpower and in the absence of any evidence to presume that samples were tampered with, such an argument would not be available to the accused---Two official documents, i.e., F.I.R. and recovery memo, both stated the same fact that from each bag 10 grams of charas was separated for samples, and in such circumstances if the police official deviated from the facts by making an oral contrary statement, possibility could not be overruled that he was either mistaken or had forgotten the fact recorded by him in the documents or was making concessional statement---Regarding contention of accused that he was arrested for some other offence at the time of the alleged incident, the Trial Court had observed that the page containing the arrest and release was somewhat differently inserted with the rest of the pages of the police record, which would create doubt in the said contention---Sufficient ocular account of two witnesses was available to establish that huge quantity of charas was recovered from the possession of the accused---Said two witnesses had categorically stated that samples were taken out from each bundle, weighing 170 grams in total, and were sent for analysis to the Chemical Laboratory---Report of the Chemical Laboratory was positive---Both prosecution witnesses were at least consistent about the fact that seventeen (17) samples were taken from seventeen (17) bags/packets, and if each bag/packet was taken to be of one (1) kilogram, then the minimum quantity of charas from which samples were taken was proved to be seventeen (17) kilograms---Case of the accused, in such circumstances, would remain within the scope of S.9(c) of Control of Narcotic Substances Act, 1997---Appeal was dismissed, in circumstances.

Ameer Zeb v. The State PLD 2012 SC 380 distinguished.

Malik Javed Khalid, Advocate Supreme Court for Appellant.

Tahir Iqbal Khattak, Additional P.-G. Balochistan for the State.

Date of hearing: 7th June, 2012.

2012 S C M R 1281

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Tariq Parvez and Amir Hani Muslim, JJ

CRIMINAL APPEAL NO.38 OF 2005

(On appeal from the judgment/order dated 11-1-2005 passed by Lahore High Court Lahore in Criminal Appeal No.856 of 1998)

QAMAR-UZ-ZAMAN and another---Appellants

Versus

Haji ALLAH BAKHSH and another---Respondents

CRIMINAL PETITION NO.54 OF 2005

(On appeal from the judgment/order dated 11-1-2005 passed by Lahore High Court Lahore in Criminal Miscellaneous No.1564 of 1998).

INTISAR AHMED---Petitioner

Versus

MUHAMMAD SALEEM and others---Respondents

CRIMINAL PETITION NO.64-L OF 2005

(On appeal from the judgment/order dated 11-1-2005 passed by Lahore High Court Lahore in Criminal Appeal No.856 of 1998)

Haji ALLAH BAKHSH---Petitioner

Versus

INTISAR AHMED and others---Respondents

Criminal Appeal No.38 of 2005 and Criminal Petitions Nos.54 and 64-L of 2005, decided on 17th May, 2012.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b)/34---Qatl-e-amd, common intention---Reappraisal of evidence---Allegation against the accused persons (appellants) and co-accused was that they fired at and murdered the son of the complainant---Alleged motive for the occurrence was that the parties had quarrelled over the construction of a bridge by the deceased on a water channel---Contentions of the accused persons were that case against them was built on the testimony of two prosecution witnesses, one of whom was the father of the deceased who had hostile relations with the accused persons; that the statement of the deceased's father (prosecution witness) was contradicted by the medical evidence; that investigation officers of the case had opined that the accused persons and other acquitted co-accused were innocent and had never possessed any firearm; that the death of the deceased had not been caused by the accused persons but by the fire shots of his own companions during the course of cross-firing; that if the deceased's father was present at the time of the occurrence, he should have gone to the police station first for making a report instead of going to the hospital; that the other prosecution witness was a chance witness as according to his own admission he did not use the route in question but on the day of the occurrence used the route to visit the house of person 'N'; that person 'N should have been examined at the trial to support such version of the other prosecution witness regarding the route taken by him ; that said other prosecution had sided with the complainant and was tutored to give his statement because seven of his relatives were made the accused in the cross case; that if said other witness was present in the hospital at the time of recording of the F.I.R., he should have made his statement there and then, and that there was a cross-version of the incident, therefore, benefit of the same was available to the accused persons---Validity---Father of the deceased (prosecution witnesses) and other prosecution witness were consistent in the narration of facts and presence of said other witness at the time of making the report was admitted by the investigation officer, as his name was mentioned in the column of identification in the postmortem report and in the inquest report---Contention that the other prosecution witness had his own interest against the accused persons could not be believed as at the time of recording of F.I.R., identification of the body of the deceased and inclusion of his name as an eye-witness, he would not have known that in the future some of his relatives would be prosecuted for the cross-version of the incident---Regarding the contention as to why the other prosecution witness didn't not make his statement at the hospital, it was dependent upon the investigation officer as to when he would record the statement of a witness, and it appeared from the record that said other witness was examined by the police under S.161, Cr.P.C. on the very day of the occurrence---No contradictions existed between the ocular account and medical evidence---Father of the deceased was a prosecution witness but he had no grudge or serious enmity against the accused persons except a dispute over the construction of a small bridge on a water channel by his deceased-son---Where an injured was carried and rushed to the hospital, his close relatives would definitely try to take him to the hospital for emergency medical treatment---Even where the injured had expired before reaching the hospital, his relatives would still be keen to take a second opinion of the doctor at the hospital to confirm death---Investigation of the case was conducted dishonestly and the investigation kept on changing hands and even though the accused were named in the F.I.R. for effective fire shots but their arrest was deferred---Appeal was dismissed, in circumstances.

Muhammad Iqbal v. State 1984 SCMR 930; Muhammad Arshad v. State 1995 SCMR 1639; Iftikhar Hussain v. State 2004 SCMR 1185; Allah Ditta v. State 1999 YLR 1478; Faryad Ali v. State 2008 SCMR 1086; Ghulam Qadir v. State 2008 SCMR 1221 and Muhammad Idrees v. State 2008 SCMR 1547 ref.

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

----S. 417---Penal Code (XLV of 1860), Ss.302(b)/34---Constitution of Pakistan, Art.185(3)---Qatl-e-amd, common intention---Complainant (petitioner) had filed appeal against acquittal of the accused persons and co-accused before the High Court, which was allowed by the High Court only to the extent of the accused persons and dismissed to the extent of the co-accused---Such dismissal to the extent of the co-accused was not challenged before the Supreme Court within the limitation period---Effect---Petition for leave to appeal was barred by time and was dismissed, accordingly.

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

----S. 417---Penal Code (XLV of 1860), Ss.302 (b)/34---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, common intention---Miscellaneous application against acquittal of the accused persons (complainant party of the cross-version) was dismissed by the High Court being barred by time---Although application for condonation of delay was filed but no good ground was urged therein, explaining as to why same was filed beyond the period of limitation before the High Court---High Court having proceeded to dismiss the application of the accused, to which no exception could be taken, petition for leave to appeal was dismissed by Supreme Court, in circumstances.

(d) Penal Code (XLV of 1860)---

----S. 302(b)/34---Qatl-e-amd, common intention---Reappraisal of evidence---Chance witness---Statement---Evidentiary value---Scope---Chance witness could not be disbelieved because he happened to be present per chance unless the defence could show that he had either got some interest in the person of the deceased or complainant or such chance witness was hostile or inimical towards the accused, which could prompt him for installing himself as false eye-witness.

Sardar M. Ishaq Khan, Senior Advocate Supreme Court for Appellants (in Criminal Appeal No.38 of 2005).

Ch. Afrasiab Khan, Advocate Supreme Court and M.A. Sheikh, Advocate-on-Record for Respondent No.1 (in Criminal Appeal No.38 of 2005).

Ch. Zubair A. Farooq, Additional P.-G. for the State (in Criminal Appeal No.38 of 2005).

Sardar M. Ishaq Khan, Senior Advocate Supreme Court for Petitioner (in Criminal Petition No.54 of 2005).

Ch. Afrasiab Khan, Advocate Supreme Court and M.A. Sheikh, Advocate-on-Record for Respondents Nos.1, 2 and 4 to 8 (in Criminal Petition No.54 of 2005).

Nemo for Respondents Nos.3 and 9 (in Criminal Petition No.54 of 2005).

Ch. Afrasiab Khan, Advocate Supreme Court and M.A. Sheikh, Advocate-on-Record for Petitioner (in Criminal Petition No.64-L of 2005).

Nemo for Respondents Nos. 1 to 9 (in Criminal Petition No.64-L of 2005).

Ch. Zubair A. Farooq, Additional P.-G. for the State (in Criminal Petition No.64-L of 2005).

Date of hearing: 17th May, 2012.

2012 S C M R 1292

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany, Ejaz Afzal Khan and Gulzar Ahmed, JJ

ABRAR-UL-HAQ SHAMI, DEPUTY SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Overseas Pakistanis, Islamabad---Respondent

C.Ps.L.A. Nos. 647 and 952 of 2012, decided on 11th June, 2012.

(On appeal from the common judgment dated 27-3-2010, passed by the Islamabad High Court, Islamabad, in W.Ps. Nos.466 and 559 of 2012).

(a) Constitution of Pakistan---

----Art. 185(3)---Law Reforms Ordinance (XII of 1972), S. 3---Petition for leave to appeal---Conversion of such a petition into an Intra Court Appeal to be decided by High Court---Scope---Petitions for leave to appeal were filed against the impugned judgment of the High Court by which writ petitions of the petitioners were dismissed---Respondent contended that where an Intra Court Appeal was provided by law against the impugned judgment, a petition for leave to appeal would not be maintainable and same had to be dismissed as such the petitioners might file separate Intra Court Appeals before the High Court---Validity---First petition for leave to appeal (first petition) was filed on the 20th day of the announcement of the impugned judgment and an Intra Court Appeal as such would not be out of time, while the second petition for leave to appeal (second petition) was filed on the 58th day of the announcement of the impugned judgment and as such an Intra Court Appeal would be out of time---Filing of petitions for leave to appeal by the petitioners was apparently an innocent mistake based upon the wrong advice of the counsel and of misunderstanding of the petitioner of the second petition, who perhaps might have followed the petitioner of the first petition in availing the remedy against the impugned judgment, which remedy although might not be maintainable but by dismissing the same and allowing the petitioners to file an Intra Court Appeal would only be ministerial work which could appropriately be cut short by allowing the present petitions to be treated as Intra Court Appeals to be decided by the High Court---Question of limitation arising in the Intra Court Appeals would be dealt by the High Court in accordance with the law---Present cases provided enough justification, where technicalities of procedure could be overcome by converting petition for leave to appeal into appeal or remanding the case from one court to another court/Tribunal by making the very same case by changing its character, nature or name and decided accordingly---Petitions for leave to appeal were disposed of by treating the same as Intra Court Appeals, which were to be decided by the High Court in accordance with the law.

Accountant-General for Pakistan (Revenue) and another v. Zia Mohy-ud-Din and 3 others PLD 2008 SC 164; Mst. Gul Jan and others v. Naik Muhammad and others PLD 2012 SC 421; Pakistan International Airlines Corporation and others v. Samina Masood and others PLD 2005 SC 831 and Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 rel.

Tehsil Municipal Administration Murree v. Messrs Premier Gas Link Lahore 2012 SCMR 406 distinguished.

(b) Constitution of Pakistan---

----Art. 185(3) & (2)---Incompetent petition for leave to appeal filed within the period of limitation for filing a competent appeal---Effect---Such a petition for leave to appeal could be converted into or treated as an appeal.

Mst. Gul Jan and others v. Naik Muhammad and others PLD 2012 SC 421 rel.

Muhammad Ikram Ch., Advocate Supreme Court for Petitioners (in C.P.L.A. No.647 of 2012).

Petitioner in person (in C.P.L.A. No.952 of 2012).

M. Aleem Abbasi, D.A.-G. for Respondent (in both cases).

Date of hearing: 11th June, 2012.

2012 S C M R 1373

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

NOOR MUHAMMAD and others---Appellants

Versus

Mst. AZMAT-E-BIBI---Respondent

Civil Appeal No.122-L of 2012, decided on 13th June, 2012.

(On appeal from the judgment of the Lahore High Court Lahore dated 19-12-2001 passed in C.R. No.2096 of 2001).

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

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Alleged oral gift deed by plaintiff in favour of her step-brothers---Plaintiff having no knowledge of the relevant mutation of gift---Beneficiaries (defendants) failing to prove genuineness of said mutation of gift through credible evidence---Effect---High Court interfering with concurrent judgments and findings of courts below in revisional jurisdiction---Scope---Plaintiff (respondent) had inherited the suit property from her father---Defendants (appellants), who were step-brothers of the plaintiff, got mutated the suit land in their favour on the basis of an oral gift vide the impugned mutation---Plaintiff challenged the impugned mutation by way of declaratory suit, which was dismissed by the Trial Court and appeal filed thereagainst was also dismissed by the First Appellate Court---High Court in its revisional jurisdiction reversed the concurrent judgments and decrees of both the courts below on the ground that impugned mutation was not a bona fide transaction; that there was no report in "Roznamcha Waqiati" about the transaction; that the report made by the plaintiff's step-father regarding the oral gift in favour of the defendants was not credible; that onus was on the defendants to prove that there was a valid gift, and that there being no sanctity attached to such a fraudulent transaction, the limitation would not come in the way of justice---Contentions of the defendants were that the High Court had interfered with concurrent judgments and findings of fact in revisional jurisdiction which was not tenable in law and was beyond the parameters laid down under S.115, C.P.C.; that the High Court had ignored the other relevant entries in "Roznamcha Waqiati" and the statement of the revenue patwari; that the plaintiff herself was present at the time of the impugned mutation; that the impugned mutation stood incorporated in the subsequent "Jamabandies"/Record of Rights and a presumption of truth was attached to such entries; that a "Punchayat" was conveyed by the elders of the family where the plaintiff was told that she had made the oral gift and impugned mutation was genuine and that she should withdraw the suit, but the plaintiff resiled, and that the High Court had incorrectly decided the question of limitation by observing that the transaction in question was a fraudulent and void transaction---Validity---High Court had interfered with concurrent findings of fact because it found that those findings not only reflected misreading of evidence but also were against the law, and that the report purportedly made by the plaintiff's step-father to the effect that she wanted to give her land to her step-brothers (defendants) had not been proved by leading credible evidence---Plaintiff had allegedly given valuable agricultural land to her step-brothers vide the impugned mutation of gift without any ostensible reason and notwithstanding the fact that she had her own children to look after---Person who had purportedly identified the plaintiff at the time of the attestation of the impugned mutation was never examined---Plaintiff shifted to a different city after her marriage and she kept receiving her share of the produce from the suit land, which was being cultivated by the defendants---Explanation regarding knowledge of impugned mutation, given by the plaintiff in her cross-examination was sufficient to prove that she had no prior knowledge of the impugned mutation and further that the entries of "Jamabandies" were not challenged earlier because she was not aware of them---No unimpeachable evidence was led by the defendants to prove that the plaintiff was present at the time of the attestation of the impugned mutation or that she had instructed her step-father to make a gift in favour of her step-brothers (defendants)---Statement of "Naib Tehsildar" who attested the impugned mutation would be of no avail as he had admitted in his cross-examination that he neither knew the parties personally nor the persons who allegedly identified the donor (plaintiff)---Endorsement of the fact that impugned mutation was attested in a public gathering (Jalsa-e-Aam) did not exist on record---Contention of the defendants that the "Panchayet" decided the matter in their favour was not borne out either from the pleadings or the evidence led as firstly, there was no specific plea in the written statement regarding the same; secondly there was nothing in evidence to indicate that those who constituted the "Panchayet' were consensually agreed upon and gave a verdict to the effect that the impugned gift mutation was voluntarily made by the plaintiff---One of participants of the "Panchayet" had stated in his examination-in-chief that the plaintiff was asked to take oath on the Holy Quran as to whether she had consented to the gift or not, but she refused to do so---Such an argument was not tenable because bringing the Holy Quran in such matters was alien to the law and could not be a substitute for leading positive evidence on the point in issue---Contention of defendants that impugned mutation was reflected in subsequent "Jamabandies", therefore, presumption of truth is attached to it, was not tenable as presumption so attached stood rebutted in the present case since defendants failed to lead positive evidence that plaintiff herself appeared to make the gift; since there was evidence to the effect that the plaintiff had been getting her share of produce from the suit land, and since she had moved to another city and only filed the suit when the dispute arose and she checked the revenue record to find out that she had been deprived of her land fraudulently---Appeal was dismissed, in circumstances.

Abdul Khaliq v. Ch. Rehman Ali 2012 SCMR 508; Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309; Abdul Sattar v. Mst. Anar Bibi PLD 2007 SC 609; Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) 2008 SCMR 428; Yaseen Ali v. Sakina Bibi 2006 MLD 1259; Salamat Ali v. Khair ud Din 2007 YLR 2453; Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner/Member Board of Revenue Punjab Lahore and others 1995 SCMR 1719; Hakim Khan v. Aurangzeb 1979 SCMR 625; The Evacuee Trust Property Board v. Haji Ghulam Rasul Khokhar 1990 SCMR 725; Muhammad Amir v. Mst. Beevi 2007 SCMR 614 and Lal Khan v. Muhammad Yousaf PLD 2011 SC 657 ref.

Muhammad Arshad v. The State PLD 2011 SC 350 and Aurangzeb v. Muhammad Jaffar 2007 SCMR 236 rel.

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

----S. 115---Revisional jurisdiction of High Court---High Court interfering with concurrent judgments and findings of courts below in revisional jurisdiction---Scope---Jurisdiction of the High Court under S.115, C.P.C., was narrower and concurrent findings of fact could not be disturbed in revisional jurisdiction unless courts below while recording findings of fact had either misread the evidence or had ignored any material piece of evidence or those were perverse and reflected some jurisdictional error.

Muhammad Akhtar v. Mst. Manna 2001 SCMR 1700; Ghulam Muhammad v. Ghulam Ali 2004 SCMR 1001; Abdul Mateen v. Mustakhia 2006 SCMR 50 and Muhammad Khaqan v. Trustees of the Port of Karachi 2008 SCMR 428 rel.

(c) Gift---

----Mutation---Scope---Onus to prove fact of gift to be a bona fide transaction---Scope---Mutation by itself did not create a title and the person deriving any one of the title thereunder had to prove that the transferor did part with the ownership of the property voluntarily---Onus lay on the beneficiaries to prove that it was a bona fide transaction.

Saeed ur Rehman Farrukh, Senior Advocate Supreme Court for Appellants.

M.A. Qureshi, Advocate-on-Record for Respondent.

Date of hearing: 13th June, 2012.

2012 S C M R 1384

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany, Ejaz Afzal Khan and Gulzar Ahmed, JJ

Mst. MARYAM BIBI and others---Petitioners

Versus

MUHAMMAD RAFIQUE ANWAR and others---Respondents

C.Ps. Nos. 1060-L, 1117-L and 1118-L of 2007, decided on 12th June, 2012.

(On appeal against the judgment dated 13-2-2007 passed by Lahore High Court, Lahore in R.F.A. No.582 of 2002).

Specific Relief Act (I of 1877)---

----S. 42---Constitution of Pakistan, Art. 185(3)---Claim of title on basis of alleged sale---Proof---Failure to examine marginal witnesses---Effect---Claim over property in question on basis of order of settlement authorities---Such claim not touched upon by courts below---Effect---Trial Court found that the plaintiff (petitioner) could not prove her title to the property in question in view of the fact that she had sold a few portions of the same to some of the defendants (respondents), while other defendants (respondents) claimed their title over the property on the basis of transfer order (T.O) from the Settlement authorities---Defendants claiming title over property upon sale by the plaintiff contended that the sale was proved in view of the judgment of the Trial Court---Validity---Sale in question had not been proved since it was not done in accordance with the law, i.e. marginal witnesses were not examined---Not sufficient for a party to just place certified copies on the record and then claim that they had been proved without following the proper procedure of the law---Sale in question was never formally challenged by the plaintiff, i.e. she never sought a declaration that the sale deeds be cancelled---Claims of the some of the defendants, which were based on orders from the Settlement authorities were never touched by both the courts below---Petition for leave to appeal was converted into appeal and allowed, impugned judgments of both the courts below were set aside and the case was remanded to the Trial Court, where the plaintiff would have the right to amend the plaint subject to all just exceptions.

Mst. Maram Bibi alias Kumari Anne Balklah Kaul v. The Custodian Evacuee Property Punjab Lahore and 166 others 1996 SCMR 1483 ref.

Amir Alam Khan, Senior Advocate Supreme Court, Sardar M. Aslam, Advocate Supreme Court and M. Ilyas Khan, Advocate Supreme Court for Petitioners (in C.P. 1060-L of 2007).

Gulzarin Kiyani, Senior Advocate Supreme Court for Petitioners (in C.P. 1117-L of 2007).

Gulzarin Kiyani, Senior Advocate Supreme Court, Hamid Ali Mirza, Advocate Supreme Court, Jehangir A. Jhoja, Senior Advocate Supreme Court, Ch. Inayatullah Khan, Advocate Supreme Court, Maqbool Elahi Malik, Senior Advocate Supreme Court, Sardar M. Salam, Advocate Supreme Court and Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Respondents (in C.P. 1060-L of 2007).

Amir Alam Khan, Senior Advocate Supreme Court, Sardar M. Aslam, Advocate Supreme Court, M. Ilyas Khan, Senior Advocate Supreme Court, Kh. M. Farooq, Senior Advocate Supreme Court, M. Iqbal Ghaznavi, Advocate Supreme Court for Respondents (in C.Ps. 1117-L and 1118-L of 2007).

Date of hearing: 12th June, 2012.

2012 S C M R 1387

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Sarmad Jalal Osmany and Gulzar Ahmed, JJ

Civil Appeals Nos. 285 and 286 of 2001

(On appeal from the judgment of the Lahore High Court, Lahore dated 13-11-2000 passed in R.S.As. Nos.1054 and 1055 of 1978).

MUHAMMAD SIDDIQUE and others---Appellants

Versus

MUHAMMAD SHARIF and others---Respondents

Civil Appeal No.318 of 2001

(On appeal from the judgment of the Lahore High Court, Lahore dated 10-1-2001 passed in R.S.A. No.118 of 1984).

Mst. GHULAM FATIMA through L.Rs.---Appellant

Versus

GHOUS MUHAMMAD and others---Respondents

Civil Appeal No.1679 of 2002

(On appeal from the judgment of the Lahore High Court, Multan Bench dated 4-4-2000 passed in C.R. No.457 of 1981).

ASHRAF---Appellant

Versus

Mst. KALSOOM and others---Respondents

Civil Appeal No.774 of 2004

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench dated 25-6-2001 passed in C.R. No.125 of 1982).

MUHAMMAD ASLAM and others---Appellants

Versus

BASHIR AHMAD and others---Respondents

Civil Appeal No.2115 of 2006

(On appeal from the judgment of the Lahore High Court, Lahore dated 5-3-2002 passed in R.S.A. No.12 of 1975).

MUHAMMAD HUSSAIN (DECD) through L.Rs. and others---Appellants

Versus

MUHAMMAD SADIQUE---Respondent

Civil Appeals Nos.285, 286, 318 of 2001, 1679 of 2002, 774 of 2004 and 2115 of 2006, decided on 15th June, 2012.

Punjab Pre-emption Act (I of 1913)---

----S. 8(2)---Colonization of Government Lands (Punjab) Act (V of 1912), S. 3---Government Tenants (Punjab) Act (III of 1893), S. 3---Government of Punjab, Notification No.196-B, dated 28-2-1944---State of Bahawalpur, Notification No.74, dated 12-6-1944---Government land declared as 'colony land' exempted from pre-emption---Scope---Notifications No.196-B dated 28-2-1944 and No.74 dated 12-6-1944 were issued under S.8(2) of the Punjab Pre-emption Act, 1913, and exempted the right of pre-emption with regard to lands included in a colony area to which the colonization of Government Lands (Punjab) Act, 1912 applied---Lands, which were subject matter of the present pre-emption suits, were initially owned by the Government in the 'colony area' but at the time of their sale they were privately owned---Question was as to whether sale of lands in question was exempt from pre-emption in view of the said Notifications---Contention of the pre-emptors (plaintiffs) was that lands in question ceased to be Government lands and had gone into private ownership, therefore, their sale would no longer remain exempt from pre-emption---Contention of the vendees (defendants) was that once the lands in question had been subjected to the Colonization of Government Lands (Punjab) Act 1912, change in ownership would not affect the exemption granted to the vendees under the Notifications in question---Validity---Land once declared as a 'colony land' and subjected to the Colonization of Government Lands (Punjab) Act, 1912, would remain subject to the said Act and thus exempt from pre-emption under the Notifications in question, notwithstanding that the property (land) had ultimately become privately owned--- Suits of pre-emptors were dismissed, accordingly.

Sher Muhammad v. Abdul Khaliq 1968 SCMR 320 and Noor Muhammad v. Muhammad Tufail 1991 SCMR 512 distinguished.

Mst. Khurshid Begum v. Ahmad Bakhsh and another PLD 1985 SC 405 and Mst. Rahmat Bibi v. Nathe Khan PLD 1969 SC 197 fol.

Muhammad Yaqoob v. Barkat Ali Civil Appeal No.53 of 1985; Abdul Khaliq v. Sher Muhammad PLD 1961 BJ 79; Nathe Khan v. Mst. Rahmat Bibi PLD 1961 (W.P.) BJ 96 and Bashir Ahmed v. Khushi Muhammad and others Civil Appeal No.676 of 1994 ref.

Babu and another v. Jalal Din and another PLD 1992 SC 102 dissented from.

Gulzarin Kiyani, Senior Advocate Supreme Court for Appellants (in C.As. 285, 286 and 318 of 2001).

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellants (in C.A. 1679 of 2002).

Taqi Ahmed Khan, Advocate Supreme Court for Appellants (in C.A. 774 of 2004).

Muhammad Ramzan Chaudhry, Advocate Supreme Court for Appellants (in C.A. 2115 of 2006).

Sheikh Masood Akhtar, Advocate Supreme Court for Respondents (in C.As. 285 and 286 of 2001).

Syed Najam-ul-Hassan Kazmi, Senior Advocate Supreme Court for Respondents (in C.A. 318 of 2001).

Nemo for Respondents (in C.A. 1679 of 2002).

Sh. M. Naeem Goreja, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in C.A. 774 of 2004).

Amir Alam Khan, Senior Advocate Supreme Court for Respondents (in C.A. 2115 of 2006).

Dates of hearing: 29th February, 1st March and 8th March, 2012.

2012 S C M R 1400

[Supreme Court of India]

Present: G.S. Singhvi and Mrs. Gyan Sudha Misra, JJ

OM PRAKASH---Appellant

Versus

STATE OF RAJASTHAN and another---Respondents

Criminal Appeal No.651 of 2012 (arising out of S.L.P. (Cri.) No.2411 of 2011), decided on 13th April, 2012.

(a) Juvenile Justice System---

----Rape---Plea of juvenility by accused---Determination of age of the accused---Contradictions and doubts in school records of the accused casting confusion over correct date of birth of the accused---Preference of medical evidence over school/academic records in such circumstances---Scope---Accused had allegedly committed rape with the complainant's daughter (victim), who was minor at the time of the incident---Courts below found that no clear and conclusive view was possible in view of the available evidence with regard to the age of the accused, therefore, the view which was in favour of the accused was taken and he was held to be a juvenile and referred to the juvenile court for trial---Contentions of the complainant (appellant) were that medical jurist, who had conducted an ossification test of the accused, opined that the accused was 19 years of age, and that the radiologist had opined that on the basis of the x-ray films, age of the accused was above 18 years---Contentions of the accused were that medical opinion could only be sought when matriculation or equivalent certificate or date of birth certificate from the school was not available and since, in the present case, the admission certificate of the accused was available, same should be allowed to prevail upon the medical evidence---Validity---Where the school record was itself not free from ambiguity and could not conclusively prove the minority of the accused, medical opinion could not be allowed to be overlooked or treated to be of no consequence---Where the Trial Court itself could not arrive at a conclusive finding regarding the age of the accused, the opinion of the medical experts based on x-ray and ossification test would have to be given preference over the shaky evidence based on school records and plea of circumstantial inference---Opinions of the medical jurist and radiologist, in circumstances, were significant and could not be overlooked---Accused had failed to prove that he was a minor at the time of the commission of the offence and hence could not be granted benefit of being a juvenile---Appeal was allowed, judgments and orders of courts below were set aside and accused was directed to be sent for trial before the court of competent jurisdiction and not the Juvenile court.

Ramdeo Chauhan alias Raj Nath v. State of Assam (2001) 5 SCC 714 : (AIR 2001 SC 2231 : 2001 AIR SCW 2159) ref.

(b) Juvenile Justice System---

----Accused committing a serious offence---Plea of juvenility raised by accused--- Determination of age of the accused--- School records/certificates of the accused casting reasonable doubt over plea of juvenility---Duty of court---Preference of medical evidence over school/academic records in such circumstances---Scope.

When accused had committed a grave and heinous offence and thereafter attempted to take statutory shelter under the guise of being a minor, a casual or cavalier approach, while recording as to whether an accused was a juvenile or not, could not be permitted as the courts were enjoined upon to perform their duties with the object of protecting the confidence of the common man in the institution entrusted with the administration of justice. While the courts must be sensitive in dealing with the juvenile who was involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused could not be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gave rise to a reasonable doubt about his assertion of minority. Under such circumstances, medical evidence based on scientific investigation would have to be given due weight and precedence over the evidence based on school administration records, which gave rise to hypothesis and speculation about the age of the accused. The matter, however, would stand on a different footing where the academic certificates and school records were alleged to have been withheld deliberately with ulterior motive and authenticity of medical evidence was under challenge by the prosecution.

Where the accused was involved in a heinous offence and his school record/certificates could not conclusively establish that he was a juvenile, the scales of justice were required to be put on an even keel by insisting for reliable and cogent proof in support of the plea of juvenility especially when the victim was also a minor.

(c) Juvenile Justice System---

----Purpose and scope---Method and mannerism of the commission of the offence---Effect---Plea of juvenility---Determination of age of the accused---Documentary evidence not reliable to support plea of juvenility---Medical evidence indicating accused to be a major---Reliance on medical evidence---Scope.

Where the conduct of an accused or the method and mannerism of the commission of the offence indicated an evil and a well-planned design of the accused, which indicated more towards the mature skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major could not be allowed to be ignored taking shelter of the principle of benevolent legislation. Statutory protection of the legislation on juvenile justice was meant for a minor who was an innocent law breaker and was not an accused having a mature mind who used the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him.

(d) Juvenile Justice System---

----Plea of juvenility---Determination of age of the accused---Medical evidence---Corroborative value---Scope.

While considering the relevance and value of the medical evidence, the doctor's estimation of age although was not a sturdy substance of proof as it was only an opinion, but such opinion based on scientific medical tests like ossification and radiological examination would have to be treated as a strong evidence having corroborative value while determining the age of the alleged juvenile accused.

Ramdeo Chauhan alias Raj Nath v. State of Assam (2001) 5 SCC 714 : (AIR 2001 SC 2231 : 2001 AIR SCW 2159) ref.

R.C. Kaushik for Appellant.

Ms. Pragati Neekhra for Respondents.

Date of hearing: 13th April, 2012.

2012 S C M R 1414

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

MOHYUDDIN HASHMI---Appellant

Versus

ALLAMA IQBAL OPEN UNIVERSITY through Vice-Chancellor and others---Respondents

Civil Appeal No.1287 of 2008, decided on 11th April, 2012.

(On appeal from the judgment dated 16-5-2008 passed by Islamabad High Court, Islamabad in C.R. No.17 of 2008).

(a) Allama Iqbal Open University Act (XXXIX of 1974)---

----Ss. 9 & 12---Allama Iqbal Open University Statutes, 1978, Pt. XIV, Statute 12---Student (appellant) registered for Ph.D. Program at Allama Iqbal Open University---Supervisor of student's thesis appointed---Dean of faculty, who was father-in-law of the student, changed the thesis supervisor and also headed the viva voce examination of the student---Attempt to confer Ph.D. degree on the student in haste---Effect---Student (appellant) was recommended for conferral of the Ph.D. degree and a notification in such regard was accordingly issued---Subsequently a committee was constituted to re-examine the issue, which found that the student had manoeuvred the change of the supervisor through the Dean of faculty (father-in-law of the student), and that after the change of the supervisor, the Ph.D. degree was conferred on the student in undue haste, consequently notification of conferral of Ph.D. degree was cancelled---Student initiated a civil suit challenging the vires of the cancellation of notification---Trial Court dismissed the suit, which was concurrently upheld by the First Appellate court and the High Court---Contentions of the student were that the Ph.D. degree was awarded to him by the University on the recommendation of competent supervisor and examiners and it could not have been cancelled merely on technical grounds; that there was no allegation of plagiarism against him; that concerned Dean was required in terms of regulations applicable to Ph.D. students to sit in the viva voce committee and if the Dean happened to be his father-in-law, it could not erode the credibility of the recommendation of the viva voce committee, which had no personal reason to favour him; that there was no finding by the courts below on merits of the thesis, therefore, the Supreme Court might direct the University to constitute a fresh committee for evaluation and the matter be decided accordingly, and that the student had also got himself registered in the Ph.D. program of another university, which had conferred a Ph.D. degree on him---Validity---Findings of the committee were that the supervisor of the thesis was changed by the Dean of faculty without approval of the competent authority, i.e. the Vice Chancellor; that the thesis was finalized and submitted for evaluation hastily in a period of three days after the appointment of the new (changed) supervisor; that although the Dean of faculty was obliged to be present during the viva voce examination of the student, but propriety demanded that being the father-in-law of the student , he should not have headed the examination---High Court had come to the conclusion that the student was guilty of using unfair means within the meaning Statute 12, Part XIV of Allama Iqbal Open University Statutes, 1978---Contention of student that his thesis might be referred to a different evaluation committee for considering the same on merit, was not tenable because such a ground was not taken in the plaint, and because there were concurrent findings of three courts below, and the Supreme Court, seized of an appeal in terms of Art.185(3) of the Constitution, generally did not interfere in concurrent conclusions of courts below---Supreme Court observed that the findings of courts below might adversely reflect on the conduct of the Dean of faculty but same would not in any manner impact the integrity or service profile of the student, who otherwise had an impressive academic record and had been conferred a Ph.D. degree by another University---Concurrent findings of courts below with regard to cancellation of Ph.D. Degree were upheld but adverse remarks made against the student were expunged, in circumstances---Appeal was disposed of, accordingly.

(b) Constitution of Pakistan---

----Art. 185---Appellate jurisdiction of Supreme Court----Interference in concurrent findings of fact recorded by courts below---Scope---Supreme Court seldom interferes in concurrent conclusions arrived at by courts below while exercising power under Art.185 of the Constitution unless and until finding is on the face of it against evidence or so patently improbable or perverse that to accept the same could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of principles relating to appreciation of evidence, or, finally if finding could be demonstrated to be physically impossible.

Muhammad Idrees v. Muhammad Parvez 2010 SCMR 5 rel.

Raja Muhammad Bashir, Senior Advocate Supreme Court for Appellant.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Respondents along with Dr. Nazir A. Sangi, Vice-Chancellor, Hafeez Ullah, Registrar and Sohail Nazir Rana, Additional Registrar.

Date of hearing: 11th April, 2012.

2012 S C M R 1422

[Supreme Court of India]

Present: R. M. Lodha and H.L. Gokhale, JJ

SURENDRA and others---Petitioners

Versus

STATE OF UTTAR PRADESH---Respondent

Special Leave Petition (Cri) No.2874 of 2008, decided on 28th February, 2012.

(a) Penal Code (XLV of 1860)---

----Murder---Unlawful assembly---Reappreaisal of evidence---Common object of unlawful assembly---Motive---Proof---Deceased was waylaid by the accused persons---Case not that of sudden provocation---Pre-planned and premeditated attack on the deceased---Accused persons armed with burris, knives and lathis---Injury report of the deceased showing that he was brutally and badly assaulted resulting in twenty one (21) injuries---Cumulative effect of injuries being the cause of death of the deceased---Pending criminal litigation between the deceased and the accused persons proving enmity, which established the motive for the occurrence---One of the accused exhorted other accused persons to kill the deceased---Effect---Prosecution, in circumstances, had been able to establish that all the members of the unlawful assembly acted in furtherance of common object to cause death of the deceased---Petitions for leave to appeal were dismissed, in circumstances.

Sarwan Singh and others v. State of Punjab (1978) 4 SCC 111 : (AIR 1978 SC 1525) and Kusum Chandrakant Khaushe v. Hmlingliana and others AIR 1993 SC 401 : (1992 AIR SCW 3273) distinguished.

(b) Penal Code (XLV of 1860)---

----S. 149---Unlawful assembly---Common object---Proof---Inference of common object has to be drawn from various factors such as the weapons with which the members were armed, their movements, the acts of violence committed by them and the result.

Rajiv Tyagi for Petitioners.

Kamlendra Mishra for Respondent.

Date of hearing: 28th February, 2012.

2012 S C M R 1428

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

FARID COMPANY (PVT.) LTD. and others---Appellant/Petitioner

Versus

VICE-COMMISSIONER, PESSI and others---Respondents

Civil Appeal No.2782 of 2006 and Civil Petition No.2564-L of 2002, decided on 18th May, 2012.

(On appeal from the judgment dated 10-5-2002 passed by the Lahore High Court, Lahore in FAO No.16 of 2002).

Provincial Employees' Social Security Ordinance (X of 1965)---

----Ss. 2(9) & 20(8)---Construction contract---Contractor was employed by the employer/owner of the premises for certain construction work---Payment of social security contribution by the contractor in respect of workers employed by him for the construction work---Scope---Contractor (appellant) was engaged by the owner of the premises (respondent) for certain construction work in its factory premises---Social Security Institution issued notice to the contractor for payment of "short paid contribution"---Commissioner Social Security Institution found that it was the owner of the premises who was liable to make payment of the short paid contribution, which finding was upheld by the Social Security Court---High Court reversed the judgment of the Social Security Court and held that the social security contribution was to be paid by the construction contractor in respect of the workers employed by him---Contentions of the contractor were that it was the employer who had to make the contribution; that the High Court misconstrued the expression "guarantee" appearing in S.20(8) of the Provincial Employees' Social Security Ordinance, 1965, because said expression only mandated that the employer/owner shall ensure that the social security was paid in respect of the workers of the contractors but it by no stretch of the imagination, shifted liability to the contractor---Validity---Although S.20(1) of the Provincial Employees' Social Security Ordinance, 1965, made the "employer" liable to make the social security contribution in respect of every employee "whether employed by him directly or through any other person" but in matters of construction work, S.20(8) of the Ordinance created an exception by providing that " in the case of construction work the owner of the building shall guarantee the payment of contributions by the contractor"---Under S.20(8) of the Provincial Employees' Social Security Ordinance, 1965, the owner of the building was only a "guarantor" to ensure that the payment of contribution was made by the "contractor" in cases of construction work---Legislative intent appeared to be that in all construction works it was the "contractor" who had to make the contribution and the owner of the building only had to "guarantee" the said payment---Impugned judgment of the High Court was not against the legislative intent or the declared law---Appeal was dismissed, in circumstances.

Sind Employees' S.S.L v. Consolidated Sugar Mills Ltd. 1989 SCMR 888 ref.

Aftab Gul, Advocate Supreme Court for Appellants (in C.A. 2782 of 2006).

Muhammad Naqi, Advocate Supreme Court for Petitioner (in C.P. 2564-L of 2002).

Inam ul Haq, Advocate Supreme Court for Respondents Nos.1 to 3 (in C.A. 2782 of 2006).

Ch. Arshad Mehmood, Advocate Supreme Court for Respondent No.4 (in C.A. 2782 of 2006 and for Respondent No.1 in C.P. 2564-L of 2002).

Date of hearing: 18th May, 2012.

2012 S C M R 1434

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Gulzar Ahmed and Muhammad Athar Saeed, JJ

ADNAN A. KHAWAJA---Appellant

Versus

THE STATE---Respondent

Suo Motu Case No.4 of 2010, Civil Miscellaneous Application No.1080 of 2010, Civil Miscellaneous Applications Nos.1238 and 1239 of 2010 and Civil Miscellaneous Application No.129 of 2012

(Suo Motu action regarding appointment of convicted person namely Ahmed Riaz Sheikh (NRO beneficiary), as Additional Director-General, Federal Investigation Agency).

Civil Miscellaneous Application No.1253 of 2010 in Suo Motu Case No.4 of 2010

(Report submitted in Court by Attorney-General regarding Fact Finding Inquiry in the case of Missing Letter No.PS/DG/FIA/2009/ 5047-49 dated 17-11-2009).

Civil Miscellaneous Application No.1254 of 2010 in Suo Motu Case No.4 of 2010

(Additional Documents comprising of Interim Report filed by Secretary Law dated 4-4-2010, points formulated by Secretary for Hon'ble Court, Advice of Former Attorney-General and Authorization letter in favour of Mr. Hassan Wasim Afzal, Joint Secretary of Ehtisab Bureau dated 20-5-1998).

Civil Miscellaneous Application No.1082 of 2010

(Report/Minutes of Hon'ble Chief Justice of Lahore High Court, Lahore).

Criminal Miscellaneous Application No.486 of 2010 in Criminal Appeal No.22 of 2002, decided on 12th July, 2012.

(a) Constitution of Pakistan---

----Arts. 204 & 184(3)---Contempt of Court Ordinance (V of 2003), Ss.3 & 5---National Reconciliation Ordinance (LX of 2007), Preamble---Supreme Court in the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), had issued directions to the Government to write letter to the authorities in Switzerland to seek revival of requests for mutual legal assistance and secure the status of civil party and the claims lodged to the allegedly laundered money lying in foreign countries including Switzerland---Former Prime Minister (predecessor of the present incumbent Prime Minister), was convicted and sentenced for contempt of the Supreme Court for non-implementation of said directions of the Supreme Court by him resultantly, he lost his membership of the National Assembly and consequently the office of the Prime Minister---All the said directions issued by the Supreme Court applied with equal force to the present incumbent Prime Minister---Supreme Court observed that newly elected Prime Minister had assumed the charge of his office and that he will implement the directions of the Court---Attorney General was directed to obtain instructions from the Prime Minister and inform the court of his (present incumbent Prime Minister's) response---Attorney General submitted that the matter was taken up in a Cabinet meeting which had desired that the Ministry of Law should furnish its views as regards the matter of implementation of the said directions of the Supreme Court, and as and when the Ministry of Law rendered its opinion in the matter, the Cabinet would then take decision in accordance with the provisions of the Constitution---Validity---Supreme Court observed that the response of the present Prime Minister was difficult to appreciate or accept since predecessor of the present incumbent Prime Minister was directed to implement the relevant directions of the Supreme Court "regardless of any advice tendered earlier or in future" and all such directions applied with equal force to the present incumbent of the office of the Prime Minister/Chief Executive of the Federation as he had merely stepped into the shoes of his predecessor in office and, thus, he too was bound to implement the relevant directions of the Supreme Court---Supreme Court had reiterated the said directions to the present incumbent Prime Minister requiring him to act in the matter forthwith and had further directed that the present incumbent Prime Minister/Chief Executive of the Federation should cause a report to be submitted before the Court (on the next date of hearing) regarding compliance of said directions, failing which the Supreme Court might initiate any appropriate action under the Constitution and the law.

Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 ref.

(b) Constitution of Pakistan---

----Arts. 248 & 204---National Reconciliation Ordinance (LX of 2007), Preamble---Contempt of Court Ordinance (V of 2003), Ss. 3 & 5---Protection (immunity) to the President of Pakistan---Scope---Directions given by the Supreme Court to the Government in the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), concerning writing of letter to authorities in Switzerland to seek revival of requests for mutual legal assistance and securing the status of civil party and the claims lodged to the allegedly laundered money lying in foreign countries including Switzerland---Former Prime Minister (predecessor of the present incumbent Prime Minister) did not implement said directions of the Supreme Court and was consequently convicted and sentenced for contempt of the Supreme Court---Contention of the former Prime Minister was that said directions of the Supreme Court were not implemented as the President enjoyed immunity under customary international law---Supreme Court observed that immunity under the customary international law was relevant to and could be invoked by the person concerned before, a foreign court and was, thus, irrelevant to the contempt of court proceedings against the then (former) Prime Minister.

Irfan Qadir, Attorney-General for Pakistan for Federation.

Akbar Tarar, Additional P.-G., NAB and Fauzi Zafar, Additional P.-G. NAB on behalf of National Accountability Bureau.

Dr. A. Basit, Senior Advocate Supreme Court for Ahmad Riaz Sheikh.

Nemo on behalf of Secretary Law.

Date of hearing: 12th July, 2012.

2012 S C M R 1492

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

MANZOOR HUSSAIN SHEIKH and others---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary and others---Respondents

C.P.L.As. Nos.115-K and 156-K of 2012, decided on 20th June, 2012.

(On appeal from judgment of the Sindh Service Tribunal, Karachi dated 12-3-2012 passed in Appeal No.20 of 2011).

Removal from Service (Special Powers) Sindh Ordinance (IX of 2000)---

----S. 3---Constitution of Pakistan, Art.212(3)---Registration Act (XVI of 1908), S. 87---Sub-Registrar (petitioner) in violation of statutory provisions and rules regarding territorial limits accepted thirty documents of conveyance pertaining to lands---Show cause notice was issued to the Sub-Registrar and in his reply he categorically conceded to such fact, but attempted to seek protection of S.87 of the Registration Act, 1908, claiming his misconduct as a mere irregularity, which could be cured---Registration authorities dismissed the Sub-Registrar from service and his appeals before the Board of Revenue and the Service Tribunal were dismissed---Validity---Although, in view of S.87 of the of the Registration Act, 1908, the irregularity committed by the Sub-Registrar was curable with the indulgence or discretion of higher authorities, but said provision did not empower him to do such an illegal act---Past service record of the Sub-Registrar was full of mischief and misconduct and on several occasions he was punished by the competent authority---Competent authority had taken all the legal and procedural steps to ensure fair opportunity of hearing to the Sub-Registrar and in his reply he even admitted his guilt constituting misconduct---Petition for leave to appeal was dismissed, in circumstances.

Shoa-un-Nabi, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioners (in C.P. No.115-K of 2012).

Adnan Karim, A.A.-G. (Sindh) for Petitioners (in C.P. No.156-K of 2012).

Adnan Karim, A.A.-G. (Sindh) for Respondents (in C.P. No.115-K of 2012).

Shoa-un-Nabi, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondents (in C.P. No.156-K of 2012).

Date of hearing: 20th June, 2012.

2012 S C M R 1495

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Ejaz Afzal Khan, JJ

MUHAMMAD AKHLAQ KHAN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.55 of 2011, decided on 20th June, 2012.

(Under Article 184(3) of the Constitution of Islamic Republic of Pakistan).

Industrial Relations Act (IV of 2008)---

----Preamble---Industrial Relations (Revival and Amendment) Act (XV of 2010), S. 1(3)--- Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution against the termination from service of employees of Karachi Electric Supply Company (KESC)---Retrenchment of employees of company---Appropriate forum for filing grievance petition---Determination---Revival of Industrial Relations Act, 2008---Scope--Chief Executive Officer/Management of Karachi Electric Supply Company (respondent) had decided to retrench services of various classes of employees---Said decision was subsequently withdrawn but notwithstanding such withdrawal the Company decided to terminate the services of various employees---Chairman of the Collective Bargaining Agent of the Company (petitioner) contended that after devolution of subjects/departments pursuant to the 18th Amendment in the Constitution , the Industrial Relations Act, 2008, stood revived and in terms of the said Act, it was the National Industrial Relations Commission (NIRC) which had jurisdiction to entertain grievance petition of the petitioners but the Commission was not entertaining such petitions, and if present petition was disposed of by the Supreme Court with the observation that National Industrial Relations Commission (NIRC) should entertain and decide the petitions, the petitioners would not press present petition any further---Validity---Industrial Relations Act, 2008, stood revived by virtue of S.1(3) of Industrial Relations (Revival and Amendment) Act, 2010, and the petitioners could file appropriate petitions before a forum envisaged under the Industrial Relations Act, 2008---Supreme Court observed that the request being made by the petitioners was reasonable---Petition was disposed of accordingly.

AIR League of PIAC Employees v. Federation of Pakistan 2011 SCMR 1254 rel.

Rasheed A. Rizvi, Senior Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 20th June, 2012.

2012 S C M R 1498

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

PAKISTAN INSTITUTE OF INTERNATIONAL AFFAIRS---Appellant

Versus

NAVEED MERCHANT and others---Respondents

Civil Appeal No.243-K of 2011, decided on 20th June, 2012.

(On appeal from judgment of High Court of Sindh, Karachi dated 14-11-2011 passed in C.P. No.S-974 of 2010).

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

----S. 13---Eviction of tenant (respondent)---Personal bona fide need of the landlord (appellant)---Rent controller had ordered eviction of the tenant on the ground of personal bona fide need of the landlord---First Appellate Court found itself in agreement with the findings of the Rent Controller---High Court in its constitutional jurisdiction set aside the concurrent findings of the courts below by placing reliance upon a plea (written statement) of the tenant which stated that during the pendency of the proceedings before the Rent Controller and the First Appellate Court, other tenements which had fallen vacant were re-let by the landlord---Contentions of the landlord were that the High Court had exercised its constitutional jurisdiction in an arbitrary manner by not affording an opportunity to the landlord to explain its position in respect of such a belated plea on behalf of the tenants, which was neither raised in their written objections nor in their evidence before the Rent Controller and First Appellate Court, and it was only raised for the first time before the High Court---Validity---Tenants did not dispute the fact that the plea upon which the High Court had set aside the concurrent findings of the two courts below was neither raised by the tenants or their predecessor-in-interest in their pleadings or in their affidavit in evidence nor even before the First Appellate Court---Said plea was raised for the first time before the High Court, which swiftly decided in favour of the tenant without affording any opportunity to the landlord to rebut/clarify their position in that regard---Present proceedings had consumed more than twenty years and during this period the landlord, in order to demonstrate their bona fide, were not required to remain in the state of status quo---Landlord had the choice and prerogative to occupy any tenement under their own use without any dictation in such regard from the tenants, particularly, in the circumstances, when reasonable explanation for claiming eviction of tenants in preference to other tenements was already offered in the pleadings as well as in the evidence which was not even disputed by the tenants---Alternate contention of the tenants that the case might be remanded to the High Court or to the lower courts for affording due opportunity of hearing to the parties to lead evidence, would have been worth consideration in case litigation between the parties had not already consumed more than two decades---Claim of the landlord, when examined on the basis of their word to word pleadings of the rent application and the affidavit in evidence of their witness left no doubt on the subject of their choice and preference which had already come on record and remained un-shattered and un-rebutted from the side of the tenants---Appeal was allowed, impugned judgment of the High Court was set aside and that of the two courts below in favour of the landlord were restored---Tenants were allowed two months' time to vacate and hand over actual physical possession of the rented premises to the landlord.

Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197; Juna Sher v. Sabz Ali 1997 SCMR 1062; Allied Bank of Pakistan v. Wahid Hussain 1986 SCMR 946; F.K. Irani and Co. v. Begum Feroze 1996 SCMR 1178; Muhammad Mubin v. Abdul Hakim 1986 SCMR 650; S.M. Noorruddin v. Saga Printers 1998 SCMR 2119 and Muhammad Yakub v. Health Officer, Municipal Committee 1973 SCMR 185 ref.

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

----S. 2(g)--- Personal bona fide need of the landlord--- Proof---Statement on oath of the landlord regarding claim of his personal need, un-shattered in cross-examination and un-rebutted in defence evidence was to be accepted by the court as bona fide.

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

----S. 2(g)---Selection of tenement for personal need of landlord---Landlord had the choice to select any of the tenements for his personal need and for such purpose the tenant or the court had no locus standi to give their advice for alternate accommodation.

K.A. Wahab, Advocate Supreme Court/Advocate-on-Record for Appelant.

N.C. Motiani, Advocate Supreme Court/Advocate-on-Record for Respondents.

Date of hearing: 20th June, 2012.

2012 S C M R 1504

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Gulzar Ahmed, JJ

SHAN FOOD INDUSTRIES---Appellant

Versus

EASTERN PRODUCTS (PVT.) LTD and others---Respondents

Civil Appeal No.223-K of 2011, decided on 4th July, 2012.

(Against the judgment dated 29-12-2010 passed by High Court of Sindh, Karachi in M.A. No.55 of 2004).

(a) Trade Marks Act (V of 1940)---

----S. 15---Opposition filed with the Registrar against a proposed trade mark---Failure to file power of attorney along with the opposition---Effect---Such failure was merely a procedural irregularity and could be cured by filing said document subsequently during the proceedings.

Gap Inc. A Daware Corporation USA through Authorized Signatory v. Gap Departmental Store, Karachi and another 2006 CLD 1477 ref.

(b) Trade Marks Act (V of 1940)---

----Ss. 15(2) & 2(h)---Revised Trade Marks Rules, 1963, Rr. 30 & 76---Filing of opposition to a proposed trademark---Limitation---Scope---Extension of time for filing opposition allowed by the Registrar---Legality---Appellant had registered a trade mark by the name of "SHAN" in respect of spices, since the year 1985---Respondent applied for the trade mark, "EASTERN SHAN TEA", registration of which was refused by the Registrar on the grounds that same was not only identical with the trade mark of the appellant, but also deceptively similar---Respondent contended that the opposition filed by the appellant to its proposed trade mark was time barred as the date of respondent's advertisement in the Trade Marks Journal was 1-10-1998 whereas opposition to it was filed by the appellant on 8-9-2001, which was not within the two months period provided under Rule 30 of the Trade Marks Rules, 1963 and that extensions were granted to the appellant for filing opposition in a consolidated manner which could not be done in terms of Rule 76 of Trade Marks Rules, 1963, which rule clearly provided that each extension must be for one month only---Validity---Respondent's advertisement for its proposed trade mark was issued for publication in the Trade Marks Journal on 1-10-1998 but was actually published in the said Journal on 15-3-2001, therefore, the limitation of two months provided in Rule 30 of Trade Marks Rules, 1963, would be counted from the latter date, as no one could oppose any application for registration of a trade mark unless it came within the public domain---Time for filing opposition, in such circumstances, would have expired on 15-5-2001---Applicant filed four applications for extension of time for filing opposition, which were allowed by the Registrar for up to one month each---Opposition was finally filed by the appellant on 8-9-2001, whereas the extended time period for filing opposition expired on 15-9-2001---Opposition filed by the appellant, in such circumstances, had in fact been filed within the maximum extension period of six months provided by Rule 76 of Trade Marks Rules, 1963---Appeal was allowed, accordingly.

Rehamt Elahi v. Messrs Hoyo Kabushiki Kaisha PLD 1992 SC 417 ref.

(c) Trade Marks Act (V of 1940)---

----S. 15(3)---Revised Trade Marks Rules, 1963, Rr. 30 & 76---Filing of opposition to a proposed trade mark---Limitation---Scope---Order of Registrar allowing extension of time for filing opposition---Appeal against such order of the Registrar---Maintainability---Order of Registrar for extension of time up to an aggregate of six months could not be the subject matter of an appeal, however extension granted beyond the period of six months was not only illegal but attracted S.15(3) of the Trade Marks Act, 1940, whereby the application for registration would stand abandoned if filed beyond such period of time---Order passed by Registrar vis-a-vis extension of time for filing opposition did not decide the rights and liabilities of the parties and hence could not be challenged in appeal as it was merely procedural in nature.

Rehmat Elahi v. Messrs Hoyo Kabushiki Kaisha PLD 1992 SC 417 rel.

(d) Revised Trade Marks Rules, 1963---

----R. 76---Registrar allowing extension of time to the aggrieved party for filing opposition to a proposed trade mark---No notices was issued to the applicant of the proposed trade mark---Justiciability of such an order---Discretion of Registrar---Scope---Where the Registrar did not deem it necessary to issue notice then same would not be justiciable.

(e) Trade Marks Act (V of 1940)---

----Ss. 8(a) & 10(1)---Prohibition on registration of certain trade marks---Determination as to whether two competing trade marks caused deception or confusion in the minds of the common public---Procedure---In order to come to such a conclusion, the two competing trade marks had to be kept side by side and thereafter a conclusion reached whether a mark so nearly resembled another so as to cause deception or confusion---Such an exercise was not one of discretion by a Tribunal but a finding of fact.

Jamia Industries Ltd. v. Caltex Oil (Pak) Ltd. and another PLD 1984 SC 8 ref.

(f) Trade Marks Act (V of 1940)---

----Ss. 8(a) & 10(1)---Prohibition on registration of certain trade marks ---Determination as to whether a proposed trade mark/logo would cause deception or confusion in the minds of common public as compared to a previously registered/used trade mark---Considerations.

Considerations were the process of manufacturing of the two commodities, their outlets or sale points, the nature of the goods, the trade channels, potential customers/consumers and visual comparison between the wrappers/packing of the products.

Said considerations were not absolutely essential in order to reach the correct conclusion regarding deception, etc. and there might be other variables.

Seven-up Company v. Kohinoor Thread Ball Factory and 3 others PLD 1990 SC 313; Messrs Alpha Sewing Machine Company v. Registrar of Trade Marks and another PLD 1990 SC 1074; Messrs Western Brand Tea, Karachi v. Messrs Tapal Tea (Pvt.) Limited, Lahore and another PLD 2001 SC 14; Formica Corporation v. Pakistan Formica Ltd. 1989 SCMR 361; Jamia Industries Ltd. v. Caltex Oil (Pak) Ltd. and another PLD 1984 SC 8 ref.

(g) Trade Marks Act (V of 1940)---

----Ss. 8(a) & 10(1)---Prohibition on registration of trade mark---Proposed trade mark likely to cause deception and confusion in the minds of the common public---Effect---Proposed trade mark more or less identical to an existing/registered trade mark---Effect---Appellant had registered a trade mark by the name of "SHAN" in respect of spices, since the year 1985---Respondent applied for the trade mark, "EASTERN SHAN TEA", registration of which was refused by the Registrar on the grounds that same was not only identical with the trade mark of the appellant, but also deceptively similar---Contentions of the respondent were that the word "SHAN" was a word of the "Urdu" language and had never been coined by anybody, therefore, no one could be allowed to monopolize the same; that logos of both the parties' products were quite dissimilar, and that there could be no question of deception as products were not co-related because tea was a refreshment and spices were not---Validity---Spices and tea were items of daily use usually available at the same general store and potential customers were the general public---Method of advertisement of both the products was generally the same, i.e. electronic and print media as well as billboards---Consumers and sale outlets of both the products were the same---Tea was a refreshment and not essentially a food item, similarly spices were used for seasoning food and were not an essential food item---Spices/condiments and tea were ingredients used for the purpose of refreshment/seasoning etc., the object of both being to make drinkables and eatables more palatable---Logo/design and words used in the wrappers/containers of both the products were essentially the same---Word "SHAN" in yellow letters with a red background was common to the wrappers of both the products, even though the wrappers varied in size and presentation---Registration of the respondent's proposed trade mark would have been a violation of S.8(a) of the Trade Marks Act 1940, as there was every likelihood of deception and confusion being caused in the minds of the common public as product of the respondent i.e. tea would be connected with the product of the appellant i.e. spices, and would have also been a violation of S.10(a) of the Act as both trade marks were more or less similar---Appeal was allowed, and respondent was directed not to use the word/logo "SHAN" for its product i.e. tea.

Unilever PLC., A British Company of Port Sunlight Wirral Merseyside, England v. R.B. Oil Industries (Pvt.) Ltd. Karachi 1999 MLD 1447; Mars Incorporated v. Pakistan Mineral Water Bottling Plant (Pvt.) Ltd. through Chief Executive/Director/Secretary 2001 MLD 39; Seven-up; Company v. Kohinoor thread Ball Factory and 3 others PLD 1990 SC 313; Messrs Alpha Sewing Machine Company v. Registrar of Trade Marks and another PLD 1990 SC 1074 and Kabushiki Kaisha Toshiba (also trading as Toshiba Corporation) v. Ch. Muhammad Altaf (trading as Murad Industries (Regd.) and another PLD 1991 SC 27 ref.

Jamia Industries Ltd. v. Caltex Oil (Pak) Ltd. and another PLD 1984 SC 8; CECIL De Cordova and others v. Vick Chemical Company PLD 1951 PC 108; National Detergents Limited v. MOD International (Pvt.) Ltd. 1993 MLD 590; Seven Up Company v. Deputy Registrar of Trade Marks 1987 MLD 91; MCDONALD'S Corporation v. Maxfood (Private) Limited and another 2006 CLD 466 and Multani Sohan Halva, Hussain Aghahi Multan v. Registrar of Trade Marks, Karachi and another 1987 CLC 1448 ref.

Messrs Western Brand Tea, Karachi v. Messrs Tapal Tea (Pvt.) Limited, Lahore and another PLD 2001 SC 14; Messrs Mehran Ghee Mills (Pvt.) Limited and others v. Messrs Chiltan Ghee Mills (Pvt.) Limited and others 2001 SCMR 967; Messrs Hero Motors Ltd. through Authorized Signatory v. Babar Auto Trading and Manufacturing Company through Proprietor 2010 CLD 22; Messrs Hero Motors Ltd. and another v. Babar Auto Trading and Manufacturing Company through Partners, Proprietors, Manager and another 2008 CLD 983; Formica Corporation v. Pakistan Formica Ltd. 1989 SCMR 361; Skyline Education Institute (Pvt.) Ltd. v. S.L. Vaswani and another AIR 2010 SC 3221; Lifeguard Milk Products Proprietary Ld.'S Application for a Trade Mark 1957 RPC 79; In the Matter of an Application by Ladislas Jellinek for the registration of a Trade Mark 1963 RPC 59; Soneri Travel and Tours Ltd. through Chief Executive/Director/Secretary v. Soneri Bank Limited 2011 CLD 193; Lipha Lyonnaise Industries Pharmaceutique through Authorized Signatory v. Registrar of Trade Marks and another 2009 CLD 1989; Thomas Bear and Sons (India) Ltd. v. Prayag Narain and another AIR 1940 Privy Council 86 and Malayan Tobacco Distributors Ltd. v. United Kingdom Tobacco Co. Ltd. AIR 1934 Privy Council 167 distinguished.

(h) Trade Marks Act (V of 1940)---

----Preamble---Revised Trade Marks Rules, 1963---Trade mark laws---Purpose---Trade mark laws were not only made for the protection of the owner of the trade mark but also for protection of the general public.

Sultan Ahmed Sheikh, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellant.

Abdul Kadir Khan, Advocate Supreme Court for Respondent No.1.

Saleem Ghulam Hussain, Advocate Supreme Court for Respondent No.2.

Dates of hearing: 8th June and 4th July, 2012.

2012 S C M R 1522

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

ATTA MUHAMMAD and others---Appellants

Versus

MUHAMMAD AFZAL---Respondent

Civil Appeal No.698 of 2008, decided on 16th July, 2012.

(On appeal from the judgment dated 21-1-2008 in C.R. No.75 of 2007 passed by the Lahore High Court, Lahore).

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Alleged sale of land by the plaintiff (respondent) in favour of the defendants (appellants) through impugned mutation---Ingredients of sale lacking in the alleged sale---Effect---Delay on part of the plaintiff in challenging impugned mutation---Issue of limitation---Defendants not pressing such issue before the courts below---Plaintiff proving that delay on his part in challenging impugned mutation was due to the murder of his brother at the hands of the defendants---Effect---Plaintiff had filed suit for declaration against the defendants alleging therein that he was owner of the property in question and impugned mutation allegedly attested under the orders of the Collector was illegal and fraudulent---Said suit was dismissed by the Trial Court and First Appellate Court, however the High Court decreed the suit in favour of the plaintiff---Contentions of the defendants were that entries of mutation in the Revenue Record were sufficient enough proof regarding title of the defendants; that the plaintiff remained silent for about 21 years regarding the impugned mutation, therefore, the suit was barred by time---Validity---Remarks column of the impugned mutation stated that mutation had been entered pursuant to the receipt of an application from the office of the consolidation officer but no particulars like date of said application or order of the consolidation officer had been written in the mutation document---Mutation document showed that impugned sale in favour of the defendants had been through special attorney but neither special power of attorney was produced before the Trial Court nor the document authorizing the attorney to enter into a sale with the defendants was produced on record---Ingredients of "sale", in such circumstances, were lacking and simpliciter entering of mutation in the revenue record was nothing but a fraudulent device in order to deprive the plaintiffs from their lawful ownership---Plaintiff in his suit clearly mentioned that his brother was murdered by the defendants after which he abandoned his residence and settled in another city and the proceedings of the impugned mutation were carried out in his absence---Illegal change in the revenue record would not have made the period of limitation run against the plaintiff as he had fully proved that he abandoned his residence after the murder of his brother at the hands of the defendants---Defendants, even otherwise, had failed to show that they had pressed their contention regarding limitation before the courts below---Order of High Court required no interference---Appeal was dismissed in circumstances.

Malik Noor Muhammad Awan, Advocate Supreme Court for Appellants.

Mian Ghulam Hussain, Advocate Supreme Court/Advocate-on-Record for Respondents.

Date of hearing: 16th July, 2012.

2012 S C M R 1526

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Amir Hani Muslim, JJ

Mst. NASEEM AKHTAR and others---Appellants

Versus

ABDUL TAWAB and others---Respondents

Civil Appeals Nos. 1678 and 1679 of 2006, decided on 21st May, 2012.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 20-6-2001 passed in R.S.A. No.18 of 1985/BWP and C.R. No.385-D of 2000 respectively).

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

----Ss. 12 & 27(b)---Contract Act (IX of 1872), S. 204---Transfer of Property Act (IV of 1882), Preamble---Land Reforms Regulation, 1972 [MLR No.115], Paras. 12(2) & 24(3)---Suit for specific performance of agreement to sell---Allotment of property---Allottee appointing attorney to deal with the property---Allottee selling property prior to the agreements to sell entered into by the attorney---Effect---Attorney selling property in fragments in violation of Paragraph 24(3) of Land Reforms Regulation, 1972---Effect---Revocation of agent's authority---Defendant (respondent) was allotted land measuring 59 kanals, 14 marlas on 28-2-1973---Before said allotment defendant executed power of attorney in favour of 'R', empowering the latter to obtain confirmation of the allotment and thereafter to sell, mortgage etc. the property so allotted---On 28-2-1973, the day of the said allotment, defendant through an oral agreement sold the entire property to the vendees---On 1-3-1973, the day after the said allotment, 'R' (attorney) entered into two separate agreements to sell the allotted land to the plaintiffs (appellants), which agreements (transactions) were entered in the revenue record and mutations thereof were attested subsequently---Defendant revoked the general power of attorney of 'R' on 18-4-1973---Plaintiffs filed suits for specific performance of agreements to sell, which were dismissed by the courts below---Contentions of the plaintiffs were that execution of power of attorney by the defendant in favour of 'R', through whom the plaintiffs had purchased the property and paid the sale consideration, was not denied by the principal (defendant); that revocation of power of attorney was expressly prospective and did not affect the transaction already effected by 'R' (attorney); that oral sale agreement by the defendant in favour of the vendees did not affect the plaintiff's title to the property as said sale was registered after the plaintiffs had filed the suit for specific performance; that civil court had no jurisdiction to declare the agreements to sell to be in violation of Land Reforms Regulation, 1972 [Martial Law Regulation No.115] and it were only the forums specified in the said Regulation that were competent to take cognizance of violation of any provision of the Regulation and declare a transaction to be void, and that the decisions by the courts below were arrived at by overlooking the provisions of S.27(b) of the Specific Relief Act, 1877 and S.204 of the Contract Act, 1872---Validity---Courts below declined to grant decree of specific performance to the plaintiffs because the oral agreement by the defendant on 28-2-1973, in favour of the vendees for the entire property was duly established, possession was delivered to the vendees and entire sale consideration was also received by the defendant; because the vendees were bona fide purchasers for valuable consideration having no notice of the agreement to sell by 'R' (attorney) in favour of the plaintiffs; because the sale considerations allegedly paid to 'R' (attorney) by the plaintiffs were made at a date, subsequent to the oral agreement in favour of the vendees, and because two separate agreements to sell in favour of the plaintiffs were in violation of Land Reforms Regulation, 1972---Said reasons and conclusions given by courts below were not unfounded---Notwithstanding the appointment of 'R' as attorney to deal with the property, defendant remained invested with the power to dispose of the property, which he did prior in time to the two agreements to sell effected by 'R' (attorney)---Transfer of Property Act 1882, was applicable to the property in question at the relevant time, therefore, attestation of mutation by the plaintiffs could not transfer the title of property to them---Granting plaintiffs' prayer for specific performance would amount to enforcing a transaction which was void under the Land Reforms Regulation, 1972---Appeals were dismissed, in circumstances.

Mst. Raj Bibi v. Additional Chief Land Commissioner, Punjab PLD 1975 Lah. 408 and Mst. Aisha Bibi v. Nazir Ahmad 1994 SCMR 1935 distinguished.

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

----S. 12---Specific performance---Void transaction---Enforcement---Validity---Remedy of specific performance of a contract being equitable in nature cannot be granted to enforce a transaction declared void by a statute.

Muhammad Maqbul Sadiq, Advocate Supreme Court for Appellants.

Inamullah Hashmi, Advocate Supreme Court for Respondents Nos.1 and 2 (in C.A. 1678 and 13 - 14 in C.A. 1679 of 2006).

Ex parte for other Respondents.

Date of hearing: 21st May, 2012.

2012 S C M R 1533

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Ijaz Ahmed Chaudhry, JJ

HABIBULLAH and others---Appellants

Versus

ABDUL MANAN and others---Respondents

Civil Appeal No. 48-L of 2010, decided on 18th July, 2012.

(On appeal from the judgment dated 18-11-2009 in W.Ps. Nos.6389 and 7380 of 2009 passed by the Lahore High Court, Multan Bench, Multan).

(a) Illegal Dispossession Act (XI of 2005)---

----S. 3---Landlord and tenant---Tenant (respondent) failing to pay electricity bills---Landlords (appellants) taking possession of property---Complaint filed against the landlords under S.3 of Illegal Dispossession Act, 2005---Trial Court convicting the landlords under S.3(2) of the Illegal Dispossession Act, 2005 and directing them to restore possession of property to the complainant-tenant---Legality---Contention of the landlords were that disputed property was given to the complainant-tenant on a monthly rent and the tenant was trying to usurp arrears of rent; that the complainant-tenant did not pay the electricity bills despite promising to pay them, and that the complainant-tenant himself gave possession of the premises---Validity---Evidence on record did not state that the landlords belonged to a land mafia, Qabza group or were property grabbers---Station House Officer (SHO) who was star witness of the case stated in his examination-in-chief that landlords were the owners of the property in question and had given the property to the complainant-tenant on rent; that the complainant-tenant had not paid the electricity bills; and that the complainant-tenant's contention that he had not taken the property on rent from the landlords but from some other person, was false---Complainant-tenant had failed to establish that landlords were land grabbers or belonged to a Qabza group---Present dispute was between individuals over immovable property and no case was made out under S.3 of Illegal Dispossession Act, 2005, which Act had been made for a special purpose and for special objects---Landlords had been wrongly sentenced---Appeal was allowed, landlords were acquitted of the charge and the complainant-tenant was directed to hand over the possession of the disputed premises to the landlords.

(b) Illegal Dispossession Act (XI of 2005)---

----Preamble & S. 3---Purpose and applicability of the Illegal Dispossession Act, 2005---Scope---Said Act was applicable only to those accused persons who had credentials or antecedents of Qabza group and were involved in illegal activities and belonged to a gang of land grabbers or land mafia.

Zahoor Ahmad and others v. The State and others PLD 2007 Lah. 231 and Mobashir Ahmad v. The State PLD 2010 SC 665 ref.

Appellant No.2 in person.

Mian Ghulam Hussain, Advocate-on-Record for the Complainant.

Arif Raja, Additional P.-G., M. Saleem SHO City, DG Khan, Hazoor Bakhsh, S.-I./I.O. for the State.

Date of hearing: 18th July, 2012.

2012 S C M R 1539

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

MEHMOOD HUSSAIN and another---Appellants

Versus

PRESIDING OFFICER, PUNJAB LABOUR COURT and others---Respondents

Civil Appeal No.589 of 2011, decided on 16th September, 2011.

(On appeal from the judgment dated 25-3-2011 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No.111 of 2006).

Payment of Wages Act (IV of 1936)---

----Ss. 2(ii)(g) & 15(2)---Industrial Relations Ordinance (XXIII of 1969), S.2(xxviii)---Worker claiming arrears of gratuity, medical leave, annual leave and overtime from purported employer---Worker, status of---Determination---Worker employed by contractor and not purported employer---Worker failing to prove relationship of employer and employee with the purported employer---Misreading of evidence by the Labour Court---Effect---Worker (respondent) filed application before the Authority claiming arrears, which according to him had been withheld by the purported employer/company (appellant)---Company (purported employer) denied relationship of employer and employee contending that worker was an employee of the contractor and not of the company---Authority dismissed worker's claim but same was allowed by the Labour Court and High Court---Contentions of the company were that they never employed the worker; that worker had entered into a contract with the contractor and was engaged as an employee by said contractor; that worker used to work in the premises of the company and for that purpose he was given an entry pass, which did not make him an employee of the company, and that the worker did not fall within the meaning of a worker provided in S.2(xxviii) of Industrial Relations Ordinance, 1969---Validity---Labour Court reversed the findings of the Authority mainly on the ground that company had admitted in its cross-examination that contract of the contractor started from 13-8-2001 whereas worker's claim was from August 2000, when admittedly the contractor was not in the picture---Labour Court did not examine the documents tendered by the worker in support of his claim---Said documents indicated that none of the claims were relatable to the period before 13-8-2001---Counsel for the worker had candidly conceded that they did not tender any document before the Authority or before the Labour Court with regard to a claim for the period prior to 13-8-2001, i.e. the period when the contractor had not entered into contract with the worker---Judgment of Labour Court reflected misreading of material evidence on record---Company had not issued any appointment letter in favour of the worker---Claim under Payment of Wages Act, 1936, could only be made with regard to payment withheld by an employer but the worker, in the present case, had failed to prove that he was employee of the company in terms of S.2(ii)(g) of Payment of Wages Act, 1936---Appeal was allowed, impugned judgments of the courts below were set aside and that of the Authority was restored.

Farid Ahmad v. Pakistan Burmah-Shell Ltd. and others 1987 SCMR 1463; Mian Munir Ahmad v. The State 1985 SCMR 257 and D.C. Works Limited v. State of Saurashtra AIR 1957 SC 264 rel.

Lawrencepur Woollen and Textile Mills Ltd. v. Government of the Punjab and others PLD 2004 SC 416 distinguished.

Muhammad Saleem Shahnazi, Advocate Supreme Court for Appellants.

Muhammad Aslam Malik, Advocate Supreme Court for Respondent No.3.

Date of hearing: 16th September, 2011.

2012 S C M R 1545

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

Dr. AZIM-UR-REHMAN KHAN MEO---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

C.P.L.A. No.769-K of 2011, decided on 14th June, 2012.

(On appeal from judgment of Sindh Service Tribunal, Karachi dated 17-6-2011 passed in Appeal No.116 of 2009).

Constitution of Pakistan---

----Art. 212(3)---Civil service---Dispute over inter-seniority---Seniority list, wherein civil servant (petitioner) was placed higher compared to the respondents---Department issuing new seniority list without any justification or legal determination of inter se seniority and placing the respondents higher compared to the civil servant---Validity---Seniority list was disturbed by the subsequent new seniority list without any basis or any legal determination of inter se seniority between the parties and therefore such arbitrary act of the department could not be sustained---Respondents were appointed in the year 1994 on regular basis, therefore they could not have been allocated seniority on the basis of their appointment in the year 1991 as against the civil servant who was appointed on regular basis on 25-10-1992---Supreme Court directed that inter se seniority was to be corrected on the basis of the earlier seniority list and the parties were to be placed in seniority list accordingly without disturbing their subsequent promotions---Petition for leave to appeal was converted into appeal and allowed and the seniority of the civil servant was restored against the respondents as per the earlier seniority list.

Ajmal Hussain Khan v. Chief Secretary, Government of Sindh and others 2012 SCMR 860; Federation of Pakistan v. Azam Ali 1985 SCMR 386 and Nasimul Haque Malik v. Chief Secretary to Government 1996 PLC (C.S.) 921 distinguished.

M.M. Aqil Awan, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Adnan Karim, Assistant Advocate-General Sindh and Mrs. Sheraz Iqbal Ch. Advocate-on-Record for Respondents Nos.1 and 2.

Ansari Abdul Latif, Senior Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondents Nos.6 to 9.

Date of hearing: 14th June, 2012.

2012 S C M R 1602

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Ijaz Ahmed Chaudhry, JJ

Mst. SHAFQAT PARVEEN---Petitioner

Versus

MUHAMMAD IFTIKHAR AMJAD and others---Respondents

Civil Petition No.1944-L of 2008, decided on 6th July, 2012.

(On appeal from the judgment dated 22-10-2008 passed by Lahore High Court, Lahore in Civil Revision No.952 of 2008).

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

----S. 42--- Constitution of Pakistan, Art. 185(3)--- Suit for declaration---Claim of ownership of suit property on the basis of alleged gift (hiba)---Plaintiff contended that she was the owner of the suit property (house) as same had been gifted to her by the donor (her father-in-law) at the time of her Nikah; that the documentary evidence in the form of Nikah Nama and stamp paper had been ignored by the courts below, and that the plaintiff was in possession of the suit property ever since her marriage---Validity---One of plaintiff's witnesses, who was also a witness of the Nikah Nama, had admitted in his cross-examination that the donor lived in the suit property till his death---Another plaintiff's witness had admitted in his cross-examination that the donor died in the suit property--- Plaintiff had admitted in her cross-examination that during the donor's life time she never attempted to have the house mutated in her name through a registered deed---Two of donor's sons, who appeared as witness, denied that the suit property was gifted to the plaintiff and contended that the donor desired to mutate the property in the name of his youngest son, in whose favour all the children of the donor had surrendered their shares---Said contention of donor's sons remained consistent on material particulars even after being subjected to exhaustive cross-examination---Entry in the Nikah Nama regarding the suit property had rightly been found by the courts below to be a later and collusive insertion because the house was not owned by the plaintiff's husband and it was against normal human conduct that a father who had six children could have deprived all of them and gifted the suit property, which was the only house the family had; because there was no corresponding endorsement in the column of the Nikah Nama by the alleged donor that he was gifting the house, and because the person who performed the Nikah or had made the alleged gift entry in the Nikah Nama was not examined---Evidence showed that the donor continued to live in the suit property till his death; that except for the conceding statement of the plaintiff's husband, no other heir of the donor supported the plaintiff's claim; that household articles of some of the heirs of the donor were lying in the suit property; that property tax of the suit property was paid in the name of the donor, and that the electricity meter was also installed in the name of the donor---Concurrent findings of fact of the courts below were not found to be against the evidence and did not reflect misreading or non-reading of evidence---Petition for leave to appeal was dismissed accordingly.

Faqraz Bibi v. Elahi Bakhsh 1994 SCMR 686; Muhammad Anwar Khan v. Sabia Khanam PLD 2010 Lah. 119 and Asma Ali v. Masood Sajjad PLD 2011 SC 221 ref.

(b) Islamic law---

----Gift---Validity---Essentials

Under Islamic law, offer, acceptance and delivery of possession were the three essential ingredients of a valid gift and the onus was on the donee to prove said components.

Mian Shah Abbas, Advocate Supreme Court for Petitioner.

Respondents Nos. 1 and 2 in person.

Date of hearing: 6th July, 2012.

2012 S C M R 1606

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Amir Hani Muslim, JJ

Ch. QAISER MEHMOOD---Appellant

Versus

PROVINCE OF PUNJAB through Secretary, Government Communication and Works and another---Respondents

Civil Appeal No.962 of 2007, decided on 31st May, 2012.

(Direct appeal from the judgment of the Lahore High Court, Lahore dated 7-2-2007 passed in C.R. No.382 of 2006).

(a) Arbitration Act (X of 1940)---

----S. 14(2)---Remitting of award---Serving of notices on parties---Scope---Dispute between claimant (appellant) and government department (respondent) resolved through arbitration---Arbitrators submitting their award before the court---Claimant, District Attorny and an official representing the Government department making conceding statements before the court to the effect that they would not object to the award---Authority to make conceding statement by said official---Scope---Said official made an application for adjournment in order to file objection to the award but same was dismissed by the Trial Court---High Court set aside decree of Trial Court holding that the official and District Attorney were not empowered to make concessional statements before the Trial Court and that in terms of S.14(2) of the Arbitration Act 1940, Trial Court should have served notices on the parties after the arbitrators had filed the award---Validity---Reply to claimant's application for appointment of arbitrators was made by said official on behalf of the Government department---Before arbitration award was submitted in court, said official was representing the Government department and was present on the day the award was filed and continued to appear before the court on subsequent dates---Government department had never questioned the authority of the official to represent it or to make a statement on its behalf---Fact that said official had made an application before the Trial Court for filing objection to the arbitration award showed that he continued to represent the Government department---Executive Engineer (XEN) who represented the Government department along with said official during the arbitration proceedings had also not questioned the authority of the official to make a statement on behalf of the Government department---Said official and District Attorney were present before the Trial Court when the award was filed, therefore, no prejudice was caused to the Government department---Appeal was allowed, judgment and decree of the High Court were set aside and that of the Trial Court was restored.

Pakistan through General Manager Pakistan Railways v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800 and Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 4247 ref.

(b) Arbitration Act (X of 1940)---

----S. 14(2)---Remitting of award---Serving of notices on parties---Object---Object of S.14(2) of Arbitration Act 1940, was to procure the attendance of the parties concerned before the court, after award was filed so as to provide them an opportunity to file objections, if any.

Sanaullah Zahid, Advocate Supreme Court for Appellant.

Mudassar Khalid Abbasi, Additional A.-G., Punjab for Respondents.

Date of hearing: 31st May, 2012.

2012 S C M R 1651

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Asif Saeed Khan Khosa and Sh. Azmat Saeed, JJ

Raja MUJAHID MUZAFFAR and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.91, C.M.A. No.2624 of 2011 and Constitutional Petition No.57 of 2012, decided on 29th June, 2012.

(a) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction under Art.184(3) of the Constitution---Public interest litigation---Locus standi of petitioner---Scope---Jurisdiction of Supreme Court under Art.184(3) of the Constitution was not a closed shop limited to adversarial proceedings to be initiated by a wronged litigant seeking redressal of his individual grievance---Rule of locus standi included enforcement of the constitutional rights of groups or class of persons, and public at large especially in the domain of public interest litigation to ensure a meaningful protection of the rule of law to all citizens.

Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Muhammad Yaseen v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 ref.

(b) Public Procurement Rules, 2004---

----Rr. 2(1)(g), 5, 14(a), 42(c)(ii) & (v)---Public Procurement Regulatory Authority Ordinance (XXII of 2002), Preamble---Constitution of Pakistan, Art.184(3)---Constitutional petitions under Art.184(3) of the Constitution calling into question the award of a contract to a foreign company for procurement of goods, equipment and services for the purpose of establishing a surveillance and monitoring system--- Maintainability--- Judicial review--- Scope---Procurement through public money---Sale of public property---Supreme Court in exercise of its jurisdiction of judicial review conferred by Art.184(3) of the Constitution could scrutinize matters where public money was being expended through procurement or public property was being sold, so as to ensure that transactions were undertaken and contracts executed in a transparent manner, legally, fairly and justly without any arbitrariness or irrationality---Supreme Court can exercise jurisdiction under Art.184(3) of the Constitution to scrutinize transactions undertaken by the Government so as to ensure that public money and public property was not squandered or stolen---Petitions under Art.184(3) of the Constitution were maintainable in such circumstances.

Suo Motu Case No.13 of 2009 PLD 2011 SC 619; Suo Motu Case, action regarding huge loss to public exchequer by ignoring lowest bid of Fauji Foundation and Multinational Energy from Vitol by awarding LNG Contract PLD 2010 SC 731; Human Rights Cases, action taken on news clippings regarding Fast Food outlet in F-9 Park Islamabad PLD 2010 SC 759; Non-Transparent Procedure of Purchase of 150 Locomotives by Ministry of Railways Resultantly Causing 40 Billion Losses to the National Exchequer, Suo Motu Case 2012 SCMR 226; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Alleged Corruption in Rental Power Plants and others Human Rights Case 2012 SCMR 773 ref.

(c) Public Procurement Rules, 2004---

----Rr. 2(1)(g), 5, 14(a), 42(c)(ii) & (v)---Public Procurement Regulatory Authority Ordinance (XXII of 2002), Preamble---Constitution of Pakistan, Art.184(3)---Constitutional petitions under Art.184(3) of the Constitution calling into question award of a contract to a foreign company for procurement of goods, equipment and services for the purpose of establishing a surveillance and monitoring system---Direct contracting---Issuance of public advertisement and procedure of an open bidding not employed by the Procuring agency/Ministry of Interior (respondent) on grounds of emergency and national security---Validity---Relevant summary by Ministry of Interior (procuring agency) as well as the communications, minutes of different meetings, preceding the same and the approval that followed made no reference whatsoever to any natural calamity, disaster, accident, war or operational emergency whatsoever as defined in Rule 2(1)(g) of Public Procurement Rules, 2004---Procuring agency i.e. Ministry of Interior did not specify the appropriate fora vested with the necessary authority to declare emergency nor it was the case of the Government that any such declaration had been made---Project had been conceived about three and half years before the contract in question, thereby excluding the possibility of an emergent situation, therefore, provisions of Rule 42(c)(v) of Public Procurement Rules, 2004 were not attracted to the facts and circumstances of the case---Contract in question had already been executed before the date on which the relevant summary seeking its approval was prepared, therefore, the entire exercise appeared to be farcical---Regarding applicability of Rule 42(c)(ii) of Public Procurement Rules, 2004, nothing on record indicated that the foreign company in question had a worldwide monopoly of the surveillance equipment and software, subject-matter of the contract in dispute---Various other foreign companies were in a position to offer similar goods and services but the entire market, both national and international, was never tapped---Regarding contention of Ministry of Interior (procuring agency) that public advertisement was not possible or permissible as contract in question pertained to internal security in terms of Rule 14(a) of Public Procurement Rules, 2004, no mention of any exemption was found in the relevant summary seeking approval of contract in question or any other allied document or during its eventual approval---No approval was ever obtained from the relevant authority for seeking deviation from the requirement of advertisement---Inviting proposals publically for surveillance systems was a common practice followed internationally---Procuring agency (Ministry of Interior) could have tailored its public advertisement for the project so as to not compromise security considerations---Rule 5 of Public Procurement Rules, 2004, was not relevant in the present case---Framework Agreement between Government of Pakistan and Government of China, pertaining to a concessional loan provided by the latter for implementation of the project in question, was not inconsistent with Rule 5 of Public Procurement Rules, 2004, so as to prohibit issuance of a public advertisement inviting bids for the project---Report of a technical committee revealed that contract in question was executed without any feasibility study, and that quoted cost of equipment and software was almost three times the cost of comparables in the market---Cost of the project appeared to be suspicious especially in the absence of any due diligence conducted so as to ascertain the competitiveness of the offer qua the cost of the equipment and software in the open market---Contract in question was illegal and invalid having been executed in violation of the mandatory provisions of the Public Procurement Rules, 2004, as the exemption therefrom purportedly granted under Rule 42(c)(v) of the said Rules was based on extraneous and irrelevant reasons and therefore of no legal effect or consequence---Entire transaction was carried out in a non-transparent manner and for a cost which appeared to be inflated---Government was directed by Supreme Court to reinitiate the process for the procurement of the required equipment, software and services in a fair, just, rational and transparent manner, strictly in accordance with the provisions of the Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004 and the law--- Constitutional petitions were allowed accordingly.

Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116 and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 rel.

Federation of Pakistan and others v. Province of Balochistan and others PLD 1975 SC 66; The Chairman, District Screening Committee Lahore and another v. Sharif Ahmad Hashmi PLD 1976 SC 258; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Watan Party through Punjab President Ladies Wing Tasneem Shaukat Khan v. Chief Executive/President of Pakistan and another PLD 2003 SC 74; Mian Muhammad Shahbaz Sharif v. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others PLD 2004 SC 583; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600; Watan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Jamat­e-Islami through Amir and others v. Federation of Pakistan and others PLD 2008 SC 30; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Suo Motu Case No.5 of 2010, action regarding huge loss to public exchequer by ignoring lowest bid of Fauji Foundation and Multinational Energy from Vitol by awarding LNG Contract PLD 2010 SC 731; Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010, action taken on news clippings regarding Fast Food outlet in F-9 Park Islamabad PLD 2010 SC 759; Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109; Suo Motu Case No.13 of 2009, action on press clipping from the Daily "Patriot", Islamabad dated 4-7-2009 regarding Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (MPCHS) for development of land in Sector E­11 Islamabad PLD 2011 SC 619; Corruption in Hajj arrangements in 2010, in the matter of Suo Motu Case No.24 of 2010 and Human Rights Cases PLD 2011 SC 963; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Syed Zulfiqar Mehdi and others v. Pakistan International Airlines Corporation through M.D., Karachi and others 1998 SCMR 793; Non-Transparent Procedure of Purchase of 150 Locomotives by Ministry of Railways Resultantly Causing 40 Billion Losses to the National Exchequer; Suo Motu Case No.7 of 2011 2012 SCMR 226; Alleged Corruption in Rental Power Plants etc, Human Rights Case 2012 SCMR 773; Kedar Nath Motani and others v. Prahlad Rai and others AIR 1960 SC 213; Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394; PAKCOM Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Ramana Dayaram Shetty v. The International Airport Authority of India and others AIR 1979 SC 1628; Ajay Hasia and others v. Khalid Mujib Sehravardi and others AIR 1981 SC 487; Tariq Aziz-ud-Din and others, in Human Rights Cases 2011 PLC (C.S.) 1130; Reliance Energy Ltd. and another v. Maharashtra State Road Development Corporation Ltd. and others (2007) 8 SCC 1 ref.

(d) Public Procurement Rules, 2004---

----R. 14(a)---Proposed procurement---Mandatory advertisement---Exception---National security---Scope---Rule 14 of Public Procurement Rules, 2004 commenced with a declaration that it was mandatory to advertise all procurement requirements exceeding a specified amount, where after an exception [Rule 14(a)] had been created permitting a deviation---Rule 14 of Public Procurement Rules, 2004 did not perceive of an exemption from the rules and the necessity of public advertisement but only a deviation---Like all exceptions, said rule must be construed strictly keeping in view the proportionality of the requirement for such deviation.

(e) Public Procurement Rules, 2004---

----Rr. 3 & 5---International and inter-governmental commitments of the Federal Government---Provisions of an international treaty or agreement prevailing over Public Procurement Rules, 2004---Scope---Rule 5 of Public Procurement Rules, 2004 examined in juxtaposition with Rule 3, made it clear and obvious that the same did not apply to a contract entered into by the Government of Pakistan and the manufacturer or provider of goods and services based outside the country as Rule 3 clearly provided that it applied to all procurements by the Federal Government whether from within or outside Pakistan.

Athar Minallah, Advocate Supreme Court for Petitioners (in C.P. No.91 of 2011).

Babar Sattar, Advocate in person (in C.P. No.57 of 2012).

Irfan Qadir, AGP, Babar Ali, DAG, M.S. Khattak, Advocate-on-Record and Raja Abdul Ghafoor, Advocate-on-Record for Federation/State.

Raza Kazim, Senior Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record and Dr. Tahir Akram, Chief Administrative Officer for NADRA.

Afnan Karim Kundi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Messrs Hauwei Technology Company.

Dates of hearing: 25th, 26th, 28th and 29th June, 2012.

2012 S C M R 1679

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

FEROZUDDIN and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, KARACHI EAST and another---Respondents

Civil Petition No.116-K of 2010, decided on 17th May, 2012.

(On appeal from the judgment dated 22-12-2009 of the High Court of Sindh, at Karachi passed in Constitution Petition No.187 of 2008).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan, Art. 185(3)---Eviction of tenant---Personal bona fide need of landlord---Shop in question was required by the landlord for his son, who was residing abroad and was jobless---Landlord, who was an old person needing proper look after and care, decided to call back his jobless son and sought to put him in business in the shop in question---Sufficient funds for establishment of said business was available---Contentions of the tenant was that landlord had failed to prove personal bona fide need of his son, who was permanently residing abroad, and that landlord's son filed his affidavit in evidence before the Rent Controller, but subsequently request was made for withdrawal of the said affidavit---Validity---Landlord's son had filed his affidavit in evidence as attorney of the landlord and not in his personal capacity---First Appellate Court and High Court after elaborately discussing the evidence had rightly come to the conclusion that premises (shop) in question was required by the landlord for personal use of his son---Petition for leave to appeal was dismissed accordingly.

Zahoor Din v. Mirza Ayub Baig 1981 SCMR 1081; Syed Jan Muhammad and another v. Syed Abdul Khair 2001 SCMR 1287 and Muhammad Iqbal v. Syed Sohail Wajid Gillani 2004 SCMR 1607 ref.

Abdul Qadir Khan, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Petitioners.

Shafi Muhammad, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondent No.2.

Nemo for Respondent No.1.

Date of hearing: 17th May, 2010.

2012 S C M R 1681

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Sarmad Jalal Osmany and Gulzar Ahmed, JJ

SHOUA JUNEJO and others---Appellants

Versus

PIA and others---Respondents

Civil Appeals Nos. 206-K and 207-K of 2010, decided on 25th June, 2012.

(Against the judgment dated 18-8-2010 passed by High Court of Sindh at Karachi in C.P. No.2812 and C.Ps. Nos.D-430 and D-126 of 2010).

Pakistan International Airlines, Personnel Policies Manual (15-9-2008)---

----Para. 2.01.01---Constitution of Pakistan, Art. 199---Dispute between Pakistan International Airlines and its air-hostesses over allotment of accommodation---Jurisdiction of High Court to adjudicate said dispute in its constitutional jurisdiction---Scope---Appellants who were air-hostesses in Pakistan International Airlines (respondent) were allotted rooms/accommodation in said Airline's 'trainee hostel for air-hostesses' but were subsequently issued a letter asking them to vacate the hostel on the ground that same was meant for trainees only and not for the permanent staff of the Airline---Appellants claimed that they were entitled to stay in the hostel in accordance with paragraph 2.01.01 of the Personal Policies Manual and consequently filed constitutional petition before the High Court but the court declined to interfere in the matter in its constitutional jurisdiction---Validity---Pakistan International Airlines did not have any statutory rules therefore whenever an issue arose as to the violation of the terms and conditions of its employees then the same would not be open to interference by the High Court in its constitutional jurisdiction as the relationship of its employees with Pakistan International Airlines was that of 'master and servant'---Facts of the present case denoted that indeed there was a dispute between the appellants and Pakistan International Airline as to the terms and conditions of service in which event the principle of 'master and servant' would squarely apply and consequently the High Court correctly declined to interfere in its constitutional jurisdiction---Appeals were declined accordingly.

Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 and Abdul Rehman v. Federation of Pakistan through Secretary Ministry of Petroleum, Islamabad and 3 others 2010 PLC (C.S.) 691 distinguished.

Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 and Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132 ref.

Muhammad Ikram Siddiqui, Advocate Supreme Court for Appellants (in C.A. No.206-K of 2010).

Abdul Qadir Khan, Advocate Supreme Court and Aziz Khan, Advocate-on-Record for Appellants (in C.A. No.207-K of 2010).

Shafquat Ali Shah Masoomi, Advocate Supreme Court for Respondents Nos. 1 to 5.

Date of hearing: 25th June, 2012.

2012 S C M R 1685

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Ijaz Ahmed Chaudhry, JJ

Dr. MUHAMMAD RIAZ AKHTAR alias Dr. SHAHID---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No.495-L of 2012, decided on 19th July, 2012.

(On appeal from the order dated 21-6-2012 in Criminal Miscellaneous No.8298-BC/2012 passed by the Lahore High Court, Lahore).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 462-C---Constitution of Pakistan, Art. 185(3)---Tampering with auxiliary or distribution pipelines of petroleum (gas)---Bail, grant of---Further inquiry---Absence of incriminating evidence---Offence not falling within prohibitory clause of S.497, Cr.P.C.---Allegation against the accused (petitioner) was that he disrupted the natural gas distribution pipeline and illegally supplied natural gas to 500 houses in the locality---Accused was granted bail by the Trial Court but same was cancelled/recalled by the High Court---Contentions of the accused were that there was no incriminating material available on the record against the accused which could justify cancellation of bail; that consumers of the gas who had been allegedly supplied gas by the accused had not stated before the police during the course of investigation that the accused was a distributor of supply of gas through illegal means, and that the High Court had cancelled the bail granted to the accused merely on the severeness of the allegation levelled against him---Validity---Prima facie, there was nothing on record to connect the accused with the alleged crime as no one entered appearance before the police to state that accused had been charging an amount for supply of gas---No natural gas connection was available in the house of the accused---Offence with which the accused was charged did not fall within the prohibitory clause of S.497, Cr.P.C.---Trial Court had rightly granted bail to the accused treating the case as one of further inquiry and the High Court had erred in law while cancelling the bail---Petition for leave to appeal was converted into appeal and allowed by setting aside the order passed by the High Court---Accused was admitted to bail accordingly.

Rana Habib ur Rehman Khan, Advocate Supreme Court for Petitioners.

Mazhar Sher Awan, Additional P.-G., Muhammad Javed, Executive Law Officer SNGPL, Asghar Ali, S.-I. and Muhammad Anwar, A.S.-I. for the State.

Complainant (Respondent No.2) in person.

Date of hearing: 19th July, 2012.

2012 S C M R 1688

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

Syed PHOOL BADSHAH and others---Appellants

Versus

ADBP through Manager, Peshawar Branch and others---Respondents

Civil Appeal No.110 of 2002, decided on 3rd July, 2012.

(Against judgment dated 10-1-2002 of the Peshawar High Court, Peshawar, passed in FAB No.33 of 1999).

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

----O. VII, R. 7---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9---Suit for recovery of loan---Relief to be specifically stated---Scope---Banking Court decreeing a suit for recovery of finance including a finance facility, which was not subject matter of the suit---Validity---No application was filed for amendment of memo of plaint to incorporate the said finance facility and same was not the subject matter before the Banking Court---Banking Court could not decree the suit in respect of an amount which was not subject matter before it in the suit---Appeal was allowed, judgments and decrees of courts below were set aside and matter was remanded to the Banking Court for decision afresh strictly in accordance with the law.

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

----O. VII, R. 7---Relief to be specifically stated---Scope---Facts not disclosed in the pleadings---Effect---Provisions of Order VII, Rule 7, C.P.C. empowered the court to grant an effective or ancillary relief even if not prayed, as the plaint as a whole was to be looked into in order to determine relief for which plaintiff was entitled, however, no relief could be granted upon facts and documents not disclosed in the pleadings.

Abdul Rauf Rohaila, Senior Advocate Supreme Court for Appellants.

Asad Kamal, Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 3rd July, 2012.

2012 S C M R 1691

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Amir Hani Muslim, JJ

MUHAMMAD ABID---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petitions for Leave to Appeal Nos.11-K and 15-K of 2012, decided on 3rd May, 2012.

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

----Ss. 497(2)(5) & 173---Constitution of Pakistan, Art. 185(3)---Petition for cancellation of bail, dismissal of---Filing of subsequent bail application on ground of fresh supplementary challan---Scope---Allegation against accused and co-accused (bank-officials) was that they sanctioned auto loans in fictitious names and thereafter pocketed the loan amounts---High Court granted bail to the accused and co-accused---Contentions of complainant (petitioner) were that bail applications of accused and co-accused were dismissed twice by the High Court, however they were granted bail on the third time in deviation of the earlier view formed by the High Court---Validity---Accused was neither nominated in the F.I.R. nor his name had appeared as accused in the first challan submitted by investigation agency and he was only transposed as an accused in further investigation, which by itself was sufficient to grant bail as a case of further inquiry was made out---Repeating of bail application on the ground of fresh supplementary challan was permissible, as further material is collected in supplementary challan, which might lead the court to form a different opinion than the one formed earlier---Investigating officer had conceded that he could not collect direct evidence against accused or co-accused to establish that they were beneficiaries of the amount, which was paid towards loan---High Court had granted bail in its discretion after examining the material and Supreme Court would not intervene in such an order unless it was shown that gross injustice had been done---Case of further inquiry was made out and High Court was competent to grant bail---Present case did not attract provisions of S.497(5), Cr.P.C.--- Petitions for leave to appeal were dismissed, in circumstances.

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

----S. 497(2)---Bail---Further inquiry---Scope---Witness of case transposed as an accused in criminal proceedings---Effect---Case of further inquiry would be made out in such circumstances.

Z.U. Mujahid, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner (in Criminal Petitions for Leave to Appeal Nos.11-K and 15-K of 2012).

Syed Ashique Raza, D.A.-G. along with Muhammad Iqbal, Inspector, FIA for Respondent No.1 (in Criminal Petitions for Leave to Appeal Nos.11-K and 15-K of 2012).

Nemo for Respondent No.2 (in Criminal Petitions for Leave to Appeal Nos.11-K and 15-K of 2012).

Date of hearing: 3rd May, 2012.

2012 S C M R 1694

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Muhammad Athar Saeed, JJ

UNIVERSITY OF KARACHI and others---Petitioners

Versus

TARIQ HUSSAIN and another---Respondents

Civil Petition No.49-K of 2012, decided on 4th June, 2012.

(On appeal from the order dated 14-1-2012 of the High Court of Sindh, Karachi passed in C.P. No.D-2481 of 2010).

Educational Institution---

----Master's degree, award of---Admission---Eligibility, determination of---Student (respondent), who successfully completed the Master's program in question was denied a degree on the grounds that he was not eligible for admission to the program as he did not have the minimum required marks in his graduation examination---High Court allowed award of degree to the student on grounds that as per admission criteria for the program in question, postgraduate record of the student was to be considered and not his graduate record; that his post-graduate record fulfilled the criteria for admission to the program, and that raising question of eligibility after the result was unjustified and showed mala fide---Contentions of University (petitioner) were that student could not be awarded the degree as his marks in the graduation examination did not fulfill the requirements of minimum eligibility for admission, therefore, it did not matter whether he had completed the entire course and passed the examination, and that he was illegally given admission in connivance with University staff---Contentions of student were that admission criteria for the program provided that candidate who already had a Master's degree (postgraduate degree) was eligible for regular admission; that he had already obtained a Master's degree (postgraduate degree) at time of applying for the program in question, therefore, his postgraduate academic record was to be considered, on basis of which he was eligible for admission---Validity---Conclusions drawn by the High Court were correct and even otherwise University could not explain as to why it slept on the eligibility of the student for almost two and a half years till he had completed the program and his name was mentioned in the list of successful candidates---University also could not state with any amount of veracity whether any action was taken against any of the staff members of the University who allegedly were instrumental in granting illegal admission to the student---Student could not be punished after two and a half years of the alleged illegal admission, when the issue was never taken up during the tenure of the program in question---Petition for leave to appeal was dismissed in circumstances.

Nadeem Azhar Siddiqui, Advocate Supreme Court for Petitioners.

Respondent No.1 in person.

Date of hearing: 4th June, 2012.

2012 S C M R 1698

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Ijaz Ahmed Chaudhry and Sh. Azmat Saeed, JJ

COLLECTOR OF CUSTOMS, LAHORE and others---Petitioners

Versus

Mrs. SHAHIDA ANWAR---Respondent

Civil Petition No.1555-L of 2009, decided on 20th June, 2012.

(On appeal from the order dated 17-4-2009 of the Lahore High Court, Lahore passed in W.P. No.18251 of 2005).

Import Policy Order 2005-2006---

----Personal Baggage, Transfer of Residence and Gift Schemes (Import of Vehicles) Rules, 2005, R. 3(1)---Import Policy Order 2004-2005---Personal Baggage, Transfer of Residence and Gift Schemes (Import of Vehicles) Rules, 2004, R. 3(1)---Constitution of Pakistan, Art.185(3)---Restrospective effect of Rule 3(1) of Personal Baggage, Transfer of Residence and Gift Schemes (Import of Vehicles) Rules, 2005---Scope---Beneficial interpretation, principle of---Scope---Import of vehicle under the gift scheme---Import Policy Order 2004-2005, envisaged that vehicle to be imported under the gift scheme should be of a model which was not more than 2 years old, prior to the import, whereas subsequent Import Policy Order of 2005-2006, increased the said period to 3 years---Custom authorities (petitioner) confiscated the vehicle of the importer (respondent) on the basis that its model was 3 years old at the time of import whereas Import Policy Order of 2004-2005 provided a period of 2 years---Vehicle was released after payment of fine and the importer filed constitutional petition before the High court, which was allowed on the grounds that subsequent Import Policy Order of 2005-2006, provided a period of 3 years to avail the gift scheme and the vehicle in question pertained to that period, therefore Import Policy of 2005-2006 would have retrospective effect and confiscation order was not legally tenable---Contentions of Custom authorities (petitioners) were that both the Import Policy Orders were independent and covered different periods; that there was no reference in the Import Policy Order of 2005-2006 that it had any nexus with or impact or effect on the earlier Import Policy Order of 2004-2005, therefore, principle of beneficial interpretation qua retrospectively would be inapplicable---Validity---Before any action was initiated by the Custom authorities against the importer, a new Import Policy Order of 2005-2006 had come into force, in which the period of import of a vehicle was increased from 2 years to 3 years---Subsequent Import Policy Order of 2005-2006, in circumstances of the present case, could be given beneficial interpretation and retrospective effect accordingly, which was exactly what had been done by the High Court---Petition for leave to leave to appeal was dismissed, in circumstances.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 and Anoud Power Generation Limited and others v. Federation of Pakistan and others PLD 2001 SC 340 rel.

Izhar-ul-Haque, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 20th June, 2012.

2012 S C M R 1700

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Tariq Parvez and Mian Saqib Nisar, JJ

Ch. LIAQUAT ALI and another---Appellants

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Appeals Nos. 1288 and 1289 of 2008, decided on 10th July, 2012.

(On appeal from the judgment dated 7-4-2008 passed by Punjab Service Tribunal, Lahore in Appeals Nos. 2931, 2932 and 2933 of 2006).

Punjab Civil Servants Act (VIII of 1974)---

----Ss. 7(1) & 2(i)(b)--- Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 8---Inter se seniority---Appellants (civil servants) and respondents (civil servants) were appointed in BS-17 on temporary posts---Respondents were appointed on 'development' projects which were foreign funded and on closure of said project, they were adjusted against permanent posts on the basis of their length of service under the temporary projects, where after the respondents were placed senior to the appellants in the seniority list---Contentions of appellants were that respondents were working on 'development' projects of temporary nature and their salaries were paid from foreign monitory assistance, therefore, they were not civil servants in view of S.2(i)(b) of Punjab Civil Servants Act, 1974; that person appointed on a project post on year to year basis could not be assigned seniority vis-a-vis appointees on regular basis against permanent posts or against 'non-development' posts; that Service Tribunal was incorrect in finding that mere switching over of posts from 'development' to 'non-development' side did not alter the regular nature of appointments, terms and conditions of service or nature of functional unit/cadre and seniority of parties, and that delay in challenging seniority list could not be a basis for non-suiting the appellants as relegation of seniority was violative of law and was a recurring cause of action and could be challenged at any time---Validity---Relevant recruitment rules for the project created no distinction between 'development' and 'non-development' side---Contention of appellants that since the respondents were appointed against certain projects, which were abolished and were adjusted against certain posts after abolition of the earlier posts which they held and therefore, their seniority should be reckoned from the date of adjustment was neither borne out from the nature of the posts on which respondents were initially appointed nor it was so provided in the criterion of adjustment issued by the competent authority in the Provincial Government after abolition of said posts---Contention of appellants that since the respondents were initially appointed on a project, which was funded by a foreign donor, therefore, they could not be classified as appellants had no substance---Appellants had not referred to any order of the competent authority in the Provincial Government, which could warrant an interference that the appointment of respondents were against specific posts and on the completion of projects, their services could not be continued or which provided that the seniority of such officers would reckon from their adjustment---Initial appointments of respondents in BS-17 and their subsequent promotions in BS-18, were of earlier dates as against the appellants and both the parties were in the same functional unit---Departmental Promotion Committee or Provincial Selection Board had not varied the seniority of the appellants at any stage nor were they superseded---Seniority list published from time to time remained unchallenged by the appellants and in all such lists they were placed junior to the respondents and in such circumstances it was late in the day for appellants to challenge the seniority list after almost 15 years---No reference had been made by appellants to any rule or statutory provision which had been violated or contravened in upholding the impugned seniority list, wherein appellants had been placed junior to the respondents---Judgment of Service Tribunal was unexceptionable---Appeals were dismissed.

Sabir Zamir Siddiqui v. Abdul Malik PLD 1991 SC 226; Ahsanullah A. Memon v. Government of Sindh 1993 SCMR 982; Abdul Rashid Khan v. Muhammad Saleem Akhtar 1996 SCMR 1163; Muhammad Younas Jaffar v. Government of Pakistan PLD 1996 SC 86 and Din Muhammad v. Director-General Pakistan Post Office 2003 SCMR 333 ref.

Wazir Khan v. Government of N.-W.F.P. 2002 SCMR 889; Rashida Asif v. Aasia Gondal 2010 SCMR 450 and Ahmed Khan v. Secretary to Government 1997 SCMR 1477 rel.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants.

Jawad Hassan, Additional A.-G. for Respondents Nos.1 to 3.

Shoaib Shaheen, Advocate Supreme Court for Respondents Nos.4 to 7.

Date of hearing: 10th July, 2012.

2012 S C M R 1719

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Sh. Azmat Saeed, JJ

MUHAMMAD SALEEM---Appellant

Versus

PROVINCE OF PUNJAB through Collector/DO(R) T.T. Singh and others---Respondents

Civil Appeal No.2275 of 2006, decided on 24th July, 2012.

(On appeal from the judgment order dated 27-3-2006 of the Lahore High Court, Lahore passed in C.R. No.831 of 1998).

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.IX, R.9---Suit for declaration--- Decree against plaintiff by default bars fresh suit---Scope---Shop situated on ground floor of disputed property was transferred to predecessor-in-interest of the defendant, while residential portion situated on ground floor as well as on first floor of disputed property stood transferred to predecessor-in-interest of the plaintiff---Subsequently plaintiff (appellant) had filed a suit for declaration to the effect that he was an owner in possession of residential part of disputed property; that the defendants (respondents) were owners only of a shop forming part of ground floor of the property, which according to the plaintiff shop measured 10' x 22' Sq. ft. , and that the chobara situated in the said property was also in ownership of the plaintiff---Trial Court decreed suit of plaintiff to the extent that chobara was property of plaintiff but held that dimensions of shop vested in the defendant were not 10' x 22' Sq. ft. as alleged by plaintiff but 25-1/2' x 21-1/2' Sq. ft. as claimed by the defendant---First Appellate Court decreed suit of plaintiff in its entirety---Revision applications filed by defendant before High Court were accepted and suit of plaintiff was dismissed in its entirety on the ground that suit was barred under Order IX, Rule 9, C.P.C. as an earlier suit was dismissed in default and never restored, where after the present suit had been filed---Validity---Predecessors-in-interest of the plaintiff were impleaded as defendants in the said earlier suit---Ex facie present plaintiff was not the successor-in-interest of the plaintiff of the said earlier suit, therefore, dismissal of said earlier suit in default could not have any consequences for the present plaintiff, who did not claim any title through the plaintiff of the earlier suit---Copy of plaint of said earlier suit was never produced in evidence during proceedings of present case nor any specific issue pertaining to suit being barred under Order IX, Rule 9, C.P.C. was ever framed---Dimensions of shop, forming part of disputed property, were identified as 10' x 22' Sq. ft. in a proposed construction site plan dated 16-4-1945, submitted to Municipal Authorities---Another site plan from the year 1966, concerning proposed alterations in the disputed property as submitted to Municipal Authorities, also showed dimensions of shop as 10' x 22' Sq. ft., as claimed by the plaintiff---Both said site plans were produced in evidence by the plaintiff without any objection from the defendant---Admittedly only the shop situated on ground floor of disputed property was transferred to predecessor-in-interest of the defendant, while residential portion situated on ground floor as well as on first floor stood transferred to predecessor-in-interest of the plaintiff---Defendant was unable to show as to how the chobara which was admittedly not situated on the ground floor could be considered part of the shop---Findings of Trial Court and First Appellate Court to the effect that chobara stood transferred to the predecessor-in-interest of the plaintiff were unexceptionable and there was no occasion to set them aside---Appeal was allowed, judgment of High Court was set aside; judgment and decree of First Appellate Court stood restored and consequently suit of plaintiff decreed.

Sh. Naveed Shahryar, Advocate Supreme Court and Ms. Najma Parveen, Advocate for Appellant.

Ex parte for Respondents Nos. 1 to 44.

S.M. Masood, Advocate Supreme Court for Respondent No.45.

Date of hearing: 24th July, 2012.

2012 S C M R 1725

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Tariq Parvez, Mian Saqib Nisar and Ejaz Afzal Khan, JJ

MUHAMMAD SAFDAR and others---Appellants

Versus

PUNJAB LAND COMMISSION through Secretary and others---Respondents

Civil Appeals Nos. 295 and 296 of 2003, decided on 10th July, 2012.

(On appeal from the order dated 8-4-2002 of the Lahore High Court, Lahore passed in Review Applications Nos. 40 and 41 of 2002).

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

----S. 6--- Land Reforms Act (II of 1977), S. 6--- Constitution of Pakistan, Arts. 70 & 89---Ordinance during the process of its introduction and passing in the Parliament---Validity---Applicability of S.6 of Land Reforms Ordinance, 1977---Scope---Gift deed, validity of---Land in question was gifted to claimants/appellants by their predecessor-in-interest/declarant, a day before enforcement of Land Reforms Act, 1977---Land Commissioner did not accept validity of said gift, however held that since land was part of joint Khata, therefore, after partition of Khata, choice be given to declarant as to which part he would like to retain and which part he would surrender--- Subsequently claimants filed writ petition before High Court in view of the judgment in the case of Qazalbash Waqf v. Chief Land Commissioner, Punjab and others (PLD 1990 SC 99), whereby certain provisions of Land Reforms Act, 1977 were declared to be against Injunctions of Islam---Said petitions were dismissed by the High Court and review thereof met the same fate---Contentions of claimants were that gift deeds in their favour were dated a day before the coming into force of Land Reforms Act, 1977, therefore, S.6 of the Act was not attracted; that Land Commissioner had specifically held that holding of declarants was joint, therefore, land should be partitioned and declarants given an option to retain and surrender the land accordingly, only where after possession of surrendered land could be taken over, but same had not been done to date---Validity---Land Reforms Ordinance, 1977, in view of Art.89 of the Constitution, was valid legislation with a life of one hundred and twenty days---During said period of one hundred and twenty days unless an Ordinance was repealed, and while the process of its passing was in progress in terms of Art.70 of the Constitution, the Ordinance for all purposes and intent would be valid and operative law, entailing all legal incidents and consequences---Land Reforms Ordinance, 1977 was made into an Act of Parliament [Land Reforms Act, 1977] in view of such process/procedure, therefore, gift deeds in question were executed/registered during the period when Land Reforms Ordinance, 1977 was in force and it was under S.6 of the said Ordinance that gift transactions in question were void---Transactions which were void under Land Reforms Ordinance, 1977, which culminated into Land Reforms Act, 1977, could not be held to be outside the purview of S.6 of the said Ordinance or Act, which had absolutely similar/identical provisions---Gifts claimed by the claimants in their favour ipso jure were void---Partition of the Khata and physical handing over of possession was of no effect, as according to land reform authorities it was finally adjudged that declarants (predecessors-in-interest of claimants) had to surrender specific units of the excess lands and only because of the reason that it was subject to partition and possession was to be taken/given after giving choice to declarants, would not mean that decisive step was not taken in the matter---Once excess land of declarant was so adjudged by competent authorities, it was for all intents and purposes a matter covered by the rule of past and closed transaction, which could not be reopened/annulled on the basis of the judgment of Qazalbash Waqf v. Chief Land Commissioner, Punjab and others (PLD 1990 SC 99)---Appeals were dismissed, in circumstances.

Civil Appeals Nos.292 and 293 of 1976 ref.

(b) Constitution of Pakistan---

----Arts. 70 & 89---Introduction and passing of Bills---Ordinance during the process of its introduction and passing in the Parliament---Status---Ordinance according to Art.89 of the Constitution was a valid legislation with a life of one hundred and twenty days---According to Art.89(2)(a) of the Constitution, every Ordinance should be laid before either of the two Houses of Parliament and in terms of Art.89(3)(b) of the Constitution, it should be deemed to be a bill introduced in the house where it was being laid---During said period of one hundred and twenty days, unless such an Ordinance was repealed, and while the process of its passing was in progress in terms of Art. 70 of the Constitution, the Ordinance for all intents and purposes would be valid and operative law, entailing all legal incidents and consequences.

Dr. A. Basit, Senior Advocate Supreme Court for Appellants.

Mudassir Khalid Abbasi, A.A.-G. for Respondents.

Date of hearing: 10th July, 2012.

2012 S C M R 1757

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Athar Saeed, JJ

Rao SHAFAY ALI KHAN---Appellant

Versus

LAHORE HIGH COURT, LAHORE through Registrar---Respondent

Civil Appeal No.1157 of 2009, decided on 29th May, 2012.

(Appeal from the order dated 13-2-2009 of the Lahore High Court at Lahore passed in Service Appeal No.3 of 2007).

West Pakistan Government Servants (Conduct) Rules, 1966---

----R. 11---Judicial Officer---Compulsory retirement---Involvement of officer in sale and purchase of property---Misconduct and corruption---Abuse of judicial powers---Permission to be sought by public servant for transaction of immovable/movable property exceeding a certain value---Scope---Declaration by public servant of asset received as 'Amanat' (on trust)---Scope---Judicial Officer (accused/appellant) was alleged to have received a sum of money in his bank account from the complainant for purposes of selling land to the complainant---Judicial Officer allegedly only transferred half of the agreed land in the name of the complainant---Inquiry conducted by departmental authority found Judicial Officer guilty of charges of misconduct and corruption and orders were given for his compulsory retirement from service with immediate effect---Appeal against order of departmental authority was dismissed by High Court---Contentions of Judicial Officer were that in order to facilitate the complainant, he arranged with his brother to purchase some property for the complainant and in this connection he received money in his account, as his brother did not have a bank account of his own at that time; that money received from the complainant was an 'Amanat' which was transferred to the vendors of the property within a few days, therefore, neither any permission from concerned authority was needed nor it was required to be declared in the statement of assets; that he had only acted in good faith to facilitate the complainant and was not involved in any manner with the transaction except in the capacity of a go-between the complainant and his brother, and that he had always declared all transactions in his bank account related to purchase of property and other assets---Validity---Prima facie Judicial Officer, in connivance with his brothers and nephews, facilitated the complainant in order to defraud him---In view of principles of accountancy even if some money, received as 'Amanat' or on trust, was lying in the bank account on the date of declaration of assets, same should be declared as an asset and on the liability side it had to be declared in the name of the person on whose behalf such 'Amanat' or money on trust had been received---Government servants had to declare all deposits credited to their bank account---Bare reading of R.11 of West Pakistan Government Servants (Conduct) Rules, 1966, made it clear that when a government servant intended to transact any purchase or sale or make disposal by any other means, of movable or immovable property exceeding value of Rs.25,000, with any person, he should apply for permission to transact such deal and once the money for such transaction was reflected in the bank account, he was required to seek permission, even though the amount given might be on behalf of any other person---Letter written by Judicial Officer to the complainant, which was available on record, completely shattered the Judicial Officer's claim that he was only acting as a facilitator without being entitled or liable to any gain or loss on transaction in question---Judicial Officer was dealing in sale and purchase of property like a property dealer---Regarding contention of Judicial Officer that money was received in his bank account as his brother did not have a bank account at that time, enquiry report into the matter proved that brother of Judicial Officer was maintaining a bank account at that time---Punishment of compulsory retirement commensurate with the offence committed---Supreme Court found the Judicial Officer guilty of misconduct for his role in the transaction which might be considered private, but was executed with mala fide intention to defraud the complainant, and that it was prima facie clear that Judicial Officer had been misusing his Judicial Office to help and assist his brothers and nephews in acquiring or disposing of properties, profits and gains of which were shared by him, which tantamounted to abuse of judicial powers---Appeal was dismissed, in circumstances.

M.A. Rahman v. Federation of Pakistan and others 1988 SCMR 691; Inspector-General (Prisons) N.-W.F.P. v. Syed Jaffar Shah, Ex-Assistant Superintendent Jail and others 2006 SCMR 815; Auditor-General of Pakistan and another v. Ikramullah Khan 2002 SCMR 584 and Auditor-General of Pakistan and others v. Muhammad Ali and others 2006 SCMR 60 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

Mudasser Khalid Abbasi, A.A.-G. Punjab along with Muhammad Shahid Hussain, Additional Registrar, Lahore High Court for Respondent.

Date of hearing: 29th May, 2012.

2012 S C M R 1768

[Supreme Court of India]

Present: Swatanter Kumar and Ranjana Prakash Desai, JJ

STATE OF RAJASTHAN---Appellant

Versus

SHERA RAM alias VISHNU DUTTA---Respondent

Criminal Appeal No.1502 of 2005, decided on 1st December, 2011.

(a) Appeal against acquittal---

----Interference in judgment of acquittal by appellate court---Scope---Unless the judgment of acquittal was contrary to evidence, palpably erroneous or contained a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, the court should be reluctant to interfere with such judgment of acquittal---Presumption of innocence of the accused was further strengthened by the fact of acquittal of the accused, however the court would not abjure its duty to prevent miscarriage of justice, where interference was imperative and the ends of justice so required and it was essential to appease the judicial conscience.

(b) Penal Code (XLV of 1860)---

----S. 84---Act/crime by a person of unsound mind---Defence of insanity---Maxim: actus non facit reum, nisi mens sit rea---Applicability---Person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing---For committing a crime, the intention and act both are taken to be the constituents of the crime: actus non facit reum, nisi mens sit rea---Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved but a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behaviour.

(c) Penal Code (XLV of 1860)---

----S. 84---Act of a person of unsound mind---Exemption from criminal liability---Scope---Insanity, proof of---Person alleged to be suffering from any mental disorder cannot be exempted from criminal liability ipso facto---Onus would be on the accused to prove by expert evidence that he is suffering from such a mental disorder or mental condition that he could not be expected to be aware of the consequences of his act---Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability.

(d) Penal Code (XLV of 1860)---

----Ss. 84/302/449/295---Act of a person of unsound mind, murder, house-trespass in order to commit offence punishable with death, injuring or defiling place of worship with intent to insult the religion of any class---Appeal against acquittal---Reappraisal of evidence---Murder--- Defence of insanity--- "Epileptic insanity"---Proof and scope---Accused suffering from continuous mental sickness---Injury inflicted by accused insufficient to cause death---Effect---Accused was alleged to have hurled a stone on the head of the deceased which resulted in instantaneous death---Trial Court rejected plea of insanity raised by the accused and convicted him---High Court acquitted the accused on the ground that he was a person of unsound mind within the meaning of S.84 of the Penal Code, 1860 and gave directions to detain him in safe custody in a hospital or place of custody for non-criminal lunatics---Validity---Accused led oral and documentary evidence in support of his plea of insanity---Doctor who was treating the accused had stated that the accused was suffering from "Epilepsy" which caused fits and behavioral abnormality---Brother of the accused had stated that the accused was suffering from mental disorder since the year 1993 and just prior to the incident, accused suffered from epileptic attack and behaved violently and caused injuries to his own family members---Prosecution had failed to prove beyond reasonable doubt that the injury inflicted by the accused was sufficient in the ordinary course of nature to cause death---Appeal against acquittal was dismissed, in circumstances.

Medical Jurisprudence and Toxicology by Modi, 24th Ed. 2011 ref.

Date of hearing: 1st December, 2011.

2012 S C M R 1784

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

PRESIDENT BALOCHISTAN HIGH COURT BAR ASSOCIATION and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

H.R.C. No.13124-P of 2011

(Application by Altaf Hassan Qureshi)

H.R.C. No.40403-P of 2011

(Application by Syed Majeed Zaidi)

H.R.C. No.40220-G of 2011

(News clipping)

H.R.C. No.43103-B of 2011

(Application by Haji Abdul Qayyum)

H.R.C. 27045-K and 27619-G/12

(Abduction of Dr. Ghulam Rasool)

C.M.As. Nos. 42 - 43 of 2012

(Enquiry report of Kharootabad Incident)

C.M.A. No. 178-Q of 2012

(Appeal for missing persons cases of Balochistan)

C.M.A. No.219-Q of 2012

(Application by Maj. (R.) Nadir Ali)

C.M.A. No.431-Q of 2012

(Target Killing of Mr. Zulfiqar Naqvi, ASJ)

Constitution Petition No.107 of 2012

Constitution Petition No.77 of 2010, H.R.C. Nos.13124-P, 40403-P, 40220-G, 43103-B of 2011, H.R.C. No.27045-K, 27619-G of 2012, C.M.As. Nos. 42, 43, 178-Q, 219-Q, 431-Q of 2012 and Constitutional Petition No.107 of 2012, decided on 8th September, 2012.

(a) Constitution of Pakistan---

----Art. 5---Loyalty to State and obedience to Constitution and law---Scope---Loyalty to State was the basic duty of all citizens and they had to be obedient to the Constitution and the law, wherever they might be---Such duty was also inviolable obligation of every person for the time being within Pakistan---Adherence to the Constitution and the law by the citizens, who were officials or otherwise, was mandatory---Non-compliance of the Constitution and the law made a citizen liable for action, in accordance with law.

(b) Constitution of Pakistan---

----Arts. 4, 9 & 184(3)--- Constitutional petition under Art.184(3) of the Constitution concerning the law and order situation in Balochistan province---Security of citizen's life, property and liberty---Non-implementation of the Constitution and the law by Government---Effect---Supreme Court observed that Government was bound to enforce fundamental rights in the context of the scenario in Balochistan province, providing security of life, property and liberty, in accordance with law; that non enforcement of such rights of the citizens called for the superior courts to issue directions to the Federal as well as Provincial Governments to protect the life and property of all the citizens equally; that unfortunately both Federal and Provincial Governments avoided for one or the other reason to honour the commitments they had made of ensuring early and safe recovery of missing persons, of taking measures to identify and arrest the culprits involved in the target/sectarian killings, kidnapping for ransom and putting them to justice and of restoring peace and harmony amongst all the segment of society in the province and creating conducive environment for the economic development, well-being and prosperity of the province; that because of failure to honour said commitments no missing person had been recovered; that target killing of innocent citizens, particularly for sectarian consideration including killing of the members of the Ahl-e-Tasheih and other denominations continued; that a judge and two senior police officers had been killed along with so many other members of the law enforcing agencies but no preventive measures were adopted by Federal and Provincial Governments and that abduction for ransom in the province of Balochistan had become a trade which was being committed everywhere in the province, inasmuch as children and professionals like doctors and teachers were not safe---Supreme Court further observed that general impression was that on account of availability of massive arms and ammunitions and non-customs paid vehicles the offences of missing persons, target killing as well sectarian killing and abduction etc. were committed with such vehicles; that allegation against intelligence agencies was that they were issuing Rahdaries (right of passage) to persons who possessed prohibited arms and ammunitions in non-custom paid vehicles and whenever any law enforcing agency apprehended them, they put up resistance on the basis of Rahdaries (right of passage) and went scot free, and that such facts were the root causes for non-implementation of the Constitution and the law.

Kamran Murtaza, Advocate Supreme Court, Malik Zahoor Shahwani, Advocate/President Balochistan High Court Bar, Sajid Tareen, Advocate/Vice President and Hadi Shakeel Ahmed, Advocate Supreme Court for Petitioners (in Constitutional Petition No.107 of 2012).

Salahuddin Mengal, Advocate Supreme Court for Applicants (in C.M.A. 253-Q of 2012).

Nasrullah Baloch for the Complainants (in C.M.A. No.178-Q of 2012).

Maj. Nadir for the Complainants (in C.M.A. No.219-Q of 2012).

M. Zafar, Senior Advocate Supreme Court as Amicus Curiae.

Malik Sikandar Khan, D.A.-G. for Federation of Pakistan.

Asif Yasin Malik, Secretary and M. Irfan, Wing Commander/Director (L) for M/o. Defence.

Amanulah Kanrani, A.-G., Babar Yaqool Fateh Muhammad, Chief Secy. Naseebullah Bazaie, Home Secretary and Tarik Umer Khattab, I.-G.P., Kambar Dashti, Commissioner Quetta, Hussain Karar Kh. Additional I.-G.P., Mir Zubair Mehmood, CCPO, Quetta, Hamid Shakeel, D.I.-G. (Investigation) and Saleem Lehri, DIG/CID for Government of Balochistan.

Raja Muhammad Irshad, Senior Advocate Supreme Court, Major Sohail, HQ, FC and Major Shahid, FC for I.-G. FC.

Nemo for Mobile Operators.

Syed Ikhlaq Hussain Musavi, Zonal Director for PTA.

Date of hearing: 8th September, 2012.

2012 S C M R 1838

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Tariq Parvez, JJ

SARDAR KHAN and others---Petitioners

Versus

MUHAMMAD AFZAL and others---Respondents

Criminal P.L.A. No.246 of 2012, decided on 2nd August, 2012.

(On appeal from order of Lahore High Court, Lahore dated 27-6-2012 passed in Criminal Miscellaneous No.118-T of 2012).

Criminal Procedure Code (V of 1898)---

----S. 526--- Constitution of Pakistan, Art. 185(3)---Petition for transfer of case, refusal of---Mere apprehensions of petitioners---Effect---Accused persons (petitioners) were alleged to have committed the murder of two persons, including an advocate (member of Bar of the District where case was being tried)---Accused persons moved an application before the High Court for transfer of case to another District of the province on grounds that one of the deceased persons was a senior member of the District Bar, who had close relationship with other members of the Bar, therefore, they were unable to avail the services of any senior lawyer from the District---High Court dismissed said application---Validity---Accused persons had not disclosed the name of any senior counsel which they wanted to engage from the District or who had refused to accept their brief---Mere apprehension of accused persons that due to allegations of murder of senior member of Bar, no counsel from the District would accept their brief or that they would not be able to get a fair trial within the jurisdiction of said District, were of no avail---High Court had rightly dismissed transfer application of accused persons---Petition for leave to appeal was dismissed in circumstances.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners.

Basharatullah Khan, Advocate Supreme Court for Respondents.

Date of hearing: 2nd August, 2012.

2012 S C M R 1860

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Sarmad Jalal Osmany, J

Messrs PARAMOUNT SPINNING MILLS LTD.---Petitioner

versus

CUSTOMS, SALES TAX AND CENTRAL EXCISE APPELLATE TRIBUNAL and another---Respondents

Civil Petition No.673-K of 2009, decided on 29th August, 2012.

(On appeal against the judgment dated 30th June, 2009 passed by the High Court of Sindh at Karachi in Special Customs Appeal No.121 of 2000).

(a) Taxation---

----Absence of stay/restraint order by competent forum against demand of tax/duty from assessee---Duty of revenue collecting authorities highlighted.

In absence of any restraint order from the competent forum, the assessee has a legal obligation to make the payment of duty and tax as earlier as can be possible, and that such amount should not remain in his use without any legal justification under the law. It has been noticed invariably that department, who is responsible to collect the revenue which is to be spent on the welfare of the State and also to provide security to the life and property of the citizens in terms of Article 9 of the Constitution, remains outstanding for a longer period essentially either for the reasons of the negligence on behalf of the concerned officers or for extraneous consideration known to them. In absence of stay order by competent forum/court, the functionaries of Revenue Department and the officers/officials working within its hierarchy should not compromise in any manner in effecting the recovery of the revenue from the delinquents in future and all efforts should be made to effect the recovery of the outstanding amounts with a view to facilitate the State as well as the Government to generate funds for the purpose of running the affairs of the State and Government.

The tax has to be paid by all and sundry due against him/them in personal or corporate capacity, because withholding of tax is not only crime against the Government, but also against the State. No welfare can afford such type of luxury, because its affairs have to be run on the basis of income which is to be generated inter alia from one of the source of collecting the tax, therefore, the tax evaders are not entitled for any concession irrespective of their status.

Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/O. Finance, Islamabad and 6 others PLD 1997 SC 582 rel.

(b) Customs Act (IV of 1969)---

----Ss. 32(2)(3), 83-A, 156(1)(Cl. 10-A), 194-A, 196, 202 & 202-A---SRO 484(1)/1992 dated 14-5-1992---Constitution of Pakistan, Arts.185 & 187---Machinery imported for installation of Textile Mills at specified place under SRO 484(1)/1992 dated 14-5-1992---Shifting of such machinery to another place after assessee availed exemption from duties etc., under said SRO---Issuance of show cause to assessee demanding duties and taxes along with mark-up and penalty---Assessee's plea that machinery was imported in year 1992, whereas such notice was issued in year 1999 i.e. beyond five years prescribed therefore under S.32(2) of Customs Act, 1969, same was time barred---Dismissal of assessee's appeal and Reference by Appellate Tribunal and High Court respectively---Validity---Assessee had shifted such machinery to another place against undertaking given him and provisions of the SRO and without permission of Ministry of Finance-Such exemption granted to assessee was contingent as in case of his failure to fulfil conditions or violation thereof, he was liable to pay government dues, for collection whereof no time limit was prescribed---Show cause notice or order-in-original would be required to collect Government dues, for which a simple demand would be sufficient---Impugned recovery was not time-barred---Assessee was obliged to pay evaded duty and tax without hesitation as no limitation therefor was prescribed under S.202 of the Customs Act, 1969---Assessee was liable to pay such duty at the rate prevalent in year 1993 along with mark-up at enhanced rate of currency---Installation of Textile Mills at another place was violative of indemnity bond filed by assessee in pursuance of the SRO, thus, besides having committed violation of undertaking, he had committed breach of trust and evaded duty, which he was obliged to pay in year 1992---Assessee was, thus liable to civil as well as criminal action under law--- Supreme Court declined to grant leave to appeal to assessee and directed him to pay actual duty payable for installing Textile Mills at specified place and for duty etc. having withheld for a considerable period, surcharge and mark-up as per value of US$ at relevant time be recovered from him; and further directed the authorities to initiate criminal proceedings against all concerned for committing fiscal fraud with public exchequer.

Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/O. Finance, Islamabad and 6 others PLD 1997 SC 582 rel.

(c) Fraud---

----Fraud would vitiate most solemn proceedings.

(d) Customs Act (IV of 1969)---

----S. 18--- SRO 484(1)/1992 dated 14-5-1992---SRO granting exemption from payment of customs duty etc.---Powers of Federal Board of Revenue (F.B.R.) to grant concession to assessee contrary to provisions of SRO---Scope---Ministry of Finance having exclusive power to issue SRO, F.B.R. had no authority to grant such permission.

Abdul Ghaffar Khan, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record with Farooq Ahmed Adhemi, Dy. Secy/ Principal Officer for Petitioner.

Raja Muhammad Iqbal, Advocate Supreme Court, Mazhar Ali B. Chohan, Advocate-on-Record, Manzoor Hussain Memon Collector, MCC and Iftikhar Ahmed, Additional Collector, MCC for Respondent No.2.

Date of hearing: 29th August, 2012.

2012 S C M R 1869

[Supreme Court of India]

Present: Dr. B.S. Chauhan and A.K. Patnaik, JJ

TAKDIR SAMSUDDIN SHEIKH---Appellant

versus

STATE OF GUJARAT and another---Respondents

Criminal Appeals Nos.831 with 832 of 2010, decided on 21st October, 2011.

(a) Criminal trial---

----Evidence---Improvements/contradictions in evidence---Reliance on such evidence---Scope---While appreciating the evidence, court had to take into consideration whether the contradictions/omissions/ improvements/embellishments etc. had been of such magnitude that they might materially affect the trial---Minor contradictions, inconsistencies, omissions or improvements on trivial matters without affecting the case of the prosecution not to be made the basis by the court to reject the evidence in its entirety---Court after going through the entire evidence must form an opinion about the credibility of the witness and the appellate court in natural course would not be justified in reviewing the same against without justifiable reasons.

(b) Criminal trial---

----Evidence--- Interested witness--- Reliance on--- Scope--- Term "interested"---Connotation---While appreciating the evidence of a witness considering him as an interested witness, the court must bear in mind that the term 'interested' postulated that the witness must have some direct interest in having the accused somehow or the other convicted for some other reason.

(c) Criminal trial---

----Evidence---Single witness, evidence of---Conviction on basis of such evidence---Scope---Court could and might act on the testimony of a single witness provided he was wholly responsible---No legal impediment existed in convicting a person on the sole testimony of a single witness---Where there were doubts about the testimony, the court would insist on corroboration---Test to remove such doubt was whether the evidence had a ring of truth, was cogent, credible and trustworthy or otherwise---Emphasis was to be laid on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses, therefore, it was open to a court to fully and completely rely on a solitary witness and record conviction.

(d) Penal Code (XLV of 1860)---

----Ss. 302/114---Murder, abettor present when offence committed---Reappraisal of evidence---Sole and interested witness---Reliance on evidence of such witness---Scope---Accused and co-accused (appellants) were alleged to have murdered the deceased in the presence of the complainant after launching an attack on them with swords---Accused, co-accused and complainant were also business partners---Trial Court convicted the accused and co-accused under Ss.302 and 114 of the Penal Code, 1860---Contentions of the accused and co-accused were that the complainant, deceased and the accused were business partners and complainant could have committed the act so as to benefit in terms of money by eliminating one partner and getting the other convicted; that complainant was an interested witness and his evidence could not be relied upon without corroboration; that recovery of blood stained clothes and swords from their car after 13 days was totally improbable; that there were material contradictions/embellishments/improvements in the statements of the witnesses which made case of the prosecution totally improbable, and that it was not possible for the accused and co-accused to cause as much as 33 injuries to the deceased and same could have been caused by the villagers of the locality---Validity---Omissions/contradictions pointed out by accused and co-accused were trivial in nature, which did not go to root of the cause---Contention of accused and co-accused that complainant's evidence could not be relied upon because of him being a sole and interested witness, was not acceptable---Contention of accused and co-accused that injuries to the deceased could have been caused by the villagers of the locality, had no force, since scuffle took place in presence of the accused and co-accused, who could have given details of the incident and further disclosed as to whether the villagers reached the place of occurrence with swords---Presence of complainant along with the deceased, accused and co-accused was natural, as they were business partners who were visiting the place of incident to see some land---F.I.R. had been lodged promptly, therefore, there was no time for any kind of manipulation---Appeals were accordingly dismissed.

Date of hearing: 21st October, 2011.

2012 S C M R 1876

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Amir Hani Muslim and Muhammad Athar Saeed, JJ

JUNAID TRADERS---Petitioner

versus

ADDITIONAL COLLECTOR OF CUSTOMS (APPRAISEMENT-I)---Respondent

C.P.L.A. No.146-K of 2012, decided on 6th September, 2012.

(On appeal from order of High Court of Sindh, Karachi dated 7-3-2012 passed in Spl. Cus. R.A. No.598 of 2011).

Customs Act (IV of 1969)---

----Ss. 32 & 32A---Constitution of Pakistan, Art. 185(3)---Mis-declaration of value of imported consignment---Fake invoice provided to customs authorities---Importer (petitioner) had imported a consignment for which he filed a goods declaration, declaring its import value as US$ 2367.60---Said consignment was opened by Customs authorities for inspection and its original invoice was found therein which showed actual import value of consignment as US$ 50663.50---Importer was issued show cause notice under S.32A of Customs Act, 1969---Customs Authorities found that invoice retrieved from the consignment during its examination was the actual invoice and invoice provided by importer was fake, and that importer was guilty of mis-declaration of the value of imported consignment---Appeals preferred by importer before Tribunal and High Court were dismissed---Validity---Forums below in their respective orders had thoroughly examined the claim of the importer and found it bogus and untenable in law---Copies of fake and original invoice were available on record---Importer was guilty of mis-declaration of imported consignment and had concealed material facts, therefore, he was rightly proceeded against by customs authorities in accordance with the law---Petition for leave to appeal was dismissed, in circumstances.

Sohail Muzaffar, Advocate Supreme Court for Petitioner.

Raja Muhammad Iqbal, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent.

Date of hearing: 6th September, 2012.

2012 S C M R 1912

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Gulzar Ahmed and Muhammad Athar Saeed, JJ

MUHAMMAD IQBAL alias LALI SARWAR and others---Petitioners

versus

MUHAMMAD IQBAL and others---Respondents

Criminal Petition No.145 of 2011 and Criminal Petition No.549-L of 2011, decided on 20th January, 2012.

(Against the orders dated 14-3-2011 and 5-7-2011 passed by the Lahore High Court, Lahore in Criminal Revision No.902 of 2010, 905 of 2010, Criminal Miscellaneous No.9158 of 2010 and Criminal Miscellaneous No.7482-B of 2011).

Criminal Procedure Code (V of 1898)---

-----Ss. 91, 496, 497 & 498---Constitution of Pakistan, Art. 185(3)---Private complaint---Summoning of accused---Leave to appeal was granted by the Supreme Court to consider the question as to whether upon summoning of accused by Trial Court in a case arising out of a private complaint accused person needed to apply for bail in terms of Ss.496, 497 & 498, Cr.P.C. or in such a situation he was to submit a bond for his appearance before the Trial Court under S.91, Cr.P.C.

Syed Muhammad Firdaus and others v. The State 2005 SCMR 784; Luqman Ali v. Hazaro and another 2010 SCMR 611 and Raham Dad v. Syed Mazhar Hussain Shah Criminal Appeal No.56 of 1986 ref.

Muhammad Munir Peracha, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioners (in Cr. P. 145 of 2011).

Azam Nazeer Tarar, Advocate Supreme Court along with Hassan Nawaz Makhdoom, Advocate Supreme Court for Petitioners (in Cr. P. 549-L of 2011).

Nemo for Respondents Nos. 1, 2, 4 to 6 (in Cr. P. 145 of 2011).

Azam Nazeer Tarar, Advocate Supreme Court along with Hassan Nawaz Makhdoom, Advocate Supreme Court for Respondent No.3 (in Cr. P. 145 of 2011).

Malik Irfan, Additional Prosecutor-General, Punjab for Respondent No.7 (in Cr. P. 145 of 2011).

Malik Irfan, Additional Prosecutor-General, Punjab for Respondent No.1 (in Cr. P. 549-L of 2011).

Respondent No.2 in person (in Cr. P. 549-L of 2011).

Mian M. Shafiq Bhandara, Advocate Supreme Court for the Complainant (in Cr. P. 549-L of 2011).

Date of hearing: 20th January, 2012.

2012 S C M R 1914

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

FEDERATION OF PAKISTAN---Petitioner

versus

GHULAM MUSTAFA and others---Respondents

Civil Petitions Nos. 549 to 559 and 575 to 589 of 2012, decided on 24th April, 2012.

(Against judgment dated 5-1-2012 passed in Appeals Nos.888(R)CS/2011 to 890(R)CS/2011, 912 to 915, 922 to 925, 930 to 934, 1166, 1265, 1416 to 1420, 1455, 1575 and 1794(R)CS/2011).

Constitution of Pakistan---

----Arts. 212(3) & 25---Civil service---Increase in commuted pension---Equality of citizens---Entitlement to equal relief---Two pensioners were granted increase on their commuted pension by the High Court and Supreme Court---Federal Service Tribunal in view of Art.25 of the Constitution, which guaranteed equal treatment to all, granted same relief to the pensioners in the present case (respondents)---Validity---Pensioners, in the present case, had to be treated at par with the pensioners in whose favour decision had been taken by the High Court and Supreme Court---In absence of any reasonable classification, no exception could be taken to the impugned judgment of the Federal Service Tribunal---No question of public importance within the meaning of Art.212(3) of the Constitution had been pointed out---Petitions for leave to appeal were dismissed in circumstances, and leave was refused.

Akram ul Haq Alvi v. Joint Secretary (R-II) Government of Pakistan, Finance Division, Islamabad and others Civil Appeal No.254-L of 2011 ref.

Syed Zafar Abbas Naqvi, Advocate Supreme Court along with Ehsan Ahmed and Muhammad Khalid, Section Officers for Petitioner.

Nemo for Respondents.

Date of hearing: 24th April, 2012.

2012 S C M R 1917

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Gulzar Ahmed and Muhammad Athar Saeed, JJ

Criminal Miscellaneous Application No.486 of 2010 in Criminal Appeal No.22 of 2002

ADNAN A. KHAWAJA---Appellant

versus

THE STATE---Respondent

Suo Motu Case No.4 of 2010 and Civil Miscellaneous

Application No.1080 of 2010 and Civil Miscellaneous

Applications Nos.1238 and 1239 of 2010

(Suo Motu action regarding appointment of convicted person namely Ahmed Riaz Sheikh (NRO Beneficiary), as Additional Director-General, Federal Investigation Agency

Civil Miscellaneous Application No.1253 of 2010 in Suo Motu Case No.4 of 2010

(Report submitted in Court by Attorney-General regarding Facts Finding Inquiry in the case of Missing Letter No.PS/DG/FIA/2009/ 5047-49 dated 17-11-2009)

Civil Miscellaneous Application No.1254 of 2010 in Suo Motu Case No.4 of 2010 and

(Additional Documents comprising of Interim Report filed by Secretary Law dated 4-4-2010, pointes formulated by Secretary for Hon'ble Court, Advice of Former Attorney-General and Authorization letter in favour of Mr. Hassan Wasim Afzal, Joint Secretary of Ehtisab Bureau dated 20-5-1998)

Civil Miscellaneous Application No.1082 of 2010

(Report/Minutes of Hon'ble Chief Justice of Lahore High Court, Lahore)

Criminal Miscellaneous Application No.486 of 2010 in Criminal Appeal No.22 of 2002, Suo Motu Case No.4 of 2010 and Civil Miscellaneous Application No.1080 of 2010 and Civil Miscellaneous Applications Nos.1238 and 1239 of 2010, Civil Miscellaneous Application No.1253 of 2010 in Suo Motu Case No.4 of 2010, Civil Miscellaneous Application No.1254 of 2010 in Suo Motu Case No.4 of 2010 and Civil Miscellaneous Application No. 1082 of 2010, decided on 10th January, 2012.

Constitution of Pakistan---

----Art. 184(3)---National Reconciliation Ordinance (LX of 2007), Preamble---National Accountability Ordinance (XVIII of 1999), Preamble & S. 6(b)(i)---Suo motu action by the Supreme Court under Art.184(3) of the Constitution regarding appointment of convicted persons in Government departments---Wilful disobedience to and non-compliance of directions issued by the Supreme Court in the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265)---Clear and specific directions had been issued to the Federal Government and others in the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), which were required by the Court to be implemented and executed immediately---Reports submitted on behalf of National Accountability Bureau (Bureau) showed that it had decided not to proceed in the matter of appointment of convicted persons in Government departments despite clear directions issued by the Supreme Court---Said reports were utterly unsatisfactory and an attempt has been made through the reports to screen, shield and protect all those in public offices who were involved in appointments/promotion of the convicted persons in question---Reports in question showed that a clear conclusion about lack of criminal intent of all concerned and involved had been recorded without even holding a formal inquiry or investigation---Supreme Court observed that Chairman of the Bureau instead of obeying the directions of the Supreme Court decided to take the Court head on, which attitude was contumacious; that Federal Government and the Bureau were not serious in the matter at all and those concerned were only interested in delaying and prolonging the matter on one pretext or the other; that Co-Chairperson of the major political party in the ruling coalition at the federal level (i.e. the President) , the Prime Minister and the Federal Minister for Law, Justice and Human Rights Division had allowed loyalty to a political party and its decisions to outweigh and outrun their loyalty to the State and their "inviolable obligation" to obey the Constitution and all its commands; that in a country governed by a Constitution political loyalty could not be accepted as stronger than loyalty to the State and dictates of a political master or party could not be allowed to be put up as a defence to failure to obey the Constitution, and that the Supreme Court was left with no other option but to take appropriate actions in order to uphold and maintain the dignity of the Court and to salvage and restore the delicately poised constitutional balance in accord with the norms of constitutional democracy---Supreme Court provided six different options which were available in regard to the action it might take for the wilful disobedience and non-compliance of directions issued by it in the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) and directed the Attorney-General to inform any person likely to be affected by exercise of the said options and also about the next date of hearing so that any such person might address the Court on the next date of hearing in the relevant regard so that he might not be able to complain in future that he had been condemned by the Court unheard.

Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Olmstead v. United States 227 U.S. 438, 485; S.II: 224-225; S.XVI: 94; S. XXIV: 53; S. LXVI: 2 and S. LXVIII: 10 ref.

Moulvi Anwar-ul-Haq, Attorney-General for Pakistan for Federation.

K.K. Agha, Prosecutor-General National Accountability Bureau, Fasih A. Bokhari, Chairman National Accountability Bureau, Akbar Tarar, Additional P.-G. NAB, Fauzi Zafar, Additional P.-G. NAB, Sheikh Muhammad Shoaib, Assistant Director, NAB and Mohsin Ali Khan, Assistant Director, NAB on behalf of National Accountability Bureau.

Ahsan Raja, Ex. Additional Secretary Ministry of Interior along with his counsel Raja Zulqarnain, Advocate Supreme Court in attendance.

Dr. A. Basit, Senior Advocate Supreme Court for Ahmad Riaz Sheikh.

Nemo on behalf of Secretary Law.

Date of hearing: 10th January, 2012.

2012 SCMR 1928

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

PRESIDENT BALOCHISTAN HIGH COURT BAR ASSOCIATION-- Petitioner/Applicants

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.M.A. No.19002 of 2012 in Constitution Petition No.77 of 2010, decided on 27th September, 2012.

Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning law and order situation in Balochistan Province---Issue of missing persons and target killings of citizens---Process for conflict resolution---Measures for reconciliation process suggested by former Chief Minister of Balochistan Province, who was also head of a political party---Supreme Court directed the Provincial Chief Secretary to bring the said suggested measures into the notice of the concerned authorities, including, Prime Minister and Heads of different intelligence agencies and give the Supreme Court reaction of said functionaries in black and white on the next date of hearing of the case---Order accordingly.

Book titled Zulfiqar Ali Bhutto - Afwah aur Haqiqat composed by Altaf Ahmad Qureshi ref.

Malik Zahoor Shahwani, Advocate/President Balochistan High Court Bar, Sajid Tareen, Advocate/Vice President and Sardar Akhtar Jan Mengal for Petitioner.

Nasarullah Baloch (in C.M.A. 178-Q of 2012), Mahmood A. Sheikh, Advocate-on-Record. and Ms. Tehniat Zahra, Advocate/Member PIHRO (in C.M.A. 3966 of 2012) for Applicants.

Irfan Qadir, Attorney-General of Pakistan for Federation of Pakistan.

Commander Hussain Shahbaz, Dir(L) for M/o Defence.

Munir Piracha, Advocate Supreme Court and Masoodur Rehman Tanoli, Dir. NCMC for M/o Interior.

Amanulah Kanrani, A.-G., Azam Khatak, A.A.-G. and Babar Yaqoob Fateh Muhammad, Chief Secy. for Government of Balochistan.

Raja Muhammad Irshad, Senior Advocate Supreme Court for IG FC.

Rana M. Shamim, Advocate Supreme Court for FBR.

Date of hearing: 27th September, 2012.

2012 SCMR 1931

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Gulzar Ahmed, JJ

Mst. FAKHRA BEGUM and others---Appellants

Versus

Mst. SADIA ASHRAF and others---Respondents

Civil Appeal No.10-K of 2012 out of Civil Petition No.75-K of 2012, decided on 25th September, 2012.

(Against the judgment dated 16-1-2012 passed by High Court of Sindh, Karachi in C.P. No.S-237 of 2003).

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

----Ss. 2(i) & 13---Eviction of tenant (appellant) sought on grounds of non-payment of water and conservancy charges---Agreement between landlady and tenant for payment of said charges not established---Effect---Rent Controller dismissed eviction application filed by landlady (respondent)---First Appellate Court found itself in agreement with the findings of the Rent Controller---High Court, in its constitutional jurisdiction set aside the concurrent findings of the courts below and held that default in payment of water and conservancy charges had been committed by the tenant (appellant)---Contentions of landlady were that tenant had received a bill from the Water and Sewerage Board concerning non-payment of charges, which amounted to a demand for payment of such charges; that tenant had agreed to pay the said charges at the time of inception of the tenancy and signed a rent receipt which contained a printed clause on the reverse vis-a-vis payment of water and conservancy charges---Validity---Tenancy between the parties was a statutory one and up till the filing of the ejectment case there was nothing on record to establish that either the water and conservancy charges were ever demanded from the tenant or for that matter ever paid---Under cross-examination landlady had admitted that rent receipt had not been signed by the tenant and said fact could be confirmed from a bare perusal of the receipt---Landlady also admitted that she was not sure whether there was any written agreement between the parties; whether any notice was served upon the tenant with regard to non-payment of water and other charges etc., and whether she had any receipts whereby said charges were ever paid---Landlady also admitted that bill sent to tenant by Water and Sewerage Board was for the entire building, whereas the tenant only occupied a shop in the building---Evidence available on record made it clear that neither there was any agreement between the parties to pay the water charges nor these charges were ever paid by the tenant, therefore, in the absence of the same eviction of tenant could not be sought by approaching the Rent Controller on the allegation that water and other charges had not been paid---Appeal was allowed and impugned judgment of High Court was set aside.

State Life Insurance Corporation of Pakistan v. Mrs. Surraya Sajjad 2000 CLC 1813; Hakim Ali v. Muhammad Salim 1992 SCMR 46; Haji Muhammad Usman v. Yousuf Ali Muhammad Bhai 1986 CLC 380; Muhammad Ahmad v. Shafique Ahmad 1987 CLC 679; Hyder Ali v. Messrs Nizam Construction and Estate Dealers 1996 CLC 1040; Zakir Hussain v. Masood Ahmed Ansari 1995 CLC 1000; Muhammad Arif v. Mrs. Anwar Jehan 2000 SCMR 1960; Abdul Ghani through L.Rs. v. Messrs Caltex Oil Pakistan Limited 2010 SCMR 771; Ghulam Samdani v. Abdul Hameed 1992 SCMR 1170; Malik Safdar Hussain v. Lutuf Ahmad Khan and others 1997 SCMR 567; Muhammad Rafiq and others v. Khalid Rauf and others 1984 CLC 2135 and Muhammad Riaz Chughtai v. Mst. Irshad Begum 1993 MLD 707 ref.

Sher Afgan v. Sheikh Anjum Iqbal PLD 2004 SC 671 distinguished.

Mushtaq A. Memon, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellants.

Zahid F. Ebrahim, Advocate Supreme Court for Respondent No.1.

Date of hearing: 7th September, 2012.

2012 SCMR 1936

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

HASIL KHAN---Appellant/Petitioner

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 59-Q, 60-Q of 2009 and Criminal Petition No.81-Q of 2009, decided on 17th September, 2012.

(On appeal from the judgments dated 11-11-2009 passed by High Court of Balochistan passed in Criminal Appeals Nos. 6 and 7(S) of 2007).

(a) Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-e-amd--- Reappraisal of evidence--- Sentence, reduction in---Death sentence converted into life imprisonment---Mitigating circumstances---Motive alleged not successfully proved---Effect---Accused was alleged to have murdered the deceased (complainant's brother) by firing at him in a bus---Alleged motive for the crime was that prior to the incident accused had murdered his own sister on the pretext of Siahkari with one of the brothers of the complainant---Trial Court convicted and sentenced the accused to life imprisonment and a fine to be paid to the legal heirs of deceased as compensation but did not award the death penalty on the grounds that there were mitigating circumstances inter alia that the immediate cause of murder and actual motive remained shrouded in mystery---High Court enhanced the sentence from life imprisonment to death penalty on the basis that there were no mitigating or extenuating circumstances as accused had committed a premeditated, intentional and cold blooded murder---Validity---Ocular account was furnished mainly by brother and nephew of the deceased but their mere relationship with the deceased would not make them unworthy witnesses if their testimony was corroborated by independent evidence---Testimony of two said witnesses was corroborated by medical evidence and the recovery of weapon---Both said witnesses had reasonably explained their presence at the spot, which reason had not been specifically challenged by the defence during cross-examination---All prosecution witnesses corroborated each other and remained consistent on all material particulars of the case---Even the prosecution witness, who according to the accused did not support the prosecution story, partly supported the prosecution case since she deposed that an assailant entered the bus and started firing at the deceased but added that she could not identify the assailant---Said witness partly corroborated remaining witnesses and it would not harm the prosecution case if she could not identify the assailant/accused because she did not know the assailant/accused prior to the occurrence---Non-association of passengers and bus driver was a lapse on the part of the investigating agency but it would not erode the credibility of remaining evidence if it inspired confidence because court could not lose sight of a certain behaviour pattern in the society where people generally were reluctant to come forward to give evidence for fear of reprisal---High Court had not appreciated that the motive alleged in the F.I.R. was weak and there was no reason why deceased should have been the victim of the motive part of the prosecution story--- Trial Court had rightly observed that motive for the occurrence remained shrouded in mystery---Appeals were partly allowed and sentence of death awarded by High Court to accused was converted into life imprisonment---Appeals were allowed accordingly.

Muhammad Ahmad v. The State 1997 SCMR 89; Muhammad Ashraf Khan Tareen v. The State 1996 SCMR 1747 and Jehanzeb v. The State 2003 SCMR 98 rel.

(b) Criminal trial---

----Evidence---Prosecution witness---Related to deceased---Testimony---Evidentiary value---Mere relationship would not make a witness unworthy of reliance if his testimony was corroborated by any independent evidence or circumstances appearing on the record.

(c) Criminal trial---

----Sentence, quantum of---Mitigating circumstances---Motive not successfully proved---Effect---Where motive alleged by prosecution had not been successfully proved, it might be considered as a mitigating circumstance qua quantum of sentence.

Muhammad Ashraf Khan Tareen v. The State 1996 SCMR 1747 and Jehanzeb v. The State 2003 SCMR 98 rel.

Kamran Murtaza, Advocate Supreme Court and Abdus Salim Ansari, Advocate-on-Record for Appellant/Petitioner.

Muhammad Wasay Tareen, P.-G. for the State.

Syed Iqbal Shah, Advocate Supreme Court and Gohar Yaqoob Yousafzai, Advocate-on-Record for Respondent No.2.

Date of hearing: 17th September, 2012.

2012 SCMR 1942

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Nasir-ul-Mulk, JJ

PROVINCE OF PUNJAB through Collector, Toba Tek Singh and others---Appellants

Versus

MUHAMMAD FAROOQ and others---Respondents

Civil Appeal No.2204 of 2006, decided on 8th February, 2010.

(On appeal from judgment of Lahore High Court, Lahore dated 29-11-2002, passed in Civil Revision No.1723 of 2002).

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

----S. 115---Revision petition/application---Limitation period---Principle and scope---Limitation period of 90 days for filing revision application was relevant only when same was filed by some person or party to the proceedings but such impediment was non-existent when court itself exercised the power of revision under S.115(1), C.P.C.---When merits of the case demanded that challenged order be set aside, High Court should not avoid hearing the same under S.115(1), C.P.C., for which no limitation was provided, merely because the application was filed by somebody who was bound by limitation.

Allah Dino's case 2001 SCMR 286 and Riaz Hussain's case 2003 SCMR 181 ref.

Muhammad Mian's case 1995 SCMR 69 and Government of N.-W.F.P.'s case 1994 SCMR 833 distinguished.

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

----S. 115---Limitation Act (IX of 1908), S. 12(2)---Revision petition/application---Limitation period, computation of---Exclusion of time---For purposes of computing the limitation period for a revision application/petition the time, as mentioned in S.12(2) of the Limitation Act, 1908, should be excluded.

Saeed Yousaf, Additional A.-G. (Punjab) for Appellants.

Ex parte for Respondents.

Date of hearing: 24th November, 2009.

2012 SCMR 1945

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Gulzar Ahmed, JJ

MUHAMMAD YOUSAF BUTT---Petitioner

Versus

P.C. ABDUL LATEEF SHAR and another---Respondents

Criminal Petition No.61-K of 2012, decided on 5th September, 2012.

(On appeal against the order dated 12-6-2012 passed by High Court of Sindh, Karachi in Criminal Bail Application No.391 of 2012).

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302/365/34/109---Qatl-e-amd, kidnapping or abducting with intent secretly and wrongfully to confine person, common intention, abetment---Cancellation of bail---Accused (police official) was part of a police party which killed the complainant's son (deceased) in a police encounter---High Court granted bail to accused on the basis that no prosecution witness had implicated him with the commission of the offence; no material was available with the prosecution except statement of accused under S.161, Cr.P.C. to connect him with the crime, therefore, his false implication could not be ruled out---Contentions of complainant were that accused had admitted in his statement under S.161, Cr.P.C. that he was member of the police party involved in the encounter in which deceased was killed, and that accused had also admitted the same fact in his bail application before the District Judge---Validity---Accused had admitted in his statement under S.161, Cr.P.C. that he was a member of the police party which killed the deceased in an encounter---Accused had admitted killing the deceased in an encounter in his bail application filed before the District Judge--- Accused had implicated himself in the alleged crime and on a tentative opinion he could not wriggle out of his own statement after admitting to be a member of the police party involved in killing the deceased--- No overt act on the part of deceased was shown as to how he caused harm to police officials or their property---Admittedly none of the police officials involved in the encounter received any injuries---Sufficient material was available on record to connect accused with the commission of the alleged crime---Petition for leave to appeal was converted into appeal and bail granted to accused by the High Court was cancelled.

The State through Deputy Director Anti-Narcotics Force, Karachi v. Syed Abdul Qayum 2001 SCMR 14 ref.

Naseem Malik v. The State 2004 SCMR 283 rel.

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

----S. 497(5)---Cancellation of bail by Supreme Court---Scope---Once High Court had exercised its discretion of granting bail to accused, there had to be very special and overwhelming circumstances to cancel the same.

Muhammad Akbar Khan, Advocate Supreme Court for Petitioner.

Abdul Wahab Baloch, Advocate Supreme Court for Respondent No.1.

Zafar A. Khan, Additional P.-G. for Respondent No.2.

Date of hearing: 5th September, 2012.

2012 SCMR 1950

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

PRESIDENT BALOCHISTAN HIGH COURT BAR ASSOCIATION---Petitioner/Applicants

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition No. 77 of 2010 and C.M.As. No.178-Q, 253-Q and 3966 of 2012, decided on 28th September, 2012.

(a) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning law and order situation in Balochistan Province---Issue of missing persons, target killings of citizens, abductions for ransom and finding of mutilated bodies---Process for conflict resolution---Measures for reconciliation process suggested by former Chief Minister of Balochistan Province, who was also head of a political party---Concerned authorities and personnel holding a meeting to give their reaction to the said suggested measures---Minutes of the meeting showed that a conditional statement had been made to the effect that "… … the concerns, if any, of the inhabitants of Balochistan … … " would be addressed--- Supreme Court observed that said conditional statement, prima facie, seemed to be incorrect, inasmuch as on the basis of the orders passed by the Supreme Court from time to time during hearing of the present case, one felt no difficulty in concluding that the inhabitants of Balochistan Province did have grave concerns about the law and order situation prevailing over there; that after appearance of the head of one of the political parties (former Chief Minister of Balochistan Province) before the Court, the Supreme Court was confident that all out efforts would be made to address the concerns and grievances of the persons whose relatives had gone missing, or had been abducted for ransom or had been murdered and their dead bodies had been found in mutilated conditions---Supreme Court directed the Chief Secretary of the Province to hand over copies of the reaction submitted by Federal Government to the petitioners and all other persons, who were parties to the present petition and concerned functionaries were directed to file weekly reports (as directed by Supreme Court at an earlier date of hearing ) before the next date of hearing, and continue to do so in future as well on weekly basis--- Order accordingly.

(b) Constitution of Pakistan---

----Arts. 4, 14 & 184(3)---Enforcement of Fundamental Rights---Duty of citizens, civil society and media--- Scope--- For enforcing Fundamental Rights guaranteed under the Constitution, it was the duty of all citizens, including political workers, members of the civil society and media personnel to make their positive contribution, so that the life, liberty, property and dignity of the citizens were protected and secured as per mandate of the Constitution.

Sajid Tareen, Advocate/Vice President Balochistan High Court Bar for Petitioner.

Dr. Salahuddin Mengal, Advocate Supreme Court (in C.M.A. 253-Q of 2012), Nasarullah Baloch, Mahmood A. Sheikh, Advocate-on-Record (in C.M.A. 178-Q of 2012) and Ms. Tehniat Zahra, Advocate/Member PIHRO (in C.M.A. 3966 of 2012) for Applicants.

Nemo for SCBAP.

Irfan Qadir, Attorney-General for Pakistan for Federation of Pakistan.

Commander Hussain Shahbaz, Dir(L) for M/o Defence.

Munir Piracha, Advocate Supreme Court and Masoodur Rehman Tanoli, Dir. NCMC for M/o Interior.

Amanulah Kanrani, A.-G., Azam Khatak, A.A.-G. and Babar Yaqoob Fateh Muhammad, Chief Secretary Balochistan for Government of Balochistan.

Tariq Umar Khattab, I.-G.P. and Raja Muhammad Irshad, Senior Advocate Supreme Court for IG FC.

Rana M. Shamim, Advocate Supreme Court for FBR.

Date of hearing: 28th September, 2012.

2012 SCMR 1955

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Gulzar Ahmed, JJ

PUR BUX---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.57-K of 2012, decided on 6th September, 2012.

(On appeal against the order dated 5-4-2012 passed by High Court of Sindh, Karachi in Criminal Bail Application No.124 of 2012).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 337-A(ii) & 34---Qatl-e-amd, shajjah-i-mudihah, common intention---Bail, grant of---Co-accused persons had allegedly fired at and killed the deceased---Accused was alleged to have injured a witness with a hatchet while he (injured) tried to help the deceased---Contentions of accused were that medical and ocular evidence contradicted each other as according to ocular version injured witness was hit by blunt side of hatchet whereas medical report showed that the injury was caused by a sharp object; that F.I.R. was lodged after consultation and entire family of accused was roped in; that accused was only alleged to have injured a witness with his hatchet which was not sufficient to establish whether he shared common intention with the co-accused persons of killing the deceased, and that injury alleged did not fall within the prohibitory clause of S.497, Cr.P.C.---Validity---Ocular account and medical record were not in consonance with each other since as per ocular evidence blunt side of hatchet was used while according to medical evidence the injury had been caused by a sharp weapon---According to F.I.R., the injured were first taken to hospital and then F.I.R. was lodged at 7-30 p.m. whereas per medical record injured was produced in hospital at 8-00 p.m., which prima facie meant that perhaps medical record was correct and F.I.R. did not reflect the correct time when it was lodged---Common intention of accused regarding firing at the deceased could only be decided at trial---Prohibitory clause of S.497, Cr.P.C. was not attracted to the case of the accused as injury alleged against him carried a maximum sentence of five years---Petition for leave to appeal was converted into appeal and allowed and accused was granted bail.

Mahmood A. Qureshi, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Salim Akhtar, Additional P.-G. for Respondent.

Complainant in person.

Date of hearing: 6th September, 2012.

2012 SCMR 1958

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

CONSTITUTION PETITION NO.77 OF 2010

PRESIDENT BALOCHISTAN HIGH COURT BAR ASSOCIATION---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

H.R.C. No.13124-P of 2011

(Application by Altaf Hassan Qureshi)

H.R.C. No.40403-P of 2011

(Application by Syed Majeed Zaidi)

H.R.C. No.40220-G of 2011

(News clipping)

H.R.C. No.43103-B of 2011

(Application by Haji Abdul Qayyum)

H.R.C. No.17712-B of 2012

(Application by Misbah Batool for recoveryof her husband, Asif, FC Personnel)

H.R.C. 27045-K and 27619-G of 2012

(Abduction of Dr. Ghulam Rasool)

H.R.C. No.30044-B of 2012

(Anonymous application against Police Officers)

H.R.C. No.30047-G of 2012

(Application of Ms. Zuhra Yousif, Chairperson HRCP)

H.R.C. No.30711-B of 2012

(Application for recovery of Habibullah Mujahid)

H.R.C. No.30713-B of 2012

(Application of Syed Mumtaz Ahmed Shah, Chief Editor, Daily Mashriq)

C.M.As. Nos. 42 - 43 of 2012

(Enquiry report of Kharootabad Incident)

C.M.A. No. 178-Q of 2012

(Appeal for missing persons cases of Balochistan)

C.M.A. No.219-Q of 2012

(Application by Maj. (R.) Nadir Ali)

C.M.A. No.431-Q of 2012

(Target Killing of Mr. Zulfiqar Naqvi, ASJ)

C.M.A. No.516-Q of 2012

(Application by Mr. Nasrullah Baloch)

Constitution Petition No.77 of 2010, H.R.Cs. Nos. 13124-P, 40403-P, 40220-G, 43103-B of 2011, 17712-B, 27045-K, 27619-G, 30044-B, 30047-G, 30711-B, 30713-B of 2012, C.M.As. Nos.42, 43, 178-Q, 219-Q, 431-Q and 516-Q of 2012, decided on 12th October, 2012.

(a) Constitution of Pakistan---

----Arts. 9, 10A, 14, 15, 17, 18, 24(1), 25, & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning law and order situation in Balochistan Province---Maintainability---Issue of missing persons, target and sectarian killing of citizens, abductions for ransom, finding of mutilated bodies, kidnapping of citizens by personnel of Frontier Corps (FC) and forced disappearance of members of the Bars---Supreme Court, in exercise of jurisdiction under Art.184(3) of the Constitution, had jurisdiction to enforce fundamental rights conferred by Chapter-I of Part-II of the Constitution---In the present case, question of public importance involving enforcement of Fundamental Rights enshrined under the Constitution viz. Art.4 read with Fundamental Rights under Arts.9, 10A, 14, 15, 17, 18, 24 & 25 of the Constitution, had been violated---Constitutional petition was maintainable accordingly.

(b) Constitution of Pakistan---

----Arts. 9, 10A, 14, 15, 17, 18, 24(1), 25, 148(3) & 184(3)---Surrender of Illicit Arms Act (XXI of 1991), Preamble---Constitutional petition under Art.184(3) of the Constitution concerning law and order situation in Balochistan Province---Issue of missing persons, target and sectarian killing of citizens, abductions for ransom, finding of mutilated bodies, kidnapping of citizens by personnel of Frontier Corps (FC) and forced disappearance of members of the Bars---Enforcement of fundamental rights of citizens of the Province---Duty of Federal and Provincial Governments---Scope---Supreme Court made observations with regard to the law and order situation in the Province of Balochistan.

Following are the observations made by the Supreme Court with regard to the law and order situation in the Province of Balochistan:

Prima facie law enforcing agencies working in the Province seemed to be helpless and the Federal Government was oblivious of the grave situation, prevailing in the Province. Federal Government failed to discharge its duty in terms of Article 148(3) of the Constitution, as it should have played its role with the cooperation and coordination of the Provincial Government to control and maintain law and order in the Province. Although cases had been registered on directions of the Supreme Court regarding recovery of mutilated dead bodies and missing persons but without any positive investigational results. Despite a democratic Provincial Government headed by a Chief Minister and his Cabinet, no one had come forward with a solution of the situation, which was prevailing in the Province. Sectarian and target killing, including the killing of settlers or persons who had come to the Province for earning their livelihood had increased. Failure of Police and Frontier Corps in maintaining law and order was visible throughout the Province. Law enforcing agencies including Frontier Corps were repeatedly directed to produce missing persons, but they did not carry out the same by simply stating that missing persons were not in their custody. Prima facie, involvement of Frontier Corps in the issue of missing persons could not be overruled on the basis of overwhelming evidence. Kidnapping for ransom had become a trade in the Province and even certain sitting Provincial Ministers were alleged to be involved in such kidnappings. Gangs involved in kidnapping for ransom operated throughout the Province without any hindrance and ransom was paid to them as per their demands. Despite directions to police and concerned authorities to recover illicit arms and ammunition, no effective progress had been made in the issue. Police report regarding postings and utilization of police officers in the Province clearly demonstrated lack of will on the part of administration to safeguard the life and property of the residents. Attorney General had not shown interest in the present proceedings and did not appear during the proceedings of the present case in the Province (Provincial Registry of the Supreme Court) and case was entrusted to Deputy Attorney-General, which indicated the (lack of) interest of the Federal Government in the present case. Affairs of State in the Province were not being carried out in accordance with the Constitution due to which internal disturbance was increasing. Provincial law enforcing agencies including Frontier Corps, Police and Levies had failed to ensure protection of life and property of the people living in the Province. People of the Province were reluctant to lodge an F.I.R. for recovery of mutilated dead bodies, target killing etc. due to fear or due to lack of confidence in law enforcing agencies. Neither the Provincial Government nor the Federal Government succeeded in identifying the culprits involved in the killing of people whose mutilated bodies were found. No report was registered by the law enforcing agencies in respect of missing persons, target killings, abduction for ransom and sectarian killings. People in general and employees both civilians and non-civilians had no protection as to the security of their lives, properties, dignity and professions. Rahdaries issued by security agencies to ply vehicles without paying customs duties were without lawful authority. Due to interference of different forces in the administration of the Province it had become almost difficult to maintain law and order or to ensure enforcement of fundament rights of the people. Serious allegations of corruption had been alleged against the Provincial Government and people felt that there was no socio economic uplift in the Province. Provincial and Federal Government had failed to honour the commitment obtained from the authorities on directions of the Supreme Court, which had been Federal Government except deploying Frontier Corps troops, failed to protect the Province from internal disturbances. Provincial Government had lost its constitutional authority to govern the Province because of violation of fundamental rights of the people. Provincial Government had failed to establish writ of law in the Province and lost the constitutional authority to govern the Province in accordance with the Constitution and to ensure the enforcement of fundamental rights under the Constitution. Interference in the affairs of the Province by secret agencies had been prima facie established. Interim order was passed accordingly.

Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642; Watan Party v. Federation of Pakistan PLD 2011 SC 997; Khalid Malik v. Federation of Pakistan PLD 1991 Kar. 1; Jamat-i-Islami Pakistan v. Federation of Pakistan PLD 2000 SC 111 and Mohtarma Benazir Bhutto v. President of Pakistan PLD 1998 SC 388 ref.

(c) Constitution of Pakistan---

----Arts. 9, 10A, 14, 15, 17, 18, 24(1), 25, 148(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning law and order situation in Balochistan Province---Issue of missing persons, target and sectarian killing of citizens, abductions for ransom, finding of mutilated bodies, kidnapping of citizens by personnel of Frontier Corps (FC) and forced disappearance of members of the Bars---Supreme Court, in its interim order, gave directions to the effect that Federal Government should ensure immediate action under the Constitution to provide security to the people of the Province against all criminal aggression including the recovery of mutilated dead bodies, missing persons, target killings, abduction for ransom and sectarian killings; that Provincial Government should accelerate the process of registration of cases in respect of said criminal aggression and should make payment of compensation to the heirs of persons whose dead bodies were recovered; that Provincial Government should prepare a scheme for the purpose of providing maintenance etc. to the families of those persons who had been killed; that Federal and Provincial Government should immediately take steps for the rehabilitation of Internally Displaced Persons (IDPs) in the Province and necessary steps should be taken not only for the restoration of their properties but also by providing security to their lives and property and restore civil administration such as schools, hospitals, courts, police stations etc.; that in future, no Rahdaries either for vehicles or for arms should be issued by any secret agencies, and if any such rahdaries were produced by any person, the law enforcing agencies, functioning under the Provincial Government should arrest such persons and deal with them in accordance with law; that Federal Board of Revenue should recover all smuggled vehicles as early as possible and in future no such vehicle should be allowed to ply without the payment of customs duty and if any such vehicle was found, same should be impounded and the accused persons should be dealt with under the law; that constitutional functionaries should take all necessary steps to remove the sense of deprivation in the Province, which was only possible if due share in the resources of the Province was made available to the Province as early as possible and was spent transparently through an honest constitutional dispensation; that allegations of corruption against Government functionaries should be looked into by constitutional functionaries and it should also be ensured that in future the development funds etc. were spent transparently and persons who were responsible for misappropriating such funds were dealt with in accordance with the law; that Federal Government should fulfil its duty and obligation under Art.148(3) of the Constitution by holding true, free and fair elections to ensure representation of the people by their duly elected representatives; that investigation being carried out against the culprits allegedly involved in the commission of forced disappearances (missing persons, abduction for ransom, sectarian killings, target killings and recovery of mutilated bodies), should be transferred to Crime Investigation Department (CID) and Inspector General of Police should provide adequate manpower and facilities to the said Department by deputing honest, upright and daring officers to conduct the investigation; that Crime Investigation Department (CID) should submit challans of cases before the Provincial High Court directly so that they might be decided expeditiously, and that concerned Provincial Secretaries should put up a comprehensive report in respect of the steps which had been taken in pursuance of the present order by all the constitutional functionaries both in the Federation as well as in the Province on fortnightly basis.

(d) Anti-Terrorism Act (XXVII of 1997)---

----S. 11-W---Constitution of Pakistan, Art.184(3)---Constitutional petition under Art.184(3) of the Constitution concerning law and order situation in Balochistan Province---Incidents of killing of innocent persons---Newspapers publishing news of taking responsibility by different organizations for committing such incidents---Legality---Contentions on behalf of Frontier Corps (FC) were that publication of such news increased sense of insecurity among the people of the Province, and that such publication was contrary to the provisions of S.11-W of the Anti-Terrorism Act, 1997---Validity---Restraint order in such behalf had been passed by the Provincial High Court---Supreme Court confirmed said order of High Court and directed that in future provisions of S.11-A of Anti-Terrorism Act, 1997 should be followed strictly both by the electronic and print media.

(e) Constitution of Pakistan---

----Arts. 2A & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning law and order situation in Balochistan Province---Parliamentary system of Government---Provincial affairs---Provincial Government, responsibility of---Scope---Federating units like Provincial Government and others in a parliamentary system of Government enjoyed provincial autonomy, thus (they) were responsible to ensure that affairs of the Provinces were run independently according to the constitutional provisions.

(f) Constitution of Pakistan---

----Arts. 137, 184(3) & Part II, Chap. I [Arts. 8 to 28]---Constitutional petition under Art.184(3) of the Constitution concerning law and order situation in Balochistan Province---Maintaining law and order in the Province---Provincial Government, powers of---Scope---Provincial Government had power to make laws for maintaining law and order situation in the Province to the extent of its territory---No limitation existed on the powers of the Provincial Government to make laws on the subject, except that no law should be made which was against the fundamental rights guaranteed by the Constitution.

(g) Constitution of Pakistan---

----Arts. 4, 7, 10A & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning law and order situation in Balochistan Province---Enforcement of fundamental rights of the citizens of the Province---Provincial Government, duty of---Provincial Government (in terms of Art.7 of the Constitution) had the duty to enforce fundamental rights of citizens and protect their life, liberty and property---Anyone charged for any offence had to be dealt with in accordance with the law by providing a fair trial and due process.

(h) Constitution of Pakistan---

----Arts. 148(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning law and order situation in Balochistan Province---Duty of Federal Government---Scope---Article 148(3) of the Constitution cast a duty upon the Federation to protect Provincial Government against internal disturbance---Such duty had to be exercised by the Federal Government as a constitutional duty and no departure from the same was possible because performance of such duty was an obligation.

Alcock A. & Co. v. C. Revenue A AIR 1923 Privy Council 138 ref.

Syed Ayyaz Zahoor, Senior Advocate Supreme Court, Hadi Shakeel Ahmed, Advocate Supreme Court, M. Qahir Shah, Advocate Supreme Court, Kamran Murtaza, Advocate Supreme Court, Baz Muhammad Kakar, Advocate Supreme Court, Malik Zahoor Shahwani, Advocate Supreme Court/President Balochistan High Court Bar and Sajid Tareen, Advocate Supreme Court/Senior Vice President for Petitioner.

Yasin Azad, Advocate Supreme Court/President, Jehanzeb Jadoon, Advocate Supreme Court/Vice President, Khalid Kubdani, Advocate Supreme Court, Sanauallah Ababki, Advocate Supreme Court and Bashir Zahir, Advocate Supreme Court Members Executive for SCBAP.

Nasrullah Baloch for Applicants (in C.M.As. Nos.178 and 516-Q of 2012).

Ms. Tehniat Zahra, Advocate/Member PIHRO (in C.M.A. No.3966 of 2012) for Complainants: Dur Khatoon, Khairun Nisa, Mahah Bibi, Bibi Ayesha, Bibi Raheem, Ms. Javeriya, Bibi Fatima, Gohar Khatoon, Asia Bibi, Saleem Khatoon, Sajida, Hurmat Khatoon, Ganj Bibi, Said Bibi, Bibi Haseena, Pervez Ahmed, M. Alam, Zahoor, M. Murad, Jehanzeb, Diva and Haji Naseer Ahmed Applicants/ Complainants.

Dr. Sultan Tareen, Dr. Saadat Khan and Dr. Shams Kakar for PMA (applicants in C.M.A. No.524-Q of 2012).

M. Zafar, Senior Advocate Supreme Court, Rasheed A. Rizvi, Senior Advocate Supreme Court, Munir A. Malik, Senior Advocate Supreme Court and Salman Akram Raja, Advocate Supreme Court as Amicus Curiae.

Malik Sikandar Khan, D.A.-G. for Federation of Pakistan.

Nemo for M/o Interior.

Commander Hussain Shahbaz, Director (L) for M/o Defence.

Amanullah Kanrani, A.-G., Amanullah Tarin, Additional A.-G., Babar Yaqool Fateh Muhammad, Chief Secy., Asmatullah Kakar, Secretary Health, Hassan Iqbal, Special Secretary, Home, Tarik Umer Khattab, I.-G.P., Kambar Dashti, Commissioner Quetta, Zubair Mehmood, CCPO, Quetta and Hamid Shakeel, D.I.-G. (Investigation) for Government of Balochistan.

S.M. Zafar, Senior Advocate Supreme Court, Obaidullah Khattak, IG, FC and Major Sohail, HQ, FC for IG FC.

Dr. M. Shamim Rana, Advocate Supreme Court for FBR.

Nemo for Mobile Operators.

Nemo for PTA.

Dates of hearing: 8th to 12th October, 2012.

2012 SCMR 2008

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

Air Marshal (Retd.) MUHAMMAD ASGHAR KHAN---Petitioner

Versus

General (Retd.) MIRZA ASLAM BAIG, FORMER CHIEF OF ARMY STAFF and others---Respondents

Human Rights Case No.19 of 1996, decided on 19th October, 2012.

(Application by Air Marshal (Retd.) Muhammad Asghar Khan).

(a) Constitution of Pakistan---

----Arts. 17, 41(1), 42, 184(3), 244 & Preamble---Human rights case concerning creation of an "Election Cell" in the Presidency with the aid of Chief of Army Staff and officials of intelligence agencies to provide financial assistance from public exchequer to favoured candidates, or a group of political parties to achieve desired results in the elections held in the year 1990---Maintainability---Present case was based on the fundamental right of citizens enshrined in Art.17 of the Constitution and raised an important question of public importance to enforce the fundamental rights, therefore, in accordance with provisions of Art.184(3) of the Constitution, jurisdiction was assumed by the Supreme Court accordingly.

(b) Constitution of Pakistan---

----Art. 17 & Preamble---Elections process---Right of citizens to elect their representatives---Scope---Citizens as a matter of right were free to elect their representatives in an election process which was conducted honestly, justly, fairly and in accordance with law.

(c) Constitution of Pakistan---

----Arts. 17, 41(1), 42, 184(3), 244, 245(1) & Preamble---Human rights case concerning creation of an "Election Cell" in the Presidency with the aid of Chief of Army Staff and officials of intelligence agencies to provide financial assistance from public exchequer to favoured candidates, or a group of political parties to achieve desired results in the elections held in the year 1990---President, Chief of Army Staff and officials of intelligence agencies were not supposed to create an "Election Cell" or to support a political party/group of political parties, because if they did so, the citizens would fail to elect their representatives in an honest, fair and free process of election, and their actions would negate the constitutional mandate on the subject---General election held in the year 1990 was subjected to corruption and corrupt practices---Material produced established that an "Election Cell" had been created in the Presidency with the aid of Chief of Army Staff and Director-General of the intelligence agency---Said "Election Cell" was functioning to provide financial assistance from public exchequer to favoured candidates, or a group of political parties to achieve desired results by polluting the election process and depriving people from being represented by their chosen representatives---Chief of Army Staff and Director-General of the intelligence agency participated in unlawful activities of the "Election Cell" in violation of the responsibilities of their respective institutions, and their acts were individual acts and not of the institutions represented by them---Intelligence agencies had no role to play in the political activities/politics, for formulation or destabilization of political Governments, nor could they facilitate or show favour to a political party or group of political parties or politicians individually, in any manner, which might lead in their success---President, Chief of Army Staff, Director-General of intelligence agency and officials of different intelligence agencies supported the functioning of the "Election Cell", which had been established illegally and on the direction and behest of said functionaries, Chief Executive of a bank arranged/provided Rs.140 million belonging to public exchequer, out of which an amount of Rs.60 million was distributed amongst politicians---Supreme Court directed that any "Election Cell"/ "Political Cell" in the Presidency or intelligence agencies or within their formations should be abolished immediately and any letter/notification to the extent of creating any such Cell/Department should stand cancelled forthwith; that the acts of the then President, Chief of Army Staff and Director General of intelligence agency had brought a bad name to the country, Armed Forces as well as secret agencies, therefore, notwithstanding that they might have retired from service, the Federal Government should take necessary steps under the Constitution and law against them; that a transparent investigation should be initiated by the Federal Investigation Agency against all those politicians who allegedly received donations to spend on election campaigns in the general election of year 1990, and if sufficient evidence was collected, they should be sent up to face trial, according to law; that Chief Executive of the bank in question (who provided financial assistance) should also be dealt with in the same manner, and that proceedings should also be launched against the persons (politicians) for affecting the recovery of sums received by them with profit thereon by initiating civil proceedings against them, according to law.

(d) Constitution of Pakistan---

----Arts.41(1) & 42---Office of President---"Duty to treat all equally"---Scope---President being head of the State represented the unity of the Republic under Art.41 of the Constitution and as per oath of his office, he had to do right to all manner of people, according to law, without fear or favour, affection or ill-will, in all circumstances---Holder of office of President, would violate the Constitution, if he failed to treat all manner of people equally and favoured any set.

(e) Constitution of Pakistan---

----Arts. 244 & 245(1)---Political affairs---Process of elections---Role of intelligence agencies---Scope---Intelligence agencies had no role to play in the political affairs of the country such as formation or destabilization of government, or interference in holding of honest, free and fair elections---Involvement of the officers/members of secret/intelligence agencies in unlawful (political) activities, individually or collectively called for strict action being, violative of oath of their offices, and if involved, they were liable to be dealt with under the Constitution and the law.

Salman Akram Raja, Advocate Supreme Court assisted by Malik Ghulam Sabir, Advocate along with Air Marshal (R) M. Asghar Khan for Petitioner.

Irfan Qadir, Attorney-General for Pakistan, Dil Muhammad Khan Alizai, D.A.-G., Raja Abdul Ghafoor, Advocate-on-Record assisted by Barrister Shehryar Riaz Sheikh, Advocate, Commander Hussain Shahbaz, Director (L) and Wing Comd. M. Irfan, Deputy Director for the Federation/M/o Defence.

Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Ch. Hassan Murtaza Mann, Advocate along with Gen. Retd. Mirza Aslam Baig for Respondent No.1.

Lt. Gen. Retd. Asad Durrani, Ex-DG, ISI for Respondent No.2 in person.

Muhammad Munir Piracha, Senior Advocate Supreme Court for Respondent No.3.

Sh. Khizar Hayat, Senior Advocate Supreme Court for Applicants (in C.M.A. No.918 of 2007).

Roedad Khan in person (in C.M.A. No.3196 of 2012).

Raja Abdul Ghafoor, Advocate-on-Record for Applicants (in C.M.A. 3410 of 2012).

Malik Asif Hayat, Secretary to the President and Arshad Ali Chaudhry, Director Legal for President Secretariat on Court's Notice.

Raja Abdul Ghafoor, Advocate-on-Record for SBP on Court's Notice.

Mazhar Ali Chaudhry, D.P.-G. and Brig. (R) Hamid Saeed in person for NAB on Court's Notice.

Nemo for HBL.

Date of hearing: 19th October, 2012.

2012 S C M R 1549

[Supreme Court of India]

Present: R.V. Raveendran and K.S. Radhakrishnan, JJ

MUNICIPAL CORPORATION OF DELHI---Appellant

Versus

ASSOCIATION OF VICTIMS OF UPHAAR TRAGEDY and others---Respondents

Civil Appeals Nos. 7114-15 with 7116 of 2003 and 6748 of 2004, decided on 13th October, 2011.

Per R. V. Raveendran, J; K. S. Radhakrishnan, J, agreeing

(a) Damages---

----Public authority---Inaction in performance of statutory duty---Action performed without authority of law---Liability for damages---Scope.

Not proper to award damages against public authorities merely because there has been some inaction in the performance of their statutory duties or because the action taken by them is ultimately found to be without authority of law. In regard to performance of statutory functions and duties, the courts will not award damages unless there is malice or conscious abuse.

Rabindra Nath Ghosal v. University of Calcutta and others (2002) 7 SCC 478; (AIR 2002 SC 3560; 2002 AIR SCW 4174); Geddis v. Proprietors of Bonn Reservoir (1878) 3 Appeal Cases 430; X (Minors) v. Bedfordshire County Council (1995) 3 All ER 353; R v. Dy. Governor of Parkhurst Prison (Ex. P. Hague) - [(1991) 3 All ER 733]; John Just v. Her Majesty The Queen (1989) 2 SCR 1228 (Canadian Supreme Court); Roger Holland v. Government of Saskatchewan and others (2008) 2 SCR 551 (Canadian Supreme Court); East Suffolk Rivers Catchment Board v. Kent, 1941 AC 74 and Murphy Brentwood District Council [1990 (2) All ER 908] ref.

(b) Damages---

----Public authority---Negligence in performance of statutory duty---Breach of fundamental rights---Enforcement of constitutional rights by courts---Liability of public authority for such negligence---Compensation---Scope.

Award of compensation by way of public law remedy need not only be a nominal palliative amount. Compensation can be by way of making monetary amounts for the wrong done or by way of exemplary damages, exclusive of any amount recoverable in a civil action based on tortuous liability.

Nilabati Behera alias Lalita Behera v. State of Orissa [1993 (2) SCC 746; (AIR 1993 SC 1960; 1993 AIR SCW 2366)] and Sube Singh v. State of Haryana [2006 (3) SCC 178; (AIR 2006 SC 1177; 2006 AIR SCW 779)] ref.

(c) Damages---

----Public authority---Negligence in performance of statutory duty resulting in death/injury---Enforcement of constitutional right by courts---Group action by victims---Compensation, amount of---Calculation of compensation on basis of income of victims---Scope.

While awarding compensation to a large group of persons, by way of public law remedy, it will be unsafe to use a high income as the determinative factor. Proper course would be to award a uniform amount keeping in view the principles relating to award of compensation in public law remedy cases reserving liberty to the legal heirs of deceased victims to claim additional amount wherever they were not satisfied with the amount awarded.

Nilabati Behera alias Lalita Behera v. State of Orissa [1993 (2) SCC 746; (AIR 1993 SC 1960; 1993 AIR SCW 2366)] distinguished.

(d) Constitutional tort---

----Public authority--- Negligence--- Damages--- Negligence in performance of statutory duty---Breach of fundamental rights---Liability of public authority for such negligence---Scope---Enforcement of constitutional rights by courts---Fire in cinema theatre due to fault in a transformer installed by Power Board ("Board")---Inadequate safety arrangements made by cinema owner---Deaths caused by noxious fumes and smoke---Whether Municipal Corporation ("Corporation") of the city and Licensing Authority for cinemas could be held liable for improper discharge of statutory functions---Scope.

Licensing Authority and Corporation were not the owners of the cinema theatre. Cause of fire was not attributable to them or anything done by them and their actions/ omissions were not the proximate cause for the deaths and injuries. Licensing Authority and Corporation were merely discharging their statutory functions (i.e. granting licence and submitting inspection report/issuing a "No Objection Certificate" respectively). Licensing Authority and Corporation could not be made liable to pay compensation to the victims of the tragedy merely on the ground that they could have performed their duties better or more efficiently. No close or direct proximity existed between the acts of Licensing Authority and Corporation on one hand and the fire accident and death/injuries of the victims on the other. However, there was close and direct proximity between the acts of the cinema owner and Power Board on the one hand and the fire accident resultant deaths/injuries of victims on the other. High Court committed a serious error in making the Licensing Authority and Corporation liable to pay compensation to the victims jointly and severally with the cinema owner and the Power Board.

Supreme Court observed that exoneration of Licensing Authority and Corporation was only in regard to monetary liability to the victims, and the High Court was correct in observing that performance of duties by the Licensing Authority and Corporation was mechanical, casual and lackadaisical. Appeals were disposed of accordingly.

(e) Constitutional tort---

----Public authority---Negligence---Damages, reduction in---Negligence in performance of statutory duty-Breach of fundamental rights---Compensation amount, determination of---Punitive damages, award of---Scope and purpose---Enforcement of constitutional rights by courts---Fire in cinema theatre due to fault in a transformer installed by Power Board ("Board")---Inadequate safety arrangements made by cinema owner---Installation of illegal and unauthorized additional seats in the cinema---Deaths caused by noxious fumes and smoke---High Court held cinema owner and Power Board liable to pay compensation at a flat rate of Rs. 18 lakhs for each deceased person aged above 20 years and Rs. 15 lakhs for each deceased person aged below 20 years---High Court also awarded punitive damages of Rs. 2.5 crores against the cinema owner based on the profits he had obtained from installing illegal and unauthorized seats at the cinema---Validity.

Supreme Court observed that while awarding compensation to a large group of persons, by way of public law remedy, it would be unsafe to use a high income as the determinative factor, and that proper course, in such circumstances would be to award a uniform amount keeping in view the principles relating to award of compensation in public law remedy cases.

Supreme Court further observed that additional punitive damages were awarded because the wrongdoing was outrageous in utter disregard of the safety of the patrons of the theatre, and because gravity of the breach required a deterrent to prevent similar further breaches.

Supreme Court reduced the compensation rate determined by the High Court to Rs. 10 lakhs and 7.5 lakhs for each deceased person over and below the age of 20 years respectively. Punitive damages were also reduced from Rs. 2.5 crores to Rs. 25 lakhs since all additional seats installed at the cinema could not be held to be illegal. Appeals were disposed of accordingly.

M.C. Mehta v. Union of India, 1987 (1) SCC 395 : (AIR 1987 SC 1086) ref.

Per K. S. Radhakrishnan, J; agreeing with R. V. Raveendran, J

(f) Legislation---

----Public safety legislation---Purpose and interpretation---Right to life and personal liberty---Significance---Duty of care owed by State and its officials---Scope.

Right to life and personal liberty has to be read into all public safety statutes, since the prime object of public safety legislation is to protect the individual and to compensate him for the loss suffered. Duty of care expected from State or its officials functioning under the public safety legislation is, therefore, very high.

N. Nagendra Rao v. State of A.P. AIR 1994 SC 2663 : (1994 AIR SCW 3753); X (Minors) v. Bedfordshire County Council, [1995] 2 AC 633; Barrett v. Enfield London Borough Council [2001] 2 AC 550; Nilabati Behera v. State of Orissa (AIR 1993 SC 1960 : 1993 AIR SCW 2366) and Union of India v. Prabhakaran (2008) 9 SCC 527 : (AIR 2009 SC (Supp) 383 : 2008 AIR SCW 4165) ref.

(g) Damages---

----Public authority---Negligence in performance of statutory duty---Breach of fundamental rights---Liability of public authority for such negligence---Scope---Compensation, determination of---Method and policy---Scope---Enforcement of constitutional rights by courts.

Constitutional court can award monetary compensation against State and its officials for its failure to safeguard fundamental rights of citizens but there is no system or method to measure the damages caused in such situations. Yardsticks normally adopted for determining the compensation payable in a private tort claims are not as such applicable when a constitutional court determines the compensation in cases where there is violation of fundamental rights guaranteed to its citizens.

Supreme Court observed that because of failure to precisely articulate and carefully evaluate a uniform policy as against State and its officials, the courts at times tend to adopt rules which are applicable in private law remedy for which courts and statutes have evolved various methods, such as loss earnings, impairment of future earning capacity, medical expenses, mental and physical suffering, property damage etc. Adoption of said methods in computing the damages for violation of constitutional torts may not be proper, therefore, the court can invoke its own methods depending upon the facts and circumstances of each case.

D.K. Basu v. Union of India (1997) 1 SCC 416 : (AIR 1997 SC 610 : 1997 AIR SCW 233) ref.

(h) Damages---

----Public authority---Right to life and personal liberty, breach of---Public authority breaching fundamental rights in performance of its statutory duty---Liability of public authority for punitive damages---Scope---Enforcement of constitutional rights by courts.

Constitutional courts can in appropriate cases of serious violation of life and liberty of the individuals award punitive damages. However, the same generally requires the presence of malicious intent on the side of the wrongdoer, i.e. an intentional doing of some wrongful act. Punitive damages are awarded by the constitutional court when the wrongdoer's conduct is egregiously deceitful.

Several factors may gauge on constitutional court in determining the punitive damages such as contumacious conduct of the wrong-doer, the nature of the statute, gravity of the fault committed, the circumstances etc. Punitive damages can be awarded when the wrongdoers' conduct 'shocks the conscience' or is 'outrageous' or there is a wilful and 'wanton disregard' for safety requirements. Normally, there must be a direct connection between the wrongdoer's conduct and the victim's injury.

Rookes v. Barnard [1964] 1 All ER 367; Attorney-General v. Blake [2001] 1 AC 268; BMW of North America Inc. v. Gore, 517 US 559 (1996) (Supreme Court of United States) and Philip Morris USA v. Williams 549 US 346 (2007)(Supreme Court of United States) ref.

(i) Damages---

----"Punitive damages", award of---Purpose.

Punitive damages are intended to reform or to deter the wrong-doer from indulging in conduct similar to that which formed the basis for the claim. Punitive damages are not intended to compensate the claimant which he can claim in an ordinary private law claim in tort.

Date of hearing: 13th October, 2011.

2012 S C M R 1610

[Supreme Court of India]

Present: H.L. Dattu and Chandramauli Kr. Prasad, JJ

MUHAMMAD HUSSAIN alias JULFIKAR ALI---Appellant

Versus

STATE (GOVT. OF NCT), DELHI---Respondent

Criminal Appeal No.1091 of 2006, decided on 11th January, 2012.

Per H.L. Dattu, J; Chandramauli Kr. Prasad, J, concurring

(a) Fundamental Rights---

----Right to fair trial---Legal assistance (aid) to an unrepresented accused person---Purpose and object---Right to life and personal liberty---Scope---Every person had a right to a fair trial by a competent court in the spirit of the right to life and personal liberty---Object and purpose of providing competent legal aid to an undefended and unrepresented accused persons was to see that the accused got free, fair, just and reasonable trial.

Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) 3 SCC 374 : (AIR 2006 SC 1367 : 2006 AIR SCW 1340); M.H. Hoskot v. State of Maharashtra 1978 (3) SCC 544 : (AIR 1978 SC 1548) and Muhammad Sukur Ali v. State of Assam (2011) 4 SCC 729 : (AIR 2011 SC 1222 : 2011 AIR SCW 1352) ref.

(b) Fundamental Rights---

----Right to fair trial---Accused charged with a serious offence---Prompt disposal of the case---Scope---Prompt disposal of criminal cases was to be commended and encouraged but in reaching the result, the accused charged with a serious offence must not be stripped of his valuable right of a fair and impartial trial, as same would negate the concept of due process of law.

(c) Fundamental Rights---

----Right to fair trial---Scope---Right to a defence counsel---Scope---Right to be defended by a counsel was a principal part of the right to a fair trial.

(d) Fundamental Rights---

----Due process of law---Attempt to murder, causing explosion likely to endanger life or property---Reappraisal of evidence---Right to fair trial and due process of law---Scope---Right of an accused to a counsel---Scope---Accused, a foreign national, was alleged to have been involved in causing an explosion in a passenger bus---Accused was unable to afford and engage a defence counsel and the one provided by Trial Court only assisted the accused at belated stage of the trial---Fifty six (56) prosecution witnesses out of a total of sixty five (65) were examined without defence counsel---None of the said fifty six (56) witnesses were cross-examined by the accused due to non - presence of defence counsel---Duty of Trial Court---Necessity of counsel was so vital and imperative that the failure of the Trial Court to make an effective appointment of a counsel was a denial of due process of law---Principles.

Record showed that accused was not asked whether he was able to employ counsel or wished to have counsel appointed. When the parties were ready for the trial, no one appeared for the accused. Court did not appoint any counsel to defend the accused. Court had a mandatory duty to appoint a counsel to represent the accused. Record revealed that evidence of 56 prosecution witnesses, out of a total of 65, including the eye-witnesses and the Investigating Officer, were recorded by the Trial Court without providing a counsel to the accused, and that none of the said 56 witnesses were cross-examined by the accused. Trial Court subsequently appointed a counsel to defend the accused and evidence of prosecution witnesses from 57 to 65 were recorded in the presence of the freshly appointed defence counsel, who thought it fit not to cross-examine any of the said witnesses. Defence counsel had filed an application before the conclusion of the trial to cross-examine only one prosecution witness which was granted by the Trial Court and the defence counsel performed the formality of cross-examining said witness. Appointment of a defence counsel and her appearance during the last stages of the trial was rather pro forma than active. Accused, in circumstances, did not have the aid of a counsel in any real sense, although, he was as much entitled to such aid during the period of trial.

In the present case, not only the accused was denied the assistance of a counsel during the trial and such designation of counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard.

Trial Court should have seen that in the proceedings before it, the accused was dealt with justly and fairly by keeping in view the principle that the accused of a crime was entitled to a counsel which might be necessary for his defence, as well as to facts and law. Same yardstick might not be applicable in respect of economic offences or where offences were not punishable with substantive sentence of imprisonment but punishable with fine only. Fact that the right involved in the present case was of such a character that it could not be denied without violating the fundamental principles of liberty and justice which lie at the base of all judicial proceedings. Necessity of counsel was so vital and imperative that the failure of the Trial Court to make an effective appointment of a counsel was a denial of due process of law.

Appeal was allowed by Supreme Court, conviction and sentence imposed by the Trial Court was set aside and case was remanded to the Trial Court with the direction to assist the accused by employing a State counsel before the commencement of the trial till its conclusion, if the accused was unable to employ a counsel of his own choice.

Per Chandramauli Kr. Prasad, J; concurring with H.L. Dattu, J

(e) Criminal trial---

----Cross-examination, right of---Significance and purpose.

Fate of a criminal trial depended upon the truthfulness or otherwise of the witnesses. To arrive at the truth, its veracity should be judged and for that purpose cross-examination was an acid test since it tested the truthfulness of the statement made by a witness on oath in examination-in-chief. Purpose of cross-examination was to elicit facts and materials to establish that the evidence of a witness was fit to be rejected.

(f) Fundamental Rights---

----Right to fair trial---Scope and significance--- Conviction and sentence could be inflicted only on culmination of the trial which was fair and just---In an adversarial system of criminal justice, any person facing trial could be assured a fair trial only when a counsel was provided to him.

International Covenant on Civil and Political Rights (Article 14) and Universal Declaration on Human Rights (Article 10) ref.

(g) Fundamental Rights---

----Right to fair trial---Scope---Right of a person charged with a crime to have the services of a lawyer was fundamental and essential to a fair trial---Accused unable to afford a counsel---Right of accused to a defence counsel in such circumstances---Where an accused, who was too poor to afford a lawyer, was to go through the trial without legal assistance, such a trial could not be regarded as reasonable, fair and just---Right to be heard in a criminal trial would be inconsequential and of no avail if within itself it did not include a right to be heard through counsel---Guiding hand of counsel at every step in the proceedings was needed for a fair trial.

(h) Murder---

----Attempt to murder, causing explosion likely to endanger life or property---Reappraisal of evidence---Right to fair trial and due process of law---Scope---Right of accused to a counsel---Scope---Accused, a foreign national, was alleged to have been involved in causing an explosion in a passenger bus---Accused was unable to afford and engage a defence counsel and the one provided by Trial Court only assisted the accused at belated stage of the trial---Fifty six (56) prosecution witnesses out of a total of sixty five (65) were examined without defence counsel---None of the said fifty six (56) witnesses were cross-examined by the accused due to non-presence of defence counsel---Accused was tried, convicted and sentenced to death by the Trial Court---High Court confirmed death sentence awarded by the Trial Court---Validity---Trial Court had relied upon the evidence of witnesses who were not cross-examined---Accused was denied the right to cross-examination as he was not given the assistance of a lawyer to defend him---Poverty also came in the way of the accused to engage a counsel of his choice---Accused seemed illiterate and had asked for engagement of a counsel to defend him at State expenditure which was provided but unfortunately for him the counsel so appointed remained absent and a large number of witnesses had been examined in the absence of the counsel---Such witnesses had not been cross-examined and many of them had been relied upon for holding the accused guilty---Supreme Court observed that the judge of the Trial court forgot that he had an overriding duty to maintain public confidence in the administration of justice; that he failed to realize that for an effective instrument in dispensing justice he must have ceased to be a spectator and a recording machine but should have been a participant in the trial evincing intelligence and active interest so as to elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality, and that the accused was ultimately convicted and sentenced in a trial which was not reasonable, fair and just---Appeal was allowed, conviction and sentence of accused was set aside on the ground that his trial was not fair and just and directions were given to release and deport him to his country in accordance with the law.

Hussainara Khatoon and others v. Home Secy., State of Bihar (1980) 1 SCC 98 : (AIR 1979 SC 1369) ref.

Arun Kumar Beriwal for Appellant.

D.S. Mehra for Respondent.

Date of hearing: 11th January, 2012.

2012 S C M R 1732

[Supreme Court of India]

Present: G.S. Singhvi and H.L. Dattu, JJ

SANJAY CHANDRA and others---Appellants

Versus

CENTRAL BUREAU OF INVESTIGATION and others---Respondents

Criminal Appeals Nos. 2178 to 2182 of 2011 (arising out of S.L.P. Criminal Appeals Nos.5650, 5902, 6190, 6288, 6315), decided on 23rd November, 2011.

(a) Bail---

----Object of---Right to security of person---Detention of accused in custody pending trial---Refusal of bail on ground of previous conduct of accused---Effect---Object of bail was to secure the appearance of the accused person at his trial by reasonable amount of bail---Object of bail was neither punitive nor preventative---Deprivation of liberty must be considered a punishment, unless it could be required to ensure that an accused person would stand his trial when called upon---Court owed more than verbal respect to the principle that punishment began after conviction, and that every man was deemed to be innocent until duly tried and duly found guilty---Detention in custody pending completion of trial could be a cause of great hardship, therefore, it would be quite contrary to the concept of personal liberty that any person should be punished in respect of any matter, upon which, he had not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he would tamper with the witnesses if left at liberty, save in the most extraordinary circumstances---Any imprisonment before conviction had a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused had been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.

Gudikanti Narasimhulu v. Public Prosecutor (1978) 1 SCC 240 : (AIR 1978 SC 429); Babu Singh v. State of U.P. (1978) 1 SCC 579 : (AIR 1978 SC 527); Moti Ram v. State of M.P. (1978) 4 SCC 47 : (AIR 1978 SC 1594); Vaman Narain Ghiya v. State of Rajasthan (2009) 2 SCC 281 : (AIR 2009 SC 1362); Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694 : (AIR 2011 SC 312); Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 : (AIR 2001 SC 1444) and State of U.P. v. Amarmani Tripathi (2005) 8 SCC 21 : (AIR 2005 SC 3490) ref.

(b) Bail---

----Grant/refusal of---Considerations---Seriousness of the charge---Scope---Punishment likely to be imposed on the accused---Scope---Seriousness of the charge was one of the relevant considerations while considering bail application but that was not the only test or the factor--- Punishment that could be imposed after trial and conviction was another factor that was required to be taken note of.

(c) Bail---

----Bail, refusal of---Right to personal liberty---Bail was a rule and committal to jail an exception---Refusal of bail was a restriction on the personal liberty of an individual.

(d) Bail---

----Grant/refusal of---Considerations---Community having sentiments against the accused---Effect---Grant or denial of bail was regulated, to a large extent, by the facts and circumstances of each particular case but at the same time, right to bail was not to be denied merely because of the sentiments of the community against the accused.

(e) Bail---

----Purpose of---Primary purposes of bail in a criminal case were to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to ensure that he would submit to the jurisdiction of the court and be in attendance thereon whenever his presence was required.

(f) Bail---

----Grant of---Economic offence---Telecom scam---Accused persons were alleged to have been involved in a telecom scam which allegedly caused huge losses to the State Exchequer---Courts below had refused bail to the accused person on the grounds that offence alleged was of very serious nature involving deep rooted planning in which huge financial loss was caused to the State Exchequer, and that there was a possibility of the accused persons tampering with the witnesses---Validity---Seventeen accused persons were involved in the case, and statement of the witnesses ran to several hundred pages and the documents, on which reliance was placed by the prosecution, were voluminous---Trial might take considerable time and it looked that the accused persons would have to remain in jail longer than the period of detention, had they been convicted---Interest of justice did not require that accused persons should be in jail for an indefinite period---Although offence alleged against the accused persons was a serious one in terms of alleged huge loss to the State Exchequer, but that by itself should not be a deterrence from enlarging the accused persons on bail when there was no serious contention of the Investigation Bureau (respondent) that the accused, if released on bail, would interfere with the trial or tamper with evidence---Investigation was complete and charge-sheet had been filed---Supreme Court observed that the court was conscious of the fact that the accused persons were charged with economic offences of huge magnitude and if same were proved they might jeopardize the economy of the country but at the same time, one could not lose sight of the fact that the Investigating agency had already completed investigation and the charge-sheet was already filed before the Trial court, therefore, presence of the accused persons in custody might not be necessary for further investigation--- Accused persons were released on bail on the conditions that they would not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the court or to any other authority; that the accused persons shall remain present before the court on the dates fixed for hearing of the case and if they wanted to remain absent, then they should take prior permission of the court and in case of unavoidable circumstances for remaining absent, they should immediately give intimation to the appropriate court and also to the Investigation Bureau; that the accused persons would not dispute their identity as the accused in the case, and that they should surrender their passports and in case, they were not a holder of the same, they should swear to an affidavit---Order accordingly.

Messrs Suresh A. Shroff and Co. for Appellants.

Arvind Kumar Sharma for Respondents.

Date of hearing: 23rd November, 2011.

2012 S C M R 1841

[Supreme Court of India]

Present: R.V. Raveendran and A.K. Patnaik, JJ

SANCHIT BANSAL and another---Appellants

versus

JOINT ADMISSION BOARD (JAB) and others---Respondents

Civil Appeal No.8520 of 2011 (arising out of S.L.P. (C) No.13495 of 2010), decided on 11th October, 2011.

(a) Educational institution---

---- Admission--- Entrance examination--- Admission Board---Complicated procedure adopted by the Board for evaluation, selection and ranking of candidates---Interference in such procedure by the courts---Scope---Cut-off marks fixed for the subject---Candidate (appellant) contended that Admission Board (respondent) fixed cut-off marks for the subject in question arbitrarily and in a mala fide manner, and that on account of personal enmity and rivalry with the candidate's father, the Board manipulated the ranking and selection process to deny admission to the candidate---Validity---Procedure adopted by the Board might have appeared to be highly cumbersome and complicated, but the object of said procedure for arriving at the cut-off marks was to select candidates well equipped in all the subjects, with reference to their merit, weighed against the average merit of all the candidates who appeared in the examination---Fact that the procedure was complicated would not make it arbitrary or unreasonable or discriminatory---Contention of candidate to the effect that to deny admission to him from among more than 2,87,000 students, the Board manipulated the process of fixing cut-off marks, was too far-fetched and difficult to accept, apart from the fact that there was no iota of material to support such a contention---Similar procedure for the entrance examination had also been adopted in the year 2000 and 2001---Object of the entire exercise was to ensure a balanced selection among the candidates who participated in the examination---No grounds existed for the court to interfere with the procedure, even if it was not accurate or efficient, in the absence of mala fides or arbitrariness or violation of law---Appeal was dismissed accordingly.

(b) Educational institution---

----Academic matters---Interference by court---Scope---Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them.

Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth AIR 1984 SC 1543 rel.

(c) Educational institution---

----Statutory professional bodies---Academic matters---Educational policies---Interference by courts---Scope---Courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education---If courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realizing the repercussions on the field of technical education in general, that will lead to chaos in education and deterioration in standards of education---Role of statutory expert bodies on education and role of courts are well defined by a simple rule i.e. "if it is a question of educational policy or an issue involving academic matter, the courts keep their hands off but where any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the courts will step in."

All India Council for Technical Education v. Surinder Kumar Dhawan AIR 2009 SC 2322 rel.

(d) Educational institution---

----Admission---Process of evaluation, ranking and selection of candidates---Interference by the courts---Scope---Process of evaluation, ranking and selection of candidates for admission with reference to their performance, and the process of achieving the objective of selecting candidates who will be better equipped to suit the specialized courses, are all technical matters in academic field and courts will not interfere in such processes---Courts will interfere only if they find violation of any enactment, statutory Rules and Regulations, or find mala fides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone, or where the procedure adopted is arbitrary and capricious---Action would be arbitrary and capricious if it is illogical and whimsical and something without any reasonable explanation---When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non-discriminatory, it cannot be described as arbitrary or capricious or mala fide.

Date of hearing: 11th October, 2011.

2012 S C M R 1298

[Supreme Court of UK]\

Present: Lord Phillips P., Lord Hope DP, Lady Hale, Lord Brown, Lord Collins, Lord Kerr and Lord Dyson SCJJ

JONES---Appellant

Versus

KANEY---Respondent

Per Lord Phillips; Lord Brown, Lord Collins, Lord Kerr and Lord Dyson agreeing; Lord Hope and Lady Hale dissenting. [Majority view]

(a) Witness---

----Expert witness---Immunity from suit for breach of duty---Extent and scope---Duty of care owed by an expert witness to his client---Scope---Personal injury action---Preparation of a joint statement/report by expert witness for purposes of settlement---Negligence by expert witness---Claimant having to settle for significantly lesser settlement as a consequence---Effect---Claimant (appellant) was involved in a road traffic accident---Claimant's solicitors instructed the defendant (respondent), who was a consultant clinical psychologist, to examine the claimant and prepare a report for the purposes of personal injury proceedings---Defendant prepared her first report in which she expressed the view that the claimant was at that time suffering from post traumatic stress disorder (PTSD)---Defendant subsequently prepared a second report stating that the claimant did not have all the symptoms to warrant a diagnosis of post-traumatic stress disorder (PTSD), but was still suffering from depression and some of the symptoms of PTSD---Consultant psychiatrist instructed by the relevant insurer prepared her own report, wherein it was stated that the claimant was exaggerating his physical symptom---District Judge ordered the two experts to hold discussions and to prepare a joint statement---Consultant psychiatrist for the relevant insurer prepared a draft joint statement, which the defendant (expert) signed without amendment or comment---Said joint statement was damaging to the claimant's claim as it recorded agreement that his psychological reaction to the accident was no more than an adjustment reaction that did not reach the level of a depressive disorder of post-traumatic stress disorder (PTSD); that the defendant had found the claimant to be deceptive and deceitful in his reporting, and that the experts agreed that his behaviour was suggestive of 'conscious mechanisms' that raised doubts as to whether his subjective reporting was genuine---Claimant, as a consequence, had to settle his claim for significantly less than the settlement that would have been achieved had not the defendant (expert) signed the joint statement in the terms in which she did---Contentions of the defendant were that immunity to expert witnesses was necessary to ensure that they would be prepared to give evidence at all, and that expert witnesses would be reluctant to give evidence against their client's interests if there was a risk that they would be sued---Validity---Expert witness must give his evidence honestly, even if it involved concessions that were contrary to his client's interests---No conflict existed between the duty that the expert owed to his client and the duty that he owed to the court---All who provided professional services which involved a duty of care were at risk of being sued for breach of that duty---Expert would be well aware of his duty to the court and where he frankly accepted that he had changed his view it would be apparent that he was performing that duty---Postulating that in order to persuade an expert to perform the duty that he had undertaken to his client it was necessary to give him immunity from liability for breach of that duty, would be paradoxical---Rational expert witness who had performed his duty was unlikely to fear being sued by the rational client---Unsuccessful litigant could easily allege, if permitted, that a witness of fact who had given evidence against him was guilty of defamatory mendacity but it was far less easy for a lay litigant to mount a credible case that his expert witness had been negligent---Defendant (expert witness), in the present case, had admitted to putting her signature to a joint report that did not express her views, therefore, there is nothing vexatious about the claimant's claim---Contention that removal of expert witness immunity would lead to a proliferation of vexatious claims was doubtful---No justification had been shown for continuing to hold expert witnesses immune from suit in relation to the evidence they gave in court or for the views they expressed in anticipation of court proceedings---Immunity from suit for breach of duty that expert witnesses had enjoyed in relation to their participation in legal proceedings should be abolished, however such abolition of immunity did not extend to the absolute privilege enjoyed by expert witnesses in respect of claims in defamation---Appeal was allowed, accordingly.

Stanton v. Callaghan [1998] 4 All ER 961, [2000] 1 QB 75 overruled.

Per Lord Brown; agreeing with Lord Phillips [Majority view]

(b) Witness---

----Expert witness---Immunity from suit for breach of duty---Extent and scope---Advantages of removing immunity of expert witness---Scope---'Witness of fact' and 'expert witness'---Duty of care owed---Scope---Personal injury action---Preparation of a joint statement/report by expert witness for purposes of settlement---Negligence by expert witness---Claimant having to settle for significantly lesser settlement as a consequence---Effect---Absolute immunity rule which applied to witnesses of fact was designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who took part in the judicial process from the fear of being sued for something they said---Witnesses of fact were unlikely to owe the party calling them any duty of care whether in contract or in tort but in stark contrast, expert witnesses clearly owed the party retaining them a contractual duty to exercise reasonable skill and care---Gains to be derived from denying expert witnesses' immunity from suit for breach of said duty substantially exceeded whatever loss might be thought likely to result from it---Most likely broad consequence of denying expert witnesses the immunity accorded to them would be a sharpened awareness of the risks of pitching their initial views of the merits of their client's case too high or too inflexibly in case these views came to expose and embarrass them at a later date---Another advantage of denying immunity to expert witnesses was where the witness behaved in an egregious manner such as was alleged in the present case or, otherwise caused his client loss by adopting or adhering to an opinion outside the permissible range of reasonable expert opinions, the wronged client would enjoy, rather than have denied to him by rule of law, his proper remedy---Courts should be alert to protect expert witnesses against specious claims by disappointed litigants, and should stamp vigorously upon any sort of attempt to pressurise experts to adopt or alter opinions other than those genuinely held---Balance of advantage, in the present case, clearly laid in favour of allowing the appeal---Appeal was allowed, accordingly.

Taylor v. Serious Fraud Office [1998] 4 All ER 801 at 808, [1999] 2 AC 177 at 208 ref.

Per Lord Collins; agreeing with Lord Phillips and Lord Dyson [Majority view]

(c) Witness---

----Expert witness---Immunity from suit for breach of duty---Scope---Duty of care owed by expert witness---Scope---Advantage of removing immunity of expert witness---Scope---Personal injury action---Preparation of a joint statement/report by expert witness for purposes of settlement---Negligence by expert witness---Claimant having to settle for significantly lesser settlement as a consequence---Effect---Where a person has suffered a wrong that person should have a remedy unless there was a sufficiently strong public policy in maintaining an immunity---Expert owed a duty to the client, but also owed a duty to the court, as a servant of the court, to present truthful and competent evidence---Immunity to expert witness had never prevented the possibility of prosecution for deliberately misleading the court or liability for disciplinary proceedings for unprofessional conduct in the preparation or presentation of expert evidence---Conscientious expert would not be deterred by the danger of civil action by a disappointed client, any more than the same expert would be deterred from providing services to any other client---Removal of immunity would tend to ensure a greater degree of care in the preparation of the initial report or the joint report by the expert witness---No policy reasons existed anymore for retaining immunity from suit for professional negligence by expert witnesses---Appeal was allowed, accordingly.

Per Lord Kerr : agreeing with Lord Phillips [Majority view]

(d) Witness---

----Expert witness---Immunity from suit for breach of duty---Scope---Duty of care owed by expert witness to his client---Scope---Personal injury action---Preparation of a joint statement/report by expert witness for purposes of settlement---Negligence by expert witness---Claimant having to settle for significantly lesser settlement as a consequence---Effect---Expert witness owed a duty to the client by whom he had been retained--- Breach of said duty should, in the normal course, give rise to a remedy---Whether or not rule of witness immunity had a long history, the court should not be deflected from conducting a clear-sighted, contemporary examination of the justification for its preservation---Nothing existed to support the assumption that conscientious witnesses would behave discreditably by modifying their opinions from those they truly held because they feared that an aggrieved client might unwarrantably seek redress against them---Where an expert expressed an honestly held view, even if it differed from that which he might have originally expressed, provided it was an opinion which was tenable, he had nothing to fear from a disgruntled party---Only possible reason for preservation of the immunity to expert witness rule was its supposed longevity, and even if that could be established, it was in no sense an adequate justification for maintaining an immunity whose effect was to deny deserving claimants of an otherwise due remedy---Appeal was allowed, accordingly.

Per Lord Dyson; agreeing with Lord Phillips [Majority view]

(e) Witness---

----Expert witness---Duty of care owed to the client and the court---Scope---Expert who acted in civil litigation owed his client a duty to act with reasonable skill and care---Expert owed such a duty in contract and in tort---Client relied on the advice of an expert in determining whether to bring or defend proceedings; in considering settlement values and in appraising the risks at trial---Client also relied on the expert to give the court skilled and competent expert opinion evidence---No conflict existed between the duty owed by an expert to his client and his overriding duty to the court---Expert's duty to the client was to perform his function as an expert with the reasonable skill and care of an expert drawn from the relevant discipline and this included a duty to perform the overriding duty of assisting the court---Discharge of the duty to the court could not be a breach of duty to the client---Where expert gave an independent and unbiased opinion which was within the range of reasonable expert opinions, he would have discharged his duty both to the court and his client, however where he gave an independent and unbiased opinion which was outside the range of reasonable expert opinions, he would not be in breach of his duty to the court, because he would have provided independent and unbiased assistance to the court, but he would be in breach of the duty owed to his client.

Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd. [1963] 2 All ER 575; [1964] AC 465 and Stanton v. Callaghan [1998] 4 All ER 961 at 971; [2000] 1 QB 75 at 88 ref.

(f) Witness---

----Expert witness---Immunity from suit for breach of duty---Scope---Personal injury action---Preparation of a joint statement/report by expert witness for purposes of settlement--- Negligence by expert witness---Claimant having to settle for significantly lesser settlement as a consequence---Effect---Contentions of the defendant (expert) were that immunity to experts was necessary to ensure that they would be prepared to give evidence at all, and that expert witnesses would be reluctant to give evidence against their clients' interests if there was a risk that they would be sued---Validity---Mere fact that the immunity to witness rule was long-established was not a sufficient reason for blessing it with eternal life---Circumstances change as do attitudes to the policy reasons which underpinned the immunity---Question as to whether professional persons were willing to give expert evidence depended on many factors---Contention that possibility of being sued for negligence was likely to be a significant factor in determining whether a person would be willing to act as an expert, was not persuasive---Negligence was not easy to prove against an expert witness, especially in relation to what he or she said in the heat of battle in court---Experts were professional people who could be expected to want to comply with the rules and ethics of their profession---Most experts were honest conscientious people who needed no other incentive to comply with their duty and the rules and ethics of their profession---Immunity would not promote the discharge by experts of their duty to the court---Contentions of the defendant (expert witness) advanced in justification of the immunity were not convincing---His Lordship observed that he was not persuaded by the argument that the immunity was necessary in the public interest or that there was a sufficiently compelling reason to justify continuing to deny a remedy to a person who had suffered loss as a result of his expert's breach of the duty of care owed in contract and tort---Immunity of expert witnesses from liability to their clients for breach of duty (whether in contract or negligence) could no longer be justified---Appeal was allowed, accordingly.

(g) Immunity---

----Public policy as a basis for immunity---Scope---Public policy was not immutable and any rule of immunity was required to be considered in the light of present day (prevailing) conditions.

Rondel v. Worsley [1967] 3 All ER 993 at 998, [1969] 1 AC 191 at 227 ref.

(h) Administration of justice---

----Remedy for a wrong---Denial of such a remedy---Justification---Scope---General rule that where there was a wrong there should be a remedy was a cornerstone of any system of justice---To deny a remedy to the victim of a wrong should always be regarded as exceptional---Any justification for denying the remedy must be necessary and required strict and cogent justification because if the position was otherwise, the law would be irrational and unfair and public confidence in it would be undermined.

Per Lord Hope (dissenting), Lady Hale, agreeing [Minority view]

Witness---

----Expert witness---Immunity from suit for breach of duty---Purpose and scope---Personal injury action---Preparation of a joint statement/ report by expert witness for purposes of settlement---Negligence by expert witness---Claimant having to settle for significantly lesser settlement as a consequence---Removal of immunity to expert witness---Effects---Purpose of immunity to witness rule was to ensure that witnesses were not deterred from coming forward to give evidence in court and from feeling completely free to speak the truth when they did so, without facing the risk of being harassed afterwards by actions in which allegations were made against them in an attempt to make them liable in damages---Purpose of the said rule was not to protect the negligent expert who was guilty of breaching the duty that he owed to the client from whom he had accepted instructions or by whom he was being paid---Question, in the present case, was whether the reasons which justified an immunity for witnesses generally did not apply to expert witnesses---Incautious removal of the immunity from one class of witness risked destabilising the protection that was given to witnesses generally---Privilege of immunity to witnesses existed for the protection of all witnesses, not just the few against whom successful actions might otherwise be brought for an award of damages---Need for certainty also made it necessary to extend the protection of the immunity rule to all witnesses and to all causes of action that might be brought against them---Genuine cause of action might be excluded in some cases but in the vast majority of cases it was the assurance of the protection that enabled people against whom no action could reasonably be brought to speak freely without facing the prospect of being harassed by those against whose interests they had spoken---Removing just one brick from the wall that sustained the witness immunity might have unforeseen consequences---Risk of the expense and distress of a harassing litigation at the instance of an aggressive client might become quite obvious in some cases---One could not discount the fact that exposure to the risk of incurring the expense and distress of a harassing litigation at the client's instance should the defence fail, would colour the expert witness's evidence---Question which was not clear was whether the immunity was also to be removed in cases where the expert agreed to give evidence for the other side or felt himself bound when giving evidence for his own side to reveal information which the court needed, if it was to be told the truth but which his client maintained was confidential---Other questions requiring consideration were as to how would one determine who, for the purposes of the removal of the immunity, was an expert and who was not, and how was one to identify those to whom the duty was owed---Lack of a secure principled basis for removing the immunity from expert witnesses, the lack of a clear dividing line between what was to be affected by the removal and what was not, the uncertainties that it would cause and the lack of reliable evidence to indicate what the effects might be suggested that the wiser course was to leave matters as they stood---Appeal was dismissed, in circumstances.

Per Lady Hale (dissenting), Lord Hope, agreeing [Minority view]

Witness---

----Expert witness---Immunity from suit for breach of duty---Purpose---Removal of such immunity---Validity---Personal injury action---Preparation of a joint statement/report by expert witness for purposes of settlement---Negligence by expert witness---Claimant having to settle for significantly lesser settlement as a consequence---Rationale for removing immunity of expert witness in the present case was that, an expert witness would owe a duty of care to his own client and there was no reason why he should not be liable if he had caused his client loss through the breach of that duty---Question which was not clear was whether the exception would apply only in a case where there was a contractual duty or whether it would apply in a case where there was no contractual duty but there might be a duty owed in tort, or was it to be assumed that the two were co-terminous---Not possible to say as to what effect the removal of immunity would have, either on the care with which the experts gave their evidence, or upon their willingness to do so---Object of the immunity rule was to protect all witnesses, the great majority of whom were trying to do a professional job and were well aware of their duties to the court, against the understandable but usually unjustifiable desire of a disappointed litigant to blame someone else for his lack of success in court---Policy considerations in favour of making the exception to the rule did not seem to be so strong that the court should depart from previous authority in order to make it---Making such a change on an experimental basis would be irresponsible and it was a topic more suitable for consideration by the Law Commission and reform, if thought appropriate, by Parliament rather than by the court---Appeal was dismissed, accordingly.

Witness---

----Expert witness---Immunity---Exceptions---Purpose---Exceptions to the immunity to witnesses rule included perjury, contempt of court, professional misconduct and liability for the wasted costs of the other side---Said exceptions were all, in their different ways, in support of the courts' interest in witnesses behaving properly: telling the truth, obeying court orders or respecting the undertakings given to the court, behaving professionally so as to justify the courts' confidence in their expertise and not wasting the time of the court or the other parties---Said exceptions were there to encourage and oblige the witness to perform his/her duty to the court and they were not there to protect the interests of the witness's client---Exception which was being made in the present case was to protect the interests of the client, which was a significant departure from existing principles---Appeal was dismissed, accordingly.

Roger Ter Haar QC and Daniel Shapiro (instructed by Hill Dickinson LLP, Liverpool) for the Appellant.

Patrick Lawrence QC and Charles Phipps (instructed by Berrymans Lace Mawer LLP, Manchester) for Respondent.

Date of hearing: 30th March, 2011.

2012 S C M R 1442

[Supreme Court of UK]\

Present: Lord Phillips, President, Lord Brown, Lord Judge, Lord Kerr, Lord Clarke, Lord Dyson and Lord Wilson

R---Appellant

Versus

GNANGO---Respondents

(a) Transferred malice, doctrine of---

----Applicability---Scope---Murder---Liability for 'joint enterprise'---Scope---Defendant and his adversary engaging in a fight and shooting at each other in a public place---Deceased, an innocent passer-by, caught in the cross-fire and accidentally hit by a bullet fired from the weapon of the defendant's adversary---Defendant's adversary guilty of murder under the principle of "transferred malice"---Questions for determination were whether the defendant would also be liable for the murder of the deceased in such circumstances, and if so, whether as a "joint-principal" or "accessory" to such murder---Defendant was charged and convicted of murder by the Trial Court but his conviction was overturned by the Court of Appeal---Validity.

Per Lord Phillips, President and Lord Judge; Lord Wilson agreeing; Lord Kerr dissenting. [Majority view]

Question for consideration before the Supreme Court was that, if D1 and D2 voluntarily engaged in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other had the reciprocal intention, and if D1 mistakenly killed V (an innocent passer-by), in the course of the fight, then in what circumstances, if any, was D2 guilty of the offence of murdering V?

Where a defendant intended to kill or cause serious injury to one victim, V1, but accidentally killed another, V2, he would be guilty of the murder of V2. The basis of such liability was customarily described as "transferred malice". The doctrine applied to secondary parties as it did to principal offenders. Thus if D2 attempted to aid, abet, counsel or procure D1 to murder V1 but D1, intending to kill V1, accidentally killed V2 instead, D2 would be guilty of the murder of V2.

Trial Court had directed the jury that, in order to convict, they had to be satisfied that there was a plan or an agreement to have a 'shoot-out', whether made beforehand or on the spur of the moment when the defendant and his adversary fired at each other in the public place, and that the jury could convict only if they were satisfied that the defendant and his adversary had formed a mutual plan or agreement to have a gunfight, i.e. to shoot at each other and be shot at, in which each would attempt to kill or seriously injure the other. In the present case, the defendant's adversary accidentally shot the deceased and was liable for her murder under the doctrine of "transferred malice". Under the same doctrine the defendant was party to the murder. The defendant aided and abetted the murder of the deceased by aiding, abetting, counselling and procuring his adversary to shoot at him (the defendant). Defendant and his adversary had chosen to indulge in a gunfight in a public place, each intending to kill or cause serious injury to the other, in circumstances where there was a foreseeable risk that the result would be suffered by an innocent bystander. It was a matter of fortuity which of the two had fired what proved to be the fatal shot. Holding the defendant and his adversary liable for the deceased's murder, in such circumstances, accorded with the demands of justice rather than conflicting with them.

Whether the defendant was correctly described as a principal or an accessory was irrelevant to his guilt. Distinguishing between the principal and the accessory was not important in the present case. Both men agreed to the joint enterprise of having a shoot-out. Whether that made the defendant guilty as a principal to his adversary's actus reus of firing the fatal shot, or guilty as one who had "aided, abetted counselled or procured" his firing of that shot created no practical difficulty on the facts of the present case and did not affect the result.

Appeal was allowed and defendant's conviction for murder was restored.

Archbold 2011 ed at 17-24; Blackstone's Criminal Practice 2011 at A2.13 and Smith and Hogan, Criminal Law, 12th ed (2008) at p.205 ref.

Per Lord Brown; agreeing with Lord Phillips, President and Lord Judge [Majority view]

Defendant and his adversary were intentionally engaged in a potentially lethal unlawful gunfight ("shoot-out") in the course of which the deceased, an innocent passerby was killed. The general public would be astonished and appalled if in such circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot. In the present case, the risk of harm was by no means confined to the protagonists themselves.

The defendant was liable for the deceased's murder as a principal, i.e. a direct participant engaged by agreement in unlawful violence specifically designed to cause and in fact causing death or serious injury.

Appeal was allowed and defendant's conviction for murder was restored.

Per Lord Clarke ; agreeing with Lord Phillips, President, Lord Judge and Lord Brown [Majority view]

Present case was not a case of aiding and abetting. It was a case of an agreement to shoot and be shot at just like the agreement between the principal protagonists to a duel. Defendant's liability for murder was not to be analyzed in accessory terms but as a principal to a joint enterprise (an agreement) to engage in unlawful violence specifically designed to cause death or serious injury, where death occurred as a result.

His Lordship observed that another arguable basis for making the defendant liable for murder was that his shooting at his adversary provoked (or caused) the latter to shoot back with intent to kill or cause serious harm to the defendant as a result of which the victim was shot and killed. Such an analysis did not depend upon the defendant and his adversary being parties to a joint enterprise. Once the defendant became aware that his adversary had a gun and was willing to use it, even assuming that there was no joint enterprise, it was undoubtedly foreseeable that, if the defendant continued shooting at his adversary, the latter would shoot back with intent to kill him (i.e. defendant) or cause serious harm. Mere fact that the immediate cause of the deceased's death was a criminal and deliberate act on the part of defendant's adversary did not as a matter of law break the chain of causation. In these circumstances, it was open to the jury to conclude that the defendant's firing at his adversary was a cause of the latter shooting back. Present case could have been left to the jury on the basis that it was open to them to hold that the defendant was guilty of murder if his act in shooting at his adversary was a cause of the latter shooting at him (i.e. defendant) with intent to kill him or cause him serious harm and the victim was killed as a result. It was very likely that the jury would have concluded, that the defendant's act in shooting at his adversary contributed significantly to the latter shooting at him (i.e. defendant) with intent to kill or seriously injure and thus to his killing the victim.

Appeal was allowed and defendant's conviction for murder was restored.

R v. Pagett (1983) 76 Cr App Rep 279 ref.

Per Lord Dyson ; agreeing with Lord Phillips, President, Lord Judge, Lord Brown and Lord Clarke [Majority view]

His Lordship observed that the jury, in the present case, must have been satisfied that there was an agreement between the defendant and his adversary to shoot and be shot at and that they encouraged each other to carry that agreement into effect; that the conviction of the defendant could be upheld on the basis that the jury must have been satisfied that the defendant aided and abetted the murder of the deceased by encouraging his adversary to shoot at him (i.e. defendant) in the course of the planned shootout, and the fact that the jury convicted the defendant of the murder of the deceased following the trial judge's directions showed that they (the jury) considered that the shootout was analogous to a duel.

His Lordship further observed that in circumstances of the present case the difference between holding the defendant liable as a principal to an agreed joint activity rather than as an accessory was not a difference of substance as either way, the prosecution had to prove that the defendant and his adversary agreed to shoot and be shot at with the necessary intent.

Appeal was allowed and the defendant's conviction for murder was restored.

Per Lord Kerr (dissenting) [Minority view]

(b) Transferred malice, doctrine of---

----Applicability---Scope---Murder---Defendant and his adversary engaging in a fight and shooting at each other in a public place---Deceased, an innocent passer-by, caught in the cross-fire and accidentally hit by a bullet fired from the weapon of the defendant's adversary---Defendant's adversary guilty of murder under the principle of "transferred malice"---Questions as to whether the defendant would also be liable on the ground that he aided and abetted the murder of the deceased by aiding and abetting his adversary to shoot at him (i.e. the defendant) and whether defendant was guilty as a joint- principal to the murder of the deceased--- Determination --- Defendant was charged and convicted of murder by the Trial Court but his conviction was overturned by the Court of Appeal--- Validity--- Reasons recorded by His Lordship for his disagreement with the majority view.

Jury was not invited at any time during the composition of the charge to address the question whether the shared intention between the defendant and his adversary included the important element of the avowed aiding and abetting of the offence i.e. the agreement to be shot at. To be satisfied that the defendant intended to assist or encourage his adversary to shoot at him (i.e. defendant), the jury had to address directly not only the question whether defendant's actions did encourage his adversary to do so, but also whether the defendant intended that his adversary should do so. If the jury was not invited to consider whether defendant had that intention, then the conclusion that their verdict admitted that defendant intended to assist his adversary in firing at him (i.e. defendant) was somewhat startling. Before one could be confident that the jury's verdict meant that they had found it established that the defendant had intended to encourage his adversary to fire, it would have been necessary for the jury to receive directions about that vital component of aiding and abetting, which they did not.

Agreeing to a shoot-out did not necessarily mean agreeing to be shot at. This was particularly so where the plan took the form of an instantaneous meeting of minds between the defendant and his adversary on their first catching sight of each other on the occasion of the gunfight. Such a situation was quite different from a duel where participants met at a pre-arranged place and an appointed time. The essence of a duel conducted with firearms was that there should be an exchange of fire. The parties to the duel anticipated - and might be said to impliedly consent to - being fired on as well as firing. In the present case, there was no basis on which to infer that such was the intention of the two protagonists. Where there was a "spontaneous agreement" to engage in a shoot-out, the question arose whether that could truly be said to be the product of an agreement in any real sense. Cross-firing between the defendant and his adversary was at least as likely to be the result of a sudden, simultaneously reached, coincident intention by them to fire at each other as it was to be the result of an agreement to shoot and be shot at.

To hold the defendant guilty of the offence as a joint principal, it had to be shown that he caused or contributed to a cause of the deceased's death. It was not sufficient that the defendant be shown to be engaged by agreement in violence designed to cause death or serious injury. The crucial question was whether he caused or contributed to the death of the victim. That was not an issue which was put to the jury and a conclusion as to whether defendant's actions caused or contributed to deceased's death could not be inferred from the jury's verdict.

Defendant's firing on his adversary made it much more likely that the adversary would fire again, but that was not enough to show that the adversary was caused to fire because of defendant's shot. Defendant could not be guilty of the murder of the deceased as a joint principal.

Appeal was dismissed in circumstances.

(c) Criminal law---

----Concepts: "Joint principal liability" and "Joint enterprise"---Distinction---Scope.

"Joint principal" offending was a species of primary liability. Unlike the position in a "joint enterprise", no common purpose was required in order to render those who caused or contributed to a cause of the actus reus guilty as joint principals. What was required was that each must contribute by his own act to the commission of the offence with the necessary mens rea. By contrast, the doctrine of "joint enterprise" arose in situations where there were two offences, the first being that which had been jointly embarked on and the second the unplanned but foreseen offence committed by one of the participants alone. "Joint enterprise" was, therefore, a species of secondary liability.

The two concepts were, therefore, if not mutually exclusive, at least conceptually distinct. The essential ingredient for joint principal offending was a contribution to the cause of the actus reus. If that was absent, the fact that there was a common purpose or a joint enterprise could not transform the offending into joint principal liability.

Smith and Hogan's Criminal Law (2011) 13th ed. and A, B, C and D (Joint Enterprise) [2010] EWCA Crim 1622; [2011] QB 841 ref.

Brian Altman QC and Mark Heywood QC for Appellant.

Sallie Bennett-Jenkins QC and Nina Grahame for Respondent.

Dates of hearing: 11th and 12th July, 2011.

2012 S C M R 1791

[Supreme Court of UK]\

Present: Lord Phillips P., Lord Rodger, Lord Walker, Lord Brown and Sir John Dyson SCJJ

JOSEPH and others---Appellants

Versus

SPILLER and others---Respondents

Per Lord Phillips, President; Lord Rodger, Lord Walker, Lord Brown and Sir John Dyson JJSC, agreeing.

(a) Defamation---

----Libel---Fair comment, defence of---Facts relied on for making the comment---Extent to which such facts had to be referred to in the comment itself and be accurately stated---Where an adverse comment was made generally or generically on matters that were in the public domain, it was not a prerequisite of the defence of fair comment that the readers should be in a position to evaluate the comment for themselves---Internet had made it possible for people to make public comments about others and frequently detailed information about the facts that had given rise to the comments was not set out---In such circumstances the defence of fair comment would be robbed of much of its efficacy if readers had to be given detailed information to enable evaluation of the comment---Comment need not identify the matters on which it was based with sufficient particularity to enable the reader to judge for himself whether it was well founded, however the comment must identify at least in general terms what it was that had led the commentator to make the comment, so that the reader could understand what the comment was about and the commentator could, if challenged, explain by giving particulars of the subject matter of his comment why he expressed the views that he did---Five propositions in relation to the defence of fair comment had been set out by Lord Nicholls of Birkenhead in the case of Cheng Albert v. Tse Wai Chun Paul (2000) 10 BHRC 525, [2001] EMLR 777, which were that, firstly, the comment must be on a matter of public interest; secondly, the comment must be recognisable as comment, as distinct from an imputation of fact; thirdly, the comment must be based on facts which are true or protected by privilege; fourthly, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made; and fifthly, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views---Supreme Court endorsed the said five propositions, save that the fourth proposition was re-written as 'the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.'---Per curiam: Supreme Court observed that the "defence of fair comment should be renamed 'honest comment'.

Cheng Albert v. Tse Wai Chun Paul (2000) 10 BHRC 525, [2001] EMLR 777; Kemsley v. Foot [1951] 1 All ER 331, [1951] 2 KB 34 (CA), [1952] 1 All ER 501, [1952] AC 345 (HL); Hunt v Star Newspaper Co. Ltd. [1908] 2 KB 309 and Reynolds v. Times Newspapers Ltd. [1999] 4 All ER 609 at 614-615, [2001] 2 AC 127 at 193 ref.

(b) Defamation---

----Libel---Fair comment, defence of---Facts relied on for making the comment---Extent to which such facts had to be referred to in the comment itself and be accurately stated---Claimants/respondents were members of a musical group---Defendants/appellant provided entertainment booking services and advertised acts and performances on their website---Claimants' manager entered into an agreement with the defendants to promote the claimants' acts, where after a booking contract was made in relation to a performance at a restaurant ("restaurant booking")---Said booking contract included a re-engagement clause which provided that any further bookings at the restaurant in the following 12 months should be through the defendants---Subsequently claimants' manager arranged a further performance at the restaurant, directly with the venue, without informing or referring to the defendants---Defendants wrote an email to claimants' manager complaining of breach of the re-engagement clause---Claimants' manager replied via email stating that contract was 'mearly(sic) a formality and holds no water in legal terms' and that the claimants were not bound by the re-engagement clause as they had not signed the contract---Defendants thereafter posted a notice on their website ('website notice') announcing that they were no longer representing the claimants as they were 'not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract'; that 'following a breach of contract' claimants' manager had told the defendants that terms and conditions of 'contracts hold no water in legal terms'; that the ' artists' obligations for your booking may also not be met', and that the defendants would 'recommend that you take legal advice before booking this artist to avoid any possible difficulties'---Said website notice also contained a portion of the email reply sent by claimants' manager, but it was partially misquoted---Claimants issued proceedings for libel, contending that the website notice meant that they were unprofessional and unlikely to honour any bookings made for them to perform---Defendants relied on the defence of justification and fair comment but both were struck out in the High Court---Court of Appeal reinstated the defence of justification but declined to reinstate the defence of fair comment---Validity---Issue raised by present appeal was the extent to which, if at all, the defence of fair comment required that the comment should identify the matter or matters to which it related---Comment need not identify the matters on which it was based with sufficient particularity to enable the reader to judge for himself whether it was well founded, however the comment must identify at least in general terms what it was that had led the commentator to make the comment, so that the reader could understand what the comment was about and the commentator could, if challenged, explain by giving particulars of the subject matter of his comment why he expressed the views that he did---To support plea of fair comment defendants relied upon the breach of 'restaurant booking' and the claimants' manager e-mail---Email of claimants' manager arguably, evidenced a contemptuous and cavalier approach to the claimants' contractual obligations to the defendants---Said e-mail as quoted, arguably, evidenced a contemptuous and cavalier approach to contracts in general---Defendants could rely on the said e-mail despite the fact that it was partially misquoted in the website notice---Jury had to decide whether misquoting of said email in the website notice made a significant difference---Jury should be directed that if they thought that the said e-mail as quoted on the website notice differed significantly from the e-mail as sent they should disregard it but otherwise they could have regard to it when considering the defence of fair comment---Statement in the website notice that the claimants had 'not been able to abide by the terms of their contract' and the reference to 'following a breach of contract' were references to the breach of 'restaurant booking'---Website notice sufficiently identified the breach of 'restaurant booking' as part of the subject matter of the comment, albeit that the breach was not particularized---Defendants were entitled to rely upon the breach of 'restaurant booking' to support their defence of fair comment---Appeal was allowed and the defence of fair comment was reinstated.

Cheng Albert v. Tse Wai Chun Paul (2000) 10 BHRC 525, [2001] EMLR 777; Kemsley v. Foot [1951] 1 All ER 331, [1951] 2 KB 34 (CA), [1952] 1 All ER 501, [1952] AC 345 (HL) and Hunt v. Star Newspaper Co. Ltd. [1908] 2 KB 309 ref.

(c) Defamation---

----Fair comment, defence of---Malice---Effect---Burden of proof---Defendant was not entitled to rely on the defence of fair comment if the comment was made maliciously---Onus of proving malice laid on the claimant.

Cheng Albert v. Tse Wai Chun Paul (2000) 10 BHRC 525, [2001] EMLR 777 ref.

David Price of David Price Solicitors for Defendants.

William Bennett (instructed by Pattinson Brewer, York) for the Claimants.

Andrew Caldecott QC and Sarah Palin (instructed by Reymolds Porter Chamberlain LLP) for the Interveners.

Date of hearing: 1st December, 2010.

2012 S C M R 1881

[Supreme Court of UK]\

Present: Lord Phillips, President, Lord Walker, Lord Mance, Lord Clarke and Lord Sumption

E.N.E. KOS 1 LIMITED---Appellant

versus

PETROLEO BRASILEIRO S.A.---Respondent

On appeal from: [2010] EWCA Civ 772, decided on 2nd May, 2012.

Per Lord Sumption; Lord Phillips, President, Lord Walker and Lord Clarke JJSC, agreeing.

Shipping---

----Charter-party--- Indemnity clause--- Applicability and scope---Measure of indemnity--- Determination--- Bailment, law of---Applicability---Ship in question was time-chartered to the charterers (defendant/respondent)---Charter-party contained a standard form of withdrawal clause entitling the owners (appellants) to withdraw the ship if the hire was not paid when due without prejudice to any claim owners might otherwise have on charterers under the contract---Non-payment of hire by charterers---Withdrawal of ship by her owners---Ship was in the process of being loaded on charterers' instructions/order at time of her withdrawal---Charterers unsuccessfully sought to persuade ship-owners to cancel the withdrawal---Charterers had not made any immediate arrangements to unload/discharge the cargo which was already on the ship, because of which the ship was detained for 2.64 days for discharging the cargo---Ship-owners claimed payment for service of ship and bunkers (fuel) consumed during the 2.64 days on different bases: firstly, on the express terms of an indemnity given in a clause ("indemnity clause") of the charter-party; secondly, under the terms of a new contract made after the withdrawal; thirdly, on the ground of unjust enrichment, and fourthly, under the law of bailment---High Court allowed ship owners' claim only under the law of bailment and rejected all other basis for the claim that were put forward---Court of Appeal allowed the charterers' appeal, rejecting all bases for the claim except for the recovery of the value of bunkers consumed in actually discharging the cargo---Charterers contended that any delay or loss arising from the need to discharge the cargo resulted from the ship-owners' decision to withdraw, therefore they (ship-owners) must bear the adverse as well as the beneficial consequences of an optional decision made in their own interest---Validity---Fact that rather than perform the contract the ship-owners found it more advantageous to exercise an express right of termination was morally and legally neutral---Indemnity clause in the charter-party, which was an employment and indemnity clause that was found in most modern forms of time charter, provided that the charterers indemnified the ship-owners against all consequences or liabilities that might arise from the master complying with the charterers' or their agents' orders---Scope of said indemnity clause was very wide, but it was not unlimited---Said indemnity clause had to be read in the context of the ship-owners' obligations under the charter-party as a whole---Purpose of the indemnity was to protect the ship-owners against losses arising from risks or costs which they had not expressly or implicitly agreed in the charter-party to bear---Question as to what risks or costs the ship-owners had agreed to bear might depend on the construction of other relevant provisions of the contract, or on an informed judgment of the broad range of physical and commercial hazards which were normally incidental to the chartered service, or on some combination of the two---Real question was whether the charterers' order to load the cargo was an effective cause (not necessarily the only one) of the ship-owners having to bear a risk or cost which they had not contractually agreed to bear---Relevant order of the charterers, in the present case, was the order to load the parcel of cargo which was on board the ship when it was withdrawn---Loss claimed by ship-owners was the consequence of such an order---Discharge of cargo in the ship-owners' own time and at their own expense was not an ordinary incident of the chartered service and was not a risk that the ship-owners assumed under the contract---Same arose after the chartered service had come to an end in accordance with the withdrawal clause in the contract (charter-party)---Detention of ship, therefore, fell within indemnity---Regarding measure of indemnity, the time required to remove the cargo was unnecessarily prolonged by the charterers' refusal to recognise the ship-owners' right to withdraw the ship or to make immediate arrangements for the removal of their cargo from a ship that was no longer at their disposal contractually---Ship-owners were entitled to the market rate of hire for 2.64 days and the value of the bunkers consumed during such period---Claim of ship-owners could also succeed at common law as non-contractual bailee of the cargo after withdrawal of the ship---Principles of bailment laid down in the case of China Pacific SA v. Food Corpn of India (The Winson) [1982] AC 939, applied to the present case as, firstly, the cargo was bailed to the ship-owners under a contract which came to an end while the cargo was still in their possession, secondly, as a matter of law the ship-owners' obligation to look after the cargo continued notwithstanding the termination of the charter-party, and thirdly, the only reasonable or practical option open to the ship-owners once the charter-party had come to an end was to retain the cargo until arrangements were made to discharge it---Ship-owners as bailee would be entitled to the bunkers expenses and the opportunity cost of the ship for the period it remained with charterers for discharge of cargo---Regarding claim of ship-owners on basis of a new contract that according to them had been made after the withdrawal of the ship, courts below had rightly held that no such contract had been made on the facts of the case---Claim of ship-owners on basis of unjust enrichment raised larger issues which in the observation of the Supreme Court would be better decided in a case where they arose, and possibly in a less specialised context than a dispute about carriage by sea, therefore, the issue was not addressed--- Appeal was allowed and order of High Court was restored accordingly.

Royal Greek Government v. Minister of Transport (1949) 83 L1 L Rep 228, 234; Traid Shipping Co. v. Stellar Chartering and Brokerage Inc. (The Island Archon) [1994] 2 Lloyd's Rep. 227, 238; Falcke v. Scottish Imperial Insurance Co. (1886) 34 Ch. D 234, 248; Gaudet v. Brown (1873) LR 5 PC 134; Great Northern Railway Co. v. Swaffield (1874) LR 9 Ex. 132 and Goff and Jones, The Law of Unjust Enrichment, 8th ed. (2011), para. 18-50 ref.

China Pacific SA v. Food Corpn. of India (The Winson) [1982] AC 939 rel.

Per Lord Mance (dissenting on the "indemnity clause").

---Loss suffered by the ship-owners was not caused by compliance with the charterers' instructions to load cargo, but it was caused by the fact that the charter was at an end---Although it was true that no cargo would have been on board but for charterers' instructions but such fact was not the test of the proximate or effective cause of loss---General context of the charter-party also supported a conclusion that the express "indemnity clause" provided therein, was inapt to apply---Allowing ship-owners' claim on the basis of "indemnity clause" would stretch the application of the express charter indemnity without justification, without regard to the potential consequences (including the uncertainty or certainty of ever more ambitious claims) and without need---Applying indemnity to the present case was unnecessary---Law was capable of dealing with the present situation in a more conventional way by imposing on charterers an obligation as bailors to reimburse the ship-owners as bailees for their time and expense spent in looking after the cargo prior to its discharge, and probably by also imposing on charterers an obligation in restitution in respect of any benefit they could be said to have had through the storage of the cargo on board the ship---Said remedies flowed either from the services rendered in such respect by the ship-owners under the compulsion of their legal obligations as bailees, or from the benefit received thereby by the charterers, but not from the express indemnity---Claim of ship-owners in the present case could succeed under the law of bailment---Appeal was allowed and order of High Court was restored accordingly.

The Principles of the Law of Resitution by Graham Virgo 2nd ed. (2006), p.290; Larrinaga Steamship Co. Ltd. v. The King [1945] AC 246, 253; Royal Greek Government v. Minister of Transport (The Ann Stathatos) (1949) 83 Ll L Rep.228; The Athanasia Comninos [1990] 1 Lloyd's Rep. 277, 290; Triad Shipping Co. v. Stellar Chartering and Brokerage Inc. (The Island Archon) [1994] 2 Lloyd's Rep. 227, 234; Reischer v. Borwick [1894] 2 QB 548; Wayne Tank and Pump Co. Ltd. v. Employers Liability Assurance Corpn. Ltd. [1974] QB 57; Leyland Shipping Co. Ltd. v. Norwich Union Fire Insurance Society [1918] AC 350, 370; Yorkshire Dale Steamship Co. Ltd. v. Minister of War Transport [1942] QC 691; Handelsbanken v. Dandridge [2002] EWCA Civ 577 [2002] CLC 1227; Global Process Systems Inc. and another (Respondents) v. Syarikat Takaful Malaysia Berhad [2011] UKSC 5, para 88; Whistler International Ltd. v. Kawasaki Kisen Kaisha Ltd. (The Hill Harmony) [2001] 1 AC 638, 656; The White Rose [1969] 1 WLR 1098 and Tropwood AG of Zug v. Jade Enterprises Ltd. (The Tropwind) [1982] 1 Lloyd's Rep. 45 ref.

Timothy Brenton QC (Instructed by Ince & Co. LLP) for Appellant.

Andrew Baker QC and Henry Byam-Cook (Instructed by Thomas Cooper Solicitors) for Respondent.

Date of hearing: 12th January, 2012.