SCMR 2013 Judgments

2013 S C M R 1

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

Syed MEHMOOD AKHTAR NAQVI and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petitions Nos. 23, 11 of 2012, Criminal Original Petitions Nos.23, 24, 27 of 2012, Human Rights Case No.14427-P of 2012, C.M.As. Nos.1539, 1557, 1581, 1611, 1792, 197-K, 231-K, 232-K of 2012 and Criminal Miscellaneous Application No.587 of 2012, decided on 4th October, 2012.

(Petition by Anita Turab for Protection of Civil Servants).

(a) Civil Servants Act (LXXI of 1973)---

----Ss. 4, 5, 9 & 10---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Preamble--- Constitution of Pakistan, Art.184(3)---Constitutional petition under Art.184(3) of the Constitution for protection of rights and service structure of civil servants---Promotion, posting and transfer of civil servants---Posting as Officer on Special Duty (OSD)---Political and administrative influence over civil servants---Effect---Supreme Court observed that civil servants were required to implement/carry out lawful orders but they were invariably hindered not to follow the rules and regulations by the high-ups on account of their administrative or political influence; that such actions on part of high-ups resulted in arbitrary and frequent transfers of civil servants from one place to another or at times they were posted as Officer on Special Duty (OSD) or without caring about their merit-cum-seniority, they were not awarded due posting over junior officers or junior officers were given assignments of high responsibility, because of which many civil servants instead of performing independently started looking for favours in the administration as well as in the political arena as a result whereof good governance badly suffered; that fundamental rights of civil servants had to be recognized vis-a-vis their talent considering that they were responsible for running the affairs of the Government according to the Constitution and law; that Government officials were required to be promoted or transferred on merit, and that no one could be placed as Officer on Special Duty (OSD) as a punishment.

Corruption in Hajj arrangements in 2010: in the matter of PLD 2011 SC 963 ref.

(b) Constitution of Pakistan---

----Arts. 184(3) & 218(3)---Constitutional petition under Art. 184(3) of the Constitution for protection of rights and service structure of civil servants---Fair election, conducting of---Government officers, role of---Scope---Supreme Court noted that for a fair election, the Election Commission required such Government Officers/Officials whose service was fully protected so that they might not succumb to administrative or political pressure of high-ups.

Ms. Anita Turab and Syed Mehmood Akhtar Naqvi, Petitioners (in person)

Anwar Mansoor Khan, Senior Advocate Supreme Court for Applicants (in C.M.A. No.1557 of 2012).

Faisal Kamal Alam, Advocate Supreme Court for Applicants (in C.M.As. Nos.1539 and 4035 of 2012)

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Applicants (in C.M.A. No. 1581 of 2012).

Rai Manzoor Nasir, in person (in H.R.C. No.14427-P of 2012)

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Amicus Curiae.

Dil Muhammad Khan Alizai, D.A.-G. and Zakaullah Jan, S.O. Estb. Div. for Federation.

M. Azam Khattak, Additional A.-G. for Government of Balochistan.

Syed Arshad Hussain Shah, Additional A.-G. for Government of Khyber Pakhtunkhwa.

Jawad Hassan, Additional A.-G. for Government of Punjab.

Irfan Kareem, A.A.-G. with Ali Sher Jakhrani, A.I.-G. (Legal) for Government of Sindh.

Date of hearing: 4th October, 2012.

2013 S C M R 5

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Ijaz Ahmed Chaudhry, JJ

BAKHTIAR AHMED---Petitioner

Versus

Mst. SHAMIM AKHTAR and others---Respondents

Civil Petition No.1438 of 2012, decided on 5th September, 2012.

(On appeal from the order dated 21-5-2012 in C.R. No.117 of 2010 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

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

----S. 48---Limitation Act (IX of 1908), Art. 181---Constitution of Pakistan, Art. 185(3)---Execution of decree, application for---Limitation period---Scope---Limitation for filing execution application to commence from date of accrual of right---Partial decree was passed in favour of plaintiff (petitioner) by the High Court on 17-3-2003---Defendant (respondent) filed petition for leave to appeal before the Supreme Court, which was dismissed on 31-3-2005 and leave was refused---Execution petition was filed by plaintiff on 3-12-2007 but it was dismissed by the Executing Court being time barred---First Appellate Court and High Court upheld order of Executing Court and dismissed appeals filed by plaintiff---Contention of plaintiff was that after dismissal of defendant's petition for leave to appeal, he filed execution petition within the allowed time of three years, and that under Ss.47 & 48(2), C.P.C. execution petition could be filed within six years---Validity---Defendant's petition for leave to appeal was dismissed on 31-3-2005 and no stay was granted by the Supreme Court---Plaintiff could have filed execution petition within three years w.e.f. 17-3-2003, the date of judgment of the High Court which had attained finality---Under Art.181 of the Limitation Act, 1908, period of limitation of three years for filing of execution application would commence from the date of accrual of right, which, in the present case, was 17-3-2003 when partial decree was passed by the High Court---Mere pendency of civil petition for leave to appeal before the Supreme Court was not a ground for enlarging the period of filing of execution petition as it was an admitted fact that no stay was granted by the Supreme Court---Decree of High Court attained finality on 17-3-2003 and plaintiff admittedly filed execution petition after one year, eight months and 17 days of the prescribed period of three years under the Limitation Act, 1908---First application for execution must be made within the period prescribed (three years) by the Limitation Act, 1908 and S.48, C.P.C. would only apply to any subsequent application for execution, therefore, said section had no applicability to the facts of the present case---Plaintiff failed to approach the court within the time limit prescribed in law, therefore, he could not take benefit of his own wrong and a right had accrued in favour of the defendant after the lapse of the prescribed period of three years, which could not be taken away---Petition for leave to appeal was dismissed, in circumstances.

Mst. Niaz Bibi through L.Rs. v. Ghulam Mustafa and others PLD 2011 SC 520; Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and others 1992 SCMR 241 and Mst. Naziran Bibi and another v. Mst. Noor Begum 1997 CLC 1479 distinguished.

Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778; National Bank of Pakistan v. Mian Aziz-ud-Din and others 1996 SCMR 759 and House Building Corporation of Pakistan v. Rana Muhammad Iqbal 2007 SCMR 929 rel.

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

----S. 48---Limitation Act (IX of 1908), Art. 181---First execution application, filing of---Limitation period---Scope---First application for execution of a decree could be filed within three years under Art.181 of Limitation Act, 1908.

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

----S. 48---Limitation Act (IX of 1908), Art. 181---Subsequent execution application, filing of--- Limitation period--- Scope---Section 48, C.P.C. provided a period of limitation (six years) for subsequent execution applications after the first one---Where no execution application was filed at all within the period (three years) prescribed by Art.181 of the Limitation Act, 1908, the execution application made thereafter would be barred by limitation and as such there would be no occasion to avail the benefit of extended time provided in S.48, C.P.C.

Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778; National Bank of Pakistan v. Mian Aziz-ud-Din and others 1996 SCMR 759 and House Building Corporation of Pakistan v. Rana Muhammad Iqbal 2007 SCMR 929 rel.

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

----S. 48---Limitation Act (IX of 1908), Art. 181---First execution application---Commencement of limitation period---Scope---Under Art.181 of the Limitation Act, 1908 period of limitation of three years for filing of execution application would commence from the date of accrual of right.

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

----S. 48---Limitation Act (IX of 1908), Art. 181---Decree upheld by High Court challenged before the Supreme Court---Commencement of limitation period for execution of decree---Scope---Mere filing of petition for leave to appeal before the Supreme Court would not automatically enlarge the time for filing the execution application---Unless operation of impugned decree was suspended or petition was converted into an appeal, the petitioner could not presume that period of limitation had been clogged---Where relief was granted by the Supreme Court after allowing appeal with leave of the court, order of Supreme Court would merge into order of lower forums and as such the period of limitation would start from the order of the Supreme Court.

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 5th September, 2012.

2013 S C M R 13

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Asif Saeed Khan Khosa and Sarmad Jalal Osmany, JJ

TEHSIL MUNICIPAL OFFICER, TMA KAHUTA and another---Petitioners

Versus

GUL FRAZ KHAN---Respondent

Civil Petition No.1041 of 2011, decided on 21st June, 2012.

(On appeal from the order of the Lahore High Court, Rawalpindi Bench dated 16-5-2011 passed in I.C.A. No.123 of 2010).

Constitution of Pakistan---

----Art. 185(3)---Work charge (contractual) employment---Employee working on work charge basis claiming to be a regular employee---Employment on work charge (contractual) basis, irrespective of its period of length, not to accord employee status of regular employee---Respondent was initially employed by Health Department as chowkidar (watchman) on a work charge basis but after devolution of said Department all its assets, liabilities and offices were succeeded to the Municipal Administration (petitioner)---Services of respondent were transferred to the Municipal Administration, which paid him regular salary---High Court declared respondent to be a regular employee of the Municipal Administration (petitioner) on grounds of his continuous service for 13 years, since the Municipal Administration failed to show that his employment was contractual---Validity---Record showed that respondent was employed by the Health Department on a work charge basis initially for three months and his employment was extended at regular intervals for three months at a time---Documents placed on record by respondent clearly indicated that his employment with Municipal Administration was also on work charge basis and he was paid for the work he performed---Respondent's employment whether with the Health Department or with the Municipal Administration remained on work charge basis and he was never appointed as a regular employee and his employment on work charge basis, whatever its period of length, would not accord him status of regular employee---High Court had erred in holding the respondent a regular employee simply on account of failure of Municipal Administration to show that his appointment was on a work charge or contractual basis---Respondent had to substantiate his claim for regular appointment and same could not be deemed to have been established on failure of the Municipal Administration to prove the contrary---Petition for leave to appeal was converted into appeal and allowed, impugned judgments were set aside and respondent was held not to be a regular employee of the Municipal Administration.

Sardar Tariq Anees, Advocate Supreme Court for Petitioners.

Sh. M. Suleman, Advocate Supreme Court for Respondent No.1.

Mudassar Khalid Abbasi, Additional A.-G., Punjab, Shahzad Asghar, XEN and Hamid Khan Niazi, SDO, Official Respondents.

Date of hearing: 21st June, 2012.

2013 S C M R 16

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

GHULAM FARID---Petitioner

Versus

THE STATE---Respondent

Criminal Suo Motu Review Petition No.47 of 2011 in Jail Petitions Nos.466 of 2003 and 227 of 2009, decided on 27th September, 2012.

(To run the sentences concurrently awarded in two different F.I.Rs.).

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

----S. 397---Concurrent running of sentences--- Scope--- Consecutive sentences, in terms of S.397, Cr.P.C. was a general rule while concurrent sentence was an exception and was to be awarded in the exercise of discretion by the court depending on the facts and circumstances of each case---Court, while exercising such discretion, might inter alia look into the conduct of the convict, heinousness of the crime and injury to the individual and society.

Abdul Ghafoor v. The State 2007 YLR 700; Niaz Ali v. The State PLD 1961 (W.P.) 269; Abdul Hamid v. The State 1990 PCr.LJ 568 and Ahmed Sultan v. State 2007 SCMR 1424 rel.

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

----S. 397---Penal Code (XLV of 1860), Ss.302/449/338-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12---Constitution of Pakistan, Art. 188---Qatl-e-amd, house-trespass in order to commit offence punishable with death, isqat-i-haml, kidnapping or abducting in order to subject person to unnatural lust---Review of Supreme Court judgment---Plea for concurrent running of sentences, dismissal of---Two different murders committed at different places---First F.I.R. was registered against accused for the murder of deceased, whom accused suspected of spreading the rumour that he (accused) had committed zina with his own daughter as a result of which she got pregnant and had to carry out an abortion---Second F.I.R. was registered against accused, an hour after the first one, for the murder of his own daughter, with whom he allegedly had developed illicit liaison and got her pregnant---Accused was convicted and sentenced for both the murders---Contentions of accused were that motive for both murders was same and they took place on the same day; that both murders were part of the same transaction, therefore, his sentences should run concurrently---Validity---Two different murders had been committed at two different places; one at the house of the deceased and second at accused's own house---Wife of accused appeared during trial to allege that the accused developed illicit liaison with his own daughter; that abortion of his daughter's pregnancy was carried out at his asking; that when the act became public he not only murdered the deceased, whom he suspected of spreading rumours, but also his own daughter, who had become a symbol of his sin---Son of accused also appeared during trial and corroborated the version of his mother (wife of accused)---Accused not only committed gruesome murder of two persons but his conduct reflected a morbid, perverse and depraved character---Review petition was dismissed in circumstances.

Shamshad Hussain v. The State 2002 MLD 1079; Nek Muhammad v. The State PLD 2007 Kar. 62 and Ahmad and others v. The State 1991 PCr.LJ 1445 at 1453 ref.

Niaz Ahmed Rathore, Advocate Supreme Court for Petitioner.

Ch. Zubair Ahmed Farooq, Additional P.-G. for the State.

Date of hearing: 12th September, 2012.

2013 S C M R 23

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ

GHULAM YASIN and others---Petitioners

Versus

AJAB GUL---Respondent

C.R.P. No.79 of 2012 in Civil Appeal No.948 of 2006, decided on 12th September, 2012.

(On review from the order dated 20-2-2012 passed by this Court in C.A. No.948 of 2006).

Punjab Pre-emption Act (IX of 1991)---

----S. 13--- Civil Procedure Code (V of 1908), O. VI, R. 17---Constitution of Pakistan, Art. 188---Suit for pre-emption---Amendment of pleadings---Scope---Review of Supreme Court judgment---Pre-emptor failing to mention date, time and place of making Talbs in the plaint---Pre-emptor subsequently seeking amendment in plaint---Legality---Application filed by pre-emptor for amendment of plaint was dismissed by the Supreme Court---Contention of pre-emptor was that where law permitted amendment in pleadings in view of the provision contained in Order VI, Rule 17, C.P.C., a prayer for amendment in plaint could not be declined summarily without attending to the circumstances necessitating same---Validity---Necessity of mentioning particulars (date, time and place of making Talbs) had emanated from the statute itself---Supreme Court observed that a plaint in a pre-emption case under the latest dispensation was more like an F.I.R. of a criminal case, therefore, no omission howsoever fatal could be allowed to be supplied by means of an amendment; that if amendments were allowed, it would open room for additions, after-thoughts and improvements which would go ad infinitum, and that neither a pre-emption case nor a criminal case with such modus operandi would admit of an end in the mundane existence of the parties---No error had been committed by the Supreme Court by declining prayer of amendment of plaint---Review petition was dismissed accordingly.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 rel.

Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 dissented from.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 12th September, 2012.

2013 S C M R 29

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Sarmad Jalal Osmany and Gulzar Ahmed, JJ

FAISAL NOOR JUNEJO---Petitioner

Versus

HIGH COURT OF SINDH through Registrar---Respondent

C.Ps. Nos.258-K and 259-K of 2012, decided on 1st November, 2012.

(Against the judgment dated 16-8-2012 passed by High Court of Sindh).

(a) Sindh Judicial Service Rules, 1994---

----R. 8(1)--- Additional District and Sessions Judge, post of---Eligibility---"Judicial office", meaning of---Scope---Petitioners had applied for posts of Additional District and Sessions Judge on basis of an advertisement---One of the petitioners was employed as Judicial Assistant in the Supreme Court, while the other one was employed as Senior Translator in the High Court---Both petitioners were not found to be eligible to appear in the exam. for the posts in question---Contention of petitioners was that they could be considered to be holding post of "Judicial officers" and also had the relevant experience (in terms of years) to qualify for the posts in question---Validity---Rule 8(1)(d) of Sindh Judicial Service Rules, 1994 provided that in case of appointment to post of Additional District and Sessions Judge, apart from possessing the qualification mentioned in Rule 8(1)(a) of said Rules, (candidate) had to be a practising advocate of the High Court and courts subordinate thereto with a minimum practice of six years or he should have held a "Judicial office" for a period not less than six years, with a clean record of service---Admittedly petitioners were not practising advocates of High Court or courts subordinate thereto---Office of Judicial Assistant and that of Senior Translator were not at par with a "Judicial Office"---Petition for leave to appeal was dismissed accordingly.

Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others PLD 1957 SC 91 rel.

(b) Words and phrases---

----"Judicial office"---Definition.

Ballentine's Law Dictionary (Third Edition) ref.

(c) Words and phrases---

----"Judicial"---Definition.

Black's Law Dictionary (Eighth Edition) ref.

Kazi Abdul Hameed Siddiqui, Advocate Supreme Court for Petitioner (in both petitions).

Abdul Ghani Soomro, Registrar Sindh High Court for Respondent (in both petitions).

Date of hearing: 1st November, 2012.

2013 S C M R 34

[Supreme Court of India]

Present: R.M. Lodha and H.L. Gokhale, JJ

STATE OF M.P.---Appellant

Versus

RAKESH KOHLI and another---Respondents

Civil Appeals Nos. 684 with 1270 of 2004, decided on 11th May, 2012.

(a) Vires of statute---

----Scope---Court declaring a statute as unconstitutional---Principles---Statute enacted by Parliament or a Provincial Legislature could not be declared unconstitutional lightly---Court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge could not stand---Sans flagrant violation of the constitutional provisions, the law made by Parliament or a Provincial Legislature was not to be declared bad.

Rt. Rev. Msgr. Mark Netto v. State of Kerala and others (1979) 1 SCC 23 : AIR 1979 SC 83 and Karnataka Bank Limited's case AIR 2008 SC (Supp) 1377 ref.

(b) Vires of statute---

----Legislation---Striking down by court---Grounds---Legislative enactment could be struck down by court only on two grounds, firstly where the appropriate Legislature did not have competency to make the law and secondly, where it (enactment) abridged any of the fundamental rights enumerated in the Constitution or any other constitutional provisions.

Mcdowell and Co. AIR 1996 SC 1627 ref.

(c) Vires of statute---

----Legislation---Tax legislation---Constitutional validity---Striking down by courts---Principles---Where a court was dealing with the constitutional validity of a taxation law enacted by Parliament or Provincial Legislature, it must have regard to the principles that there was always presumption in favour of constitutionality of a law made by Parliament or a Provincial Legislature; that no enactment could be struck down by just saying that it was arbitrary or unreasonable or irrational but some constitutional infirmity had to be found; that the court was not concerned with the wisdom or unwisdom, the justice or injustice of the law as the Parliament and Provincial Legislatures were supposed to be alive to the needs of the people whom they represented and they were the best judge of the community by whose suffrage they came into existence; that hardship was not relevant in pronouncing on the constitutional validity of a fiscal statute or economic law, and that in the field of taxation, the Legislature enjoyed greater latitude for classification.

2013 S C M R 49

[Supreme Court of Pakistan]

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

Mst. MARIA KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No.683-L of 2012, decided on 5th October, 2012.

(Against the order dated 3-8-2012 of the Lahore High Court, Lahore passed in Cr. Misc. No.9938-B of 2012).

Criminal Procedure Code (V of 1898)---

----S. 497---Bail, grant of---Considerations---Evidence, recording of---complainant contended that testimony of three prosecution witnesses had been recorded in Trial Court, therefore, bail should be declined to accused---Validity---Such consideration was not valid nor was it an absolute rule that where evidence had been recorded, accused could not be enlarged on bail---Where liberty of citizen was involved such conjectural considerations could not be a basis for declining bail---Bail was allowed accordingly.

Safdar Hussain Tarar, Advocate Supreme Court for Petitioner.

Malik Rab Nawaz, Advocate Supreme Court for the Complainant.

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

Date of hearing: 5th October, 2012.

2013 S C M R 51

[Supreme Court of Pakistan]

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

Mian ALLAH DITTA---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.707-L of 2012, decided on 31st October, 2012.

(Against the order of the Lahore High Court Lahore dated 19-9-2012 passed in Criminal Miscellaneous No.12966-B of 2012).

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

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, confirmation of---Cheque issued as security and not towards repayment of outstanding loan or fulfilment of an obligation---Effect---Complainant alleged that accused owed him a sum of money and paid the cheque in question, which was dishonoured on presentation---Accused contended that cheque in question had only been issued as security when both parties agreed to settle their dispute through arbitration---Validity---Issuance of cheque in question appeared to be connected with the arbitration accord---Investigation officer stated that cheque was issued by way of security rather than for discharge of liability---Prima facie circumstances indicated that cheque in question was not issued towards repayment of some outstanding loan or fulfilment of an existing obligation instead it had been issued to meet a possible future obligation, therefore, foundational elements of S.489-F, P.P.C. were prima facie missing---Pre-arrest bail of accused was confirmed in circumstances.

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

----S. 489-F--- Dishonestly issuing a cheque--- Ingredients---Foundational elements to constitute an offence under S.489-F, P.P.C. were that cheque should be issued with dishonest intent; that cheque should be issued towards repayment of a loan or fulfilment of an obligation, and that cheque in question should be dishonoured.

Sikandar Zulqarnain, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Petitioner.

Malik Mushtaq Ahmed, Advocate Supreme Court along with the Complainant for Respondent No.2.

Mazhar Sher Awan, Additional P.-G. Punjab and Muhammad Khan, SI/IO Police Station Kotwali, District Sialkot for the State.

Date of hearing: 31st October, 2012.

2013 S C M R 54

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Sheikh Azmat Saeed, JJ

HUMAN RIGHTS CASE NO.19360-P OF 2012: In the matter of

Human Rights Case No. 19360-P of 2012, decided on 3rd October, 2012.

(Regarding grant of increment and increase in salaries of teachers in DPS Sargodha).

Constitution of Pakistan---

----Arts. 25A & 184(3)---Human rights case regarding grant of increment and increase in salaries of teachers in Divisional Public School (DPS) Sargodha---Right to education---Scope---Chairman of Board of Governors of the school in question submitted that in compliance with the directions of the Supreme Court, decision regarding enhancement of salaries of the school staff had been implemented and their salaries had been increased by more than 100 per cent; that Provincial Government had granted Rs.15 million as grant-in-aid for infrastructure development of the school, and that other administrative problems of the school were also being addressed---Supreme Court observed that by virtue of Art.25A of the Constitution, State was duty bound to provide free and compulsory education to all children of the age of five to sixteen years, in such manner as might be determined by the law; that Federal and Provincial Governments were required to make sure that said right was being ensured; that a considerable improvement was being made in the administrative affairs of the school in question and salaries of its staff had been considerably enhanced by a one hundred per cent increase, therefore, no further action was called for in the matter---Case was disposed of accordingly.

Mrs. Musarrat Abbas, Teacher/Acting Principal, DPS, Sargodha, Mrs. Naila Nasir, Mrs. Sabiha Qureshi, (Teachers DPS, Sargodha) and Manzoor Hussain, (Non-teaching staff) for Applicants.

Jawwad Hassan, Additional A.-G., Punjab, Shoukat Ali, Commissioner Sargodha/President Board of Governors, DPS, Sargodha on Court Notice.

Date of hearing: 3rd October, 2012.

2013 S C M R 55

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Sh. Azmat Saeed, JJ

KHURRAM IQBAL---Appellant

Versus

DEPUTY DIRECTOR FOOD, D.-G. KHAN and another---Respondents

Civil Appeal No.447-L of 2009, decided on 18th September, 2012.

(On appeal from judgment of Punjab Service Tribunal, Lahore dated 21-1-2009 passed in Appeal No.1594 of 2008).

Civil service---

----Removal from service---Appointment to the post despite failing to meet the required minimum grade (division) in degree---Principles---Holding further qualification would not relax the requirement of minimum grade (division) in degree---Minimum educational qualification for the post in question was Matriculation with a second division---Appellant admitted not having the said qualification at the time of his selection and appointment but contended that he also had passed his F.A. (Intermediate) examination, therefore, without taking into consideration his further educational qualification, he could not have been non-suited and removed from service on account of lack of minimum qualification for the post---Validity---Appellant did not have the minimum required educational qualification for the post in question---Mere holding of F.A. (Intermediate) qualification would not do away the basic requirement of Matriculation in second division, therefore, Service Tribunal was justified in dismissing appeal of appellant---Supreme Court observed that out of about 140 candidates, who had applied for the post in question, the appellant, who even lacked the basic qualification was interviewed and found suitable for appointment despite the fact that it was beyond the jurisdiction of the appointing authority to give any relaxation in the matter of minimum required qualification meant for the post in question---Appeal was dismissed in circumstances.

Government of Punjab v. Zafar Maqbool Khan 2012 SCMR 686 rel.

Muhammad Anwar Gumman, Advocate Supreme Court for Appellant.

Muddasar Khalid Abbasi, Assistant Advocate-General, Punjab for Respondents.

Date of hearing: 18th September, 2012.

2013 S C M R 59

[Supreme Court of Pakistan]

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

HAQ NAWAZ and others---Appellants

Versus

Mirza WASEEM BAIG and another---Respondents

Civil Appeal No.769 of 2002, decided on 10th October, 2012.

(On appeal from judgment dated 18-3-2002 passed by the Lahore High Court, Lahore, in R.F.A. No.57 of 1995).

Registration Act (XVI of 1908)---

----Ss. 32, 33 & 87---Contract Act (IX of 1872), Ss. 11 & 12---Civil Procedure Code (V of 1908), O.XXXII, Rr. 8, 9, 10 & 11---Purported purchase of land from a person of unsound mind---Effect---General power of attorney, contents of---Proof---Scope---Purported seller (respondent) through his general attorney allegedly sold land via oral sale deed to the purported purchasers (appellants)---Grandmother and a friend of purported seller filed a suit for declaration and possession on his behalf contending therein that sale made by general attorney of purported seller in favour of purported purchasers was a nullity as purported seller was an insane person and general power of attorney had been fabricated through forgery and fraud---Trial Court dismissed the suit holding that insanity of purported seller was not proved and that power of attorney was duly registered, therefore, it was a valid document---Appellate Court set aside judgment and decree of Trial Court and suit was decreed in favour of purported seller on the basis that neither original power of attorney nor its certified copy was produced in evidence---Contentions of purported purchasers were that there was no dispute between the parties regarding execution of power of attorney, and that original suit was filed by grandmother of purported seller and during pendency of said suit, she died, after which a friend was appointed as next friend of purported seller in violation of Order XXXII, Rules, 8, 9, 10 & 11, C.P.C.---Validity---Four doctors appeared in the witness box and all of them substantiated contents of medical certificate whereby purported seller had been declared to be of unsound mind---Will executed by grandfather of purported seller, prior to the execution of power of attorney in question, was produced in court wherein purported seller was mentioned as insane---Additionally a sale deed from the past was exhibited in evidence wherein it was clearly mentioned that purported seller was of unsound mind---Record established beyond doubt that purported seller was of unsound mind---Under the Contract Act, 1872, purported seller was not competent to execute the power of attorney in respect of the subject property as he was insane---Purported seller was proceeded ex parte and no efforts were made by the purported purchasers to site him as their own witness to prove the power of attorney---Neither original power of attorney nor its certified copy was presented in evidence by the purported purchasers---No efforts were made to examine the Registrar or any other relevant person from the Registration Department to ascertain the genuineness of the power of attorney---Purported purchasers failed to prove the contents of the power of attorney---Judgment of Trial Court clearly mentioned that after death of grandmother of purported seller, she was substituted by a friend, who had made an application for his appointment as next friend---Purported purchasers had not raised any objection of competence of said friend as next friend of purported seller either before Trial Court or High Court, therefore, they could not agitate the same issue before the Supreme Court---Appeal was dismissed in circumstances.

Qurban Hussain v. Hukam Dad PLD 1984 SC(AJ&K) 157; Ma Pwa May and another v. S.R.M.M.A. Chettiar Firm AIR 1929 PC 279; Bashir Ahmed Khan v. Shamas-ud-Din 2007 SCMR 1684; Muhammad Usman v. Muhammad Shahbaz 2007 MLD 1121; Mirzada Khan v. Ahmad Noor PLD 2003 SC 410; Jeewan Shah v. Muhammad Shah PLD 2006 SC 202 and Imam Din v. Bashir Ahmed PLD 2007 SC 418 ref.

Mian Allah Nawaz, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Abdul Rehman Siddiqui, Advocate Supreme Court for Respondent No.1.

Ex parte for other respondents.

Date of hearing: 10th October, 2012.

2013 S C M R 66

[Supreme Court of India]

Present: K.S. Radhakrishnan and Dipak Misra, JJ

Dr. MEHMOOD NAYYAR AZAM---Appellant

Versus

STATE OF CHHATTISGARH and others---Respondents

Civil Appeal No.5703 of 2012 (arising out of S.L.P. (C) No.34702 of 2010), decided on 3rd August, 2012.

(a) Words and phrases---

----"Harassment"---Connotation.

P.Ramanatha Aiyar's Law Lexicon, Second Edition ref.

(b) Fundamental Rights---

----Right to protection of life (security of person)---Inviolability of dignity of man---Accused in police custody---Abrogation of Fundamental Rights of accused---Scope---When an accused was in custody, his Fundamental Rights were not abrogated in toto and his dignity could not be allowed to be comatosed---Any treatment meted to an accused while he was in custody which caused humiliation and mental trauma corroded the concept of human dignity---Police authorities had to remember that a citizen while in custody was not denuded of his fundamental right of protection of life (security of person)---Basic human rights of accused were not to be crippled so that the police officers could treat him in an inhuman manner, rather police was under obligation to protect his human rights and prevent all forms of atrocities.

D.K. Basu v. State of W.B. AIR 1997 SC 610 and Delhi Judicial Services Association v. State of Gujarat AIR 1991 SC 2176 ref.

(c) Fundamental Rights---

----Right to protection of life---Scope---Right to life as enshrined in the Constitution included the right to live with human dignity and all that went along with it.

D.K. Basu v. State of W.B. AIR 1997 SC 610 and Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others AIR 1981 SC 746 rel.

Kharak Singh v. State of U.P. AIR 1963 SC 1295 ref.

(d) Fundamental Rights---

----Right to protection of life---Inviolability of dignity of man---Inhumane treatment---Scope---Inhumane treatment had many a facet; it covered such acts which had been inflicted with an intention to cause physical suffering or severe mental pain and it would also include a treatment that caused humiliation and compelled a person to act against his will or conscience.

Arvinder Singh Begga v. State of U.P. and others AIR 1995 SC 117 ref.

(e) Fundamental Rights---

----Right to protection of life---Inviolability of dignity of man---Custodial torture---Victim suffering humiliation and harassment in police custody---Tort---Monetary compensation to victim by way of public law remedy---Scope---Victim (appellant), while in police custody, was compelled to hold a placard in which self-condemning language was written and he was photographed with the said placard and the photograph was made public---State authorities found the erring police officers guilty---Victim sought public law remedy for grant of compensation and filed constitutional petition before the High Court contending that actions of police and other authorities affected his fundamental right to live with dignity and that he should be granted compensation---High Court recorded findings in favour of the victim but required him to submit a representation to the Provincial Government for adequate relief pertaining to grant of compensation with a further stipulation that if he was aggrieved by it, he could take recourse to requisite proceedings available to him under law---Validity---Facts borne out on record showed that victim had been tortured and humiliated and treatment inflicted on him was inhumane and caused mental trauma----When there was contravention of human rights, the inherent concern as envisaged in the fundamental right of protection of life (security of person) sprang to life and enabled the citizen to seek relief by taking recourse to public law remedy---Relief of monetary compensation, as exemplary damages, in proceedings before Supreme Court or High Court for established infringement of constitutional right of protection of life (security of person) was a remedy available in public law and was based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen---Purpose of public law was not only to civilize public power but also to assure the citizen that they lived under a legal system which aimed to protect their interests and preserved their rights, therefore, when court granted 'compensation' as a relief in proceedings before the Supreme Court or High Court seeking enforcement or protection of fundamental rights, it did so under public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which had failed in its public duty to protect the fundamental rights of the citizen---Payment of compensation in such cases was not to be understood, as it was generally understood in a civil action for damages under private law, but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, by not protecting the fundamental rights of the citizen---Compensation in such cases was in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and was independent of the rights available to the aggrieved party to claim compensation under private law in an action based on tort, through a suit instituted in a court of competent jurisdiction and/ or to prosecute the offender under the penal law---Appeal was allowed and a sum of Rs. 5 lacs was granted to the victim as compensation.

D.K. Basu v. State of W.B. AIR 1997 SC 610; Sunil Gupta and others v. State of Madhya Pradesh and others (1990) 3 SCC 119; Bhim Singh, MLA v. State of J&K AIR 1986 SC 494; Jennison v. Baker (1972) 1 All ER 997 and Hardeep Singh v. State of Madhya Pradesh AIR 2012 SC 1751 ref.

Nilabati Behera v. State of Orissa AIR 1993 SC 1960 and Sube Singh v. State of Haryana AIR 2006 SC 1117 rel.

Niraj Sharma for Appellant.

Atul Jha for Respondents.

2013 S C M R 85

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

MUHAMMAD MOHSIN GHUMAN and others---Appellants

Versus

GOVERNMENT OF PUNJAB through Home Secretary, Lahore and others---Respondents

Civil Appeals Nos. 972 to 978 of 2011, decided on 24th September, 2012.

(On appeal from the judgment dated 28-9-2011 passed by Lahore High Court, Lahore in W.Ps. Nos.20009, 12221, 19867, 20127, 21080, 22036 and 20985 of 2011).

(a) Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976---

----R. 3(v)--- Police Order (22 of 2002), Art. 7(3)--- Police service---Non-applicability of Rule 3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 to advertised post of police service---Special law on a subject prevailing over general law on the same subject---Scope---Posts of Assistant Sub-Inspectors (ASIs) were advertised and one of the conditions laid down therein related to age limit of candidates i.e. between 18 and 25 years of age---Appellants, who were serving police officers, contended that they fulfilled all the conditions for the advertised posts except for the condition of upper age limit of 25 years; that according to Rule 3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, period of their continuous Government service was to be excluded from the upper age limit prescribed for the advertised posts; that Rule 3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, began with the non obstante clause "Notwithstanding anything to the contrary contained in any rules applicable to any post or service" , therefore, said Rules also applied to police officers---High Court dismissed constitutional petition filed by the appellants on the grounds that in the presence of special law i.e. Police Order 2002 and the Rules framed thereunder, general law i.e. Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 would not apply, therefore, appellants were not entitled to receive benefit of the said Rules---Validity---Recruitment to various posts in the police service was to be made under the special law i.e. Police Order 2002---Article 7 of Police Order 2002 related to the recruitment of various ranks, including Assistant Sub-Inspector---Non-obstante clause in Rule 3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, which read "Notwithstanding anything to the contrary contained in any rules applicable to any post or service", referred to the Rules which were applicable to the post or service in question---Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 applied to Punjab Civil Servants Act, 1974 and not to the special law, i.e. Police Order 2002 and the Rules framed thereunder--- Contention of the appellants that general law would override special law in terms of Rule 3(v) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 (non-obstante clause), was not only against the legislative intent in the said provision but also against the declared law---Appeals were dismissed accordingly.

I.G.P. v. Mushtaq Ahmad Warriach PLD 1985 SC 159; Ahmed Ali v. D.I.-G. of Police Lahore 2004 PLC (C.S.) 730; Ehsan Ullah v. Inspector-General of Police 2006 PLC (C.S.) 964; Ghulam Mustafa v. Punjab Public Service Commission Lahore 2008 PLC (C.S.) 1117 and 'Understanding Statutes' by S.M. Zafar (page 840) ref.

Arif Hussain Shah v. Operative Director, Administration, Electric Equipment Manufacturing Co. Ltd. PLD 1979 Lah. 603 and Sh. Azhar Salam and Haji Muhammad Saifullah v. Federation of Pakistan PLD 1988 Lah. 725 distinguished.

Montreal Corporation v. Montreal Industrial Land Company AIR 1932 PC 252; Tahira Haq v. A.R. Khan Niazi, Additional Commissioner (Revenue) Multan PLD 1968 Lah. 344 and R.S. Raghunath v. State of Karnatak AIR 1992 SC 81 rel.

(b) Civil service---

----Department head, notification of---Derogation of relevant values and law---Effect---Such notification could not override mandate of legislative intent.

(c) Interpretation of statute---

----"Non-obstante clause", interpretation of---"Non obstante" clause had to read in the context of what the legislature intended in the enacting part of the provision.

Interpretation of Statutes by NS Bindra ref.

Hafiz S. A. Rehman, Senior Advocate Supreme Court for Appellants (in all).

Jawad Hasan, Additional A.-G. Punjab for Respondents.

Date of hearing: 24th September, 2012.

2013 S C M R 96

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ

PUNJAB LAND COMMISSION through Secretary and others---Petitioners

Versus

Mst. IQBAL ABBASI and others---Respondents

Civil Petitions Nos.1162-L, 1178-L to 1180-L of 2012 and C.M.As. Nos.1729-L to 1732-L of 2012, decided on 12th September, 2012.

(On appeal from the judgment dated 17-10-2011 passed by the Lahore High Court, Lahore in W.Ps. Nos. 6360, 7769 of 2006, 14667 of 2009 and 15422 of 2010).

West Pakistan Land Reforms Regulation (64 of 1959)---

----Paras. 8 & 16---Constitution of Pakistan, Art. 185(3)---Limits on individual holding of land---Resumption and vesting in Government of excess land---Excess land holding of late Ameer of Bahawalpur---Contentions on behalf of Provincial Government and Land Commission (petitioners) were that the late Ameer was subject to paragraphs 8 and 16 of West Pakistan Land Reforms Regulation, 1959, therefore, he could not have retained land which was more than what was prescribed by paragraph 8 of the said Regulation; that although declaration submitted by the late Ameer was approved on 26th February, 1966 but subsequently, it was reviewed and the matter was ultimately taken to the Supreme Court, which held that Land Reform authorities could proceed with regard to resumption of excess land once a final decision was taken with regard to distribution of the property amongst various legal heirs of the late Ameer---Validity---Points raised in the present petitions were of public importance and required a thorough examination and authoritative pronouncement, as they had not been fully dealt with in earlier judgments of the Supreme Court---Leave to appeal was granted in all the petitions to consider the points raised in the present petitions, subject to limitation.

Brig. His Highness Nawab Muhammad Abbas Khan Abbasi v. Deputy Land Commissioner, Bahawalpur and others 1982 SCMR 991 ref.

Ch. M. Hanif Khatana, Additional A.-G. Punjab, Jawwad Hassan, Additional A.-G. Punjab, M. Javaid, Dy. Secy. Punjab, Land Commission Lahore and Ali M. Khokhar, Land Revenue Consultant, BOR, Punjab for Petitioners (in C.Ps. Nos. 1162, 1178-L - 1180-L of 2012 and C.M.As. Nos. 1729-L - 1732-L of 2012).

Muhammad Shahzad Shaukat, Advocate Supreme Court for Respondent No.1 (in C.P. No.1178-L of 2012).

Mian Subah Sadiq Klasson, Advocate Supreme Court for Respondents Nos.1 to 4 (in C.P. No.1179-L of 2012).

Naveed Rasool Mirza, Advocate Supreme Court for Respondents Nos.1 and 2 (in C.P. No. 1180-L of 2012).

Nemo for other Respondents.

Date of hearing: 12th September, 2012.

2013 S C M R 99

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

Mrs. KAUSAR A. GHAFFAR---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Civil Petition No.1524-L of 2012, decided on 9th October, 2012.

(On appeal from the judgment dated 2-5-2012 passed by Punjab Service Tribunal, Lahore in Appeal No.3723 of 2011).

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

----S. 4(1)(b)--- Promotion Policy, 2010, para. 12(1)--- Promotion, fitness for---Selection Board determining civil servant unfit for promotion---Appeal against such order of Selection Board before Service Tribunal---Maintainability---Petitioner's case for promotion from BS-20 to BS-21 was considered by the Selection Board but she was superseded on the basis that she was not fit to be promoted as she had only obtained 70.38 marks out of 100, whereas minimum threshold of 75 marks was required for promotion to BS-21 in view of paragraph 12(1) of Promotion Policy, 2010---Petitioner's appeal filed before Service Tribunal was dismissed---Contentions of petitioner were that she was ignored by the Selection Board and that recommendations of the Selection Board reflected mala fides on part of the Provincial Chief Secretary, who presided over the Board---Validity---Selection Board did not find the petitioner fit to be promoted in view of the quantification criteria laid down in Promotion Policy, 2010 and found that she had not obtained the minimum threshold percentage required for promotion to BS-21---Fact that petitioner was duly considered by the Selection Board and not found fit clearly indicated that the issue did not relate to eligibility but fitness of the petitioner to be promoted, which question could not be a subject matter of appeal in view of S.4(1)(b) of Punjab Service Tribunal, 1974---Mala fides attributed to the Provincial Chief Secretary were vague, unsubstantiated and could not be the basis to interfere with the order of the competent Board determining fitness of the petitioner to be promoted--- Petition for leave to appeal was dismissed accordingly.

Muhammad Rahim Khan v. Chief Secretary, N.-W.F.P. PLD 2004 SC 65 ref.

Muhammad Azam v. Muhammad Tufail 2011 SCMR 1871; Muhammad Iqbal v. Saeeda Bano 1991 SCMR 1559 and Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 rel.

(b) Civil Service---

----Official acts of competent authority---Presumption---Scope---Presumption of regularity was attached to official acts and they could not be annulled on vague allegations.

Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151 rel.

Mian Mahmood Hussain, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 9th October, 2012.

2013 S C M R 103

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Dr. AKMAL SALEEMI and others---Petitioners

Versus

FEDERAL GOVERNMENT and others---Respondents

Civil Miscellaneous Applications Nos. 2134, 2148, 2165, 2249, S.M.C. No.9, Constitution Petition No.54 of 2007, H.R.C. No.3564 of 2007 and Criminal Original Petition No.40 of 2008 in Constitution Petition No.56 of 2007, decided on 4th December, 2012.

(Prevention from Extra Judicial Killings of Innocent Persons in the Premises of Lal Masjid and Jamia Hafsa).

(a) Supreme Court Rules, 1980---

----O.XXXII---Constitution of Pakistan, Art. 184(3)---Appointment of Commission by Supreme Court---Matter concerning extra judicial killings of innocent persons in the premises of Lal Masjid and Jamia Hafsa---Appointment of Judicial Commission by the Supreme Court---Reportedly, a large number of people had lost their lives in the incident of Lal Masjid/Jamia Hafsa and property of Jamia Hafsa had also been damaged---Allegations and counter-allegations were made by the police, complainant, victims and their relatives but in the absence of any concrete evidence and findings, it would not be possible to finally conclude the matter---Supreme Court appointed Judge of the Federal Shariat Court as Commission to probe into the present matter with the directions that he might follow procedure laid down in Order XXXII of Supreme Court Rules, 1980 and submit a report as far as possible within 45 days.

(b) Supreme Court Rules, 1980---

----O. XXXII---Constitution of Pakistan, Art. 184(3)---Appointment of Commission by Supreme Court---Matter concerning extra judicial killings of innocent persons in the premises of Lal Masjid and Jamia Hafsa---Appointment of Judicial Commission by the Supreme Court---Appointment of Judge of the Federal Shariat Court as Commission to probe into the matter---Terms of reference of said Commission were: to probe as to what were the causes of the incident, which took place at Lal Masjid/Jamia Hafsa between 2nd July, 2007 to 12th July, 2007: to probe as to how many persons, if any, made or female, civilian or law enforcement agencies personnel lost their lives: to probe whether the dead bodies of all the persons, who had lost their lives during the incident, were identified and were handed over to the legal heirs, after observing the codal formalities: to probe whether any compensation had been paid to the legal heirs of the victims by the State; to probe whether any action had been taken under the law against the persons, who were found responsible by the police and, if so, to what effect; to probe whether on the basis of the material collected, it was possible at the present stage to fix the responsibility upon the personnel of security agencies or other individuals responsible for the incident; to probe if there was any person(s), male or female, who was reportedly missing during the incident---Supreme Court directed that the Commission could give any recommendations other than the terms of reference---Order accordingly.

Tariq Asad, Advocate Supreme Court for Petitioners.

Zafar Mehmood Mughal, D.A.-G. and Tahir Alam, A.I.-G. Police, Islamabad for Federation.

Raja Abdul Ghafoor, Advocate-on-Record for CDA.

Date of hearing: 4th December, 2012.

2013 S C M R 106

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

MEHBOOB UR REHMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.149 of 2009, decided on 27th September, 2012.

(Against the judgment dated 22-2-2007 passed by Peshawar High Court, Abbottabad Bench in Criminal Appeal No.98 of 2004).

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

----S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Plea of alibi---Doubt regarding presence of accused at the scene of incident---Accused was alleged to have fired at the deceased, which resulted in the latter's death on the spot---High Court dismissed appeal filed by accused against his conviction and sentence under S.302(b), P.P.C.---Validity---Accused surrendered before police himself along with a letter from the Commanding Officer of his Scouts unit to the effect that accused was on duty in a different city on the day of the occurrence---Statements of five persons from the Scouts unit of the accused were also produced which mentioned the fact that accused was on duty in a different city on the day of the incident---Accused insisted upon his plea of alibi at the earliest opportunity before the police authorities and also stated the same in his statement under S.342, Cr.P.C. before the Trial Court---Document had been introduced in evidence to substantiate plea of alibi taken by accused, therefore, onus shifted on the prosecution to disprove such a document, which had not been done in the present case---Doubt existed regarding presence of accused at the scene of incident, benefit of which had to go to him--- Appeal was allowed, impugned judgment of High Court was set aside and accused was acquitted of the charge.

Wasiullah v. Mirza Ali and another PLD 1963 SC 25; Munawar Ali alias Munawar Hussain v. The State PLD 1993 SC 251; Allah Wadhayo and another v. The State 2001 SCMR 25 and Aminullah v. The State PLD 1982 SC 429 ref.

(b) Criminal trial---

----Defence plea---Standard of proof---Scope---Accused while raising a defence plea was only required to show that there was a reasonable possibility of his innocence and the standard of proof was not similar to that as expected of the prosecution, which had to prove its case beyond any reasonable doubt.

(c) Criminal trial---

----Plea of alibi---Witness introducing document in evidence to substantiate plea of alibi---Burden of proof---Scope---Onus would shift on the prosecution to disprove such a document.

Altaf Ellahi Shaikh, Senior Advocate Supreme Court for Appellant.

Muhammad Siddique Khan Baloch, Advocate Supreme Court for A.-G., Khyber Pakhtunkhwa for the State.

Date of hearing: 27th September, 2012.

2013 S C M R 109

[Supreme Court of Pakistan]

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

Agha INAM-UR-REHMAN KHAN---Appellant

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE---Respondent

Civil Appeal No.1660 of 2006, decided on 22nd October, 2012.

(Against the judgment dated 9-9-2005 of Lahore High Court, Lahore passed in S.A. No.22 of 2000).

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5(a)---Punjab Civil Servants Act (VIII of 1974), S. 21---Constitution of Pakistan, Arts.105 & 192---Civil judge---Order of dismissal---Representation before Governor---Legality---Time barred appeal against order of dismissal---Civil Judge (appellant) was dismissed from service by the competent authority/Chief Justice of the High Court vide order dated 9-3-2000---Said order was conveyed to the Civil Judge in question on 23-3-2000, and he filed an appeal before the Chief Justice of the High Court, which appeal was returned for proper presentation before the forum having jurisdiction in the matter---Civil Judge thereafter filed a representation before the Governor, which remained undecided and after a lapse of three months he filed a fresh appeal before the Tribunal on 19-7-2000 in terms of S.5(a) of Punjab Subordinate Judiciary Service Tribunal Act, 1991---Said appeal was dismissed as being time barred---Contentions on behalf of Civil Judge were that in terms of S.21(2) of Punjab Civil Servants Act, 1974 the remedy of representation was usable before the authority next above the authority which had made the dismissal order; that Governor of the province was the authority above the Chief Justice of the High Court, who had passed the dismissal order, therefore, representation before the Governor was competent and a validly invoked remedy, which was not decided within 90 days, constraining him to avail his right of (fresh) appeal, which was filed within time---Validity---Chief Justice of the High Court in his capacity as the competent authority had passed the dismissal order dated 9-3-2000, therefore, he (Chief Justice) had no authority to hear the appeal---Appeal filed before the Chief Justice of the High Court was neither competently instituted nor filed before the forum having jurisdiction, therefore, said appeal was returned via a letter, which never communicated that Civil Judge in question should avail any remedy of representation before the Governor in terms of S.21 of Punjab Civil Servants Act, 1974---Opting to approach the Governor instead of approaching the Tribunal within time, was the Civil Judge's own deed or comprehension of the law---Remedy under S.21(2) of Punjab Civil Servants Act, 1974 was only available before the authority next above the authority which made the order; the Governor of a province by no stretch of the constitutional scheme or interpretation of any provision of the Constitution or the law on the subject could be held to be an authority next above the Chief Justice and Judges of the High Court---Representation filed by civil judge before the Governor was not within the purview and contemplation of S.5(a) of Punjab Subordinate Judiciary Service Tribunal Act, 1991 read with S.21(2) of Punjab Civil Servants Act, 1974, therefore, 90 days' time period was not available to the civil judge as envisaged under S.5(a) of Punjab Subordinate Judiciary Service Tribunal Act, 1991---Dismissal order was passed on 9-3-2000 and conveyed to the civil judge in question on 23-3-2000, therefore, appeal filed before the Tribunal on 19-7-2000 was filed much beyond the prescribed period of limitation i.e. thirty days---Appeal was dismissed accordingly.

Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6 rel.

(b) Constitution of Pakistan---

----Arts. 105 & 192---Chief Justice and Judges of the High Court---Governor of province, authority of--- Scope--- Neither on the touchstone of the constitutional scheme nor on the established rule of independence of judiciary, the Governor could be said to be an authority next above the High Court for any purpose whatsoever.

Asmat Kamal Khan, Advocate Supreme Court for Appellant.

Arif Raja, Additional A.-G. Punjab and M. Akram, DR (Confidential), Lahore High Court, Lahore for Respondent.

Date of hearing: 22nd October, 2012.

2013 S C M R 116

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

NAWABZADA SHAH ZAIN BUGTI and others---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.350 of 2012, decided on 5th November, 2012.

(Against the consolidated judgment of the High Court of Balochistan dated 6-9-2012 passed in Criminal Revisions Nos.93, 108-138 and 143 of 2012).

Criminal Procedure Code (V of 1898)---

----S. 103---Penal Code (XLV of 1860), Ss. 353/109/186---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S. 13(d)/16/20---Assault or criminal force to deter public servant from discharge of his duty, abetment, obstructing public servant in discharge of public functions, acts of terrorism, possession of illegal weapon, knowingly purchasing arms, etc., from unlicensed persons---Joint team comprising of police and Frontier Constabulary recovering arms, ammunition and vehicles---Frontier Constabulary taking possession of said articles and only providing a list of the same to the police---Production of said articles in court as case property---Scope---Trial Court did not allow prosecution to produce recovered arms, ammunition and vehicles on the grounds that record did not disclose the fact whether said articles were taken into custody by the police authorities; whether any seizure memo was prepared on the site; whether recovered articles were declared as case property, and whether requirements of S.103, Cr.P.C. had been complied with---High Court allowed prosecution to produce said recovered articles on grounds that F.I.R. itself indicated that physical possession of said articles was taken by Frontier Constabulary and only a list was handed over to the police, and since question of application of S.103, Cr.P.C. would be determined by the Trial Court---Legality---F.I.R. disclosed that a joint team (comprising of Frontier Constabulary and police) intercepted the convoy of accused persons from which arms and ammunition were recovered, and that Frontier Constabulary took possession of recovered articles and only a list of the said articles was handed over to the police---Possession of arms, ammunition and vehicles by Frontier Constabulary was understandable in such circumstances---Question as to whether provisions of S.103, Cr.P.C. were applicable or not would be decided by the Trial Court---Prosecution could not be deprived of its right to produce the arms, ammunition and vehicles ,which according to it were case property and had been recovered from accused persons---Petition was converted into appeal and allowed, impugned judgment of High Court insofar as it allowed prosecution to produce arms, ammunition and vehicles was upheld and Trial Court was directed to proceed with the trial uninfluenced by any observation made on merits of the case by the High Court, which was likely to prejudice the case of either side.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Afzal Siddiqi, Advocate Supreme Court and M.A. Sheikh, Advocate-on-Record for Petitioners.

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

Date of hearing: 5th November, 2012.

2013 S C M R 120

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

FEDERATION OF PAKISTAN through Secretary Law, Justice and Parliamentary Affairs---Petitioner

Versus

MUHAMMAD AZAM CHATTHA---Respondent

Civil Petition No.1334 of 2012, decided on 24th September, 2012.

(On appeal from the judgment dated 16-5-2012 passed by the Islamabad High Court, Islamabad in I.C.A. No.116 of 2012).

(a) Sacked Employees (Reinstatement) Act (XXII of 2010)---

----S. 4(b)---Sacked Employees (Reinstatement) Ordinance (XXIII of 2009), S. 6(2)---Banking Tribunals Ordinance (LVIII of 1984), Ss.4(1) & 4(3)---Constitution of Pakistan, Art. 185(3)---Contract employee---Removal from service before expiry of employment period---Reinstatement and regularization of such employee via notification under S.4(b) of Sacked Employees (Reinstatement) Act, 2010---Validity---Competent authority withdrawing said notification on account of it being issued inadvertently---Legality---Contract employee (respondent) was appointed as Presiding Officer of Banking Tribunal for a period of three years but his contractual appointment was terminated by the competent authority after about two years, however subsequently he was reinstated in terms of S.6(2) of Sacked Employees (Reinstatement) Ordinance, 2009 for remaining period of one year against supernumerary post of BPS-22---Contract employee was not satisfied with the said notification and challenged the same in writ petition before the High Court, claiming that he was entitled to be re-instated on the original terms and conditions entitling him to a salary, allowances and privileges as that of High Court Judge---High Court directed competent authority to consider the case of contract employee as a consequence of which competent authority via notification under S.4(b) of Sacked Employees (Reinstatement) Act, 2010 reinstated and regularized him in government service with entitlement to pay, allowances and privileges as admissible to a Judge of the High Court---Subsequently competent authority withdrew said notification contending that it had inadvertently issued the same---Intra court appeal filed by competent authority was dismissed---Contentions of competent authority were that contract employee was initially appointed for a period of three years, out of which he discharged his functions for two years and in respect of the left over period of one year, he was reinstated and served the left over period, therefore, notification of his reinstatement and regularization was issued on account of inadvertence---Validity---Contract employee was appointed under S.4 of the Banking Tribunals Ordinance, 1984, therefore, he was not a person who was in the service of State, nor was he a member of the civil service of the Federation or holding a civil post in connection with the affairs of the Federation in a Ministry, Division or Department---Section 4 of the Banking Tribunals Ordinance, 1984 prescribed no terms and conditions of service---Contract employee's status to continue in service was subject to pleasure of the President as was noted in his appointment notification---Reinstatement of employee for a period of one year under S.6(2) of Sacked Employees (Reinstatement) Ordinance, 2009 was illegal, unwarranted and void---Sacked Employees (Reinstatement) Act, 2010 dealt with persons who were in employment of a corporation or in government service but the case of contract employee in question was not covered in either of the two categories, therefore, he was not entitled to be regularized as a Government servant--- Competent authority had rightly withdrawn the notification by which contract employee was reinstated and regularized in terms of S.4(b) of Sacked Employees (Reinstatement) Act, 2010--- Petition for leave to appeal was converted into appeal and allowed accordingly with a direction to the competent authority to probe into the matter as to who was responsible for negligence and/or corrupt practices and proceed against those found responsible.

Chenab Cement Product (Pvt.) Ltd. v. Banking Tribunal PLD 1996 Lah. 672; Halsbury's Laws of England (3rd Ed.) Vol. 11, P.244, Para 414; Federation of Pakistan v. Ali Ahmed Qureshi 2001 SCMR 1733; Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806; Mrs. M.N. Arshad v. Mrs. Naeema Khan PLD 1990 SC 612; Messrs Malik and Haq v. Muhammad Shamsul Islam Chowdhury PLD 1961 SC 531; Zainul Abidin v. Multan Central Cooperative Bank Limited PLD 1966 SC 445; Chairman, East Pakistan Industrial Development Corporation v. Rustom Ali PLD 1966 SC 848; Abdul Salam Mehta v. Chairman, WAPDA 1970 SCMR 40; Lt. Col. Shujauddin Ahmad v. Oil and Gas Development Corporation 1971 SCMR 566; R.T.A. Janjua v. National Shipping Corporation PLD 1974 SC 146; Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Syed Akbar Ali Bokhari v. State Bank of Pakistan PLD 1977 Lah. 234; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Evacuee Trust Property Board v. Muhammad Nawaz 1983 SCMR 1275; Brig. (R.) Sakhi Marjan v. Managing Director PEPCO 2009 SCMR 708 and S. S. Shetty v. Bharat Nidhi, Ltd. AIR 1958 SC 12 ref.

(b) Civil service---

----Contract employee---Dismissal from employment before expiry of period of service---Remedy---Scope---Contract employee instead of pressing for his reinstatement to serve for the leftover period can at best claim damages to the extent of unexpired period of his service.

(c) Civil service---

----Government service, proof of---Pre-requisites---Where a person claimed that he was a person in government service, he had to establish that he held a post or office in connection with the affairs of the Federation or of a Province and included an All-Pakistan Service.

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

Dil Muhammad Alizai, D.A.-G. and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

Hafiz S.A. Rehman, Senior Advocate Supreme Court with Muhammad Azam Chattha for Respondent.

Date of hearing: 24th September, 2012.

2013 S C M R 137

[Supreme Court of India]

Present: T.S. Thakur and Mrs. Gyan Sudha Misra, JJ

C. N. RAMAPPA GOWDA---Appellant

Versus

C.C. CHANDREGOWDA (DEAD) through L.Rs. and another---Respondents

Civil Appeal No.3710 of 2012 (arising out of S.L.P. (C) No.33361 of 2010), decided on 23rd April, 2012.

Civil Procedure Code (V of 1908)---

----O. VIII, R. 10---Defendant failing to file written statement---Principles---Court passing decree in favour of plaintiff by relying on facts in the plaint---Legality---Court should require plaintiff to prove facts stated in his plaint before passing such decree---Plaintiff (appellant) filed suit for partition of property---Defendants (respondents) failed to file written statements and consequently Trial Court directed plaintiff to lead evidence---Plaintiff filed his evidence by way of affidavit along with certain documents---Plaintiff was not cross-examined by the defendants---Trial Court decreed the suit in favour of the plaintiff on the basis of his pleadings and ex parte evidence adduced by him---High Court set aside the decree, remanded the matter to Trial Court for retrial and allowed defendants to file written statements and produce documents---Validity---Plaintiff had sought to prove his case that the suit property was a joint family property only on the strength of affidavit which he had filed and had failed to lead any oral or documentary evidence to establish that the property was joint in nature---Even if the case of the plaintiff was correct, it was of vital importance for the Trial Court to scrutinize the plaintiff's case by directing him to lead some documentary evidence worthy of credence that the property sought to be partitioned was joint in nature, but the Trial Court seemed to have relied upon the case of the plaintiff by merely placing reliance on the affidavit filed by him---Reliance placed on the said affidavit in a blindfold manner by the Trial Court merely on the ground that the defendants had failed to file written statements would amount to punitive treatment of the suit and the resultant decree would amount to decree which was penal in nature---Case where written statement had not been filed, the court should be cautious in proceeding under Order VIII, Rule 10, C.P.C. and before passing a judgment, it must ensure that even if the facts set out in the plaint were treated to have been admitted, a judgment and decree could not possibly be passed without requiring plaintiff to prove the fact pleaded in the plaint---Only when the court for recorded reasons was fully satisfied that there was no fact which needed to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the court could conveniently pass a judgment and decree against the defendant who had not filed the written statement---Where the plaint itself indicated that there were disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an ex parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy---Trial Court, in the present case, had not critically examined as to how the affidavit filed by the plaintiff in support of his plea of property being joint family property was proved by relying upon documents submitted by him without even discussing the nature of the documents---Said documents were preliminary records and sale deeds etc.---Trial Court relied upon said documents without elaborating as to why they had been believed and did not indicate as to how they proved the plea of plaintiff that property in question always remained joint in nature and had never been partitioned between the parties---Trial Court adopted an erroneous-approach by inferring that merely because there was no evidence of denial or rebuttal, the plaintiff's case could be held to have been proved---Appeal was dismissed in circumstances, however defendants were directed to pay Rs.25,000 by way of token cost to the plaintiff for failing to file written statements in spite of numerous opportunities to file the same.

Balraj Taneja and another v. Sunil Madan and another AIR 1999 SC 3381 and Kailash v. Nanhku and others AIR 2005 SC 2441 ref.

P.P. Singh for Appellant.

T.V. Ratnam for Respondents.

2013 S C M R 146

[Supreme Court of Pakistan]

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

NISAR AHMED AFZAL---Appellant

Versus

MUHAMMAD TAJ and 7 others---Respondents

Civil Appeal No.1184 of 2008, decided on 13th September, 2012.

(On appeal from judgment dated 22-7-2008 passed by the Islamabad High Court, Islamabad in R.F.A. No.45 of 2006).

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

----S. 53---Specific Relief Act (I of 1877), Ss. 12 & 20--- Interest in immovable property acquired through an agreement to sell---Fraudulent transfer made to defeat such an interest---Right of a party to enforce such an interest---Scope---Defendant, who was owner of subject plot entered into a sale agreement with the prospective purchaser in respect of the plot---Prospective purchaser thereafter entered into another sale agreement with the plaintiff in respect of the subject plot, and plaintiff paid substantial part of the total agreed consideration---Subsequently defendant and prospective purchaser cancelled the sale agreement between them via cancellation deed, after which defendant sold the subject plot to another party---Plaintiff filed suit for specific performance of his agreement to sell with the prospective purchaser----Trial Court dismissed the suit on the basis that plaintiff was not entitled to a decree of specific performance---High Court concurred with the Trial Court on the issue of specific performance but remanded the case to the Trial Court to record findings on the issue whether prospective purchaser was responsible for breach of sale agreement with the plaintiff---Validity---Trial Court and High Court proceeded on the wrong premise that defendant was the exclusive owner of the subject plot on the date of the sale agreement between the prospective purchaser and the plaintiff---No bar existed on a prospective purchaser under a sale agreement, from alienating his interest in immovable property acquired by virtue of the sale agreement to any other person through another sale agreement---Prospective purchaser on execution of sale agreement with the plaintiff, passed on all original documents inclusive of earlier sale agreements to the plaintiff--- Sale agreement between the plaintiff and prospective purchaser specifically mentioned the factum of earlier transactions concerning the subject plot---Plaintiff in part performance of sale agreement paid a substantial amount to the prospective purchaser under a valid sale agreement against proper receipts disclosing the mode of payment---Balance sale consideration was subject to transfer of plot---Defendant and prospective purchaser in collusion with each other, cancelled their sale agreement in order to defeat the interest of the plaintiff and the cancellation deed on the face of it was hit by provisions of S.53 of Transfer of Property Act, 1882, which provided that if a fraudulent transfer was made with intent to defeat the interest accrued to a party, which it had acquired through a sale agreement, then such party could enforce the same not only against the vendor but also against the person from whom such a vendor had acquired the interest---Plaintiff in the present case was covered by the word "creditor" used in S.53 of Transfer of Property Act, 1882 and his interest was fully protected by the said section---Plaintiff had also deposited balance sale consideration with the Trial Court to show his bona fide to perform his part of the contract---Applying the principles laid down in Ss. 53 & 54 of Transfer of Property Act, 1882, the plaintiff was well within his right to seek enforcement of sale agreement not only against the prospective purchaser, but also against the defendant who being trustee of prospective purchaser was debarred from entering into a deed of cancellation---Party to whom defendant allegedly sold the plot after cancelling his agreement with the prospective purchaser could not claim to be bona fide purchaser without notice for consideration, as such protection was only available if it was proved that the party had paid sale consideration without knowledge of earlier dispute in regard to immovable property---Said party had failed to prove at trial the mode by which they paid sale consideration to the defendant and on the face of it sale transaction between them was a sham transaction intended to defeat the interest of the plaintiff---Although plaintiff had paid one of the instalments of the sale consideration after the expiry of the agreed date, but prospective purchaser had accepted such payment, therefore, plaintiff was not debarred from seeking enforcement of sale agreement owing to the conduct of prospective purchaser---Plaintiff was entitled to decree of specific performance of sale agreement between him and the prospective purchaser---Cancellation of sale agreement between the defendant and prospective purchaser and the sale and transfer of subject plot by defendant to another party, were nullity in the eyes of law and of no legal consequence---Impugned judgments of Trial Court and High Court were set aside and suit of plaintiff was decreed---Appeal was allowed accordingly.

Abdul Aziz v. Fazal Karim 1989 SCMR 1456; Muhammad Farouk Dossa v. Mrs. Qudsia Dossa 1990 MLD 2016; Golam Ali Kazi v. Saijuddin Howldar 1969 DLC 246; Sakalaguna Nayudi v. Chinna Munuswami Nayakar AIR 1928 PC 174; Shyam Singh v. Daryao Singh (dead) by L.Rs. AIR 2004 SC 348; Mst. Khair-ul-Nisa v. Malik Muhammad Ishaque PLD 1972 SC 25; Alamgir Khan v. Haji Abdul Sittar Khan 2009 SCMR 54; Sardar Muhammad v. Akram 2002 SCMR 807 and Waris Khan v. Mst. Zainab Nisa 1997 SCMR 526 ref.

Ghulam Nabi and others v. Seth Muhammad Yaqoob PLD 1983 SC 344; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 and Mst. Mehmooda Begum v. Syed Hassan Sajjad PLD 2010 SC 952 rel.

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

----S. 53---Fraudulent transfer---Word "creditor", interpretation of---Scope---Word "creditor" used in S.53 of Transfer of Property Act, 1882 was not to be construed in a narrow sense---Word "creditor" would mean and include the one, who had a right to require of another the fulfilment of a contract or obligation and/or one to whom another owed the performance of an obligation.

Najam-ul-Hassan Kazmi, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

M. Ibrahim Satti, Senior Advocate Supreme Court for Respondent No.1.

Ex parte for Respondents Nos.2 and 3.

Sh. Zamir Hussain, Advocate Supreme Court for Respondents Nos. 4 to 7.

Raja Abdul Ghafoor, Advocate-on-Record and Mian M. Hanif, Advocate Supreme Court for Respondent No.8.

Date of hearing: 13th September, 2012.

2013 S C M R 161

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ

Ch. MUHAMMAD ASHRAF GUJJAR and others---Petitioners

Versus

Malik RIAZ HUSSAIN and others---Respondents

Criminal Original Petitions Nos. 48 to 52 of 2012 and Criminal M.As. Nos.419 and 370 of 2012 in Criminal Original Petitions Nos. 48 and 49 of 2012, decided on 20th September, 2012.

(Contempt proceedings against Malik Riaz Hussain by the order of HCJ. (in Crl. O.P. No.48 of 2012).

(a) Constitution of Pakistan---

----Arts. 204 & 184---Supreme Court Rules, 1980, O. XXVII, R. 7---Contempt of Court---Proceedings conducted by the Attorney-General being a persona designata---Scope---When the Chief Justice and Judges referred to in Order XXVII, Rule 7(1) of Supreme Court Rules, 1980 decided that action had to be taken in the matter, a notice of proceedings should be issued to the Attorney General, who in such an event was duty bound to conduct the proceedings---Attorney General, being a persona designata was indeed the only person to conduct such proceedings but this was not a rule of universal application---Where the Attorney General for any reason could not conduct the proceedings fairly, justly, honestly and in accordance with law, the Deputy Attorney General or any other Advocate of the Supreme Court could be nominated to conduct the proceedings.

(b) Contempt of court---

----Prosecutor, impartiality of---Significance---Bias in prosecutor---Effect---Job of the prosecutor was so important that it could not be allowed to be tinged or tainted with bias---Even a speck of bias on part of the prosecutor could vitiate and work havoc in the whole process---When prosecutor was biased in favour of the Court, fair trial would be reduced to an impossibility, and where he was biased in favour of the defendant, dignity of the court would be effected.

(c) Constitution of Pakistan---

----Art. 204---Supreme Court Rules, 1980, O. XXVII, R. 7(2)---Contempt of Court--- Proceedings conducted by the Attorney-General---Attorney-General, impartiality of---Scope---Attorney-General should not only be independent but manifestly seen to be independent.

(d) Constitution of Pakistan---

----Art. 204---Contempt of Court Ordinance (V of 2003), Ss.17 & 3---Supreme Court Rules, 1980, O. XXVII, R. 7(2)---Contempt of court---Proceedings conducted by the Attorney-General---Bias in Attorney-General--- Attorney-General's partiality in favour of alleged contemnor---Effect---List of witnesses submitted by the Attorney-General omitting the names of most important witnesses who could prove evidence contained in a Compact Disc (CD) would give rise to an apprehension that he was not poised to conduct the prosecution fairly, justly, honestly and in accordance with law---Attorney-General, in the present case, when confronted with the questions as to where the evidence containing Compact Disc (CD) came from; who prepared it and how would the same be proved without including names of witnesses who could furnish evidence in such behalf, his reply was that he expected that the contents of the said Compact Disc (CD) would be accepted by the alleged contemnor---Question was as to how the Attorney-General could draw such an inference at present stage and thus make it a basis for omitting the names of most important witnesses---Although a prosecutor who acted or professed to act independently was not supposed to create evidence in support of prosecution but he should at least bring that evidence which was available and necessary for the proof of the charge---List of witnesses submitted by the Attorney-General contained the name of the Chief Justice of the Supreme Court---Question was as to how Chief Justice of the Supreme Court could figure as a witness in the said list when he neither filed a complaint in his individual capacity nor submitted an affidavit---Even if same had been done, Chief Justice of the Supreme Court could not be examined as a witness in view of proviso to S.17 of Contempt of Court Ordinance, 2003, notwithstanding the desire of the contemnor to cross-examine him---Conduct of the Attorney-General showed that he was acting more as a defence counsel rather than as a prosecutor and his concerns were aimed at turning the table on the court rather than preserving its dignity---Prosecution of the present case, in circumstances, could not be held to be in safe hands---Although the Attorney-General, being a persona designata, had to conduct the present proceedings but his partial and partisan attitude as a prosecutor was patent on the face of steps he had taken so far during the proceedings---Supreme Court, therefore, held that instead of the Attorney-General, an Advocate of the Supreme Court with experience and streaks of independence should conduct the present proceedings as a Prosecutor---Supreme Court directed the Registrar of the court to provide a list of Advocates with such antecedents within a week so that a Prosecutor might be appointed from amongst them.

Suo Motu Case No.4 of 2010 PLD 2012 SC 553 ref.

(e) Supreme Court Rules, 1980---

----O. XXXIII, R. 6---Inherent powers of Supreme Court---Scope---Supreme Court had to proceed as nearly as possible in accordance with the rules but it could make a deviation therefrom for the ends of justice and for preventing abuse of the process of the court.

Irfan Qadir, A.-G. for Pakistan in attendance.

Ch. M. Ashraf Gujjar, in person (in Criminal Original Petition No.49 of 2012).

Nemo for Petitioners (in Crl. O.Ps. 50 and 52 of 2012).

Liaquat Ali Qureshi, Advocate Supreme Court for Petitioners (in Crl. O.P. No.51 of 2012).

Dr. Abdul Basit, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record along with Malik Riaz Hussain for Respondents (in Crl. O.Ps. Nos.49 to 52 of 2012).

Date of hearing: 17th September, 2012.

2013 S C M R 167

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Ather Saeed, JJ

GHULAM QADIR and others---Petitioners

Versus

Sh. ABDUL WADOOD and others---Respondents

Civil Petition No.436 of 2010, decided on 30th May, 2012.

(On appeal against the judgment dated 23-10-2009 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in C.R. No.87 of 1998).

Civil Procedure Code (V of 1908)---

----S. 115---Limitation Act (IX of 1908), First Sched., Art.181---Constitution of Pakistan, Art. 185(3)---Revision petition dismissed for non-prosecution, restoration of---Scope---Supreme Court granted leave to appeal to consider whether a revision petition could be dismissed for non-prosecution once it had been admitted for regular hearing; whether a revision petition dismissed for non-prosecution could be restored by invoking inherent powers of the court; whether exercise of inherent powers of the court could be circumscribed by the provisions of Limitation Act, 1908; whether an application seeking restoration of a revision petition would also be regulated by inherent powers of the court and not Art.181 of the Limitation Act, 1908, if and when it was dismissed for non-prosecution; whether dismissal of a revision petition and that of an application for its restoration could be treated at par alike under any interpretation of law and procedure, and whether limitation in such cases could be considered as a technicality of mere form.

Dhondiba Appasaheb and another v. Wasudeo Anant Sherlekar and another AIR 1957 Nagpur 83; Allah Bachai and others v. Fida Hussain and others 2004 SCMR 615; Muhammad Yousaf and others v. Mst. Najma Bibi and others PLD 2006 SC 512; Allah Diwaya v. The State PLD 1969 SC 98; Hari Narain v. Badri Das AIR 1963 SC 1558 and Muhammad Islam v. Inspector-General of Police, Islamabad and others 2011 SCMR 8 ref.

Mujeeb-ur-Rehman, Advocate Supreme Court for Petitioners.

Gulzarin Kiyani, Senior Advocate Supreme Court for Respondents Nos.1 and 2.

Date of hearing: 29th May, 2012 (Judgment Reserved).

2013 S C M R 170

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Jawwad S. Khawaja and Anwar Zaheer Jamali, JJ

CRIMINAL MISCELLANEOUS APPLICATION NO.765 OF 2012

(Notice in the matter of derogatory language used by Altaf Hussain, Leader of Muttahida Qaumi Movement against the Judges of this Court)

SUO MOTU CASE NO. 16 OF 2011

(Law and Order Situation in Karachi)

CRIMINAL ORIGINAL PETITION NO.96 OF 2012

Senator HAJI ADEEL---Petitioner

Versus

Raja MUHAMMAD ABBAS and others---Respondents

Criminal Miscellaneous Application No.765 of 2012, Suo Motu Case No.16 of 2011 and Criminal Original Petition No.96 of 2012, decided on 14th December, 2012.

(a) Constitution of Pakistan---

----Arts. 204(2) & 184(3)---Contempt of Court Ordinance (V of 2003), S.3---Contempt of court---Notice for contempt of the Supreme Court, issuance of---Use of derogatory, contemptuous and threatening language against the Judges of the Supreme Court in a public speech---Alleged contemnor, who was leader of a political party, delivered a speech addressing the general public, wherein allegedly he used derogatory language against the Judges of the Supreme Court---Supreme Court observed that perusal of script of said speech suggested that derogatory remarks made by alleged contemnor were critical and also contemptuous in nature; that prima facie, contents of speech in question tantamount to interference with and obstruction of the process of the Court by advancing threats to the Judges of the Supreme Court and it also tended to bring the Judges into hatred, ridicule and contempt; that process of the Supreme Court was also likely to be prejudiced, relating to implementation of the issues arising out of the directions given by the Supreme Court in the case of Watan Party v. Federation of Pakistan (PLD 2011 SC 997)---Supreme Court directed for issuance of notice under Art.204 of the Constitution read with S.3 of the Contempt of Court Ordinance, 2003 to the alleged contemnor, who was directed to appear in person and explain as to why he should not be proceeded against for contempt of court in accordance with the Constitution and the law.

Watan Party v. Federation of Pakistan PLD 2011 SC 997 ref.

(b) Constitution of Pakistan---

----Arts. 204(2) & 184(3)---Contempt of Court Ordinance (V of 2003), S.3---Contempt of court---Notice for contempt of Supreme Court, issuance of---Non-implementation of directions of the Supreme Court given in the judgment of Watan Party v. Federation of Pakistan (PLD 2011 SC 997)---Petitioner contended that despite directions of the Supreme Court in the said judgment lives and properties of people in Karachi city had not been protected and there was no respite in loss of human life; that the city administration had failed to improve the situation and thus the directions of the Supreme Court had been wilfully ignored rather violated; that directions regarding alteration of boundaries of administrative units and delimitation of different constituencies had been violated flagrantly; that directions regarding arms and ammunition of prohibited and non-prohibited bores had not been complied with; that no appropriate legislation had been made with regard to land grabbing, which amounted to contempt of court; that directions with regard to compensation to those who lost their lives and properties, deputing of independent and de-politicised investigating agency, creation of a special joint cell, and collection of record in respect of police officials and witnesses etc. who had been killed, had not been complied with---Supreme Court, in circumstances, directed for issuance of notices under Art.204 of the Constitution read with S.3 of the Contempt of Court Ordinance, 2003 to the alleged contemnors , who were directed to appear and explain as to why they should not be proceeded against for contempt of court in accordance with the Constitution and the law, for failing to implement the directions given in the judgment of Watan Party v. Federation of Pakistan (PLD 2011 SC 997)---Provincial Advocate-General was directed to submit comprehensive compliance report in respect of the directions contained in the judgment of Watan Party v. Federation of Pakistan (PLD 2011 SC 997) and to pinpoint the person(s) individually and collectively responsible for non-implementation of said directions---Provincial Government was also directed to furnish a statement as to why the killing in Karachi had increased and what measures had been taken to ensure the safety and protection of the life and property of the citizens and to furnish details of citizens killed since 13-9-2011.

Watan Party v. Federation of Pakistan PLD 2011 SC 997 ref.

Muhammad Zahoor Qureshi, Advocate-on-Record for Petitioner (in Criminal Original Petition No.96 of 2012).

Qasim Mirjatt, Additional A.-G. Sindh and Zafar Ahmad Khan, Additional P.-G. Sindh on Court Notice.

Nemo for Respondents.

Date of hearing: 14th December, 2012.

2013 S C M R 178

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Sh. Azmat Saeed, JJ

MUHAMMAD ALI and 7 others---Appellants

Versus

Mst. HUMERA FATIMA and 2 others---Respondents

Civil Appeal No.1164 of 2007, decided on 8th November, 2012.

(On appeal from judgment, dated 13-2-2007, passed by the Lahore High Court, Lahore in R.S.A. No.10 of 2004).

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for pre-emption---Talb-i-Muwathibat---Particulars neither pleaded in the plaint nor proved in evidence---Effect---Islamic law of pre-emption---Scope---Trial Court dismissed suit for pre-emption on the basis that Talb-i-Muwathibat had not been proved---First Appellate Court agreed with the finding of the Trial Court, however, High Court decreed the suit in favour of the pre-emptor (respondent)---Contentions of purchaser (appellant) were that suit for pre-emption had been filed in the interregnum, when the Punjab Pre-emption Act, 1913 had ceased to exist and before the Punjab Pre-emption Ordinance, 1990 was issued, hence suit was to be proceeded with in accordance with classical Islamic law, inclusive of the requirement of Talb-i-Muwathibat and Talb-i-Ishhad; that Talb-i-Muwathibat was neither pleaded with the requisite particulars as to time, date and place nor proved in evidence in accordance with the law---Validity---Suit for pre-emption was filed on 17-12-1989, when no law pertaining to pre-emption existed in the Province, therefore, suit was to be filed and maintained in accordance with classical Islamic law of pre-emption, wherein Talb-i-Muwathibat was a sine qua non for exercising a right of pre-emption---During pendency of the suit before the Trial Court, Punjab Pre-emption Act, 1991 was promulgated however S.35(2) of the said Act was declared to be repugnant to the injunctions of Islam---Talb-i-Muwathibat was required to be pleaded and proved in order to obtain a decree of pre-emption, both in terms of classical Islamic law and the Punjab Pre-emption Act, 1991---Regarding Talb-i-Muwathibat, plaint in the present case did not contain the necessary details about the time, date, place and the witness in whose presence Talb-i-Muwathibat was made---Talb-i-Muwathibat was neither pleaded in accordance with the law nor proved in evidence, therefore, suit for pre-emption could not succeed---Appeal was allowed, impugned judgment of High Court was set aside and judgments of Trial Court and First Appellate Court by which suit for pre-emption was dismissed, were restored.

Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Haji Abdullah Khan and others v. Nasir Muhammad Khan and others PLD 1965 SC 690; Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287; Mst. Safia Begum v. Ibrahim and 4 others PLD 1989 SC 314; Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Abdul Ghaffar Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363; Abdul Ghias v. Syed Haji Taj Muhammad and 42 others PLD 1995 Quetta 1; Mst. Sooban Bibi and 3 others v. Mst. Khatoon and 3 others PLD 2001 Lah. 245; Ghulam Jilani and 3 others v. Ghulam Muhammad and 7 others 1991 SCMR 2001; Muhammad Hanif and another v. Sultan 1994 SCMR 279; Abdul Hameed and others v. Muzamil Haq and others 2005 SCMR 895; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Ali Muhammad v. Muhammad Bashir 2007 SCMR 1531; Shafqat Mahmood and others v. Muhammad Yaqoob and another 2008 SCMR 1411; Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762; Muhammad Ismail v. Muhammad Yousaf 2012 SCMR 911; Haji Ghulam Sarwar v. Habib-Ullah and another PLD 2002 SC 263; Fazal-ur-Rehman v. Khurshid Ali and another 2012 SCMR 635; Mumtaz Hussain and another v. Muhammad Achar and 2 others 1991 CLC 209; Jasraj Indersingh v. Hemraj Multanchand AIR 1977 SC 1011; Muhammad Raza Ali Khan v. Muhammad Israr Hasan Khan AIR 1929 Allahabad 459; Lodhi Bibi and others v. Masaddar Ali Chaudhury and others [AIR (36) 1949 Assam 81]; Jaganath Rughanath v. Ranchhod Chansiram and another [AIR (37) 1950 Madhya Bharat 40]; Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59; Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 883; Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Jalla and others v. Nauranga and others PLD 1949 Lah. 246; Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200; Wahid Bakhsh v. Kamal and others PLD 1996 Lah. 459; Ghulam Abbas v. Muhammad Ashraf 1993 SCMR 2289; Abdul Malik v. Muhammad Latif 1999 SCMR 717; Tajammal Hussain Khan and 3 others v. Allah Ditta and another 2003 MLD 14; Jamil Ahmad v. Liaqat Ali 2003 CLC 229; Muhammad Zaman v. Muhammad Hanif and another 2004 YLR 1268; Falak Sher v. Muhammad Mumtaz and 2 others 1992 MLD 1879; 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 ref.

Muhammad Ismail v. Muhammad Yousaf 2012 SCMR 911 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13--- Suit for pre-emption--- Talb-i-Muwathibat, proof of---Scope---Talb-i-Muwathibat had to be pleaded in the plaint with the requisite details and particulars and also had to be proved through cogent evidence.

Gul Zarin Kiyani, Senior Advocate Supreme Court for Appellants.

Sh. Naveed Shehrayar, Advocate Supreme Court for Respondent No.1.

Ex parte for Respondents Nos. 2 and 3.

Date of hearing: 25th September, 2012.

2013 S C M R 185

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Amir Hani Muslim, JJ

CENTRAL POWER GENERATION CO. LTD.---Petitioner

Versus

BABAR AKHTAR and another---Respondents

Civil Petition No.182-K and C.M.A. No.244-K of 2012, decided on 30th October, 2012.

Constitution of Pakistan---

----Arts. 185(3) & 199---Termination of services---Corporate body (employer) having no statutory rules---Constitutional petition under Art.199 of the Constitution filed by contract employee of such corporate body, challenging termination of his services---Maintainability---Supreme Court granted leave to appeal to consider whether petition was maintainable against a corporate body, which had no statutory rules, and whether contract employee after termination of services by the competent authority could be reinstated in exercise of powers under Art.199 of the Constitution.

Ghulam Rasool Mangi, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 30th October, 2012.

2013 S C M R 187

[Supreme Court of Pakistan]

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

Dr. MUHAMMAD ASLAM KHAKI and another---Petitioners

Versus

SENIOR SUPERINTENDENT OF POLICE (OPERATION), RAWALPINDI and others---Respondents

Constitution Petition No.43 of 2009, decided on 22nd March, 2011.

(Petition under Article 184(3) of the Constitution against molestation and humiliation of Eunuch and Restoration their Fundamental Rights).

Constitution of Pakistan---

----Arts. 9, 14, 24(1), 25 & 184(3)---Constitutional petition under Art.184(3) of the Constitution against molestation and humiliation of eunuchs and restoration of their fundamental rights---Fundamental rights of eunuchs--- Scope--- Duty of Federal and Provincial Governments---Scope---Fundamental rights of eunuchs were to be fully protected in terms of Art.184(3) of the Constitution---Eunuchs in their own right were citizens of Pakistan and subject to the Constitution and their rights, obligations, including right to life and dignity were equally protected---No discrimination for any reason was possible against eunuchs as far as their rights and obligations were concerned---Federal and Provincial Governments were equally responsible for recognizing rights of eunuchs and Government functionaries, both at Federal and Provincial levels, were bound to provide them protection of life and property and secure their dignity.

Petitioner in person with Almas Bobi, President Shemale Rights of Pakistan.

Mujtaba Haider Sherazi, D.A.-G., M.S. Khattak, Advocate-on-Record, Haroon Joyia, SP City Islamabad, Azhar Hussain Shah, DSP Legal and Sajid Abbas, Inspector Legal for Federation.

Muhammad Azam Khattak, Additional A.-G. and Abdullah Baloch, Director (S.W.) for Government of Balochistan.

Syed Arshad Hussain Shah, Additional, A.-G. for Government of Khyber Pakhtunkhwa.

Ch. Khadim Hussain Qaiser, Additional A.-G., Qazi Zahoorul Haq, EDO (Edu.), Irshad Ahmad, S.O. (S&GAD), Muhammad Shahid Rana, D.O. (S.W.), Israr Ahmad Khan, SP, (Pothohar), Raja Akhtar, D.S.P. Taxila and Muhammad Yar, SHO Taxila for Government of Punjab.

Miran Muhammad Shah, Additional A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for Government of Sindh.

Date of hearing: 22nd March, 2011.

2013 S C M R 190

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Ijaz Ahmed Chaudhry, JJ

INDEPENDENT NEWSPAPER CORPORATION (PRIVATE) LTD.---Petitioner

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and others---Respondents

Civil Petitions Nos. 1167 and 1168 of 2012, decided on 7th September, 2012.

(On appeal from the judgment dated 3-5-2012 in W.P. No.170 of 2011 passed by the Lahore High Court, Rawalpindi Bench).

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 22-A(8)(g) & 25-A---Civil Procedure Code (V of 1908), O.XXIII, R.1---Grievance petition---Maintainability---Termination from service due to modernization of technology in the establishment---Employees accepting their termination, receiving their emoluments in full and final settlement and withdrawing their reinstatement cases from the National Industrial Relation Commission (NIRC)---Effect---Employees, in circumstances, were estopped from claiming their reinstatement or monetary gains from the employer---Employer Corporation (petitioner) terminated services of employees (respondents) after they became surplus due to modernization of technology---Employees filed petitions for their reinstatement before the National Industrial Relation Commission (NIRC) but withdrew them after a settlement was arrived at between the parties---Subsequently employees filed grievance petitions under S.25-A of the Industrial Relations Ordinance, 1969 which were allowed by the Labour Court and they were reinstated with back benefits---Appeals filed by employer Corporation before Labour Appellate Tribunal were dismissed and writ petitions filed thereagainst were also dismissed by the High Court---Contentions of employer Corporation were that employees accepted their dues on termination, knowing fully that posts they occupied had been abolished due to modernization of technology; that having accepted the dues employees were estopped from filing grievance petitions as they had severed their relationship with the employer Corporation; that employees voluntarily made an application to the management of the employer Corporation stating therein that they had accepted their termination and would withdraw their reinstatement cases filed before NIRC, and that nothing on record suggested that employer Corporation had employed any other person in place of the employees---Validity---During pendency of cases before NIRC, a settlement was made between the parties whereby employees admitted that the section of establishment they worked in was closed and accepted their termination and agreed to withdraw their cases from the NIRC--- Employees received their dues and acknowledged receipt of their respective amounts in full and final settlement---Employees filed applications before NIRC to withdraw their reinstatement cases and consequent orders of NIRC indicated that employees had accepted their termination and received their emoluments in full and final settlement without any coercion or duress, as such relationship of employees and their employer Corporation stood discontinued---Employees in such circumstances were estopped to make any claim from the employer Corporation in respect of their reinstatement or monetary gain---Since there was no relationship of employer-employee between the parties, grievance petitions under S.25-A of the Industrial Relations Ordinance, 1969 were not maintainable---Grievance petitions were also barred in view of Order XXIII, Rule 1, C.P.C. which precluded a person from instituting any fresh suit in respect of subject matter or part of claim which had been withdrawn, unless permission was given by court---Employees had withdrawn their reinstatement cases before the NIRC after receiving their dues in full and final settlement of their claims---Petitions for leave to appeal were converted into appeal and allowed, judgments of forums below were set aside and grievance petitions of employees were dismissed being not maintainable.

General Manager, N.R.T.C. v. Muhammad Aslam 1992 SCMR 2169 distinguished.

Wali-ur-Rehman and others v. State Life Insurance Corporation and others 2006 SCMR 1079; Maqbool-ur-Rehman and others v. Government of Pakistan, Ministry of Finance and others 2006 PLC (C.S.) 512 and Qari Allah Bux and others v. Federation of Pakistan and another 2011 PLC (C.S.) 488 rel.

M. Asadullah Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Abdul Rehman Qadir, Advocate Supreme Court for Respondents.

Date of hearing: 7th September, 2012.

2013 S C M R 200

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ

Hakim HABIBUL HAQ---Appellant

Versus

AZIZ GUL and others---Respondents

Civil Appeal No.640 of 2012, decided on 19th September, 2012.

(On appeal from the judgment dated 23-9-2011 in C.R. No.1172 of 2011 with C.M. No.999 of 2011 passed by the Peshawar High Court, Peshawar).

Civil Procedure Code (V of 1908)---

----O. XVI, Rr. 1 & 10---Witnesses, summoning of---Party unable to produce its cited witness and applying for process of the court to summon witness's attendance---Court refusing such request of the party---Legality---Contentions of appellant were that witness sought to be summoned through court was the one who was also cited as such in the list of witnesses submitted by the appellant; that although it was the responsibility of a party to produce its witnesses but when it reported its inability to do so and applied for process of the court for his attendance, there was no sanction in law for refusing such a request---Validity---Record revealed that witness sought to be summoned through the process of the court was the one who was cited as such in the list of witnesses submitted by the appellant, therefore evidence of such a witness could not be ignored lightly---When the appellant had reported his inability to produce its witness and asked for indulgence of the court, it should not have been refused as it would be a clear case of failure to exercise jurisdiction vested---Appeal was allowed, impugned orders were set aside and application of appellant for summoning the witness in question was allowed.

Mst. Bashir Bibi v. Aminuddin and others 1972 SCMR 534 rel.

Jan Muhammad Khan, Advocate Supreme Court/Advocate-on-Record for Appellant.

Gul Sadbar, Advocate Supreme Court for Respondents.

Date of hearing: 19th September, 2012.

2013 S C M R 203

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

SALMAN AKRAM RAJA and another---Petitioners

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, and others---Respondents

Constitution Petition No.38 of 2012, decided on 2nd October, 2012.

(Petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973).

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

----Ss. 375 & 376---Constitution of Pakistan, Art. 184(3)---Petition under Art. 184(3) of the Constitution---Rape---DNA test---Significance---DNA test provided the courts a mean of identifying perpetrators with a high degree of confidence---By using DNA technology the courts were in a better position to reach at a conclusion whereby the real culprit would be convicted, potential suspects would be excluded and wrongfully involved accused would be exonerated.

Muhammad Shahid Sahil v. The State PLD 2010 FSC 215; Amanullah v. The State PLD 2009 SC 542; Vidhya v. Deputy Superintendent of Police (Crl.O.P. No.36969 of 2007; United State v. Yee 134 F.R.D. 161; Muhammad Azhar v. The State PLD 2005 Lah. 589; Khizar Hayat v. Additional District Judge, Kabirwala PLD 2010 Lah. 422; Khurram Shahzad v. State PLD 2012 FSC 1; The Matter of: Estate of Assets of Late Abdul Ghani 2012 YLR 1752; The State v. Abdul Khaliq PLD 2011 SC 554 and Khadim Hussain v. State 2011 PCr.LJ 1443 ref.

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

----Ss. 375 & 376---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Rape---DNA test, conducting of---Scope---Request for administration of DNA test should be made at the earliest stage of the case.

D. Rajeswari v. State of Tamil Nadu (1996) CCR 774 = 1996 Crl.LJ 3795, Geeta Saha v. NCT of Delhi 1999(1) JCC 101; Km. Mahima v. State 106 (2003) DLT 143; Thogorani alias K. Damayanti v. State of Orissa 2004 Cr.LJ 4003; Solaimuthu v. State rep. by Inspector of Police 2005 Cr.LJ 31 and Raghuvir Dessai v. State 2007 Cr.LJ 829 ref.

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

----Ss. 375 & 376--- Constitution of Pakistan, Art.184(3)---Constitutional petition under Art. 184(3) of the Constitution---Rape--- DNA test--- Consent of victim, obtaining of--- Scope---Consent of victim was necessary and he/she could not be subjected to DNA testing or other medical test forcibly for prosecution purposes because that would amount to infringement of personal liberty of victim.

Bipinchandra Shantilal Bhatt v. Madhuriben Bhatt AIR 1963 Guj 250; Polavarapu Venkataswarlu v. Polavarapu Subbayya AIR 1951 Mad. 910; Sabayya Gounder v. Bhoopala Subramanian AIR 1959 Mad. 396; Goutam Kundu v. State of West Bengal AIR 1993 SC 2295; Ms. X v. Mr. Z and another 96 (2002); DLT 354; Syed Mohd. Ghouse v. Noorunnisa Begum 2001 Cr.LJ 2028 and Haribhai Chanabhai Vora v. Keshubhai Haribhai Vora AIR 2005 Guj 157 ref.

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

----Ss. 375 & 376---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Rape---DNA test---Consent of accused, obtaining of---Scope---Consent of accused was not required for conducting DNA test or any blood test in order to ascertain truthfulness of the allegation.

Solaimuthu v. State rep. by Inspector of Police 2005 Cr.LJ 31 ref.

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

----Ss. 375 & 376---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Rape---DNA test---DNA samples, preservation of---Scope---DNA samples should be preserved for making their use at an appropriate stage or whenever they were required.

Regina v. Robert Graham Hodeson [(2009) EWCA Crim 490; People v. Pressely 804 (Colo.App.1990); 2010 Maryland Code, Criminal Procedure Sec. 8 - 201; DNA Testing Availability Act Sec. 2292, 106th Congress 1999-2000 and American Bar Association Criminal Justice Standards on DNA Evidence 2006 ref.

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

----Ss. 375 & 376---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Rape, victim of--- Non-Governmental Organizations (NGOs), role of---Significance---Non-Governmental Organizations (NGOs) played an important role to help the victims of rape, especially girls belonging to poor families---Supreme Court observed that sometimes families of victims were unable to reach Non-Governmental Organizations (NGOs), therefore, such organizations must be registered in police stations so that on receipt of information regarding commission of rape, the Investigating Officer/Station House Officer (S.H.O.) could inform such an organization at the earliest.

Delhi Commission of Women v. Delhi Police (W.P. No.696/2008 and Delhi Police Standing Order, 303/2009 ref.

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

----Ss. 375 & 376---Criminal Procedure Code (V of 1898), S. 164---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution---Rape, victim of---Recording of statement by a female Magistrate---Propriety---Victims of rape were reluctant to appear before male Magistrates as they could not express their agony appropriately before them, therefore, it was more appropriate if the statements of victims were recorded before female Magistrates, wherever available.

Delhi Commission for Women v. Delhi Police [W.P.(CRL) 696/2008] ref.

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

----Ss. 375 & 376---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Gang-rape---Procedure of trial---Scope---For gang-rape cases, where there was a threat to the life of the victim and her family members, statements could be recorded in camera and trial could be conducted inside the jail.

State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601 ref.

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

----Ss. 375 & 376---Criminal Procedure Code (V of 1898), S. 345---Offence of rape, compounding of---Legality---Offence of rape under S.376, P.P.C. was not compoundable.

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

----Ss. 375 & 376--- Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Rape---Out-of-court settlement/compromise between the parties---Prosecution of case---Scope---Rape was an offence against the whole society and case was registered in the name of the State, therefore where complainant party did not come forward to pursue the matter or produce evidence due to an out-of-court settlement, the State should come forward to pursue the case and courts should also take into consideration such aspects of the case while extending benefit to the accused.

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

----Ss.375 & 376---Constitution of Pakistan, Art.184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the legality of a compromise/out-of-court settlement between a gang-rape victim and the accused rapists---Supreme Court observed that rape was an offence against the whole society and case was registered in the name of the State, therefore where complainant party did not come forward to pursue the matter or produce evidence due to an out-of-court settlement, the State should come forward to pursue the case and courts should also take into consideration such aspects of the case while extending benefit to the accused---Supreme Court, however, directed that every police station that received rape complaints should involve reputable civil society organizations for the purpose of legal aid and counselling; that a list of such organizations might be provided by bodies such as the National Commission on the Status of Women; that on the receipt of information regarding commission of rape, the Investigating Officer/Station House Officer (S.H.O.) should inform such organizations at the earliest; that administration of DNA tests and preservation of DNA evidence should be made mandatory in rape cases; that as soon as the victim was composed, her statement should be recorded under S. 164, Cr.P.C., preferably by a female Magistrate; that trials for rape should be conducted in camera and after regular court hours; that during a rape trial, screens or other arrangements should be made so that the victims and vulnerable witnesses did not have to face the accused persons, and that evidence of rape victims should be recorded, in appropriate cases, through video conferencing so that the victims, particularly juvenile victims, did not have to be present in court---Constitutional petition was disposed of with the said directions.

Muhammad Shahid Sahil v. The State PLD 2010 FSC 215; Amanullah v. The State PLD 2009 SC 542; Vidhya v. Deputy Superintendent of Police (Crl.O.P. No.36969 of 2007); United State v. Yee 134 F.R.D. 161; Muhammad Azhar v. The State PLD 2005 Lah. 589; Khizar Hayat v. Additional District Judge, Kabirwala PLD 2010 Lah. 422; Khurram Shahzad v. State PLD 2012 FSC 1; The Matter of: Estate of Assets of Late Abdul Ghani 2012 YLR 1752; The State v. Abdul Khaliq PLD 2011 SC 554; Khadim Hussain v. Sate 2011 PCr.LJ 1443; Regina v. Robert Graham Hodeson (2009) EWCA Crim 490; People v. Pressely 804 (Colo.App.1990); 2010 Maryland Code, Criminal Procedure Sec. 8 - 201; DNA Testing Availability Act Sec. 2292, 106th Congress 1999-2000 American Bar Association Criminal Justice Standards on DNA Evidence 2006; State of Punjab v. Gurmit Singh AIR 1996 SC 1393; Sakshi v. Union of India AIR 2004 SC 3566-(2004) 5 SCC 518; State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601; Delhi Police Standing Order 303/2009 and Delhi Commission for Women v. Delhi Police [W.P.(CRL) 696/2008] ref.

Delhi Commission of Women v. Delhi Police (W.P. No.696/2008 rel.

Salman Akram Raja, Advocate Supreme Court, Ms. Tahira Abdullah, in person assisted by Malik Ghulam Sabir, Amna Hussain Zainab Qureshi and Nadeem Shahzad Hashmi, Advocates for Petitioners.

Jawwad Hassan, Addl. A.G., Punjab, Sadaqat Ali Khan, P.G. Punjab and Muhammad Hanif, S.P., Rawalpindi for Respondents.

Date of hearing: 2nd October, 2012.

2013 S C M R 219

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Sh. Azmat Saeed, JJ

PROVINCE OF PUNJAB through Collector Sialkot and others---Appellants

Versus

Rana ZILADAR KHAN---Respondent

Civil Appeal No.473 of 2012, decided on 23rd October, 2012.

(On appeal from the judgment dated 29-5-2009 of the Lahore High Court, Lahore passed in C.R. No.1887 of 2007).

(a) Punjab Land Acquisition Rules, 1983---

----R. 14---Punjab Jinnah Abadis for Non-Proprietors in Rural Areas Act (III of 1986), S. 10---Transfer of Property Act (IV of 1882), S.54---Land/property acquired for a specific purpose (establishing a colony)---Inordinate delay in utilizing such land for the said purpose---Effect---Return of land to its owner---Scope---Plaintiff (respondent) was owner of subject land, which was taken-over by Provincial Government (appellant) in the year 1990 under the Punjab Jinnah Abadis for Non-Proprietors in Rural Areas Act, 1986 for establishing a colony---Subject land was taken over through mutual negotiation and consent of parties and plaintiff was also paid due compensation---Provincial Government did not utilize the subject land for establishing the colony in question and plaintiff filed a suit praying that subject land should be returned to him as per Rule 14 of Punjab Land Acquisition Rules, 1983---Trial Court allowed suit of plaintiff, however Appellate Court dismissed the same on appeal---High Court, in its revisional jurisdiction, restored judgment and decree of Trial Court---Validity---Subject land was taken over by virtue of mutual negotiation between the parties, which fact was established by the relevant mutation---Plaintiff received consideration/price of the takeover pursuant to the transaction---Subject land had been taken over for establishing a colony and such takeover/acquisition was not in terms of Land Acquisition Act, 1894, but rather was in the nature of a sale satisfying the requirements of S.54 of Transfer of Property Act, 1882---Even if subject land had not been utilized so far by the Provincial Government for establishing the colony in question, there was no provision in the Punjab Jinnah Abadis for Non-Proprietors in Rural Areas Act, 1986 or the rules framed thereunder to the effect that on the abandonment of a project, land should necessarily be returned to the land owner---Such return of land to its owner however might be permissible in equity---Benefit of Rule 14 of Punjab Land Acquisition Rules, 1983 was neither available to the plaintiff nor could it be legally resorted to by the courts below in order to grant decree/relief to the plaintiff---Provincial Government had stated that it had every intention to create/establish the colony in question---Plaintiff had not brought on record any order to show that colony in question had been abandoned---Appeal was allowed by the Supreme Court, impugned judgment of High Court was set aside and that of Appellate Court was upheld with a direction to the Provincial Government to complete the colony in question within a period of one and half years and if same was not done, then plaintiff would be entitled to the return of land on the return of consideration amount received by him along with profit.

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

----S. 4---Acquisition of land---Punjab Land Acquisition Rules, 1983, applicability of---Scope---Punjab Land Acquisition Rules, 1983 had been framed under the Land Acquisition Act, 1894 and were restricted in application to the cases falling within the purview and acquisitions under the said Act.

(c) Interpretation of statutes---

----Rules framed under a statute, interpretation of---Rules are the progeny of a statute, which are made by the competent authority in the exercise of its delegated legislative power under such Act and the application thereof is empowered, confined and limited to the law under which those are framed, and in any case, cannot be extended to some other law, by virtue of relevant principles enunciated for the interpretation of statutes, until and unless the application of such rules is conferred, or borrowed or those are made applicable on the basis of reference (legislation by reference).

Shahid Mubeen, Additional A.G. for Appellants.

Muzammal Akhtar Shabbir, Advocate Supreme Court for Respondent.

Date of hearing: 23rd October, 2012.

2013 S C M R 225

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Sh. Azmat Saeed, JJ

MUHAMMAD FAROOQ through Legal Heirs and others---Appellants

Versus

MUHAMMAD HUSSAIN and others---Respondents

Civil Appeal No.809 of 2006, decided on 8th November, 2012.

(On appeal from judgment dated 8-11-2004 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in C.R. No.145 of 1992).

(a) Constitution of Pakistan---

----Art. 203H---Provision of law challenged in court as being repugnant to Injunctions of Islam---Case/litigation pending under such provision of law---Effect---Notwithstanding the fact that a provision had been challenged, all proceedings pending in any court should not only continue but would be decided in accordance with the provision of law challenged, which would continue to be in force until the date specified in the judgment declaring it to be repugnant to the Injunctions of Islam.

(b) Constitution of Pakistan---

----Art. 203D(2)---Judgment declaring a provision of law to be repugnant to Injunctions of Islam---Retrospective effect and applicability of such judgment---Scope---Such declaration by way of judgment, should not take effect before the expiration of the period within which an appeal therefrom might be preferred to the Supreme Court or where an appeal had been so preferred, before the disposal of such appeal---Any such judgment of the Federal Shariat Court or Shariat Appellate Bench of the Supreme Court, declaring a law to be repugnant to the Injunctions of Islam, would operate prospectively from the date mentioned therein---Judgments, decrees and orders already passed by applying such provision of law would remain unaffected by the subsequent decision declaring such provision of law to be repugnant to Injunctions of Islam and this would hold true even if judgments or orders were subjected to further proceedings by way of appeal etc.

Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287; Raja Muhammad Akbar represented by Major Lal Khan and others v. Iftikhar Jillani represented by his Legal Heirs PLD 1991 SC 71 and Aacher and others v. Dur Muhammad Usto and others 2001 SCMR 958 rel.

(c) Punjab Pre-emption Act (IX of 1991)---

---S. 6(2)---Constitution of Pakistan, Arts. 203D(2) & 203H---Right of pre-emption---Requirement of 'Zaroorat' or to avoid 'Zarar' declared as repugnant to the Injunctions of Islam---Retrospective effect of such declaration---Scope---Suit for possession through pre-emption filed by plaintiff (respondent)---During pendency of said suit, Punjab Pre-emption Act, 1991 came into force and Trial Court dismissed the plaint under O. VII, R. 11, C.P.C on the ground that plaintiff had not pleaded 'Zaroorat' or to avoid 'Zarar' as required under S.6(2) of Punjab Pre-emption Act, 1991---Appeal filed by plaintiff before First Appellate Court also failed---Plaintiff filed revision petition before the High Court and by that time S.6(2) of Punjab Pre-emption Act, 1991, which pertained to 'Zaroorat' or to avoid 'Zarar', had been declared as repugnant to Injunctions of Islam by Shariat Appellate Bench of the Supreme Court---High Court remanded the case to the Trial Court by holding that S.6(2) of Punjab Pre-emption Act, 1991 had been retrospectively declared as repugnant to Injunctions of Islam---Validity---Judgment by which Shariat Appellate Bench of the Supreme Court declared S.6(2) of Punjab Pre-emption Act, 1991 as repugnant to Injunctions of Islam did not have any retrospective effect and could not be pressed into service to set aside or invalidate any judgment or decree passed in terms thereof prior to the cut-away date mentioned in the said judgment---Judgments of Trial Court and First Appellate Court were passed in accordance with the law as at that point of time S.6(2) of Punjab Pre-emption Act, 1991 was in force and plaintiff had not pleaded 'Zaroorat' or to avoid 'Zarar' in the plaint---Appeal was allowed, impugned judgment of High Court was set aside and orders of Trial Court and First Appellate Court were restored.

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and Ghulam Hussain and others v. Mushtaq Ahmad and others PLD 1994 SC 870 ref.

Ghulam Hamdani v. Muhammad Iqbal and 9 others 1993 SCMR 1083; Falak Sher v. Muhammad Mumtaz and 2 others 1992 MLD 1879; Muhammad Aslam v. Jamil Ahmed 2005 YLR 2347; Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200 and Ghulam Hussain through Legal Heirs v. Muhammad Ahsan and others 2012 MLD 852 distinguished.

Rab Nawaz v. Mehmood Khan 1993 SCMR 2318 and Multan Khan and others v. Mushtaq Ali PLD 2008 SC 331 rel.

Syed Qalb-i-Hassan, Advocate Supreme Court for Appellants.

Sh. Ahsan-ud-Din, Advocate Supreme Court for Respondents Nos.1(a-h, h(i), 2(a-d, g & j).

Respondents: No.1(h(ii), (iii), 2(e, f): Ex parte.

Nemo for Respondents: No.1 [h(iv-viii)], 2(h & i).

Date of hearing: 24th September, 2012.

2013 S C M R 238

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Tariq Parvez and Mian Saqib Nisar, JJ

TRUSTEES OF THE PORT OF KARACHI---Appellant

Versus

ORGANIZATION OF KARACHI PORT TRUST WORKERS and others---Respondents

Civil Appeal No.64-K of 2011, decided on 8th October, 2012.

(On appeal from the judgment/order, dated 27-1-2011 passed by High Court of Sindh, Karachi in C.P. D-1926 of 2010).

Per Tariq Parvez, J; Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ, agreeing.

(a) Industrial Relations Ordinance (XCI of 2002)---

----Ss. 25 & 61---Golden handshake scheme---"Charter of Demands" of employees---Employer-employee settlement, interpretation of---Port Trust (appellant) introduced an "Early Retirement/Golden Handshake" scheme (Scheme) for its employees (respondents)---Employees in question opted for the Scheme, however, a dispute arose over a clause of the Scheme, which clause stated that commutation would be calculated on the basis of the last "Charter of Demands"---Case of employees was that according to the last "Charter of Demands" a demand for 100% increase in their salaries was made, therefore in terms of the Scheme, commutation was liable to be calculated on their salaries after granting 100% increase---Contention of Port Trust was that subsequent to the "Charter of Demands" a settlement was arrived at between their management and the union of employees, wherein the demand of 100% increase in salaries was not acceded to and an increase to the extent of 16% only was agreed, as such employees were not entitled to the claim raised by them and their commutation was to be calculated in terms of last pay drawn by them---High Court allowed constitutional petition filed by employees and directed Port Trust to calculate commutation of employees by allowing a 100% increase in terms of the "Charter of Demands"---Legality---"Charter of Demands" was a permanent feature and practice prevailing between the Port Trust and union of employees and was presented every two years---"Charter of Demands" once presented to Port Trust was not normally accepted in totality, therefore, negotiations followed and after both parties reached some bilateral understanding, same was accordingly accepted and adopted---"Charter of Demands" contained the demands as well as the agreement arrived at between the Port Trust and the union of employees---"Charter of Demands" for the year 2002 was in force when the Scheme was introduced---Demand of 100% increase in salary/pay scales of all employees was made in the said "Charter of Demands" but it was agreed between the parties that increase would be to the extent of 16% only and not 100%---Additionally it was also agreed between the Port Trust and union of employees that any settlement arrived between them would not be applicable to such employees, who had accepted the Golden handshake scheme and were no longer employees of the Port Trust, therefore, employees in question were not entitled to the claim raised by them---Appeal was allowed and impugned judgment of High Court was set aside.

Per Mian Saqib Nisar, J; agreeing with Tariq Parvez, J.

(b) Industrial Relations Ordinance (XCI of 2002)---

----Ss. 25 & 61---Civil Procedure Code (V of 1908), O. II, R. 2---Golden handshake scheme---"Charter of Demands" of employees---Employer-employee settlement, interpretation of---Acquiescence and waiver, rule of---Scope---Relinquishment of part of claim in suit---Effect---Port Trust (appellant) introduced an "Early Retirement/Golden Handshake" scheme (Scheme) for its employees (respondents)---Employees in question opted for the Scheme, however, a dispute arose over a clause of the Scheme, which clause stated that commutation would be calculated on the basis of the last "Charter of Demands"---Case of employees was that according to the last "Charter of Demands" dated 1-4-2004 a demand for 100% increase in their salaries was made, therefore in terms of the Scheme, commutation was liable to be calculated on their salaries after granting 100% increase---Contention of Port Trust was that "Charter of Demands" dated 1-4-2004 was not even in existence when the Scheme in question was announced; that in fact "Charter of Demands" dated 1-4-2002, was in force at the time of the Scheme, and as per said "Charter of Demands" union of employees demanded 100% increase in salaries, but on account of a subsequent settlement this demand was cut down to 16% and said "Charter of Demands" merged into the settlement, therefore, employees who availed benefit of the Scheme could only ask for dues on account of 16% increase---High Court allowed constitutional petition filed by employees and directed Port Trust to calculate commutation of employees by allowing a 100% increase in terms of the "Charter of Demands" dated 1-4-2004---Legality---"Charter of Demands" dated 1-4-2004 had no relevance and application to the present case and it was neither propounded nor initiated when the Scheme in question was announced---Demands listed in a "Charter of Demands" were neither conclusive nor binding upon the Port Trust, but were only meant for the object of bargaining---"Charter of Demands" was duly negotiated, some demands were accepted, some were rejected/modified, after which they culminated into a settlement, which had all the characteristics of a concluded contract---"Charter of Demands" and its culmination into a "settlement" were two independent and hermetic documents---Scheme in question specifically made reference to the last "Charter of Demands" and not to any "settlement", therefore any relief to the employees could be allowed on the basis of "Charter of Demands" dated 1-4-2002, however employees in question opted for the Scheme and accepted their dues calculated on the basis of 16% increase without raising any conspicuous objection or registering their protest in such behalf at that time, therefore, they were estopped by their own conduct from agitating their claim at a belated stage---Rule of acquiescence and waiver also stood in the way of employees from agitating their claim---Claim of employees was also barred by time because had the employees initiated their claim by way of a civil suit for recovery of unpaid dues under the Scheme, their suit would have been beyond the prescribed period of limitation---Additionally union of employees had filed a petition in the past before the High Court under S.61 of Industrial Relations Ordinance, 2002 seeking almost an akin relief to the present petition on the basis of "Charter of Demands" dated 1-4-2004, without putting forth therein any plea/claim on the basis of "Charter of Demands" dated 1-4-2002---Said petition was dismissed by the High Court---According to O. II, R. 2, C.P.C. where a claim/relief, which a person was entitled to on the basis of a cause of action, was omitted and relinquished, such person/party was precluded to sue for the claim/relief so omitted---Claim/relief structured by employees in the present case was not distinct from the cause of action in the petition filed in the past before the High Court, therefore, bar of O. II, R. 2, C.P.C. was also attracted to the present case---Appeal was allowed accordingly and impugned judgment of High Court was set aside with the consequence that constitutional petition filed before the High Court was dismissed.

Board of Trustees, Karachi Port Trust v. Organization of K.P.T. Workers and 2 others 2009 SCMR 994 ref.

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

----Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Limitation period of---Scope---Claim barred by limitation---Relief for such claim sought in constitutional jurisdiction of High Court---Scope---Provisions of Limitation Act, 1908 could not be stricto sensu made applicable to the claims set forth in the constitutional jurisdiction of the High Court, but if the claim on the face of it was barred by the law of limitation in relation to the suit, the relief should be refused to the writ petitioner on the rule of laches and past and closed transaction.

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

----O. II, R. 2---Relinquishment of part of claim in suit---Effect---According to Order II, Rule 2, C.P.C splitting of claim and/or relief was prohibited, with the consequence that if a claim/relief, which a person was entitled to on the basis of a cause of action, was omitted and relinquished, such person/party was precluded to sue for the claim/relief so omitted.

Anwar Mansoor Khan, Senior Advocate Supreme Court for Appellant.

Munir A. Malik, Senior Advocate Supreme Court for Respondents Nos. 2 to 300.

Date of hearing: 11th July, 2012.

2013 S C M R 264

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Sh. MUHAMMAD SADIQ---Appellant

Versus

FEDERAL PUBLIC SERVICE COMMISSION and others---Respondents

Civil Appeal No.465 of 2012, decided on 6th November, 2012.

(On appeal from the judgment dated 9-3-2012 of Islamabad High Court, Islamabad passed in F.A.O. No.31 of 2011).

Civil service---

----Appointment, examination for---Change in assessment formula---Appointing authority changed assessment formula for candidates after submission of applications forms for appointment---Contention of candidate (petitioner) was that calculation of his marks had to be made in accordance with the formula, which was in vogue at the time when he applied for his appointment, but Appointing authority had reviewed the same formula subsequently and changed it because of which he was declared unsuccessful---Validity---Candidate had no vested right to claim that, while making calculation, formula applicable at that time should be followed instead of the new formula, which was subsequently made applicable---Appeal was dismissed in circumstances.

Lt. Muquddus Haider v. Federal Public Service Commission through Chairman, Islamabad 2008 SCMR 773; Senior Member BOR and others v. Sardar Bakhsh Bhutta and another 2012 SCMR 864 and Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144 ref.

Mushtaq Ahmed Mohal and others v. The Hon'ble Lahore High Court, Lahore and others 1997 SCMR 1043 rel.

Appellant in person.

Shafi Muhammad Chandio, D.A.-G., Pir Muhammad Ishaq, Dir (L), Kamran Raffat, AD, FPSC, Shahzad Anjum, SO, Qazi Saeed, Dy Dir. for Chief Census Commissioner for Respondents Nos. 1 to 3.

Naseem Mumtaz Malik, Advocate Supreme Court for Respondent No.4.

Respondent No.5 in person.

Date of hearing: 6th November, 2012.

2013 S C M R 268

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Amir Hani Muslim, JJ

Messrs RASHID SILK---Petitioner

Versus

FAROOQ AHMED and others---Respondents

Civil Petition No.271-K of 2012, decided on 25th October, 2012.

(Against judgment dated 7-8-2012 of High Court of Sindh at Karachi, passed in Constitution Petition No.D-154 of 2011).

Civil Procedure Code (V of 1908)---

----S. 152 & O. XLVII, R. 1---Industrial Relations Ordinance (XCI of 2002), Ss.48(1) & 45(2)--- Review of judgment, application for---Maintainability---Transfer of review application from High Court to Labour Appellate Court---Grievance petition filed by employee (respondent) before Labour Court for his reinstatement with back benefits was dismissed---Employee filed appeal before Labour Appellate Court, which was transferred to the High Court after Industrial Relations Ordinance, 1969 was repealed by Industrial Relations Ordinance, 2002---Employer failed to appear before the High Court, however appeal was heard on merits and order of Labour Court was set aside and employee was reinstated with back benefits---Employer filed a review application against judgment of High Court under S.152 read with Order XLVII, C.P.C., however while said review application was pending in the High Court the matter, due to change in law, was again transferred to the Labour Appellate Tribunal, which dismissed the review application---Employer impugned order of Labour Appellate Court by way of a writ petition, which was also dismissed---Contention on behalf of employer was that under S.48(1) read with S.45(2) of Industrial Relations Ordinance, 2002, the Labour Appellate Tribunal had to exercise the powers as vested in the Labour Court including the provisions of Civil Procedure Code, 1908 as such review application was maintainable---Validity---Perusal of review application filed by employer showed that it had not been alleged therein that employer had not been served---Even if employer was not served, question was as to how employer came to know that appeal had been filed by the employee before the Labour Appellate Court and same had been allowed---Date of knowledge of said information was also not mentioned in the review application---Employer had failed to make out a case for review of order---Petition was dismissed and leave was refused.

Abdul Qadir Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 25th October, 2012.

2013 S C M R 271

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

IQBAL AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.18-Q of 2009, decided on 20th September, 2012.

(On appeal from the judgment dated 14-2-2007 passed by High Court of Balochistan at Sibi in Cr. A.(S)28 of 2006).

Criminal Procedure Code (V of 1898)---

----S. 345(2-A)---Penal Code (XLV of 1860), Ss. 302 & 311--- Qatl-e-amd---Murder on the pretext of 'siyahkari'---Waiver or compounding of offence---Scope---Compromise between the parties---Trial Court convicting accused under S.311, P.P.C. without having recorded any evidence---Legality---F.I.R. under S.302, P.P.C. was registered against the accused (appellant) for committing the murder of deceased persons---Parties, during trial, effected compromise before evidence was recorded---Trial Court accepted application for compromise under S.345(2), Cr.P.C. but convicted accused under S.311, P.P.C., without recording any evidence, finding that he had committed premeditated and cold-blooded murder of two people on the pretext of "Siahkari" in a shocking and brutal manner, which was outrageous to public conscience and community, therefore, it disentitled court from taking a lenient view or mercy in his favour inspite of the compromise---Validity---Finding of Trial Court that accused committed "premeditated and cold-blooded" murders or it was "outrageous to the public conscience and community" entailed factual inquiry and recording of evidence, which exercise was not undertaken by the Trial Court---Appeal was allowed by the Supreme Court, impugned judgment was set aside and case was remanded to the Trial Court to decide the matter afresh in light of the relevant provisions of substantive and procedural law through a speaking judgment.

Azmat v. State PLD 2009 SC 768 rel.

Kamran Murtaza, Advocate Supreme Court for Appellant.

M. Wasay Tareen, P.-G. for the State.

Date of hearing: 20th September, 2012.

2013 S C M R 279

[Supreme Court of Pakistan]

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

DEPUTY DISTRICT OFFICER (REVENUE), KASUR and another---Petitioners

Versus

MUHAMMAD MUNIR SAJID---Respondent

Civil Petition No.1527-L of 2012, decided on 15th September, 2012.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore dated 25-4-2012 passed in Appeal No.357 of 2012).

Civil service---

----Dismissal from service---Fake degree certificate presented before Selection Committee--- Effect--- Patwari (respondent) in question submitted fake F.A. certificate during selection process and he was dismissed from service---Patwari filed Departmental appeal against his dismissal but same was dismissed, however Service Tribunal accepted his appeal holding that even if his F.A. certificate was fake, he was still eligible for appointment as Patwari on the basis of his Matriculation qualification---Contention of Patwari was that fake degree certificate was included in his testimonial by another candidate to spoil his chances of selection---Validity---Patwari had been granted five additional marks by the Selection Committee on the basis of his fake F.A. certificate---Contention of Patwari that another candidate had included the fake degree in his testimonial did not make sense since the question was as to why a competing candidate would include a fake certificate, which if undetected, would have given an edge (additional marks) to the Patwari in question---Said contention had not been presented during the inquiry stage or before the Service Tribunal, where it was asserted that certificate was genuine---Service Tribunal had lost sight of the fact that the fake certificate would have entitled Patwari to additional marks, which in fact he was granted---Conduct of Patwari in producing a fake certificate, knowing that it would boost his chances for selection, disentitled him to be even considered for selection---Petition for leave to appeal was converted into appeal and allowed and judgment of Service Tribunal was set aside and order of dismissal of Patwari was restored.

Mudassar Khalid Abbasi, Additional A.-G. for Petitioners.

Shah Khawar, Advocate Supreme Court for Respondent.

Date of hearing: 25th September, 2012.

2013 S C M R 281

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Muhammad Ather Saeed, JJ

IQBAL HUSSAIN SHEIKH and 2 others---Appellants

Versus

CHAIRMAN, FEDERAL BOARD OF REVENUE and another---Respondents

Civil Appeals Nos.189-K, 190-K and 191-K of 2011, decided on 6th November, 2012.

(On appeal from the judgment and order of the Federal Service Tribunal, Karachi dated 1-2-2011 in Appeals Nos. 153, 154 and 155(K)CS/2010).

(a) Civil Servants (Seniority) Rules, 1993---

----S. 4---Seniority on transfer from one group of Federal Superior Service to another, determination of---Principles---Civil servants transferred/appointed on deputation to another group, subsequently inducted/absorbed into that group---Question was whether date of seniority of such civil servant would be reckoned from the date of his transfer/appointment on deputation or from the date of his induction/absorption into that group--- Officers/appellants were appointed on deputation/transferred in the Income Tax Group on 26-3-1994---Subsequently Board of Revenue (Authority of the Transfree Department) decided that said officers would be inducted/absorbed in the Income Tax Group, however same was not formalized and requisite notification of induction/absorption of officers into the Income Tax Group was not issued---Said officers filed constitutional petition before the High Court, which was dismissed, however on appeal, Supreme Court directed that officers in question were to be inducted/absorbed in the Income Tax Group---Seniority of officers was fixed by the Board of Revenue from the date of their absorption in the Income Tax Group, i.e. 1-1-2001---Aggrieved by the fixing of their seniority, said officers filed departmental representation, which was rejected, against which appeal was filed before the Federal Service Tribunal, which was also dismissed---Contention of officers was that their seniority should be reckoned from the date of their appointment on deputation/transfer, i.e. 26-3-1994 and not from the date of their induction/absorption i.e. 1-1-2001---Contention of Board of Revenue was that Supreme Court had already decided that said officers be inducted/ absorbed in the Income Tax Group and that their date of absorption was to be considered as date of seniority, i.e. 1-1-2001---Validity---Perusal of prayer made by officers in question in their constitutional petition before the High Court showed that they had not specifically urged that date of their seniority be reckoned---Judgment of Supreme Court also showed that court had not specifically decided the question of seniority of the officers, therefore Service Tribunal was not justified in basing its decision on the assumption that question of seniority had already been decided by the Supreme Court---Date of absorption/induction in a new service/department might not necessarily be the date from which the seniority in that service/department had to be reckoned---Rule 6(a) of the instructions appearing at page 335 of ESTACODE (edition 1989), Serial No.30, provided that if it was open to the person concerned to accept or refuse his appointment in another office then the seniority in that office should be counted from the date of his transfer to that office---Officers, in the present case, were given an option to be transferred to the Income Tax Group and had a right to either refuse or accept such an option, therefore, their seniority had to be reckoned in accordance with the said Rule 6(a) of ESTACODE (edition 1989)---Seniority of the officers vis-a-vis other officers for all purposes had to be reckoned from the date of their transfer i.e. 26-3-1994, and not from the date of their induction/absorption i.e. 1-1-2001---Appeal was allowed, impugned order of Service Tribunal was set aside and Board of Revenue was directed to notify 26-3-1994 as the date from which seniority of officers in question was to be reckoned.

Din Muhammad v. Director-General, Pakistan Post Office, Islamabad and 20 others 2003 SCMR 333; Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and another v. Prime Minister of Pakistan Islamabad and others PLD 1996 SC 771 and Mehr Sher Muhammad v. Federation of Pakistan 1999 SCMR 185 rel.

Abdul Hameed Anjum v. Federation of Pakistan PLD 2010 SC 857; Federation of Pakistan v. Rais Khan 1993 SCMR 609; Muhammad Zafar Khan v. Secretary Establishment Division, Islamabad and 155 others 1995 SCMR 1840 and Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and another v. Prime Minister of Pakistan, Islamabad and others PLD 1996 SC 771 ref.

(b) Civil Servants (Seniority) Rules, 1993---

----S. 4---Determination of seniority on transfer from one group of Federal Superior Service to another--- Principles--- Date of absorption/induction in a new service/department might not necessarily be the date from which the seniority in that service/department had to be reckoned---Seniority might be reckoned from the date of transfer/deputation and not from the date of absorption.

Rasheed A. Rizvi, Senior Advocate Supreme Court for Appellants.

Akhtar Ali Mahmood, Advocate Supreme Court for Respondent No.1.

Date of hearing: 22nd June, 2012.

2013 S C M R 299

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

MUHAMMAD RUSTAM and another---Petitioners

Versus

Mst. MAKHAN JAN and others---Respondents

Civil Petition No.26-P of 2011, decided on 14th November, 2012.

(On appeal from the judgment dated 10-11-2010 passed by the Peshawar High Court, Abbottabad Bench in Civil Revision No.233 of 2007).

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Mutation of inheritance---Claimant's predecessor-in-interest not challenging such mutation during his/her life---Effect---Petitioners' filed suit for declaration impugning mutation of inheritance and claimed their share of inheritance as successors of the deceased lady in question---Suit was decreed by Trial Court, which was affirmed by the First Appellate Court---High Court reversed findings of courts below and dismissed the suit---Petitioners contended that they had a bona fide right to claim their share of inheritance, and that High Court non-suited them merely on the ground of limitation---Validity---Admittedly impugned mutation of inheritance dated 9-7-1927 was never challenged by the deceased lady in question, who remained alive till the year 1975, and no reason whatsoever was reflected either in the plaint or in the evidence led to indicate as to why she did not challenge the said mutation---Petitioners never claimed that either they or their predecessor-in-interest were unaware of the impugned mutation---Judgment of High Court was unexceptionable in such circumstances---Petition was dismissed accordingly and leave was refused.

Allah Wasaya v. Rahim Bakhsh 1991 SCMR 1369 and Jumma Khan v. Mst. Zenab Bibi PLD 2002 SC 823 distinguished.

Abdul Haq v. Mst. Surraya Begum 2002 SCMR 1330 rel.

Muhammad Ajmal Khan, Advocate Supreme Court for Petitioners.

Sardar Muhammad Aslam, Senior Advocate Supreme Court for Respondents Nos. 1 to 10.

Date of hearing: 14th November, 2012.

2013 S C M R 302

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan and Muhammad Ather Saeed, JJ

FAREED ULLAH---Petitioner

Versus

The STATE---Respondent

Suo Motu Criminal Review Petition No.44 of 2010 in Jail Petition No.137 of 2008, decided on 22nd November, 2012.

(On review from the judgment dated 15-7-2009 of this Court passed in Jail Petition No.137 of 2008).

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

----S. 9(c)---Constitution of Pakistan, Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Possession of narcotic---Sentence, reduction in---Consolidated sample, taking of---Effect---Accused persons were apprehended while in possession of charas weighing 24 kilograms---Trial Court convicted them under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced them to imprisonment for life and a fine of Rs.500,000 each with the benefit of S.382-B, Cr.P.C.---Appeal filed by accused persons before the High Court was dismissed, where after jail petitions filed by them before the Supreme Court were also dismissed---Validity---Recovered charas allegedly weighing 24 kilograms was in the shape of 20 littars but after the alleged recovery one consolidated sample of recovered substance had been taken, which sample weighed only 10 grams---At best only one littar of charas could have been considered against the accused persons as recovered substance---By law of averages, if 20 littars weighed 24 kilograms then one littar would weigh 1.2 kilograms, therefore, it was only 1.2 kilograms of charas for which accused persons could have been convicted and sentenced---Review petition was allowed, impugned order passed by Supreme Court, whereby jail petitions of accused persons were dismissed, was recalled with the result that conviction of accused persons under S.9(c) of Control of Narcotic Substances Act, 1997 was maintained but their sentences were reduced to imprisonment for four years and six months each and a fine of Rs.20,000 each with the benefit of S.382-B, Cr.P.C.

Ameer Zeb v. The State PLD 2012 SC 380 and Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 rel.

Muhammad Bashir Peracha, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 22nd November, 2012.

2013 S C M R 304

[Supreme Court of Pakistan]

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

S.M.C. NO.15 OF 2010 AND C.M.As. NOS. 2689, 3244 OF 2010 AND C.M.As. NOS.5383, 3068 OF 2011

(Suo Motu action regarding regularization of the contract employees of Zakat Department as well as appointment of Chairman of Central Zakat Council): In re

H.R.C. NO.44517-K OF 2010

(Application by Muhammad Ashraf regarding regularization of the contract employees of Zakat Department as well as appointment of Chairman of Central Zakat Council): In re

H.R.C. NO.13938-P OF 2010

(Application by Muhammad Nawaz Sial): In re

H.R.C. NO.22070-P of 2011

(Application by Muhammad Afzal Bajwa): In re

CONSTITUTION PETITION NO.74 OF 2011

MUZAFFAR KHAN and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

S.M.C. No.15 of 2010, C.M.As. Nos.2689, 3244 of 2010, 5383, 3068 of 2011, H.R.C. No.44517-K of 2010, H.R.C. No.13938-P of 2010, H.R.C. No.22070-P of 2011 and Constitution Petition No.74 of 2011, decided on 21st November, 2012.

(a) Zakat and Ushr Ordinance (XVIII of 1980)---

----Ss. 8(c)(iii), 12(1) & 16(3)(a)---Khyber Pakhtunkhwa Zakat and Ushr Act (XVII of 2011), S. 8(c)(ii)---Sindh Zakat and Ushr Act (X of 2011), S. 8(c)(ii)---Balochistan Zakat and Ushr Ordinance (I of 2011), S.8(c)(ii)---Constitution of Pakistan, Art. 184(3)---Matter regarding regularization of contract employees of Zakat Department as well as appointment of Chairman of Central Zakat Council---Contract employees---Regular appointment, right of---Scope---Petitioners were employed on contractual basis for fixed terms by their respective District Zakat Committees and were paid emoluments out of the Zakat Fund set up under the Zakat and Ushr Ordinance, 1980---Petitioners sought regularization of their services at par with other regular employees of Zakat and Ushr Department---Contentions of petitioners were that they had been serving the Zakat and Ushr Department for periods ranging from 10 to 17 years; that they were not employees of a project mandated to be wound up upon its completion but were employed in a permanent department of the Government, and that they were performing functions similar to those of regular employees---Validity---Petitioners were employed/recruited on contractual basis by the Chairman of the District Zakat Committees on fixed salaries for specific terms, which were extended from time to time---Petitioners were not appointed against any particular post and their appointment was not made by any government official or authority---Appointment of petitioners was not under a particular law but under a policy decision taken the Central Zakat Committee---Nature of petitioners' employment was for a specific purpose/task and on such score they had no vested right for regular appointment---After the 18th Amendment in the Constitution subject of Zakat and Ushr was devolved to the provinces, however system of collection and disbursement of Zakat remained unchanged notwithstanding such devolution---Before devolution of subject of Zakat and Ushr to Provinces, petitioners were paid their salaries from the Zakat Fund under S.8(c)(iii) of Zakat and Ushr Ordinance, 1980, and even after devolution of the subject to the Provinces, provisions similar to said section were incorporated in enactments made by the Provinces, i.e., Khyber Pakhtunkhwa Zakat and Ushr Act, 2011, Sindh Zakat and Ushr Act, 2011 and Balochistan Zakat and Ushr Act, 2012---Status of petitioners thus remained unchanged even after devolution of the subject of Zakat and Ushr to the Provinces---Petition was dismissed accordingly.

Hadi Bux v. Government of Sindh PLD 1994 SC 532; Registrar, Supreme Court of Pakistan v. Wali Muhammad 1997 SCMR 141; Abdul Majid Sheikh v. Mushaffe Ahmed PLD 1965 SC 208; Managing Director, S.S.G. v. Saleem Mustafa PLD 2001 SC 176 and Ikram Bari v. National Bank of Pakistan 2005 SCMR 100 ref.

Government of Balochistan v. Zahida Kakar 2005 SCMR 642 rel.

(b) Civil service---

----Contract employees---Regular appointment, right of---Scope---Contract employees did not have a vested right for regular appointment.

Government of Balochistan v. Zahida Kakar 2005 SCMR 642 rel.

(c) Constitution of Pakistan---

----Arts. 25, 27 & Part IV, Ch. 3 [Arts.129 - 140A]--- Province, decision of--- Discrimination--- Scope--- Decision by one Province regarding any matter could not be cited as a ground for discrimination, if another Province did not make the same decision, since holding otherwise would be an intrusion into the economy of the Provinces.

Habibullah Shakir, Additional AGP, M. Shafiq, Account Officer, M/o Religious Affairs for Federation of Pakistan.

Jawad Hassan, Additional A.-G., Punjab, M. Yousaf Butt, Administrator Zakat, Punjab and Taimoor Yousaf, LO (Zakat) for Province of Punjab.

Syed Arshad Hussain Shah, Additional Advocate-General, Khyber Pakhtunkhwa and Syed Maqbool Hussain Shah, DS, Zakat for the Province of Khyber Pakhtunkhwa.

Qasim Mirjat, Additional AG and Hanif M. Merchiwala, Additional Secretary, (Zakat) for the Province of Sindh.

M. Azam Khattak, Additional A.G. and Syed Abdul Manan, Secretary, Zakat for the Province of Balochistan.

Tariq Mehmood, Senior Advocate Supreme Court and Muhammad Nawaz, in person for the Employees.

Amjad Ali, Advocate Supreme Court (in Constitutional Petition No.74 of 2011).

Mushtaq Ahmed Mohal, Advocate Supreme Court (in C.M.A. No.3068 of 2011).

Nazir Ahmed Bhutta, Advocate Supreme Court (in C.M.A. No.2742 of 2010).

Applicant in person (in H.R.C. No.44517-K of 2010).

Abdul Rahim Bhatti, Advocate Supreme Court and M. Afzal Bajwa, Amicus Curiae (in C.M.A. No.5383 of 2011).

Date of hearing: 21st November, 2012.

2013 S C M R 314

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

MUHAMMAD TARIQ BADR and another---Appellants

Versus

NATIONAL BANK OF PAKISTAN and others---Respondents

C.As. Nos.1416 and 1417 of 2009 and C.P. No.176-Q of 2009, decided on 14th November, 2012.

(On appeal from the order dated 22-6-2009 of the Federal Service Tribunal, Islamabad passed in M.P. No.171/2009 and Appeal No.29(Q)CW/2004, M.P. 172/2009 and Appeal No.30(Q)CE/2004 and Appeal No.31(Q)CW/2004).

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

----Ss. 11(4), (5) & (10) & 13(2)---National Bank of Pakistan (Staff Services) Rules, 1980---Non-statutory nature of National Bank of Pakistan (Staff Services) Rules, 1980---Scope---National Bank of Pakistan (Staff Services) Rules, 1980 were neither made by the Federal Government nor published in the official gazette---Said rules had not been composed/enforced with the prior approval of the Government nor subsequent benediction was conferred to them by the Government---Said rules had been formulated by the Board of the Bank pursuant to its authority in the nature of management/superintendence of the affairs of the Bank and/or policy making power---National Bank of Pakistan (Staff Services) Rules, 1980, at best could be termed as guidelines or domestic instructions of the bank for the purpose of highlighting, elucidating or beneficially revamping the service structure of Bank's employees for their advantage---National Bank of Pakistan (Staff Services) Rules, 1980 did not enjoy the status of a statutory instrument.

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

----S. 13---National Bank of Pakistan (Staff Services) Rules, 1973---Non-rescinding or replacing of---Effect---Language of S.13(1) of Banks (Nationalization) Act, 1974 spelled out the clear intendment of the legislature to preserve the earlier terms and conditions of nationalized bank, rather than being obliterated--- Board of the Bank in the garb of its general empowerment of policy making, superintendence and managing affairs of business could not rescind, replace, substitute and/or vitiate National Bank of Pakistan (Staff Services) Rules, 1973---National Bank of Pakistan (Staff Services) Rules, 1980, which was a non-statutory instrument, had not replaced or rescinded National Bank of Pakistan (Staff Services) Rules, 1973.

National Bank of Pakistan v. Punjab Labour Appellate Tribunal and 2 others 1993 SCMR 105 distinguished.

Liaquat Ali Daultana v. The President, National Bank of Pakistan and others Civil Petition No.1291-L of 2001 rel.

(c) Constitution of Pakistan---

----Arts. 185(3) & 212(3)---Order granting/refusing leave to appeal---Precedential value---Scope---Order granting and/or refusing leave which did not lay down a rule of law should not be followed necessarily and imperatively, however such an order might be shown obeisance on the basis of propriety provided it was strictly in line with the clear mandate and true spirit of law and did not impinge the rules of justice.

State Life Insurance Corporation of Pakistan through Chairman v. Raz Muhammad Shanwari and others 2007 SCMR 1400 rel.

(d) Constitution of Pakistan---

----Art. 189---Supreme Court, judgment of---Binding effect---Pre-requisites---Judgment of the Supreme Court would have due effect and deference if it decided a question of law; if it was passed upon the basis of law, and if it enunciated the principle of law.

Khan Gul Khan and others v. Daraz Khan 2010 SCMR 539 rel.

(e) Constitution of Pakistan---

----Art. 212(1)(a)---National Bank of Pakistan (Staff Services) Rules, 1973---Applicability---Scope---Federal Services Tribunal, jurisdiction of---Scope---Appeal filed by employee of National Bank of Pakistan before Federal Service Tribunal--- Maintainability--- Employees (appellants) aggrieved of their non-promotion, filed appeals before Federal Services Tribunal against departmental orders of the employer-bank (respondent)--- Said appeals were abated in view of the judgment of the Supreme Court in the case of Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602)---Subsequently said appeals were resurrected in view of Supreme Court's judgment in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan and others (PLD 2007 SC 681)---Employees moved applications before Federal Service Tribunal for resurrection of their abated appeals, but same were disallowed vide impugned order, on the basis that when charge sheet was served upon the employees they were governed by National Bank of Pakistan (Staff Services) Rules, 1980, which were non-statutory rules, thus appeals before Federal Services Tribunal were not maintainable---Validity---Any employee inducted into the Bank in question was governed by National Bank of Pakistan (Staff Services) Rules, 1973, irrespective of the timing of his induction---National Bank of Pakistan (Staff Services) Rules, 1973 were statutory rules and envisaged the terms and conditions of service of Bank's employees throughout, and were not repealed, replaced or annulled by National Bank of Pakistan (Staff Services) Rules, 1980, which were non-statutory rules---Appeals filed by employees were resurrected after the judgment of Supreme Court in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan and others (PLD 2007 SC 681) , therefore Federal Service Tribunal should have decided said appeals on merits rather than dismissing them on the wrong assumption that employees were governed by non-statutory rules i.e. National Bank of Pakistan (Staff Services) Rules, 1980---Appeals were allowed by the Supreme Court, impugned decision of Federal Services Tribunal was set aside and appeals filed by employees were deemed to be pending before the Federal Service Tribunal.

Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 and National Bank of Pakistan v. Abdul Qadir Civil Petition No.552 of 2007 ref.

National Bank of Pakistan v. Punjab Labour Appellate Tribunal and 2 others 1993 SCMR 105 distinguished.

State Life Insurance Corporation of Pakistan through Chairman v. Raz Muhammad Shanwari and others 2007 SCMR 1400 rel.

(f) General Clauses Act (X of 1897)---

----Ss. 6 & 6A---Legislation---Repeal/omission---Terms "omission" and "repeal", interpretation of---Synonymy---Repeal and omission were not distinct terms, rather they were expressions used by the legislature to achieve the same object---Where legislature wanted to abrogate and annul an entire/whole statute, it adhered to the word "repeal", but where a particular provision or part of statute was to be rescinded, abrogated, annulled etc., expression omitted/deleted was used.

Messrs General Finance Co. and another v. Assistant Commissioner of Income-tax, Punjab AIR 2002 SC 3126 and Abdul Malik v. Muhammad Iqbal and another 1994 CLC 788 distinguished.

Principles of Statutory Interpretation by Justice G.P. Singh 7th Edition page 470; Dad Muhammad and another v. Additional District Judge-I, Quetta and others 1996 SCMR 1688 and Dr. Mukhtar Hamid Shah and others v. Government of the Punjab and others PLD 2002 SC 757 rel.

(g) General Clauses Act (X of 1897)---

----Ss. 6 & 6A---Repeal of law---Prospective application---Scope---Right of parties---Effect---Change in substantive law, which divested and adversely affected the vested rights of the parties should always have prospective application, unless by express word of the legislation and/or by necessary intendment/implication such law had been made applicable retrospectively---Vested and substantive rights of parties should be decided according to the law which was prevalent when the action was initiated and the door of the court was knocked; and/or machinery (of the court) was set in motion. [p. 333] J

(h) General Clauses Act (X of 1897)---

----Ss. 6 & 6A---Right of appeal, repealing of---Pending appeal (lis)---Effect---Right of appeal available to a litigant under the law at the time of commencement of lis was a substantive and a vested right, which could not be stultified by giving retrospective effect to a repealing law, when otherwise the repealing statute did not ordain its retrospective application or take away such right, expressly or by necessary implication.

Manzoor Ali and 39 others v. United Bank Limited through President 2005 SCMR 1785 rel.

(i) Words and phrases---

----"Repeal"---Definition and meaning.

Black's Law Dictionary Ninth Edition ref.

(j) Words and phrases---

----"Omission"---Definition.

(k) Interpretation of statutes---

---- Rules--- Non-rescinding or repealing of--- Effect.

National Bank of Pakistan v. Punjab Labour Appellate Tribunal and 2 others 1993 SCMR 105 distinguished.

Abdul Rahim Bhatti, Advocate Supreme Court for Appellant (in both appeals).

Tariq Mahmood, Senior Advocate Supreme Court for Petitioner (in C.P. 176-Q of 2009).

Kh. Muhammad Farooq, Senior Advocate Supreme Court and Rasheed Qamar, Advocate Supreme Court for Respondents.

Dates of hearing: 1st, 2nd and 3rd October, 2012.

2013 S C M R 336

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain, Tariq Parvez, Ejaz Afzal Khan, Gulzar Ahmed and Sh. Azmat Saeed, JJ

NADEEM AHMED---Petitioner

Versus

FEDERATION OF PAKISTAN---Respondent

Constitution Petition No. 126 of 2012, decided on 14th December, 2012.

(Under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973).

Constitution of Pakistan---

----Arts. 175A(8), 175A(13) & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning non-issuance of appointment orders of two Judges of the Islamabad High Court by the President---Judicial Commission, proceedings of---Nomination of a name by majority by Judicial Commission---Scope---Judicial Commission, under the provisions of Art. 175A of the Constitution, recommended names of two judges for appointment, one as a Judge of Islamabad High Court and the other as an Additional Judge of Islamabad High Court for a period of six months, from the date of expiry of their tenure as Additional judges of the said High Court---Parliamentary Committee on receipt of the said nominations from the Judicial Commission unanimously confirmed the same, and in terms of Art. 175A(13) of the Constitution, sent the matter to the Prime Minister to forward the same to the President for appointment---President did not issue orders for appointment of said two Judges allegedly for the reason that one of the participants of the Judicial Commission was not qualified to attend the meeting---Validity---Even if it was assumed that one of the members, being non entity sat, voted and took part in the proceedings of Judicial Commission culminating in nomination, it would not vitiate the proceedings when the Judicial Commission in view of Art. 175A(8) of the Constitution had nominated by majority of its membership---Supreme Court directed the concerned authorities to issue notifications, thereby appointing one of the recommended names as a Judge of Islamabad High Court, and the other as an Additional Judge of Islamabad High Court, for a period of six months, giving effect from the date of expiry of their earlier notifications---Constitutional petition was allowed accordingly.

Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724 rel.

M Akram Sheikh, Senior Advocate Supreme Court for Petitioner.

Irfan Qadir, AGP for Respondent.

Date of hearing: 14th December, 2012.

2013 S C M R 338

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

S.M. WASEEM ASHRAF---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, M/O Housing and Works, Islamabad and others---Respondents

Civil Petition No.1521 of 2012, decided on 15th November, 2012.

(Against the order dated 20-7-2012 of Islamabad High Court, Islamabad passed in I.C.A. No.390-W of 2012).

Per Tassaduq Hussain Jillani, J; Mian Saqib Nisar, J, agreeing.

(a) Civil service---

----Allotment of house, cancellation of---Non-serving of notice to civil servant---Effect---Civil servant (petitioner) was allotted subject house and was in its possession since 13-01-2001---Said allotment was cancelled by the concerned authorities on 10-7-2012 after a complaint was received concerning the said house---Inquiry was conducted and a notice was allegedly served on the civil servant by inserting the same through the closed door of the house as it was found locked---Civil servant contended that allotment of the house was cancelled without any prior notice to him and without hearing him---Validity---Concerned authority admitted that notice was never served on civil servant and he was not granted prior hearing either---Notice that had allegedly been inserted through the closed door of the subject house was not addressed to any person---Other notices issued to the civil servant also remained unserved---Concerned authorities were directed to handover possession of subject house to civil servant and to inquire into the matter and proceed against the delinquent officials in terms of the relevant law and rules.

Per Mian Saqib Nisar, J; agreeing with Tassaduq Hussain Jillani, J

(b) Appeal---

----Appeal, right of---Scope---Right to appeal before a court of law was a right specifically conferred upon a litigant or an aggrieved party (affected person with the leave of the court if not a party to the lis) by law---Right to appeal could only be exercised strictly in the manner and before the forum as was specified/stipulated by law.

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

----S. 3---Intra-court appeal, right of---Scope---Right to file Intra-court appeal was not an unqualified or absolute right---Under S.3(1) of Law Reforms Ordinance, 1972 an Intra-court appeal lay only against a decree or a final order of the Single Judge of the High Court, and that too if it was passed in the exercise of its 'original civil jurisdiction'---According to S.3(2) of Law Reforms Ordinance, 1972 right to file Intra-court appeal was confined to those orders of the Single Judge of High Court which were passed under Art.199(1) of the Constitution, while an order passed under Art.199(1)(b)(i) had been specifically excluded from the purview of an Intra-court appeal.

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

----S. 3---Intra-court appeal, hearing of---Composition of Bench---Scope---Only a Bench of the High Court comprising two or more Judges had the jurisdiction to entertain/hear an Intra-court appeal---Such requirement was an absolute and unqualified command of the law.

(e) Constitution of Pakistan---

----Art. 175(2)---Jurisdiction of courts, exercise of---Scope---No court should exercise any jurisdiction in any matter brought before it until and unless, such jurisdiction had been conferred upon it by the Constitution itself or under any law.

(f) Void order---

----Adjudication without jurisdiction---Effect---Where any forum or court adjudicated and decided a matter without jurisdiction, such decision would be void and of no legal effect.

(g) Jurisdiction---

----Court/forum, jurisdiction of---Scope---Any forum or court, which had no jurisdiction to decide the main matter on a case before it, had no jurisdiction to decide any ancillary and/or incidental matter thereto.

Petitioner in person.

Tahir Akhtar Awan, S.O., M/o Housing and Works for Respondent No.1.

M. Ashraf, Additional Estate Officer and Afzal Hassan Khan, Joint Estate Officer for Respondent No.2.

Sajid Abbas, Inspector Legal for Respondent No.4.

Respondent No.5 in person.

M. Ilyas Sheikh, Advocate-on-Record along with Respondent No.6 in person.

Date of hearing: 7th November, 2012.

2013 S C M R 346

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

SUO MOTU CASE NO.16 OF 2011

(Implementation of this Court's judgment dated 6-12-2011 regarding law and order situation in Karachi): In re

CIVIL MISCELLANEOUS APPLICATION NO.49 OF 2013

(Anonymous Application regarding Law and Order situation in Karachi): In re

CRIMINAL ORIGINAL PETITION NO.96 OF 2012

Senator Haji ADEEL---Petitioner

Versus

Raja M. ABBAS and others---Respondents

CRIMINAL ORIGINAL PETITION NO.106 AND CRIMINAL MISCELLANEOUS APPEAL NO.765 OF 2012

(Contempt proceedings against Altaf Hussain, Leader of MQM): In re

Suo Motu Case No.16 of 2011, Civil Miscellaneous Application No.49 of 2013, Criminal Original Petition No.96 of 2012, Criminal Original Petition No.106 and Criminal Miscellaneous Appeal No.765 of 2012, decided on 7th January, 2013.

(a) Constitution of Pakistan---

----Arts. 204(2) & 184(3)---Contempt of Court Ordinance (V of 2003), S.3---Contempt of Court proceedings---Submission of unconditional apology---Effect---Discharge of notice for Contempt of Court---Alleged contemnor, who was leader of a political party, delivered a speech addressing the general public, wherein he cast uncalled for aspersions and expressions against Judges of the Supreme Court---Supreme Court issued notice under Art.204 of the Constitution read with S.3 of the Contempt of Court Ordinance, 2003 to the alleged contemnor to explain as to why he should not be proceeded against for Contempt of Court in accordance with the Constitution and the law---Alleged contemnor submitted unconditional apology in the Supreme Court, wherein he had shown honour and respect to the Supreme Court and made commitment that in future he shall do everything to uphold the dignity of Judges---Contempt notice issued to alleged contemnor was discharged, in circumstances.

(b) Constitution of Pakistan---

----Arts. 204(2) & 184(3)---Contempt of Court---Submission of unconditional apology---Effect---Alleged contemnor had addressed a letter to the Chief Justice of the Supreme Court wherein he had used contemptuous language against the judiciary---Alleged contemnor submitted unconditional apology in the Supreme Court---Supreme Court observed that since an unconditional apology had been filed, therefore, no further action was called for in the matter.

(c) Constitution of Pakistan---

----Arts. 204(2) & 184(3)---Contempt of Court---Submission of unconditional apology--- Effect--- Alleged contemnor had used expressions against the institution of Supreme Court during a press conference---Alleged contemnor submitted unconditional apology in the Supreme Court---Supreme Court observed that since an unconditional apology had been filed, therefore, no further action was called for in the matter.

(d) Contempt of Court Ordinance (V of 2003)---

----S. 3---Constitution of Pakistan, Art. 204(2)---Contempt of Court proceedings---Purpose---Purpose of proceedings for Contempt of Court was not the protection of a Judge personally but in fact it was for the protection of the public at large, whose rights and interests would obviously be affected, if by any act or omission of any party, the authority of the court was lowered and the confidence of the people in the administration of justice was diminished or weakened.

Abdul Latif Afridi, Advocate Supreme Court for Petitioner (in Criminal Original Petition No.96 of 2012).

Syed Mehmood Akhtar Naqvi, Applicant in person (in C.M.A. No.5385 of 2012).

Abdul Fattah Malik, A.-G., Sindh, Muhammad Qasim Mirjat, Additional A.-G., Raja Muhammad Abbas, Chief Secretary, Sindh, Wasim Ahmed, Additional Chief Secretary, Imran Atta Soomro, Additional Secretary Home, Fayyaz Leghari, I.-G.P., Sindh, Iqbal Mehmood, Additional I.-G.P. and Ali Sher Jakhrani, AIG Legal on Courts Notice.

Dr. Faroogh Naseem, Advocate Supreme Court and Dr. Kazi Khalid Ali, Advocate Supreme Court for Altaf Hussain (alleged contemnor in Criminal Original Petition No.106 of 2012).

Dr. Farooq Sattar, Federal Minister/MNA, Rauf Siddiqi, MPA, Sanaullah Abbasi, DIG, Hyderabad and Bashir Memon, DIG on Court's call.

Date of hearing: 7th January, 2013.

2013 S C M R 352

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Anwar Zaheer Jamali, JJ

ZAFAR IQBAL JHAGRA and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Suo Motu Case No.9 of 2012 and Constitution Petitions Nos.109 and 110 of 2012, decided on 14th December, 2012.

(Regarding irregularities and illegalities in PIA).

Constitution of Pakistan---

----Art. 184(3)--- Suo motu case/constitutional petition under Art.184(3) of the Constitution regarding irregularities and illegalities in Pakistan International Airlines (PIA)---Supreme Court observed that during the year 2012, Pakistan International Airlines had sustained losses after taxation to the tune of Rs.22.43 billion compared to the losses for the year 2011 which stood at Rs.19.29 billion, meaning thereby that for each year losses were increasing and also accumulating on year to year basis; that at present the number of employees, both regular and on contract basis in Pakistan International Airlines exceeded 18000 and their salaries etc. had to be paid out of the income, not profit of business, which the Corporation was undertaking on monthly or annual basis; that the ratio of employees to each aircraft approximately came to 450 even without taking into account work which was outsourced to contractors; that administration of Pakistan International Airlines had never planned to induct new aircrafts otherwise out of its fleet of 28 functional aircrafts, which were 26 years old, they could have replaced the same, either by purchasing new aircrafts or by getting the same on lease; that prima facie, on account of such mismanagement a profit-earning organization, being the only official airline, was making loss year to year; that senior officers of Pakistan International Airlines had flown to attend the proceedings of the present matter but no one amongst them was fully aware of the affairs of the Corporation and whenever questions were put to them, they stated that they had to get figures and they would inform the Court in that behalf on the next date of hearing, which clearly indicated mismanagement in the organization; that only such reforms process would work, which took measures to put Pakistan International Airlines in order, including taking action against those who might be responsible for the wrongs committed in the past, by which a profit-earning organization was turned into a loss making enterprise, and that such a reforms process must also provide a system of checks and balances for the proper running of the affairs of the organization---Supreme Court, in circumstances, directed that Chairman, Pakistan International Airlines and Director-General, Civil Aviation Authority should ensure that pending decision of the present matter no flight was delayed and if there were unavoidable circumstances, they must inform the passengers, well in time; that said officials should put up a comprehensive plan which they intended to initiate for the purpose of improving the condition of Pakistan International Airlines, airports, etc.; that concerned officials of the Airline should file complete documents in respect of appointments of General Sales Agents outside the country and local agents within the country and the manner in which tenders were given and the procedure adopted for the same; that concerned officials of the Airline should place on record complete record of the employees who were appointed by following the procedure in a transparent manner, which had been laid down for making recruitment, and those who were appointed without following the procedure by using the phrase "contract employees" etc. and to ensure that in future no such appointment took place.

Zafar Iqbal Jhagra and Ms. Marvi Memon, Petitioners in person.

Zafar Mehmood Mughal, D.A.-G. and M.S. Khattak, Advocate-on-Record for the Federation.

Raja Muhammad Bashir, Senior Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record, Haroon Abbasi, Senior Law Officer, Asif Rauf, Manager Legal, Waqar A. Siddiqui, G.M. Accounting, Tahir Niaz, G.M. Marketing, Aamir Ali, Chief Engineer and Rashid Ahmad, G.M. (P/R) for PIA.

Afnan Karim Kundi, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record and Obaid-ur-Rehman Abbasi, Senior Law Officer for CAA.

Date of hearing: 14th December, 2012.

2013 S C M R 357

[Supreme Court of Pakistan]

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

MUKHTIAR AHMAD and others---Petitioners

Versus

Haji MUHAMMAD SALEEM and another---Respondents

Criminal Petition No.63-P of 2010, decided on 12th December, 2012.

(On appeal from judgment dated 14-5-2010 of the Peshawar High Court, Peshawar, passed in Criminal Miscellaneous No.174 of 2009 with Criminal Miscellaneous No.18 of 2010).

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

----S. 145---Dispute concerning land likely to cause breach of peace---Possession of a party, issue of---Jurisdiction of Magistrate---Scope---Provision of S.145, Cr.P.C. clearly envisaged apprehension of breach of peace as a jurisdictional requirement---Issue of possession of a party could only be gone into by a Magistrate after his jurisdictional requirement was satisfied.

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

----S. 145---Dispute concerning land likely to cause breach of peace---Purpose of S.145, Cr.P.C.---Scope---Section 145, Cr.P.C. did not authorize a Magistrate to exercise jurisdiction on mere existence of a dispute relating to an immovable property---Purpose of S.145, Cr.P.C. was to prevent imminent apprehension of breach of peace over immovable or movable property.

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

----Ss. 145 & 146---Dispute concerning land likely to cause breach of peace---Powers of Magistrate under S.145, Cr.P.C.---Scope---Attachment of disputed property--- Scope--- Magistrate on receipt of an application from a party had to pass an order under S.145(1), Cr.P.C.---Magistrate was required to call a report from the police and after perusal of the same, if he was satisfied from such report or from any other information that there existed a dispute between the parties in respect of the land, which was likely to cause breach of peace, he might pass an interim order in terms of S.145(4), Cr.P.C.---Where the material was not sufficient to pass an interim order, Magistrate might hold an inquiry by examining the parties and pass a final order restoring possession to a party which was dispossessed two months prior to its wrongful dispossession under S.145(6), Cr.P.C.---Where, during inquiry, material brought on record was not sufficient to record a finding over possession, Magistrate might order attachment of property in terms of S.146(1), Cr.P.C.---Section 145, Cr.P.C. did not curtail the powers of the Magistrate to pass a final order under S.145(6), Cr.P.C. after holding inquiry, in case of his failure to pass preliminary order under S.145(4), Cr.P.C. within two months---Only restriction imposed in such regard was that party to whom possession was restored must have been dispossessed within two months of the complaint.

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

----S. 145---Dispute concerning land likely to cause breach of peace---Inquiry to regulate possession---Magistrate, powers of---Scope---Magistrate while conducting inquiry in terms of S.145, Cr.P.C. was not competent to decide either title of the property or its right to possession---Section 145, Cr.P.C. only empowered the Magistrate to make an enquiry to regulate possession of the property in dispute for the time being to avert apprehension of breach of peace.

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

----S. 145---Dispute concerning land likely to cause breach of peace---Demolition of disputed property---New construction raised over such property with ulterior motives--- Effect--- Restoration of possession of property to complainant---Powers of Magistrate under S.145, Cr.P.C.---Scope---Complainant (respondent) filed a complaint under S.145, Cr.P.C. before the Magistrate contending that he was owner of disputed property and had put a tenant therein, who was forcibly evicted by the accused persons (petitioners)---Magistrate called report from police in terms of S.145, Cr.P.C., but no report was submitted by the police---High Court directed Magistrate to consider complaint of complainant and also directed both parties to appear before the Magistrate---Magistrate on receipt of police report, considered that there was imminent danger of breach of peace and accordingly passed order for attachment of property, without determining issue of possession---First Appellate Court directed the Station House Officer (SHO) to put complainant in possession of disputed property---Appeal filed against order of First Appellate Court was dismissed by High Court---Validity---Station House Officer had deposed that he conducted inquiry and confirmed that premises in dispute was initially in the possession of complainant and after his dispossession by the accused persons, the premises was demolished and shops were constructed thereon, and that there was a strong apprehension of breach of peace over the disputed premises---Station House Officer stated in his cross-examination that shops constructed on the demolished premises were ordered to be attached by the Magistrate---First Appellate Court and High Court had rightly ordered restoration of possession of disputed property to complainant in view of the evidence of Station House Officer (SHO) and complainant---Accused persons demolished subject property after dispossession of complainant and raised new construction on it with ulterior motives---Magistrate did not decide the issue of possession of disputed property despite availability of sufficient evidence on record---Orders of First Appellate Court and High Court were in conformity with provisions of S.145, Cr.P.C.---Petition for leave to appeal was refused in circumstances.

Abdul Sattar Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record for Petitioners.

Gul Sadbar Khan, Advocate Supreme Court for Respondent No.1.

Zahid Yousaf, A.A.-G. for the State.

Date of hearing: 12th December, 2012.

2013 S C M R 363

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Muhammad Ather Saeed, JJ

M. NAZIR AHMAD---Petitioner

Versus

MUHAMMAD ASLAM and others---Respondents

Civil Petition No.883-L of 2012, decided on 7th December, 2012.

(Against the judgment dated 10-4-2012 of the Lahore High Court, Lahore passed in Writ Petition No.13031 of 2012).

(a) West Pakistan Land Revenue Rules, 1968---

----R. 17---Lambardar---Appointment of---Eligibility---Any person who was a government/civil servant was not eligible to be appointed to the post of Lambardar.

Muhammad Yousaf v. Member, Board of Revenue and 4 others 1996 SCMR 1581 rel.

(b) Civil service---

----Appointment---Eligibility for appointment to the post---Scope---Candidate for a post not qualifying for the same on the cut-off date set-out for applying to the post, but attaining the threshold of eligibility before passing of final order of appointment---Question as to whether such candidate should be considered for the post on merits by the appointing authority---No universal or general rule could be laid down for such a candidate, and it all depended upon the nature of office/slot, the relevant rules under which the appointment was to be made, and the requirement/conditions mentioned in the invitation/publication/ advertisement, requiring the persons to apply for the slot.

(c) West Pakistan Land Revenue Rules, 1968---

----R. 17---Post of Lambardar---Nature---Post of Lambardar was an administrative post of its own kind, which had the colour and tinge of any honorary post and assignment---Post of Lambardar was neither in the nature of government service nor a profession or an avocation having nexus to an office of profit.

(d) West Pakistan Land Revenue Rules, 1968---

----Rr. 17 & 22---Lambardar---Right of appointment---Scope---No person had a vested right to be appointed as a Lambardar, rather Revenue authorities made a selection for the post as per criteria set out in Rule 17 of West Pakistan Land Revenue Rules, 1968 and had to find the most suitable candidate for the job who could capably discharge the duties inter alia in terms of Rule 22 of the said Rules.

(e) West Pakistan Land Revenue Rules, 1968---

----R. 17---West Pakistan Board of Revenue Act (XI of 1957), S. 8---Civil Procedure Code (V of 1908), O. XLVII, R. 1---Lambardar---Eligibility for appointment---Scope---Candidate for the post of Lambardar not qualifying for the same on the cut-off date set-out for applying to the post, but attaining the threshold of eligibility before passing of appointment order by the competent authority/Deputy District Officer (Revenue) (DDOR)---Petitioner applied for the post of Lambardar during his service as a Government servant, however since his service was an impediment to his appointment to the post, therefore, he retired from Government service before the matter of appointment was finally decided by the Deputy District Officer (Revenue) (DDOR)---Deputy District Officer (Revenue) appointed respondent to the post of Lambardar as he was considered to be better than other candidates including the petitioner, however no specific comparison of qualifications was made---Appeals filed by petitioner before Executive District Officer (Revenue) and Board of Revenue (Board) respectively were also dismissed, however review petition filed by petitioner before the Board was accepted and after drawing comparisons between qualification of petitioner and respondent, petitioner was appointed to the post of Lambardar---Constitutional petition filed by respondent before High Court against review order of Board was accepted and it was held that no case for review was made out within the parameters of S.8 of West Pakistan Board of Revenue Act, 1957---Contention on behalf of respondent was that petitioner was not qualified for the post of Lambardar as date of filing of application by a candidate was relevant for considering his eligibility or ineligibility for the post and not any subsequent event---Validity---Relevance and importance of the date for applying to the post (Lambardar) was primarily meant to ascertain as to who were the persons interested in the job, so that they could come forward and apply for the same by a given date---Candidate who did not cross the threshold of qualification or where there was an impediment in his way at the date of applying for appointment, but crossed the threshold or removed the hurdle in his way while the matter was being processed and scrutinized and before final decision was taken by the competent forum, such candidate/applicant, notwithstanding the ineligibility on the date of applying should be considered by the revenue authorities for the post/assignment---Petitioner, being a Government servant, applied within the given time, and after knowing that his Government service was an impediment to his appointment to the post, he sacrificed his Government job and sought early retirement, and all of this was done before any final order of appointment could be passed by the Deputy District Officer (Revenue) (DDOR)---Petitioner had become eligible for consideration in such circumstances, but he was discarded by the Deputy District Officer (Revenue) (DDOR) without assigning any good reasons or comparison of his qualifications with the respondent--- Petitioner was also illegally ignored by Executive District Officer (Revenue) and Board of Revenue (Board), which subsequently reviewed its order in terms of S.8 of West Pakistan Board of Revenue Act, 1957, read with O. XLVII, R.1, C.P.C.---High Court should have not interfered with the review order passed by the Board, especially when it was visible on the record that the petitioner in all respects, such as, land holding, education, antecedents etc. was more suitable for the job than the respondent--- Petition for leave to appeal was converted into appeal by Supreme Court and allowed, impugned order of High Court was set aside and the review order passed by the Board was upheld.

Government of N.-W.F.P. Health and Social Welfare Department v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1524; Dr. Muhammad Hussain v. Principal, Ayub Medical College and another PLD 2003 SC 143; Muhammad Tariq Raza v. Province of Punjab and others 1993 MLD 2332; Miss Sobia Hadi v. The Principal, K.E. Medical College/Chairman, Admission Board of the Medical College of Punjab Lahore PLD 1993 Lah. 673; Muhammad Hussain v. Muhammad Siddiqui and 2 others PLD 1988 SC 731 and Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through Legal Heirs PLD 2005 SC 311 distinguished.

(f) West Pakistan Land Revenue Rules, 1968---

----R. 17---West Pakistan Board of Revenue Act (XI of 1957), S. 8---Civil Procedure Code (V of 1908), O. XLVII, R. 1---Constitution of Pakistan, Art. 199---Appointment of Lambardar affirmed by Board of Revenue in review---Interference in such appointment by the High Court in its constitutional jurisdiction---Scope---High Court while considering cases of appointment of Lambardar was not supposed to sit as a court of appeal, but only had to examine, if there was any jurisdictional error in the orders passed by revenue hierarchy and whether such order was patently against the express provisions of law or law laid down by superior courts and/or perverse, arbitrary, capricious, illogical and against the record.

Malik Noor Muhammad Awan, Advocate Supreme Court for Petitioner.

Jehangir A. Jhoja, Advocate Supreme Court and Zubair Afzal Rana, Advocate Supreme Court for Respondent No.1.

Date of hearing: 7th December, 2012.

2013 S C M R 372

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

G. M. PAKISTAN RAILWAYS and others---Appellants

Versus

MUHAMMAD RAFIQUE---Respondent

Civil Appeal No.600-L of 2012, decided on 19th December, 2012.

(On appeal from the judgment of the Federal Service Tribunal dated 16-11-2011 passed in Appeal No.58(L)/2007).

(a) Pakistan Railways Personnel Manual---

----Para 1725(a)--- Constitution of Pakistan, Art. 212(3)--­ Civil service---Misconduct---Penalty---Enhancement of penalty after issuance of show-cause notice---Legality---Show-cause notice not providing reasons for enhancement of penalty---Effect---Civil servant/accused, who was serving as Fuel clerk, was proceeded against for misconduct as he allegedly maintained a bogus record on the asking of his superiors/co-accused---Competent authority awarded civil servant penalty of reduction by two steps in time scale for two years---General Manager of Railways/Appellate authority during hearing of appeal of some of the co-accused issued suo motu notice of enhancement of penalty to civil servant and thereafter enhanced the penalty to removal from service---Service Tribunal allowed appeal of civil servant and restored original penalty of reduction by two steps in time scale for two years---Validity---Nature of misconduct on part of civil servant/accused was distinct from that of the co-accused person, who were his immediate superiors and on whose asking he had made bogus entries---General Manager Railways/Appellate authority had to give prior notice to the civil servant in terms of Paragraph 1725(a) of Pakistan Railways Personnel Manual and such notice had to specify the reasons for the proposed enhancement in penalty---Show-cause notice issued to civil servant did not explicitly give reasons for enhancement of penalty and merely mentioned that penalty originally awarded did not commensurate with the gravity of the offence---Finding of Service Tribunal were not arbitrary, against the record or the law declared---Railway authorities/petitioners had not raised any question of public importance within the meaning of Art.212(3) of the Constitution---Petition for leave to appeal was dismissed in circumstances and leave was refused.

(b) Civil service---

----Minor/major penalty, award of---Prerequisite---Competent authority while awarding the penalty had to keep in mind the gravity of the charge.

Hafiz M. Saeed, Advocate Supreme Court for Appellants.

Respondent in person.

Date of hearing: 19th December, 2012.

2013 S C M R 375

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Anwar Zaheer Jamali, JJ

Messrs PAKISTAN STEEL through Chairman/CEO---Petitioner

Versus

MUHAMMAD ASLAM CHAUDHRY and others---Respondents

C.P.L.A. No.1670 of 2012, decided on 13th December, 2012.

(On appeal from judgment of High Court of Sindh, Karachi dated 24-9-2012 passed in C.P. No.D-141 of 2011).

Constitution of Pakistan---

----Arts. 212, 199 & 185(3)---Removal from Service (Special Powers) Ordinance (XVII of 2000) (since repealed), S. 3--- Employee of Pakistan Steel Mills---Dismissal from service---Remedy for challenging order of dismissal---Scope---Departmental proceedings were initiated against employee of Pakistan Steel Mills under Removal from Service (Special Powers) Ordinance, 2000 (since repealed) and he was consequently dismissed from service with immediate effect---Departmental appeal of employee was also dismissed---Appeal by employee before Federal Service Tribunal was dismissed as being infructuous in view of the judgment of the Supreme Court in the case of Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602)---Employee filed constitutional petition before the High Court, which was allowed and his dismissal order was set aside and it was held that he was entitled to back benefits from date of his dismissal till his attaining age of superannuation and also to retirement benefits---Contention on behalf of Pakistan Steel Mills was that the Corporation (Mills) had no statutory rules, therefore, High Court had no jurisdiction in the matter---Deputy Attorney General contended that High Court had jurisdiction in the matter since action was taken against the employee under the Removal from Service (Special Powers) Ordinance, 2000---Validity---Admittedly terms and conditions of the employee had not been settled under Art.212 of the Constitution---Supreme Court granted leave to appeal to consider the question, whether, an employee of a Corporation like Pakistan Steel Mills, who was proceeded against under Removal from Service (Special Powers) Ordinance, 2000, would have no remedy to challenge such an order.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Civil Aviation Authority v. Javed Ahmad 2009 SCMR 956; Hyderabad Electric Supply Company v. Mushtaq Ali Brohi 2010 PSC 1392 and Executive Council Allam Iqbal Open University v. M. Tufail Hashmi 2010 SCMR 1484 ref.

Sanaullah Noor Ghori, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Respondent No.1 in person.

Raja Aleem Abbasi, Deputy Attorney-General for Respondents Nos.2 and 3 (on Court's Notice).

Date of hearing: 13th December, 2012.

2013 S C M R 378

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

MUHAMMAD YASIN and another---Petitioners

Versus

The STATE---Respondent

Jail Petition No.607 and Criminal Appeal No.373 of 2010, decided on 23rd November, 2012.

(Against the judgment dated 3-3-2010 passed by Lahore High Court, Lahore in Criminal Appeal No.223-J of 2006).

Penal Code (XLV of 1860)---

----Ss. 302(b)/324/337-F(iii)---Qatl-e-amd, attempt to commit qatl-e-amd, ghayr-jaifah-mutalahimah---Reappraisal of evidence---Sentence, reduction in---Sudden fight---Non-repetition of fire---Motive not fully established---Effect---Accused and co-accused allegedly killed the deceased and caused injuries to a witness during a sudden fight---Motive for the alleged occurrence was that accused and co-accused held a grudge due to a divorce obtained by their aunt, who was sister of deceased and mother of injured witness---Trial Court sentenced accused to undergo life imprisonment, while co-accused was sentenced to death---Validity---All prosecution witnesses and complainant were unanimous in narrating the occurrence and in nominating accused and co-accused for having fired at the deceased and for injuring the injured witness---Ocular account fully corroborated medical evidence on record---Witnesses remained steadfast during their cross-examination and no response could be elicited from them which could help the defence in any manner whatsoever---Although alleged motive for the occurrence was animus nursed by accused and co-accused due to the divorce obtained by their aunt, however strangely upon arriving at the scene of occurrence, they allegedly enquired about their aunt's son i.e. injured witness, rather than directing their anger at their aunt and her new husband, who were admittedly present at that time---Death of deceased and injuries caused to the injured witness were a result of sudden fight--- Accused and co-accused did not repeat their fire shots despite the fact that injured witness and others were at their complete mercy---Appeal was allowed, death sentence of co-accused was converted to life imprisonment---Life imprisonment of accused was set aside, and only sentences of five years and three years, awarded to him under Ss.324 and 337-F(iii), P.P.C. respectively, were maintained.

Ms. Aisha Tasneem, Advocate Supreme Court for Petitioners.

Ahmed Raza Gillani, Additional P.-G., Punjab for Respondent.

Date of hearing: 23rd November, 2012.

2013 S C M R 383

[Supreme Court of Pakistan]

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

AZHAR IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.151-L of 2012, decided on 12th December, 2012.

(Against the order dated 16-12-2009 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.828 of 2006).

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

----S. 302(b)--- Qatl-e-amd--- Reappraisal of evidence--- Prosecution failing to prove its case---Accused admitting to killing the deceased---Conviction awarded on sole basis of such admission---Legality---Both courts below had rejected version of prosecution in its entirety and then proceeded to convict and sentence the accused on the sole basis of his statement recorded under S.342, Cr.P.C., wherein he had advanced a plea of grave and sudden provocation---Prosecution had failed to prove its case against accused beyond reasonable doubt, therefore, he should have been acquitted, even if he had taken a plea and admitted to killing the deceased---Appeal was allowed, convictions and sentences recorded and upheld by courts below were set aside and accused was acquitted of the charge.

Waqar Ahmed v. Shaukat Ali and others 2006 SCMR 1139 rel.

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

----S. 302(b)---Qatl-e-amd, conviction for---Scope---Prosecution failing to prove its case against accused---Accused admitting to killing of deceased---Effect---Accused person was to be acquitted in such circumstances even if he had taken a plea and had thereby admitted killing the deceased.

Waqar Ahmed v. Shaukat Ali and others 2006 SCMR 1139 rel.

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

----S. 342---Statement of accused under S.342, Cr.P.C.---Exculpatory and inculpatory part of such statement, reliance on---Scope---Statement of an accused recorded under S.342, Cr.P.C. was to be accepted or rejected in its entirety and where the prosecution's evidence was found to be reliable and the exculpatory part of such statement was established to be false and excluded from consideration, then the inculpatory part of such statement might be read in support of prosecution's evidence.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520; Muhammad Tashfeen and others v. The State and others 2006 SCMR 577 and Faqir Muhammad and another v. The State PLD 2011 SC 796 rel.

Shahid Azeem, Advocate Supreme Court for Appellant.

Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 12th December, 2012.

2013 S C M R 385

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

GHULAM AHMED CHISHTI---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.364 of 2012, decided on 15th November, 2012.

(On appeal against the judgment dated 25-9-2012 passed by Lahore High Court, Lahore in Criminal Miscellaneous No.4190-B of 2012).

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

----S. 497--- Penal Code (XLV of 1860), Ss. 302/324/148/149/ 337-F(iii)/337-A(iii)---Pakistan Arms Ordinance (XX of 1965), S. 13---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, ghayr-jaifah-mutalahimah, shajjah-i-hashimah, possession of illegal weapons---Bail, refusal of---Statement of co-accused implicating accused for the offence---Effect---Accused and co-accused persons, while armed with weapons, allegedly ambushed the complainant party---Accused was specifically alleged to have fired at the deceased persons---Contentions of accused were that he was not in the country when the alleged occurrence took place, and that he had been falsely roped in the case due to criminal litigation between the parties---Validity---Accused was specifically named in the F.I.R. and motive was also attributed to him---During investigation plea of accused that he was out of the country had been partly accepted but he was involved to have abetted and conspired the alleged offence---Vehicle allegedly used by the accused side during the occurrence was recovered and weapons and bullets were found therein---Statement of owner of said vehicle was recorded, wherein he disclosed that he had a telephonic conversation with the accused, after which vehicle was handed over to a driver sent by the accused---Such statement of owner of vehicle was incriminating piece of evidence---Plea of alibi raised by accused could be considered by the Trial Court in the light of the evidence led by prosecution and defence inter alia the passport entries, air-tickets and airport entries---Trial Court could also consider allegation of conspiracy against accused---Petition for leave to appeal was dismissed in circumstances and accused was refused bail.

Zeeshan Akhter Zaidi v. State 1989 PCr.LJ 380; Muhammad Fayyaz Ahmad v. State 1976 SCMR 183; Hamid Ullah v. State 1987 PCr.LJ 342; Naseebullah Khan v. The State PLD 1986 Kar. 417; Raja Muhammad Irshad v. Muhammad Bashir Goraya 2006 SCMR 1292; Mamaras v. The State PLD 2009 SC 385; Muhammad Afzal v. The State 2012 SCMR 707; Khalida Bibi v. Nadeem Baig PLD 2009 SC 440 and Iqbal ur Rehman v. The State PLD 1974 SC 83 ref.

Raja Muhammad Irshad v. Muhammad Bashir Goraya 2006 SCMR 1292 and Naseem Malik v. The State 2004 SCMR 283 rel.

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

---S. 497---Qanun-e-Shahadat (10 of 1984), Art. 43---Bail---Statement of co-accused implicating accused for the offence---Evidentiary value---Scope---Such a statement could be used as a circumstantial piece of evidence even at bail stage to form a prima facie view about the involvement of a person.

Raja Muhammad Irshad v. Muhammad Bashir Goraya 2006 SCMR 1292 and Naseem Malik v. The State 2004 SCMR 283 rel.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for Petitioner.

Raja Aamir Abbas, Advocate Supreme Court for the Complainant.

Sadaqat Ali Khan, P.-G., Punjab, Ch. Zubair Ahmed Farooq, Additional P.-G., Abdul Qadir Qayyum, SSP, AIG, Discipline, Zahid Hussain Shirazi, SSP, Inv., M. Akhtar Ali Khan, SHO, P.S., Havelilakha, Okara and Muhammad Nazeer, S.I., P.S. Havelilakha, Okara for the State.

Date of hearing: 15th November, 2012.

2013 S C M R 392

[Supreme Court of Pakistan]

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

CHIEF SECRETARY, GOVERNMENT OF PUNJAB and others---Petitioners

Versus

Ch. IFTIKHAR AHMAD---Respondent

Civil Petition No.1292-L of 2012, decided on 10th October, 2012.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 26-4-2010 passed in I.C.A. No. 893 of 2010 in W.P. No.21585 of 2010).

(a) Civil service---

----Posthumous regularization of ad hoc appointee---Pensionary benefits of deceased civil servant---Entitlement of legal heir to such benefits---Scope---Deceased-civil servant was appointed as ad hoc lecturer but her services were terminated by Provincial Government (petitioner)---Subsequently Provincial Government recalled its termination orders and directed all ad hoc appointees to appear before a Selection Board to assess suitability of lecturers for holding posts---Civil servant in question did not appear before said Board due to her posting elsewhere, but later on moved the Service Tribunal for regularization, however by that time Selection Board had been disbanded---Service Tribunal directed competent authority to consider reconstitution of the Selection Board to assess suitability of civil servant for regularization of her services---Directions given by Service Tribunal were not complied with and civil servant died without getting any relief---Matter was pursued by husband/legal heir of civil servant and he moved the High Court, which held that deceased civil servant was entitled to have her services regularized as other ad hoc appointees were regularized without appearing before the Selection Board and consequently her husband/legal heir would be entitled to her pensionary benefits---Contentions on behalf of Provincial Government were that civil servant could not be regularized as she did not appear before the Selection Board, and that her husband/legal heir had no locus standi to pursue the matter since any matter pending before the Tribunal or Court relating to terms and conditions of a civil servant abated upon his or her death---Validity---Service Tribunal had already directed competent authority to constitute a Selection Board for considering regularization of civil servant and it was during pendency of application for implementation of said direction that she passed away---High Court had taken the view that since services of other ad hoc lecturers similarly placed as deceased civil servant had been regularized without appearing before Selection Board , therefore, she was also entitled to the same treatment---Peculiar benefits to which legal heirs of a civil servant were entitled did not abate upon death of a civil servant---Petition for leave to appeal was dismissed in circumstances.

Muhammad Nawaz v. Ministry of Finance 1991 SCMR 1192 and Muhammad Ashfaq v. Member (Revenue) Board of Revenue PLD 2008 SC 703 distinguished.

(b) Civil service---

----Pensionary benefits---Entitlement of legal heirs of civil servant to such benefits after his/her death---Scope---Although terms and conditions of service of a civil servant might abate upon his death but not peculiar benefits to which his legal heirs would become entitled.

Jawad Hassan, A.A.-G. for Petitioners.

Nemo for Respondent.

Date of hearing: 10th October, 2012.

2013 S C M R 395

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

DPO CHINIOT and others---Petitioners

Versus

MUHAMMAD AYUB---Respondent

Civil Petition No.441-L of 2012, decided on 17th December, 2012.

(On appeal from the judgment dated 4-1-2012 passed by Punjab Service Tribunal, Lahore in Appeal No.1934 of 2011).

Police Order (22 of 2002)---

----Arts. 23 & 2(xii)---Initiation of proceedings against sub-inspector---Competent authority---Scope---District Police Officer (DPO) initiated proceedings against sub-inspector/respondent--- Service Tribunal allowed appeal of sub-inspector mainly on the ground that competent authority to initiate proceedings against him was Regional Police Officer (RPO)---Legality---Order of Service Tribunal was violative of Arts.23 and 2(xii) of Police Order, 2002---Proceedings against sub-inspector were rightly initiated by the District Police Officer (DPO)---Petition for leave to appeal was converted into appeal and allowed, impugned judgment was set aside and appeal filed by sub-inspector was deemed to be pending before the Service Tribunal, which was to be decided afresh on merits.

Khawar Ikram Bhatti, Additional A.-G. and Shams ul Haq, DSP Legal, Chiniot for Petitioners.

Nemo for Respondent.

Date of hearing: 17th December, 2012.

2013 S C M R 397

[Supreme Court of Pakistan]

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

NIAZ RASOOL through Muhammad Bilal---Appellant

Versus

Mst. PARVEEN IKRAM and others---Respondents

Civil Appeal No.110 of 2011, decided on 26th July, 2012.

(On appeal against the judgment dated 31-1-2011 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in R.F.A. No.105 of 2008).

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XLI, R. 27(1)(b)---Suit for declaration---Plea of transfer of property as security---Production of additional evidence in Appellate Court---Scope---Plaintiff/respondent claimed that disputed house was transferred in the name of defendant/appellant only as security pursuant to some business that her (i.e. plaintiff's) husband was transacting on behalf of defendant---Defendant claimed that disputed house was transferred in his name after payment of consideration to the plaintiff---Plaintiff filed suit for declaration to the effect that she was owner of disputed house and never transferred the same to the defendant, and that transfer letter issued by concerned Housing Department was null and void being without consideration---Defendant did not appear in witness box before the Trial Court and instead his attorney appeared on his behalf---Suit of plaintiff was dismissed, however same was allowed by the High Court on appeal--- Defendant/appellant contended that plaintiff herself made an application before the Housing Department for transfer of the disputed house and admitted transfer of the same through sale; that plaintiff did not prove the fact that transfer of disputed house was for purposes of security; that plaintiff was not in possession of the house as its owner but only in her capacity as a tenant, and that he should be permitted to examine additional evidence in terms of O.XLI, R.27(1)(b), C.P.C., as same was necessary for the pronouncement of a balanced judgment---Validity---Plaintiff admitted in her examination-in-chief that she appeared before the concerned Housing Committee to affirm about the nature of the transfer but strangely such statement of hers was not seriously challenged during course of her cross-examination, nor was she confronted with any document showing that the house in dispute had ever been transferred through sale---Even if it was assumed that it was a sale, record did not show as to what, when, where and how consideration was paid---Fact that plaintiff retained possession of the disputed house, was another query which was not satisfactorily answered by the record---Defendant did not bring forth any credible oral and documentary evidence to prove that plaintiff was in possession of disputed house in her capacity as a tenant---Defendant did not appear in the witness box in person before the Trial Court, which left many things alleged unproved and unsubstantiated---Defendant could not be permitted to examine additional evidence in terms of O.XLI, R.27(1)(b), C.P.C. since infirmities in his evidence were too fundamental to be cured by the evidence sought to be examined by him---Impugned judgment of High Court was based on proper appreciation of evidence and merited no interference---Appeal was dismissed accordingly.

Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051; Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822 and Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151 distinguished.

Abdur Rashid Awan, Advocate Supreme Court for Appellant.

Raja Ikram Amin Minhas, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos. 1 and 2.

Date of hearing: 26th July, 2012.

2013 S C M R 461

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Dr. MUHAMMAD TAHIR-UL-QADRI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary M/O Law, Islamabad and others---Respondents

Constitution Petition No.5 of 2013, decided on 13th February, 2013.

(Challenging the Constitution of Election Commission of Pakistan).

(a) Constitution of Pakistan---

----Arts. 218, 63(1)(c) & 184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the constitution of Election Commission of Pakistan---Maintainability---Locus standi of person holding dual citizenship to file a constitutional petition---Scope---Petitioner had failed to make out a case for exercising the discretionary jurisdiction of Supreme Court under Art.184(3) of the Constitution since violation of any of the Fundamental Rights under Chapter 1 of Part II the Constitution had neither been listed in the petition nor established during course of arguments---Petitioner had also failed to prove his bona fides to invoke the jurisdiction of the Supreme Court coupled with the fact that he had no locus standi to claim relief as prayed for in the present petition, inter alia, for the reasons that being a holder of dual citizenship, he was not qualified to contest the election to the Parliament in view of the constitutional bar under Art.63(1)(c) of the Constitution--- Constitutional petition was dismissed in circumstances.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan PLD 2012 SC 1089 ref.

(b) Constitution of Pakistan---

----Art. 51(2)(c)---Electoral Rolls Act (XXI of 1974), S.6---Person holding dual citizenship---Overseas Pakistanis---Right to vote in general elections conducted in Pakistan---Scope---Overseas Pakistani, whose name had been incorporated in the electoral rolls, could exercise his right of vote, as such right was recognized under the Constitution.

Yasmin Khan v. Election Commission of Pakistan 1994 SCMR 113 ref.

(c) Constitution of Pakistan---

----Arts. 204(3), 218 & 184(3)---Contempt of Court Ordinance (V of 2003, S.3---Constitutional petition under Art.184(3) of the Constitution challenging the constitution of Election Commission of Pakistan---Contempt of Supreme Court---Exercise of restraint by the Supreme Court---Petitioner made uncalled for aspersions against Members of the Bench during his arguments, which prima facie tantamount to undermine its authority calling for action against the petitioner for contempt of court under Art.204(3) of the Constitution read with S.3 of the Contempt of Court Ordinance, 2003---Supreme Court, however, while exercising restraint, decided not to proceed against the petitioner following the principle that jurisdiction for contempt of court had to be exercised sparingly on case to case basis.

Petitioner in person.

Irfan Qadir, A.-G. for Pakistan on Court's Notice and for the Federation (R - 1 & 3).

Muhammad Munir Peracha, Senior Advocate Supreme Court, Mehmood A. Sheikh and Abdul Rehman, Additional D.-G. Legal for Election Commission.

Muhammad Latif Qureshi, Joint Secy. National Assembly for Parliamentary Committee.

Dates of hearing: 11th to 13th February, 2013.

2013 S C M R 464

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Muhammad Ather Saeed, JJ

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

Versus

MUHAMMAD AMIN (DECEASED) through L.Rs. and others---Respondents

Civil Petition No.1657-L of 2010, decided on 6th December, 2012.

(Against the order dated 6-7-2010 of the Lahore High Court, Multan Bench, Multan passed in C.M. No. 929 of 2009 in Writ Petition No.5441 of 2006).

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

----O.I, R. 3---Suit against dead defendant/respondent---Effect---Where a suit/lis was against only one defendant/respondent of the case, it shall be invalidly instituted being against a sole dead person (defendant) and shall be a nullity in the eyes of law as a whole; it shall be a still born suit/lis, an altogether dead matter, which could not be revived; it shall, thus not merely be a defect which could be cured, rather fatal blow to the cause---Where, however the lis was instigated against more than one defendants/respondents and out of them one or few were dead, while the other(s) was/were alive, in such a situation, it shall be a validly instituted suit/lis in respect of the respondent(s), who were alive, but invalid qua those, who were dead.

Malik Bashir Ahmad Khan and another v. Qasim Ali and 12 others PLD 2003 Lah. 615 approved.

Nabi Bakhsh v. Malik Muhammad Akram, Settlement Commissioner and others PLD 1969 Lah. 880; The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82 and Ch. Muhammad Tufail Khan alias Tufaul Muhammad through Legal Representatives v. Zarai Taraqiati Bank Limited through Branch Manager PLD 2007 Lah. 180 ref.

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

----O. XXIII, R.1---Withdrawal of suit or abandonment of part of claim---Institution of a fresh suit with permission of court in respect of subject matter of withdrawn suit or claim---Scope---Order XXIII, R.1, C.P.C. entitled the plaintiff of a case to withdraw his suit and/or abandon his claim or a part thereof, against all or any of the defendants, at any stage of the proceedings and this was his absolute privilege and prerogative---Where the plaintiff exercised such privilege he shall be precluded from instituting a fresh suit on the basis of the same cause of action qua the same subject matter and against the same defendant(s), and such bar was absolute and conclusive---Order XXIII, R.1(2), C.P.C., however, was an exception to such a bar, in that, where a plaintiff wanted to file a fresh suit after the withdrawal of his pending suit on the basis of the same cause of action, on the same subject matter and against the same defendant(s), he shall then be obliged to seek the permission of the Court in such regard---Such permission shall not be granted as a matter of right or as a matter of course/routine, rather the judicial conscious of the Court should be satisfied that, if permission was not given the said suit shall fail on account of any formal defect, or that there were other sufficient grounds for allowing the plaintiff to withdraw the suit with the permission to institute a fresh suit.

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

----O. XXIII, R. 1(2)---Withdrawal of suit or abandonment of part of claim---Institution of a fresh suit in respect of subject matter of withdrawn suit or part of a claim---Permission of the Court---Scope---Where the plaintiff was asking for permission of the Court to file a fresh suit, in his request in such behalf, he must elucidate and explain to the Court reason(s) for the withdrawal, justifying the permission of the Court---Court while allowing or disallowing the permission was duty bound to advert to the reasons propounded by the plaintiff and to pass a speaking order assigning reasons for its conclusion, meeting the objective requirement of rule of 'satisfaction' as envisaged by O.XXIII, R.1(2), C.P.C.---Where Court allowed the requisite permission, the order in such behalf must spell out the objectivity test of 'satisfaction' so that it could be gauged and judged that the request of the plaintiff for withdrawal was not tainted with an oblique and mala fide motive; it was not meant to cause harm and prejudice the defendant(s) and put him in an disadvantageous position, and the request was not motivated to misuse the authority of the Court and abuse the process of law---Where permission to file fresh suit was refused by the Court, the suit should not then be dismissed as withdrawn, because the plaintiff in such an eventuality might review his stance and then not press for his request of withdrawal at all, because otherwise he might have to face the bar and preclusion of filing a fresh suit, which bar he might not like to incur and might like to continue with the same suit.

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

----O. XXIII, R. 1(2)---Application for withdrawal of suit or abandonment of part of claim to institute a fresh suit---Court refusing application/permission in such regard---Effect---Where Court refused application/permission to withdraw suit or abandon claim or part thereof for purposes of instituting as fresh suit, the suit should not be dismissed simpliciter, rather the request for permission alone should be turned down and the suit should continue, leaving the plaintiff with the right to choose his further course of action and to decide whether he should withdraw the suit or not.

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

----O. XXIII, R. 1(2)--- Application for withdrawal of suit or abandonment of part of claim to institute fresh suit---Applicant/plaintiff seeking permission of Court in such regard---Court neither expressly granting permission nor refusing the same, but simply ordering that suit "dismissed as withdrawn", without assigning any reasons---Expression "dismissed as with drawn"---Connotation---Where such request of applicant/plaintiff was not declined in express and clear words, yet the suit was 'dismissed as withdrawn' without recording any reasons, it should be implied, considered and deemed that the Court had found it to be a fit case for granting permission to applicant/plaintiff to file fresh suit, because otherwise serious prejudice would be caused to the applicant/plaintiff, who would have to face the bar provided under O.XXIII, R.1(3), C.P.C.

S. Nisar Ali v. Feroze Din Rana and another 1969 SCMR 933 and Karim Gul and another v. Shahzad Gul and another 1970 SCMR 141 rel.

Tehsil Council Rajanpur through Nazim v. Additional District Judge, Rajanpur and 11 others 2005 MLD 1597 ref.

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

----O.XXIII, R.1---Constitution of Pakistan, Art. 185(3)---Withdrawal of suit with permission of Court to file a fresh suit---Scope---During pendency of a civil suit before the Trial Court, plaintiff/petitioner filed an application for withdrawal of the suit, with the request for permission of Court to be granted to the plaintiff to file a writ petition before the High Court---Trial Court dismissed suit simpliciter as withdrawn, without assigning any reasons and without expressly mentioning in its order whether permission was granted to file fresh suit/writ petition before High Court---High Court dismissed writ petition filed by plaintiff on the basis that bar contained under O.XXIII, R.1(1), C.P.C. was attracted to the case---Contention on behalf of plaintiff was that when the Trial Court had not specifically refused permission for filing fresh suit/writ petition before High Court and dismissed the suit simply as having been withdrawn, then it should be inferred and implied that permission to file fresh suit on basis of same cause of action was granted by the Court and the bar contained under O.XXIII, R.1(1), C.P.C. would not be attracted to the case---Validity---Plaintiff, in the present case, in his application before the Trial Court did mention that he should be permitted to withdraw the suit with an object to file a writ petition before the High Court, however when said application was taken up by the Trial Court, counsel for plaintiff did not press it for whatever reasons and his counsel simply stated that he would not like to pursue the matter and would like to withdraw---Such withdrawal by the plaintiff was withdrawal simpliciter as envisaged and covered by the provisions of O.XVIII, R.1(1), C.P.C., without there being any nexus and recourse to O.XVIII, R.1(2), C.P.C.---Plaintiff in such circumstances could not file a fresh suit/writ petition before the High Court---Petition for leave to appeal was dismissed in circumstances.

S. Nisar Ali v. Feroze Din Rana and another 1969 SCMR 933; Karim Gul and another v. Shahzad Gul and another 1970 SCMR 141; Tehsil Council Rajanpur through Nazim v. Additional District Judge, Rajanpur and 11 others 2005 MLD 1597 and Absar Hussain v. Syed Ahmed Qadri 2005 CLC 1616 ref.

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

----O.XXIII, R.1---Constitution of Pakistan, Art. 199---Bar contained under O.XXIII, R.1, C.P.C. against "filing of fresh suit"---Applicability of such bar to constitutional jurisdiction of High Court under Art.199 of the Constitution--- Scope--- High Court while exercising its constitutional jurisdiction under Art.199 of the Constitution in matters pertaining to civil nature could validly and duly resort to provisions of Civil Procedure Code, 1908, which shall be attracted and applied until and unless such application had been excluded by law.

Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; Province of Punjab through Collector, Sialkot v. Muhammad Irshad Bajwa 1999 SCMR 1555; Ardeshir Cowasjee and others v. Karachi Building Control Authority and others PLD 2004 SC 70 and Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 ref.

(h) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), Preamble---Constitutional jurisdiction of High Court--- Applicability of provisions of Civil Procedure Code, 1908---Scope---High Court while exercising its constitutional jurisdiction under Art.199 of the Constitution in matters pertaining to civil nature could validly and duly resort to provisions of Civil Procedure Code, 1908, which shall be attracted and applied until and unless such application had been excluded by law.

Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; Province of Punjab through Collector, Sialkot v. Muhammad Irshad Bajwa 1999 SCMR 1555; Ardeshir Cowasjee and others v. Karachi Building Control Authority and others PLD 2004 SC 70 and Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 ref.

Muhammad Shahzad Shaukat, Advocate Supreme Court and Muhmudul Islam, Advocate-on-Record for Petitioners.

Mian M. Mudassir Bodla, Advocate Supreme Court for Respondents Nos.1 to 3.

Date of hearing: 6th December, 2012.

2013 S C M R 478

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

MAKKAH WOOD BASED PANELS---Petitioner

Versus

G.M. SUI GAS PIPELINE LTD. and others---Respondents

Civil Petition No.2166-L of 2012, decided on 4th December, 2012.

(On appeal from the judgment dated 5-11-2012 passed by Lahore High Court, Lahore in F.A.O. No.477 of 2012).

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Constitution of Pakistan, Art. 185(3)---Recovery of arrears of gas bill and penalty---Furnishing of bank guarantee by alleged defaulter---Petitioner, alleged defaulter, agreeing to offer made by Gas Company regarding payment of the amount due---Petitioner failed to pay its arrears of gas bill and the penalty imposed on it due to pilferage/theft of gas---Petitioner filed suit for declaration and temporary injunction seeking a restraint order against Gas Company (respondent) to stop it from recovering the amount---Appellate Court directed petitioner to deposit 50% of arrears of gas bill and penalty calculated by Gas Company---Gas Company contended that if petitioner deposited total current bill and 50% of the penalty imposed within a week, and furnished bank guarantee for the remaining amount, then it would not disconnect the gas connection of petitioner---Validity---Petitioner agreed with the offer made by Gas Company---Both parties having taken a fair stand, petition for leave to appeal was allowed, impugned order of Appellate Court was set aside and petitioner was directed to deposit the amount in terms of the offer made by Gas Company within a period of 8 days and to furnish a bank guarantee for the remaining amount--- Gas authority was directed not to disconnect gas connection of petitioner till such period.

Muhammad Shahzad Shoukat, Advocate Supreme Court and Mahmood ul Islam, Advocate-on-Record for Petitioner.

Ms. Yasmeen Sehgal, D.A.-G. and Ch. Muhammad Sharif, Advocate Supreme Court, Law Officer Sui Gas Pipeline on Court's call.

Date of hearing: 4th December, 2012.

2013 S C M R 507

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, ACJ and Nasir-ul-Mulk, J

Malik GUL MUHAMMAD AWAN---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary M/o Finance and others---Respondents

Civil Petition No. 777-K of 2011, decided on 26th December, 2012.

(On appeal from the High Court of Sindh Karachi dated 24-6-2011 passed in HCAs. Nos.98 and 128 of 2009).

(a) Tort ---

----Suit for damages for mental agony and torture---Compensation, determination of---Plea for enhancement of damages, dismissal of---Plaintiff/petitioner closed down his business on account of financial losses and applied to the Sales Tax Department for de-registration of his business---Officials of the Department visited premises of plaintiff for verification purposes and allegedly maltreated him, demanded illegal gratification and kept him in confinement--- Material belonging to plaintiff was also allegedly confiscated by the Department---Plaintiff filed a civil suit against the Department for recovery of Rs.81.82 million as damages on account of mental agony and torture allegedly suffered by him---Single Judge of High Court decreed the suit and awarded damages of Rs. 100,000 to the plaintiff---Division Bench of High Court allowed appeal filed by plaintiff and increased the damages awarded to Rs. 10,00,000 with mark up at bank rate from the day of default till its realization---Plaintiff contended that Division Bench of High Court had not awarded damages commensurate with the humiliation, mental torture and agony suffered by him, and that he had certain documents to prove the extent of damages suffered by him, which documents could not be produced before the Single Judge or Division Bench of the High Court---Validity---Closure of business by plaintiff was not connected with the incident which led to the plaintiff's arrest and humiliation leading to filing of the suit and claim for damages--- Conduct of officials of the Department was untenable and there were concurrent findings that they had taken the law in their hands with motives that were not bona fide---Plaintiff claimed damages to the tune of Rs. 81.82 million but it had concurrently been found that he failed to substantiate the claim to the said extent by cogent evidence--- Documents available with the plaintiff to establish that amount of damages determined by the Division Bench of the High Court did not commensurate with the extent of shock and injury suffered by him, were never tendered in evidence during trial or appeal---Said documents were of no avail to the plaintiff at present stage---Plaintiff did not file any application for additional evidence at any stage---Concurrent findings of fact recorded by High Court were not against the record and the law declared---Petition was dismissed in circumstances---Constitution of Pakistan, Art. 185(3).

Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor PLD 1996 SC 737 rel.

(b) Damages---

----Award, of---Principle---Discretion---Scope---Awarding of damages was discretionary and said discretion had to be exercised in the light of the evidence led qua the extent of damages suffered by a party.

(c) Damages---

----Special damages, claim of---Principles---Person claiming special damages had to prove each item of loss with reference to the evidence brought on record.

(d) Damages---

----General damages, claim of---Principles---"Rule of Thumb" for awarding damages---Scope---General damages claimed for mental torture, agony, defamation and financial loss were to be assessed following the "Rule of Thumb" and said exercise fell in the discretionary jurisdiction of the court, which had to decide it in the facts and circumstances of each case.

Petitioner in person.

Nemo for Respondents Nos.1 and 2.

Nemo for Respondent No.3.

Nemo for other Respondents.

Date of hearing: 26th December, 2012.

2013 S C M R 511

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Maulana ABDUL HAQUE BALOCH and others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Industries and Mineral Development and others---Respondents

Civil Petition No.796 of 2007, C.M.As. Nos.4560, 4561 of 2009, C.M.A. No.116 of 2011, C.M.As. Nos.403 and 406 of 2012, Constitution Petitions Nos.68, 69 of 2010, C.M.As. Nos.3687 of 2010, 117, 151, 215, 324, 414, 690 of 2011, Criminal Original Petitions Nos.1 of 2011, 95 of 2012 in Constitution Petition No.69 of 2010, Criminal Miscellaneous Application No.8 of 2011 in Civil Petition No.796 of 2007, Constitution Petitions Nos.1, 4 of 2011, C.M.A. No.295 of 2011 and Human Rights Case No.5377-P of 2010, decided on 7th January, 2013.

(On appeal from the judgment of the High Court of Balochistan, Quetta dated 26-6-2007 passed in Constitutional Petition No.892 of 2006).

Balochistan Mining Concession Rules, 1970---

----R. 98 & Part III---Balochistan Mineral Rules, 2002, Divisions 3 & 5---Regulation of Mines and Oil Fields and Mineral Development (Government Control) Act (XXIV of 1948), S. 2---Contract Act (IX of 1872), S. 196---Constitution of Pakistan, Arts. 185(3) & 184(3)---Exploration licence and mining lease of copper/gold mines etc. in the province of Balochistan---Joint Venture exploration agreement between Government of Balochistan and respondent-company---Legality---Respondent-company completed exploration work, whereafter it submitted an application before the Mines Committee for grant of mining lease, however said application was dismissed---Appeal filed against order of Mines Committee was also dismissed by the concerned Department---Both said orders were not challenged by the respondent-company---Legality of Joint Venture agreement and relaxation of Balochistan Mining Concession Rules, 1970 made by Government of Balochistan were challenged before the High Court---High Court held that Joint Venture agreement and relaxation made to Balochistan Mining Concession Rules, 1970 was legal---Validity---Joint Venture exploration agreement, which was originally executed between an exploration-company and Balochistan Development Authority, suffered from certain legal deficiencies, therefore, an addendum to the said agreement was executed, which made drastic changes to the agreement, inasmuch as permission was granted for transfer or assignment of a party's interests in the agreement wholly or partly---Subsequent to the said addendum Government of Balochistan was made a Joint Venture partner and the Balochistan Development Authority represented itself as an agent of the former through ratification of agency---Serious question marks existed on the manner in which the said addendum was granted the authorization---By means of the said addendum, in the name of ratification in terms of S.196 of the Contract Act, 1872, instead of supplementing the Joint Venture agreement, its entire complexion was changed---Through a novation agreement 75% interest in the Joint Venture agreement and Exploration Licence belonging to the exploration-company was transferred to the respondent-company---Said novation agreement was purportedly made for the purpose of substituting the Joint Venture agreement, and Government of Balochistan was also made a party to the Joint Venture, which was not permissible under Balochistan Mineral Rules, 2002 as well as the Rules of Business of the Government of Balochistan---Government of Balochistan in purported exercise of the powers vested in it under the Balochistan Mineral Rules, 2002, granted relaxations in violation of Rule 98 of Balochistan Mining Concession Rules, 1970 as no reason was assigned for such relaxation---Respondent-company had invoked the jurisdiction of the original as well as the appellate authority under the Balochistan Mineral Rules, 2002, when mining lease was not granted to it, therefore it had submitted to the jurisdiction of said forums/authorities---Findings recorded by said forums/authorities operated adversely against the respondent-company and, for all intents and purposes, it had no claim of any nature whatsoever against the Government of Balochistan or the Government of Pakistan---Held, that Joint Venture exploration agreement in question was executed contrary to the provisions of the Mineral Development Act, 1948, the Mining Concession Rules, 1970, the Contract Act, 1872, and the Transfer of Property Act, 1882; that said agreement was even otherwise not valid, therefore, the same was illegal, void and non est; that addendum to the Joint Venture agreement, and subsequent Option Agreement, Alliance Agreement and Novation Agreement, which were based upon and emanated from the Joint Venture agreement were also illegal and void, and all said instruments did not confer any right on any company related to the agreement, including the respondent-company; that Exploration Licence held by respondent-company was tantamount to exploration contrary to rules and regulations as the claim of respondent-company was based on the Joint Venture agreement, which document/agreement itself had been held to be non est---Order accordingly.

Abdul Haq Baloch v. Government of Balochistan PLD 2011 SC 835 ref.

Raza Kazim, Senior Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record assisted by Usman Raza Jamil for Petitioners (in C.P. No.796 of 2007).

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

Barrister Zafarullah Khan, Advocate Supreme Court in person (in Constitutional Petition No.69 of 2010, Criminal O.Ps. Nos.1 of 2011 and 95 of 2012).

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

Tariq Asad, Advocate Supreme Court with Muhammad Azam Khan Sawati for Petitioners (in Constitutional Petition No.4 of 2011).

Hasnain Ibrahim Kazmi, Advocate Supreme Court for Applicant (in Criminal Miscellaneous No.8 of 2011).

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

M. Ikram Chaudhry, Advocate Supreme Court for Applicant (in C.M.A. No.215 of 2011).

Raja Abdul Rehman, Advocate Supreme Court for Applicant (in C.M.As. Nos.324 of 2011 and 718 of 2012).

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

Mir Aurangzeh, Advocate Supreme Court/Advocate-on-Record for Applicant (in C.M.A. No.690 of 2011).

Ms. Robina Shah, Social Worker in person (in C.M.A. No.2924 of 2012).

Amanullah Kanrani, AG, Ahmar Bilal Soofi, Advocate Supreme Court, M. Aslam Ghuman, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record with Zarbat Khan, Director, Azhar Ghaffar, Dy. Dir. (Mining) assisted by Noor Ahmed Zeb, Shahzad Haider and Usman Wasim for Government of Balochistan (Respondent No.1 in C.P. 796 of 2007, Respondents Nos.2, 3 and 5 in Constitutional Petition No.68 of 2010, Respondents Nos.3 and 4 in Constitutional Petition No.69 of 2010, Respondent No.1 in Constitutional Petition No.1 of 2011 and Respondents Nos.2 and 4 in Constitutional Petition No.4 of 2011).

Raja Abdul Ghafoor, Advocate-on-Record, Irshad Ali Khokhar, DG, Mineral and M. Iqbal, Dir. (Mining) for the Federation through M/o Petroleum and others (Respondent No.3 in C.P. 796 of 2007, Respondents Nos.1 and 4 in Constitutional Petition No.68 of 2010, Respondents Nos.1 and 2 in Constitutional Petition No.69 of 2010, Respondents Nos.2, 3 and 5 in Constitutional Petition No.1 of 2011 and Respondents Nos.1 and 8 in Constitutional Petition No.4 of 2011).

Khalid Anwar, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record, Mehr Khan Malik, Advocate-on-Record assisted by Barrister Zeeshan Adhi and Anas Makhdoom, Advocate for Tethyan Cooper Co. Pakistan (Respondent No. 4 in C.P. 796 of 2007, Respondent No.6 in Constitutional Petition No.69 of 2010, Respondent No.4 in Constitutional Petition No.1 of 2011 and Respondent No.6 in Constitutional Petition No.4 of 2011).

Mansoor Ahmed Sheikh, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Antofagasta Plc London & Barrick Gold Corp. Canada (Respondents Nos.5 and 7 in C.P. 796 of 2007).

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

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Sikandar Bashir Mohmand, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record assisted by Mustafa Aftab Sherpao and Hamid Ahmad for BHP Minerals (Respondent No.8 in C.P. No.796 of 2007 and Respondent No.5 in Constitutional Petition No.4 of 2011).

Hadi Shakeel Ahmad, Advocate Supreme Court for Balochistan Development Authority (Respondent No.2 in C.P. No.796 of 2007).

Qazi Ahmed Naeem Qureshi, Advocate Supreme Court for State Bank of Pakistan (Respondent No. 5 in Constitutional Petition No.69 of 2010).

Nemo for Dr. Samar Mubarakmand (Respondent No.6 in Constitutional Petitions Nos.68 of 2010 and 1 of 2011).

Nemo for Shaheen Sehbai and Ahmad Norani (Respondent No.7 in Constitutional Petition No.68 of 2010).

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

Shahid Kamal Khan, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Benway Corporation (Respondent No.7 in Constitutional Petition No.4 of 2011).

Nemo for TCC on Court Notice.

Dates of hearing: 13th - 16th, 19th - 23rd, 26th - 29th November, 3rd - 7th, 10th - 11th, 17th - 21st December, 2012.

2013 S C M R 544

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

KHALID MEHMOOD---Petitioner

Versus

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

Civil Petition No.912-L of 2011, decided on 5th December, 2012.

(On appeal from the judgment dated 31-1-2011 passed by Punjab Service Tribunal, Lahore in Appeal No.2530 of 2009).

Civil service---

----Promotion---Antedated promotion---Promotion with effect from date of availability of vacancy--- Civil servant (petitioner) was inducted in BS-17 and was subsequently given various assignments in BS-18 on current charge basis---Grievance of civil servant was that he should have been considered for promotion with effect from the date when the post in BS-18 fell vacant--- Service Tribunal dismissed appeal filed by civil servant--- Validity--- Civil servant was inducted into service in BS-17--- Subsequently he was promoted to BS-18 on current-charge basis, however by that time he was eligible and qualified to be promoted to BS-18 and even vacancies were available---Petition for leave to appeal to Supreme Court was converted into appeal and allowed, and competent authority was directed to consider civil servant for promotion to BS-18 with effect from the date when the vacancy occurred, provided he was qualified to be considered for the same.

Government of N.-W.F.P. v. Buner Khan 1985 SCMR 1158; Islamic Republic of Pakistan v. Abdul Karim, Deputy Accountant General, N.-W.F.P. 1978 SCMR 289 and Abu Saeed v. Government of N.-W.F.P. 1990 SCMR 1623 rel.

Asif Nazir Awan, Advocate Supreme Court for Petitioner.

Khawar Ikram Bhatti, Additional A.-G. on Court's Call.

Date of hearing: 5th December, 2012.

2013 S C M R 547

[Supreme Court of Pakistan]

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

HAKIM KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.93 of 2011, decided on 21st November, 2012.

(On appeal from the judgment/order dated 11-12-2008 passed by Lahore High Court, Rawalpindi Bench in Cr. A. 427-T of 2005).

Pakistan Arms Ordinance (XX of 1965)---

----S. 13-A (1)(c)---Criminal Procedure Code (V of 1898), S.103---Unlicensed possession of arms and rockets etc.---Appreciation of evidence---Recovery of arms/ammunition on pointation of accused while in police custody---Police witnesses, evidence of---Scope---Non-association of private witnesses during recovery---Scope---Accused was in custody of police in connection with a crime and during interrogation he allegedly led the police to a place where he had hidden a huge quantity of arms/ammunitions including a rocket launcher---Trial Court convicted and sentenced accused under S.13-A(1)(c) of Pakistan Arms Ordinance, 1965---Appeal filed by accused before the High Court was also dismissed---Contentions of accused were that serious prejudice was caused to his defence as he was not represented by any counsel before the High Court; that no one from the public was associated at the time of alleged recovery; that alleged recovery was planted upon him while he was in custody of the police, and that he was implicated in the present case as he wanted to take legal action against the police for committing a fake police encounter---Validity---Accused was properly defended before Trial Court where his defence counsel was afforded every opportunity to cross-examine the prosecution witnesses---Counsel for accused was heard at length during proceedings of present appeal and entire evidence was appraised, therefore, any prejudice caused to accused stood cured---Recovery was made from a concealed place inaccessible to general public and such place was within the knowledge of the accused, which fact by itself indicated that recovered arms/ammunitions were in his possession and control---No inhabitant lived on or around the place from where recovery was effected, therefore, no witness from the public could have been made witness to the recovery---Recovery had been witnessed by police officials and they had no personal reason to falsely depose against the accused---Accused did not produce any evidence to support his contention that he was implicated in the case since he wanted to take legal action against the police---Appeal was dismissed in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Ch. Zubair Ahmed Farooq, A.P.-G. for the State.

Date of hearing: 21st November, 2012.

2013 S C M R 551

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

BAGH ALI---Petitioner

Versus

Mst. AYESHA and others---Respondents

Civil Petition No.1313-L of 2012, decided on 22nd November, 2012.

(On appeal from the judgment dated 6-6-2012 passed by Lahore High Court, Bahawalnagar Bench in Civil Revision No.75-D/2004/BWP).

Specific Relief Act (I of 1877)---

----S. 12---Transfer of Property Act (IV of 1882), S.52---Constitution of Pakistan, Art. 185(3)---Suit for specific performance---Lis pendens, principle of---Applicability---Scope---Suit relating to disputed property filed before its alleged purchase---Suit for specific performance qua disputed property filed by plaintiff/respondent was decreed by Trial Court, whereafter it was affirmed by the Appellate Court and defendant's appeal was dismissed---Contention of defendant was that he was bona fide purchaser without notice and suit for specific performance could not have been decreed---Validity---Defendant had not denied that suit for specific performance about disputed property was filed in the year 1992, whereas the defendant had allegedly purchased the said property in the year 1993---Defendant's case was hit by the principle of lis pendens---Judgments and decrees passed by courts below were unexceptionable---Petition for leave to appeal was dismissed in circumstances and leave was refused.

Muhammad Ashraf Butt v. Muhammad Asif Bhatti PLD 2007 SC 905 rel.

Rana Habib ur Rehman Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd November, 2012.

2013 S C M R 559

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, ACJ and Nasir-ul-Mulk, J

SECRETARY ESTABLISHMENT, GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Petitioners

Versus

Syed SHAMSHER KHAN and 3 others---Respondents

Civil Petitions Nos.494-P to 497-P of 2011, decided on 27th December, 2012.

(On appeal from the judgment dated 8-7-2011 passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Appeals Nos.1270 of 2010, 312, 313 and 314 of 2011).

Constitution of Pakistan---

----Arts. 212(3) & 25---Service Tribunals Act (LXX of 1973), S.4(1)---Civil service---Overtime allowance, entitlement to---Discrimination in payment of overtime allowance---"Equal pay for equal work", principle of--- Applicability--- Service Tribunal, jurisdiction of--- Scope---Respondents were working as drivers attached with members of a provincial Service Tribunal---Provincial Finance Department allowed overtime allowance to drivers attached with the Judges of the High Court and Provincial Secretariat---Respondents claimed similar overtime allowance, which was refused by the Finance Department---Departmental appeal of respondents also failed, whereafter they filed appeals before the Service Tribunal, which were allowed and it was found that respondents were entitled to overtime allowance---Contentions on behalf of Provincial Government/petitioner were that Service Tribunal had no jurisdiction to grant overtime allowance to respondents, and that respondents did not deserve overtime allowance as they did not work late---Validity---Jurisdiction of Service Tribunal extended to matters relatable to the terms and conditions of service---Refusal of respondent's claim for overtime allowance was a final order and was appealable provided it pertained to the terms and conditions of their service---Admittedly respondents were working overtime---Finance Department had not disputed the fact that respondents were working overtime and nature of their job was similar to those drivers who had been granted overtime allowance in the Province---Provincial Government had not specifically pleaded denial of overtime allowance on the basis of reasonable classification---Impugned judgment of Service Tribunal was unexceptionable and no question of public importance had been raised within the meaning of Art.212(3) of the Constitution to warrant interference---Petition for leave to appeal was dismissed in circumstances and leave was refused.

I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 and Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 rel.

Naimat Ullah Butt v. Government of the Punjab 1988 SCMR 1453; Muhammad Farid Khattak v. Chief Secretary, Government of N.-W.F.P. 2009 SCMR 980; Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44 and Zafar Iqbal and another v. Director, Secondary Education, Multan 2006 SCMR 1427 distinguished.

Syed Arshad Hussain Shah, Additional A.-G. for Petitioners.

Abdur Raheem Bhatti, Advocate Supreme Court as Amicus Curiae.

Respondent in person (in C.P. 494-P of 2011).

Date of hearing: 27th December, 2012.

2013 S C M R 565

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

The STATE through Mehmood Ahmed Butt---Petitioner

Versus

SHARAF-UD-DIN SHEIKH and another---Respondents

Criminal Petition No.1022-L of 2010, decided on 16th July, 2012.

(Against judgment dated 23-9-2010 of Lahore High Court, Lahore, passed in Criminal Appeal No.1862 of 2010).

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

----S. 417--- Constitution of Pakistan, Art. 185(3)--- Non-speaking judgment in appeal against acquittal---Effect---Appeal against acquittal of accused filed by complainant was dismissed by the High Court by observing that judgment of Trial Court was in accordance with law; that once an accused was acquitted by a competent court, double presumption of innocence was attached to the case, and that no interference was required in the judgment of Trial Court---Question was as to whether impugned judgment of High Court being a non-speaking judgment was sustainable in the eyes of law--- Although while dismissing appeal against acquittal, High Court applied the principle of double presumption of innocence in view of the order of acquittal passed by the Trial Court, but under the circumstances of the case High Court should have considered the factual as well as legal aspects of the case before applying the said principle in favour of accused---Present case deserved to be remanded to the High Court for re-writing of judgment, keeping in view the material available on record---Petition for leave to appeal was converted into appeal and allowed, and case was remanded to the High Court accordingly.

Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 ref.

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

----S. 417--- Appeal against acquittal--- Double presumption of innocence in favour of accused, principle of---Applicability---Principle of double presumption of innocence would only be attracted to an appeal against acquittal, if the court on having discussed the evidence came to the conclusion that no piece of evidence had been left out, and on the basis of evidence on record, Trial Court had rightly held the accused as innocent and not involved in the commission of the offence.

A.D. Naseem, Advocate Supreme Court for Petitioner.

Nemo for Respondent No.1.

Mian Abdul Ghaffar, Advocate Supreme Court for Respondent No.2.

Applicant in person (in Criminal M.A. No.418 of 2012.).

Date of hearing: 16th July, 2012.

2013 S C M R 567

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

MUZAFFAR ALI---Petitioner

Versus

COMMANDANT RANGERS and another---Respondents

Civil Petition No.60-L of 2012, decided on 12th December, 2012.

(On appeal from the judgment dated 24-11-2011 passed by Federal Service Tribunal, Lahore in Appeal No.41(L)CS/2009).

Constitution of Pakistan---

----Arts.212(3)---Hawaldar serving in Pakistan Rangers---Misconduct---Lengthy absence without leave---Effect---Dismissal from service---Petitioner, who was serving as Hawaldar in Pakistan Rangers remained absent without leave on various dates, including one stretch for a period of 2 years, 11 months and 5 days---Petitioner was proceeded against on charge of misconduct and inquiry proceedings against him culminated in his dismissal from service---Departmental appeal filed by petitioner failed and his appeal before Service Tribunal was also dismissed---Contentions of petitioner were that he was absent on account of unavoidable circumstances; that he was falsely involved in an F.I.R. on account of which his whole family absconded and there was no one who could inform his department, and that he informed his department immediately after his acquittal from the case---Validity---No justifiable explanation was provided by the petitioner for his absence for the lengthy period of 2 years, 11 months and 5 days---Even after his acquittal, petitioner did not inform his department for more than a week---Penalty awarded to petitioner was not unwarranted in such circumstances---Petitioner had not raised any question of public importance in terms of Art.212(3) of the Constitution of warrant interference---Petition for leave to appeal was dismissed accordingly.

Rana Habib-ur-Rehman Khan, Advocate Supreme Court and Syed Fayyaz Ahmed Sherazi, Advocate-on-Record for Petitioner.

Muhammad Arshad, Legal Inspector, Pakistan Rangers for Respondents.

Date of hearing: 12th December, 2012.

2013 S C M R 569

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Sh. Azmat Saeed, JJ

VICTOR (DECEASED) and others---Petitioners

Versus

DAVID (DECEASED) and others---Respondents

Civil Petition No.1960-L of 2008, decided on 25th October, 2012.

(On appeal from the judgment dated 14-11-2008, passed by the Lahore High Court, Lahore, in C.R. No.1800 of 1999).

Specific Relief Act (I of 1877)---

----S.42---Constitution of Pakistan, Art. 185(3)---Suit for declaration---Dispute over allotment of land---Plaintiffs/respondents filed a suit for declaration against defendants/petitioners contending that disputed property was originally allotted to a person 'S' on whose death land was mutated in favour of his widow and daughter in equal shares by way of limited estate; that widow of 'S' remarried out of which a daughter (predecessor of defendants) was born, and that after death of widow of 'S', the limited estate came to an end and plaintiffs inherited the disputed land---Trial Court decreed the suit in favour of plaintiffs---Appeal and revision filed before First Appellate Court and High Court respectively were also dismissed---Defendants by relying upon Khatooni document contended that disputed land was never allotted to 'S' but was allotted to his widow, who was held to be owner of the entire land on the directions of the Commissioner, and that after her death, her daughter (predecessor of defendants) inherited the land---Validity---Record revealed that upon death of widow of 'S' a mutation of inheritance was recorded in favour of colaterals of 'S'---Daughter of 'S' ( predecessor of defendants) filed an appeal before the Collector, which was allowed and case was remanded---During post-remand proceedings, Assistant Commissioner held that widow of 'S' was the original tenant and recommended that her daughter (predecessor of defendants) be nominated, which decision was appealed against before the Collector, who decided that 'S' was the original allottee---Appeal filed against said order of Collector was dismissed by the Commissioner---Admittedly said orders of Collector and Commissioner were never challenged, therefore, they attained finality-Orders of Collector and Commissioner were subsequent to the Khatooni document being relied upon by the defendants---Khatooni document stood superseded in such circumstances--- Findings of courts below were based on a fair appraisal of evidence and law---Petition for leave to appeal was dismissed in circumstances and leave was declined.

Muhammad Hanif Niazi, Advocate Supreme Court for Petitioners.

Raja Muhammad Sabir, Advocate Supreme Court and Mahmud-ul-Islam, Advocate-on-Record for Respondent No.12.

Ghulam Ahmed, Naib Tehsildar and Umer Hayat, Patwari for Respondents Nos.16 and 17.

Date of hearing: 25th October, 2012.

2013 S C M R 572

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

SECRETARY, GOVERNMENT OF PUNJAB (C&W) and others---Petitioners

Versus

IKRAMULLAH and 5 others---Respondents

Civil Petitions Nos.733-L, 737-L, 755-L, 1988-L, 1989-L and 1990-L of 2012, decided on 2nd January, 2013.

(On appeal from the judgments dated 7-2-2012 and 11-7-2012 passed by Punjab Service Tribunal, Lahore in Appeals Nos.1530, 1529, 1797, 1748, 1749 and 1796 of 2011).

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

----S. 13---Constitution of Pakistan, Art. 212(3)--- Power of competent authority to impose penalty---Scope---Plea for enhancement of penalty, dismissal of---Enhancement of penalty by competent authority without assigning any reasons for disagreeing with report of inquiry committee---Specific liability of each guilty official not apportioned---Effect---Respondent-officials were proceeded against by their Department (petitioner) for causing huge loss to the public exchequer during the construction of a road---Inquiry committee recommended award of minor penalties, which were disagreed with by the competent authority, awarding major penalties to respondent-officials---Appeals filed by respondent-officials before the Service Tribunal were allowed and penalties awarded to them were reduced---Contentions on behalf of Department were that charges levelled against respondent-officials were serious and they had caused huge loss to the public exchequer, and that competent authority had the power under S.13 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 to award penalties, as had been done in the present case---Validity---Inquiry committee in its detailed report discussed the role attributed to the respondent-officials in the light of the evidence recorded during inquiry and came to the conclusion that some of the charges were proved, while others were either partially proved or not proved at all---Competent authority without assigning any reasons to disagree with the findings of the inquiry committee with reference to evidence collected, enhanced the penalty and converted the same into major penalties---Where competent authority proposed to enhance the penalty it had to give reasons germane to the charges levelled and the evidence collected during inquiry and that too with reference to the liability of each of the officials who were inquired into---Only reason assigned by competent authority was that it had gone through the record and defence plea of respondent-officials and also inspected the road personally---Mere deplorable condition of the road at the site was not enough to hold each respondent-official guilty unless competent authority specifically referred to the role and liability of each one of the respondent-officials in the light of the evidence collected during inquiry---Even otherwise inspection of the road by competent authority was carried out four years after its completion and that too in the absence of respondent-officials---No question of public importance was raised in the present petition to warrant interference by the Supreme Court---Petition for leave to appeal was dismissed in circumstances and leave was refused.

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

----S. 13---Power of competent authority to impose penalty---Scope---Enhancement of penalty by competent authority after disagreeing with report of inquiry committee---Principle---Where competent authority proposed to enhance the penalty it had to give reasons germane to the charges levelled and the evidence collected during inquiry and that too with reference to the liability of the official who was inquired into.

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

----Ss. 5(1) & 4(1)--- Constitution of Pakistan, Art. 212(3)---Penalty/sentence awarded by Service Tribunal---Interference by Supreme Court---Scope---Service Tribunal as appellate authority enjoyed jurisdiction to modify sentence (awarded by Departmental authorities) and in the absence of any question of public importance it would not proper for the Supreme Court to interfere in the order of Service Tribunal.

Syed Jamshed Hussain v. Chief Minister Punjab, Lahore 2008 PLC (C.S.) 161 and Government of N.-W.F.P. v. Asif Iqbal 2010 SCMR 1345 rel.

Muhammad Arif Raja, Additional A.-G., Khalid Saleem, Law Officer, C&W Dept., Hafiz Fayyaz Ahmed, Law Officer, C&W Department for Petitioners.

Asif Nazeer Awan, Advocate Supreme Court for Respondents (in C.P. 733-L of 2012).

Jari Ullah Khan, Advocate Supreme Court for Respondents (in C.P. 737-L of 2012).

Nemo for Respondents (in C.Ps. 757-L, 1988-L and 1990-L of 2012).

Respondents in person (in C.P. 1989-L of 2012).

Date of hearing: 2nd January, 2013.

2013 S C M R 583

[Supreme Court of Pakistan]

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

AHMAD and another---Appellants

Versus

SHAFIQ-UR-REHMAN and another---Respondents

Criminal Appeals Nos.152-L and 153-L of 2009, decided on 23rd July, 2012.

(Against the judgment dated 5-11-2008 passed by the Lahore High Court, Lahore in Criminal Appeals Nos.39-J of 2008 and 860 of 2002 and Murder Reference No.302 of 2002).

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

----Ss. 302(b), 452 & 337-A(i)/337-F(i)---Qatl-e-amd, house-trespass after preparation for hurt, shajjah-i- khafifah, ghayr-jaifah-damiyah---Appreciation of evidence---Concurrent running of sentences---Scope---Different offences committed in "one and the same transaction"---Accused was alleged to have murdered the deceased and caused injuries to the injured person---Trial Court convicted accused under Ss.302(b), 452, 337-A(i) & 337-F(i), P.P.C. and sentenced him to death---High Court reduced sentence of death to imprisonment for life---Accused contended that while reducing his sentence to life imprisonment High Court omitted to pass an order regarding concurrent running of his sentences---Validity---All the offences for which accused was convicted had been committed in one and the same transaction and thus, it would serve the interests of justice if all the sentences of imprisonment passed against accused were ordered to run concurrently with each other---High Court had inadvertently omitted ordering running of sentences of imprisonment concurrently---Appeal was disposed of by Supreme Court with the direction that sentences of imprisonment passed against accused would run concurrently with each other.

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

----Ss. 302(b), 452 & 337-A(i)/337-F(i)---Qatl-e-amd, house-trespass after preparation for hurt, shajjah-i-khafifah, ghayr-jaifah-damiyah---Reappraisal of evidence---Plea for enhancement of sentence, dismissal of---Accused was alleged to have murdered the deceased and caused injuries to the injured person---Trial Court convicted accused under Ss.302(b), 452, 337-A(i) & 337-F(i), P.P.C. and sentenced him to death--- High Court reduced sentence of death to imprisonment for life---Validity---High Court recorded cogent, valid an elaborate reasons for reducing sentence of accused from death to imprisonment for life---Said reasons included the fact that accused was aged about twenty years at the time of the occurrence; that accused fired at the deceased at the bidding command of his parents; that immediate cause of occurrence remained shrouded in mystery, and that accused was not personally involved in the motive set up by the prosecution---Accused had almost served out all of his sentence of imprisonment---Appeal was dismissed accordingly.

Nemo for Appellants (in Cr. A. 152-L of 2009).

Khalid Ikram Khatana, Advocate Supreme Court for Appellants (in Cr. A. 153-L of 2009).

Khalid Ikram Khatana, Advocate Supreme Court for Respondents (in Cr. A. 152-L of 2009).

Mazhar Sher Awan, Additional Prosecutor-General, Punjab for the State (in both cases).

Date of hearing: 23rd July, 2012.

2013 S C M R 587

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Muhammad Ather Saeed, JJ

Messrs BLUE STAR SPINNING MILLS LTD.---Petitioner

Versus

COLLECTOR OF SALES TAX and others---Respondents

Civil Review Petitions Nos.47-L to 49-L of 2012 in Civil Petitions Nos.1691-L to 1693-L of 2008, decided on 9th January, 2013.

(To review this Court's judgment dated 18-6-2012 passed by this Court in Civil Petitions Nos.1691-L to 1693-L of 2008).

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

----S. 3---Constitution of Pakistan, Art. 188---Review of Supreme Court judgment---Void order---Limitation for challenging a void order---Scope---Sales Tax Department passed order in original against the petitioner-company---Appeal filed against such order was dismissed by the Appellate Tribunal as being time-barred---Petitioner-company contended that order in original passed by Department was a void order; that no limitation ran against a void order, and that such aspect was not appreciated by the Appellate Tribunal, the High Court and the Supreme Court---Validity---Rule that no limitation ran against a void order was not an inflexible rule---Party could not sleep over to challenge a void order and it was bound to challenge the same within the stipulated/prescribed time period of limitation from the date of knowledge before the proper forum in appropriate proceedings---Appeal filed before the Appellate Tribunal was admittedly time-barred, and was rightly dismissed as being hit by limitation and no sufficient cause for condonation of delay was found---High Court agreed with the order of Appellate Tribunal---Supreme Court had affirmed concurrent findings recorded by fora below---Review petition was dismissed in circumstances.

Chief Settlement Commissioner v. Muhammad Fazil PLD 1975 SC 331 and Muhammad Raz Khan v. Government of N.-W.F.P. PLD 1997 SC 397 rel.

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

----S.3---Void order---Limitation for challenging a void order---Scope---Rule that no limitation ran against a void order was not an inflexible rule---Party could not sleep over to challenge a void order and it was bound to challenge the same within the stipulated/prescribed time period of limitation from the date of knowledge before the proper forum in appropriate proceedings.

Chief Settlement Commissioner v. Muhammad Fazil PLD 1975 SC 331 and Muhammad Raz Khan v. Government of N.-W.F.P. PLD 1997 SC 397 rel.

(c) Constitution of Pakistan---

----Art. 188---Review of Supreme Court judgment---Scope---Supreme Court in exercise of its review jurisdiction could not sit as a court of appeal against its own order.

Dr. Ilyas Zafar, Advocate Supreme Court and Mahmood ul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 9th January, 2013.

2013 S C M R 590

[Supreme Court of Pakistan]

Present: Asif Saeed Khan Khosa, Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

Syed ANWAR ALI SHAH and another---Petitioners

Versus

IRFAN ALI alias GHULAM RAZA alias RAMZAN and others---Respondents

Criminal Petitions Nos.103-L, 108-L of 2011 and Criminal Miscellaneous Applications Nos. 80-L and 57-L of 2011, decided on 15th January, 2013.

(Against the judgment dated 26-10-2010 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No.50 of 2006 and Murder Reference No.11 of 2006).

Penal Code (XLV of 1860)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.417---Constitution of Pakistan, Art.185(3)---Qatl-e-amd and terrorism---Appeal against acquittal---Reasons recorded for acquitting accused based on conjectures---High number of deaths, due to the occurrence---Effect---Accused was convicted by Trial Court and sentenced to death but High Court accepted appeal and acquitted him of the charge---Validity---Reasons recorded by High Court on most of the critical aspects of the case were either conjectural or insufficient---As many as forty persons lost their lives and seventy one others received injuries---Leave to appeal was granted by Supreme Court for reappraisal of evidence to secure interest of justice---Petition was allowed.

Qazi Misbah ul Hassan, Advocate Supreme Court for Petitioners (in Criminal Petition No.103-L of 2011).

Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab for the State (in both cases).

Date of hearing: 15th January, 2013.

2013 S C M R 591

[Supreme Court of Pakistan]

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

SUO MOTU CASE NO.13 OF 2010: In the matter of

(Regarding Supply of Contaminated Water to Rawalpindi from Rawal Dam).

Suo Motu Case No.13 of 2010, heard on 24th April, 2012.

Constitution of Pakistan---

----Arts. 9 & 184(3)---Suo motu action by the Supreme Court under Art.184(3) of the Constitution regarding supply of contaminated water to Rawalpindi from Rawal Dam---Right to clean drinking water---Discharge of solid waste and liquid into Rawal Lake---Installation of Water Treatment Plants---Supreme Court observed that no one was ready to realize that poor citizens who could not afford to drink bottled mineral water were using contaminated water, which caused number of diseases; that all efforts made seemed to be made on files/papers, inasmuch as Provincial Government lacked understanding of how to deal with environmental issues and as to who was authorized to appoint Tribunals to check violations of environmental law---Supreme Court directed that Secretary of the concerned Division should convene a meeting for installation of Water Treatment Plants etc. and take immediate steps for such purpose, and fix responsibility upon those officials, who were responsible for delay in execution of such Plants; that Provincial Chief Secretary should take personal interest in nominating heads of Environmental Tribunals so that violations of environmental law could be checked, and he should ensure that not only district Rawalpindi but people throughout the Province of Punjab were getting clean drinking water.

Jawwad Hassan, Additional A.-G. and Usman-ul-Haq, DO for Government of Punjab on Court Notice.

Shahidullah Baig, Additional Secretary and S.M. Aafaq Makhdoom, JS for Cabinet Division on Court Notice.

M. Ramzan Chaudhry, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record, Sarwar Sandhu, DG and Syed Sajjad Ali Shah, Dir. on behalf of CDA on Court Notice.

Malik M. Afsar Khan, Dir. Agri. for Chief Commissioner Islamabad on Court Notice.

Asif Shuja Khan, DG, Fahim Riaz Khan, Dir. and Ms. Farzana Altaf, Dy. Dir. for PEPA on Court Notice.

M. Shahid Hassan, Director and Ali Abbas, Dy. Dir. for EPA, Punjab on Court Notice.

Raja Shaukat Mehmood, MD for WASA, Rawalpindi on Court Notice.

Nemo for M/o Interior on Court Notice.

Nemo for TMA Muree on Court Notice.

Nemo for Small Dams Org. on Court Notice.

Date of hearing: 24th April, 2012.

2013 S C M R 594

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

SUO MOTU CASE NO.13 OF 2010: In the matter of

(SM Action regarding supply of contaminated water to Rawalpindi from Rawal Dam).

Suo Motu Case No.13 of 2010 decided on 5th June, 2012.

Constitution of Pakistan---

----Arts. 9 & 184(3)---Suo motu action by the Supreme Court under Art.184(3) of the Constitution regarding supply of contaminated water to Rawalpindi from Rawal Dam---Right to clean drinking water---Discharge of solid waste and liquid into Rawal Lake---Measures for making Rawal lake pollution free---Provincial Government undertaking to make improvements so as to make Rawal lake free from pollution---Supreme Court directed that concerned Department should monitor the steps being taken in order to make Rawal lake pollution free so that pure water was supplied to citizens of Rawalpindi and its suburbs; that in future if there was any complaint the same should be lodged before the Environmental Tribunal by the Director General of Punjab, Environmental Protection Agency (EPA), and that the Director General should visit Rawal Lake off and on and submit a report of its affairs to the Registrar of Supreme Court---Petition was disposed of accordingly.

Jawwad Hassan, Additional A.-G. for Government of Punjab on Court Notice.

Shahidullah Baig, Additional Secretary for Cabinet Division on Court Notice.

M. Ramzan Chaudhry, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record, Sarwar Sandhu, DG and Saeedullah Bangesh, DG on behalf of CDA on Court Notice.

Rana Akhtar Hayat, Admn. Officer for Chief Commissioner, Islamabad on Court Notice.

Asif Shuja Khan, DG, Fahim Riaz Khan, Dir. and Dilaram Khan, Dy. Dir. for PEPA on Court Notice.

Raja Shoukat Mehmood, Advocate Supreme Court and M. Akram, DMD for WASA Rwp. on Court Notice.

Nemo for M/o Interior on Court Notice.

Tariq Manzoor, Advocate Supreme Court for TMA Murree on Court Notice.

Shabbir Ahmed Malik, P.D. for Small Dams on Court Notice.

M. Nawaz Malik, Director (Legal) for EPA, Punjab on Court Notice.

Date of hearing: 5th June, 2012.

2013 S C M R 596

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ejaz Afzal Khan and Sh. Azmat Saeed, JJ

Rana MUHAMMAD NAVEED and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary M/o Defence---Respondent

Civil Review Petition No.229 of 2006 in Civil Appeal No.802 of 2006, decided on 28th February, 2013.

(On review against the judgment dated 25th September, 2006 passed by this Court in Civil Appeals Nos.613, 614, 782, 802 and 825 of 2006).

(a) Pakistan Army Act (XXXIX of 1952)---

----S. 133-B---Sentence awarded by Court Martial---Enhancement of sentence by Court of Appeal---Scope---Court of Appeal had the power to reduce or enhance the punishment but it could only be done when there was an appeal before it in terms of S.133-B of Pakistan Army Act, 1952.

(b) Pakistan Army Act (XXXIX of 1952)---

----S. 133-B---Appeal filed before Court of Appeal against conviction and sentence awarded by Court Martial---Limitation period, commencement of---Appeal against conviction and sentence could be filed before the Court of Appeal within 40 days from the date of announcement of finding, sentence or promulgation thereof; period of limitation would run from any of them, whichever was earlier.

(c) Pakistan Army Act (XXXIX of 1952)---

----S. 133-B--- Enhancement of sentence by Court of Appeal---Principle---Sentence of imprisonment could not be converted into death without giving an opportunity to the accused to show cause why his sentence should not be enhanced.

(d) Pakistan Army Act (XXXIX of 1952)---

----S. 133-B--- Constitution of Pakistan, Arts. 4, 9 & 188---Enhancement of sentence---Right of individual to be dealt with in accordance with law---Scope---Accused were convicted and sentenced to imprisonment for life by Court Martial---Appeals filed by accused before Court of Appeal barred by time---Court of Appeal entertaining such appeals and enhancing sentence of accused to death---Legality---Appeals filed before Court of Appeal were admittedly barred by time, thus there were no appeals before the Court in terms of S.133-B of Pakistan Army Act, 1952---Enhancement of sentence could not have been made by the Court of Appeal in a vacuum, therefore, enhancement made was against the principles of natural justice enshrined in the maxim "audi alteram partem" and Arts. 4 & 9 of the Constitution---Even if appeals before the Court of Appeal were filed within the limitation period, sentence could not have been enhanced as no opportunity was given to the accused to show cause, as to why their sentences should not be enhanced.

(e) Constitution of Pakistan---

----Art. 199(3)---Constitutional jurisdiction of High Court---Scope---Prohibition from making order in relation to person who is member of Armed Forces of Pakistan---Article 199(3) of the Constitution prohibited the High Court from making an order in relation to a person who was member of the Armed Forces of Pakistan, or who was for the time being subject to any law relating to any of such forces, or in respect of any action taken in relation to such person as a member of the Armed Forces, or a person subject to such law---High Court however was not prohibited from making an order under Art.199(3) of the Constitution when acts, actions or proceedings suffered from defect of jurisdiction and were thus coram non judice.

Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171 and Ghulam Abbas Niazi v. Federation of Pakistan and others PLD 2009 SC 866 ref.

Hashmat A. Habib, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Mujeeb-ur-Rehman, Advocate Supreme Court, Col. Tahir and Maj. Shahjehan, JAG Branch for M/o Defence.

Date of hearing: 28th February, 2013 (Judgment Reserved)

2013 S C M R 634

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

FEDERAL BOARD OF REVENUE: In re

C.M.As. Nos. 2243 and 3683 of 2012 in S.M.C. No.16 of 2010, decided on 4th March, 2013.

Constitution of Pakistan---

----Art. 184(3)--- Establishment of the Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), Ss. 2(3), 9(1) & 11(1)---Suo motu case under Art.184(3) of the Constitution regarding pilferage of ISAF-NATO containers under the garb of Afghan Transit Trade---Duty and tax evasion---Loss to public exchequer---Recovery of such loss by the Federal Board of Revenue (FBR)---Report containing findings and recommendations of Federal Tax Ombudsman---Said report indicated the quantum of the loss caused to the public exchequer was approximately Rs.55 billion, however the Federal Board of Revenue to-date had only recovered Rs.5,602,754 which for all intents and purposes was insignificant, when examined in juxtaposition, with the loss to the public exchequer---Performance of the Federal Board of Revenue, was far from satisfactory---Despite elapse of almost one and a half year since the report was compiled by the Federal Tax Ombudsman, no progress worth mentioning had been made for the recovery of the loss identified---Federal Board of Revenue did not bring on record as to how far the recommendations made by the Federal Tax Ombudsman in his report had been implemented despite the fact that a time frame in such behalf, had specifically been mentioned in S.11(1) of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000---Supreme Court directed that Federal Tax Ombudsman as well as Chairman, Federal Board of Revenue should file reports identifying the extent of the implementation of the recommendations of the Federal Tax Ombudsman by the Department (FBR) and further such reports should also identify the modus operandi proposed and required to be undertaken to efficiently and expeditiously effect the recovery of the loss caused to the public exchequer.

Dr. Rana Muhammad Shamim, Advocate Supreme Court for FBR on Court Notice.

Date of hearing: 4th March, 2013.

2013 S C M R 638

[Supreme Court of Pakistan]

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

Messrs A.C.P. OIL MILLS (PVT.) LIMITED---Petitioner

Versus

The ADDITIONAL COLLECTOR OF CUSTOMS (APPRAISEMENT) and another---Respondents

Civil Petitions Nos. 802 and 813 of 2012, decided on 13th February, 2013.

(On appeal from the judgment of the High Court of Sindh, Karachi, dated 24-2-2012 passed in Special Customs Reference Applications Nos.584, 585, 586 and 587 of 2011).

(a) Customs Act (IV of 1969)---

----Ss. 32 & 156(1)(14)---Constitution of Pakistan, Art. 185(3)---False statement, error, etc.--- Deliberate mis-declaration of goods---Submission of fake and forged documents at the time of clearance of goods---Tampering with PCT heading---Imposition of personal penalty on the importer---Scope---Company (petitioner) imported some material declaring the same under PCT heading 7210.5000 described as Tin Free Steel Sheets (Secondary Quality), attracting custom duty @ 10%---Subsequently it was discovered that material imported was Electrolytic Tin Plate, covered under PCT heading 7210.1200, on which 25% duty was leviable---Company had submitted fake and forged photocopies of original documents to the Customs authorities at the time of clearance and also tampered with the PCT headings---Material imported was confiscated by Customs authorities with an option to redeem the same after payment of fine along with leviable duty---Customs authorities also imposed a personal penalty on the company under S.32 read with S.156(1)(14) of Customs Act, 1969---Order of Customs authorities was upheld by all the appellate forums---Plea of company that mis-declaration was not deliberate and there was no evidence to show that management of company knowingly made a false declaration, and that declaration was made on basis of documents sent by the exporter for which company could not be held responsible---Validity---Management of the company had deliberately made a mis-declaration regarding the nature of goods imported---Company and its clearing agent had submitted photocopies instead of original invoices and letters of credit at the time of clearance---Original documents were clearly different compared to the photocopies submitted earlier---Original invoices classified the goods under PCT heading 7210.1200, 7210.5110 and 7209.9000 whereas photocopy of an invoice tendered earlier described the goods under PCT heading 7210.5000, therefore, photocopies had been tampered with---Petition for leave to appeal was dismissed in circumstances and leave was refused.

(b) Constitution of Pakistan---

----Art. 185(3)---Petition for leave to appeal to Supreme Court---Concurrent findings of fact recorded by all forums below---Supreme Court would be slow in interfering in concurrent findings of fact recorded by all the forums below.

Malik Qamar Afzal, Advocate Supreme Court for Petitioner.

Raja Muhammad Iqbal, Advocate Supreme Court for Respondents.

Date of hearing: 13th February, 2013.

2013 S C M R 642

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

ZARAI TARAQIATI BANK LIMITED and others---Appellants/Petitioners

Versus

SAID REHMAN and others---Respondents

Civil Appeals Nos.269 to 275, 1047, 1048 of 2011 and Civil Petition No.657 of 2012, decided on 15th February, 2013.

(On appeal from the consolidated judgment of the Peshawar High Court dated 28-10-2010 passed in W.Ps. Nos.327, 328, 525 of 2008 and 2745 of 2010 and consolidated judgment dated 29-6-2011 passed in W.P. No.569 of 2011 and W.P. No.3975 of 2010 and order dated 28-2-2012 passed in W.P. No.184 of 2010).

(a) Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance (LX of 2002)---

----S. 6---Zarai Taraqiati Bank Limited Staff Regulations, 2005---Agricultural Development Bank (Staff Service) Regulations, 1961---Promotion Policy, 1999---Constitution of Pakistan, Art. 199---Legislation by reference---Scope---Bank employee---Promotion of employees in service of Agricultural Development Bank of Pakistan (Bank) prior to the promulgation of Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002---Promotion Committee of Bank not recommending promotion of such employees on the basis that they failed to meet the threshold required for promotion under the applicable Zarai Taraqiati Bank Limited Staff Regulations, 2005, and that their promotion was not governed by the Agricultural Development Bank (Staff Service) Regulations, 1961 or by Promotion Policy, 1999---Employees challenged recommendations of Promotion Committee by filing constitutional petition before High Court claiming that their promotion was governed by Agricultural Development Bank (Staff Service) Regulations, 1961 and Promotion Policy, 1999 and not by the Regulations of 2005---Maintainability---Contention of Bank was that even if employees in question were governed by Agricultural Development Bank (Staff Service) Regulations, 1961 and Promotion Policy, 1999, the same were non-statutory, therefore, constitutional petition would not be maintainable---Validity---Section 6 of Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002 provided two fold security to employees who were in service of the Bank prior to the promulgation of the said Ordinance: Firstly the employees of the Bank, prior to promulgation of said Ordinance, stood transferred and became employees of the Company, and secondly they were made subject to the same rules and regulations as were applicable to them before the promulgation of the said Ordinance---On account of S.6 of the said Ordinance, the previous Regulations relating to promotion of employees in question, i.e. Agricultural Development Bank (Staff Service) Regulations, 1961 and Promotion Policy, 1999, which were non-statutory, stood incorporated by way of legislative reference and thereby acquired a statutory status under the new dispensation and the employees acquired a legal right for their enforcement---Constitutional petition before High Court, filed against recommendations of Promotion Committee, would be maintainable in such circumstances---Appeal filed by Bank was dismissed accordingly.

Masood Ahmed Bhatti v. Federation of Pakistan 2012 SCMR 152; Muhammad Tariq Badr and others v. National Bank of Pakistan Civil Appeals Nos.1416, 1417 of 2009 and Civil Petition No.176-Q of 2009 and Muhammad Amin v. President Zarai Taraqiati Bank Ltd. 2010 PLC (C.S.) 710 rel.

Principal, Cadet College, Kohat v. Muhammad Shoab PLD 1984 SC 170; Zia Ghafoor Piracha v. Chairman, Board of Intermediate and Secondary Education 2004 SCMR 35 and Asad Bashir v. Chairman Board of Intermediate and Secondary Education, Lahore and others 2006 PLC (C.S.) 110 distinguished.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681; Anwar Hussain v. Agricultural Development Bank of Pakistan 1992 SCMR 1112; Masood Ahmad Bhatti v. Federation of Pakistan 2012 SCMR 152; Muhammad Amin v. President Zarai Taraqiati Bank Ltd. 2010 PLC (C.S.) 710; Executive Council Allama Iqbal Open University v. Muhammad Tufail Hashmi 2010 SCMR 1484; and Wood's Estate case [1886] 31 Ch D 607 ref.

(b) Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance (LX of 2002)---

----S. 6---Zarai Taraqiati Bank Limited Staff Regulations, 2005, Para. 14(h)---Agricultural Development Bank (Staff Service) Regulations, 1961---Promotion Policy, 1999---Promotion of employees in service of Agricultural Development Bank of Pakistan (Bank) prior to the promulgation of Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002---Promotion Committee of Bank not recommending promotion of such employees on the basis that they failed to meet the threshold required for promotion under the Zarai Taraqiati Bank Limited Staff Regulations, 2005---Employees challenged recommendations of Promotion Committee by filing constitutional petition before High Court claiming that their promotion was not governed by the Regulations of 2005 but by the Agricultural Development Bank (Staff Service) Regulations, 1961 and Promotion Policy, 1999---High Court allowed the constitutional petition holding that promotion of employees was not governed by the procedure provided in the Regulations of 2005 and directed the Bank to send cases of employees to the Promotion Committee for consideration afresh in accordance with the same rules and regulations which were applicable to them prior to the promulgation of Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002---Bank contended that Zarai Taraqiati Bank Limited Staff Regulations, 2005 were voluntarily and consciously adopted by the employees who took all the monetary benefits under it, and after sitting/participating in the competitive process for promotion as contemplated by Paragraph 14(h) of the Regulations of 2005 and after failing to meet the threshold required for promotion, the employees were estopped by their own conduct from turning around and claiming promotion on the basis of the previously applicable Agricultural Development Bank (Staff Service) Regulations, 1961 or Promotion Policy, 1999---Validity---By virtue of S.6 of Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002, employees in question acquired a statutory right to be considered for promotion in accordance with the same rules and regulations which were applicable to them before the promulgation of said Ordinance---Employees in question, therefore, were to be considered for promotion in terms of Agricultural Development Bank (Staff Service) Regulations, 1961 and Promotion Policy, 1999, which admittedly was not done by the Promotion Committee in the present case---Contention of Bank that employees in question having derived all monetary benefits under Zarai Taraqiati Bank Limited Staff Regulations, 2005 were estopped from claiming promotion under previously applicable rules and regulations, was not tenable, Firstly because there was no estoppel against law; secondly, no document had been placed on record to indicate that the option (of monetary benefits) was exercised voluntary and even if it was, it would not prevent employees from seeking enforcement of the procedure laid down in Regulations for promotions which were in vogue prior to the promulgation of Ordinance of 2002; thirdly, employees challenged the entire impugned process at the earliest before formal orders could take effect, and fourthly the monetary benefits received by the employees could be adjusted by the Bank if so advised---Appeal filed by Bank was dismissed accordingly.

Rajya v. Gopikabai AIR 1979 SC 79 ref.

(c) Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance (LX of 2002)---

----S. 6--- Legislation by reference--- Scope--- Section 6 of Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002 was an instance of legislation by reference.

(d) Legislation---

----Legislation by reference---Scope---Legislation by referential incorporation fell into two categories; first, where a statute by specific reference incorporated the provisions of another statute as of the time of adoption; second, where a statute incorporated by general reference the law concerning a particular subject as a genus---In the case of former category, the subsequent amendment made in the referred statute could not automatically be read into the adoption statute---In the case of latter category, it might be presumed that the legislative intent was to include all the subsequent amendments also made from time to time in the general law on the subject adopted by general reference.

Wood's Estate case [1886] 31 Ch D 607 and Rajya v. Gopikabai AIR 1979 SC 79 ref.

(e) Interpretation of statutes---

----Legislation by reference---Scope---Statute which referred to law of a subject generally adopted the law on the subject as of the time the law was invoked; and this would include all the amendments and modifications of the law subsequent to the time the reference/statute was enacted.

Rajya v. Gopikabai AIR 1979 SC 79 ref.

(f) Delegated legislation---

----Rules and regulations framed under an Act by statutory bodies---Scope---Rules and regulations framed under any Act were meant to regulate and limit the statutory authority---All statutory authorities or bodies derived their powers from statutes which created them and from the rules or regulations framed thereunder---Any order passed or action taken which was in derogation or in excess of the powers of statutory authority or body, could be assailed as ultra vires---Statutory bodies were invariably authorized under the Act to make or adopt rules and regulations not inconsistent with the Act, with respect to such matters which fell within their lawful domain to carry out the purposes of the Act.

(g) Delegated legislation---

----Reasons justifying need for delegated legislation---Firstly, there is pressure on parliamentary time; secondly, the technicality of subject matter necessitates prior consultation and expert advice on interests concerned, and thirdly, the need for flexibility is established because it is not possible to foresee every administrative difficulty that may arise to make adjustment that may be called for after the statute has begun to operate.

Sukhdev Singh and others v. Bhegat Ram and others AIR 1975 SC 1331 ref.

(h) Delegated legislation---

----Statutory rules or regulations---Salient characteristics.

Following are the salient characteristics of statutory rules or regulations:--

(i) Rules or Regulations are framed by statutory or public body;

(ii) they are framed under the authority or powers conferred in the statute; and

(iii) they have statutory Governmental approval or statutory sanction.

(i) Constitution of Pakistan---

----Art. 199--- Constitutional Jurisdiction of High Court--- Scope---Employee of statutory/public authority governed by statutory rules---Statutory authority passing order relating to the employee in violation of statutory rules---Interference by High Court in its constitutional jurisdiction---Scope---Statutory rules created certain rights for employees and imposed obligations on the statutory authorities---Statutory authorities and functionaries could not deviate or act in derogation to such rules or regulations---Any order passed or action taken by a public authority which was in conflict with such statutory rules could be challenged under Art. 199 of the Constitution.

Mian Gul Hassan Aurangzeb, Advocate Supreme Court, Mian Muhammad Hanif, Advocate Supreme Court, Muhammad Munir Peracha, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record, Hamid Ahmed, Advocate and Rashid Sultan, Advocate for Appellants (in all cases).

Abdur Rahim Bhatti, Advocate Supreme Court for Respondents (in C.As. Nos. 269 to 275 of 2011).

Shakeel Ahmed, Advocate Supreme Court for Respondents (in C.P. No.657 of 2012).

Dates of hearing: 5th, 6th, 7th, 13th, 19th, 21st and 22nd November, 2012

2013 S C M R 669

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Ijaz Ahmed Chaudhry, JJ

Raja MUHAMMAD YOUNAS---Petitioner

Versus

The STATE---Respondent

Criminal Petition No.303 of 2012, decided on 7th September, 2012.

(On appeal from the Peshawar High Court, Peshawar dated 1-8-2012 passed in Criminal Miscellaneous No.789-P of 2012).

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 13 & 15---Qanun-e-Shahadat (10 of 1984), Art. 38---Possession and trafficking of narcotics, aiding, abetment or association in narcotic offences---Bail, grant of---further inquiry---Accused implicated for the offence on the statement of co-accused made before the police---Such statement of co-accused could not be used as evidence against the accused in view of Art. 38 of Qanun-e-Shahadat, 1984---Plea of Anti-Narcotic Force that accused was involved in other narcotic cases similar to the present one was not relevant in circumstances---Case against accused was one of further inquiry---Accused was granted bail accordingly.

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

----S. 497---Qanun-e-Shahadat (10 of 1984), Art. 38---Bail---Scope---Accused implicated for the offence on the statement of a co-accused made before the police---Under Art.38 of the Qanun-e-Shahadat, 1984, admission of co-accused before police could not be used as evidence against the accused.

Mir M. Ghufran and Khurshid Imtiazi, Advocates Supreme Court for Petitioner.

Shahid Mehmood Abbasi, Sp. PG for the State.

Date of hearing: 7th September, 2012.

2013 S C M R 678

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Sarmad Jalal Osmany and Gulzar Ahmed, JJ

AZAM WAZIR KHAN---Appellant

Versus

Messrs INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN and others---Respondents

Civil Appeal No.17-K of 2011, decided on 27th February, 2013.

(Against the judgment dated 11-2-2011 passed by High Court of Sindh, Karachi in H.C.A. No.109 of 2004).

(a) State Bank of Pakistan Act (XXXIII of 1956)---

----S. 9A---State Bank of Pakistan---Purpose and functions---State Bank of Pakistan in its capacity as the premier regulatory authority of the Government of Pakistan in the financial sector acted as a watchdog over the Government in order to secure monetary stability and soundness of the financial system---Main function of State Bank of Pakistan was to ensure and secure stability of the financial system in the country and for such purpose it issued guidelines and advices from time to time in the shape of Banking Control Department (BCD) Circulars.

(b) Banking Companies Ordinance (LVII of 1962)---

----S. 25---State Bank of Pakistan Act (XXXIII of 1956), Preamble---Banking Control Department (BCD) Circulars issued by State Bank of Pakistan--- Binding effect--- Scope--- Such Circulars/ Instructions issued by State Bank of Pakistan were binding upon all concerned.

Hashwani Hotels Limited v. Federal of Pakistan and others PLD 1997 SC 315 ref.

(c) State Bank of Pakistan Act (XXXIII of 1956)---

----S. 9A---Banking Control Department (BCD) Circulars issued by State Bank of Pakistan---Scope---Such Circulars, which could be termed as delegated legislation/directives/orders, could not displace legislative instruments such as Acts of Parliament.

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

----S. 29---Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997), S. 15 [since repealed]--- State Bank of Pakistan Act (XXXIII of 1956), S. 9A---Industrial Development Bank of Pakistan Ordinance (XXXI of 1961), S. 39---State Bank of Pakistan, BCD Circular No. 13 dated 20-6-1984---State Bank of Pakistan, BCD Circular No. 32 dated 26-11-1984---Interest-bearing loan---Compound interest, grant of---Power of State Bank of Pakistan in relation to recovery of interest-bearing loans---Scope---Claim of Bank (respondent) was allowed with simple interest---Bank filed appeal before High Court contending that as per agreement between parties compound interest was to be allowed--- High Court allowed compound interest to the Bank---Contention that in view of BCD Circular No.13 dated 20-6-1984, and BCD Circular No.32 dated 26-11-1984, Bank could not charge compound interest on loans given by it after 1-1-1985, and that Bank had unlawfully amalgamated three loans into one and started charging compound interest---Validity---Powers and functions given to State Bank of Pakistan were entirely divorced from the laws enacted from time to time for recovery of outstanding loans by the Banks and other development financial institutions, hence it could not be said that after 1-1-1985 no loans previously given by any company/development financial institutions on the old interest bearing system could not be recovered as such---Section 15 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (since repealed) provided that both interest and mark-up could be recovered and the same was reflected in S.29 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Parties had voluntarily agreed to amalgamation of loans through the agreement, which provided for 12% compounded interest---Appeal was dismissed in circumstances.

Qamaruzaaman Khan v. Industrial Development Bank of Pakistan and others 2009 CLD 460 and Mushtaq Ahmed Vohra v. Crescent Investment Bank Limited 2005 CLD 444 distinguished.

Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi PLD 2002 SC 500 ref.

Akhtar Husain, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellant.

A.I. Chundrigar, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondents.

Date of hearing: 27th February, 2013.

2013 S C M R 684

[Supreme Court of Pakistan]

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

GHULAM MUSTAFA through LRs. and others---Applicants

Versus

MUHAMMAD YAHYA and others---Respondents

C.M.As. Nos. 4160, 4161 of 2012 and Civil Appeals Nos.1619, 1620 of 2005, decided on 13th February, 2013.

(On appeal from the judgment dated 29-9-2004 passed by the Lahore High Court, Bahawalpur Bench in R.S.A. Nos. 28 and 31 of 1990).

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 19---Transfer of Property Act (IV of 1882), S.54---Sale of colony land---Proof---Permission granted by Deputy Commissioner for transfer of rights in colony land---Bona fides---Suit property was granted in favour of grantee by the ruler of the State at that time---Alleged vendee, who was in possession of suit property as a lessee, claimed that he purchased the same from the grantee after obtaining permission from Deputy Commissioner under S.19 of Colonization of Government Lands (Punjab) Act, 1912---Validity---Onus was on alleged vendee to prove a valid sale, however no oral or documentary evidence was led to prove as to when the bargain between the grantee and alleged vendee was struck and when payment of sale consideration was made---Change of status of alleged vendee from lessee into owner of suit property could neither be proved by any document nor was it reflected in the revenue record i.e. Roznamcha waqiati of Patwari---Even bona fides of permission granted by Deputy Commissioner under S.19 of Colonization of Government Lands (Punjab) Act, 1912 was questionable, because alleged vendee claimed to be in possession of suit property since 1937 but he made no effort to obtain sanction from the Collector to have the same transferred in his name during the life time of grantee, who died in 1953---Alleged vendee brought on record an application which was supposedly filed by the wife of grantee for permission to sell land to alleged vendee, however revenue official stated in his evidence that such application was neither signed nor thumb marked by wife of grantee and persons who allegedly identified her also did not sign the application---Wife of grantee stated in her evidence that her husband gave suit property to alleged vendee on lease, who kept paying the lease money even after 8/9 years of her husband's death---Appeal was dismissed accordingly.

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

----S. 42--- Suit for declaration qua title to disputed property---Claim of ownership of property based on adverse possession---Scope---Defendant in the suit allegedly gifted part of suit property to the claimant---Trial Court passed decree in favour of plaintiff as ownership of defendant was not established, however claimant was held to be in adverse possession of part of suit property since plaintiffs, who attained majority in 1981, did not implead claimant in the declaratory suit till 1984---Legality---Claimant was shown as a tenant in the revenue record---Suit property was State land and adverse possession could only be claimed if possession was for more than 60 years---Claimant never appeared as witness in the declaratory suit to raise plea of adverse possession---Claimant derived his title from the defendant, whose own title had been annulled by the Trial Court---Appeal was allowed and findings of courts below with regard to title of claimant on the basis of adverse possession were set aside.

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

----S. 42---Claim of ownership of property---Alternate plea of adverse possession---Claim based on alleged purchase, and in the alternative on base of adverse possession---Effect---Where a claimant raised contradictory pleas of ownership and adverse possession in the alternative, such pleas eroded credibility and bona fides of his claim---Claimant could not be declared owner in such circumstances by way of adverse possession.

Ghulam Hussain v. Iqbal Ahmad PLD 1991 SC 290 rel.

Mian Allah Nawaz, Senior Advocate Supreme Court for Applicants (in C.A. 1619 of 2005).

Muhammad Anwar Bhaur, Advocate Supreme Court for Applicants (in C.A. 1620 of 2005).

Syed Qalb-i-Hassan, Advocate Supreme Court and Qari Abdur Rasheed, Advocate Supreme Court for Respondents.

Date of hearing: 13th February, 2013.

2013 S C M R 692

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Asif Saeed Khan Khosa and Sarmad Jalal Osmany, JJ

CHAIRMAN/SECRETARY, MINISTRY OF RAILWAYS, GOVERNMENT OF PAKISTAN, ISLAMABAD---Petitioner

Versus

AFTAB MEHDI---Respondent

Civil Petition No.785 of 2011, decided on 19th June, 2012.

(On appeal from the judgment of the Federal Service Tribunal, Karachi Bench, Karachi, dated 27-2-2011 passed in Appeal No.60(K)CS of 2008).

Civil service---

----Imposition of major penalty of removal from service notwithstanding report of inquiry committee---Propriety---Only "slight lapse" in performance of duty by civil servant---Major penalty modified to minor penalty---Railway Department (petitioner) initiated disciplinary action against Divisional Engineer (respondent) after collapse of a railway bridge---Allegation against Engineer was that he did not take appropriate timely action to protect the bridge and safeguard railway traffic---Four charges were levelled against the Engineer, out of which inquiry committee found only one i.e. abnormal delay in processing proposal for repairs of the bridge---Inquiry committee took note of the fact that engineer made correspondence with the Headquarters regarding poor condition of the bridge and necessity of its repair---Inquiry Committee only blamed the Engineer for not submitting an "urgency certificate" to the Headquarters to indicate urgency for carrying out repair works---Notwithstanding findings of the inquiry committee, competent authority imposed major penalty of removal from service on the engineer---Appeal filed by engineer before Service Tribunal was partially allowed, he was reinstated in service and penalty imposed on him was modified to stoppage of one increment for one year---Validity---Engineer did submit proposals to Headquarters for carrying out repairs of the bridge and it was the Headquarters which was, to a great extent, responsible for delay in approving the proposal because of making unnecessary queries---Reports further showed that Engineer did make temporary repairs of the bridge, which remained safe for trains operations during his positing for 12 months and even 17 months after he was transferred out---Only charge found proved by the inquiry committee was Engineer's failure to submit "urgency certificate" to the Headquarters while making proposal for repair of the bridge---Imposition of major penalty on Engineer for such a slight lapse was not understandable---Service Tribunal was justified in modifying the penalty imposed to stoppage of one increment---Petition for leave to appeal was dismissed in circumstances and leave was refused.

Syed Anwar Shah, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 19th June, 2012.

2013 S C M R 695

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

GENERAL MANAGER/PERSONNEL, PAKISTAN RAILWAYS H.QS., LAHORE and others---Petitioners

Versus

Sheikh MURTAZA---Respondent

Civil Petition No.236 of 2011, decided on 19th December, 2011.

(On appeal from judgment of Federal Service Tribunal, Karachi Bench, dated 10-11-2010, passed in Appeal No.418(K)CS of 2003).

Civil service---

----Civil servant repatriated to West Pakistan from East Pakistan---Absorption of civil servant in relevant/concerned Corporation---Claim of continuity in service and back benefits after repatriation---Civil servant (respondent) was repatriated to West Pakistan from East Pakistan and sought his absorption in Pakistan Railways (petitioner)---Pakistan Railways claimed that his appointment would be treated as fresh appointment and he would not be entitled to claim continuity in service and was thus not entitled to back benefits---Civil servant ultimately accepted his service in Pakistan Railways under objection after a long delay---Ministry of Finance found civil servant entitled to all the salary and financial benefits which would have accrued to him, had he continued in East Pakistan during the period after 16-12-1971 till his superannuation---Pakistan Railways rejected order of Ministry of Finance and concluded that civil servant could not claim continuity in service and back benefits---Service Tribunal allowed appeal filed by civil servant and found him entitled to continuity in service and monetary benefits by way of salary and allowance from 16-12-1971 till his date of superannuation---Validity---Civil servant was made to run from pillar to post for a period of about 15 years before being allowed to join service in Pakistan Railways---Civil servant suffered for a long period due to mala fide and discourteous conduct of Pakistan Railways---No question of public importance was involved in the present petition which might justify exercise of jurisdiction by the Supreme Court for granting leave---Petition for leave to appeal was dismissed in circumstances and leave was refused with the observation that claim of civil servant was to be settled and all his legal dues were to be paid by Pakistan Railways within 30 days.

Ghulam Qadir Jatoi, Advocate Supreme Court for Petitioners.

Respondent in person.

Date of hearing: 19th December, 2011.

2013 S C M R 698

[Supreme Court of Pakistan]

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

HAKIM KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.91 of 2011, decided on 21st November, 2012.

(On appeal from the judgment/order dated 11-12-2008 passed by Lahore High Court, Rawalpindi Bench in Criminal Appeal No.433-T of 2005).

Pakistan Arms Ordinance (XX of 1965)---

----S. 13--- Criminal Procedure Code (V of 1898), S. 103---Unlicensed possession of arms etc.---Appreciation of evidence---Police witnesses, evidence of---Scope---Non-association of private witnesses during recovery---Scope---Police encounter---Accused was allegedly arrested in an injured condition during a police encounter and arms and ammunition were recovered from him---Trial Court convicted and sentenced accused under S.13 of Pakistan Arms Ordinance, 1965---Appeal filed by accused before the High Court was also dismissed---Contentions of accused were that serious prejudice was caused to his defence as he was not represented by any counsel before the High Court; that he was implicated in the present case since he wanted to lodge a criminal case against police officials for killing one of his friends in a fake police encounter---Validity---Police officials had given direct testimony about the arrest of accused in an injured condition with unlicensed weapon---Although witnesses were police officials but keeping in view the fact that there was cross-firing between the police and accused, who refused to surrender, there was no question of any person from the public being available for the purpose of witnessing the recovery---Accused was defended by a counsel before the Trial Court, where prosecution witnesses were subjected to lengthy cross-examination---Accused opted not to engage a counsel before the High Court, however his present appeal was heard with the assistance of a senior defence counsel appearing on his behalf, thus no prejudice was caused to the accused---Appeal was dismissed in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Ch. Zubair Ahmed Farooq, APG for the State.

Date of hearing: 21st November, 2012.

2013 S C M R 700

[Supreme Court of Pakistan]

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

GHULAM SHABBIR---Petitioner

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS and others---Respondents

Civil Petition No.2432 of 2010, decided on 14th November, 2011.

(On appeal from the judgment of the Federal Service Tribunal, Karachi, dated 9-9-2010 passed in Appeal No.117(K)CS of 2005).

Service Tribunal Act (LXX of 1973)---

----S. 4(1)---Removal from Service (Special Powers) Ordinance (XVII of 2000), S. 10 (since repealed)---Limitation for filing appeal before Service Tribunal where rejection of Departmental appeal was not communicated to the petitioner (civil servant)---Scope---Civil servant was awarded major penalty of compulsory retirement under the Removal from Service (Special Powers) Ordinance, 2000---Departmental appeal of civil servant was rejected---Appeal filed before Service Tribunal was dismissed as barred by time---Contention of civil servant was that he could not file his appeal before Service Tribunal in time since it was not communicated to him that his Departmental appeal had been rejected---Validity---After lapse of 90 days from filing of Departmental appeal, civil servant had 30 days to file service appeal before the Service Tribunal whether or not his Departmental appeal was rejected---Appeal filed by civil servant before Service Tribunal was clearly barred by time---Petition for leave to appeal was dismissed in circumstances and leave was refused.

Nasir Ahmed Bhutta, Advocate Supreme Court for Petitioner.

Rai M. Nawaz Kharral, Advocate Supreme Court for Respondents.

Date of hearing: 14th November, 2011.

2013 S C M R 714

[Supreme Court of Pakistan]

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

Mian GHULAM SARWAR SAMIJA---Petitioner

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, MULTAN---Respondent

Civil Petition No.1787 of 2009, decided on 1st June, 2011.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 2-7-2009 passed in Appeal No.780(R)CS of 2006).

Civil service---

----Concurrent departmental and criminal proceedings---Statement made by complainant during criminal proceedings relied upon in departmental proceedings---Legality---Civil servant, who was serving as an inquiry clerk in Pakistan Railways, allegedly received illegal gratification---Concurrent departmental and criminal proceedings were initiated against civil servant on the statement made by the complainant before the police---Complainant subsequently resiled from his statement and civil servant was acquitted of the criminal charge, however departmental proceedings resulted in civil servant's dismissal from service---On directions of the Supreme Court another inquiry was conducted, however civil servant was once again found guilty, but this time he was awarded punishment of reduction in time scale by five steps for three years---Appeal filed by civil servant before Service Tribunal failed---Civil servant contended that complainant had exonerated him during the criminal and departmental proceedings; that departmental inquiry officer could not rely upon earlier statement of complainant made to the police as such statement was outside the scope of the departmental inquiry---Validity---During departmental inquiry proceedings complainant completely exonerated civil servant of any culpability, rather he stated that both parties had friendly relations---Complainant was the star witness of the case but he did not support the allegations made against civil servant in the statement of allegations---Nothing else existed on record to substantiate the allegations---Statement made by complainant to the police during investigation of the criminal case was not part of the record of departmental proceedings---Even otherwise, such statement of complainant could not be accepted as evidence since it was not subjected to cross-examination---Petition for leave to appeal was converted into appeal by the Supreme Court and allowed, impugned judgment of Service Tribunal and order of departmental authority, whereby it imposed penalty on civil servant, were set aside---Charge against civil servant stood dismissed.

Khawaja Muhammad Farooq, Senior Advocate Supreme Court for Petitioner.

Abbas Mirza, Advocate Supreme Court for Respondent.

Date of hearing: 1st June, 2011.

2013 S C M R 717

[Supreme Court of Pakistan]

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

MEHMOOD AMJED---Appellant

Versus

ISLAMABAD CAPITAL TERRITORY POLICE through I.-G. Police, Islamabad and another---Respondents

Civil Appeal No.652 of 2012, decided on 28th February, 2013.

(On appeal against the judgment dated 17-4-2012 passed by Federal Service Tribunal, Islamabad, in Appeal No. 2282(R)SC of 2011).

Police Rules, 1934---

----R.13.8(2)---Promotion to post of Head Constable, examination for---Division of candidates into different batches---Preparation of separate seniority list for each batch rather than a joint list for all batches---Legality---Appellant was selected for Lower School Course along with 413 other Constables---Police department in view of convenience, divided the candidates into three batches---Appellant was placed in batch No. 3 and successfully passed the course and was placed at Serial No. 4 of the final result of his batch, while his overall position in the course from all three batches was 6th---Plea of appellant was that a joint seniority list should have been prepared for all three batches; that formation of three separate batches by taking into consideration the result of each batch separately had affected his seniority and the same should have been determined as per Rule 13.8(2) of Police Rules, 1934---Validity---Police department divided the course into three batches and thereafter determined seniority of candidates in accordance with their batches instead of considering all the course mates of the batches as a whole, thus seniority list prepared was a clear violation of Rule 13.8(2) of Police Rules, 1934---No distinction could be made between the batches as admittedly they all passed on the same day, therefore, they would be considered to have passed simultaneously and as such combined result of all course mates had to be taken into consideration as per Rule 13.8(2) of Police Rules, 1934---Appeal was allowed and police department was directed to proceed in accordance with Rule 13.8(2) of Police Rules, 1934.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Appellant.

Dil Muhammad Khan Alizai, D.A.-G. and Sajid Abbas, Inspector (L) for Respondents.

Date of hearing: 28th February, 2013.

2013 S C M R 721

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

MUNAWAR HUSSAIN and others---Appellants

Versus

AFAQ AHMED---Respondent

Civil Appeal No.448-L of 2011, decided on 7th March, 2013.

(On appeal from the judgment dated 26-4-2010 passed by the Lahore High Court, Lahore in Civil Revision No.2142 of 2002).

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for pre-emption---Talb-e-Muwathibat---Failure to mention particulars of performance of Talb-e-Muwathibat---Effect---Plaint failed to mention names of persons in whose presence Talb-e-Muwathibat was made---Plaintiff (pre-emptor) while appearing as witness did not mention the date, time and year of performance of Talb-e-Muwathibat---Another witness who appeared on behalf of pre-emptor failed to mention date, time and place of performance of Talb-e-Muwathibat---Omission to mention such particulars was fatal for the suit for pre-emption.

Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302; Abdul Aziz v. Fateh Muhammad 2007 SCMR 336 and Fazal-ur-Rehman v. Khurshid Ali 2012 SCMR 635 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for pre-emption---Talb-e-Muwathibat---Failure to mention particulars of performance of Talb-e-Muwathibat---Effect---Omission to mention date, time and place of performance of Talb-e-Muwathibat was fatal for a suit for pre-emption.

Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302; Abdul Aziz v. Fateh Muhammad 2007 SCMR 336 and Fazal-ur-Rehman v. Khurshid Ali 2012 SCMR 635 rel.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for pre-emption---Talb-e-Ishhad---Service of notice---Co-vendees of suit property (who were also real brothers)---Pre-emptor serving notice of Talb-e-Ishhad on one of the vendees only---Service of notice not personally effected on the other vendee---Plea of pre-emptor that service on one of the vendees should be presumed to be service on both vendees---Validity---Such service of notice of Talb-e-Ishhad was not service in the eyes of law---Pre-emptor had not established that service of notice of Talb-e-Ishhad on the other vendee was made through registered post with acknowledgement due---Plea raised by pre-emptor was not backed by any law, and therefore was not tenable.

Malik Noor Muhammad Awan, Advocate Supreme Court for Appellants.

Raja Muhammad Sabir, Advocate Supreme Court and Mahmood ul Islam, Advocate-on-Record for Respondent.

Date of hearing: 7th March, 2013.

2013 S C M R 726

[Supreme Court of Pakistan]

Present: Gulzar Ahmed and Muhammad Ather Saeed, JJ

KASHIF ZAFAR---Appellant

Versus

POSTMASTER-GENERAL and others---Respondents

Civil Appeal No.174-K of 2010, decided on 4th May, 2012.

Civil service---

----Reinstatement---Equality of treatment between similarly placed employees---Civil servant was appointed as a clerk in the Postal Department after complying with all the codal formalities---Services of civil servant were terminated without any show cause notice; without providing him any opportunity of hearing and without any allegation of misconduct---Appeals filed by civil servant before Department and Service Tribunal respectively were also dismissed on the grounds that his services were terminated during the probationary period---Contention of civil servant was that services of other employees of Postal Department similarly placed to him were also terminated during probationary period but they were reinstated by the Supreme Court after they forwent back benefits---Contention of Department was that civil servant was appointed on dependent quota and not on merit, and provided quota was exceeded when appointment of civil servant was made---Validity---Appointment of civil servant was not based on dependent quota rather same appeared to have been made on merit---No reason existed as to why case of civil servant should be dealt with differently than how the Supreme Court dealt with other similarly placed employees of the Department---Appeal was allowed, judgment of Service Tribunal was set aside and directions were given to reinstate the civil servant immediately but without back benefits.

Sohail H.K. Rana, Advocate Supreme Court for Appellant.

Ashiq Raza, D.A.-G. and A.S.K. Ghori, Advocate-on-Record for Respondents.

Karim Bux Siyal, Divisional Superintendent, Postal Services Hyderabad.

Date of hearing: 4th May, 2012.

2013 S C M R 728

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

SUO MOTU CASE NO.12 OF 2011: In the matter of

(Suo Motu Action taken upon the application of Memona Parveen regarding enhancement of salary/stipend of Industrial Home Teachers, which is Rs.500 per month).

Suo Motu Case No.12 of 2011, decided on 10th January, 2013.

Constitution of Pakistan---

----Arts. 3, 9 & 184(3)---Suo motu action by the Supreme Court under Art. 184(3) of the Constitution regarding salary/stipend of Industrial Home Teachers---Statutory minimum wage---Scope---Teachers imparting vocational training to students in Industrial Homes provided monthly stipend/salary of Rs. 500 by the Provincial Government, which was less than the statutory minimum wage paid to an unskilled labourer/worker---Supreme Court observed that exploitation was strictly prohibited under Art. 3 of the Constitution; that in the present case Arts. 3 and 9 of the Constitution were not being complied with as it appeared that Provincial Government was releasing about Rs. 500 per month for each teacher to Non-Governmental Organizations (NGOs), who allegedly after adding some more amount to the same, made payment of salaries to the teachers in question; that under the statutory provision even an unskilled labourer was paid a minimum wage of Rs.8,000 per month, thus teachers in question, who were trained and were deputed to teach students, deserved more than the statutory minimum wage, and that monthly stipend/salary of teachers in question was fixed in the year 1991 and thereafter no steps were taken to revise the scale of payment---Supreme Court directed the concerned Provincial Secretary to appear in Court and explain as to why from the year 1991 onwards the amount of Rs. 500 had not been increased to a reasonable extent, despite the fact that recommendations to do the same had already been made, and to assist the Court in the matter of registration of Non-Governmental Organizations (NGOs) and the financial assistance, if any, which was being extended to them by the Provincial Government.

Jawwad Hassan, Additional A.-G., Muhammad Shafiq Awan, District Officer, Social Welfare, Rawalpindi on Court's Notice.

Date of hearing: 10th January, 2013.

2013 S C M R 730

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

Ch. MUHAMMAD MASAUD AKHTAR KHAN---Petitioner

Versus

REGISTRAR LAHORE HIGH COURT, LAHORE---Respondent

Civil Petition No.979-L of 2011, decided on 18th February, 2013.

(On appeal against the judgment dated 18-3-2011 passed by Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore in S.A. No.18 of 2004).

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5(b)---Constitution of Pakistan, Art. 185(3)---Personal misconduct committed by a Judge---Scope---Benefit of promotion and consequential financial relief refused to Judge due to his unsatisfactory service record---Inquiry Committee found that District and Sessions Judge ("Judge") (petitioner) was guilty of obtaining an ex parte decree regarding disputed property against all legal norms and when such decree was set aside by the High Court, he remained in possession of the property, and that he did not disclose such property in any of his declaration of assets---Inquiry Committee recommended imposition of major penalty of compulsory retirement---High Court agreed with findings of inquiry committee---Request of Judge for retirement from service was thus accepted and he was retired from service and disciplinary proceedings against him were dropped---Subsequently a notification was issued through which 21 District and Sessions Judges were granted Selection Grade (BS-21) whereas Judge in question was ignored despite being senior most of them---Representation filed by Judge before High Court was rejected and his appeal before Service Tribunal was also dismissed on the grounds that he could not be given benefit of the notification due to his unsatisfactory service record, and even otherwise in view of S.5(b) of Punjab Subordinate Judiciary Service Tribunal Act no appeal was allowed before the Tribunal against a decision of departmental authority determining the fitness of a person for promotion---Validity---Judge in question was the most senior Judge of the District and he malafidely and without giving a thought to his status retained possession of disputed property even after ex parte decree obtained by him was set aside by the High Court and his suit was dismissed upon remand---Judge retained possession of disputed land and made no effort either to settle the matter with the owner of property or conversely have the mutation based upon such ex parte decree cancelled---Such conduct could not be expected of a judicial officer who himself was responsible for adjudicating the rights of others---High Court was correct in not allowing benefit of the notification to the Judge, who could not be allowed promotion and consequent financial relief benefit when his conduct was not above board---Petition for leave to appeal was dismissed by the Supreme Court with the observation that if in the process of seeking justice a Judge himself became embroiled in dilatory tactics and retained possession of land unlawfully, then such conduct had to be deprecated.

Pakistan through Secretary, Ministry of Defence v. The General Public PLD 1989 SC 6; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad PLD 1997 SCMR 141; Federation of Pakistan and others v. Public at Large and others PLD 1988 SC 202; Fazali Rehmani v. Chief Minister, N.-W.F.P. Peshawar and others PLD 2008 SC 769; Muhammad Rahim Khan v. The Chief Secretary, N.-W.F.P. and 4 others 1999 SCMR 1605; Muhammad Rahim Khan v. The Chief Secretary N.-W.F.P. and others PLD 2004 SC 65 and Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khatoon Malik and others PLD 1991 SC 1118 ref.

A.K. Dogar, Senior Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record for Petitioner.

Khadim Hussain Qaiser, Additional A.-G. Punjab and Akram Dy. Reg. (Confidential) L.H.C. for Respondent.

Date of hearing: 18th February, 2013.

2013 S C M R 737

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Ather Saeed, JJ

MUHAMMAD RAMZAN---Appellant

Versus

The STATE and others---Respondents

C.A. No.1938 of 2002 and C.M.A. No.663 of 2008, decided on 23rd May, 2012.

(On appeal against the judgment dated 13-2-2002 passed by Lahore High Court, Lahore in Civil Revision No.269 of 1993).

(a) Islamic Law---

----Waqf---Long and continuous use of property as Waqf by itself being good evidence for declaring or treating such property as a Waqf---Property owned by mosque---Plaintiff (appellant) instituted a suit for specific performance of contact relating to suit property, which was owned by a mosque---Defendants admitted claim of the plaintiffs and consequently suit was decreed---According to entries made in record of rights property was part and parcel of the mosque---High Court on being apprised about the decree proceeded to exercise suo motu revision jurisdiction and set aside the decree on the basis that land was owned by a mosque and even if defendants admitted entire contents of the plaint, suit could not have been decreed---Validity---Record of rights prepared during the first settlement operation in the area showed that suit property was recorded as ownership of a mosque---Such entries were repeated throughout without any change---Although suit property was common property of village but the village proprietary body had dedicated it to the mosque---Village proprietary body had not interfered with the rights of the mosque at any point of time---Suit property was Waqf for all intents and purposes---Long and continuous use of suit property left no doubt that it was a Waqf---Findings of High Court were in accordance with law and revenue record was not open to exception---Appeal was dismissed accordingly.

Anjuman Masjid-i-Farooqia and 3 others v. Mst. Fazal Begum and 3 others 1991 SCMR 2112 and N.S. Rajabadar Mudaliar v. M.S. Vadivelu Mudaliar and others AIR 1970 SC 1839 distinguished.

Zahid Farooq and another v. Anjuman Jamia Masjid and 4 others 1995 SCMR 1584 rel.

(b) Islamic Law---

----Waqf---Former owner of Waqf property trying to reclaim/retrieve it---Legality---Once the nature of property as Waqf was established, no back door intrusion into the same by a former owner could be allowed to resume, retrieve or reclaim it under any law.

Ch. Khurshid Ahmed, Advocate Supreme Court for Appellant.

Mudasar Khalid Abbasi, A.A.-G. for Respondent No.1.

Ex parte for Respondents Nos.1(A), 2 to 4 and 6 to 7.

Nemo for Respondent No. 5.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court for Respondent No.8.

Zulfiqar Khalid Malooka, Advocate Supreme Court for Respondent No.9.

Date of hearing: 23rd May, 2012.

2013 S C M R 742

[Supreme Court of Pakistan]

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

Messrs AGRO PACK (PVT.) LIMITED, PESHAWAR---Petitioner

Versus

ASSISTANT COMMISSIONER INLAND REVENUE PESHAWAR and another---Respondents

Civil Petitions Nos. 271-P to 295-P of 2011, decided on 24th January, 2013.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 29-3-2011 passed in Customs References Nos.42 to 66 of 2010).

Sales Tax Act (VII of 1990)---

----S. 4, first proviso, Cl. (iii)---Customs Rules, 2001, R. 247(c)(i)---S.R.O.190(I)/2002 dated 2nd April, 2002---Constitution of Pakistan, Art. 185(3)---Claim for refund of sales tax---Exemption from sales tax granted on exported goods in terms of R. 247(c)(i) of Customs Rules, 2001---Scope---Tax payer (petitioner) was granted manufacturing bond license under the Customs Rules, 2001 and exported its products to Afghanistan---Tax payer was exempted from payment of sales tax on raw material utilized in manufacturing of its exported products---Tax payer claimed refund of sales tax paid by it on electricity bills and packing material used for products exported to Afghanistan in terms of R. 247(c)(i) of Customs Rules, 2001---Claim of tax payer was rejected by tax authorities on the basis of S.R.O.190(I)/2002 dated 2nd April, 2002---Appeals filed by tax payer before appellate fora and the High Court were also dismissed---Tax payer contended that it was entitled to refund of sales tax in accordance with R. 247(c)(i) of Customs Rules, 2001; that S.R.O.190(I)/2002 dated 2nd April, 2002 relied upon by the tax authorities was issued under a different regime i.e. Sales Tax Act, 1990 and thus was not attracted to the claim of the tax payer, which was based on the Customs Rules, 2001---Validity---S.R.O.190(I)/2002 dated 2nd April, 2002 was issued by Federal Government in exercise of its power under clause (iii) of the first proviso to S.4 of Sales Tax Act, 1990, which clause allowed Government to withdraw the exemption from payment of sales tax on goods exported---Exemption from sales tax could only be granted under the Sales Tax Act, 1990 and the Rules framed thereunder---Rule 247(c)(i) of Customs Rules, 2001, on proper construction did not provide for such exemption---Provision of issuing invoice under R.247(c)(i) of Customs Rules, 2001 was only procedural and not a substantive provision granting exemption from sales tax---Contention of tax payer that S.R.O.190(I)/2002 dated 2nd April, 2002 was issued under Sales Tax Act, 1990 and thus could not take away an exemption granted under Customs Rules, 2001 was devoid of merits---Petition for leave to appeal was dismissed in circumstances.

Pakistan v. Aryan Petro Chemical Industries (Pvt.) Ltd. 2003 SCMR 370 distinguished.

Abdul Latif Yousafzai, Senior Advocate Supreme Court and Muhammad Ajmal Khan, Advocate-on-Record for Petitioner (in all cases).

Dr. Farhat Zafar, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 24th January, 2013.

2013 S C M R 747

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Gulzar Ahmed, JJ

MUHAMMAD ASLAM KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petition No.747-K of 2011, decided on 13th March, 2012.

(On appeal from the judgment dated 16-6-2011, passed by the Federal Service Tribunal Islamabad, Karachi Bench in Appeal No.07(K)CE of 2011).

Civil Aviation Authority Ordinance (XXX of 1982)---

----S. 3---Service Tribunals Act (LXX of 1973), S. 3(2)---Employee of Civil Aviation Authority (CAA)---Grievance relating to terms and conditions of service--- Service Tribunal, jurisdiction of--- Scope---Civil Aviation Authority (CAA) had no statutory rules, thus its employees did not have a remedy before Service Tribunal regarding all grievances relating to their terms and conditions of service---Petition for leave to appeal was dismissed by the Supreme Court accordingly.

Muhammad Nawaz v. Civil Aviation Authority and others 2011 SCMR 523 rel.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 13th March, 2012.

2013 S C M R 749

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ

Messrs C.M. PAK. LTD.---Petitioner

Versus

ADDITIONAL COMMISSIONER, INLAND REVENUE, ISLAMABAD and others---Respondents

C.P. No.834 of 2011, decided on 26th September, 2012.

(On appeal against the judgment dated 25-5-2011 passed by Islamabad High Court, Islamabad in Tax Reference No.172 of 2011).

(a) Federal Excise Act (VII of 2005)---

----S. 3(1)(d) [since substituted by the Finance Act, (I of 2008)]---Levy of excise duty on service originated outside but provided or rendered in Pakistan [prior to amendment in S. 3(1)(d) of Federal Excise Act, 2005 inserted by Finance Act, 2008]---Scope---For purposes of levying and collecting excise duty what was required to be looked into was services provided or rendered in Pakistan---Words "provided or rendered" used in S.3(1)(d) of Federal Excise Act, 2005 (prior to amendment introduced by Finance Act, 2008) would alone be enough to justify levy and collection of excise duty on service originating outside but provided or rendered in Pakistan.

(b) Federal Excise Act (VII of 2005)---

----S. 34A---Reference to High Court---Scope---Question of fact cannot be raised in a reference before the High Court---Reference before High Court invariably lies on a question of law.

Ali Sibtain Fazli, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

M. Bilal, Senior Advocate Supreme Court for Respondents Nos.1 and 3.

Baber Bilal, Advocate Supreme Court for Respondent No.2.

Date of hearing: 26th September, 2012.

2013 S C M R 752

[Supreme Court of Pakistan]

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

CHAIRMAN, STATE LIFE INSURANCE CORPORATION OF PAKISTAN, KARACHI and others---Appellants

Versus

SIDDIQ AKBAR---Respondent

Civil Appeal No.1186 of 2012, decided on 30th January, 2013.

(On appeal from the judgment/order dated 12-9-2012 passed by Lahore High Court, Lahore in W.P. No.7249 of 2012).

(a) Civil service---

----Dismissal from service---Rights of employee on reinstatement in service---Employee reinstated in service after exoneration of the charge--- Right/entitlement of such employee to continuation of service, increment in salary and pro forma promotion for the period he remains suspended or dismissed---Scope---Employee (respondent), in the present case, was charge-sheeted for misappropriation and embezzlement on basis of which he was dismissed from service---Fresh inquiry committee was constituted on the directions of the Supreme Court, which committee exonerated employee of the charges---Competent authority treated period during which employee remained dismissed as extra ordinary leave without pay and he was denied salary for such period on the ground that he physically remained out of service---Competent authority also denied the employee increment of two years during which he remained dismissed from service and also did not consider him for promotion with retrospective effect as he was dismissed from service and his Annual Confidential Reports for such period were not available---High Court allowed constitutional petition filed by employee and ordered that period for which he remained dismissed was to be considered as period spent on duty; that annual increment for the two years during which he remained dismissed were to be granted to him, and that he should also be considered for pro forma promotion with effect from the date when his batchmates were promoted---Validity---Once an employee was reinstated in service after exoneration of the charges levelled against him, the period during which he remained either suspended or dismissed could not be attributed as a fault on his part---Absence of employee, in the present case, during period of his suspension and subsequent dismissal was not voluntary on his part but it was due to the order of the employer-Corporation (appellant), which restrained him from attending his job/duty---Exoneration of the charge meant that employee stood restored in service, as if he was never out of service of the employer-Corporation---Period during which employee remained dismissed, therefore, was to be considered as period he "remained in service"---Since absence/non-attendance of employee at work was not voluntary on his part and it was due to the steps taken by the employer-Corporation, therefore, his service record could neither be adversely affected nor could he be denied any benefit to which he would have been entitled had he not been suspended or dismissed---Appeal was dismissed accordingly.

(b) Limitation---

----Bar of limitation---Principles---Limitation was a bar against a party in pursuing its cause and not a bar regarding assumption of jurisdiction by a court because the court for justified reasons could condone the time limitation.

Ali Muhammad v. Muhammad Shafi PLD 1996 SC 292 and Chairman, State Life Insurance Corporation v. Hamayun Irfan 2010 SCMR 1495 ref.

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

M. Munir Paracha, Advocate Supreme Court for Respondent.

Date of hearing: 30th January, 2013.

2013 S C M R 759

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ejaz Afzal Khan, JJ

AHMED KHAN DEHPAL---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN and others---Respondents

C.P. No.14-Q of 2013, decided on 23rd January, 2013.

(On appeal against the judgment dated 24-12-2012 passed by the Balochistan Service Tribunal, Quetta in S.A. No.93 of 2012).

Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 12A---Constitution of Pakistan, Art.212(3)---Alteration in date of birth recorded at the time of joining service---Scope---Date of birth of civil servant (petitioner) was recorded as 2-2-1953 in his secondary school certificate and the Service Book---After many years in service civil servant claimed that his actual date of birth was 2-2-1958, and consequently instituted a suit for correction of his date of birth, which suit was decreed in his favour---Civil servant approached his department for correction of his date of birth but to no avail---Departmental representation filed by civil servant failed and appeal filed before the Service Tribunal was also dismissed---Validity---According to Rule 12A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 date of birth once recorded at the time of joining government service would be final and thereafter no alteration in the date would be permissible---In the present case idea to have the date of birth altered appeared to be an afterthought of the civil servant---Question was as to how the civil servant, who joined the service in 1982, could not know about his actual date of birth despite the passage of more than two decades, especially when at various stages during his studies as well as service he filled many examination forms, pro formas as well as service book---Petition for leave to appeal was dismissed in circumstances.

Muhammad Sharif v. Chief Secretary and another 2011 PLC (C.S.) 35 distinguished.

Khalil Ahmad Siddiqui v. Pakistan through Secretary Interior, Interior Division, Government of Pakistan and 5 others 2003 PLC (C.S.) 696 and Khalil Ahmed Siddiqui v. Pakistan through Secretary Interior, Islamabad and 5 others 2004 PLC (C.S.) 1044 ref.

M. Hadi Shakil Ahmed, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd January, 2013.

2013 S C M R 764

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

PETITION REGARDING MISERABLE CONDITION OF THE SCHOOLS: In re

Constitution Petition No.37 of 2012, decided on 11th February, 2013.

Constitution of Pakistan---

----Arts. 25-A & 184(3)---Constitutional petition under Art.184(3) of the Constitution regarding condition of schools in all the Provinces of Pakistan---Right to free education---Scope---Illegal occupation of school buildings---School staffs being paid salaries despite providing no services---Existence of ghost schools---Appointment of Commission(s) by the Supreme Court to carry out survey of schools---Supreme Court observed that some of the schools situated in the Provinces were not being used for the purpose of imparting education to the students, and were either illegally occupied by the police or by other Government departments; that executive authorities despite being fully aware of Art.25-A of the Constitution were reluctant to improve the education sector inasmuch as different schools had been abandoned for one or the other reason but still monthly/annual expenditure were being incurred on such schools in terms of salary etc.; that no progress had been made as required by Art.25-A of the Constitution for providing free and compulsory education to all the children between the ages of five to sixteen years inasmuch as no laws had been promulgated on the subject by the Provinces; that education departments of Provinces had admitted existence of ghost schools; that it was not understandable why concerned officials were not taking initiatives or making laws to improve the education sector including removing of encroachments upon schools and taking steps to stop payments etc. to staff, which were getting salary without providing services; that education sector was the most important social service and the Government was bound to pay full attention to it in order to raise the standard of education and to ensure that the children were well educated---Supreme Court gave directions for appointment of all District and Sessions Judges or the Additional District and Sessions Judges at district/tehsil/taluka headquarters of all the provinces including Islamabad Capital Territory, as Commission(s) to carry out survey of schools functioning in their respective areas to determine as to how many schools were functioning fully and how many ghost schools were present in their districts; to determine as to how much of the education funds were being spent for the purpose of imparting education to the children and what was the ratio of children studying in their respective areas; to determine as to what were the reasons for encroachments/illegal occupation of school buildings and why cases concerning such encroachments were not being expedited by the courts and why no action was taken against encroachers--- Supreme Court further directed that Presidents or Secretary Generals of respective District/Tehsil Bars should also be associated with the Commission(s), if needed, in order to carry out physical inspection and submit reports.

Zulfiqar Hussain Noon, Applicant (in C.M.A. No.14 of 2013).

Rehmat Ullah Bilal, Applicant (in C.M.A. No.300 of 2013).

Azam Khan Khattak, Additional A.-G., Syed Naseer Shah, DS, Education and Nizzam-ud-Din Mengal, Director (Schools) for Government of Balochistan on Court's Notice.

Syed Arshad Hussain Shah, Additional A.-G., Syed Naseer Shah, Deputy Secretary, Jamal-ud-Din, C.P.O. (E&S) Edu. Deptt. and Hadayat Ullah, S.O. (Litigation) for Government of Khyber Pakhtunkhwa on Court's Notice.

Jawwad Hassan, Additional A.-G. and Ali Hussain Malik, Additional Secretary for the Government of Punjab on Court's Notice.

Muhammad Qasim Mirjat, Additional A.-G., Syed Ashraf Ali Shah, Special Secretary Education Department and Muhammad Javed, OSD Litigation (E) for the Government of Sindh on Court's Notice.

Professor Waqar Arshad, Director and Muhammad Ahmed, Assistant Director for Secretary CADD and Chief Commissioner ICT on Court's Notice.

Date of hearing: 11th February, 2013.

2013 S C M R 768

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Ejaz Afzal Khan and Sh. Azmat Saeed, JJ

MUHAMMAD TUFAIL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.68 of 2007, decided on 4th June, 2013.

(On appeal against the judgment dated 27-6-2005 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal A. No.7-ATA of 2004-BWP).

Penal Code (XLV of 1860)---

----S. 365-A--- Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping or abduction for extorting property, valuable security, etc., kidnapping for ransom---Reappraisal of evidence---Allegation not conforming to common sense and based on suspicion---Delay in reporting the crime---Effect---Alleged abductee/complainant alleged that at the time of the incident, accused shouted to the co-accused that he (i.e., alleged abductee) was the person who was to be kidnapped---Alleged abductee claimed that he already knew the accused before the incident and also identified him during the kidnapping---Alleged abductee was released allegedly after payment of ransom---Trial Court convicted and sentenced accused under S.365-A, P.P.C. and S.7(e) of Anti-Terrorism Act, 1997 and sentenced him to imprisonment for life and forfeited his moveable and immoveable property---High Court maintained conviction and sentence recorded by Trial Court---Validity---Any abductor who was already known to the abductee takes caution and precautionary measures to conceal his identity so as to avoid the charge after release of abductee upon payment of ransom---Allegation that accused shouted to the co-accused to let them know that alleged abductee was the person who was to be kidnapped neither agreed with the truth nor conformed to common human experience or fitted in with surrounding circumstances---Question as to who paid the amount of ransom, who received it, what evinced and who mentioned the complicity of the accused in the crime, were questions which found no answers from the evidence on record---Alleged abductee might have had suspicion as to the complicity of the accused in the crime but suspicion however strong could not take the place of truth---Alleged abductee reported the matter to police two days after being allegedly released but question was as to why he reported the incident after such delay---Father and a cousin of alleged abductee, who also appeared as a prosecution witness, did not report the kidnapping to the police and they did not put forth any explanation for the same---Conviction and sentence of accused could not be maintained on the quality and quantity of evidence brought on record in the present case---Appeal was allowed, conviction and sentence recorded by Trial Court was set aside and accused was acquitted of the charge.

M. Ramzan Shama, Advocate Supreme Court for Appellant.

M. Irfan Malik, A.P.-G. for the State.

Date of hearing: 4th June, 2012.

2013 S C M R 771

[Supreme Court of Pakistan]

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

MALU and another---Appellants

Versus

ALI BAKHSH and others---Respondents

Criminal Appeals Nos. 94 and 95 of 2012, decided on 13th March, 2013.

(On appeal against the judgment dated 28-7-2011 passed by the Balochistan High Court, Sibi Bench in Criminal Appeals Nos.(S)10 and 11 of 2009).

Penal Code (XLV of 1860)---

----Ss. 300, 302(b), 315 & 316---Qatl-e-amd, qatl shibh-e-amd---Reappraisal of evidence---Qatl-e-amd, definition of---Scope---Death caused due to excessive bleeding from a bullet injury---Conviction under S.316, P.P.C. altered to S.302(b), P.P.C.---Accused allegedly fired at the deceased and caused him an injury on his left thigh---Deceased died due to excessive bleeding as the nearest health center was 50 to 60 kilometers away---Trial Court convicted accused under S.302(b), P.P.C. and sentenced him to death---High Court converted death sentence of deceased to life imprisonment finding that the deceased received only one injury on his thigh and died due to excessive bleeding, therefore, case of accused fell under S.315, P.P.C., which was punishable under S.316, P.P.C.---Validity---Section 300, P.P.C. categorized offence of Qatl-e-amd in three forms i.e. intention of causing death or intention of causing bodily harm by doing an act which in the ordinary course might cause death and or the knowledge that the act was so imminently dangerous that it must in all probability cause death---Act of accused, in the present case, fell in the third category of S.300, P.P.C. since the accused had the knowledge that by causing firearm injury of Kalashnikov on the deceased, in all probabilities, his act would cause death of deceased---Finding of High Court was against language of S.300, P.P.C. and also in deviation of S.315, P.P.C. (Qatl shibh-e-amd)---Accused had caused firearm injury with a Kalashnikov, and in law, was liable to be punished under S.302(b), P.P.C.---Accused was arrested on the following day of the occurrence and on his pointation Kalashnikov was recovered from his house---Police recovered 16 empties from the place of occurrence and as per report of Forensic Science Laboratory, 9 empties matched with the crime weapon---Medical evidence was in conformity with ocular evidence---Sentence of life imprisonment awarded to accused was in accordance with law, however his conviction under S.316, P.P.C. was modified to S.302(b), P.P.C.---Appeal was allowed accordingly.

Tariq Mehmood, Senior Advocate Supreme Court for Appellants (in Criminal Appeal No.94 of 2012).

M. Ilyas Siddiqui, Advocate Supreme Court for Appellants (in Criminal Appeal No.95 of 2012).

Tariq Mehmood, Senior Advocate Supreme Court for Respondent No.2 (in Criminal Appeal No.95 of 2012).

M. Ilyas Siddiqui, Advocate Supreme Court for Private Respondent (in Criminal Appeal No.94 of 2012).

Tahir Khattak, A.P.-G. for the State.

Date of hearing: 13th March, 2013.

2013 S C M R 777

[Supreme Court of Pakistan]

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

HAKIM KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 92 of 2011 out of Jail Petition No.111 of 2009, decided on 21st November, 2012.

(On appeal from judgment dated 11-12-2008 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi in Criminal Appeal No.432-T of 2005).

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

----S. 7(h)---Pakistan Arms Ordinance (XX of 1965), S. 13-A(1)(c)---Acts of terrorism, unlicensed possession of arms and rockets etc.---Appreciation of evidence---Police encounter---Accused unrepresented during appeal before High Court---Scope---Accused was arrested in an injured condition during a police encounter---Accused was allegedly in possession of hand-grenades and a rifle at time of his arrest---Trial Court convicted and sentenced accused under S.7 of Anti-Terrorism Act, 1997 and S.13-A(1)(c) of Pakistan Arms Ordinance, 1965---Appeal filed by accused before the High Court was also dismissed---Contentions of accused were that serious prejudice was caused to him as no one appeared on his behalf before the High Court, and that he might have acted while exercising his right of self-defence---Validity---Manner of arrest as given by the prosecution was supported by the fact that at the time of arrest accused was found injured---Accused could not explain as to how he had sustained firearm injury, which was corroborated by medical evidence with regard to probable time of receiving injuries and the time of occurrence as given by the police---Accused was properly defended before the Trial Court and every witness was subjected to lengthy cross-examination by defence counsel---High Court referred to the defence version and only thereafter maintained conviction recorded by Trial Court---Prosecution had brought home charge against the accused---Version of accused was not corroborated by any independent circumstance---Appeal was dismissed accordingly.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Ch. Zubair Ahmed Farooq, A.P.-G. for the State.

Date of hearing: 21st November, 2012.

2013 S C M R 780

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

MARAJUDDIN---Petitioner

Versus

NATIONAL INSTITUTE OF CARDIO VASCULAR DISEASES and 2 others---Respondents

Civil Petition No.839-K of 2011, decided on 19th December, 2011.

(Against judgment dated 3-8-2011 of Federal Service Tribunal, Karachi, passed in Appeal No.129(K)CS of 2003).

Civil service---

----Removal from service--- Misconduct--- Admission of guilt/misconduct---Effect---Civil servant was charge sheeted twice on the allegation of misconduct and both times he was found guilty by the enquiry committees---Civil servant was also provided an opportunity of personal hearing---Civil servant submitted his acceptance of misconduct in writing and tendered an unconditional apology---Competent authority found him guilty of charges levelled against him and imposed upon him major penalty of removal from service---Appeals filed by civil servant before concerned Department and Service Tribunal respectively also failed---Contention of civil servant was that he submitted his written acceptance of misconduct on the assurance of the Department that he would be exonerated of the charges---Validity---Civil servant did not place on record the document by which he accepted his misconduct---Department provided opportunities of hearing to the civil servant and thereafter passed impugned order of his removal from service on the basis of serious allegations of misconduct---Civil servant also admitted all the allegations of misconduct made against him---No question of public importance within the meaning of Art. 212(3) of the Constitution had been pointed out by the civil servant---Petition for leave to appeal was dismissed by the Supreme Court in circumstances and leave was refused.

Syed Amjad Hussain, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 19th December, 2011.

2013 S C M R 782

[Supreme Court of Pakistan]

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

MUHAMMAD IMRAN @ ASIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.214 of 2007, decided on 2nd April, 2013.

(On appeal from the judgment dated 30-3-2006 passed by the Lahore High Court, Lahore in Murder Reference No.638 of 2000, Criminal Appeal No.314-J of 2000 and Criminal Appeal No.1660 of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Reappraisal of evidence---Sentence, reduction in--- Conversion of death sentence into imprisonment for life---Motive unproved---Accused acting under the influence of co-accused (i.e. his father)---Non-attribution of fatal injuries---Effect---Accused and co-accused persons allegedly killed the deceased by inflicting knife blows upon him---Alleged motive for the occurrence was a quarrel/altercation between the parties which took place few months prior to the occurrence---Trial Court convicted accused under S.302(b), P.P.C. and sentenced him to death---High Court maintained conviction and sentence recorded by Trial Court---Validity---Motive was not proved by any evidence and one of the prosecution witnesses admitted in his cross-examination that he did not know the reason which led to the quarrel between the parties few months prior to the occurrence---Evidence suggested that at the time of the occurrence accused was young man of 21 years of age who acted under the influence of his co-accused father, who raised the lalkara that deceased should be killed, whereafter accused and other co-accused launched the attack---None of the fatal injuries were attributed to the accused---Prosecution case was found to be false qua two co-accused persons, who were acquitted---Sentence of death awarded to accused was converted into life imprisonment in circumstances---Appeal was disposed of accordingly.

Syed Zahid Hussain Bukhari, Advocate Supreme Court for Appellant.

Ch. Muhammad Amin Javed, Advocate Supreme Court for the Complainant.

Ch. Zubair Ahmed Farooq, Additional P.-G. for the State.

Date of hearing: 2nd April, 2013.

2013 S C M R 817

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

SECRETARY, GOVERNMENT OF PUNJAB and others---Petitioners

Versus

KHALID HUSSAIN HAMDANI and 2 others---Respondents

Civil Petitions Nos. 1708-L to 1710-L of 2012, decided on 19th February, 2013.

(On appeal from the judgment dated 16-5-2012 passed by the Punjab Service Tribunal, Lahore in Appeals Nos. 1180, 1185 and 1323 of 2011).

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

----Ss. 13 & 4(1)(a)(v)---Negligence on part of civil servant---Quantum of punishment---Punishment to be proportional to the charge---Scope---Inquiry officer finding civil servant to be contributory negligent and recommending minor penalty---Competent authority enhancing punishment to major penalty without giving reasons for disagreeing with recommendations of inquiry officer, and after relying on a report which was prepared after show-cause notice had been issued to civil servant---Legality---Civil servants were only charged for paying excess advances to a contractor---No charge of corruption was made against them nor was there any allegation against them of making personal gain---Findings recorded by inquiry officer indicated that act of civil servants could be described as "contributory negligence"---Inquiry officer recommended withholding of promotion of civil servants for a specific period of time and recovery of Rs. 2.76 million which had been paid to the contractor---Competent authority issued show cause notices to civil servants, whereafter a report was called from the Chief Engineer---Competent authority enhanced penalty to dismissal from service after relying on the said report---Civil servants were never confronted with the findings of the said report, which was submitted after the inquiry thus it was neither part of the inquiry nor civil servants were given any notice of it---Enhancement of penalty by competent authority on basis of such report was unreasonable and based on extraneous material---Even otherwise quantum of sentence was disproportionate to the gravity of charge as admittedly there was no allegation of collusiveness with the contractor or of corruption---Additionally, competent authority disagreed with the recommendations of the inquiry officer without assigning any reasons---Since competent authority did not agree with recommendations of inquiry officer, it could have proceeded in terms of S.13(6) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and either remanded the inquiry to the inquiry officer or could have directed de novo inquiry, instead of enhancing punishment to dismissal from service---Appeal was allowed, civil servants were awarded minor penalty of stoppage of promotion as recommended by the inquiry officer and finding of inquiry officer regarding recovery of money from contractor was set aside, as contractor was not associated with the inquiry proceedings--- Supreme Court, however, observed that it would be open for the Department to take appropriate steps provided in law to effect recovery from the contractor.

Shibli Farooqui v. Federation of Pakistan 2009 SCMR 281; Mukhtar Ahmed Bhatti v. Director Food, Punjab 1992 SCMR 1864; Director Food v. Rashid Ahmad and others 1990 SCMR 1446; Deputy Director Food v. Akhtar Ali 1997 SCMR 343 and Muhammad Ibrahim Dasti and another v. Deputy Director Food, Multan and another 1986 PLC (C.S.) 845 ref.

(b) Civil service---

----Negligence on part of civil servant---Scope---Punishment for negligence---Elements of bad faith and wilfulness might bring the act of negligence within the mischief of misconduct but conduct demonstrating lack of proper care and requisite vigilance might not always be wilful amounting to grave negligence to warrant harsh punishment.

(c) Civil service---

----Misconduct---Punishment, award of---Findings of competent authority-Interference in such findings by concerned Service Tribunal---Scope---Award of appropriate punishment under the law was primarily the function of the concerned administrative (competent) authority and the role of the Tribunal/Court was rather secondary---Court, ordinarily would not substitute its own finding with that of the (competent) authority unless the latter's opinion was unreasonable or was based on irrelevant or extraneous considerations or was against the law declared.

(d) Civil service---

----Misconduct---Punishment, award of---Purpose and scope---Punishment to a delinquent public servant was premised on the concept of retribution, deterrence or reformation---While awarding punishment competent authority had to keep in mind the underlying object of law and the severity of misconduct.

(e) Administrative law---

----Administrative authority---Discretion, exercise of---Scope---Administrative authority had to exercise discretion by applying an independent mind uninfluenced by irrelevant or extraneous considerations.

(f) Civil service---

----Misconduct--- Punishment, award of--- Punishment to be proportional to the gravity of charge---Scope---Acts of serious misconduct might be visited with major penalty so that not only the offender was brought to justice but also to make it an example for others---Where gravity of charge was of a lesser degree and circumstances reflected absence of bad faith and wilfulness, which amounted to mere negligence, then minor punishment might be a preferred course---Award of minor penalty provided an opportunity to the delinquent public servant to reform himself.

Ranjit Thakar v. Union of India AIR 1987 SC 2386 and Auditor-General of Pakistan v. Muhammad Ali 2006 SCMR 60 rel.

Ch. Muhammad Hanif Khatana, Additional A.-G. and Arshad Javaid Chadhar, Deputy Director Legal, C&W Department for Petitioners.

Hafiz Tariq Naseem, Advocate Supreme Court for Respondent No.1 (in C.Ps. Nos. 1708-L and 1709-L of 2012).

Date of hearing: 19th February, 2013.

2013 S C M R 834

[Supreme Court of Pakistan]

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

MADAD KHAN and another---Petitioners

Versus

The STATE---Respondent

Criminal Petitions Nos.81-P and 82-P of 2012, decided on 15th October, 2012.

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 17-8-2012 passed in Cr. M. Nos.1043 and 1044-P of 2012).

Criminal Procedure Code (V of 1898)---

----S. 497 & Sched. II---Pakistan Arms Ordinance (XX of 1965), Ss.13 & 14---Possession and smuggling of illegal weapons---Bail, grant of---Offence under S. 13 of Pakistan Arms Ordinance, 1965---Right to bail---Scope---Section 13 of Pakistan Arms Ordinance, 1965 was bailable, except in the Province of Punjab where the said offence was non-bailable---Accused (from KPK) were entitled to bail as of right and were granted bail accordingly.

Noor Alam Khan, Advocate Supreme Court for Petitioners.

Kh. Azhar Rashid, Advocate Supreme Court for the State.

Date of hearing: 15th October, 2012.

2013 S C M R 836

[Supreme Court of Pakistan]

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

MUHAMMAD ASHRAF TIWANA and others---Petitioners

Versus

PAKISTAN and others---Respondents

Constitutional Petition No.59 of 2011 and C.M.As. Nos.326 and 633 of 2012 and Criminal O.P. 94 of 2012 in Constitutional Petition No.59 of 2011.

(Petition under Article 184(3) of the Constitution).

Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----Ss. 5, 6, 7 & 21---Securities and Exchange Commission of Pakistan Service Rules (HR Handbook), Ch. 11, Cl. 3(1)---Constitution of Pakistan, Arts. 9, 10A, 14, 18, 25, 73 & 184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the appointment of Chairman of the Securities and Exchange Commission of Pakistan (SECP)---Selection and appointment of respondent as Commissioner and Chairman SECP did not meet the requirements of the Securities and Exchange Commission of Pakistan Act 1997, consequently, notification of his appointment as Commissioner and Chairman SECP was set aside---Supreme Court declared that the insertion of S.5(5) in the Securities and Exchange Commission of Pakistan Act, 1997 through the Finance Act, 2003 was violative of the Constitution and in particular Art.73 thereof; that clause 3(1) of Chap.11 of the Securities and Exchange Commission of Pakistan Service Rules (HR Handbook), which allowed for termination simpliciter (without cause) of employees of SECP, was ultra vires the Constitution and inter alia, the Securities and Exchange Commission of Pakistan Act, 1997---Supreme Court directed that the Federal Government should, without delay, make appointments to statutory positions in SECP which met the requirements of the Securities and Exchange Commission of Pakistan Act 1997,including Ss. 5, 6 and 7 thereof, in a credible, rigorous, transparent and open manner, through a selection and appointment process undertaken with due diligence and deliberation which manifestly and demonstrably ensured that the appointees met the requirements of law; that clause 3(1) of Chap.11 of the Securities and Exchange Commission of Pakistan Service Rules (HR Handbook) must be replaced appropriately by provisions ensuring due process and adherence, inter alia to Arts. 9, 10A, 14, 18 & 25 of the Constitution and which were consistent with the provisions of the Securities and Exchange Commission of Pakistan Act, 1997 ensuring independent and objective decision making without fear or favour, required of an independent regulator; that the Securities and Exchange Policy Board should look into the present petition and documents placed on file and after making such further inquiries as might be deemed appropriate by it, submit within 45 days, a report as to the performance of the SECP; that a copy of the present order should be sent to the Secretary, Ministry of Finance to enable the Federal Government to remain compliant with the law and legal principles enunciated by the Supreme Court; that the Secretary (Finance) should also look into the present petition and documents placed on file to examine wrongdoings/shortcomings, if any, within the Ministry and the decision-making processes of the Federal Government under the Securities and Exchange Commission of Pakistan Act, 1997, and to submit a report in such respect in the Supreme Court within 45 days.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 ref.

Afnan Karim Kundi, Advocate Supreme Court assisted by Barrister Momin Ali Khan, Advocate for Petitioners (in both cases).

Anwar Mansoor Khan, Senior Advocate Supreme Court and Naveed Akhtar, S.O. Finance Division for Respondents Nos.1 and 3 (in Constitutional Petition No.59 of 2011).

Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Barrister Sajeel Sheryar and Ch. Hasan Murtaza Mann, Advocates for Respondents Nos.2, 5 and 6 (in Constitutional Petition No.59 of 2011).

Salman Akram Raja, Advocate Supreme Court assisted by Malik Ghulam Sabir, Advocate, Sameer Khose, Advocate, Ms. Aneesa Agha, Advocate, Malik Ahsan Mehmood, Advocate and Ms. Zainab Qureshi, Advocate for Respondent No. 4 (in Constitutional Petition No. 59 of 2011).

Anwar Mansoor Khan, Senior Advocate Supreme Court for Respondent No.1 (in Criminal O.P. No.94 of 2012).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondent No.2 (in Criminal O.P. No.94 of 2012).

No Amicus Curiae (in Criminal O.P. No.94 of 2012).

Muzaffar Ahmed Mirza, Dir. Litigation for SECP (in Criminal O.P. No.94 of 2012).

Date of hearing: 9th April, 2013.

2013 S C M R 840

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Sarmad Jalal Osmany and Gulzar Ahmed, JJ

HABIB BANK LTD.---Appellant

Versus

The STATE---Respondent

C.M.A. No.624-K of 2009 and C.A. No.176-K of 2009 decided on 25th October, 2012.

Habib Bank Limited (Staff) Service Rules, 1981---

----R. 37---Constitution of Pakistan, Art. 199---Constitutional petition filed against Habib Bank Limited("Bank") by its employee before privatization of the Bank--- Maintainability--- Misconduct---Misappropriation of accounts---Dismissal from service---Employee of Bank was suspended on charge of misappropriation of accounts and subsequently his services were terminated---Employee filed constitutional petition before High Court for payment of his pay and allowance and for recalling his order of termination---High Court found that service of employee was terminated in January 2007, when Bank was already privatized, therefore he was not entitled to invoke constitutional jurisdiction of High Court, however he was entitled to claim his salary dues from the date of his suspension till the privatization of the Bank---Validity---Even if it was assumed that Habib Bank Limited was a Government owned and controlled bank on the date of suspension of employee, his service was governed by Habib Bank Limited (Staff) Service Rules, 1981 which were not statutory, thus, employee could not have filed and maintained a constitutional petition in the High Court for enforcement of terms and conditions of his service as his relationship with the Bank was governed by the rule of master and servant---High court had no jurisdiction to grant relief to the employee to the extent of his salary dues from the date of his suspension till the privatization of the Bank---Appeal was allowed, impugned judgment of High Court was set aside and constitutional petition filed by the employee was dismissed.

Pakistan International Airline Corporation and others v. Tanveer-ur-Rehman and others PLD 2010 SC 76 ref.

Rizwan Ahmed Siddiqui, Advocate for Appellant.

Date of hearing: 25th October, 2012.

2013 S C M R 859

[Supreme Court of Pakistan]

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

DISTRICT OFFICER EDUCATION, SHEIKHUPURA

and others---Appellants

Versus

TARIQ MEHMOOD---Respondent

Civil Appeal No.355-L of 2013, decided on 29th March, 2013.

(On appeal from the judgment dated 11-12-2012 passed by the Lahore High Court, Lahore in W.P. No.22666 of 2011).

Constitution of Pakistan---

----Arts. 199 & 212(3)---Constitutional petition before High Court---Scope---Civil service---Appointment---Matter concerning appointment of civil servant requiring resolution of questions of fact---Constitutional jurisdiction of High Court to adjudicate upon such matter---Scope---Civil servant challenged order of competent authority alleging that although he was in service, but he was neither being given charge nor paid his salary---Plea raised by competent authority was that civil servant's appointment order was bogus and therefore he was dismissed from service---Civil servant filed appeal before the Service Tribunal, which was dismissed as being incompetent on the ground that no final order had been passed---Civil servant instead of impugning order of Tribunal before the Supreme Court, filed a constitutional petition before the High Court, which was allowed and it was held that he was validly appointed and the competent authority unjustly prevented him from joining service---Legality---Competent authority had specifically raised the plea that appointment order of civil servant was fake, which required resolution of serious questions of fact, thus exercise of constitutional jurisdiction by the High Court was not tenable in circumstances---Civil servant himself approached the Service Tribunal and after dismissal of his appeal, he opted to file a constitutional petition before the High Court instead of challenging the order before the Supreme Court---High Court ought to have kept in mind the mandate of Art. 212(3) of the Constitution---Impugned judgment of High Court was not sustainable in circumstances---Appeal was allowed and impugned judgment of High Court was set aside.

Province of Sindh v. Gul Muhammad Hajano 2003 SCMR 325 distinguished.

Ahmed Rauf, Additional A.-G. for Appellants.

Mrs. Erum Sajjad Gul, Advocate Supreme Court for Respondent.

Date of hearing: 29th March, 2013.

2013 S C M R 862

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Mian NAJEEB-UD-DIN OWAISI and another---Appellants

Versus

AMIR YAR WARAN and others---Respondents

C.M.As. Nos.1535 and 1536 of 2013 in C.As. Nos.191-L and 409 of 2010, decided on 26th March, 2013.

(Implementation proceedings of directions of this Court passed in C.A. No.191-L of 2010 and C.A. No.409 of 2010 regarding initiation of action against those who were involved in corrupt practice of submitting bogus degrees at the time of getting of their nomination papers during the election of 2008.)

(a) Constitution of Pakistan---

----Art. 218(3)---Higher Education Commission Ordinance (LII of 2002), S. 10--- Election Commission of Pakistan---Verification/attestation of University degrees of candidates participating in the general elections---Higher Education Commission, duty of---Scope---Supreme Court observed that Higher Education Commission had the duty to verify or attest the educational testimonials of the Universities and all institutions of Higher Education, however, a mechanism was to be adopted by the Election Commission, enabling the Higher Education Commission to supervise the scrutiny/examination of the educational testimonials of the candidates without wasting time, and that in reference to different institutions, the Higher Education Commission might adopt an effective procedure on the basis of which, the Election Commission without loss of time might get correct information about the authenticity of the educational testimonials.

(b) Constitution of Pakistan---

----Arts. 19-A & 218(3)---Representation of the People Act (LXXXV of 1976), S. 14--- Right of voter/elector to have access to information relating to a candidate contesting in the general elections---Duty of Election Commission---Scrutiny of nomination papers of a candidate---Citizen, who was also an elector or voter, had a right to have access to the information in all manners with reference to credentials, antecedents etc. of a candidate for whom he was going to vote for electing him as his representative, therefore, in terms of Art. 19-A of the Constitution, it was the Fundamental Right of a citizen to have access to information about the candidate for whom elector/voter might cast his vote---Supreme Court directed that besides making available the nomination papers (of a candidate) on the web-site, the Election Commission should adopt a simple procedure, enabling the electors/voters who intended to raise objections, to obtain a copy of the nomination paper by making a request subject to payment of prescribed fee.

Nemo for Appellants.

Nemo for Respondents.

Ishtiaq Ahmed Khan, Secretary, ECP and Abdur Rehman Khan, Additional D.-G. (L) on Court Notice.

Date of hearing: 26th March, 2013.

2013 S C M R 866

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Muhammad Ather Saeed, JJ

ALLAH DITTA through L.Rs. and others---Petitioners

Versus

MUHAMMAD ANAR---Respondent

Civil Petition No.2308-L of 2012, decided on 7th March, 2013.

(Against the judgment dated 21-5-2012 of the Lahore High Court, Lahore passed in C.R. No.380 of 2005.)

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for pre-emption---Talb-i-Muwathibat, witnesses of---"Material discrepancy" in statements of witnesses regarding place where pre-emptor got knowledge of sale of suit land---Effect---Witnesses appearing on behalf of pre-emptor stated that disclosure of sale of suit land was made when pre-emptor was sitting inside a shop, whereas the informer (son of pre-emptor) stated in his evidence that they were sitting outside the shop---Such discrepancy was a "material discrepancy"---Appeal was allowed and suit for pre-emption stood dismissed in circumstances.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for pre-emption---Talb-i-Ishhad, notice of--- Burden of proof---Scope---Examination of postman---Scope---Plea of pre-emptor that attorney of vendee while appearing as witness had admitted the receipt of notice of Talb-i-Ishhad, therefore, pre-emptor was not obliged to prove the same--- Validity--- Regarding issuance of notice of Talb-i-Ishhad, admittedly the postman had not been examined by the pre-emptor---Affirmative onus to prove the receipt of notice of Talb-i-Ishhad was on the pre-emptor, therefore, notwithstanding any admission of the attorney of the vendee, it was obligatory on the pre-emptor to have proved the sending of notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman---Appeal was allowed and suit for pre-emption stood dismissed in circumstances.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 rel.

Munawar Iqbal Gondal, Advocate Supreme Court for Petitioners.

M. Saleem Akhtar, Advocate Supreme Court and Imtiaz A. Shaukat, Advocate-on-Record for Respondent.

Date of hearing: 7th March, 2013.

2013 S C M R 868

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

Mian ALLAH DITTA through L.Rs.---Petitioner

Versus

Mst. SAKINA BIBI and others---Respondents

Civil Petition No.1261-L of 2010, decided on 20th March, 2013.

(Against the judgment of the Lahore High Court, Lahore dated 23-2-2010 passed in C.R. No.1202 of 2005.)

(a) Pardanashin lady---

----Legal protection provided to a pardanashin lady equally available to an illiterate and ignorant lady---Scope---Protection provided to Pardanashin lady in law was on account of the fact that they invariably were helpless, weak and vulnerable---Said considerations would equally be attracted to an illiterate lady particularly when she was placed in circumstances which made her vulnerable to deceit misrepresentation.

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

---S. 42---Suit for declaration---Pardanashin lady---Legal protection provided to a pardanashin lady equally available to an illiterate lady---Scope---Plaintiff, who was an illiterate lady, allegedly executed a general power of attorney and agreement to sell in favour of her son-in-law i.e. defendant---Plaintiff contended that both said documents were a result of fraud and misrepresentation---Defendant contended that plaintiff admitted to having thumb-marked the power of attorney and agreement to sell, therefore onus was on her to prove that signatures were obtained through misrepresentation; that plaintiff was not a pardanashin lady, to whom protection could be given, and that it was repellent to common sense that a son-in-law could commit fraud---Validity---Evidence led by plaintiff indicated that she was not a literate lady, and that she had strained relations with her son-in-law on account of the litigation between him and his wife---Impugned documents were not signed by any of the close relatives of the plaintiff---Plaintiff did not have any independent legal advice at the time of the alleged transaction whereby her valuable proprietary rights were transferred---Payment of consideration mentioned in agreement to sell was shown to be in cash, which in the circumstances of the case was suspect---General power of attorney was registered through a Local Commission who never appeared in the witness box---Onus was on the defendant to prove that the documents were based on bona fide transactions, however he failed to discharge the same---Considerations applicable in case of a pardanashin lady would equally be attracted to an illiterate lady particularly when she was placed in circumstances which made her vulnerable to deceit misrepresentation---Petition was dismissed accordingly.

Jannat Bibi v. Sikandar Ali PLD 1990 SC 642 rel.

Muhammad Shahzad Shaukat, Advocate Supreme Court for Petitioner.

Javed Iqbal, Advocate Supreme Court for Respondents.

Date of hearing: 20th March, 2013.

2013 S C M R 874

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Ch. NASIR IQBAL and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Law and others---Respondents

Constitutional Petitions Nos.39 and 90 of 2011, decided on 27th March, 2013.

(a) Constitution of Pakistan---

----Arts. 218(3), 89 & 184(3)---Representation of the People Act (LXXXV of 1976), Preamble---Constitutional petition under Art.184(3) of the Constitution---Right of overseas nationals/citizens of Pakistan to vote in the general elections conducted in Pakistan---Plea of Election Commission of Pakistan that for extending such right/facility amendment in the Representation of the People Act, 1976 would be required and also signing of Memorandum of Understandings (MOUs) with the countries where such right/facility of voting was to be extended---Validity---Supreme Court observed that since an interim Government was functioning at present , the amendments so desired or required could be made by adhering to the procedure of temporary legislation, as provided under Art.89 of the Constitution, and that as far as Memorandum of Understandings (MOUs) were concerned, the Election Commission could solicit an opinion in such regard from the Ministry of Foreign Affairs.

(b) Constitution of Pakistan---

----Arts. 218(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Right of overseas nationals/citizens of Pakistan to vote in the general elections conducted in Pakistan---Plea of Election Commission of Pakistan that it did not have any software for extending such right---Validity---Supreme Court observed that such difficulty could be resolved if the Ministry of Information Technology was taken into confidence or independently information technology experts were engaged with the mandate to prepare such software as early as possible but in any case much before the date of polling.

(c) Constitution of Pakistan---

----Arts. 218(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Right of overseas nationals/citizens of Pakistan to vote in the general elections conducted in Pakistan---Plea of Election Commission of Pakistan that there were issues/difficulties in relation to identification of voters/electors who were living in different countries (abroad)---Validity---Supreme Court observed that such issues related to National Database and Registration Authority (NADRA) and by taking said Authority on board the issues being faced by the Election Commission could be conveniently resolved.

(d) Constitution of Pakistan---

----Arts. 218(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Right of overseas nationals/citizens of Pakistan to vote in the general elections conducted in Pakistan---Supreme Court observed that present petitions were pending since 2011 and much time had already been given to the Election Commission to do the needful, but so far no progress in such behalf had been made except analyzing suggestions which were put forward by the Supreme Court itself and offering explanation to convince the Court that extending the right of franchise to the overseas nationals/citizens of Pakistan was not possible; that difficulties (pointed out by Election Commission) for extending such right were not insurmountable and could conveniently be solved within the shortest possible time if there was a co-ordinated effort between the Election Commission, Ministry of Foreign Affairs, Ministry of Law and Justice, National Database and Registration Authority (NADRA) and other authorities relevant in such behalf in order to achieve the object; that all possible efforts must be made to allow an opportunity to overseas nationals/citizens of Pakistan so that they might participate in the election of their representatives in National and Provincial Assemblies, and that the Supreme Court would pass further orders, if required, to ensure the fundamental right of the overseas nationals/citizens of Pakistan to participate in the formation of Federal and Provincial Government(s)---Supreme Court directed that a meeting should be convened in the office of the Attorney General, which should be attended by the Incharge Secretary Ministry of Law and Justice, the Secretary Ministry of Foreign Affairs, the Secretary Ministry of Information Technology, Chairman of National Database and Registration Authority (NADRA) as well as the representative of Election Commission and they should thoroughly deliberate and submit a comprehensive report in the Supreme Court.

Mian Abdul Rauf, Advocate Supreme Court for Petitioner.

Shafi Muhammad Chandio, D.A.-G. on Court's Notice.

Muhammad Munir Piracha, Senior Advocate Supreme Court and Syed Sher Afgan, D.-G. (Elections) for ECP.

Fiaz Ahmed Malik, Deputy Chief and Islam-ud-Din, Assistant Chief for M/o Overseas.

Raja Muhammad Farooq, Advocate Supreme Court for the OPF.

Date of hearing: 27th March, 2013.

2013 S C M R 877

[Supreme Court of Pakistan]

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

TARIQ MAHMOOD---Petitioner

Versus

GHULAM MUSTAFA SHAH and another---Respondents

Civil Petition No.2018 of 2011, decided on 18th March, 2013.

(On appeal against the judgment dated 28-9-2011 passed by the Lahore High Court, Multan Bench, Multan in C.R. No.986-D of 2011.)

Specific Relief Act (I of 1877)---

----Ss. 42 & 8---Constitution of Pakistan, Art. 185(3)---Suit for declaration---Sale of immovable property by virtue of sale deed---Bona fide---Proof---Purported vendee unable to show his possession over immovable property---Payment of sale consideration not established---Effect---Plaintiff and other co-sharers of suit property allegedly executed a general power-of-attorney in favour of the defendant to dispose of their immovable property---Defendant in exercise of said power-of-attorney sold suit property to the purported vendee by executing a sale deed---Plaintiff filed a declaratory suit challenging validity of the power-of-attorney and contended that it was never executed, therefore, defendant fraudulently sold the property to the purported vendee---Trial Court decreed the suit in favour of the plaintiff---Appeal filed by purported vendee against judgment of Trial Court was dismissed and revision petition filed thereagainst was also dismissed by High Court---Plea on behalf of purported vendee was that the declaratory suit filed by plaintiff against the defendant was collusive and both of them were in league throughout, and that the decree passed in the suit was obtained by fraud depriving the purported vendee from the suit property, which he had acquired as a bona fide purchaser without notice---Validity---Admittedly purported vendee was never put in possession of suit property, which he claimed to have purchased from the defendant by virtue of a sale deed---Purported vendee should have filed a separate suit for possession against the plaintiff and defendant, but he had not done the same---Purported vendee could not explain as to why he was not put in possession of suit property despite claiming to have paid the entire sale consideration---Purported vendee also failed to prove the payment of sale consideration of suit property to establish his bona fide---Findings of Trial Court and High Court were correct---Petition for leave to appeal was dismissed in circumstances.

Malik M. Latif Khokhar, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 18th March, 2013.

2013 S C M R 881

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Amir Hani Muslim, JJ

NADEEM MASOOD SIDDIQUI---Petitioner

Versus

QESCO/WAPDA through Director-General and others---Respondents

Civil Petition No.47-K of 2011, decided on 19th July, 2011.

(On appeal from judgment of Federal Service Tribunal, Karachi, dated 16-11-2010, passed in Appeal No.166(K)CS of 2004.)

Service Tribunals Act (LXX of 1973)---

----S. 4(1)---Appeal to Service Tribunal---Limitation---Service Tribunal dismissing appeal as time barred having already decided in one of its earlier orders that appeal was filed within the limitation period---Legality---Departmental authority refused to expunge adverse remarks in the Annual Confidential Report (ACR) of civil servant---Appeal filed against order of Departmental authority was dismissed as being time barred and also devoid of merits---Contention of civil servant was that Service Tribunal had stated in one of its earlier orders in the present appeal that appeal was filed within time and accordingly admitted, therefore, through impugned order Service Tribunal had no jurisdiction to review its earlier order---Validity---Point of limitation was no more alive before the Service Tribunal for adjudication as it had already been decided by the Service Tribunal in favour of the civil servant in one of its earlier orders---Dismissal of civil servant's appeal by Service Tribunal on merits lacked valid reasoning and application of mind---Petition for leave to appeal was converted into appeal and allowed, impugned judgment of Service Tribunal was set aside and appeal was remanded to the Tribunal for its fresh disposal on merits and in accordance with law.

Petitioner in person.

Anwar Hussain, Advocate Supreme Court for Respondents.

Date of hearing: 19th July, 2011.

2013 S C M R 882

[Supreme Court of Pakistan]

Present: Ejaz Afzal Khan and Muhammad Ather Saeed, JJ

Rao MUHAMMAD ASHRAF---Appellant

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and others---Respondents

Civil Appeal No.954 of 2011, decided on 31st May, 2012.

(On appeal from the judgment dated 10-11-2009 of the Federal Service Tribunal, Islamabad passed in Appeal No.630(R)CS/2007.)

Civil service---

----Grant of "selection grade" and grant of "senior scale"---Distinction---Rationale behind grant of "selection grade" was to compensate employees who worked against a particular post for a long period because of delayed promotion to the next higher scale or any other exigency of service, but still the prospects of promotion were not ruled out; whereas rationale behind grant of "senior scale" to employees was to keep their zest, to serve the department, alive as they had to remain (on the same scale) from the date of their recruitment to the date of their retirement for want of prospects of their promotion---"Selection grade" was granted once while "senior scale" was granted on completion of service for a specified period.

Muhammad Siddique, Stenographer, FIA Headquarters, Islamabad and another v. Secretary, Establishment Division, Islamabad and 5 others 2001 SCMR 252 distinguished.

Appellant in person.

Raja Muhammad Aleem Abbasi, D.A.-G. for Respondent No.1.

Syed Arshad Hussain Shah, Advocate Supreme Court for Respondents Nos.2 and 3.

Abdul Rahim Bhatti, Advocate Supreme Court as Amicus Curiae.

Date of hearing: 31st May, 2012.

2013 S C M R 887

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

DIRECTOR-GENERAL, PAKISTAN RANGERS---Appellant

Versus

FEDERATION OF PAKISTAN and 3 others---Respondents

Civil Appeal No.176-K of 2010, decided on 20th December, 2011.

(On appeal from judgment of Federal Service Tribunal, Karachi dated 7-5-2010, passed in Appeal No.59(K)CS of 2008.)

Civil service---

----Dismissal from service---Long absence from duty without intimation---Civil servant was employee of Thar Rangers and remained absent from duty for a period of 1 year, 8 months and 25 days without informing concerned authorities on the pretext that due to an earthquake his house was damaged, thus he could not inform the authorities or report for duty---After due proceedings competent authority dismissed civil servant from service---Departmental appeal filed by civil servant was also dismissed, however Service Tribunal set aside order of competent authority, reinstated service of civil servant from date of his dismissal, and punishment awarded to him was modified to withholding of three increments for a period of three years without cumulative effect, and period of his absence from service was ordered to be treated as leave---Validity---Guilt of civil servant was proved from his own admission as well as from the record and it was in such circumstances that he was awarded major punishment of dismissal from service---Service Tribunal did not assign any reasons for setting aside order of dismissal passed by competent authority---Service Tribunal failed to notice that earthquake occurred in the month of October 2005, while civil servant took leave from 28-1-2006 to 27-3-2006, but remained absent from service thereafter for a long period---Appeal was allowed, impugned judgment of Service Tribunal was set aside and order of dismissal made by competent authority was restored.

Syed Ashique Raza, Dy. Attorney-General and A.S.K. Ghori, Advocate-on-Record for Appellant.

Respondent No.3 in person.

Ex parte for Respondents Nos.1, 2 and 4.

Date of hearing: 20th December, 2011.

2013 S C M R 890

[Supreme Court of Pakistan]

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

GOVERNMENT OF KPK through Chief Secretary and others---Appellants/Petitioners

Versus

BILAL AHMAD KAKAIZAI and others---Respondents

Civil Appeals Nos.87-P to 92-P of 2011 and C.Ps. Nos.313 and 314-P of 2011, decided on 14th March, 2013.

(On appeal from judgment dated 10-3-2010 of the Peshawar High Court, passed in W.Ps. Nos. 142, 1300, 1368, 1542, 2037, 2544, 503 of 2010 and judgment dated 7-10-2010 in W.P. No. 220 of 2010.)

Khyber Pakhtunkhwa Employees (Regularization of Services) Act (XVI of 2009)---

----S. 3---Regularization of services---Ad hoc appointees---Right of ad hoc appointees to seek regularization under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009---Scope---Notification concerning a (Government) post not to be given retrospective effect to extend benefit of regularization---Provincial Government advertised posts of Additional Government Pleaders for recruitment on ad hoc basis prescribing qualification of LLB with five years' experience as an advocate---Respondents were appointed on ad hoc basis to the said posts for a period of six months till selection of appointees by the Public Service Commission---Services of respondents were terminated after completion of six months---Respondents filed a constitutional petition before the High Court seeking regularization of their service relying upon S.3 of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009---During pendency of said constitutional petition, Provincial Government issued a notification, by which requirement of five years' experience for posts in question was dispensed with---High Court while relying upon said notification accepted the constitutional petition and gave directions for regularizing services of respondents---Legality---Admittedly respondents did not have the required five years' experience on the date when they were appointed as ad hoc appointees for a term of six months---Services of respondents were terminated on expiry of their term before the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009 was promulgated---Respondents did not have the required experience of five years standing as an advocate on the date of promulgation of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009---Notification by which requirement of five years' experience was dispensed with was issued after the said Act, therefore the notification could not be applied retrospectively to extend benefit of S.3 of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009---Once the services of respondents were terminated, they were required to compete for the posts through the Public Service Commission---Ad hoc appointment of respondents would not give them a vested right for seeking their regularization under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009---Impugned judgment of High Court was contrary to the law and was set aside accordingly---Appeal was allowed accordingly.

Lal Jan Khattak, Additional A.-G., KPK for Appellants/Petitioners.

S.M. Attique Shah, Advocate Supreme Court for Respondent (in C.As. Nos.88-P, 90-P and C.P. 313-P of 2011).

Respondent in person (in C.P. No.314-P of 2011).

Date of hearing: 14th March, 2013.

2013 S C M R 894

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Khilji Arif Hussain, JJ

DEEDAR AHMED BHAYO---Petitioner

Versus

NATIONAL BANK OF PAKISTAN and others---Respondents

Civil Petition No.886-K of 2011, decided on 20th December, 2011.

(Against order dated 9-8-2011 of Federal Service Tribunal, Karachi, passed in M.P. No. 378 of 2008 in Appeal No.366(K)CE of 2004).

Service Tribunals Act (LXX of 1973)---

----S. 4(1)---Constitution of Pakistan, Art. 212(3)---Services Tribunal, jurisdiction of---Scope---Appeal filed by employee of National Bank of Pakistan before Federal Service Tribunal---Maintainability---In the present case, employee of National Bank of Pakistan requested for a Voluntary Golden Handshake Scheme, but subsequently applied to the Bank for cancellation of his request---Bank did not give a satisfactory reply to the employee, who filed an appeal before the Service Tribunal---Service Tribunal dismissed said appeal on the ground that the Tribunal did not have jurisdiction in matters relating to the terms and conditions of service of employees of National Bank of Pakistan---Validity---Employee in question was not a civil servant and if Bank had any statutory rules, the remedy lay before the High Court and not before the Federal Service Tribunal---Service Tribunal had rightly non-suited the employee---No question of law of public importance within the meaning of Art. 212(3) of the Constitution had been pointed out---Petition for leave to appeal was dismissed in circumstances and leave was refused.

Muhammad Mubeen-ul-Islam v. Federation of Pakistan PLD 2006 SC 602 and Raja Riaz v. Chairman, Pakistan Space and Upper Atmosphere Research Commission 2008 SCMR 402 ref.

Sanaullah Noor Ghouri, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Muhammad Iqbal, VP/GM (Operation), NBP for Respondents.

Date of hearing: 20th December, 2011.

2013 S C M R 896

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION, ISLAMABAD through Director-General and another---Petitioners

Versus

Syed GUL SHAH and others---Respondents

Civil Appeals Nos. 495 to 499, 501, 502 and 754 of 2012 and Civil Petition No.880 of 2012, decided on 10th April, 2013.

(Against the judgments dated 14-3-2012 , 22-5-2012 and 9-4-2012 passed by the Islamabad High Court, Islamabad in Writ Petitions Nos.210, 336, 519, 929, 2517 of 2005, 3663 of 2004, 2064 and 2139 of 2009, Intra-Court Appeal No.78 of 2008 and Writ Petition No.2047 of 2005.)

(a) Civil service---

----Housing Scheme of Federal Government Employees Housing Foundation---Allotment of plots---Quotas reserved for different categories of Government employees---Eligibility---Paragraph No.1.1(a) of the Terms and Conditions of the Scheme mentioned that 75% quota of plots was fixed for employees of the Federal Ministries/Divisions/ Attached Departments and their subordinate offices, members of regularly constituted groups/services of the Federal Government and members of the Superior Judiciary---Paragraph No.1.1(b) of the Terms and Conditions of the Scheme fixed quota of 8% of the plots for employees of autonomous/semi-autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government---Employees in the present case, who were employed at various autonomous/semi-autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government, claimed that being civil servants they were entitled to be allotted plots from the 75% quota mentioned in paragraph No.1.1(a) of the Terms and Conditions of the said Scheme---Federal Government Employees Housing Foundation ("Housing Foundation") insisted that employees in question were entitled to be allotted plots from the 8% quota mentioned in paragraph No.1.1 (b) of the Terms and Conditions of the Scheme---High Court allowed constitutional petitions filed by employees and considered whether their status was that of a civil servant, and consequently declared that they were entitled to be allotted plots from the 75% quota---Legality---Eligibility criteria laid down in the Terms and Conditions of the Scheme was not with reference to being a civil servant but was mainly with reference to being employees of different categories and it did not matter whether the applicant was a civil servant or not---Paragraphs Nos.1.1(a) & (b) of the Terms and Conditions of the Scheme made no mention whatsoever to "civil service" or "civil servant" and, thus, the entire discussion made by the High Court, in its impugned judgment regarding the employees being "civil servants" or not was completely besides the point apart from being irrelevant---Admittedly employees in question were employees of various autonomous/semi-autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government and, thus, their applications for allotment of residential plots in the Scheme attracted only paragraph No.1.1(b) of the Terms and Conditions of the Scheme fixing a quota of 8% of the plots---Appeal was allowed and impugned judgment of High Court was set aside.

(b) Civil Servants Act (LXXI of 1973)---

----Ss. 3 &10---Transfer of a civil servant to an autonomous/semi-autonomous Government Organization or Public Sector Corporation under the administrative control of the Federal Government---Terms and conditions of service of civil servant, change in---Scope---Such transfer of a civil servant would not affect his terms and conditions of service as a civil servant.

Pakistan Telecommunication Corporation and another v. Riaz Ahmad and 6 others PLD 1996 SC 222; Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others 1999 PLC (C.S.) 1208; Federal Government Employees Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad PLD 2002 SC 1079 and Abdul Rahim v. Pakistan Broadcasting Corporation through Director-General and 8 others 1992 SCMR 1213 rel.

Abdur Rehman Siddiqui, Advocate Supreme Court, Arshad Ali Ch., Advocate-on-Record for Petitioner (in C.As. Nos.495 to 499, 501 and 502 of 2012 and C.P. No.880 of 2012).

Abdul Rahim Bhatti, Advocate Supreme Court and

M.S. Khattak, Advocate-on-Record for Petitioner (in C.A. No.754 of 2012).

Abdul Rahim Bhatti, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Mehmood A. Sheikh, Advocate-on-Record for Respondent (in C.As. Nos. 495, 497, 498, 499 and 502 of 2012).

Abdur Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondents (in C.A. No.754 of 2012).

Nemo for Respondents (in C.P. No.880 of 2012).

Date of hearing: 10th April, 2013.

2013 S C M R 903

[Supreme Court of Pakistan]

Present: Amir Hani Muslim and Ejaz Afzal Khan, JJ

MUHAMMAD SHARIF ABBASI---Appellant

Versus

MEMBER WATER, WAPDA, LAHORE and others---Respondents

Civil Appeal No.25-K of 2012 out of C.P.L.A. No.941-K of 2011, decided on 4th March, 2013.

(a) Civil service---

----Civil servant on sanctioned leave was penalized for being absent from duty---Legality---Department regularized leave of civil servant from 16-4-2001 to 11-7-2001---During the intervening period (i.e. on 23-5-2001) Department issued charge-sheet against him for remaining absent from duty without prior sanction---On one hand Department had issued charge-sheet on the civil servant on the ground of his absence, and on the other it had also regularized his leave---Once leave had been regularized there was nothing on record against the civil servant to penalize him and/or impose penalty of any nature upon him---Order of Department imposing major penalty was passed in haste, overlooking the record---Civil servant was granted personal hearing on 11-7-2001 and on the same day major penalty of compulsory retirement was ordered against him---Appeal was allowed, civil servant was reinstated in service, however matter was remanded to the Department for considering issue of his back benefits on merits after conducting proper inquiry and providing opportunity of hearing to him.

(b) Civil service---

----Departmental appeal, filing of--- Limitation period---Postal correspondence between Department and appellant (civil servant), relevance of---Civil servant claimed that he filed departmental appeal on 19-8-2001 (i.e. within the period of limitation) and also sent a notice to the department through his counsel---Department replied by a letter stating that it did not receive the memo of appeal, whereafter civil servant claimed that he sent a letter to the department enclosing copy of memo of appeal---Department contended that appeal was filed on 20-12-2001, which was beyond the period of limitation, and not on 19-8-2001---Validity---Postal receipt submitted by civil servant was dated 19-8-2001---Postal receipt coupled with letter sent by civil servant and the reply thereto, prima facie, reflected that departmental appeal was filed on 19-8-2001, i.e. within the period of limitation---Appeal was allowed accordingly.

Khaleeq Ahmed, Advocate Supreme Court for Appellant.

Anwar Hussain, Advocate Supreme Court for Respondents No.1 to 3.

Date of hearing: 4th March, 2013.

2013 S C M R 906

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

DILDAR AHMAD and others---Appellants

Versus

MEMBER (JUDICIAL-III) BOR, PUNJAB, LAHORE and another---Respondents

Civil Appeal No.566-L of 2012, decided on 13th March, 2013.

(Against the judgment dated 3-2-2009 passed by Lahore High Court, Lahore in W.P. No.2002 of 2009.)

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

----Ss. 166 & 172(2)---West Pakistan Consolidation of Holdings Ordinance (VI of 1960), S. 10---Consolidation proceedings---Reduction in entitlement of land as a result of error in record of rights---Correction of entry in record of rights by revenue authorities---Limitation---Exclusion of jurisdiction of civil courts in matters within the jurisdiction of revenue officers---Scope---Pleas that once consolidation proceedings were over, the consolidation authorities became functus officio and consequently the matter could not be re-opened again and that revenue authorities could not re-open a 17 year old case for the purpose of correction in record for which only the civil courts had jurisdiction---Validity---Factually there was a reduction of 72 kanals and 14 marlas of land in the entitlement of respondent as a result of consolidation proceedings---Matter was taken up in suo motu proceedings by the Board of Revenue, where such fact was confirmed in favour of respondent and hence relief was granted to him---Appellants could not demonstrate any error in findings of fact before the High Court---Matter was re-agitated by the respondent not under the Consolidation Scheme but under suo motu revision proceedings regarding reduction of his land---Subsequent proceedings before revenue authorities were not "consolidation proceedings" but under the general jurisdiction conferred upon them for the purpose of correcting an error on the record and such powers were amply available to revenue authorities under S. 166 of West Pakistan Land Revenue Act, 1967, for which there was no limitation---Section 172(2) of West Pakistan Land Revenue Act, 1967, provided that only revenue authorities were entitled to correct an entry in a record of rights, periodical entry or register of mutation to the exclusion of civil courts, which were not controversial in nature---No controversy existed in the present case as respondent's land was reduced due to an error in the revenue record---Appeal was dismissed accordingly.

Atta Muhammad and 6 others v. Member (Consolidation), Board of Revenue, Punjab, Lahore and 9 others 2002 CLC 464; Nemat Ali and another v. Malik Habib Ullah and another 2004 SCMr 604; Waris Khan and 18 others v. Col. Humayun Shah and 41 others PLD 1994 SC 336; Muhammad Ishaq v. Member (R), Board of Revenue, Punjab Lahore and 18 others 1994 MLD 2254 and Ikram Ullah v. Zakir Ullah and 5 others 2010 YLR 2687 distinguished.

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

----Ss. 166 & 164---Jurisdiction of revenue authorities to correct clerical or arithmetical mistakes in revenue record---Scope---Jurisdiction given to revenue authorities under S.166 of West Pakistan Land Revenue Act, 1967 was of a wide ranging nature and was similar to revisional jurisdiction under S.164 of the said Act, but limited to correcting clerical or arithmetical mistakes etc.

Sheikh Naveed Shahryar, Advocate Supreme Court along with Appellants in person.

Ch. Muhammad Hanif Khatana, Additional A.-G. for Respondent No.1.

Noor Muhammad Awan, Advocate Supreme Court for Respondent No.2.

Date of hearing: 13th March, 2013.

2013 S C M R 911

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Muhammad Ather Saeed, JJ

ABDUL SATTAR---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.P.L.A. No.957-K of 2011, decided on 6th June, 2012.

(On appeal from order of Federal Service Tribunal, Islamabad (Karachi Bench) dated 27-12-2011 passed in Appeal No.27(K)CS/2008.)

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

----S. 4---Filing of appeal before Service Tribunal---Limitation---Successive departmental appeals cannot extend period of limitation (for filing appeal).

1998 SCMR 882; 1999 PLC (C.S.) 510 and 1999 PLC (C.S.) 862 ref.

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

----S. 4---Filing of appeal before Service Tribunal---Limitation---Significance---Question of limitation should be considered seriously in service matters.

2010 SCMR 1982 rel.

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

----S. 4---Filing of appeal before Service Tribunal---Limitation---Significance--- Question of limitation cannot be considered a technicality simpliciter as it had its own significance and would have substantial bearing on the merits of the case.

2011 SCMR 8 rel.

Ghulam Rasool Mangi, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Sanaullah Noor Ghori, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondent No.1.

Ashiq Raza, D.A.-G. for Respondents Nos.2 and 3.

Date of hearing: 6th June, 2012.

2013 S C M R 913

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

MUHAMMAD IDREES and others---Appellants

Versus

SARDAR ALI---Respondent

Civil Appeal No.390-L of 2011, decided on 21st March, 2013.

(On appeal from the judgment of the Lahore High Court, Lahore dated 26-2-2009 passed in C.R. No.1586 of 1996.)

(a) Punjab Pre-emption Act (I of 1913)---

----S. 3(3)---Pre-emption suit---Land having characteristics of "urban immovable property"---Power of court to declare suit property as "urban immovable property"---Scope---Pre-emptor (respondent) had filed a suit for pre-emption---Vendee (appellant) contended that suit property was part of a town; that it was not agricultural land and had assumed characteristics of urban property---Trial Court decreed the suit, however First Appellate Court set aside the decree---High Court restored judgment and decree of Trial Court---Validity---Suit land was a small plot of two kanals and it was specifically averred in the written statement that it was purchased for building a house, and that it was part of a town---Pre-emptor did not lead evidence to prove that it was not urban property---Sale deed itself indicated that the suit land was purchased for construction purposes and three vendors had placed on record their affidavits to the effect that the suit land was not agricultural land and further that it was sold for construction purposes---Pre-emptor did not lead any evidence in rebuttal---Pre-emptor admitted in his evidence that on one side of the suit land there was a bus stand and on the other side there was a railway line---Land had the characteristics to be classified as urban immovable property---Appeal was allowed, impugned judgment of High Court was set aside and order of First Appellate Court, whereby pre-emption suit was dismissed, was restored.

Elahi Bakhsh and others v. Allah Baksh and others NLR 1980 SCJ 236 and Muhammad Hussain v. Ghulam Qadir PLD 2006 SC 594 rel.

(b) Punjab Pre-emption Act (I of 1913)---

----S. 3(3)---Pre-emption suit---Land having characteristics of "urban immovable property"---Power of court to declare suit property as "urban immovable property"---Scope---"Urban immovable property" was not merely immovable property which fell within the limits of a town as declared by the Board of Revenue but the court could also hold any property to be "urban immovable property" if there was evidence to that effect.

Elahi Bakhsh and others v. Allah Bakhsh and others NLR 1980 SCJ 236 and Muhammad Hussain v. Ghulam Qadir PLD 2006 SC 594 rel.

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

M. Ramzan Ch., Advocate Supreme Court for Respondent.

Date of hearing: 6th March, 2013.

2013 S C M R 918

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

AGAINST THE VIOLENCE IN CHRISTIAN COLONY IN BADAMI BAGH AREA OVER ALLEGED BLASPHEMY: In the matter of

Constitutional Petition No.10 of 2013, decided on 25th March, 2013.

(a) Constitution of Pakistan---

----Arts. 9, 14 & 184(3)---Suo motu action by the Supreme Court under Art.184(3) of the Constitution regarding violence committed by a mob in a colony of religious minority due to an alleged incident of blasphemy---Police officers retreated from the mob during the occurrence and took refuge in godowns while the mob set houses and household items/equipment in the colony on fire---Supreme Court observed that in such a situation where the police officers themselves had taken shelter in a godown, no one else could protect the life and property of the inhabitants of the colony and their failure to do so was sufficient to prima facie hold that the Fundamental Rights of the citizens of the colony were not protected as enshrined under Arts. 9 & 14 of the Constitution; that a competent person should be appointed on the vacant post of Provincial Inspector General of Police so that he might protect the life and property of the citizens---Supreme Court directed concerned authorities in the Federal Government to post a competent person on the vacant post of Provincial Inspector General of Police, otherwise it would not be possible for the Provincial administration to maintain the law and order situation in the Province.

(b) Constitution of Pakistan---

----Art. 148(3)---Obligation of the Federation---Scope---Under Art.148(3) of the Constitution, it was the duty of the Federation to protect every Province against external aggression and internal disturbances and to ensure that the Government of every Province was carried on in accordance with the provisions of the Constitution.

Ch. Naeem Shakir, Advocate Supreme Court for Applicant (in C.M.A. No.1380 of 2013).

Ashtar Ausaf Ali, A.-G. Punjab, Asjad Javed Ghurral, Additional P.-G., Jawwad Hassan, Additional A.-G., Khan Baig, Acting IGP, Punjab, Muhammad Amlish, CCPO, Lahore, Noor-ud-Din Mengal, DCO, Lahore, Babar Bakht Qureshi, SSP (Inv.), Multan Khan, Former SP (Inv.) and Syed Muhammad Amin Bukhari, SP., City (Inv.), Lahore for Government of Punjab.

Date of hearing: 25th March, 2013.

2013 S C M R 1017

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

ACTION AGAINST DISTRIBUTION OF DEVELOPMENT FUNDS BY EX-PRIME MINISTER OF PAKISTAN RAJA PARVEZ ASHRAF: In the matter of

Constitution Petition No.20 of 2013, decided on 19th April, 2013.

Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution against distribution of development funds by Ex-Prime Minister amongst Parliamentarians and "Notables" for development programmes/schemes---Allocation of funds by the Prime Minister for development schemes/programmes---Scope---Prime Minister was a person who represented the Government and the citizens, therefore, in sanctioning/allocating funds for the schemes, he was bound to follow a high standard of transparency and for such purpose, a system had to be institutionalized following the recognized principles of exercising discretion judiciously--- Prime Minister, being an elected representative, was required to follow the procedure to prove equitable distribution of funds for schemes without any discrimination in any manner---According to the budgetary provisions, an amount of Rs.22 billion (annual) was made available to the Ex-Prime Minister with an authority to sanction the amount in favour of the Parliamentarians and Notables for development programmes---Ex-Prime Minster sanctioned different amounts from time to time for development schemes in the constituency he represented---Parliamentarians, Members of the Provincial Assembly and "Notables", who did not represent any constituency, were also obliged by granting funds for the purpose of different development schemes---Prima facie, it seemed that at the initial stage of sanctioning the funds, no preliminary formalities were carried out about the feasibility etc. of the development programmes---Parliamentarians or the "Notables", who succeeded in approaching the Prime Minister for allocation of funds for development, were obliged by making sanctions without following a transparent procedure---Feasibility of the scheme(s) for which the funds had been sanctioned was not considered---Admittedly, there was no system in place for monitoring the sanctioned funds---Different Ministries/Divisions were directed to divert their funds in favour of the Cabinet Division for purpose of allocating/distributing such funds to Parliamentarians and "Notables" knowing fully well that budgetary allocations of Rs.22 billion had already been exhausted---Instead of spending said funds on any other Public Development Programme (s), the same had been diverted in favour of the Cabinet Division---Funds were diverted from the most important projects, which should not have been done because of the importance of such projects, which had national importance and were in the interest of the economic development of the country---Manner in which the Finance Division and the Planning and Development Division had diverted funds to the Cabinet Division seemed to be non-transparent because preference should have been given for completion of projects of national importance, instead of allocating such budget for execution of small schemes, which were meant only for the benefit of individuals and not for the whole nation---Supreme Court directed that Accountant General Pakistan Revenues should put up the details in respect of each development scheme in question; that each Executing Agency in whose favour cheques were issued, should submit reply through the Accountant General Pakistan Revenues about feasibility of the scheme and also to disclose as to whether the (relevant) Public Procurement Rules were followed and to what extent schemes had been executed along with details of funds so far utilized for each scheme separately; that Accountant General Pakistan Revenues should ensure that pending decision of the present petition the funds which had already been released to the Executing Agencies, were not further distributed and the payments in respect of the schemes should be stopped immediately, and that Executing Agencies to whom work had been assigned or the process of assigning of work was yet to be completed should not proceed further with such schemes, till further orders passed by the Supreme Court.

Ms. Nargis Sethi, Secretary for M/o Cabinet on Court Notice.

Sajjad Mehmood Butt, ASC/LA and Abdul Rauf Khan, Additional Secy (Exp.) for M/o Finance on Court Notice.

Date of hearing: 19th April, 2013.

2013 S C M R 1027

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION, ISLAMABAD through Director-General and another---Appellants/Petitioners

Versus

SYED GUL SHAH and others---Respondents

Civil Appeals Nos.495 to 499, 501, 502 and 754 of 2012 and Civil Petition No.880 of 2012, decided on 10th April, 2013.

(Against the judgments dated 14-3-2012, 22-5-2012 and 9-4-2012 passed by the Islamabad High Court, Islamabad in Writ Petitions Nos.210, 336, 519, 929, 2517 of 2005, 3663 of 2004, 2064 and 2139 of 2009, Intra-Court Appeal No.81 of 2008 in Writ Petition No.1608 of 2006 and Writ Petition No.2047 of 2005.)

(a) Civil service---

----Housing Scheme of Federal Government Employees Housing Foundation---Allotment of plots---Quotas reserved for different categories of Government employees---Eligibility---Paragraph No.1.1(a) of the Terms and Conditions of the Scheme mentioned that 75% quota of plots was fixed for employees of the Federal Ministries/ Divisions/Attached Departments and their subordinate offices, members of regularly constituted groups/services of the Federal Government and members of the superior Judiciary---Paragraph No.1.1(b) of the Terms and Conditions of the Scheme fixed quota of 8% of the plots for employees of autonomous/semi-autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government---Employees, in the present case, who were employed at various autonomous/semi-autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government, claimed that being civil servants they were entitled to be allotted plots from the 75% quota mentioned in paragraph No.1.1(a) of the Terms and Conditions of the said Scheme---Federal Government Employees Housing Foundation ("Housing Foundation") insisted that employees in question were entitled to be allotted plots from the 8% quota mentioned in paragraph No.1.1(b) of the Terms and Conditions of the Scheme---High Court allowed constitutional petitions filed by employees and considered whether their status was that of a civil servant, and consequently declared that they were entitled to be allotted plots from the 75% quota---Legality---Eligibility criteria laid down in the Terms and Conditions of the Scheme was not with reference to being a civil servant but was mainly with reference to being employees of different categories and it did not matter whether the applicant was a civil servant or not---Paragraphs No. 1.1(a) & (b) of the Terms and Conditions of the Scheme made no mention whatsoever to "civil service" or "civil servant" and, thus, the entire discussion made by the High Court, in its impugned judgment regarding the employees being civil servants or not was completely beside the point apart from being irrelevant---Admittedly employees in question were employees of various autonomous/semi-autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government and, thus, their applications for allotment of residential plots in the Scheme attracted only paragraph No. 1.1(b) of the Terms and Conditions of the Scheme fixing a quota of 8% of the plots---Appeal was allowed and impugned judgment of High Court was set aside.

(b) Civil Servants Act (LXXI of 1973)---

----Ss. 3 & 10---Transfer of a civil servant to an autonomous/semi-autonomous Government Organization or Public Sector Corporation under the administrative control of the Federal Government---Terms and conditions of service of civil servant, change in---Scope---Such transfer of a civil servant would not affect his terms and conditions of service as a civil servant.

Pakistan Telecommunication Corporation and another v. Riaz Ahmad and 6 others PLD 1996 SC 222; Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others 1999 PLC (C.S.) 1208; Federal Government Employees Housing Foundation through Director-General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad PLD 2002 SC 1079 and Abdul Rahim v. Pakistan Broadcasting Corporation through Director-General and 8 others 1992 SCMR 1213 rel.

Abdur Rehman Siddiqui, Advocate Supreme Court, Arshad Ali Ch., Advocate-on-Record for Appellants/Petitioners (in C.As. Nos.495 to 499, 501 and 502 of 2012 and C.P. No.880 of 2012).

Abdul Rahim Bhatti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants/Petitioners (in C.A. No.754 of 2012).

Abdul Rahim Bhatti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Mehmood A. Sheikh, Advocate-on-Record for Respondents (in C.As. Nos.495, 497, 498, 499 and 502 of 2012).

Abdur Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents (in C.A. No.754 of 2012).

Nemo for Respondents (in C.P. No.880 of 2012).

Date of hearing: 10th April, 2013.

2013 S C M R 1034

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

QAISER ABBAS---Petitioner

Versus

MUSLIM COMMERCIAL BANK LTD. and others---Respondents

Civil Petition No.275-L of 2013, decided on 30th April, 2013.

(Against the order dated 7-2-2013 of the Lahore High Court, Multan Bench, Multan passed in F.A.O. No.13 of 2011.)

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

----S. 19--- Civil Procedure Code (V of 1908), O. XXI, Rr. 66, 67(2) & 90---Constitution of Pakistan, Art. 185(3)---Execution of decree---Illegal auction---Wrong description of property---Non-compliance of proclamation of sale---Press publication---Judgment debtor assailed auction proceedings on the pleas that Court-Auctioneer without any authority, in the advertisement of auction, had fixed date different from the one fixed by court and illegally auctioned property on such date; that description of property was wrongly and incorrectly mentioned in the advertisement; that proper advertisement required under law was not made as property was situated in city "M", whereas advertisement/publication was made in inconspicuous newspapers published from cities "L" and "V"---All such factors were vital, which vitiated auction but such aspects had not been taken into account by the courts below---Leave to appeal was granted by Supreme Court to consider the contentions of judgment-debtor---Petition was allowed.

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

M. Irfan Waiyn, Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Respondent No.2.

Date of hearing: 30th April, 2013.

2013 S C M R 1035

[Supreme Court of Pakistan]

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

Malik NAWAB SHER---Petitioner

Versus

Ch. MUNEER AHMAD and others---Respondents

Civil Petition No.175-L of 2013, decided on 25th March, 2013.

(On appeal from the judgment of the Lahore High Court, Lahore dated 15-1-2013 passed in I.C.A. No.601 of 2010).

(a) Constitution of Pakistan---

----Arts. 63(1)(i) & 199(1)(b)(ii)---Member of National Assembly---Writ of quo warranto, issuance of, by High Court---Scope---Term of National Assembly having come to an end---Effect---Plea that returned candidate was disqualified to contest election and to hold membership of Parliament on the ground of his dismissal from Pakistan Air Force---Validity---Returned candidate did not presently hold elected office of Member of National Assembly as the same stood dissolved, and thus writ of quo warranto could not be issued against him---Appeal was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 62(1)(f)---Qualification for Membership of Parliament (Majlis-e-Shoora)---Honesty of a candidate---Order of High Court concerning qualification of a candidate to contest elections, interpretation of---Candidate was disqualified by Election Tribunal from contesting elections on the basis that he avoided Government dues and concealed his income; that he failed to submit his wealth tax return, and as such he was not honest---Constitutional petition filed by candidate before High Court against decision of the Tribunal was disposed of with the direction that remarks passed by Tribunal should not be considered to be derogatory to the candidate---Effect---Order passed by High Court contained the phrase "shall not be considered to be derogatory to the petitioner", which could only mean that the remarks or findings of Tribunal about the dishonesty of the candidate (petitioner) should not be treated adverse to his interests---Candidate had decided not to contest the elections and he felt satisfied with the clear direction given by the High Court and thus did not pursue the matter further---Even otherwise apart from placing reliance on order of Tribunal objector did not produce any material or evidence to establish dishonesty of candidate---Appeal was allowed accordingly.

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

----S. 14(5)---Scrutiny of a candidate---Order passed by Election Tribunal in exercise of power under S. 14 of Representation of the People Act, 1976---Nature---Such order was summary in nature and could not be considered as final adjudication of the issue raised before and decided by the Tribunal.

Engr. Iqbal Zafar Jhagra and others v. Khalil-ur-Rahman and 4 others 2000 SCMR 250 and Syed Bachal Shah v. Malik Asad Sikandar and 2 others PLD 1989 Kar. 53 ref.

(d) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Writ of quo warranto---Jurisdiction of High Court---Scope---Jurisdiction of High Court in writ of quo warranto was primarily inquisitorial and not adversarial and thus the court could undertake such inquiry as it might deem necessary in the facts and circumstances of the case, including examination of the entire record and such exercise could even be done suo motu.

(e) Constitution of Pakistan---

----Arts. 63(1), 62(1) & 199(1)(b)(ii)---Pakistan Air Force Act (VI of 1953), S. 39(b)---Disqualification for Membership of Parliament---Member of National Assembly accused of concealing facts during proceedings before High Court---Writ of quo warranto, issuance of---Scope---Plea of objector that candidate had presented a false affidavit in High Court wherein he concealed the fact that he was serving in Pakistan Air Force and was Court-martialed---High Court found that candidate had concealed facts in the said affidavit as he had even denied being employed in the Pakistan Air Force, therefore, writ of quo warranto was issued against him and he was held to be disqualified from contesting in the elections---Validity---Reply submitted by candidate before High Court showed that he had admitted joining the Pakistan Air Force, however what he denied was the averment of the objector about his posting in particular units and being Court-martialed under a particular provision and consequent punishment and dismissal from service---Candidate did not conceal in affidavit from the High Court anything related to his employment in the Pakistan Air Force---High Court, in its impugned judgment formulated only two questions for determination, which did not include question of disqualification of candidate on account of concealment in his written statement, yet it went on to hold him guilty of the same---Further the High Court found the candidate guilty for not fulfilling mandatory requirements of Art.62(1) of the Constitution, however it failed to mention the particular clause under which the candidate stood disqualified---High Court had erred in issuing a writ of quo warranto holding the candidate disqualified from being Member of National Assembly on the ground of being dishonest and concealing facts on oath---Appeal was allowed and impugned judgment of High Court was set aside.

Uzair Karamat Bhindari, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Abdul Shakoor Paracha, Advocate Supreme Court for Respondents Nos.1, 10 and 12 to 15.

Abdul Rehman, Assistant Controller Punjab University for Respondent No.2.

Date of hearing: 25th March, 2013.

2013 S C M R 1045

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

The STATE through Prosecutor-General, Punjab---Petitioner

Versus

Hafiz IKRAM SAEED and others---Respondents

C.Ps. Nos.443 to 449 of 2013, decided on 29th April, 2013.

(On appeal from the judgment dated 13-2-2013, passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in W.Ps. Nos. 4195 of 2010, 1755 and 1761 to 1765 of 2011.)

Constitution of Pakistan---

----Arts. 174 & 199---Constitutional petition under Art.199 of the Constitution on behalf of the State was filed before High Court by Prosecutor General of the Province---Competency---Constitutional petition was dismissed by High Court on technical grounds that the same had not been properly instituted for Secretary, Prosecution of the Province and not the Prosecutor-General should have instituted the constitutional petition for redressal of grievance subject to Art. 174 of the Constitution---Validity---Impugned order of High Court was set aside and permission was accorded to the Province by the Supreme Court to file petition under Art. 199 of the Constitution through Secretary, Prosecution for redressal of grievance.

Sadaqat Ali Khan, P.G., Punjab and Ch. Zubair Farooq, ADPG for Petitioner.

Sajid Ilyas Bhatti, Advocate Supreme Court for Respondents.

Jawad Hassan, Additional A.-G. on Court Notice.

Date of hearing: 29th April, 2013.

2013 S C M R 1047

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Iqbal Hameedur Rahman, JJ

BASHIR AHMED and others---Appellants

Versus

AHMED YAR KHAN and others---Respondents

Civil Appeal No.40 of 2013, decided on 18th April, 2013.

(On appeal from judgment of Lahore High Court, Multan Bench, dated 24-9-2012, passed in Civil Revision No.388-D of 1993.)

Civil Procedure Code (V of 1908)---

----S. 115(1), first proviso---Civil revision petition dismissed by High Court solely on account of non-filing of certified copies of certain documents as required by first proviso to S.115(1), C.P.C.---Propriety---Admittedly, on the date of hearing of revision petition record and proceedings (R&Ps) of two courts below were available with the High Court so as to enable it to hear and decide the revision petition on merits, but still it opted to dismiss the petition on technical grounds without even calling upon the petitioner to do the needful in such regard---Such harsh approach adopted by the High Court which derailed the spirit of the judicial system for dispensation of justice on merits could not be approved---Counsel for both parties agreed that revision petition being 20 years old, might be remanded to the High Court for disposal on merits and in accordance with law---Supreme Court set aside impugned order in circumstances and remanded the case to High Court for disposal on merits.

Gulzarin Kiyani, Senior Advocate Supreme Court and Sh. Akhtar Ali, Advocate-on-Record for Appellants.

M. Shahzad Siddiqui, Advocate Supreme Court for Respondent No.9.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondents Nos. 2, 3(c), 4(b) and (c), 5, 6 and 7 (with permission of Court).

Ex parte for Respondents Nos.1 to 8 and 10.

Date of hearing: 18th April, 2013.

2013 S C M R 1049

[Supreme Court of Pakistan]

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

Mst. AYESHA SHAHEEN---Appellant

Versus

KHALID MEHMOOD and another---Respondents

Civil Appeal No.1088 of 2012, decided on 26th March, 2013.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 19-6-2012 passed in 1243 of 2011.)

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Recovery of dowry articles, decree for---Gold ornaments, market value of---Compensating wife/decree-holder with market value of gold instead of gold ornaments---Scope---Wife filed suit for recovery of dowry articles against her husband, and the list of dowry articles included 17 tolas of gold---Suit prayed for either recovery of 17 tolas of gold or its value, which was stated to be Rs.380,000---Trial Court granted decree only for recovery of dowry articles but not its market value, therefore wife was held entitled to recovery of 17 tolas of gold---Such part of decree could be satisfied either upon handing over by the husband to his wife gold ornaments weighing 17 tolas, and in case he was not in a position to provide the same, the wife could be appropriately and fully compensated in terms of money only if she was paid an amount that would enable her to purchase the same from the open market---Unlike other property, moveable or immoveable, determination of market value of gold did not pose any difficulty as the same was fixed by gold market on daily basis and was readily exchangeable for cash---Wife was entitled to recovery of 17 tolas of gold ornaments or in the alternative its current market value---Appeal was allowed accordingly.

Mst. Mehbooba v. Abdul Jalil 1996 SCMR 1063 distinguished.

(b) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Recovery of dowry articles, decree for---Gold ornaments---Market value, determination of---Scope---Where decree for delivery of gold or its market value was granted the value should be determined with reference to the date of payment, as only then the decree could become fully satisfied.

Agha Muhammad Ali Khan, Advocate Supreme Court for Appellant.

Muhammad Akram Gondal, Advocate Supreme Court for Respondent No.1.

Date of hearing: 26th March, 2013.

2013 S C M R 1053

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tassaduq Hussain Jillani, Amir Hani Muslim, Gulzar Ahmed and Sh. Azmat Saeed, JJ

MIR AJAB KHAN and another---Appellants

Versus

DEPUTY POSTMASTER-GENERAL, SRP, DERA ISMAIL KHAN and others---Respondents

Civil Appeals Nos.512 of 2011 and 447 of 2012, decided on 23rd April, 2013.

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

----S. 4(1)---Appeal before Service Tribunal, filing of---Limitation---Departmental authority not communicating its decision to civil servant within 90 days---Effect---Where within the stipulated period of (90 days) decision of departmental authority was not communicated to the civil servant, he had an option to either file appeal (before the Service Tribunal) within the next 30 days without waiting for decision of departmental authority, or he could wait till the date of communication of decision of departmental authority and from said date he could file appeal within the next 30 days.

Chief Engineer (North) and another v. Saifullah Khan Khalid 1995 SCMR 776 and Taj Muhammad Afridi v. Principal Secretary to the President Secretariat and others 2011 SCMR 1111 ref.

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

----S. 19---Appeal before (Punjab) Service Tribunal, filing of---Limitation---Decision on departmental appeal or review petition not received within a period of 60 days---Effect---Where civil servant had availed opportunity of departmental appeal or review and decision of the same was not received by civil servant within 60 days, then on the expiry of such period he could prefer appeal before the (Punjab) Service Tribunal within the next 30 days, notwithstanding, as to whether departmental appeal had been decided or not.

Chief Engineer (North) and another v. Saifullah Khan Khalid 1995 SCMR 776 and Taj Muhammad Afridi v. Principal Secretary to the President Secretariat and others 2011 SCMR 1111 ref.

(c) Removal from Service (Special Powers) Ordinance (XVII of 2000) [since repealed]---

----S. 10---Appeal before Service Tribunal, filing of---Limitation---Decision on representation or review petition filed before competent authority not received within a period of 60 days---Effect---Where civil servant had availed opportunity of representation or review before competent authority and decision of the same was not received by civil servant within 60 days, then on the expiry of such period he could prefer appeal before the Service Tribunal within the next 30 days, notwithstanding, as to whether representation or review had been decided or not.

(d) Removal from Service (Special Powers) Ordinance (XVII of 2000) [since repealed]---

----S. 10---Appeal before Service Tribunal, filing of---Limitation---Representation or review not available under the rules of the competent authority---Civil servant, in such circumstances, would file appeal before the Service Tribunal within 90 days.

(e) Removal from Service (Special Powers) Ordinance (XVII of 2000) [since repealed]---

----Ss. 9 &10---Appeal before Service Tribunal, filing of---Limitation---Decision on representation or review petition filed before competent authority not received within a period of 60 days---Effect---Where an appeal had been filed under S.9 of Removal from Service (Special Powers) Ordinance, 2000 within a period of 15 days, the aggrieved (civil servant) should wait for 60 days and on the expiry of such period he would have an option either to approach the Service Tribunal within 30 days or wait till the decision of competent authority and on the communication of the same, he could file appeal within 30 days.

Muhammad Shoaib Shaheen, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.A. No.512 of 2011).

Muhammad Asif, Advocate Supreme Court and S.M. Khattak, Advocate-on-Record for Appellants (in C.A. No. 447 of 2012).

Jawad Hassan, Additional A.-G. Punjab, Raja Maqsood Hussain, Suptd. Excise and Malik Shahzad Hussain, Senior E.T.O. for Respondents (in C.A. No. 447 of 2012).

M.S. Khattak, Advocate-on-Record for Respondents (in C.A. No.512 of 2011).

Date of hearing: 23rd April, 2012.

2013 S C M R 1059

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ijaz Ahmed Chaudhry and Muhammad Ather Saeed, JJ

AMIR MASIH---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.345-L of 2013, decided on 3rd May, 2013.

(On appeal from the order dated 8-3-2013 in Criminal Miscellaneous No.1042-B of 2013, passed by the Lahore High Court, Lahore.)

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

----S. 497---First bail application dismissed as withdrawn---Second bail application, filing of---Fresh grounds---Scope---Grounds which were available at the time of withdrawal of earlier (bail) application should be deemed to have been considered and dealt with and the second (bail) application could only be filed on fresh ground(s).

The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 rel.

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

----S. 497---First bail application dismissed as withdrawn---Second bail application, filing of---Fresh grounds---Scope---Where earlier (first) bail application was dismissed as withdrawn, the second bail application could only be filed on any fresh ground and not on the same grounds which were available at the time of disposal of earlier bail application.

Muhammad Siddique v. The State (Criminal Petition No.896-L of 2012) rel.

Ali Hassan v. The State 2001 SCMR 1047 and Muhammad Riaz v. The State 2002 SCMR 184 distinguished.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, common intention---Bail, refusal of---First bail application dismissed as withdrawn---Second bail application, filing of---Fresh grounds---Scope---First bail application of accused filed before High Court was dismissed as withdrawn---High Court dismissed second bail application filed by accused on the basis that he had not urged any fresh grounds---Validity---High Court had rightly dismissed the second bail application, which could only be entertained on fresh grounds---Petition for leave to appeal was dismissed accordingly and leave was refused.

Muhammad Siddique v. The State (Criminal Petition No.896-L of 2012) rel.

Syed Zulfiqar Ali Bhukari, Advocate Supreme Court for Petitioner.

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

Respondent No.2 in person.

Date of hearing: 3rd May, 2013.

2013 S C M R 1062

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain, Tariq Parvez, Ejaz Afzal Khan, Gulzar Ahmed and Sh. Azmat Saeed, JJ

NADEEM AHMED ADVOCATE---Petitioner

Versus

FEDERATION OF PAKISTAN---Respondent

Constitutional Petition No.126 of 2012, decided on 14th December, 2012.

(Under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973.)

Per Khilji Arif Hussain, J.; Tariq Parvez, Gulzar Ahmed and Sh. Azmat Saeed, JJ., agreeing, Ejaz Afzal Khan, J. differing on certain points.

(a) Constitution of Pakistan---

----Arts. 175A(8) & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning non-issuance of appointment orders of two Judges of the Islamabad High Court by the President---Judicial Commission, composition of---Nomination of a name by Judicial Commission by its majority---Scope---Judicial Commission nominating names for appointment of Judges of the Islamabad High Court in the absence of the most senior Judge of Islamabad High Court in the proceedings of the Commission---Legality---Judicial Commission, under the provisions of Art.175A of the Constitution, recommended names of two Judges for appointment, one as a Judge of Islamabad High Court and the other as an Additional Judge of Islamabad High Court for a period of six months, from the date of expiry of their tenure as Additional Judges of the said High Court---Parliamentary Committee on receipt of the said nominations from the Judicial Commission unanimously confirmed the same, and sent the matter to the Prime Minister to forward the same to the President for appointment---President did not issue orders for appointment of said two Judges for the reasons that Judge of Islamabad High Court who sat, voted and took part in the proceedings of the Judicial Commission was not the most senior Judge of Islamabad High Court, therefore, he was a non-entity; that Judicial Commission could not be said to have been properly constituted in the absence of the most senior Judge of Islamabad High Court, therefore, nominations made by the Judicial Commission did not have any legal or constitutional sanctity---Validity---Judicial Commission after deliberations nominated names of Judges by a majority of 7 to 2---Even if it was accepted that Judge of Islamabad High Court who attended the meeting of the Judicial Commission was not the most senior Judge of the said Court, it was established from the record that on the date when the meeting of the Commission was called, the most senior Judge of Islamabad High Court was on ex-Pakistan leave and Judge who attended the proceedings of the Commission was the most senior Judge available---Term "most senior Judge" had not been defined by the Constitution---Even if it was accepted that the Judge of Islamabad High Court who attended the meeting of the Judicial Commission, was not eligible to sit in the meeting, Art.175A(8) of the Constitution stipulated that the decision of the nomination of a person for any vacancy of a Judge of the superior court was to be taken by the Commission, by majority of its total members and as such, attendance of said Judge in the meeting did not vitiate the entire proceedings or made the nominations invalid---Proceedings of the Judicial Commission were not vitiated because of the attendance of a Judge who was not the most senior Judge of Islamabad High Court---Supreme Court directed the concerned authorities to issue notifications, thereby appointing one of the recommended names as a Judge of Islamabad High Court, and the other as an Additional Judge of Islamabad High Court, for a period of six months, giving effect from the date of expiry of their earlier notifications---Constitutional petition was converted into appeal and allowed accordingly.

Managing Director, SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 724 and Muhammad Saleem and 12 others v. Secretary Prosecution, Government of Punjab, Lahore and another 2010 PLC (C.S.) 1 rel.

Anderson v. City of Persons 496, P.2d 1333-Kan: Supreme Court 1972; R v. Bow Street Metropolitan Stipendiary Magistrate (1999) UK (H.L. 52) and Sindh High Court Bar Association's case PLD 2009 SC 879 ref.

Per Ejaz Afzal Khan, J.

(b) Constitution of Pakistan---

----Arts. 175A & 48---Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court---Nominations made by the Judicial Commission---Discretion of the President of Pakistan to send name of a nominee for reconsideration---Scope---Nomination originating from the Judicial Commission, confirmed by the Parliamentary Committee was not an advice in terms of Art.48 of the Constitution, nor was it open to the incidence of return for reconsideration because Art.175A of the Constitution did not envision any such thing---President had no power to return a nomination to any of the tiers it had passed from, even if it was violative of the Constitution or the law.

(c) Interpretation of statutes---

----Casus omissus, doctrine of---Scope---Casus omissus could, in no case, be supplied by the court of law as that would amount to altering the provision---Court of law was not entitled to read words into the Constitution or an Act of Parliament unless clear reason was found within the four corners of either of them.

Attorney General v. Bihari, re Australia Factors Limited (1966) 67 S.R. (N.S.W.) 150 ref.

(d) Constitution of Pakistan---

----Art. 175A, 177, 193 & 42---Appointment of Judges to the Supreme Court and High Courts---Judicial Commission and Parliamentary Committee nominating name of a Judge in contravention of the Constitution and the law---Power of the President of Pakistan to not appoint such a nominee---Scope---President before appointing a person as Judge or a Chief Justice of a High Court or a Judge of the Supreme Court should ensure that his nomination so made was in accordance with the Constitution and the law---President should not appoint a person as a Judge of the Supreme Court or a Judge or Chief Justice of a High Court, whose nomination, in his opinion, was against the Constitution and the law---Where nomination sent to the President for appointment in terms of Art.175A of the Constitution was against the Constitution and the law, a deadlock would inevitably be the consequence as the President could neither return the nomination to the source it had originated from or processed through nor could he appoint the person, thus nominated---Only way out of such a deadlock would be recourse to an advisory or adjudicatory jurisdiction of the Supreme Court---If the Supreme Court upheld the opinion of the President, the Commission should initiate proceedings de novo in accordance with the opinion of the Court, but if the opinion of the President was not upheld by the Court, he should appoint the person so nominated. [Different view].

(e) Constitution of Pakistan---

----Art. 192(1)---Inter se seniority of Judges of the High Court appointed/elevated on the same date/day---Determination---Established practice and yardstick for determining seniority amongst the Judges of a High Court, elevated on the same day, was seniority in age except in the case of Judges from service whose inter se seniority remained intact even on their elevation irrespective of their age---Such principle merited respect and reverence because it not only ruled out personal whim and caprice of the person at one peak or another and shut doors and windows for manipulation at ministerial level but also created an environment which was conducive for the rule of law, supremacy of the Constitution and independence of Judiciary.

Federal Ministry of Justice and Parliamentary Affairs' Letter No.F.12(5)/86-AII, dated 30-4-1987 ref.

(f) Constitution of Pakistan---

----Arts. 175A, 192(1) & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning non-issuance of appointment orders of two Judges of the Islamabad High Court by the President---Appointment of Chief Justice of the High Court---Legitimate expectation of the most senior Judge of a High Court to be appointed as Chief Justice of that High Court---Scope---Judicial Commission nominating a Judge of Islamabad High Court as Chief Justice of said Court, who was not the most senior Judge of that Court---Legality---Practice/convention that the senior most Judge of the High Court, in the absence of any concrete and valid reason had to be appointed as the Chief Justice of the High Court was esteemed, honoured and also had the approval of the Supreme Court---First proviso to Art.175A(5)(iv) of the Constitution, which provided that for appointment of the Chief Justice of a High Court the most senior Judge of that High Court should not be Member of the Judicial Commission, unmistakably indicated that the most senior Judge of the High Court should be nominated as Chief Justice in the absence of any valid reason---Most senior Judge of Islamabad High Court, therefore, had a legitimate expectancy to be appointed as Chief Justice, and that subject to any valid reason which was yet to be recorded by the Commission, he would be entitled to be appointed as such--- Premises recorded by the Commission for departing from the well established principle of determining seniority were not correct---Constitutional petition was converted into appeal and allowed accordingly. [Minority view].

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407 and Malik Asad Ali and others v. Federation of Pakistan and others PLD 1998 SC 33 ref.

Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs and Justice, Islamabad v. Sindh High Court Bar Association through President and another PLD 2012 SC 1067 distinguished.

(g) Constitution of Pakistan---

----Art. 192(1)---Inter se seniority of Judges of High Courts, determination of---President of Pakistan, power of---Scope---President of Pakistan could not determine the seniority of Judges of the High Courts.

(h) Constitution of Pakistan---

----Arts. 175A(8), (14) & 184(3)--- Constitutional petition under Art.184(3) of the Constitution concerning non-issuance of appointment orders of two Judges of the Islamabad High Court by the President---Judicial Commission, composition of---Judicial Commission nominating names for appointment of Judges of the Islamabad High Court in the absence of the most senior Judge of Islamabad High Court in the proceedings of the Commission---Legality---Plea that Judge of Islamabad High Court who sat, voted and took part in the proceedings of the Judicial Commission was not the most senior Judge of Islamabad High Court; that Judicial Commission could not be said to have been properly constituted in the absence of the most senior Judge of Islamabad High Court, therefore, nominations made by the Judicial Commission would not have any legal or constitutional sanctity, notwithstanding that they had been confirmed by the Parliamentary Committee, sent to the Prime Minister and then forwarded to the President---Validity---Failure of most senior Judge of Islamabad High Court to attend the meeting of the Judicial Commission would not vitiate the proceedings of the Commission---Article 175A(14) of the Constitution clearly provided that no action or decision taken by the Commission or Committee would be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any Member from any meeting thereof---Accepting that Judge of Islamabad High Court who sat, voted and took part in the proceedings of the Commission culminating in the nomination of Judges, was a non-entity, yet it would not vitiate the proceedings when the Judicial Commission, in view of Art.175A(8) of the Constitution, had nominated the Judges by majority of its total membership---Proceedings of the Commission would have been vitiated or materially affected if it had nominated the Judges with a margin of one, but where the Commission nominated the Judges by a majority of 7 against 2, the presence or participation of a Judge, who was not the most senior Judge of Islamabad High Court, in the meeting would not be of any consequence--- Constitutional petition was converted into appeal and allowed accordingly.

Managing Director, Sui Sourthrn Gas Company Ltd. Karachi v. Ghulam Abbas and others PLD 2003 SC 724 ref.

Regina v. Bow Street Metropolitan Stipendiary Magistrate and others Ex parte Pinochet Ugarte (No.2) [1999] AU E.R. 577, [1999] 2 WLR 272 distinguished.

(i) Constitution of Pakistan---

----Arts. 175A & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning non-issuance of appointment orders of two Judges of the Islamabad High Court by the President---Proceedings of Judicial Commission held in camera---Propriety---Plea that proceedings in the Judicial Commission could not be held in camera when the legislature purposely provided otherwise so as to ensure complete transparency and open scrutiny---Validity---Members of the Judicial Commission not only represented all the essential segments of the Bar and Bench but also those of the Federation and the Province through Attorney-General for Pakistan, Minister for Law and Justice of the Federation and Minister for Law of the Province---Scrutiny was open in the truest sense of the word when each member was at liberty to present his point of view one way or the other---Transparency in the proceedings could not be affected by holding it in camera if every member consciously and conscientiously gave his input in the nomination, keeping in view its overall impact on the institution on the one hand and society at large on the other---Constitutional petition was converted into appeal and allowed accordingly.

M. Akram Sheikh, Senior Advocate Supreme Court, Sanaullah Zahid, Advocate Supreme Court, Barrister Sajeel Sheryar and Ch. Hassan Murtaza Mann for Petitioner.

Irfan Qadir, A.-G. for Pakistan, Dil Muhammad Alizai, D.A.-G. and Barrister Shehryar Riaz Sh., Advocate for Respondent.

Date of hearing: 14th December, 2012. (Judgment Reserved)

2013 S C M R 1099

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ijaz Ahmed Chaudhry and Muhammad Ather Saeed, JJ

Mrs. AKRAM YASEEN and others---Appellants

Versus

ASIF YASEEN and others---Respondents

Civil Appeal No.2641 of 2006, decided on 30th April, 2013.

(On appeal from the judgment dated 28-9-2006 of the Lahore High Court, Lahore passed in Civil Revision No.140 of 2006.)

(a) Constitution of Pakistan---

----Arts. 185(2) & (3)---Time-barred appeal---Condonation of delay---Scope---Petition for leave to appeal returned with office objection that appeal was maintainable---Delay in filing appeal after becoming aware of office objection---Effect---Appellant claimed that he filed a civil petition for leave to appeal, with the bona fide belief that it was competent, however office returned the same with the objection that it was not competent and an appeal was maintainable---Subsequently appellant filed an appeal with a delay of 49 days after office objection---Effect---Appellant was unable to satisfy the court as to why it took him 49 days after office objection to file an appeal---Appellant was unable to make out a case for condonation of delay in circumstances---Appeal was dismissed accordingly.

Mst. Gul Jan and others v. Naik Muhammad and others PLD 2012 SC 421 distinguished.

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

----S. 14(1)---Civil Procedure Code (V of 1908), O. XXIII, Rr. 1 & 2---Litigant prosecuting with "due diligence" and "good faith" in a court which does not have jurisdiction---Filing of fresh suit in court of competent jurisdiction---Limitation period, commencement of---Scope---Cause of action, accrual of---Scope---Deceased died on 8-6-1977 leaving behind a number of properties---Plaintiff filed an administration suit in respect of the properties on 22-8-1977, which was decreed in his favour---Defendant filed appeal before Appellate Court, which set aside decree of Trial Court vide its judgment dated 12-11-1987 on the basis that ownership of properties could not be determined in an administration suit, and court had no jurisdiction for such purpose---Revision petition filed by plaintiff before High Court was dismissed vide its judgment dated 4-6-1998 on the basis that title of properties mentioned in the suit could not be determined in an administration suit---Plaintiff then filed a civil petition for leave to appeal before the Supreme Court, wherein leave was granted, but when the appeal came up for hearing on 27-4-2005, the plaintiff sought permission for withdrawal of appeal to file a fresh declaratory suit, and he was allowed permission---Plaintiff subsequently filed present (fresh) declaratory suit, against which defendant filed an application for rejection of plaint as being barred by time---Trial Court dismissed said application---Revision filed by defendant before High Court was allowed and application for rejection of plaint was accepted on the basis that plaint was barred by time---Pleas of plaintiff that cause of action accrued to him on 27-4-2005 when appeal before Supreme Court was withdrawn and permission was granted by Supreme Court to file fresh suit; that limitation would run from the date when permission was granted by Supreme Court; that his case was covered under S.14 of Limitation Act, 1908 as he had exercised due diligence and good faith in pursuing his remedy before the wrong court, therefore, period spent before wrong forum should be excluded from the period of computation of limitation--- Validity--- Words "with due diligence" and "good faith" used in S.14 of Limitation Act, 1908 were very important---On 12-11-1987 Appellate Court while setting aside decree of Trial Court informed the plaintiff vide its judgment that in an administration suit it was not possible to determine ownership of properties---Plaintiff instead of abandoning the proceedings and filing a civil suit, choose to file a civil revision before the High Court, which was dismissed on 4-6-1998 on the same basis that it was not possible to determine title of properties in an administration suit---Plaintiff once again instead of filing fresh suit approached the Supreme Court and finally withdrew the appeal on 27-4-2005 with permission to file fresh suit---Plaintiff was not pursuing proceedings before the wrong forum with due diligence and good faith as he should have abandoned the proceedings and filed a fresh civil suit---Time for filing fresh civil suit started running from 12-11-1987 when the Appellate Court set aside decree of Trial Court---Even if date of judgment of High Court was considered i.e. 4-6-1998, the last date for filing fresh civil suit was 3-6-2004, but present suit was filed by plaintiff on 22-7-2005, which was much beyond the period of limitation---Order XXIII, R.1, C.P.C. provided for filing of fresh suit with permission of court, however under O.XXIII, R.2, C.P.C., a plaintiff was bound by law of limitation in the same manner as if the first suit had not been instituted, which for purpose of present case would mean that period of limitation started from the date when deceased expired i.e. 8-6-1977---High Court had rightly accepted application for rejection of plaint on the basis that plaint was barred by time---Appeal was dismissed accordingly.

Mst. Anwar Bibi and others v. Abdul Hameed 2002 SCMR 144 rel.

Sh. Naveed Shahryar, Advocate Supreme Court assisted by Ms. Najma Parveen, Advocate Supreme Court for Appellants.

Ejaz Feroze, Advocate Supreme Court and Mehmudul Islam, Advocate-on-Record for Respondent No.1.

Ex parte for Respondents Nos.2 and 3.

Date of hearing: 30th April, 2013.

2013 S C M R 1107

[Supreme Court of Pakistan]

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

MUHAMMAD INAYAT GONDAL---Petitioner

Versus

REGISTRAR LAHORE HIGH COURT, LAHORE and others---Respondents

Civil Petition No.244-L of 2013, decided on 7th March, 2013.

(Against the judgment dated 24-1-2013 passed by the Lahore High Court, Lahore in Objection Case No.6471 of 2013.)

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Constitution of Pakistan, Art. 185(3)---Judicial officer dismissed from service---Appeal to Service Tribunal---Early hearing of Service Appeal sought by judicial officer---Non-interference by Supreme Court in administrative matters of High Court---Scope---Plea of judicial officer (petitioner) that he was facing grave hardship on account of his dismissal from service and his Service Appeal had not so far been heard by the Punjab Subordinate Judiciary Service Tribunal, therefore an appropriate observation might be made by the Supreme Court facilitating hearing of his appeal at an early date---Validity---Supreme Court was generally slow in interfering with the administrative matters of High Court---Supreme Court directed judicial officer to file an application before the Chief Justice of High Court for redressal of his grievance---Petition for leave to appeal was disposed of accordingly with the observation that if such an application was filed, the Supreme Court was sanguine that Chief Justice of High Court might consider passing an appropriate direction facilitating hearing of judicial officer's Service Appeal by the concerned Tribunal at its earliest convenience.

Petitioner in person.

M. Arif Raja, Additional Advocate-General, Punjab with Muhammad Akam, Deputy Registrar for Respondents.

Date of hearing: 7th March, 2013.

2013 S C M R 1108

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

CAPITAL CITY POLICE OFFICER, LAHORE and 4 others---Appellants

Versus

LIAQUAT ALI---Respondent

Civil Appeal No.286-L of 2011 out of Civil Petition No.981-L of 2010, decided on 2nd May, 2013.

(Against the order dated 5-4-2010 of the Lahore High Court, Lahore in Writ Petition No.3950 of 2010.)

Civil service---

----Pensionary emoluments---Risk allowance and fixed daily allowance, entitlement to---Period of leave preparatory to retirement---Police official, after completion of 26 years of service applied for leave preparatory to retirement with effect from 1-1-2009 to 31-12-2009, which was duly allowed---Pensionary dues of police official were calculated by the police department out of which a deduction of Rs.81,900 was made on the basis that he was not entitled to risk allowance and fixed daily allowance on account of Punjab Government Notification No.8904/FI dated 26-5-2009---Police official filed constitutional petition before High Court contending that department had made the deduction illegally under the garb of the said notification---High Court allowed the constitutional petition and held that police official could not be deprived of risk allowance and fixed daily allowance under the garb of the notification in question---Plea of department that in view of notification in question benefit of risk allowance and fixed daily allowance could only be availed by officers on duty and any officer who was on leave for a period of more than 4 months could not avail the allowances---Validity---Admittedly police official was on leave from 1-1-2009 to 31-12-2009---Notification in question stated that an officer who was on leave for a period beyond 4 months, was not entitled to risk allowance and fixed daily allowance---Department had rightly made deductions from pensionary emoluments of police official---Impugned order of High Court was set aside and it was held by Supreme Court that police official was only entitled to 4 months risk allowance and fixed daily allowance, and if any deductions for the 4 months period had been made from his pensionary emoluments, the same might accordingly be adjusted---Appeal was allowed accordingly.

Ms. Salma Malik, Additional A.-G. for Appellants.

M. Walayat Umar, Advocate Supreme Court for Respondent.

Date of hearing: 2nd May, 2013.

2013 S C M R 1113

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tassaduq Hussain Jillani, Amir Hani Muslim, Gulzar Ahmed and Sh. Azmat Saeed, JJ

DAWA KHAN through L.Rs. and others---Petitioners

Versus

MUHAMMAD TAYYAB---Respondent

Civil Petition No.554-P of 2010, decided on 24th April, 2013.

(On appeal from judgment dated 28-6-2010 of the Peshawar High Court, Peshawar, passed in C.R. No.223 of 2004.)

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

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Arts. 79 & 81---Suit for pre-emption---Talb-i-Ishhad, notice of---Proof---Requirement of producing two truthful witnesses to attest notice of Talb-i-Ishhad---Scope---Pre-emptor producing/examining only one of the witnesses to prove notice of Talb-i-Ishhad---Effect---Plea of pre-emptor that since scribe had appeared in the witness box to support contents of notice of Talb-i-Ishhad, therefore, requirement of examining two witnesses to prove Talb-i-Ishhad in terms of S.13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987 was satisfied, and that in terms of Art.81 of Qanun-e-Shahadat, 1984 if a document produced in evidence was admissible, then the executant was not required to prove its contents---Validity---Provisions of S.13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987 required examination of two truthful witnesses to prove the contents of notice of Talb-i-Ishhad, which was mandatory in nature---Article 79 of Qanun-e-Shahadat, 1984 required production of two attesting witnesses to testify in court to prove a document---Non-production of one of the witnesses to notice of Talb-i-Ishhad, without showing sufficient cause and/or plausible explanation would be violative of the mandatory requirement of proving Talb-i-Ishhad---Admittedly pre-emptor, in the present case, only examined one of the witnesses to notice of Talb-i-Ishhad, which was violative of S.13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987---Examination of scribe by the pre-emptor, in no way, could be construed to be in conformity with the language of S.13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987 read with Art.79 of Qanun-e-Shahadat, 1984---Judgment of Trial Court, by which suit for pre-emption was dismissed, was restored in circumstances---Appeal was allowed accordingly with costs.

Akbar Ali v. Muhammad Abdullah 2007 SCMR 1233 affirmed.

Hamid Qayyum v. Muhammad Azeem PLD 1995 SC 381 ref.

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

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Arts. 79 & 81---Suit for pre-emption---Talb-i-Ishhad, notice of---Proof---Requirement of producing two truthful witnesses to attest notice of Talb-i-Ishhad---Scope---Language of S.13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987 made it mandatory upon the pre-emptor to examine two truthful witnesses of notice of Talb-i-Ishhad, unless it was shown that one of the witnesses was untraceable and/or had died---Non-production of one of the witnesses to notice of Talb-i-Ishhad, without showing sufficient cause and/or plausible explanation would be violative of the mandatory requirement of proving Talb-i-Ishhad.

Akbar Ali v. Muhammad Abdullah 2007 SCMR 1233 affirmed.

Hamid Qayyum v. Muhammad Azeem PLD 1995 SC 381 ref.

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

----Arts. 79 & 81---Contents of a document---Proof---Scope---Plea that under Art.81 of Qanun-e-Shahadat, 1984, if a document produced was admissible in evidence, then the party relying upon it was not required to prove its contents---Validity---Admissibility of document in evidence, by itself, would not absolve the party from proving its contents in terms of Art.79 of Qanun-e-Shahadat, 1984.

Malik Ghulam Mohy-ud-Din, Advocate Supreme Court for Petitioners.

Mian Iqbal Hussain, Advocate Supreme Court for Respondent.

Date of hearing: 24th April, 2013.

2013 S C M R 1120

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Qazi MUSHTAQ AHMAD AWAN---Appellant

Versus

ABDUL GHAFFAR and another---Respondents

Criminal M.A. No.71 of 2013 in Criminal Appeal No.525 of 2010, decided on 15th February, 2013.

(Compliance report by the CPO, Rawalpindi, regarding recovery of abductee Mst. Nadia Mushtaq.)

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 11---Kidnapping, abducting or inducting woman to compel for marriage etc.---Failure of police to recover abductee despite directions of Supreme Court---Negligence of police---Negligent investigation---Alleged abductee was abducted and despite registration of case against accused persons, she could not be recovered---Accused persons challaned for the offence were acquitted by Trial Court---Appeal against acquittal of accused persons was also dismissed by High Court---Complainant filed criminal petition before Supreme Court, which was also dismissed, however during pendency of proceedings before Supreme Court about 30 directions were issued to police to recover the abductee, but no progress was made--- Police could not effect recovery of abductee despite lapse of six years and ultimately on account of personal efforts of brother of abductee, her whereabouts were traced---After her recovery abductee recorded her statement under S.164, Cr.P.C. alleging that a police official had abducted her and subjected her to sexual intercourse and ultimately forcibly got her married to his brother, and that she was also sold to some person---Reports submitted by police during pendency of proceedings before Supreme Court showed that they offered different excuses for not effecting recovery of abductee inasmuch as they tried to persuade the court that abductee had died and DNA test of a dead body after exhumation was also conducted, and at one stage it was alleged that after abduction she had been taken to a different province---Supreme Court directed concerned Senior Superintendent of Police to take necessary steps to conduct investigation of the case fairly and honestly, and to go through the progress reports submitted by police from time to time in compliance of orders of the Supreme Court for effecting recovery of abductee, and to submit a report pointing out the names of persons of police department, who had failed to discharge their duties.

Muhammad Siddiqui Qureshi, Advocate Supreme Court with Qazi Mushtaq Ahmad, Appellant, Qazi Fazal-e-Haq son of Appellant and Mst. Nadia Mushtaq, abductee.

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

Jawwad Hassan, Additional A.-G., Israr Abbasi, SSP (Operations), Haroon Joiya, SP (Pothohar), Malik Rafaqat Hussain, SHO and Muhammad Kafiat, SI/IO on Courts' Notice.

Date of hearing: 15th February, 2013.

2013 S C M R 1124

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar, Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ

CIVIL AVIATION AUTHORITY through Project Director and others---Appellants

Versus

RAB NAWAZ and others---Respondents

Civil Appeals Nos.1231 to 1238, 1065 to 1067 of 2010, decided on 11th April, 2013.

(Against the judgment dated 5-10-2010 of the Lahore High Court, Rawalpindi Bench in R.F.As. Nos. 68 to 75 of 2008, 81 to 83 of 2008.)

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

----Ss. 23 & 4---Acquisition of land---Compensation---Market value of land, determination of---Reliance by court on sale instruments pertaining to transactions taking place much after issuance of notice under S.4 of Land Acquisition Act, 1894---Propriety---Trial Court determined market value of acquired land as Rs.100,000 per kanal by taking into consideration sale mutations and sale instruments produced by owners of land---Appellate Court fixed market value of land at Rs.70,130 per kanal---Validity---Sale mutations and sale instruments produced by owners of land before Trial Court pertained to transactions which took place much after notification under S.4 of Land Acquisition Act, 1894 was issued for acquiring land, thus such evidence was not solely and primarily the evidence worth consideration qua assessment of market value---Appellate Court rightly fixed market value at Rs.70,130 per kanal after considering all factors like potentiality, location, market value and the absence of free will to sell---Appeal was dismissed accordingly.

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

----S. 23(2)---Civil Aviation Authority Ordinance (XXX of 1982), S. 3---Land acquired by a company---Compulsory acquisition charges, determination of---Land acquired by Civil Aviation Authority(CAA) for construction of an International Airport---Status of Civil Aviation Authority (CAA) as a corporate body, which could acquire and hold property by itself, simpliciter did not mean that the land it acquired, entitled its owners to 25% compulsory acquisition charges---Where property was acquired by a company created under company law(s) or under some specific statute, for a public purpose, the owners of acquired land would be entitled to 15% and not 25% compulsory acquisition charges---Where property was acquired by a company for its private holding, vesting and use, the owners of acquired land would have a right to 25% compulsory acquisition charges---Construction of airport was a public purpose and Civil Aviation Authority acquired land for such purpose, therefore, owners of acquired land were entitled to 15% compulsory acquisition charges and not 25%---Appeal was dismissed accordingly.

Haji Muhammad Yaqoob and another v. Collector, Land Acquisition/Additional Deputy Commissioner, Peshawar 1997 SCMR 1670; Nisar Ahmed Khan and others v. Collector, Land Acquisition, Swabi and others PLD 2002 SC 25; Collector Land Acquisition and others v. Muhammad Said through Legal Heirs and others 2001 SCMR 1032 and Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164 rel.

Mst. Sumaira Gul v. Land Acquisition Collector G.S.C. WAPDA, Peshawar and others 2011 SCMR 118 distinguished.

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

----S. 23(2)---Land acquired by a company---Compulsory acquisition charges, determination of---Scope---Entitlement of owners of acquired land to 25% compulsory acquisition charges was not found solely on the factum that beneficiary of acquisition was a company simpliciter, rather foundational and critical aspect in such regard was the purpose for which the land/property was being acquired---Where property was acquired by a company created under company law(s) or under some specific statute, for a public purpose, the owners of acquired land would be entitled to 15% and not 25% compulsory acquisition charges---Where property was acquired by a company for its private holding, vesting and use, the owners of acquired land would have a right to 25% compulsory acquisition charges.

Haji Muhammad Yaqoob and another v. Collector, Land Acquisition/Additional Deputy Commissioner, Peshawar 1997 SCMR 1670; Nisar Ahmed Khan and others v. Collector, Land Acquisition, Swabi and others PLD 2002 SC 25; Collector Land Acquisition and others v. Muhammad Said through Legal Heirs and others 2001 SCMR 1032 and Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164 rel.

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

----S. 23(2)---Supreme Court Rules, 1980, O. XIII, R.3---Civil Procedure Code (V of 1908), O.XLI, R.1(2)---Compulsory acquisition charges, claim of---Owner of acquired land claiming 25% compulsory acquisition charges---Such charge neither claimed before the High Court in appeal nor in memo of appeal before Supreme Court---Effect---Land owner could not claim compulsory acquisition charges in such circumstances---Appeal was dismissed accordingly.

Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164 rel.

M. Munir Peracha, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.As. Nos.1231 to 1238 of 2010).

Munir A. Malik, Senior Advocate Supreme Court for Appellants (in C.A. No.1065 of 2010).

K.A. Wahab, Advocate Supreme Court/Advocate-on-Record for Appellants (in C.A. No.1065 of 2010).

Raja M. Ibrahim Satti, Senior Advocate Supreme Court for Appellants (in C.A. No.1066 of 2010).

Asaf Fasih-ud-Din Vardag, Advocate Supreme Court for Appellants (in C.As. Nos.1065 to 1067 of 2010).

Raja Muhammad Azam, Respondent in person (in C.A. No.1232 of 2010).

Raja M. Ibrahim Satti, Advocate Supreme Court for Respondents (in C.A. No.1236 of 2010).

K.A. Wahab, Advocate Supreme Court/Advocate-on-Record for Respondents (in C.A. No.1238 of 2010).

Asaf Fasih-ud-Din Vardag, Advocate Supreme Court for Respondents (in C.As. Nos.1236 to 1238 of 2010).

Date of hearing: 18th October, 2012.

2013 S C M R 1133

[Supreme Court of Pakistan]

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

SAEED-UD-DIN and others---Appellants

Versus

HAFEEZ BEGUM and others---Respondents

Civil Appeal No.1143 of 2011, decided on 21st February, 2013.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, dated 10-10-2011 passed in Civil Revision No.407 of 2004.)

Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 19A & 20---Succession to tenancy---Tenancy created before coming into force of S. 19A of Colonization of Government Lands (Punjab) Act, 1912---Right of daughters (heirs) of tenant to inherit in such a tenancy---Scope---Colony land was purchased by tenant in an open auction---Tenant died in the year 1945 after paying first instalment of sale price, where after his sons paid the remaining price and mutation was sanctioned in their favour in the year 1956---Daughter of tenant filed a suit claiming her shari share in the property, which suit was decreed by Trial Court---First Appellate Court dismissed appeal filed by sons---High Court also dismissed revision petition filed against order of First Appellate Court holding that rights under the tenancy were inheritable (by all heirs of tenant) in view of S.19A of Colonization of Government Lands (Punjab) Act, 1912---Validity---Section 19A of Colonization of Government Lands (Punjab) Act, 1912, by which tenancy devolved upon heirs of tenant in accordance with Muslim Personal Law, was applicable to those tenancies where the Muslim tenant died after coming into force of S.19A (vide Colonization of Government Lands (Punjab) (Amendment) Act, 1951)---Tenant, in the present case, died in the year 1945, before coming into force of S.19A of Colonization of Government Lands (Punjab) Act, 1912, therefore his tenancy rights were to be governed by S.20 of the same Act---At the time of his death tenant had paid only one instalment and he was still a tenant, therefore, succession to tenancy was to devolve in accordance with S.20 of Colonization of Government Lands (Punjab) Act, 1912, by which section only sons of tenant could succeed to tenancy---Having acquired the tenancy the sons became tenants in their own right, and remained tenants till the year 1956, when they made full payment of sale price and became full owners of the property---Upon payment of full sale price sons became owners of property in their own right under the provisions of Colonization of Government Lands (Punjab) Act, 1912 and not as legal heirs of their father (tenant)---Property devolved upon sons of tenant under S.20 of Colonization of Government Lands (Punjab) Act, 1912 and not by way of inheritance---High Court had erred in holding that S.19A applied to the tenancy---Appeal was allowed, impugned judgment of High Court and decree passed by Trial Court were set aside, and suit filed by daughter of tenant was dismissed.

Mst. Imam Bibi v. Allah Ditta PLD 1989 SC 384 and Mst. Ghulam Bano v. Mst. Noor Jehan 2005 SCMR 658 rel.

Mian Allah Nawaz, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

S. Najam-ul-Hassan Kazmi, Senior Advocate Supreme Court for Respondents Nos.1 to 6 and 9(i-iv, vi).

Other Respondents ex parte.

Date of hearing: 21st February, 2013.

2013 S C M R 1140

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Civil Appeal No.841 of 2012

(Against the Judgment dated 2-7-2012, passed by the Lahore High Court, Lahore, in F.A.O. No.415 of 2009.)

Ch. ANWAAR UL HAQ ARIF, ADVOCATE SUPREME COURT---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Law and others---Respondents

Civil Petition No.1724-L of 2012

(Against the Judgment dated 2-7-2012, passed by the Lahore High Court, Lahore, in W.P. No.15898 of 2009.)

MUHAMMAD KAMRAN, ADVOCATE---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Law and others---Respondents

Civil Appeal No.841 and Civil Petition No.1724-L of 2012, decided on 30th April, 2013.

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

----S. 130(3)---Constitution of Pakistan, Art. 193(2)---Judicial Member of Income Tax Appellate Tribunal, appointment of--- Eligibility criteria---Minimum age---Scope---Words "qualified to be a Judge of High Court" used in S.130(3)(a) & (b) of Income Tax Ordinance, 2001---Interpretation of said words by way of referential legislation---Federal Public Service Commission (FPSC) published an advertisement seeking applications for appointment of Judicial Members, Income Tax Appellate Tribunal---Minimum age for applicants was set at 40 years---Both the respondents, who were below 45 years of age at the closing date for receipt of applications, complied with the recruitment procedure and were appointed as Judicial Members, Income Tax Appellate Tribunal---Plea that S.130(3) of Income Tax Ordinance, 2001 provided that a person could only be appointed as a Judicial Member of the said Tribunal if he was qualified to be a Judge of the High Court, for which minimum age of 45 years was provided under Art.193(2) of the Constitution, therefore, respondents were not qualified to be appointed---Validity---For appointment as Judicial Member of Income Tax Appellate Tribunal, two categories of persons had been provided under S.130(3) of Income Tax Ordinance, 2001, one who had exercised powers of District Judge and the other who had been an advocate of High Court, and both categories of persons were required to fulfil one common qualification i.e. they should be qualified to be a Judge of the High Court---Article 193(2) of the Constitution provided that for appointment as a Judge of the High Court, a person had to be not less than 45 years of age---Although said minimum age was reduced to 40 years by way of Constitution (Second Amendment), Order, 2007, but said amendment was declared to be unconstitutional and void ab initio by the Supreme Court, thus the Constitution continued to lay down an age of not less than 45 years---Words "qualified to be a Judge of High Court" used in S.130(3)(a) & (b) of Income Tax Ordinance, 2001 incorporated by way of referential legislation the whole text and tenor of Art.193(2) of the Constitution, which provides for qualification for appointment to post of Judge of High Court---Both respondents were less than 45 years of age at the time of their appointment---Recommendation letter and notification of appointment of respondents as Judicial Members of Income Tax Appellate Tribunal were held to be without lawful authority and of no legal effect and were accordingly set aside---Federal Public Service Commission (FPSC) was directed to undertake fresh exercise for appointment of Judicial Members of the said Tribunal at the earliest---Appeal was allowed accordingly.

Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6 ref.

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

----S. 130(3)---Constitution of Pakistan, Art. 193(2)---Judicial Member of Income Tax Appellate Tribunal, appointment of---Eligibility criteria---Minimum age---Scope---Person who sought appointment to office of Judicial Member, Income Tax Appellate Tribunal should have an age of not less than 45 years, as provided under Art.193(2) of the Constitution.

Mushtaq Ahmed Mohal, Advocate Supreme Court for Appellant (in C.A. No.841 of 2012).

Maqbool Elahi Malik, Senior Advocate Supreme Court for Petitioner (in C.P. No.1724-L of 2012).

Shafi Muhammad Chandio, D.A.-G., M.S. Khattak, Advocate-on-Record and Pir Muhammad Ishaq, Director (L) FPSC for Respondents Nos. 1 to 3.

Respondent No.4 in person.

Nemo for Respondent No.5.

Date of hearing: 10th January, 2013.

2013 S C M R 1150

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Khilji Arif Hussain and Ejaz Afzal Khan, JJ

REGARDING PUTTING OF TWO GOVERNMENT OFFICERS NAMELY HASAN WASEEM AFZAL AND HIS WIFE FARKHANDA WASEEM AFZAL AS OSD: In the matter of

C.M.A. No. 4918 of 2012 and C.M.A. No.8 of 2013 in Constitutional Petition No.23 of 2012, decided on 26th April, 2013.

Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution---Civil service---Promotion---Posting of civil servants, with outstanding past records, as Officers-on-Special Duty (OSD) without any explanation---Propriety---Political victimization---Violation of directions given by the Supreme Court in the case of Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195)---Two senior civil servants in question, who were officers in BS-21, were made Officers-on-Special Duty (OSDs) since the year 2008 and 2011 respectively and were not given any postings---Cases of said two civil servants were forwarded for promotion but were deferred on the sole ground that they could not earn any Performance Evaluation Reports (PERs) because of their being posted as Officers-on-Special Duty (OSDs), which was not an act of their own doing---Civil servants in question could not earn any Performance Evaluation Reports (PERs) one way or the other because of their posting as Officers-on-Special Duty (OSDs), but this could not be construed to their detriment under any canons of law and propriety---No reason had been given by the concerned department and officials for such treatment---Record also did not show anything which could call for such treatment---Had the past performance or integrity of civil servants in question been below the mark, they could have been treated as such but there was nothing of that sort---"Let them suffer" might be a command of expediency but it could not be approved when, "give them their due" was a command of justice, which prima facie appeared to have been denied to the civil servants out of indignation and ill-will of the high ups---Past record of civil servants had been outstanding throughout---Civil servants had initiated a contest in the High Court (for redressal of their grievance), but called it off when the concerned department assured the High Court that they would be considered for promotion, however nothing in black and white was done towards what was assured---One of the civil servants was due to retire in a day or so while the other one was going to retire in a year in grade 21---Present case appeared to be a typical case of political victimization, where even a moment's delay could cause irreparable harm and immeasurable loss to the officers whose merit lacked intercessional props and pillars---Supreme Court directed Secretary of concerned department to convene a meeting for passing an appropriate order after considering the civil servants in question for promotion to the next higher scale but before sunset.

Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195 ref.

Applicants in person.

Dil M. Khan Alizai, D.A.-G., Malik Sher Afzal, Joint Secretary, Abdul Latif, Dy. Secy. Sarfraz Durrani, Dy. Secy. and Shahbaz Kirmani, SO (Legal), Establishment Division for Respondent.

Date of hearing: 26th April, 2013.

2013 S C M R 1158

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

Moulana AGHA MUHAMMAD---Appellant

Versus

RETURNING OFFICER, NA 261 PISHIN CUM ZIARAT and others---Respondents

Civil Appeal No.427 of 2013, decided on 31st May, 2013.

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

----S. 14(3)---Constitution of Pakistan, Art. 185(1)---Rejection of nomination papers---Restraining a successful candidate from taking oath as member of National Assembly till decision of his appeal by the Supreme Court---Scope---Nomination papers of candidate (appellant) were rejected by Returning Officer---Appeal filed by candidate before Election Tribunal was dismissed---Constitutional petition filed by candidate against order of Election Tribunal was also dismissed by the High Court---Candidate filed civil petition for leave to appeal before the Supreme Court, which was allowed and leave to appeal was granted and operation of orders of Returning Officer, Election Tribunal and High Court were suspended---Candidate contested the elections and was declared successful and a notification was also issued in his favour (by the Election Commission of Pakistan)---Validity---Result of the election was subject to the decision of the appeal pending before the Supreme Court, therefore, in the interest of justice Supreme Court restrained the candidate from taking oath of the office of the Member of National Assembly---Supreme Court observed that, no sooner the appeal was decided the law would take its own course.

Kamran Murtaza, Advocate Supreme Court for Appellant.

Nemo for Respondents.

Muhammad Ikram Chaudhry, Advocate Supreme Court for Applicant (in C.M.A. No.3012 of 2013).

Date of hearing: 31st May, 2013.

2013 S C M R 1159

[Supreme Court of Pakistan]

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

MUHAMMAD ASHRAF TIWANA and others---Petitioners

Versus

PAKISTAN and others---Respondents

Constitutional Petition No.59 of 2011, C.M.As. Nos.326 and 633 and Criminal O.P. 94 of 2012 in Constitutional Petition No.59 of 2011, decided on 12th April, 2013.

(Petition under Article 184(3) of the Constitution).

(a) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----Ss. 6(1) & 5(1)---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the appointment of Chairman, Securities and Exchange Commission of Pakistan--- Maintainability--- Question of "public importance with reference to the enforcement of fundamental rights"---Scope---Securities and Exchange Commission of Pakistan ("the Commission") as such was amongst the most important regulatory authorities directly impacting the economic life of the citizens of Pakistan---Millions of citizens of Pakistan and institutions and quite a few foreign investors and their investments were directly affected by the quality of regulation of companies, securities markets and the statutes/rules etc. administered by the Commission---Persons making investments in and through the capital markets of the country would either be attracted to the capital markets or shy away from such markets depending upon the trust and confidence which they had in such markets and this in turn depended upon the rigour and quality of the regulator---Commission was the apex regulator in the economic sector in Pakistan and its activities including aspects of its governance and functioning were clearly questions of "public importance"---Said questions related directly to the effective enforcement of fundamental rights guaranteed by the Constitution---Importance of the Commission in the economic well-being of the country and of the people of Pakistan and the direct relevance of the Commission in relation to fundamental rights guaranteed by the Constitution ought to be obvious from the very nature and extent of the statutes and activities regulated by the Commission---Bearing in mind the facts and circumstances, the nature, scope and extent of the activities regulated by the Commission and also taking into account its mandate to protect a large body of investors who had invested trillions of rupees in the economy of the country, made the present case a clear case in which there could be no doubt whatsoever that the governance structure of the Commission and more specifically the appointment of its Chairman and Commissioners were questions of "public importance with reference to the enforcement of fundamental rights"---Constitutional petition was held to be maintainable accordingly.

Muhammad Azhar Siddiqui v. Federation of Pakistan PLD 2012 SC 774 and Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 ref.

(b) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----Ss. 6(1) & 5(1)---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the appointment of Chairman, Securities and Exchange Commission of Pakistan---Maintainability---Malice of petitioner---Proof---Plea that present petition was based on malice as employment of petitioner as Executive Director of Securities and Exchange Commission of Pakistan ("the Commission") had been terminated, and that petitioner was merely a disgruntled employee who was motivated by ill-will towards his former bosses and was attempting to abuse the process of the Supreme Court for his personal ends---Validity---Although it was argued that the hands of the petitioner were stained with malice, no such stain or malice was adverted to or brought on record---Mere fact that the petitioner was aggrieved of termination of his employment by the Commission did not in any manner amount to malice---In the present case, nothing had been placed on record which indicated any mala fide on the part of the petitioner, or which would suggest that the petitioner was seeking to exploit the process of the Supreme Court for purely personal gain---Fact that the petitioner had been an employee of the Commission were not sufficient to establish his mala fides, in fact, it was only understandable that employees and other insiders, who naturally had the most understanding of the functioning of concerned institutions, were the ones who most frequently brought the issues of public importance arising in such institutions to the notice of the constitutional courts---Constitutional petition was held to be maintainable accordingly.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 ref.

(c) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Scope---Mala fides of petitioner---Effect---Jurisdiction of Supreme Court under Art.184(3) of the Constitution was discretionary---Where the circumstances and facts of the case so warranted, the Supreme Court refrained from exercising such jurisdiction on account of the evident mala fides of the petitioner.

Bholanath Mukherjee v. R.K. Mission Centerary College (2011) 5 SCC 464; Gurpal Singh v. State of Punjab and others (2005) 5 SCC 136; Dr. B. Singh v. Union of India and others (2004) 3 SCC 363; Dattaraj Nathuji Thaware v. State of Maharashtra (2005) 1 SCC 590 and Ashok Kumar Pandey v. State of West Bengal AIR 2004 SC 280 ref.

Dr. Muhammad Tahirul Qadri v. Federation of Pakistan 2013 SCMR 461 rel.

(d) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution filed before the Supreme Court---Mala fides of petitioner---Proof---Mala fides (of the petitioner) could only be judged on the basis of the facts of each case.

(e) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution filed before the Supreme Court---Maintainability---Contents of such a petition---Significance---Respondent raising concerns about the conduct and antecedents of the petitioner---Validity---Contents of a petition under Art.184(3) of the Constitution would override concerns arising on account of the conduct or antecedents of a petitioner---Where the contents of the petition brought to light questions which were, without doubt, matters of public importance and related directly to the enforcement of fundamental rights, the concerns about the conduct or antecedents of the petitioner, if any, would stand overridden by the contents of the petition.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Bholanath Mukherjee v. R.K. Mission Centerary College (2011) 5 SCC 464; Gurpal Singh v. State of Punjab and others (2005) 5 SCC 136; Dr. B. Singh v. Union of India and others (2004) 3 SCC 363; Dattaraj Nathuji Thaware v. State of Maharashtra (2005) 1 SCC 590; Ashok Kumar Pandey v. State of West Bengal AIR 2004 SC 280; Dr. Muhammad Tahirul Qadri v. Federation of Pakistan 2013 SCMR 461 and Maulvi Iqbal Haider v. CDA PLD 2006 SC 394 rel.

(f) Words and phrases---

----"Malice"---Legal meaning and dictionary meaning---Distinction stated.

Bhagat Singh v. The Crown 1930 The Punjab Law Reporter 73 ref.

(g) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution filed before the Supreme Court--- Malice of the petitioner--- Proof--- Where the petition was to be struck down on account of malice, there must be some evidence of a wrongful act.

(h) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----Ss. 6(1), 5, 16, 17, 18 & 35---Constitution of Pakistan, Art.184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the appointment of Chairman, Securities and Exchange Commission of Pakistan ("the Commission")---Regulatory capture, doctrine of---Scope---Person heading a brokerage house appointed as Chairman of the Commission---Legality---Pleas of petitioner were that the present Chairman belonged to the broker community, and before his appointment he was engaged in the capital markets as a broker and was likely to return to the same business after completing his tenure, therefore his appointment amounted to regulatory capture; that the appointment of a person from the broker community, particularly one who had a direct and active personal involvement in the business of share brokerage until a short while before being appointed Chairman of the Commission, amounted to a "revolving-door policy", and that the appointment of the present Chairman violated the spirit of Ss.16 & 17 of the Securities and Exchange Commission of Pakistan Act 1997, read with S.35 thereof---Validity---Section 5 of the Securities and Exchange Commission of Pakistan Act, 1997 expressly mentioned the "experience and eminence in … the securities market" as one of the possible qualifications of persons appointed as Commissioners of Commission---Section 18 of the said Act gave a list of disqualifications for members of the Commission, but it did not contain any bar on industry insiders---Section 18(e) of the Act provided against a person who failed to disclose any conflict of interest, and although this was an express provision against conflict of interest, it did imply that the law did not prohibit the appointment of a Commissioner of the Commission who might have been a person regulated by Commission prior to his appointment---If the legislature had intended to exclude industry insiders from being appointed as Commissioners, it could either have disqualified such persons or stipulated a cooling off period before appointment as Commissioner---Legislature had chosen not to do so---Fact that Chairman of the Commission was heading a brokerage house before his appointment, did not by itself violate the law---Constitutional petition was disposed of accordingly.

Marver H. Bernstein's work "Regulating Business by Independent Commissions" (Princeton University Press: 1955) and Frederic Boehm, "Regulatory Capture Revisited - Lesson from Economics of Corruption" (International Centre for Corruption Research: 2007) ref.

(i) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Scope---Appointments to public offices---Supreme Court could look into the process of such appointments---Process of such appointments could be judicially reviewed to ensure that the requirements of law had been met.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 ref.

(j) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----Ss. 6 & 5---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the appointment of Chairman, Securities and Exchange Commission of Pakistan ("the Commission")---Appointment of a person as Commissioner and then Chairman of the Commission through the same notification---Lack of transparency, objectivity, due diligence and fairness in the selection process---Effect---Principles of good governance were reflected in Ss.5 & 6 of the Securities and Exchange Commission of Pakistan Act, 1997, which laid down stringent criteria for the kind of person the Federal Government might appoint as Commissioner/Chairman of the Commission---Although the Federal Government had the authority to appoint the Chairman and Commissioners of the Commission, but the Government did not have absolute and unbridled powers in such behalf---Element of subjectivity and discretion of the Government had been severely limited by the legal requirement that an appointee must be a person having integrity, expertise, eminence etc.---Such a requirement imposed a duty on the Federal Government to put in place a process which ensured that the requirements of the law were met---To adhere to the requirements of S.5(1) of the Securities and Exchange Commission of Pakistan Act, 1997, there had to be a process which ensured that the widest possible pool of qualified candidates was available to the Federal Government and from such pool, through a transparent selection process, appointments could be made---No attempt appeared to have been made by the Federal Government in the appointment of the present Chairman to ensure compliance of Ss.5 & 6 of the Securities and Exchange Commission of Pakistan Act, 1997---Federal Government claimed that the Finance Secretary and Finance Minister had a meeting with the Chairman before his appointment, and after due consideration his name was recommended for appointment to the Prime Minister, however neither in the concise statement nor during the prolonged hearing of the present case was any mention made, of any meetings or interview of Chairman with the Finance Minister or Finance Secretary---Names of potential applicants for the post of Chairman of the Commission emerged from all sorts of questionable quarters; sometimes CVs were volunteered by enthusiasts; at other times, CVs were forwarded to the Finance Division from politically active quarters; and at yet other times, nominations were sought by the Finance Division from influential figures---Such practices could not be condoned, being arbitrary and unsuited to the selection in a fair and transparent manner, of persons envisioned in Ss. 5 & 6 of the Securities and Exchange Commission of Pakistan Act, 1997---Due diligence and a fair and demonstrably transparent selection process was missing---Wholly haphazard and un-structured culture of contacts, recommendations or 'sifarish' appeared to have pervaded the corridors of Government in the present case--- Standards of diligence and objectivity observed in the present case fell well short of the minimum standards required by S.5 of the Securities and Exchange Commission of Pakistan Act, 1997---In the absence of due diligence, it was impossible to ascertain objectively the qualifications of recommendees as to their integrity, expertise, experience and eminence etc. as required by S. 5(1) of the said Act---Summary sent by Finance Secretary to the Prime Minister, which resulted in the appointment of the Chairman was neither complete nor self-contained as required by the law or by a common sense understanding of the purpose of a summary---Said summary was made in violation of the express direction of the Prime Minister who was the competent appointing authority---Appointment of present Chairman as Commissioner and then as Chairman of the Commission were notified through the same notification---Appointments as Commissioner and Chairman had to be sequential---Firstly, Commissioners had to be appointed and it was only thereafter that the Federal Government after another exercise undertaken by it objectively and transparently, was to appoint one of the Commissioners to be the Chairman of the Commission---Such exercise was not undertaken in the present case---Notification of appointment of present Chairman as Commissioner and Chairman of the Commission was set aside by the Supreme Court with the observation that issues of appointments to senior positions in public bodies, under-scored the need for a transparent, inclusive and demonstrably fair process for the selection of persons to be appointed to such senior positions, and that the Federal Government might consider the necessity of putting in place independent mechanisms and of framing open, fair and transparent processes so that the objectives for which public bodies were established could be efficiently achieved and at the same time the pernicious culture of arbitrariness, favouritism and nepotism was eliminated---Constitutional petition was disposed of accordingly.

(k) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S. 5(1)---Appointment of Commissioners, Securities and Exchange Commission of Pakistan---Scope---Power of Federal Government to appoint Commissioners---Federal Government could not delegate such power to the Securities and Exchange Commission of Pakistan or its Chairman.

Power of appointment (of Commissioners) vested in the Federal Government, and not in the Securities and Exchange Commission of Pakistan ("the Commission") or its Chairman. Federal Government could not abdicate its duty and delegate such function to the Commission or its Chairman because it was well settled that a statutory delegate could not sub-delegate his powers. Structure of the Commission as envisioned in the Securities and Exchange Commission of Pakistan Act, 1997 required independent decision making by the Government in respect of each appointment of Commissioners and Chairman. If the Chairman was to be given the role of consultee, it would taint the process of selection, firstly, because by doing so the Federal Government would be seen as abdicating its statutory duty and in effect outsourcing its own obligation and secondly, by according a special status to the Chairman in the matter of selecting the constituents of the Commission. Furthermore, giving the Chairman so much power, in the matter of appointment of other Commissioners would not be in line with the independent, collegiate and deliberative relationship which was meant to exist amongst all Commissioners, including the Chairman. Chairman of the Commission was only as much of a statutory and tenured office-holder as the other Commissioners. Object of having at least five Commissioners and the requirement that such Commissioners be appointed by the Federal Government was meant to ensure that each Commissioner was appointed independently so that he could perform his functions in accordance with law without being beholden to the Chairman for his appointment.

(l) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----Ss. 5(1) & (5)---Constitution of Pakistan, Arts.73(2) & 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Appointment of Commissioners, Securities and Exchange Commission of Pakistan ("the Commission")---Constitution of the Commission---Minimum number of Commissioners to be appointed to the Commission---Scope---Insertion of S.5(5) in the Securities and Exchange Commission of Pakistan Act, 1997 by way of Finance Act, 2003 (i.e. a Money Bill)---Constitutionality---Section 5 of the Securities and Exchange Commission of Pakistan Act, 1997 mandated that the Commission should consist of such number of Commissioners, including the Chairman, appointed by the Federal Government as might be fixed by the Federal Government but such number should not be less than five and more than seven---Through the Finance Act, 2003, S.5(5) was added to the Securities and Exchange Commission of Pakistan Act, 1997 which stated that no act or proceeding of the Commission shall be invalid by reason only of the existence of a vacancy in, or defect in the constitution of the Commission---Said amendment did not even remotely fall in the scope of a money bill, which was defined under Art.73(2) of the Constitution---Insertion of S.5(5) in the Securities and Exchange Commission of Pakistan Act, 1997, through Finance Act 2003, was struck down as being unconstitutional---Constitutional petition was disposed of accordingly.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879, 1112-3 and Mir Muhammad Idris v. Federation of Pakistan PLD 2011 SC 213 ref.

(m) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----Ss. 8 & 10---Securities and Exchange Commission of Pakistan Service Rules (HR Handbook) 2007, Ch. 2, Cl. 1---Securities and Exchange Commission of Pakistan ("the Commission")---Hiring/firing of employees---Discretion of the Commissioners and Chairman of the Commission---Such discretion could not be delegated to any other officer of the Commission---Hiring and firing of employees was a decision which the Commission alone could take and that too through a collective and deliberative exercise.

Hiring and firing of employees, particularly those who assisted the Securities and Exchange Commission of Pakistan ("the Commission") in the performance of its decision making function, was a highly significant matter involving personal judgment of the Commissioners and Chairman constituting the Commission. Such statutory authorization had been conferred by the legislature on the Commission through section 8 of the Securities and Exchange Commission of Pakistan Act, 1997 and it could not be further sub-delegated. Legislature in clear terms required decisions concerning hiring and firing of employees by the Commission itself as a deliberative and collegiate body, and not by individuals who purported to be delegates or who might personally be members of the Commission as a body corporate. Clause 1 of Chapter 2 of the Securities and Exchange Commission of Pakistan Service Rules (HR Handbook), 2007 stated that for a certain "class of employees" the Commission might delegate its power of hiring to "the Chairman or any of the Commissioners or a committee or any officer authorized to be the appointing authority." Said provision in the HR Handbook was not in accordance with the law. The Commission might for the purpose, of facilitating itself, constitute committees of its functionaries or even engage the services of outside recruiting agencies to identify and short-list candidates for hiring, however, such functionaries and "head-hunters" could not actually hire a person because this was an authorization vested in the Commission by the Securities and Exchange Commission of Pakistan Act, 1997 and not in such functionaries or recruiters. Likewise was the case of firing/termination and disciplinary action as per section 8(2) of the said Act. A committee or functionary of the Commission might be delegated the function of fact finding etc. or even to make a recommendation for dismissal of an employee, based on an inquiry, but section 8(2) of the said Act did not envision any person or authority (other than the Commission) as a "competent authority" for the purpose of terminating the employment of an employee of the Commission.

(n) Discretion---

----Statutory discretion, delegation of---Legality---Discretionary authorization conferred on a person or body by statute, could not be delegated---All statutory authority was fiduciary in nature; it was vested in the functionary or body specified in the statute and was therefore, as a rule non-delegable.

DeSmith, S.A. Judicial Review of Administrative Action, p.263, 3rd Ed. London: 1973 and Justice (R.) Fazal Karim, Judicial Review of Public Actions, Vol I, p.399, Karachi: 2006 ref.

(o) Discretion---

----Statutory discretion, exercise of--- Scope--- Discretionary authorization conferred on a person or body by statute---Exercise of such discretionary function was in the nature of entrustment and the statutory functionary who was entrusted with exercising his judgment, acted as a fiduciary---Such fiduciary was obliged to exercise discretionary decision-making functions himself---Necessary concomitant of such fiduciary performance of duties, was that the same were exercised in good faith for furtherance of the objectives of the statute.

(p) Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----Ss. 8(2) & 22(5)---Securities and Exchange Commission of Pakistan Service Rules (HR Handbook), 2007, Ch. 11, Cl. 3(1)---General Clauses Act (X of 1897), S. 24A---Constitution of Pakistan, Arts.9, 10A, 14, 18, 25 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Employees of Securities and Exchange Commission of Pakistan ("the Commission")---Termination from employment simpliciter without showing cause---No-cause termination policy of the Commission---Legality---Section 24A of the General Clauses Act, 1897 applied to any order made or direction given under the Securities and Exchange Commission of Pakistan Act, 1997---Section 24A of the General Clauses Act, 1897, stipulated that the person making any order under the power conferred by any enactment shall, so far as necessary or appropriate, "give reasons for making the order", therefore, an unreasoned order of termination (without cause) under Clause 3(1) of Chapter 11 of the Securities and Exchange Commission of Pakistan Service Rules (HR Handbook), would be violative of S.22(5) of the Securities and Exchange Commission of Pakistan Act, 1997 read with S.24A of the General Clauses Act, 1897---Draconian employment policy, such as the no-cause termination policy of the Commission, could not possibly foster an independent and lawful institutional environment---If employees did not have safeguards against arbitrary or mindless termination, they would, to retain their jobs, be inclined towards toeing the line of the Commission or even the Commissioner under whose administrative control, an employee might be working---Employees would lose the independence necessary for the effective functioning of the Commission as a regulatory body---Senior echelons of corporate/statutory bodies such as the Commission were fiduciaries of the people, as such they could only exercise their powers in good faith in the public interest and not on the basis of personal likes or dislikes or on the basis of whims and fancies---Power to terminate (employees) implied within it that it was not the power of a despot, tyrant, 'seth' or 'wadera', but the power of a trustee and fiduciary in the service of the people---Commission could not simply terminate the services of its employees at its whims and pleasure, without having recourse to valid reasons---Commission could only terminate an employment when it had reasons to do so which were fair and just and advanced the purposes of the Securities and Exchange Commission of Pakistan Act, 1997---Clause 3(1) of Chapter 11 of the Securities and Exchange Commission of Pakistan Service Rules (HR Handbook), which allowed for termination simpliciter (without cause) of employees of the Commission was ultra vires the Constitution and inter alia, the Securities and Exchange Commission of Pakistan Act, 1997---Supreme Court directed that the said clause should be replaced appropriately by provisions ensuring due process and adherence, inter alia to Arts.9, 10A, 14, 18 & 25 of the Constitution and which were consistent with the provisions of the Securities and Exchange Commission of Pakistan Act, 1997 ensuring independent and objective decision making without fear or favour, as required of an independent regulator---Constitutional petition was disposed of accordingly.

Government of Pakistan v. Farheen Rashid 2011 SCMR 1 ref.

Afnan Karim Kundi, Advocate Supreme Court assisted by Barrister Momin Ali Khan, Advocate for Petitioners (in both cases).

Anwar Mansoor Khan, Senior Advocate Supreme Court and Naveed Akhtar, S.O. Finance Division for Respondents Nos. 1 and 3 (in Constitutional Petition No.59 of 2011).

Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Barrister Sajeel Sheryar and Ch. Hasan Murtaza Mann, Advocates for Respondents Nos. 2, 5 and 6 (in Constitutional Petition No.59 of 2011).

Salman Akram Raja, Advocate Supreme Court assisted by Malik Ghulam Sabir, Advocate, Sameer Khose, Advocate, Ms. Aneesa Agha, Advocate, Malik Ahsan Mehmood, Advocate and Ms. Zainab Qureshi, Advocate for Respondent No.4 (in Constitutional Petition No.59 of 2011).

Anwar Mansoor Khan, Senior Advocate Supreme Court for Respondent No.1 (in Criminal O.P. No.94 of 2012).

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondent No.2 (in Criminal O.P. No. 94 of 2012).

Nemo for Amicus Curiae (in Criminal O.P. No.94 of 2012).

Muzaffar Ahmed Mirza, Dir. Litigation for SECP (in Criminal O.P. No.94 of 2012).

Date of hearing: 9th April, 2013.

2013 S C M R 1205

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

Khawaja MUHAMMAD ASIF---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition No.30 of 2013 and C.M.As. Nos.2991 and 3015 of 2013 in Constitutional Petition No.23 of 2013 along with Civil Miscellaneous Applications Nos.3331, 3343, 3354, 3355, 3356, 3373, 3375, 3376, 3377, 3378, 3379, 3380, 3382, 3383, 3385, 3396, 3397, 3403, 3404, 3405, 3406, 3407, 3408, 3409, 3410, 3438, 3451, 3467, 3478, 3479, 3480, 3481 and 3492 of 2013, heard on 6th June, 2013.

(Appointments, postings and transfers made by the Caretaker Government.)

(a) Constitution of Pakistan---

----Art. 224(1A)---Care-taker Government---Functions and powers---Scope---Caretaker Government was required to perform its functions to attend to the day-to-day matters, which were necessary to run the affairs of the State and also to watch the national interests, etc.---Caretaker Cabinet/Prime Minister was empowered to carry out only day-to-day affairs of the State with the help of the available machinery/resources/manpower and also to watch national interest against war or national calamity or disaster faced by the nation, including terrorism, etc.---Caretaker Government was not authorized to make decisions/appointments having effect on the working/policies of the future Government, which was likely to take over after the elections---Apart from providing assistance to the Election Commission in organizing free, fair, honest and just elections in the country, Caretaker Government was not vested with the authority to take decisions concerning the affairs of the Government, which were bound to pre-empt the scope and sphere of activity, powers and jurisdiction of an elected Government---Caretaker Government/Cabinet had to confine itself to the running of the day-to-day administration of the State, and, it might take decisions required for ordinary orderly running of the State, but decisions having far-reaching effects should only be taken in extraordinary circumstances, like in war, earthquake, floods, etc.---As newly elected Government was mandated to perform its functions of achieving the object and purpose of welfare of the people for which it had been duly appointed, therefore, Caretaker Cabinet/Government/ Prime Minister, having no mandate of public support, was only caretaker set up and due to such connotation should detach itself from making permanent policies having impact on future of the country---Although there might not be any express restriction on the powers of the Caretaker Government by the Constitution itself, but a major policy-decision which could await the formation of regularly elected Government without causing any disruption or danger to the functioning of the State or orderly running of the country should be left to be determined by the elected government---Caretaker Government possessed limited powers and authority particularly in view of the fact that when it was appointed, there was no National Assembly in place and thus all the important aspects of accountability was absent--- Absence of legislature resulted in lack of checks and balances---Exercise of complete powers by the Caretaker Government went against the doctrine of separation of powers which was the lifeline of any vibrant democracy---Caretaker Government also lacked the mandate of the majority of people, which was to be acquired by elected government through the general elections, therefore, if a Caretaker Government was allowed to exercise complete powers available to an elected Government, it might make an attempt to continue to remain in office for a longer period of time or might take such decisions which might cause problems for the future elected government.

(b) Constitution of Pakistan---

----Arts. 224(1A) & 184(3)--- Constitutional petition under Art.184(3) of the Constitution challenging the appointments, transfers and postings made by Caretaker Government in the civil service, statutory bodies, autonomous/semi-autonomous bodies, corporations and regulatory authorities---Care-taker Government---Functions and powers---Scope---Caretaker Government was required to perform its functions to attend to the day-to-day matters, which were necessary to run the affairs of the State and also to watch the national interests, etc.---Caretaker Government had to exercise its powers for a limited purpose, providing assistance to the Election Commission in organizing free, fair, honest and just elections in the country---Caretaker Government should not exercise its powers to make fresh appointments of the civil servants; make appointments of the heads of the autonomous, semi-autonomous bodies, corporations, regulatory authorities, etc., or make appointments on contract basis or allowing deputation or promotion to the civil servants without realizing the scope of their efficacy to share higher responsibilities to run the affairs of the Government---Orders of appointment, deputation, removal, transfers as well as postings, etc., of civil servants and Chief Executive Officers of statutory bodies, autonomous/semi-autonomous bodies, corporations, regulatory authorities, etc., made by the Caretaker Cabinet/Prime Minister were declared to be void, illegal and of no legal effect with effect from date of issuance of notifications respectively, except the transfers and appointments of senior government officers including the Chief Secretaries and Inspector General of Police of any of the provinces during the election process---Supreme Court directed that, the Federal Government, in exercise of its powers would be authorized to allow to continue any of such appointments, removal, transfers made by the Caretaker Cabinet/Government in the public interest, subject to requisite provision of law to the effect that as far as contract employees were concerned, (those) whose contracts had been cancelled or those to whom fresh contracts of service had been given by the Caretaker Cabinet/Government, shall stand cancelled; that as far as the cases of the transfers of the civil servants/employees before the completion of tenure made allegedly in violation of the law laid down by the Supreme Court in Anita Turab case (PLD 2013 SC 195) were concerned, the concerned departments of Federal Government shall examine their individual cases on the touchstone of the principles laid down in the said case, however, decision given on the complaint of any of the employees by the Supreme Court alleging violation of the principles enunciated in the said case, shall be deemed to be in accordance with law; that the appointments in autonomous/semi-autonomous bodies, corporations, regulatory authorities, etc., made before the appointment of Caretaker Government shall also be subjected to review by the elected Government by adopting the prescribed procedure to ensure that right persons were appointed on the right job.

(c) Constitution of Pakistan---

----Art. 9---National wealth and resources of State---Scope---Under Art.9 of the Constitution it was a fundamental right of the citizens that the national wealth/resources must remain fully protected whether they were under the control of the banks or the autonomous and semi-autonomous bodies.

(d) Civil service---

----Public bodies---Appointments---Parameters to be followed by the Government while making appointments to public bodies stated.

Following parameters were to be considered by the Government while making appointments to public bodies;

(i) Integrity:

Holders of public office should not place themselves under any financial or other obligation to outside individuals or organizations that might seek to influence them in the performance of their official duties.

(ii) Objectivity:

In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices solely on merit.

(iii) Accountability:

Holders of public office were accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny was appropriate to their office.

(iv) Openness:

Holders of public office should be as open as possible about all the decisions and actions that they took. They should give reasons for their decisions and restrict information only when the wider public interest clearly demanded.

(v) Honesty:

Holders of public office had a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protected the public interest.

(vi) Leadership:

Holders of public office should promote and support above principles by leadership and example.

(e) Civil service---

----Appointment---Merits---Appointments made by Government in statutory bodies, autonomous bodies, semi-antonomous bodies, regulatory authorities etc.---Formation of a commission having a fixed tenure of four years for ensuring that such appointments were made solely on merit---Mandate and function of said commission stated.

Following were the functions and mandate that were to be discharged by the Commission, which was to be constituted for ensuring that appointments in statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory authorities were made solely on merit:--

(i) regulate public appointments processes within its remit;

(ii) implement a Code of Practice that set out the principles and core processes for fair and transparent merit-based selections;

(iii) chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where necessary;

(iv) appoint Public Appointments Assessors to chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where appropriate;

(v) report publicly on a public/statutory body's compliance with the Code of Practice, including examples of poor and good performance, and best practice;

(vi) investigate complaints about unfair appointment process;

(vii) monitor compliance with the Code of Practice;

(viii) ensure regular audit of appointments processes within its remit;

(ix) issue an annual report giving detailed information about appointments processes, complaints handled, and highlights of the main issues which had arisen during the previous year. The annual report for the previous calendar year should be laid before the Parliament by 31st March;

(x) take any other measures deemed necessary for ensuring that processes for public sector appointments that fell in its remit were conducted honestly, justly, fairly and in accordance with law, and that corrupt practices were fully guarded against.

The Code of Practice should provide foundations for transparent merit-based public appointments. All public appointments must be governed by the overriding principle of selection based on merit, out of individuals who through abilities, experience and qualities had a proven record that they best matched the need of the public body in question. No public appointment must take place without first being recommended by the Commission. The appointments procedures should be subjected to the principle of proportionality, i.e., what was appropriate for the nature of the post and the size and weight of its responsibilities. Those, selected must be committed to the principles and values of public service and perform their duties with highest level of integrity. The information provided about the potential appointees must be made public. The Commission might from time to time conduct an inquiry into the policies and procedures followed by an appointing authority in relation to any appointment. Commission might also issue a statement or publish a report commenting publicly on any breach or anticipated breach of the Code. The appointment of the successful candidate must be publicized.

Miangul Hassan Aurangzeb, Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record assisted by Syed Ali Shah Gilani, Advocate for Petitioner.

Irfan Qadir, Attorney-General for Pakistan and Dil Muhammad Alizai, D.A.-G. on Courts Notice.

Sher Afzal, Joint Secretary for Estt. Division.

Muhammad Shoaib Shaheen, Advocate Supreme Court for Applicant (in C.M.A. No.3331 of 2013).

Nemo for Applicant (in C.M.A. No.3343 of 2013).

Shah Khawar, Advocate Supreme Court for Applicant (in C.M.A. No.3354 of 2013).

Sardar Muhammad Aslam, Advocate Supreme Court for Applicants (in C.M.As. Nos. 3355-56 of 2013).

Nemo for Applicant (in C.M.A. No. 3373 of 2013).

Applicant in person (in C.M.A. No.3375 of 2013).

Applicant in person (in C.M.A. 3376 of 2013).

Applicant in person (in C.M.A. No.3377 of 2013).

Aftab Rana, Advocate Supreme Court for Applicant (in C.M.A. No.3378 of 2013).

Shahid Mehmood Khokhar, Advocate Supreme Court for Applicants (in C.M.As. Nos.3379-80 of 2013).

Nemo for Applicant (in C.M.A. No.3382 of 2013).

Rai Muhammad Nawaz Kharral, Advocate Supreme Court for Applicant (in C.M.A. No.3383 of 2013).

Applicant in person (in C.M.A. No.3385 of 2013).

Nemo for Applicant (in C.M.A. No.3396 of 2013).

Applicant in person (in C.M.A. No.3397 of 2013).

Applicant in person (in C.M.A. No.3403 of 2013).

Muhammad Akram Gondal, Advocate Supreme Court for Applicant (in C.M.As. Nos.3404-3406 of 2013).

Nemo for Applicant (in C.M.A. No.3407 of 2013).

Nemo for Applicant (in C.M.A. No.3408 of 2013).

Nemo for Applicant (in C.M.A. No.3409 of 2013).

Applicant in person (in C.M.A. No.3410 of 2013).

Nemo for Applicant (in C.M.A. No.3438 of 2013).

Waqar Rana, Advocate Supreme Court for Applicant (in C.M.A. No.3451 of 2013).

Applicant in person (in C.M.A. No.3467 of 2013).

Tariq Asad, Advocate Supreme Court for Applicants (in C.M.As. Nos.3478 and 3481 of 2013).

Applicant in person (in C.M.A. No.3479 of 2013).

Nemo for Applicant (in C.M.A. No.3480 of 2013).

Nemo for Applicant (in C.M.A. No.3492 of 2013).

Date of hearing: 6th June, 2013.

2013 S C M R 1246

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

SADIQ ALI MEMON---Petitioner

Versus

RETURNING OFFICER, NA-237, THATTA-I and others---Respondents

Civil Petitions Nos.240 and 241-K of 2013, decided on 23rd May, 2013.

(On appeal against the order dated 3-5-2013, passed by the High Court of Sindh, Karachi, in Constitution Petitions Nos.D-1644 and D-1721 of 2013.)

(a) Constitution of Pakistan---

----Arts. 63(1)(c), 62(1)(f) & 185(3)---Representation of the People Act (LXXXV of 1976), S. 14(3)---Disqualification for membership of Parliament (Majlis-e-Shoora)--- Person having dual citizenship/ nationality---Filing of a false declaration with regard to dual citizenship/nationality---Rejection of nomination papers---Sagacious, righteous, non-profligate, honest and ameen---Scope---Candidate in question was a dual national but did not disclose such fact at the time of contesting previous general elections---Subsequently candidate applied for cancellation of his foreign nationality, which was cancelled accordingly---After having revoked his dual citizenship/nationality candidate filed his nomination papers for the general elections in 2013---Objection was filed against nomination papers of candidate on the grounds that at the time of contesting previous general elections, he had filed a declaration/affidavit and suppressed the fact of his being dual national, thus he could not be said to be a sadiq, ameen and righteous person and was disqualified to contest the election under Arts. 62 & 63 of the Constitution---Returning officer rejected nomination papers of candidate however Election Tribunal set aside findings of Returning Officer and accepted the nomination papers---High Court set aside order of Election Tribunal and rejected nomination papers of candidate by holding that at the time of contesting previous election, the candidate had made a false declaration and committed perjury by categorically mis-stating on oath that he did not suffer from any disqualification---Validity---Admittedly the candidate had filed a declaration while filing nomination papers for contesting previous general elections, to the effect that he fulfilled qualification specified in Art.62 of the Constitution and was not subject to any disqualification specified in Art.63 of the Constitution---Such declaration was made by the candidate despite the fact that he was holding dual nationality in terms of Art.63(1)(c) of the Constitution---On acquiring the citizenship of a foreign State, candidate stood disqualified from being elected or chosen as a member of Majlis-e-Shoora or the Provincial Assembly---Candidate had filed a declaration, which on its face was a false and untrue declaration, which would bring into application the provision of Art.62(1)(f) of the Constitution, i.e. that he was not sagacious, righteous, non-profligate, honest and ameen---Candidate was not qualified to contest the general election of 2013 and his contesting of election, was of no consequence and was accordingly set aside---Petition for leave to appeal was dismissed accordingly.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1089 ref.

(b) Constitution of Pakistan---

----Arts. 63 & 185(3)---Disqualification for membership of Parliament (Majlis-e-Shoora)---Scope---Nomination papers of candidate (petitioner) rejected by High Court on the basis that he was disqualified from being member of Parliament in terms of Art. 63 of the Constitution---High Court suspending operation of its order till 16-5-2013 on the request of candidate so as to allow him to challenge the same before Supreme Court---Candidate contesting the general elections held on 11-5-2013 and obtaining highest number of votes from his constituency---Plea of candidate was that he had obtained highest number of votes from his constituency and by dismissing his present petition for leave to appeal it would literally amount to de-seating him---Validity---Candidate was suffering from disqualification from entering into election process and it was so held by the High Court in the impugned order and it was only on the request of the candidate that such an order was suspended for the period upto 16-5-2013---Such suspension would not make either the impugned order of the High Court redundant or legitimize the disqualification suffered by the candidate---Petition for leave to appeal was dismissed accordingly.

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

----S. 42---Constitution of Pakistan, Art. 63---Successful candidate, declaration of---Runner up candidate---Successful candidate from a constituency was disqualified by the court in terms of Art.63 of the Constitution---Plea of runner up candidate that in the wake of election of successful candidate being set aside, the runner up candidate should be declared as a successful candidate---Validity---Court could not pass such a declaration---Election Commission of Pakistan was directed to hold fresh election in the constituency.

Rasheed A. Razvi, Senior Advocate Supreme Court and Khalid Javed Khan, Advocate Supreme Court for Petitioner (in both cases).

Peer Tariq Ahmed, Advocate for Respondent No.4 in person (in C.P. No.240-K of 2013).

Faisal Kamal, Advocate Supreme Court for Respondent No.4 (in C.P. No.241-K of 2013).

Respondents Nos. 1 to 3, Pro forma Respondents.

Date of hearing: 23rd May, 2013.

2013 S C M R 1253

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Ijaz Ahmed Chaudhry, JJ

FAUJI FERTILIZER COMPANY LTD. through Factory Manager---Appellants

Versus

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

Civil Appeals Nos.83 and 84 of 2006, decided on 16th May, 2013.

(Against the judgment dated 16-3-2005 passed by the High of Sindh, Karachi in Constitutional Petition D-739 of 1993 and D-754 of 1996.)

(a) Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 2(viii) & (xxviii)---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1969), S. 2(c), (f) & (h)---Contract between company and contractor for supply of labour---Whether status of employees supplied by contractor, would be that of employee of company---Test.

The employees of the contractor shall not be the employees of the company, if (a) they are under the control and management of the contractor, and not that of the company; (b) they are not on the pay-roll of the company and the management of the company is not even aware of the number of the workers employed by the contractor or about the terms and conditions of their appointment or service; and (c) the contractor has the power of hiring and firing the employees, and assigns works to them and the company has no concern with it.

The words "employed by the factory" are wide enough to include workmen employed by the contractors of the company. The employees of the contractor shall be the employees of the company, if the contractor engaged the workers for running of the affairs of the company and not for some other independent work, which has no concern with the production of the company; if the employees are working in a department of the company, which constituted one of the principal organs of the company, the machines belong to the company, the raw material is supplied by the company and the said department is controlled by the supervisors of the company, the employees of the contractor shall be the employees of the company; the employees engaged directly or through a contractor would be deemed to be the employees of the company for whose benefit they perform functions; even though control test is an important test, it is not the sole test; a multiple pragmatic approach weighing up all the factors for and against the employment has to be adopted, including an "integration" test; and if the contract is found to be not genuine and a device to deprive the employees from their legitimate rights/benefits, the so-called contract employees will have to be treated as employees of the company.

Normally, the relationship of employer and employee does not exist between a company and the workers employed by the contractor; however, in the case where an employer retains or assumes control over the means and method by which the work of a contractor is to be done, it may be said that the relationship of employer and employee exists between him and the employees of the contractor. Further, an employee who is involved in the running of the affairs of the company, under the direct supervision and control of the company, working within the premises of the company, involved directly or indirectly in the manufacturing process, shall be deemed to be employees of the company.

In the present case, the employees of the contractor are involved in running the affairs of the company such as filing and loading of urea bag as well as cleaning of machines and floors, therefore, for all intents and purposes, they are employees of the company through the contractor.

Muhammad Sharif v. Punjab Labour Appellate Tribunal (Civil Appeal No.39 of 1977); Souvenir Tobacco Co. Ltd. v. Najammuddin PLD 1977 Kar. 250; Mian Munir Ahmad v. the State 1985 SCMR 257; Farid Ahmad v. Pakistan Burmah Shell Ltd. 1987 SCMR 1463; Nasir Jamal v. Pak Suzuki Motor Company Ltd. 2000 PLC 52; Messrs Hinopak Motors Ltd. v. Chairman Labour Appellate Tribunal 2000 PLC 89; Steel Authority of India Ltd. v. Union of India AIR 2001 SC 3527; Messrs Euro Ceramics Ltd. v. Registrar of Trade Union 1996 PLC 45; Messrs Dawood Cotton Mills v. Sindh Labour Appellate Tribunal 2004 PLC 348; Messrs Basti Sugar Mills v. Ram Ujagar AIR 1964 SC 355; Hussainbhai Calicut v. Alath Factory AIR 1978 SC 1410; D.C. Works Limited v. State of Saurashtra AIR 1957 SC 269; Mehmood Hussain v. Presiding Officer, Punjab Labour Court 2012 SCMR 1539; Pakistan Telecommunication Company Limited v. Muhammad Zahid 2010 SCMR 253; Silver Jubilee Tailoring House v. Chief Inspector AIR 1974 SC 37 = [(1974) 3 SCC 498]; Catering Cleaners of Southern Railway v. Union of India AIR 1987 SC 777 = [(1987) 1 SCC 700]; Sankar Mukherjee v. Union of India AIR 1990 SC 532 = [(1990) (Supp) SCC 668; Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union AIR 2000 SC 1508) = [(2000) 4 SCC 245]; Steel Authority of India Ltd. v. Union of India AIR 2001 SC 3527; Mishra Dhatu Nigam Ltd. v. M. Venkataiah AIR 2003 SC 3124 = [(2003) 7 SCC 488]; Ram Singh v. Union Territory, Chandigarh AIR 2004 SC 969 = [(2004) 1 SCC 126] and Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N. AIR 2004 SC 1639 = [(2004) 3 SCC 514] rel.

(b) Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 2(viii)(xvi) & (xxviii)---Employees of company and contractor---Lock-out, concept of---Applicability---Scope---Concept of lock-out would apply only to employees of company, but not to employees of contractor.

Khalid Anwar, Senior Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record assisted by Barrister Muhammad Anas Makhdoom, Advocate for Appellants.

Abid Hassan Minto, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.2 (in C.A. No.83 of 2006).

Abid Hassan Minto, Senior Advocate Supreme Court for Respondents Nos.3-37, 39-40, 42-114 (in C.A. No.84 of 2006).

Ex parte, other Respondents.

Date of hearing: 16th May, 2013.

2013 S C M R 1271

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

ABDUL GHAFOOR LEHRI---Appellant

Versus

RETURNING OFFICER, PB-29, NASEERABAD-II and others ---Respondents

Civil Appeals Nos.411 to 414 of 2013, decided on 24th May, 2013.

(On appeal from the judgment dated 18-4-2013 passed by the High Court of Balochistan, Quetta in C.Ps. Nos.270 to 273 of 2013.)

(a) Constitution of Pakistan---

----Arts. 62(1)(d) & (f)---Representation of the People Act (LXXXV of 1976), Ss. 99(1)(d), (e), (f), (g) & 14(3)---Conduct of General Elections Order, 2002, Art. 8-A---Disqualification for membership of Majlis-e-Shoora (Parliament)---Sagacious, righteous, non-profligate, honest and ameen---Scope---Making false statement or submitting false declaration in respect of educational qualification---Fake educational degree---Concealment of facts in regard to educational qualification---Objections were filed against nomination of the candidate in question on the grounds that while contesting local bodies elections in the year 2001, he declared his educational qualification as Matric only but in the general elections held in the year 2002, he produced a fake Sanad-ul-Fragh (degree) issued by a madrassa (religious school), which according to the candidate was equivalent to a bachelor degree; that said sanad was not equivalent to a bachelor degree, and that candidate could not be said to be righteous, sagacious or ameen in such circumstances---Returning officer accepted nomination papers of candidate despite the objections---Appeal filed before Election Tribunal was accepted and nomination papers of candidate were rejected and he was declared ineligible to contest the general elections---Constitutional petition filed by candidate before High Court was also dismissed---Plea of candidate was that he was allowed to contest elections by the order of Supreme Court, and now that he had won the elections from the constituency, if he was disqualified, the voters of his constituency would be deprived of their constitutional right to choose a representative of their choice---Validity---Candidate while filing his nomination papers for contesting local bodies elections in the year 2001 had disclosed his qualification as Matric only despite allegedly holding a Sanad-ul-Fragh---Non-mentioning of the said fact in his nomination papers to contest election in the year 2002 amounted to concealment of facts---Even otherwise, the course for obtaining the Sanad-ul-Fragh was normally completed within six years but after passing the matriculation examination in the year 1983, question was as to how could it be possible for the candidate to pass the lengthy course within a short span of two years---Genuineness of Sanad-ul-Fragh produced by candidate to contest the general elections in the year 2002 was doubtful, the same being obtained without completing the educational course for the said sanad---Sanad-ul-Fragh was not at all equated with a bachelor degree, therefore, candidate was not a graduate within the meaning of Art.8-A of the Conduct of General Election Order, 2002, at the time of contesting elections in the year 2002, thus he was not qualified to be elected or chosen as a member of the Provincial Assembly---While producing Sanad-ul-Fragh candidate swore on an affidavit to the effect that said sanad was issued to him by a recognized institution and it was equivalent to a bachelor degree, therefore, he made a false statement and submitted false or incorrect declaration in respect of his educational qualification, thus, he was not righteous, sagacious, non-profligate, honest and ameen within the meaning of Art.62(1)(f) of the Constitution, and as such was not qualified to be elected or chosen as a member of Majlis-e-Shoora---Candidate knowingly and deliberately submitted a degree for becoming a parliamentarian which was not equivalent to a bachelor's degree, therefore, he had not only committed an offence by doing so but also defrauded the voters and the nation, as such, he failed to meet the criteria for proposed candidates under Art.62(1)(d) and (f) of the Constitution and Ss.99(1)(d), (e), (f) & (g) of Representation of the People Act, 1976---Findings of High Court were correct---Appeal was dismissed, elections held in the constituency of the candidate were set aside and Election Commission was directed to hold fresh elections in the said constituency.

(b) Constitution of Pakistan---

----Art. 62(1)(f)---Representation of the People Act (LXXXV of 1976), S.99(1)(f)---Qualification for membership of Majlis-e-Shoora (Parliament)--- Sagacious, righteous, non-profligate, honest and ameen---Scope---Person who indulged into using unfair means to procure his educational qualification---Such a person could not claim to be an honest, righteous or ameen person so as to be assigned the high responsibilities of performing national functions of running the affairs of the country.

Malik Iqbal Ahmad Langrial v. Jamshaid Alam and others PLD 2013 SC 179 rel.

(c) Constitution of Pakistan---

----Arts. 62 & 63---Qualifications/disqualifications for membership of Majlis-e-Shoora (Parliament) under Arts. 62 & 63 of the Constitution---Nature---Under Art.63 of the Constitution there were certain disqualifications which were of temporary nature and a person disqualified under Art. 63 of the Constitution could become qualified after lapse of certain period, whereas, the requirements of Art.62 of the Constitution were of permanent nature and a person had to fulfil certain qualifications/conditions to become eligible to be elected or chosen as a member of Majlis-e-Shoora (Parliament), otherwise, he was not eligible to be a member---Article 62 of the Constitution did not provide any period after which a person, who was declared disqualified under the said Article, could be eligible to contest the elections of the Parliament.

(d) Constitution of Pakistan---

----Art. 62(1)(f)---Person not qualified for membership of Majlis-e-Shoora (Parliament) under Art. 62(1)(f) of the Constitution---Scope---Such a person could not (at any time in the future) become qualified by efflux of time.

Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369 rel.

Kamran Murtaza, Advocate Supreme Court for Appellant.

Zahoor ul Haq Chishti, Advocate Supreme Court for Respondents (in C.A. No.411 of 2013).

Nemo for Respondents (in C.A. No.412 of 2013).

Raja Abdul Rehman, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents (in C.A. No.413 of 2013).

Mian Abdul Rauf, Advocate Supreme Court for Respondents (in C.A. 414 of 2013).

Date of hearing: 24th May, 2013.

2013 S C M R 1281

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Mian Saqib Nisar, Ejaz Afzal Khan, Muhammad Ather Saeed and Iqbal Hameedur Rahman, JJ

ABDUL RASHID alias TEDDI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.6 of 2006, decided on 25th March, 2013.

(On appeal from judgment of Lahore High Court, Multan Bench, dated 13-12-2005, passed in Civil Revision No.241 of 2005.)

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

----S. 345---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Compounding of offence---Compromise by legal heirs of deceased---Right of successors of a legal heir to enter into a compromise for purpose of compounding the offence---Scope---Question as to whether successors of a legal heir of deceased were equally competent to enter into a compromise with the convict---Trial Court convicted convict in question under S.302(b), P.P.C. and sentenced him to death---Death sentence of convict was confirmed by High Court and also by the Supreme Court---Deceased at the time was survived by five legal heirs, her mother and four uncles---Mother and three uncles of deceased compromised with the convict and waived their right of Qisas, however one of the uncles (legal heir) refused to forgive the convict and remained adamant not to do so even till the time of his death---After death of said legal heir, his successors however compromised with the convict, whereafter an application was moved before Trial Court for effecting a compromise, but same was dismissed on the basis that one of the legal heirs in his life time refused to forgive the convict---High Court also upheld order of Trial Court with the observation that despite subsequent compromise with successors of legal heir, who had not forgiven the convict in his lifetime, application for compromise was liable to be dismissed---Validity---Not only the surviving legal heirs of the victim had legal authority to waive right of Qisas and compound the offence with the convict upon payment of compensation of Diyat or without payment in lieu of pleasure of God, but such right was equally inheritable by the successors of any legal heir of the victim, who during life time had either not entered into compromise with the convict or refused to enter into such compromise, as despite his earlier refusal such legal heir was competent to change his mind and subsequently enter into compromise with the convict---Principle of estoppel would not be attracted in such a situation to debar successors of such a legal heir from exercising their right to compromise independently at their own free will---Appeal was disposed of accordingly.

Muhammad Jabbar v. The State and 10 others 2000 PCr.LJ 1688; Ahmad Nawaz v. The State PLD 2007 Lah. 121 and Safdar Ali v. The State PLD 1991 SC 202 ref.

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

----S. 345---Compounding of offence---Concept---Purpose and Islamic significance--- Compromise between convict and legal heirs of deceased---Islam was a religion of peace and harmony, which for the first time in history of mankind introduced and encouraged concept of afw, darguzar/condoning and compounding of offences, even those relating to heinous crimes---Through dictates of various verses from the Holy Quran and Sunnah of Prophet Hazrat Muhammad (pbuh), a workable and practicable scheme for compounding of offences had been outlined under the Islamic criminal law--- Purpose behind such a scheme was to provide a respectable and fair mode, based on the principles of equality of all human beings to reach some settlement/compromise in the larger interest of civil society and to bury the hatchet of revenge once and for all, so as to save other generations from facing the consequences of enmity amongst different segments of society, aimed for satisfaction of endless personal vendetta.

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

----S. 345---Compounding of criminal offence---Interpretation of S.345, Cr.P.C.---Scope---Provisions of law relating to compounding of criminal offences were to be interpreted and applied liberally for the benefit of society and the humanity at large, but at the same time as per Injunctions of Islam.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellant.

Asjad Javed Goral, Additional P.G. (Punjab) for the State.

Date of hearing: 25th March, 2013.

2013 S C M R 1295

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Miss KALSUM KHALIQ, ADVOCATE, ISLAMABAD---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and 3 others---Respondents

Civil Petition No.636 of 2013, decided on 9th May, 2013.

(On appeal from the order dated 23-4-2013 of the Lahore High Court, Lahore passed in W.P. No.9349 of 2013.)

Constitution of Pakistan---

----Arts. 63(1)(o) & 185(3)---Representation of the People Act (LXXXV of 1976), S.14---Disqualification for membership of Parliament (Majlis-e-Shoora)---Default in making payment of social security dues----Nomination papers of candidate were rejected by Returning Officer on the ground of non-payment of social security dues in respect of flour mills owned by him---Appeal filed before Election Tribunal against rejection of nomination papers was also dismissed---Constitutional petition filed before High Court by candidate was allowed and order of Election Tribunal was set aside---Plea of objector that social security dues were due against candidate for more than six months at the time of filing his nomination papers, which dues were deposited by him a day before rejection of his nomination papers---Plea of candidate that his wife had shares in the flour mills, which shares had not been transferred to her yet due to pending litigation, therefore any amount which was due was not deposited, and that in such compelling circumstances he deposited the due amount as a matter of abundant caution in order to avoid possibility of being termed a defaulter---Validity---According to the concerned Social Security Institution an amount was found due against the candidate in respect of the flour mills, whereafter the Institution wrote a letter to the Retuning Officer pointing out the default subsequent to which candidate deposited the due amount through different challans---Prima facie, it seemed that there was a default of Government dues for a period of more than six months form the time when the nomination papers were filed, therefore, under such circumstances, the Returning Officer as well as the Election Tribunal came to the conclusion that the candidate was disqualified from contesting the election---Supreme Court granted leave to appeal to examine as to whether candidate was not disqualified under Art.63(1)(n) of the Constitution from contesting elections, as admittedly he had paid government dues towards Social Security, which were due for over six months at the time of filing of his nomination papers---Supreme Court directed that in the meantime candidate was restrained from contesting elections.

Petitioner in person.

Ahsan Bhoon, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.34.

Malik Muhammad Tariq, DG, Social Security, Aleem Pervaiz, Dir (Legal), M. Anwar, Dy Dir. and Mumtaz Niazi, SSO, Layyah on Court Notice.

Date of hearing: 9th May, 2013.

2013 S C M R 1300

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ijaz Ahmed Chaudhry and Muhammad Ather Saeed, JJ

MUHAMMAD NAWAZ through L.Rs.---Appellant

Versus

Haji MUHAMMAD BARAN KHAN through L.Rs. and others---Respondents

Civil Appeal No.81 of 2000, decided on 8th May, 2013.

(On appeal from the judgment dated 23-2-2000 in R.F.A. No.38 of 1985 passed by the Lahore High Court, Multan Bench, Multan.)

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

----S. 12---Suit for specific performance---Oral agreement to sell immovable property---Proof---Plaintiff filed a suit for specific performance of an oral agreement to sell immovable property---Trial Court decreed the suit in favour of plaintiff---High Court set aside judgment and decree of Trial Court---Validity---Perusal of plaint showed that plaintiff had neither mentioned date of striking of bargain nor witnesses in whose presence the oral agreement to sell was arrived at were mentioned---No period was fixed for completion of oral agreement to sell and such fact did not find mention in the plaint---Names of alleged marginal witnesses of the oral agreement were not incorporated in the plaint---Material contradictions existed in the statements of witness of plaintiff and alleged marginal witnesses of the oral agreement---Statement of one of the marginal witnesses was based on hearsay evidence---Plaintiff failed to produce any document showing that possession was delivered to him in pursuance of the oral agreement to sell---Plaintiff failed to prove execution of oral agreement between the parties and also the payment of amount at the time of oral agreement---Oral agreement to sell had to be proved through credible and unimpeachable evidence but in the present case plaintiff failed to do that---No material illegality or irregularity was found in the impugned judgment of High Court---Appeal was dismissed accordingly.

Mrs. Mussart Shaukat v. Mrs. Safia Khatoon and others 1994 SCMR 2189 distinguished.

(b) Agreement---

----Unwritten/oral agreement concerning property---Proof---Although such an oral agreement was permissible in law but it had to be proved through credible and unimpeachable evidence.

Mst. Sardar Bibi v. Muhammad Bakhsh and others PLD 1954 Lah. 480 rel.

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

----S. 12---Suit for specific performance of an oral agreement to sell immovable property---Proof---Burden of---Party which came forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lay on such party to prove that there was consensus ad idem between both parties for a concluded oral agreement---Oral agreement by which parties intended to be bound was valid and enforceable however to prove the same clearest and most satisfactory evidence was required.

(d) Constitution of Pakistan---

----Art. 185---Appeal before Supreme Court---Variance between judgment of Appellate Court and Trial Court regarding findings of fact---Preference---Judgment of Appellate Court based on proper appraisal of evidence on record---Effect---Findings of Appellate Court were to be given preference in such circumstances.

Madan Gopal and others v. Maran Bepari and others PLD 1969 SC 617 rel.

Muhammad Shafi and others v. Sultan Mahmood and others 2010 SCMR 827 ref.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Gulzarin Kiyani, Senior Advocate Supreme Court for Respondent No.2.

Nemo for Respondents Nos.1, 3 to 10.

Date of hearing: 8th May, 2013.

2013 S C M R 1310

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudrhy, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

KHALID PERVAIZ GILL---Petitioner

Versus

SAIFULLAH GILL and others---Respondents

Civil Petition No.756-L of 2013, decided on 10th May, 2013.

(On appeal against the order dated 25-4-2013, passed by the Lahore High Court, Lahore, in W.P. No.9513 of 2013.)

Constitution of Pakistan---

----Arts. 62(1)(f) & 185(3)---Representation of the People Act (LXXXV of 1976), S.14---Qualification for Membership of Parliament (Majlis-e-Shoora)---"Sadiq" and "ameen"---Scope---Forging of date of birth in an academic qualification certificate---Candidate was alleged to have presented a forged matriculation certificate in the past for contesting election of Nazim, Union Council, wherein his false date of birth was shown---Case was also registered against the candidate on the basis of said certificate---Returning Officer rejected nomination papers of candidate on the basis that he had dishonestly forged an entry, therefore, he could not be termed as "sadiq" and "ameen" and his nomination papers were hit by provisions of Art.62 of the Constitution---Appeal filed before Election Tribunal was allowed---Constitutional petition filed against order of Election Tribunal was disposed of without considering merits with the observation that Election Commission of Pakistan had already prepared final list of validly nominated contesting candidates, which was to be followed by printing of ballot papers containing names of validly nominated contesting candidates along with their election symbols, therefore any interference in the process at such stage was likely to affect the election schedule, and further that objector had a remedy to approach the Election Commission under Representation of People Act, 1976 or avail his remedy under the law after the elections---Plea of objector that High Court should not have refused to exercise jurisdiction under Art.199 of the Constitution, as there was a conclusive findings against the candidate that he had forged his date of birth in the matriculation certificate---Validity---When candidate had contested election for Nazim, Union Council, in the past, the Election Tribunal at that time found that he was not qualified to contest on the basis that matriculation certificate relied upon by him was disowned by the concerned Educational Board---Such finding had become conclusive as though candidate filed a constitutional petition to challenge the same but said petition was subsequently withdrawn without getting the finding set aside---Supreme Court granted leave to appeal, in circumstances, in order to examine as to whether the candidate was qualified to contest the election in terms of Art.62(1)(f) of the Constitution---Supreme Court directed that candidate was to be restrained from contesting the election.

M. Ahsan Bhoon, Advocate Supreme Court for Petitioner.

Sheikh Muhammad Suleman, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondents.

Date of hearing: 10th May, 2013.

2013 S C M R 1314

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ejaz Afzal Khan and Sh. Azmat Saeed, JJ

HAMID MAHMOOD and another---Appellants/Petitioners

Versus

The STATE---Respondent

Criminal Appeal No.415 of 2010 and Jail Petition No.90 of 2012, decided on 9th May, 2013.

(On appeal from the judgment dated 5-3-2010 of the Lahore High Court, Bahawalpur Bench passed in Criminal Appeals Nos.51, 52(ATA) of 2006 and M.R. No.11(ATA) of 2006.)

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

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Constitution of Pakistan, Art. 185(3)---Leave to appeal was granted by Supreme Court to consider quantum of sentence of death penalty confirmed by High Court.

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

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-e-amd, kidnapping for ransom and terrorism---Re-appraisal of evidence---Quantum of sentence---Determination---Expectancy of life, principle of---Applicability---Accused kidnapped young boy for ransom and to avoid risk of identification and capture, brutally murdered him---Death sentence awarded to accused by Trial Court was maintained by High Court---Accused raised the plea of expectancy of life to get death penalty converted into imprisonment for life---Validity---Period of time already served by convict under sentence of death was certainly one of the numerous factors to be taken into account, while confirming death sentence but it was neither the only nor decisive consideration---Tender age of minor, the brutal and heinous nature of crime and pre-mediation persuaded the Supreme Court to agree with sentence awarded by Trial Court as well as High Court---Deterrent aspect of sentence could not be lost sight of either, as it was a crime of kidnapping for ransom of minor followed by murder---Sentence of death was rightly awarded by Trial Court and the courts should not hesitate nor search for laboured pretexts to award lesser sentence---Appeal was dismissed.

Muhammad Ilyas and another v. Muhammad Sufian and another PLD 2001 SC 465; Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452; The State v. Rab Nawaz and another PLD 1974 SC 87; Abdus Sattar v. Muhammad Anwar and 6 others PLD 1974 SC 266; Asadullah v. Muhammad Ali and 5 others PLD 1971 SC 541; Mst. Nuran v. Nura and another PLD 1975 SC 174; Moazam Shah v. Mohsan Shah and another 1995 SCMR 1190; Khurram Malik and others v. The State and others PLD 2006 SC 354; Abdul Malik and others v. The State and others PLD 2006 SC 365; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Muhammad Latif v. The State PLD 2008 SC 503 and Talib Hussain v. The State 1995 SCMR 1538 ref.

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

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-e-amd, kidnapping for ransom and terrorism---Sentence, awarding of---Principle---Deterrence is a factor to be taken into consideration, while awarding sentence specially, the sentence of death.

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

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-e-amd, kidnapping for ransom and terrorism---Reappraisal of evidence---Death sentence---Circumstantial evidence---Effect---Nature of evidence produced at trial is relevant primarily for the purpose of determining guilt or innocence of accused and not sentence to be awarded---No rule exists that sentence of death cannot be awarded in absence of direct ocular evidence, if guilt of accused has been proved beyond reasonable doubt through circumstantial and forensic evidence---Overall features of occurrence, nature of offence and events leading thereto, including motives etc. are relevant to the extent permitted by law.

Asad Manzoor Butt, Advocate Supreme Court for Appellants.

Petitioner through Jail.

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

Date of hearing: 27th February, 2013.

2013 S C M R 1326

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

HASEEBA TAIMOR AFRIDI---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.170 of 2013, decided on 5th June, 2013.

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

----Ss. 497 & 167---Ad interim bail, grant of---Female accused arrested and detained despite non-availability of incriminating evidence against her---Legality---Prosecution conceded that so far it had not collected incriminating evidence against the accused to justify her involvement/detention---When there was no incriminating evidence then question was as to why the police caused the arrest of the accused, who was stated to be of 15 years of age---Despite accused being subjected to investigation no evidence was brought on record but still she was sent to judicial lockup---Supervisory Officer, responsible to monitor the investigation of the subordinate officers, was equally responsible---Magistrate who had been granting remand, should have looked into the file instead of remanding the accused to police custody without any justification---Accused was allowed ad interim bail in circumstances with the directions that explanation should be called from the concerned police officials to state reasons for causing arrest and detention of accused, and that concerned Magistrate should also send his explanation through the Sessions Judge, to explain as to why without adhering to the relevant provisions of law, in a mechanical manner, permission of police remand was granted followed by judicial remand.

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

----S. 167---Investigation not completed within twenty four hours---Giving accused in custody of police--- Scope--- Under S.167, Cr.P.C. it was the duty of the Magistrate to satisfy himself that there were grounds for believing that the accusation or information was well founded for justifying custody of an accused with the police.

Malik Waheed Anjum, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Asjad Javed Ghurral, Additional P.G. along with Imtiaz Ahmed Butt, SHO and Asghar Ali, S.-I. for the State.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for the Complainant.

Date of hearing: 5th June, 2013.

2013 S C M R 1328

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Ijaz Ahmed Chaudhry, J

MUHAMMAD KHAN JUNEJO---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, M/o Law Justice and Parliamentary Affairs and others---Respondents

Civil Petition No.235-K of 2013, decided on 17th May, 2013.

(On appeal from the order dated 9-5-2013 in C.P. No.D-1682 of 2013 passed by the High Court of Sindh, Karachi.)

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

----Ss. 14 & 99---Constitution of Pakistan, Art. 63---Disqualification---Scope---Once there is a disqualification, it is always disqualification.

Mian Najib-ud-Din Owaisi v. Amir Yar Waran PLD 2013 SC 482 ref.

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

----Ss. 12, 14 & 99---Constitution of Pakistan, Arts. 13, 62 & 185(3)---Disqualification of candidate---Double jeopardy, principle of---Applicability---Candidate was declared to be disqualified in previous elections on the ground of holding fake and bogus educational degree---Returning Officer on the basis of previous disqualification, again declared the candidate disqualified---Plea raised by candidate was that disqualification on the basis of previous decision of Election Tribunal as well as Supreme Court would amount to double jeopardy, which was not permissible under the Constitution---Validity---Disqualification of candidate was perpetual and not time related---Candidate had submitted fake and bogus documents in order to become Member of Parliament and he had not only played fraud on electors of his constituency but he had also cheated Returning Officer to believe him to be graduate on the basis of fake and forged documents and such person could not be trusted to lead nation as a legislator---Candidate failed to meet the criteria set out for proposed candidates under Art.62(d)(f) of the Constitution and S.99(1)(d)(e)(f) & (g) of Representation of the People Act, 1976---High Court had rightly accepted Constitutional petition and rejected nomination papers of the candidate---Supreme Court declined to interfere in the orders passed by High Court---Petition was dismissed in circumstances.

Obaidullah v. Mir Muhammad Ali Rindh and others PLD 2012 Bal. 1; Muhammad Khan Junejo v. Fida Hussain Dero and others PLD 2004 SC 452 and Malik Iqbal Ahmad Langrial v. Jamshaid Alam and others PLD 2013 SC 179 ref.

Abid S. Zuberi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 17th May, 2013.

2013 S C M R 1337

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Iqbal Hameedur Rahman, JJ

Engineer IQBAL ZAFAR JHAGRA and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos.33 and 34 of 2005 and Civil Miscellaneous Application No.3821 of 2013, decided on 21st June, 2013.

(Regarding sudden increase in petroleum products on 13-6-2013 due to increase in sales tax.)

(a) Sales Tax Act (VII of 1990)---

---Ss. 3, 13(1) & Sixth Sched.---Provisional Collection of Taxes Act (XVI of 1931), Ss. 3, 4 & 5---Sales Tax Special Procedures Rules, 2007, R. 20(2)(c), proviso---Price Control and Prevention of Profiteering and Hoarding Act (XXIX of 1977), Ss. 6 & 7---Constitution of Pakistan, Arts.3, 9, 24, 70, 77 & 184(3)---Constitutional petition under Art.184(3) of the Constitution regarding sudden increase in prices of petroleum products due to increase in general sales tax---Federal Government/ Executive increasing general sales tax (GST) from 16% to 17% with immediate effect on the value of taxable supplies by way of a declaration under S. 3 of Provisional Collection of Taxes Act, 1931, pending passing of the Finance Bill (Money Bill) 2013-14 in the Parliament ---Legality---Plea of Federal Government that in view of Art.77 of the Constitution taxing power of the Parliament could be delegated to the Government/Executive and the delegatee of such power might then decide at what rate tax was to be imposed or what exemption or reduction, if any, was to be granted---Validity---Article 77 of the Constitution laid down that no tax shall be levied for the purpose of the Federation except by or under the authority of Act of Majlis-e-Shoora (Parliament)---Declaration in question, which was inserted in the Finance Bill (Money Bill) 2013-14 was an executive act of the Government and not a legislative act of the Majlis-e-Shoora (Parliament) unless it was passed by the Majlis-e-Shoora (Parliament), therefore, imposition or increase as well as reduction of the General Sales Tax (GST) with immediate effect in pursuance of the said declaration made under S. 3 of the Provisional Collection of Taxes Act, 1931 was against salutary principle envisaged by Art.77 of the Constitution---Delegation of power to the Executive/Government in the matter of imposing tax would create havoc in the tax regime---No such delegation could be considered to have been conferred upon the Government in terms of S. 3 of the Provisional Collection of Taxes Act, 1931, allowing it to insert a declaration for the purpose of imposing/increasing or reducing General Sales Tax (GST) with immediate effect---Perusal of S. 3 of Provisional Collection of Taxes Act, 1931 showed that the Federal Government might cause to be inserted in the Finance Bill a declaration that it was expedient in the public interest that any provision of the Bill relating to increase or reduction of duty of customs or excise would have immediate effect---In the present case, the Finance Minister, in his budget speech, proposed to increase the General Sales Tax (GST) from 16% to 17% by amending S.3 of the Sales Tax Act, 1990, but effect was given to the proposed amendment immediately on tabling of the Bill in the National Assembly and General Sales Tax (GST) on all taxable supplies and activities as proposed to be increased was levied---Status of the declaration made under S. 3 of the Provisional Collection of Taxes Act, 1931 could not of a sub-legislation qua the Finance Act, which ultimately was to be passed in pursuance of the Finance Bill by the Majlis-e-Shoora (Parliament) under Art. 77 of the Constitution imposing increase in the levy of the sales tax---For protection of their Fundamental Rights, citizens could not be subjected to exploitation in terms of S. 3 of the Provisional Collection of Taxes Act, 1931 for the purpose of subjecting them to pay General Sales Tax (GST) on the taxable supplies in furtherance of any taxable activity---Any provision of an enactment, which was against the provisions of Art. 77 of the Constitution and infringed the Fundamental Rights of the citizens enshrined in Arts.9 & 24 of the Constitution by depriving them of their life or property without any proper legislation was tantamount to violation of Art.3 of the Constitution and the same could not be considered to be a legislative or a sub-legislative instrument for the purpose of imposing or increasing General Sales Tax (GST) pending passing of the Finance Bill (Money Bill) 2013-14 by the Majlis-e-Shoora (Parliament)---Section 3 of the Provisional Collection of Taxes Act, 1931 being contrary to Arts. 3, 9, 24 & 77 of the Constitution was unconstitutional and void---Section 4 of the said Act as a whole was unconstitutional being contrary to Art. 70 of the Constitution---Section 5 of the Provisional Collection of Taxes Act, 1931, did not lay down parameters for the purpose of refund of the recovered taxes to the consumers, as such, in absence of any workable mechanism, it was not enforceable in its present form---Rule 20(2)(c) of the Sales Tax Act (Special Procedure) Rules, 2007 was contrary to the Sales Tax Act, 1990, therefore, it was non est and also violative of the provision of S.4 of the said Act---Supreme Court directed that excess amount equal to 1% (17% - 16%) of the General Sales Tax (GST) recovered on the taxable supplies w.e.f. 13-6-2013 onwards, was refundable to consumers and concerned authorities shall deposit the same with the Registrar of the Supreme Court subject to passing of the Finance Bill (Money Bill), 2013-14 by or under the authority of the Majlis-e-Shoora; that if the sales tax imposed by the Majlis-e-Shoora was to be recovered with retrospective effect, the excess amount deposited with Registrar of the Supreme Court shall be paid to the Government, otherwise appropriate orders would be passed for its disbursement; that prices of essential commodities mentioned in the Sixth Schedule to the Sales Tax Act, 1990 had exorbitantly increased according to the media reports, therefore, Federal and Provincial Governments shall take action under Ss.6 & 7 of the Price Control and Profiteering and Hoarding Act, 1977 to keep the prices consistent as per the Sixth Schedule under S.13(1) of the Sales Tax Act, 1990, and that pending passing of the Finance Bill (Money Bill) 2013-14, sales tax shall be recovered from consumers on the taxable supplies at the rate prescribed under S.3 of the Sales Tax Act, 1990.

(b) Constitution of Pakistan---

----Art. 77---Tax, levy of---Scope---Levy of tax for the purpose of Federation was not permissible except by or under the authority of Act of Majlis-e-Shoora (Parliament)---Such legislative powers could not be delegated to the Executive authorities---Majlis-e-Shoora (Parliament)/ Legislature alone and not the Government/Executive was empowered to levy tax---Delegation of such power to the Government/Executive was for the purpose of implementation of such laws, which was to be done by framing rules, or issuing notifications or guidelines, depending upon the case, but in no case, authority to levy tax for the Federation was to be delegated to the Government/Executive.

Cyanamid Pakistan Ltd. v. Collector of Customs PLD 2005 SC 495; Government of Pakistan v. Muhammad Ashraf PLD 1993 SC 176; All Pakistan Textile Mills Associations v. Province of Sindh 2004 YLR 192 and Ittefaq Foundry v. Federation of Pakistan PLD 1990 Lah. 121 ref.

(c) Words and phrases---

---"Law"---Interpretation.

Gokula Education Foundation v. The State of Karnatka AIR 1977 Kant. 213 ref.

(d) Interpretation of statutes---

----Statute, constitutionality of---Examination of the constitutionality of a statute by a court---Scope---While examining the constitutionality of a statute, a court must exercise restraint, and efforts should be made to save the statute instead of destroying it.

Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923 ref.

(e) Sales Tax Act (VII of 1990)---

----S. 3.---Provisional Collection of Taxes Act (XVI of 1931), S. 3---Sales Tax Special Procedures Rules, 2007, R. 20 (2)(c), proviso---Constitution of Pakistan, Arts. 3, 9, 24, 77 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution regarding sudden increase in prices of petroleum products due to increase in General Sales Tax---Federal Government/Executive increasing General Sales Tax (GST) from 16% to 17% with immediate effect on the value of taxable supplies by way of a declaration under S. 3 of Provisional Collection of Taxes Act, 1931, pending passing of the Finance Bill (Money Bill) 2013-14 in the Parliament---Increase in General Sales Tax (GST) imposed on Compressed Natural Gas (CNG) pending passing of the Finance Bill (Money Bill) 2013-2014 in the Parliament---Legality---By means of the Finance Bill (Money Bill) 2013-14, General Sales Tax (GST) was proposed to be increased from 16% to 17% by amending S. 3 of the Sales Tax Act, 1990 from 13-6-2013 on the value of taxable supplies made in course or furtherance of any taxable activity, but the notification issued by Oil and Gas Regulatory Authority (OGRA) clearly indicated that General Sales Tax [GST] was being charged on CNG on the increased rate of 26%---Such increased recovery was being made under the provision of R. 20(2)(c) of the Sales Tax Act Special Procedures Rules, 2007---Such recovery was absolutely contrary to S. 3 of the Sales Tax Act, 1990 as it had been sought to be amended in the Finance Bill (Money Bill) 2013-14, therefore, General Sales Tax (GST) at the increased rate could not be recovered unless so provided under the statute---Federal Government had no lawful authority to impose or recover General Sales Tax (GST) on CNG @ 26% with effect from 13-6-2013 until passing of the Finance Bill (Money Bill) 2013-14--- Under proviso to R. 20(2)(c) of the Sales Tax Special Procedures Rules, 2007, 9% GST in addition to the sales tax prescribed under S. 3 of the Sales Tax Act, 1990 imposed or recovered from the consumers on CNG was unconstitutional and contrary to Arts.3, 9, 24 & 77 of the Constitution as well as S.3 of the Sales Tax Act, 1990---Excess amount equal to 1%, i.e., 17% - 16%, of GST recovered on CNG w.e.f. 13-6-2013 onward was thus refundable to the consumers---Supreme Court directed that concerned authorities should deposit such excess amount with the Registrar of the Supreme Court subject to passing of the Finance Bill (Money Bill), 2013-14 by or under the authority of Majlis-e-Shoora (Parliament); that the Government should deposit 9% out of 26% of GST charged on CNG as per notification dated 13-6-2013 in the same manner; that if the sales tax imposed by the Majlis-e-Shoora was to be recovered with retrospective effect, the excess amount deposited with Registrar of the Supreme Court shall be paid to the Government, otherwise appropriate orders would be passed for its disbursement; that in respect of recovery of additional 9% GST on CNG, statement should also be filed on behalf of the Government showing the amount of GST so recovered from the consumers under proviso to R. 20(2)(c) of the Sales Tax Special Procedures Rules, 2007 on the value of CNG in addition to 16% General Sales Tax (GST) imposed under S. 3 of the Sales Tax Act, 1990 as such amount was also to be refunded to the consumers; that pending passing of the Finance Bill (Money Bill), 2013-14, sales tax shall be recovered from consumers on petroleum products and CNG at the rate prescribed under S. 3 of the Sales Tax Act, 1990, and that Oil and Gas Regulatory Authority (OGRA) shall issue revised notification fixing prices of CNG forthwith recovering sales tax @16% on taxable supplies till passing of Finance Bill (Money Bill), 2013-14 by the Majlis-e-Shoora.

M. Ikram Ch., Advocate Supreme Court for Petitioners (in Constitutional Petition No.33 of 2005).

Nemo for Petitioners (in Constitutional Petition No.34 of 2005).

Muneer A. Malik, Attorney-General for Pakistan assisted by Faisal Siddiqui for Respondents (Federation of Pakistan).

Dil Muhammad Alizai, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for Respondents (Federation of Pakistan).

Dr. Rana M. Shamim, Advocate Supreme Court, Arshad Ali Chaudhry, Advocate-on-Record, Muhammad Aaqil, Member (Legal), Raza Baqir, Member and Ashfaq Tunio, Chief Sales Tax for Respondents (FBR).

Salman Akram Raja, Advocate Supreme Court, Saeed Ahmad Khan, Chairman, Abdul Basit, Law Officer and Ms. Misbah Yaqoob, JED(F) for Respondents (OGRA).

Ch. Akhtar Ali, Advocate-on-Record for Respondents (M/o Petroleum).

Nemo for M/o Finance.

Dilawar Khan, Dy. Director for M/o Climate change.

Nemo for OCAC.

Dates of hearing: 19th and 21st June, 2013.

2013 S C M R 1383

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar, Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Gulzar Ahmed and Muhammad Ather Saeed, JJ

ABDUL WAHAB and others---Petitioners/Applicants

Versus

HBL and others---Respondents

Constitutional Petition No.39 of 2007, H.R.Cs. Nos.14127-S, 14646 of 2009, 13486-S and 47811-P of 2010, decided on 17th October, 2012.

(Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973.)

(a) Habib Bank Limited Staff Service Rules, 1981---

----Rr. 15 & 17---Banking Companies Ordinance (LVII of 1962), Preamble---Constitution of Pakistan, Arts. 199(1)(c) & 184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the policy decision taken by the Board of Management of Habib Bank Limited ("the Bank") by which 308 employees of the Bank were compulsorily retired early and services of 2 employees were terminated by paying them three months dues---Constitutional petition filed before High Court against the Bank---Maintainability---'Person' or 'authority' performing functions in connection with the affairs of the Federation---Scope---Plea of employees (petitioners) was that the State/Federation had a considerable shareholding in the Bank in question and representation in the managing affairs thereto; that the Bank was being regulated by and under the authority of the State Bank of Pakistan; that the Bank was a 'person' in terms of Art. 199(1)(c) of the Constitution as it was distinct from an 'ordinary private individual', because it (the Bank) was owned and controlled by the State, therefore, for all intents and purposes, an appropriate writ petition against the Bank was maintainable under Art.199(1)(c) of the Constitution---Validity---Bank in question had been privatized and the majority shareholding thereof, had been acquired and was vested in a (private) foundation---Board of Management of the Bank was predominantly represented by the said foundation---Petitioners were unable to show that the State/Federation had the majority of shareholding, or majority representation in the Board of Management of the Bank---State Bank of Pakistan was only a regulatory body for all the banks operating in Pakistan in terms of Banking Companies Ordinance, 1962---Such regulatory role and control of State Bank of Pakistan could not clothe the Bank in question, with the status of a 'person' or the 'authority' performing the functions in connection with the affairs of the Federation---Bank in question was a private institution for all intents and purposes---Constitutional petition was held to be not maintainable and was dismissed accordingly.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244 and Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 ref.

(b) Habib Bank Limited Staff Service Rules, 1981---

----Rr. 15 & 17---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the policy decision taken by the Board of Management of Habib Bank Limited ("the Bank") by which 308 employees of the Bank were compulsorily retired early and services of 2 employees were terminated by paying them three months' dues---Maintainability---Contractual employees of a Bank governed by non-statutory rules---Employees (petitioners) in question were employed by the Bank as a result of a prescribed internal process of the Bank and the letters of their appointment clearly indicated that they were taken into employment on their unequivocal acceptance of the terms and conditions of employment---When employees duly accepted the offer of appointment, it culminated into a valid and a binding service contract between the parties, which for all intents and purposes was meant to govern and regulate the relationship inter se between the parties---Constitutional petition was held to be not maintainable in such circumstances and was accordingly dismissed.

(c) Constitution of Pakistan---

----Art. 199--- Constitutional petition before the High Court---Maintainability---Service grievance---Person/employee not governed by statutory rules of service---Where a service grievance was agitated by a person/employee who was not governed by statutory rules of service, before the High Court, in terms of Art.199 of the Constitution, such petition shall not be maintainable.

Pakistan International Airline Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676 and Pakistan Telecommunication Co. Limited v. Iqbal Nasir PLD 2011 SC 132 rel.

(d) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---Service grievance---Employment on contractual basis---While exercising jurisdiction under Art. 184(3) of the Constitution the Supreme Court was bound by the conditions of the said Article, and moreover by such rules which were laid by the Supreme Court for regulating its jurisdiction, keeping in view the principles of restraints---In cases of contractual service, where the grievance agitated was against a private person, there was no reason that such restraint should not be resorted to by the Supreme Court.

(e) Constitution of Pakistan---

----Art. 184(3)---Judicial review---Scope---Supreme Court had the power of judicial review to examine and adjudge any legislative and/or administrative action of the State on the touchstone of the fundamental rights and, to pass appropriate orders for protecting such rights and enunciating the law in respect thereof.

(f) Constitution of Pakistan---

----Arts. 184(3) & 199---Jurisdiction of the Supreme Court under Art.184(3) of the Constitution---Scope and restraints---Constraints and limitations, if any of Art.199 of the Constitution, might not stricto sensu be attracted to the jurisdiction of the Supreme Court under Art.184(3) of the Constitution, in view of the expression "without prejudice" appearing at the very opening of Art.184(3), meaning thereby "without any detriment" (i.e. without being harmed or damaged or hurt)---However, the Supreme Court had the power and the jurisdiction to lay down the rules for the purposes of regulating its own jurisdiction and to apply the rules of restraints---Besides, Art. 184(3) of the Constitution itself had its own limitations and conditions, which were that the matter before the Supreme Court should be for the enforcement of any of the fundamental rights conferred by Chapter I of Part-II of the Constitution, and with reference to the enforcement of such fundamental rights the question involved should be of public importance---Said two conditions were primary, foundational and fundamental for the exercise of the power vested in the Supreme Court under Art. 184(3) of the Constitution and were sine qua non thereto---Both said conditions must first be established by the petitioners of the case and shown to co-exist before enabling the Court to exercise its jurisdiction in terms of Art. 184(3) of the Constitution (obviously subject to its own principles for regulating its jurisdiction and the judicial restraints).

(g) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Maintainability---"Question of public importance"---Scope---For the purpose of qualifying the test of "question of public importance", the issue involved in a matter before the Supreme Court under Art. 184(3) of the Constitution must belong and should concern the public at large, the State or the nation---If the proposition/matter involved the alleged violation of the Fundamental Rights of an individual or a group of individuals, how so large it might be, but had no concern and effect on the public, then it could not be termed as "question of public importance".

(h) Habib Bank Limited Staff Service Rules, 1981---

----Rr. 15 & 17---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the policy decision taken by the Board of Management of Habib Bank Limited ("the Bank") by which 308 employees of the Bank were compulsorily retired early and services of 2 employees were terminated by paying them three months dues---Maintainability---"Question of public importance"---Scope---Employees in question (petitioners) were retired/terminated by invoking provisions of Rr. 15 & 17 of Habib Bank Limited Staff Service Rules, 1981---Employees were contractual employees, of a private institution having no statutory rules to safeguard their service---All except six of the employees had received their dues and no issue had been joined by them to such fact, therefore virtually it seemed to be the grievance of few individuals---On the basis of the facts and circumstances of the present case, and the nature of grievance propounded , present petition did not qualify the test and the condition of the "question of public importance"---Constitutional petition was held to be not maintainable in such circumstances and was accordingly dismissed.

Pakistan Muslim League (N) through Khawaja Muhammad Asif, MNA and others v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2007 SC 642; Zulfiqar Mehdi v. Pakistan International Airlines 1998 SCMR 793 and PLD 2004 SC 583 ref.

(i) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Right to life of a person/citizen included the right to livelihood.

(j) Constitution of Pakistan---

----Arts. 184(3) & 199 & Pt. II, Ch. 1 [Arts. 8 to 28]---Constitutional petition before the High Court/Supreme Court---Maintainability---Service grievance---Contractual service---Person/employee not governed by statutory rules of service---Cases where the employment/service(s) was not regulated by any law, but by non-statutory rules or contractual stipulations, and no specific forum was designated for the resolution of such service issues, an infringement of any condition of such a contract shall at the most entitle and clothe the employee to avail his ordinary remedy for the breach of contract and wrongful action against him, before the court of plenary jurisdiction---In such a situation, it could not be urged that the fundamental right(s) of the employee had been violated conferring upon him a right to enforce the same in terms of Art.199 and/or under Art.184(3) of the Constitution.

(k) Habib Bank Limited Staff Service Rules, 1981---

----Rr. 15, 16, 17 & 18---Constitution of Pakistan, Arts. 9, 25 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the policy decision taken by the Board of Management of Habib Bank Limited ("the Bank") by which 308 employees of the Bank were compulsorily retired early and services of 2 employees were terminated by paying them three months dues---Maintainability---Plea of employees in question (petitioners) was that they were compulsorily retired by the Bank on basis of "changed staffing needs" but the changing needs of the Bank were neither specified nor shown, thus the action against them was arbitrary, whimsical, capricious and unfair, and that some of the employees of the Bank who were equally placed as the employees in question (petitioners) had been retained, therefore they had been discriminated against---Plea of the Bank was that employees in question had no fundamental right(s) which could be said to have been violated by the Bank; and that the employees were simply contract employees of a (private) Bank, whose services had been dispensed with strictly as per the terms of the contract (i.e.) Habib Bank Limited Staff Service Rules, 1981---Validity---By virtue of Rules 15 and 17(a) of Habib Bank Limited Staff Service Rules, 1981, the Bank had the due authority to bring to an end the services of its employees by way of termination/early retirement, likewise, the employee also had the option to give up the employment of the Bank in view of Rules 16 and 18 of the said Rules---When R. 17(a) of Habib Bank Limited Staff Service Rules, 1981 was invoked at a large scale for employees of the Bank pursuant to the decision of the Board of Management it shall be deemed that the decision and the action was primarily founded upon commercial, business, administrative wisdom, the prudence and judgment of a private enterprise for the better interest of the institution, which might involve and be based upon financial constraints and considerations and/or for the restructuring and revamping of the staff (ability, efficiency and skill wise)---Such decisions were not justiciable by the Supreme Court, while sitting as a court of appeal over it---No fundamental right to life of the employees had been violated by the Bank to satisfy the second condition of Art.184(3) of the Constitution warranting interference by the Supreme Court---Employees had not provided for comparison, any dates or material or the particulars of the persons, who were equally placed as them and had been retained---Even otherwise it was for the Bank management to decide about the usefulness of the employees or otherwise---Obviously, it had to be the evaluation of the management as to who was the employee(s) worthy of serving the best interest of the Bank, and as to who was more suitable, so as to be retained and those who should retire---Impugned decision of the Board of Management in the present case had been made pursuant to the Board resolution and seemingly on the basis of considerations of the Bank, therefore, the question of arbitrariness and lack of assigning reasons etc. had no relevance to the matter---Provisions of Art.25 of the Constitution did not help the cause of the employees and no case of discrimination in terms of said Article had been made out---Constitutional petition was held to be not maintainable in such circumstances and was accordingly dismissed.

(l) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Scope---Where a case was not made out in terms of Art. 184(3) of the Constitution, jurisdiction should not be exercised on the plea of pity, compassion and humanitarian reasons only.

Muhammad Akram Sheikh, Senior Advocate Supreme Court (assisted by Hassan Murtaza, Advocate, Sajeel Shahryar Swati, Advocate and Syed Riaz Hussain, Advocate) and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court (assisted by Gohar Ali Khan, Advocate and Kashif Ali Malik, Advocate) and M.S. Khattak, Advocate-on-Record for Respondents.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Applicants (in C.M.A. No.1899 of 2012).

Sher Muhammad Baloch, Applicant in person (in H.R.C. 14127-S of 2009 and H.R.C. 13486-S of 2010).

Dates of hearing: 15th, 16th and 17th October, 2012.

2013 S C M R 1403

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Muhammad Ather Saeed and Sh. Azmat Saeed, JJ

MANZOOR AHMED---Petitioner

Versus

FAZAL AHMED and 3 others---Respondents

Criminal Petition No.335-L of 2013, decided on 4th June, 2013.

(On appeal from the judgment dated 11-3-2013 passed by the Lahore High Court, Bahawalpur Bench in Criminal Miscellaneous No.100 of 2012 in Criminal Appeal No.332 of 2011.)

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

----S. 426---Penal Code (XLV of 1860), S. 302(b)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd---Suspension of sentence---Assessment of evidence for purposes of suspending sentence under S.426, Cr.P.C.---Scope---Accused were convicted under S.302(b), P.P.C. and sentenced to imprisonment for life---High Court suspended sentence of accused under S. 426, Cr.P.C. on the grounds that injuries attributed to them fell within the mischief of S. 337-F(iii), P.P.C., which was punishable with three years' imprisonment; that injuries attributed to them were on non-vital parts of the body; that they did not repeat hatchet blows; that injuries attributed to them were not corroborated by medical evidence, and that they had already undergone more than 4-1/2 years of the substantive sentence---Validity---High Court while suspending sentence of accused discussed prosecution evidence in a manner which was the preserve of the Appellate Court---High Court went into deeper appreciation of evidence, which exercise could not have been undertaken in a petition under S. 426, Cr.P.C.---Observations made by High Court in its judgment were likely to prejudice the case of the prosecution in appeal---Accused were attributed specific role of causing injuries to the deceased in the F.I.R. and in the evidence led during trial---Question as to whether there was sufficient corroboration of the ocular account entailed deeper appreciation of evidence which ought to have been left to the Appellate Court during hearing of appeal---Sentences of accused could not have been suspended in the present case---Impugned order of High Court was set aside and direction was given to take accused into custody and send them to judicial lockup.

Muhammad Saleem v. State PLD 2006 SC 483 rel.

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

----S. 426---Suspension of sentence---Assessment of evidence for purposes of suspending sentence under S. 426, Cr.P.C.---Scope---Deeper appreciation of evidence could not be undertaken in a petition under S. 426, Cr.P.C.

Muhammad Saleem v. State PLD 2006 SC 483 rel.

Syed Muhammad Jamil Anwar Shah, Advocate Supreme Court for Petitioner.

Abdul Hameed Rana, Advocate Supreme Court and Ms. Tasneem Amin, Advocate-on-Record for Respondents Nos.1 - 4.

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

Date of hearing: 4th June, 2013.

2013 S C M R 1408

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ijaz Ahmed Chaudhry and Muhammad Ather Saeed, JJ

KARIM NAWAZ and another---Petitioners

Versus

HABIB ULLAH KHAN---Respondent

Civil Petition No.157 of 2007, decided on 6th May, 2013.

(On appeal from judgment dated 15-12-2003 in Civil Revision No.393 of 2002, passed by the Lahore High Court, Lahore.)

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

----S. 12---Colonization of Government Lands (Punjab) Act (V of 1912), S.19---Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a) & 79---Suit for specific performance of sale agreement---Allotment of State land through entitlement certificates to defendants as affectees of Chashma Barrage Scheme---Sale of suit land through registered sale agreement and special-power-of-attorney in favour of plaintiff by defendants through their co-defendant/father/general attorney holding registered power of attorney on behalf of remaining defendants---Defendants' denial to have executed such documents---Proof---Defendants during trial had not denied execution of registered general power-of-attorney in favour of co-defendant/general attorney---Such agreement between parties found mention that all rights of entitlement certificates of suit land issued to defendants had been transferred to plaintiff, who was given authority to pay outstanding dues thereof, if any, and obtain allotment rights in his favour, over which defendants would have no objection---Defendants' general attorney before Sub-Registrar had admitted execution of sale agreement and special power-of-attorney in favour of plaintiff---Presumption of truth was attached to such three registered documents---Plaintiff had proved execution of such documents by examining scribe and two marginal witnesses thereof---Burden to prove such three documents had shifted to defendants after denying execution thereof---Defendants had failed to discharge such burden---Defendants' general attorney though being alive had not appeared as witness to deny execution of such documents nor had they made application for comparison of his signatures thereon---Defendants had been allotted suit land one year prior to such agreement and only formalities were left to be performed by them---Plaintiff had proved his possession over suit land and receipt of entitlement certificates from defendants---Suit was decreed in circumstances.

Mian Muhammad Abdullah v. West Pakistan Road Transport Corporation Lahore 1992 SCMR 378 distinguished.

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

----Ss. 12 & 17---Suit for specific performance of sale agreement executed by five vendees jointly---Part performance---Scope---Allotment of State land to five defendants-vendees through different entitlement certificates issued to them separately on different occasions---Sale of suit land by defendants in favour of plaintiff through joint sale agreement---Specific performance of independent part of such joint agreement---Scope---When contract was severable, then court might grant specific performance for such part, which ought to be performed---Part performance in present case would be permissible, even though plaintiff's agreement with each of defendant-vendee being independent---Illustration.

Muhammad Younis Bhatti, Advocate Supreme Court for Petitioners.

Zulfiqar Khalid Maluka, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent.

Date of hearing: 6th May, 2013.

2013 S C M R 1415

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Muhammad Ather Saeed and Sh. Azmat Saeed, JJ

KHALID MEHMOOD and another---Petitioners

Versus

MUHAMMAD KASHIF RASOOL and others---Respondents

Criminal Petitions Nos. 330-L and 386-L of 2013, decided on 5th June, 2013.

(On appeal from the judgments dated 13-3-2013 passed by the Lahore High Court, Multan Bench in Criminal Miscellaneous Nos.5344-B of 2012 and 535-B of 2013.)

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148, 149, 337-A(i), 337-A(ii), 337-F(iii), 337-F(v) & 337-L(2)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, attempt to commit qatl-e-amd, abetment, rioting armed with deadly weapons, unlawful assembly, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah-mutalahimah, ghayr-jaifahhashimah, other hurt---Petition for cancellation of bail, dismissal of---Case of cross-versions---Conflict between ocular and medical evidence--- Commencement of trial---Effect---Accused was alleged to have fired at the deceased during the occurrence---High Court granted bail to accused on the grounds that he had been assigned role of firing at different parts of deceased's body, but according to medical evidence there were only two injuries found on the body of deceased; that medical evidence was in clear conflict with the ocular version, and that since present case was one of cross-version, it was appropriate to facilitate both sides by granting them bail---Validity---Prima facie there were elements of conflict between the ocular account and medical evidence---Both sides had been sent up for trial, which indicated that investigating agency had left the question of as to who was the aggressor to the Trial Court---Statements of prosecution witnesses had already been recorded and trial had commenced---Any expression of opinion (by the Supreme Court) at present stage was likely to prejudice the case of either side---By way of judicial propriety Supreme Court refused to interfere with the discretion exercised by the High Court in granting bail to the accused---Petition for cancellation of bail was dismissed accordingly.

Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585 rel.

Nazir Ahmed Ghazi, Advocate Supreme Court for Petitioners (in Cr.P. 330-L of 2013).

Muhammad Anwar Sipra, Advocate Supreme Court for Petitioners (in Cr. P. No.386-L of 2013).

Muhammad Anwar Sipra, Advocate Supreme Court for Respondents (in Cr. P. No.330-L of 2013).

Mazher Sher Awan, Additional P.-G. and Bashir Ahmed, SHO Mian Channu for the State.

Shahid Kareem, Advocate-General Punjab on Court's Notice.

Date of hearing: 5th June, 2013.

2013 S C M R 1419

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Tariq Parvez and Ejaz Afzal Khan, JJ

Messrs LANVIN TRADERS, KARACHI---Petitioner

Versus

PRESIDING OFFICER, BANKING COURT NO.2, KARACHI and others---Respondents

Civil Petition No.2324 of 2002, decided on 13th February, 2013.

(On appeal against the judgment dated 20-11-2002 passed by the High Court of Sindh at Karachi in Ist Appeal No.31 of 2002.)

Per Ejaz Afzal Khan, J.; Tariq Parvez, J. agreeing; Anwar Zaheer Jamali, J. dissenting [Majority view]

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

----O. XXI, R. 66---Execution of decree---Auction of judgment debtor's property---Proclamation of sale by public auction--- Proceedings under O. XXI, R. 66, C.P.C.---Scope---Order XXI, R. 66, C.P.C. provided an exhaustive procedure for the proclamation of sale by public auction---Order XXI, R. 66, C.P.C. provided as to how the proclamation of intended sale shall be caused to be made; how it shall be drawn up after notice to the decree holders and judgment debtors and how it would state the time and place of sale and specify as fairly and accurately as possible (a) the property to be sold, (b) the revenue assessed upon the estate or part of the estate, where the property to be sold was an interest in an estate or in part of an estate paying revenue to the Government, (c) any encumbrance to which the property was liable, (d) the amount for the recovery of which the sale was ordered, and (e) every other thing which the court considered material for a purchaser to know in order to judge the nature and value of property---In the absence of any of the said particulars, the purpose of sale could not be achieved---Failure to comply with provisions of O. XXI, R. 66, C.P.C. could not be defended under any canons of law and propriety, when it tended to damage the rights of the decree holders or those of judgment debtors, simply because a sale had been effected in favour of a third party---Although proceedings under O. XXI, R. 66, C.P.C. did not involve any judicial determination, but at the same time it could not be disputed that they laid a sure foundation for judicious and judicial determination of the rights and liabilities of the parties, therefore, a balance had to be struck to protect the rights and liabilities of the parties which could either be imperiled or even extinguished by not complying with the provisions of O. XXI, R. 66, C.P.C. [Majority view]

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

----S. 19---Civil Procedure Code (V of 1908), O. XXI, R. 66---Execution of decree passed by Banking Court---Sale of judgment debtor's property by way of public auction---Auction proceedings tainted with serious lapses causing prejudice to decree holder (i.e. the Bank) as well as judgment debtor---Non-mentioning of reserve price of auctioned property---Effect---Recovery suit filed by the Bank against the defendant was decreed by the Banking Court to the amount of Rs.1,67,02,105.84---Bank filed execution application for recovery of decretal amount by sale of mortgaged property in question under O.XXI, R. 66, C.P.C.---Banking Court issued sale proclamation in consequence whereof property in question was ordered to be sold to person "M" being the highest bidder in the sum of Rs. 1,35,00,000---Objector/appellant, who was a stranger to the execution proceedings, filed an application under S. 151, C.P.C. wherein he offered an enhanced price of Rs. 1,55,00,000 for the property in question, however said application was dismissed by Banking Court---Subsequently objector and defendant/judgment debtor filed a joint application under S. 151, C.P.C. wherein price offer for property in question was increased from Rs. 1,55,00,000 to Rs. 1,67,02,106 however said application was also dismissed on the basis that objector had failed to establish his right or title in respect of the property in question and also his locus standi to file the application(s) under S.151, C.P.C.---Appeal filed by objector against dismissal of his application by Banking Court was also dismissed by the High Court---Validity---In the present case, things were done in a casual and cursory manner without due application of mind---Questions as to when writ of attachment was issued; when it was received after being duly executed, if it was executed at all; what was the point in issuing writ of attachment again; how and when the terms of sale were settled; when and what the court considered material for the purchaser to know in order to judge the nature and value of the property, were questions which were not answered by the record---Absence of answers to said questions went to the root of the case and brought the whole proceedings under a thick cloud of doubt---Another question was as to what were the extraordinary circumstances which necessitated the passing of orders by Banking Court at the back of the parties, which illegality alone was sufficient to vitiate the whole proceedings ending in the auction of the property---Proceedings leading to sale of property in question were marred by serious lapses which caused serious prejudice to the decree holder (i.e. the Bank) as well as the judgment debtor (i.e. the defendant), who along with the objector offered a price for the property which was much greater than that given by the auction purchaser (i.e. person "M")---No reserve price was provided for the auction, and although the expression "reserve price" did not find mention in O.XXI, R. 66, C.P.C., but the words used in the said Rule pointedly hinted thereto--- Sale by auction, in absence of reserve price, was apt to giving a walkover to manoeuvers to fix any price of choice---Number of bidders for the auction were close to nil---Clever manoeuvering forcing way for disposal of a property in execution of a decree for a paltry sum had to be guarded against jealously with all care and circumspection so that such property might go for a sum it deserved---Impugned judgments of Banking Court and High Court were set aside , and case was sent back to Banking Court for proceedings de novo in accordance with law--- Petition for leave to appeal was converted into appeal and allowed accordingly. [Majority view]

Messrs Majid and Sons and another v. National Bank of Pakistan through Manager and another 2004 CLD 1616; Messrs Magi Chemical Industries v. Habib Bank 2003 CLD 571; Appu alias Subramania Patter v. O. Achuta Menon and others AIR 1926 Madras 755; Mir Wali Khan and another v. Manager, Agricultural Development Bank of Pakistan, Muzaffargarh and another PLD 2003 SC 500; Nanhelal and another v. Umrao Singh AIR 1931 Privy Council 33 and Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512 ref.

Per Anwar Zaheer Jamali, J; disagreeing with Ejaz Afzal Khan, J. [Minority view]

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

----S. 19(3)---Civil Procedure Code (V of 1908), O. XXI, R. 66---Execution of decree passed by Banking Court---Power of financial institution to sell off mortgaged, pledged or hypothecated property without intervention of Banking Court---Scope---Section 19(3) of Financial Institutions (Recovery of Finances) Ordinance, 2001 provided that in the cases of mortgaged, pledged or hypothecated properties, the financial institutions had been empowered to sell or cause the same to be sold with or without intervention of the Banking Court, either by public auction or by inviting sealed tenders and appropriate the sale proceeds towards the total or partial satisfaction of their decree---Section 19(3) further laid down that the decree in favour of the financial institution, passed by the Banking Court in itself constituted and conferred sufficient powers and authority in its favour to sell or cause the sale of mortgaged, pledged or hypothecated property together with transfer of marketable title and that no further order of the Banking Court was required for such purpose---Financial institution was not required to wait for any further direction or order of Banking Court, but had the option of selling the mortgaged property on its own either by public auction or by inviting the sealed tenders---Procedure for auction of property contemplated under the Civil Procedure Code, 1908 had absolutely no material bearing in such regard. [Minority view]

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

----S. 19---Civil Procedure Code (V of 1908), O. XXI, R. 66---Execution of decree passed by Banking Court---Sale of judgment debtor's property by way of public auction---Fraud, manipulation, collusion, misrepresentation and mala fide in the auction process---Proof---Bona fide auction purchaser---Scope---Fraud, manipulation, collusion, misrepresentation, mala fide etc. on the part of Banking Court, financial institution or the auction purchaser, if proved, would be fatal to any purported solemn transaction of sale, either through public auction, through negotiation, inviting of tenders or by any other mode, but such situation would only arise when such fact was brought to the notice of the court by the aggrieved party at the earliest in accordance with law and was substantiated/proved to the satisfaction of the court---Conversely, any whimsical attribution to such effect would not prejudice the rights of the auction purchaser, as the principle 'Actus Curiae Neminem Gravabit" (an act of the Court shall prejudice no man), would be squarely attracted in his favour in line with the principle of protection of rights of a bona fide purchaser for valuable consideration. [Minority view]

(e) Administration of justice---

----Courts while proceeding with any lis, had to clear their mind from any predetermined notions and had to examine the case of the parties before it in a fair and equitable manner, giving due consideration to the case of all the litigating parties by placing it in juxtaposition and evaluating their respective claim in line with applicable law.

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

----S. 19---Civil Procedure Code (V of 1908), O. XXI, Rr. 66 & 89---Limitation Act (IX of 1908), First Sched., Art. 116---Execution of decree passed by Banking Court---Sale of judgment debtor's property by way of public auction---Protection of rights of a bona fide purchaser of auctioned property---Scope---Recovery suit filed by the Bank against the defendant was decreed by the Banking Court to the amount of Rs.1,67,02,105.84---Bank filed execution application for recovery of decretal amount by sale of mortgaged property in question under O.XXI, R. 66, C.P.C.---Banking Court issued sale proclamation in consequence whereof property in question was ordered to be sold to person "M" being the highest bidder in the sum of Rs. 1,35,00,000---Objector/appellant, who was a stranger to the execution proceedings, filed an application under S. 151, C.P.C. wherein he offered an enhanced price of Rs. 1,55,00,000 for the property in question, however said application was dismissed by Banking Court---Subsequently objector and defendant/judgment debtor filed a joint application under S. 151, C.P.C. wherein price offer for property in question was increased from Rs. 1,55,00,000 to Rs. 1,67,02,106 however said application was also dismissed on the basis that objector had failed to establish his right or title in respect of the property in question and also his locus standi to file the application(s) under S.151, C.P.C.---Appeal filed by objector against order of Banking Court was also dismissed by the High Court---Validity---Objector, who was a stranger to the proceedings, moved his first application under S. 151, C.P.C., wherein he did not question the legitimacy of auction of mortgaged property in favour of highest bidder (i.e. person "M"), but only offered a higher bid of Rs.1,55,00,000---Said application was not only time-barred but also filed by a stranger and not the judgment debtor/defendant, and thus it was liable to be rejected outrightly on such ground alone---First application under S. 151, C.P.C. was dismissed by the Banking Court vide its order, which remained unchallenged and thus attained finality---Subsequently second application under S. 151, C.P.C., which was also time barred, was jointly filed by the judgment debtor/defendant and objector with a better offer of Rs.16,707,106 for sale of mortgaged property in favour of objector, who did not bother to participate in the open public auction---Said application also, did not attribute any mala fide, fraud or misrepresentation of any nature on part of either Nazir of the Court, who conducted the auction proceedings in favour of highest bidder (i.e. person "M") , or against the Bank whose representative fully watched such proceeds to ensure its transparency and to safeguard the interest of his Bank---Only grievance agitated in the second application was that the mortgaged property so sold through court auction, could have earned more (money) and for such reason, the court should accept their offer---Second application under S. 151, C.P.C. was similar to the first application and thus was also barred on the principle of constrictive res judicata as the first application was already dismissed by the executing/Banking Court, which order admittedly remained unchallenged--- Judgment debtor/defendant and objector did not even bother to file any application for condonation of delay in filing their applications under S. 151, C.P.C., despite being aware of the auction proceedings---Judgment debtor/defendant and objector were not at all objecting to the auction of mortgaged property in favour of person "M" in the sum of Rs.1,35,00,000 on any factual or legal ground having nexus to any irregularity or fraud; instead they simply wanted to buy back the mortgaged property at a higher price---Mere increased offer made by some stranger after more than one month and fifteen days to the fall of hammer during auction proceedings could not be accepted by the Executing Court as a valid ground for setting aside a valid sale through open auction with intervention of the court, unless the proceedings of auction were shown to be collusive, fraudulent or lacking transparency---Even some mutual understanding, consent or compromise between the decree holder and the judgment debtor or any third party would not affect the rights of the auction purchaser, which the court was bound to honour and protect in order to maintain the sanctity of such transaction---Under O. XXI, R. 66, C.P.C. it was not a mandatory requirement that each proclamation of sale must contain the "reserve price" of the mortgaged property under sale---Adherence to any technical procedure prescribed under the Civil Procedure Code, 1908 could not be enforced merely to defeat the process of sale of mortgaged property under S. 19 of Financial Institutions (Recovery of Finances) Ordinance, 2001---By virtue of O. XXI, R. 89, C.P.C. where the property was under-valued for the purpose of sale or sold at a lesser price than its market value or otherwise, the judgment debtor or any other person holding interest in the property could get rid of such sale and retrieve the property from the purchaser upon further payment of five per cent of the sale price to the purchaser, and payment of decretal sum to the decree holder, while in the present case neither the judgment debtor nor any other person came forward to avail such opportunity in time---However, later on the judgment debtor came forward after more than four months to offer more money than the auction sale price of Rs.1,35,00,000---All such facts reaffirmed that there was no irregularity or fraud what to speak of any other legal impediment, which could justify striking down a confirmed sale through court in favour of person "M"--- Petition for leave to appeal was dismissed accordingly and impugned order of High Court was maintained. [Minority view].

Hudaybia Textile Mills Ltd. v. A.B.P.L. PLD 1987 SC 512; Narsing Das v. Mangal Dubey [(1883) 5 All 163]; Saadatmand Khan v. Phul Kaur [ILR 20 All. 412 (P.C.)]; Md. Said Khan v. Md. Abdus Sami AIR 1932 All 664; Dwarka Dass v. Bhawani Prasad and others AIR 1960 Allahabad 510; Ghulam Abbas v. Zohra Bibi PLD 1972 SC 337; Asma Zafarul Hassan v. United Bank Ltd. 1981 SCMR 108; Rashad Ehsan v. Bashir Ahmad PLD 1989 SC 146; Muhammad Ikhlaq Memon v. Zakraia Ghani PLD 2005 SC 819 and Mumtaz ud Din Feroze v. Iftikhar Adil PLD 2009 SC 207 ref.

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

----O. XXI, R. 66---Sale of judgment debtor's property by way of public auction---"Reserve price" of mortgaged property under sale---Under O.XXI, R. 66, C.P.C. it was not a mandatory requirement that each proclamation of sale must contain the "reserve price" of the mortgaged property under sale. [Minority view]

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

----S. 19---Civil Procedure Code (V of 1908), O. XXI, R. 66---Execution of decree passed by Banking Court---Sale of mortgaged property by way of public auction---Applicability of Civil Procedure Code, 1908---Scope---Adherence to any technical procedure prescribed under the Civil Procedure Code, 1908 could not be enforced merely to defeat the process of sale of mortgaged property under S. 19 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 gave vast discretion to the Executing/Banking Court as regards procedure to be followed by it, thus Banking Court could not be compelled to adhere to the provisions of the Civil Procedure Code, 1908 for issuing proclamation for sale of mortgaged property through public auction. [Minority view]

(i) Pleadings---

----Fraud, misrepresentation, collusion or mala fide--- Proof---Elementary principle of pleadings was that where allegations of fraud misrepresentation, collusion or mala fide were attributed, necessary particulars and details in such context were to be unfolded in the application/pleadings, and any bald or vague statement to such effect was of no legal consequence.

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

----O. XXI, R. 66---Execution of decree---Sale of judgment debtor's property by way of public auction---Property, nature of---Scope---Process of public auction in terms of O. XXI, R. 66, C.P.C. was not merely confined to the sale of immoveable properties, but it also included sale of any other property, which might not be an immovable property. [Minority view]

(k) Interpretation of statutes---

----Nothing could be added or read in a provision of law which was not provided therein by the legislature.

(l) Limitation---

----Delay in availing remedy---Condonation of delay---Scope---Invoking of remedy by some aggrieved party beyond the prescribed period of limitation created valuable legal rights in favour of the opposite party, therefore, in such cases delay of each day was to be explained by the defaulting party to the satisfaction of the court, which could not be condoned lightly or as of routine, as such arbitrary exercise of discretion would cause serious prejudice to the interest of the opposite party.

M. Afzal Siddiqui, Advocate Supreme Court for Petitioner.

A. I. Chundrigar, Advocate Supreme Court for Respondent No.2 (HBL).

Khalid Anwar, Advocate Supreme Court for Respondent No.4.

Nemo for Respondent No.3.

Date of hearing: 7th February, 2013 (Judgment Reserved).

2013 S C M R 1468

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ijaz Ahmed Chaudhry and Muhammad Ather Saeed, JJ

GOVERNMENT OF PUNJAB through Chief Secretary, Government of Punjab and others---Appellants

Versus

Syed MUHAMMAD RAFIQUE SHAH and others---Respondents

Civil Appeals Nos. 655-L and 717-L of 2009, decided on 14th May, 2013.

(On appeal from the judgment dated 30-4-2008 and 20-5-2009 of the Lahore High Court, Lahore passed in Writ Petitions Nos.2582 and 12554 of 2005.)

(a) Constitution of Pakistan---

----Art. 185(3)---Limitation Act (IX of 1908), S. 5---Time-barred petition for leave to appeal before Supreme Court---Condonation of delay---Scope---Matter of public importance---Effect---Matter concerning entitlement of government officers to orderly allowance---Although reasons enumerated in the condonation of delay application were not convincing but at the same time it was an established fact that the matter was one of public importance and would affect a number of government employees---Whenever the Supreme Court was faced with such a situation, it had used its discretion to condone the delay and decide the case on merits.

Commissioner of Income Tax and others v. Messrs Media Network and others PLD 2006 SC 787 ref.

(b) Civil service---

----Orderly allowance, entitlement to---Document, interpretation of---Retired judicial officer claimed payment of orderly allowance and its inclusion in his pensionary benefits---High Court allowed constitutional petition filed by retired judicial officer and declared that he was entitled to orderly allowance and its inclusion in his pensionary benefits in view of provisions of two letters issued by Provincial Finance Department---Pleas of Provincial Government were that in view of the said two letters, orderly allowance was only available to officers holding post in BPS-20 or above, who were working in Punjab Civil Secretariat and that retired judicial officer in question never served in Punjab Civil Secretariat, therefore, he was not entitled to orderly allowance---Validity---First letter issued by Provincial Finance Department led to only one interpretation i.e. "orderly allowance would only be available to officers of BPS-20, 21 & 22 working in Punjab Civil Secretariat who followed certain procedure"----Said letter made it clear that officers who had been working in the Punjab Civil Secretariat were the only ones entitled to orderly allowance---Second letter issued by Provincial Finance Department provided for payment of additional pension equal to "admissible" pre-retirement allowance---Interpretation of word "admissible" was that only those officers were entitled to additional benefit of pension to whom orderly allowance was admissible during pre-retirement service---Retired judicial officer not being an officer in Punjab Civil Secretariat was not entitled to orderly allowance during service and therefore the same was not admissible to his post-retirement benefits---Appeal was allowed and order of High Court was set aside.

(c) Civil service---

----Orderly allowance, entitlement to---Document, interpretation of---Retired Member of Punjab Public Service Commission claimed payment of orderly allowance and its inclusion in his pensionary benefits---High Court allowed constitutional petition filed by retired Member/officer and declared that he was entitled to orderly allowance and its inclusion in his pensionary benefits in view of provisions of two letters issued by Provincial Finance Department---Pleas of Provincial Government were that in view of said letters, orderly allowance was only available to officers holding post in BPS-20 or above, who were working in Punjab Civil Secretariat and that retired Member/officer in question never served in Punjab Civil Secretariat, therefore, he was not entitled to orderly allowance---Pleas of retired Member/officer were that he was for all practical intents an officer working in the Punjab Civil Secretariat and that even otherwise he was a BPS-21 officer and officers serving in the Punjab Civil Secretariat were also drawing the same benefits in the same grade, therefore there was no legal distinction between officers who were working in Punjab Civil Secretariat and those who were not---Validity---Letters issued by the Provincial Finance Department made it clear that orderly allowance would only be admissible to officers who had actually served in the Punjab Civil Secretariat and not those who might have been on the same footing in some other department---Officers working in different departments fell in different classes and could not be categorized as a composite class---Appeal was allowed and order of High Court was set aside.

(d) Civil service---

----Civil Servants serving in different departments---Class---Scope---Officers working in different departments fell in different classes and could not be categorized as a composite class.

M. Azeem Malik, Additional A.-G. Punjab along with Tariq Muhammad Mirza, Dy. Secy. Finance for Appellants (in C.A. No.655-L of 2009).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Mehmudul Islam, Advocate-on-Record for Respondent (in C.A. 655-L of 2009).

M. Azeem Malik, Additional A.-G. Punjab along with Tariq Muhammad Mirza, Dy. Secy. Finance for Appellants (in C.A. No.717-L of 2009).

Pir S. A. Rasheed, Advocate Supreme Court for Respondents (in C.A. No.717-L of 2009).

Date of hearing: 2nd May, 2013.

2013 S C M R 1480

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Sh. Azmat Saeed, JJ

Raja MUHAMMAD ZAFAR-UL-HAQ, SENATOR---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 2 others---Respondents

Constitutional Petition No.39 of 2013, decided on 24th July, 2013.

Constitution of Pakistan---

----Arts. 41(4) & 184(3)---Constitutional petition under Art. 184(3) of the Constitution seeking a direction to the Election Commission of Pakistan to change the schedule for the election of the office of the President of Pakistan---Change in schedule for Presidential Election, 2013 on the directions of the Supreme Court---Election for the office of the President of Pakistan were scheduled for 6th August, 2013 (27th Ramazan, 1434)---Plea of petitioner was that Election Commission should be directed to change such schedule by holding Presidential Election, 2013 on 30th July, 2013 (20th Ramazan, 1434) instead of 6th August, 2013 (27th Ramazan, 1434) on the basis that the last 10 days of Ramazan were normally the days of extensive spiritual and religious activity/worship and quite a number of the legislators might either be in Aitekaf or proceed for Umrah to Saudi Arabia; that 6th August, 2013 would fall on one of the last three days of Ramazan, probably on 27th day of Ramazan, which would be too close to Eid-ul-Fitr and many Parliamentarians might like to proceed to their home-towns by then; that if the Presidential elections were held on 6th August, 2013 (27th Ramazan), the fundamental rights of the Parliamentarians shall be infringed as they would not be able to participate in the Presidential elections in view of their spiritual and religious engagements in the last ten days of Ramazan---Validity---Election of the office of the President of Pakistan was one of the most important constitutional activity, which had to be undertaken by the Election Commission of Pakistan---Election Commission was duty bound to facilitate all the voters and electors, enabling them to exercise their right of franchise for the election of the office of the President of Pakistan---In view of the grounds raised by the petitioner and also to ensure that the Election Commission might discharge its functions, Supreme Court directed the Election Commission to change the schedule for Presidential Election, 2013 with the effect that election was to be held on 30th July, 2013---Constitutional petition was disposed of accordingly.

Ch. Muhammad Ashraf Gujjar, Advocate Supreme Court, Ch. Naseer Ahmad Bhutta, Advocate Supreme Court and Dr. Rana Shamim Ahmed, Advocate Supreme Court for Petitioner.

Muneer A. Malik, A.G.P. on Court Notice.

Syed Sher Afgan, Additional Secretary, ECP for Respondents Nos.1 and 2.

Nemo for Respondent No.3.

Date of hearing: 24th July, 2013.

2013 S C M R 1484

[Supreme Court of Pakistan]

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

ALI MUHAMMAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.749-L of 2013, decided on 19th July, 2013.

(Against the order dated 4-7-2013 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.1057-H of 2013.)

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Scope---Two persons claiming to be husband of the same woman---High Court sending such woman to Dar-ul-Aman till the controversy was resolved so as to prevent possibility of commission of zina by her---Legality---Person "T" claimed that he married the detenu on 25-12-2012, while person "I" claimed that he got married to her on 14-5-2013---Detenue lady asserted that person "T" was the only person with whom she had contracted marriage, and such assertion of hers was also supported by her father---Person "T" lodged an F.I.R. against person "I" for enticing the detenue away, and detenue had also filed a suit in the Family Court against person "I" for jactitation of marriage to prevent him from maintaining or proclaiming that detenue was his lawful wedded wife---Person "I" filed a habeas corpus petition before the High Court seeking recovery of detenue from the custody of her father---High Court disposed of said petition by holding that the court could not allow a person to live an immoral life and for such purpose detenue should be sent to Dar-ul-Aman to save her from the commission of an offence, and she would stay in the Dar-ul-Aman till the time her suit for jactitation of marriage was decided---Plea of detenue was that while living with her father, she was not in any kind of confinement or under any restraint and wanted to go back and live with her father---Validity---Detenue was a grown up young lady and she was not involved in any criminal case as an accused person---Consistent stand of detenue before the High Court and Supreme Court had been that she was not in any kind of confinement or under any restraint while living with her father---Although detenue had two rival suitors yet she had expressed a clear desire before the Supreme Court that she wished to go and live with her father and despite such eagerness, she had been deprived of her liberty and ordered by the High Court to be lodged at Dar-ul-Aman and that too for an indefinite period---Supreme Court observed that ironically and shockingly habeas corpus proceedings before the High Court, which were meant to secure release of a person from an illegal or improper custody or confinement, had been utilized in the present case for depriving a free person of her liberty and the net result achieved was that a grown up young lady who was not found to be in any kind of confinement or under any restraint had been locked up and incarcerated within the confines of Dar-ul-Aman for an indefinite period---Such an approach adopted by the High Court, surely ran contrary to the very essence and purpose of a writ or petition for habeas corpus, which was securing freedom and not curtailing liberty---Judge of High Court had allowed his responsibility of protecting a citizen's constitutional right to liberty to be overshadowed by his own subjective sense of morality and had only imagined the possibility of commission of zina in future and then proceeded to punish the detenue by depriving her of her liberty and putting her in the confines of Dar-ul-Aman for an indefinite period--- Impugned order of High Court was set aside and the detenue was set at liberty so that she might go and live with her father, as desired by her--- Appeal was allowed accordingly.

Muhammad Rafique v. Muhammad Ghafoor PLD 1972 SC 6; Muhammad Nazir v. The SHO Police Station, Shahpur and 3 others 1973 SCMR 351 and Mst. Sahi Bi v. Khalid Hussain and 6 others 1973 SCMR 577 ref.

Malik Muhammad Imtiaz Mahal, Advocate Supreme Court and Muhammad Tariq Petitioner present in person.

Mst. Naseem Akhtar, alleged detenue on Court's call.

Muhammad Imran Khan in person with Station House Officer of Police Station Qadirpur, District Jhang for Respondent No.2.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab with Mahmood, Ahmed, S.I. and Mahmood Hashmat, A.S.I./I.O. for the State.

Date of hearing: 19th July, 2013.

2013 S C M R 1493

[Supreme Court of Pakistan]

Present: Tariq Parvez, Sarmad Jalal Osmany and Gulzar Ahmed, JJ

Haji ABDUL SATTAR and others---Appellants

Versus

FAROOQ INAYAT and others---Respondents

Civil Appeal No.121-K of 2009, decided on 4th July, 2012.

(Against the judgment dated 20-3-2009 passed by High Court of Sindh, Karachi in HCA No.62 of 1996.)

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

----S. 3---Civil suit---Limitation, issue of---Issue of limitation being a mixed question of law and fact, which could not be determined without recording of evidence---Supreme Court, in appeal, held that issue of limitation shall be decided by the High Court upon evidence produced by the parties.

(b) Evacuee Trust Property (Management and Disposal) Act (XIII of 1975)---

----S. 10(1)---Evacuee trust property---Scope---Transfer of evacuee trust property situated in an urban area to the Chief Settlement Commissioner ---As per S. 10 of Evacuee Trust Property (Management and Disposal) Act, 1975, the cut-off date of June 1964 and June 1968 had been provided, prior to which, if urban or rural evacuee trust properties respectively were utilized bonafidely against verified claims i.e. Permanent Transfer Deeds (PTDs), then they would be treated as having been validly transferred to the Chief Settlement Commissioner---Permanent Transfer Deed, in the present case, was issued to the plaintiff in the year 1964, hence suit property (situated in urban area) could not be treated as evacuee trust property---Appeal was dismissed accordingly.

Abdul Wajid Wayne, Advocate Supreme Court for Appellants.

Syed Amjad Hussain, Advocate Supreme Court for Respondent No.1.

Syed Shahenshah Hussain, Advocate Supreme Court and Abdul Kadir Khan, Advocate-on-Record for Respondent No.2.

Iftikhar Javed Qazi, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate Supreme Court for Respondent No.5.

Adnan Karim, A.A.-G. and Mrs. Shiraz Iqbal Chaudhry, Advocate-on-Record for Respondents Nos.3 - 6.

Date of hearing: 4th July, 2012.

2013 S C M R 1497

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Gulzar Ahmed, JJ

Messrs SYMPHONY (PVT.) LTD.---Petitioner

Versus

Haji FAZAL KARIM and others---Respondents

Civil Petition No.189-K of 2013, decided on 13th May, 2013.

(On appeal from the judgment 12-3-2013 passed by High Court of Sindh Karachi in C.P. S-108 of 2006.)

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

----Ss. 18 & 15---Transfer of Property Act (IV of 1882), S. 5---Constitution of Pakistan, Art. 185(3)---Eviction of tenant---Change of ownership---Default in payment of rent to new landlord---Present landlord claimed that he had purchased suit property from a company (former landlord) vide a conveyance deed dated 13-2-1997, whereafter he sent a notice to the tenant under S. 18 of Sindh Rented Premises Ordinance, 1979 requesting the tenant to pay the rent to him at the previous rate with effect from March 1997---Tenant contended that former landlord, which was a company, was officially dissolved on 4-12-1982, so how could the present landlord obtain conveyance deed from a dissolved company on 13-2-1997; that under S.5 of Transfer of Property Act, 1882 only a living person, which included a company, could transfer property, and since in the present case suit property was transferred through a conveyance deed after dissolution of former landlord company, the conveyance deed was a void document---Rent Controller decided in favour of the present landlord and directed the tenant to vacate and hand over possession of suit property---Order of Rent Controller was upheld by First Appellate Court and High Court---Validity---Courts below took into consideration all aspects of the matter including evidence on record, registered conveyance deed, release deed, transfer order of the concerned society, mutation letter and Form P.T.I., and rightly came to the conclusion that present landlord on the basis of registered conveyance deed requested the tenant to tender future rent to him---Title of present landlord had not been questioned by any of the shareholders of the dissolved company---Till date tenant neither tendered rent to the present landlord nor deposited the same in court---Tenant had committed default in payment of rent and was liable to be ejected---Concurrent findings of courts below did not suffer from any illegality or infirmity---Petition for leave to appeal was dismissed in circumstances.

Kassim and another v. S. Rahim Shah 1990 SCMR 647 rel.

(b) Constitution of Pakistan---

----Art. 185(3)--- Petition for leave to appeal, dismissal of---Concurrent findings of courts below not suffering from any illegality or infirmity---Effect---No interference would be called for by the Supreme Court in such circumstances while exercising jurisdiction under Art. 185(3) of the Constitution.

Abdul Qadir Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 13th May, 2013.

2013 S C M R 1501

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Muhammad Ather Saeed, JJ

GHULAM RASOOL through LRs---Appellant

Versus

MUHAMMAD SHAFI and another---Respondents

Civil Appeals Nos.1260, 1261 of 2004 and C.M.As. Nos.1419, 1420 of 2006, decided on 3rd June, 2013.

(On appeal from the judgments dated 31-10-2000 passed by the Lahore High Court, Multan Bench in Civil Revision No.32-D of 1984 and R.S.A. No.42 of 1985.)

Punjab Pre-emption Act (I of 1913)---

----S. 15---Evidence Act (I of 1872), S.157---Qanun-e-Shahadat (10 of 1984), Art. 153---Pre-emption suit---Denial of plaintiff's superior right of pre-emption by defendant alleging to have preferential right of pre-emption for being owner of one kanal in estate on basis of Gift Deed and using same for agricultural purposes---Plaintiff's plea that he had pre-empted gifted land by filing pre-emption suit, but failed as defendant was found to have obtained land for residential purpose and was non-owner of agricultural land---Proof---Plaintiff produced in evidence copy of statement of defendant made in previous suit to effect that land obtained by him through Gift Deed was for residential purpose---Defendant's statement in rebuttal made in the present suit to the effect that he obtained gifted land for residential purpose, but he later on changed his mind to have residence thereon and started to cultivate same and that his residence was at a different place---Validity---Later part of defendant's statement that he later on changed his mind, was not reflected in his previous statement, which without confronting him therewith would not be admissible in evidence and could not be used to contradict him in the suit---Plaintiff had not confronted defendant with his previous statement, thus, same was not inadmissible in evidence---Suit was dismissed in circumstances.

Shah Muhammad v. M.T. Pairi AIR 1936 Lahore 202 and Salehon Muhammad v. Shera and others 1977 SCMR 297 ref.

Awadh Behari Sharma v. State of Madhya Pradesh 1956 Supreme Court 738 (S) A.I.R.V. 43 C. 116 Nov and The State v. Abdul Khaliq PLD 2011 SC 554 rel.

Mian Saeed ur Rehman Farrukh, Senior Advocate Supreme Court for Appellants.

Ehsan-ul-Haq Ch. Advocate Supreme Court for Respondents.

Date of hearing: 3rd June, 2013.

2013 S C M R 1511

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Ijaz Ahmed Chaudhry and Muhammad Ather Saeed, JJ

Messrs LUCKY CEMENT FACTORY LIMITED and others---Appellants

Versus

The GOVERNMENT OF N.-W.F.P. through Secretary, Local Government and Rural Development Department, Peshawar and others---Respondents

Civil Appeals Nos. 318, 364, 365 of 2011, C.P. No.208 of 2013, C.As. Nos.318, 364, 365 of 2011 and C.P. No.208 of 2013, decided on 6th June, 2013.

(On appeal from the judgment of the Peshawar High Court, D.I. Khan Bench, dated 30-3-2010, 15-6-2010 and 25-10-2012 passed in W.Ps. Nos. 385 of 2009, 1539 of 2004, 1794 of 2007 and 702 of 2011 respectively.)

(a) Khyber Pakhtunkhwa Local Government Ordinance (XIV of 2001)---

----Sixth Sched., Para. 44---Licence required for dangerous and offensive articles and trades---Levy of fee on such licence by the Local Council---Legality---Legislator had not intended to empower the local council to levy a fee on a license issued under Paragraph 44 of Sixth Schedule of Khyber Pakhtunkhwa Local Government Ordinance, 2001.

(b) Khyber Pakhtunkhwa Local Government Ordinance (XIV of 2001)---

----Sixth Sched., Para. 44, Annex. Item No.24---Imposition of annual license fee on cement factories by Local Tehsil Councils---Legality---High Court had held that licence fee could be imposed on items mentioned in the Annex to Paragraph 44 of Sixth Schedule of Khyber Pakhtunkhwa Local Government Ordinance, 2001, which included item No.24, namely, "manufacture of cement and hume pipes"---Validity---Legislature had not intended to levy a fee on a licence issued under Paragraph 44 of Sixth Schedule of Khyber Pakhtunkhwa Local Government Ordinance, 2001---Even if said paragraph was considered to confer power upon local council to impose fee on grant of licence for items mentioned in the Annex, the Annex did not include manufacture of cement---Item No. 24 of Annex to Paragraph 44 of Sixth Schedule of Khyber Pakhtunkhwa Local Government Ordinance, 2001 provided that licence was required for "manufacture of cement and hume pipes", which could only be interpreted as "cement pipes" and "hume pipes"---Had the legislature intended to include manufacturing of cement in the said Annex, the same could have been mentioned as a separate item and not together with hume pipes in a single statement---High Court had proceeded on the wrong premise that licence fee could be imposed on the manufacture of cement---Imposition of licence fee on cement factories was not within the competence of the Tehsil Councils---Appeal was allowed accordingly.

(c) Interpretation of statutes---

----Taxing statute--- Provision, interpretation of--- Scope--- Taxing provisions were to be construed strictly and the intention to impose tax or duty must be shown by clear and unambiguous language.

(d) Khyber Pakhtunkhwa Local Government Ordinance (XIV of 2001)---

----Second Sched. Part III, Item No.1---Imposition of fee on loading and unloading of cement and minerals by the Local Tehsil Councils---Legality---Plea on behalf of Tehsil Councils that such fee was justified under Item No.1 of Part III of the Second Schedule to Khyber Pakhtunkhwa Local Government Ordinance, 2001, which provided for "local tax on services"---Validity---Local Tehsil Councils were unable to show if any services were provided by them for purposes of loading and unloading or for transporting cement or other material in trucks or other vehicles---Tehsil Councils were not able to refer to any provision of Khyber Pakhtunkhwa Local Government Ordinance, 2001 or its Schedules, which would legally justify the imposition of tax on activity such as loading and unloading of material or on their carriage---Imposition of fee on loading and unloading of cement as well as minerals was not within the powers of the Tehsil Councils---Appeal was allowed accordingly.

Athar Minallah, Advocate Supreme Court for Appellants (in C.A. No.318 of 2011).

Syed Arshad Hussain Shah, A.A.-G., Khyber Pakhtunkhwa and Munawar Khan, Admn. Officer for Respondents Nos.1 and 2 (in C.A. No.318 of 2011).

M. Akram Sheikh, Senior Advocate Supreme Court, Salahuddin Malik, Advocate Supreme Court and Kalam Badshah, TMO/Chief Co-ordination Officer for Respondents Nos.3 and 4 (in C.A. No.318 of 2011).

Athar Minallah, Advocate Supreme Court for Appellants (in C.A. No.364 of 2011).

Syed Arshad Hussain Shah, AAG, Khyber Pakhtunkhwa for Respondent No.1 (in C.A. No.364 of 2011).

Muzammil Khan, Advocate Supreme Court for Respondents Nos.2 and 3 (in C.A. No.364 of 2011).

Saeedul Haq Butt, Advocate Supreme Court for Appellants (in C.A. No.365 of 2011).

Muzammil Khan, Advocate Supreme Court for Respondents Nos.1 and 2 (in C.A. No.365 of 2011).

Syed Arshad Hussain Shah, AAG, Khyber Pakhtunkhwa for Respondent No.3 (in C.A. No.365 of 2011).

Sanaullah Khan Gandapur, Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Petitioner (in C.P. No.208 of 2013).

Syed Arshad Hussain Shah, AAG, Khyber Pakhtunkhwa and Munawar Khan, Admn. Officer for Respondents (in C.P. No.208 of 2013).

Date of hearing: 24th April, 2013.

2013 S C M R 1520

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Muhammad Ather Saeed, JJ

MIRZA BOOK AGENCY through Managing Partner and others---Appellants

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Civil Appeal No.663-L of 2012, decided on 21st June, 2013.

(On appeal from the judgment dated 14-11-2011 of the Lahore High Court, Lahore passed in W.P. No.25229 of 2011.)

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

----Ss. 8, 9 & 15---Eviction petition---Time limit of 2 years stipulated under S.8 of Punjab Rented Premises Act, 2009 for a landlord/tenant to bring a tenancy agreement in conformity with the provisions of the said Act---Mandatory---Depositing of fine by landlord/tenant to bring the tenancy agreement in conformity with the said Act---Question as to whether a landlord/tenant having an existing tenancy could approach the Rent Tribunal for enforcement of his rights under the Punjab Rented Premises Act, 2009, without depositing such fine on the basis that time period of 2 years provided under S. 8 of said Act had not lapsed---Landlord, in the present case, filed eviction petition against tenant (appellant) under S. 15 of Punjab Rented Premises Act, 2009---Plea of tenant was that there was an existing tenancy agreement between the parties, but the same had not been brought in conformity with the provisions of Punjab Rented Premises Act, 2009 as required under S. 8 of the said Act, therefore eviction petition of landlord could not be entertained in terms of S. 9 of the said Act without the landlord first paying the fine to the tune of ten per cent---Rent Tribunal discarded plea of tenant and allowed the eviction petition---Appeal and constitutional petition filed before High Court against order of Rent Tribunal were also dismissed---Validity---Provisions of S. 9 of Punjab Rented Premises Act, 2009 were mandatory not only vis-a-vis the future tenancies, but also with respect to existing tenancies---Where a landlord or tenant moved the Rent Tribunal for the exercise of his right and enforcement of obligations of the opposite side in terms of provisions of Punjab Rented Premises Act, 2009, notwithstanding that a period of two years was available under S. 8 of the said Act to bring the existing tenancies in conformity with the said Act, he was obliged to pay the fine/penalty under S. 9 of Punjab Rented Premises Act, 2009 at the time of filing the petition/application or as directed by the Rent Tribunal---Cases where applications/petitions (of the landlord or the tenant) had been entertained and were pending before the Rent Tribunal or had been finally adjudicated by the Tribunal and were pending in further hierarchy of appeal or in constitutional jurisdiction of High Court or even before the Supreme Court; and the original applicant/petitioner had not paid the fine which he was required to pay, such proceedings should be halted, and the original applicant/petitioner should first be directed to pay/deposit the amount of fine as per S. 9 of Punjab Rented Premises Act, 2009---Amount of fine and the time for it should be exactly specified by the court seized of the matter in the requisite order, and in case of failure to pay such fine, the original application/petition should be dismissed---In the present case, however, pursuant to the eviction order passed against the tenant, possession of suit property had also been taken over by the landlord during pendency of the present appeal in the execution process, therefore, principle of past and closed transaction was applicable to the present case---Appeal of tenant was dismissed accordingly.

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

----S. 15---Eviction petition---Tenancy for an indefinite period on basis of pagri---Proof---Tenant's (appellant) plea that tenancy was for an indefinite period as he had paid some pagri to the predecessor-in-interest of the landlord---Rent Tribunal discarded plea of tenant and ordered his eviction---Appeal and constitutional petition filed before High Court against order of Rent Tribunal were also dismissed---Validity---Tenant was unable to show that alleged tenancy had been created under some registered instrument in which there was any stipulation of payment of pagri---Only for the reason that some pagri had allegedly been paid to the landlord or his predecessor-in-interest or to a person from whom the title had devolved upon the landlord, would not by itself make the tenancy in perpetuity---Supreme Court, however observed that right and remedy if any available to the tenant for the recovery of the said amount of pagri from the person who was liable to return it, if permissible under the law, shall not foreclose, for which the tenant might bring an independent action before the appropriate forum---Appeal was dismissed accordingly.

Muhammad Saleem Shahnazi, Advocate Supreme Court for Appellants.

Syed Muhammad Shah, Advocate Supreme Court for Respondent No.3.

Shahzad Shoukat, Advocate Supreme Court as Amicus Curiae.

Date of hearing: 21st January, 2013.

2013 S C M R 1524

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Ijaz Ahmed Chaudhry and Muhammad Ather Saeed, JJ

AMIR MASIH---Petitioner

Versus

The STATE and another---Respondents

Criminal Petition No.345-L of 2013, decided on 3rd May, 2013.

(On appeal from the order dated 8-3-2013 in Criminal Miscellaneous No.1042-B of 2013, passed by the Lahore High Court, Lahore.)

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

----S. 497---Bail application dismissed as withdrawn---Subsequent bail application, filing of---Fresh grounds---Scope---Where an earlier (bail) application was dismissed as withdrawn, the second/subsequent (bail) application could only be filed on any fresh ground and not on the same grounds which were available at the time of disposal of earlier (bail) application---Grounds which were available at the time of withdrawal of earlier (bail) application shall be deemed to have been considered and dealt with and second (bail) application could only be filed on fresh ground(s).

The State through Advocate-General, N.-W.F.P. v. Zubari and 4 others PLD 1986 SC 173 and Muhammad Siddique v. The State Criminal Petition No.896-L of 2012 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, common intention---Bail, refusal of---First bail application dismissed as withdrawn---Filing of subsequent bail application on fresh grounds---Scope---Accused was alleged to have murdered the deceased---High Court dismissed bail application of accused on the ground that earlier bail application filed by him was dismissed as withdrawn and he filed the subsequent bail application without raising any fresh grounds---Validity---Where an earlier (bail) application was dismissed as withdrawn, the second/subsequent (bail) application could only be filed on any fresh ground and not on the same grounds which were available at the time of disposal of earlier (bail) application---High Court had rightly dismissed the (subsequent) bail application, which could only be entertained on fresh grounds---Petition for leave to appeal was dismissed accordingly and leave was refused.

The State through Advocate-General, N.-W.F.P. v. Zubari and 4 others PLD 1986 SC 173 and Muhammad Siddique v. The State Criminal Petition No.896-L of 2012 rel.

Syed Zulfiqar Ali Bukhari, Advocate Supreme Court for Petitioner.

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

Respondent No.2 in person.

Date of hearing: 3rd May, 2013.

2013 S C M R 1527

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Muhammad Ather Saeed, JJ

LIAQAT ALI---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.488-L of 2013, decided on 11th June, 2013.

(Against the order of the learned Lahore High Court Lahore dated 24-4-2013 passed in Criminal Miscellaneous No.4084-B of 2013.)

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

----S. 497(2)---Bail---Scope---Case of cross-versions---Every case of cross-version did not necessarily make the guilt of the accused a matter of further inquiry and the courts in such cases might resort to tentative assessment of material placed before them to form an opinion whether a case of further inquiry qua an accused was made out or not.

Arif Din v. Amil Khan 2005 SCMR 1402 rel.

Iqbal Hussain v. Abdul Sattar and another PLD 1990 SC 758; Nasir Muhammad Wassan v. The State 1992 SCMR 501; Shoaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845 and Noor Muhammad v. The State 2009 SCMR 324 ref.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148,149, 337-A(i), 337-A(ii), 337-A(iii), 337-F(i), 337-F(iii), 337-F(v) & 337-L(2)---Constitution of Pakistan, Art. 185(3)---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, shajjah-i-khafifah, shajjah-i-mudihah, shajjah-i-hashimah, ghayr-jaifah-damiyah, ghayr-jaifah-mutalahimah, ghayr-jaifah-hashimah, other hurt---Bail, grant of---Further inquiry---Case of cross-versions---Accused was alleged to have caused hatchet blows to the deceased during the occurrence---Accused was not connected with the motive part of the prosecution story, which was relatable to an incident which took place a day earlier to the day of the occurrence---F.I.R. was inconsistent qua accused inasmuch as in the earlier part of the F.I.R., it was alleged that he was armed with an iron rod, whereas in the operative part it was alleged that he was carrying a hatchet---F.I.R. stated that accused and one of the co-accused gave hatchet blows on the left side of deceased's back, however post-mortem report showed that there was only one injury on left side of deceased's back---Question as to who caused the said injury would remain a moot point---Ten out of a total of nineteen accused of the present case had already been declared innocent during investigation---Five accused of the present F.I.R. had already been granted bail---Accused side had also filed a counter version/private complaint wherein the complainant party had been summoned---Accused was in jail for more than one year and his trial had not commenced---Question of guilt of accused required further inquiry and he was released on bail accordingly.

Azam Nazeer Tarer, Advocate Supreme Court for Petitioner.

Zafar Iqbal Chohan, Advocate Supreme Court for Respondent No.2.

Ch. Zubari Ahmad Farooq, Additional P.-G. along with Niaz Ahmed, S.-I. Police Station Aroti, Toba Tek Singh for the State.

Date of hearing: 11th June, 2013.

2013 S C M R 1533

[Supreme Court of Pakistan]

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

SURRIDGE AND BEECHENO---Appellant

Versus

M.T. EASTERN NAVIGATOR and others---Respondents

Civil Appeal No.1678 of 2008, decided on 4th June, 2013.

(On appeal against the order dated 21-4-2008 of the High Court of Sindh at Karachi in Admiralty Appeal No.3 of 2007.)

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

----S. 3---Solicitors Act, 1932, S. 69---Salvage right---"Salvor" of a vessel---Scope---Law firm claiming right of salvage in connection with services rendered by it for a vessel---Law firm (appellant) were engaged by a company for pleading an admiralty suit in connection with a vessel which had been arrested for recovery of some outstanding amount---Plea of law firm that services rendered by it not only salvaged the vessel but also preserved the interest of their client-company, therefore, it was entitled to a charge thereon; that law firm had a salvage right which could be enforced under S. 3 of Admiralty Jurisdiction of High Courts Ordinance, 1980; that S. 69 of Solicitors Act, 1932 also recognized the enforceability of such right in the Admiralty jurisdiction of High Court---Validity---Record showed that vessel in question stood arrested before the law firm stepped into the arena---Vessel was no more in a state of danger when the law firm, instituted a suit on behalf of its client-company---Law firm in such context could not be treated as a salvor nor could it be said to have recovered or preserved something in a time of danger, by its labour or work---Even if the law firm preserved and protected interest of client-company, it was at a later stage, which did not make it a salvor by any attribute so as to entitle it to a charge in the nature of salvage right---Solicitors Act, 1932, was not in force in the country, and even it was, it would not entitle the law firm to a salvage right since at no stage of the proceedings, the court trying the lis declared that the services rendered by the law firm proved instrumental in recovering or preserving the property---In the absence of such declaration, which was sine qua non in terms of S. 69 of the Solicitors Act, 1932 for the enforcement of such right, the law firm could not on its own don the attire of a salvor and ask for the enforcement of such right---Appeal was dismissed accordingly.

Kuttikrishna Memon v. Cochin Mercantiles Ltd. (1962) (32) Company Cases 378 and Greer v. Young (1883) 24 Chapter D. 545 distinguished.

M. Shaiq Usmani, Advocate Supreme Court for Appellant.

Nemo for Respondents Nos.1 and 4.

Nemo for Respondent No.2.

Qamar-ul-Islam Abbas, Advocate Supreme Court for Respondent No.3.

Date of hearing: 4th June, 2013.

2013 S C M R 1538

[Supreme Court of Pakistan]

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

NADEEM ASHRAF---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.472-L of 2013, decided on 17th June, 2013.

(On appeal from the judgment dated 23-4-2013 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.3753-B of 2013.)

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(a) & 9(c)---Constitution of Pakistan, Art. 185(3)---Possession of narcotic--- Bail, refusal of--- Narcotic contained in different packets/ parcels mixed together before being sent for chemical analysis---Allegation against accused was that he had booked cartons for cargo, and upon search of said cartons heroin weighing 945 grams was recovered from 26 elevators and 420 grams of heroin was recovered from the other 10 elevators---Pleas of accused were that entire heroin recovered from 26 elevators was mixed together and only 10 grams were sent for chemical analysis; that heroin recovered from other 10 elevators was also mixed together and only 10 grams was sent for chemical analysis; that in such circumstances the total heroin which was sent and tested by the chemical examiner would come only to 78.34 grams and he could only be convicted for the heroin which was sent and tested for analysis in view of the law laid down in the case of Ameer Zeb v. State (PLD 2012 SC 380); that offence against him in such circumstances would fall within the mischief of S. 9(a) and not S.9(c) of Control of Narcotic Substances Act, 1997---Validity---Judgment to which reference was made by accused i.e. Ameer Zeb v. State (PLD 2012 SC 380) was a criminal appeal, wherein the entire evidence had been led---Trial in the present case was yet to commence and it would be presumptuous on part of the accused to infer that the prosecution would lead evidence only to the extent of the weight to which he had made reference---Prosecution was free to lead further evidence in the present case and to request the court that it be allowed to send the entire narcotics allegedly recovered from the accused for chemical analysis---Accused was refused bail in circumstances---Petition for leave to appeal was dismissed accordingly and leave was refused.

Ameer Zeb v. State PLD 2012 SC 380 distinguished.

Mushtaq Ahmed Moha, Advocate Supreme Court and Mahmud ul Islam, Advocate-on-Record for Petitioner.

Sahibzada Anwar Hameed, Special Prosecutor, Anti-Narcotics Force for the State.

Date of hearing: 17th June, 2013.

2013 S C M R 1540

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

SAHIB JAN and others---Appellants

Versus

Mst. AYESHA BIBI through L.Rs. and others---Respondents

Civil Appeals Nos.6 and 38 of 2006, decided on 4th April, 2013.

(Against the judgment dated 29-11-2005 of the Peshawar High Court, D.I. Khan Bench passed in C.R. No.139 of 2004.)

(a) Constitution of Pakistan---

----Art. 185(2)---Appeal before Supreme Court---Discarding of a plea by the Supreme Court---Scope---Defendant not setting out a plea in his written statement as a defence before the Trial Court---Defendant not raising such plea before the High Court and also not setting out such plea as a ground in his memo of appeal before the Supreme Court---Effect---Supreme Court, in such circumstances, would refuse to treat and consider such plea as a pure question of law for deciding the same---Such plea was liable to be discarded by the Supreme Court.

(b) Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act (VI of 1935)---

----S. 2---General Clauses Act (X of 1897), S. 5---Custom---Operative date of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935---Right of sister to inherit in the estate of her brother---Real brother of plaintiff died issueless on 10-12-1935 and his estate was mutated only in favour of plaintiff's consanguine brother as per custom at that time---Plea of plaintiff that Governor-General assented to the Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935, on 5-12-1935, i.e. prior to death of real brother, therefore, custom had been abolished because of which she was one of the legal heirs of her real brother, and was entitled to inherit his estate to the extent of 1/3rd share---Plea of consanguine brother that Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 had not been published in the official gazette when real brother died, therefore said law had not come into force and resultantly consanguine brother under the prevailing custom was the only person entitled to inherit the suit land---Validity---Section 5 of General Clauses Act, 1897 provided that where any Act was not expressed to come into operation on a particular day, then it shall come into operation on the day on which it received assent of the Governor-General---Admittedly, Governor-General assented to Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 on 5-12-1935, therefore said Act became operative immediately, thereupon real brother of plaintiff died on 10-12-1935, which was an event subsequent to the coming into operation of the said Act---By virtue of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935, inheritance on the basis of custom was abolished and inheritance of a Muslim was to be governed and settled according to Muslim personal law---Plaintiff in such circumstances was duly entitled to inherit the estate of her real brother, according to her share under the Shariah---Appeal was disposed of accordingly.

(c) Islamic law---

----Right of inheritance---Scope---Upon the death of a Muslim, his legal heirs automatically became co-sharers in the estate left by him and one co-sharer could not deprive the other from such right.

(d) Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act (VI of 1935)---

----S. 2---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Custom---Right of sister to inherit in the estate of her brother---Plaintiff had a real brother and a consanguine brother---Real brother of plaintiff died issueless and his entire estate was mutated only in favour of the consanguine brother, in violation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935---Subsequently consanguine brother and his successors sold/transferred part of such estate to third parties---Plaintiff filed a declaratory suit contending that under Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 she was entitled to inherit in her real brother's estate to the extent of 1/3rd share, therefore, sales/transfers of part of such estate made by her consanguine brother or his successors in favour of third parties were void and ineffective---Validity---Held, that plaintiff was entitled to 1/3rd share from the estate of her real brother, and all transactions which had been made by the consanguine brother and his successors should be taken to have been made by them from their own share, having no bearing or effect upon the rights/entitlement of plaintiff to the extent of her 1/3rd share---Appeal was dispose of accordingly.

M. Munir Peracha, Advocate Supreme Court for Appellants (in C.A. No.6 of 2006).

Abdul Karim Khan Kundi, Senior Advocate Supreme Court and Tanvir ul Islam, Advocate-on-Record for Respondents Nos.1(i) to 1(v) (in C.A. No.6 of 2006).

Ex parte for Respondents Nos. 2 to 66 (in C.A. No.6 of 2006).

Abdul Karim Khan Kundi, Senior Advocate Supreme Court and Tanvir ul Islam, Advocate-on-Record for Appellants (in C.A. No.38 of 2006).

Qazi Shahryar Iqbal, Advocate Supreme Court for Respondents Nos. 1 to 6 (in C.A. No.38 of 2006).

Ex parte for Respondents Nos.7 to 77 (in C.A. No.38 of 2006).

Date of hearing: 4th April, 2013.

2013 S C M R 1547

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

PROVINCE OF PUNJAB through Secretary Communication and Works Department and others---Petitioners

Versus

AHMAD HUSSAIN---Respondent

Civil Petition No.708 of 2013, decided on 29th May, 2013.

(On appeal from the judgment dated 14-3-2013 passed by Division Bench, Lahore High Court, Rawalpindi Bench in I.C.A. No.11 of 2013.)

Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----Sched. Para. 1(b)---Public Works Department Code of Government of Punjab, Para-1.107---Constitution of Pakistan, Arts. 25 & 199---Constitutional petition---Public Works Department---Petitioner working as Storekeeper on work-charge basis for more than 14 years---Refusal of Authority to regularize service of petitioner despite having regularized his fellow work-charged employees---Validity---Provisions contained in Para-1.107 of Public Works Department Code related to work-charge establishment and appointment of person for execution of specific job---Post of Storekeeper was not of casual nature and existed from the date when petitioner was appointed thereagainst 14 years ago---Petitioner was performing his duties continuously for more than 9 months since 1998, thus, his service would be governed by Industrial and Commercial Employment (Standing Orders) Ordinance, 1968---High Court accepted constitutional petition while directing Authority to regularize service of petitioner and treat him equally with other regularized employees.

Punjab Seed Corporation v. Punjab Labour Appellate Tribunal 1996 SCMR 1947; Province of Punjab v. Gul Hassan 1992 PLC 924; Executive Engineer v. Abdul Aziz PLD 1996 SC 610 and Secretary Irrigation and Power Department Government of Punjab v. Muhammad Akhtar 2009 SCMR 320 rel.

Jawwad Hassan, Additional A.-G. Punjab, Mukhtar Ahmad Khokhar, SE, Irfan Ahmed Qazi, XEN and Muhammad Khalid Hafeez, SDO, Provincial Buildings, Rawalpindi for Petitioners.

Respondent in person.

Date of hearing: 29th May, 2013.

2013 S C M R 1554

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Asif Saeed Khan Khosa and Amir Hani Muslim, JJ

SABIR HUSSAIN alias SABRI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.241 of 2009, decided on 11th June, 2013.

(On appeal against the judgment dated 24-12-2008, of the Lahore High Court, Multan Bench, passed in Criminal Appeal No.49 of 2003 and M.R. No.385 of 2003.)

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Qatl-e-amd, attempt to commit qatl-e-amd---Re-appraisal of evidence---Sentence, reduction in---Death sentence reduced to imprisonment for life---Extenuating circumstance---Accused was convicted under S. 302(b), P.P.C. by Trial Court and sentenced to death for murdering the deceased with further direction to pay compensation of Rs. 100,000 to the legal heirs of deceased---Accused was further convicted under S. 324, P.P.C. by Trial Court for attempting to commit qatl-e-amd of injured witness and sentenced to 5 years imprisonment with further direction to pay Rs. 25,000 to the injured witness---High Court dismissed appeal filed by accused against his conviction and confirmed death sentence awarded by Trial Court---Validity---Complainant claimed to have been present at the crime scene, however he was not attacked by the accused despite the fact that motive had been attributed to him---Such fact was by itself an extenuating circumstance on basis of which sentence of death awarded to accused could be reduced to that of life imprisonment---No motive had been attributed against the deceased and it could safely be held that motive was not proved by the prosecution---Conviction of accused under S.302(b), P.P.C. was maintained, however his death sentence was commuted to that of life imprisonment---Conviction and sentence of accused under S.324, P.P.C. was maintained---Awards of compensation by Trial Court, which had been upheld by High Court, were maintained---Appeal was disposed of accordingly.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

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

Date of hearing: 11th June, 2013.

2013 S C M R 1558

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

KALA through L.Rs. and others---Appellants

Versus

Mst. KAMO BEGUM through L.Rs. and others---Respondents

Civil Appeal No.690 of 2012, decided on 24th April, 2013.

(On appeal from the judgment dated 28-2-2011 passed by the Peshawar High Court, Abbottabad Bench in C.R. No.339 of 2006.)

Pakistan Rehabilitation Act (XLII of 1956)---

----S. 6---Rehabilitation Settlement Scheme, Paras 4-A(ix) & 44-A---Allotment of evacuee land to Jammu and Kashmir refugee---Such land once allotted to the refugee would stand excluded from compensation pool, and Settlement/Rehabilitation Department could not re-allot the same to any one else at back of its alottee.

Allah Rakhi v. Sughra Bibi 1986 CLC 2095; Muhammad Bibi v. Province of Punjab 2006 CLC 586; Mst. Sakina Bibi v. Mamla PLD 1977 Lah. 202; Muhammad Khan v. Karim Bakhsh PLD 1977 Lah. 747; Allah Rakhi v. Assistant Commissioner/Additional Settlement Commissioner (L), Narowal and others 1989 MLD 3343; Allah Rakhi v. Sughra Bibi 1986 CLC 2095; Raisham Bibi v. Umar Din 1986 CLC 2354 and Abdul Haq v. Surraya Begum 2002 SCMR 1330 ref.

Dost Muhammad v. Badal Jan 1976 SCMR 112; Jan Muhammad v. Sher Muhammad PLD 1979 SC 985; Muhammad Din and others v. Allah Lok and others 1989 SCMR 323; Ghulam Muhammad v. Ahmad Khan PLD 1991 SC 391 and Noor Muhammad v. Muzaffar Bibi 2006 SCMR 25 rel.

Rashid ul Haq Qazi, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants.

Muhammad Munir Peracha, Advocate Supreme Court for Respondents.

Date of hearing: 24th April, 2013.

2013 S C M R 1570

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Gulzar Ahmed, JJ

Messrs ANWAR TEXTILE MILLS LIMITED---Appellant

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED and others---Respondents

Direct Civil Appeal No.15-K of 2012, decided on 19th June, 2013.

(Against the judgment dated 10-4-2012 passed by High Court of Sindh at Karachi in IInd Appeal No.35 of 2010.)

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

----S. 23 & First Sched., Art. 142---Specific Relief Act (I of 1877), S.8---Continuing breach---Scope---Suit against dispossession from property---Limitation period---Scope---Plaintiff (appellant) filed a suit against respondent-company in the year 1985 claiming that the latter had illegally and forcibly encroached upon his land and made some construction upon it---Plaintiff alleged that on account of assurance of respondent-company to give compensation to him, he did not pursue his suit, which was dismissed for non-prosecution on 9-8-1988; that respondent-company failed to fulfil its assurance because of which he filed a second suit against the respondent-company in 2001; that second suit was not barred by time as present case was one of continuing breach in terms of S. 23 of Limitation Act, 1908, therefore fresh period of limitation was available to plaintiff at every moment during which breach continued--- Respondent-company disputed ownership of plaintiff and alleged that it had purchased the disputed property from the Provincial Government, and that it had not given any assurance to the plaintiff during the pendency of the earlier suit, and that the second suit filed by plaintiff was hopelessly time barred---Second suit of plaintiff was decreed by Trial Court, which decree was maintained by the First Appellate Court---High Court set aside judgments and decree of courts below on the basis that second suit was time barred---Validity---Had any assurance been given by the respondent-company to the plaintiff, the more appropriate and logical way of having the earlier suit disposed of would have been an application, made either by the plaintiff or both parties before the Trial Court reflecting the purported assurance of the respondent-company---Dismissal of earlier suit for non-prosecution on its own did not reflect that it might have resulted on account of an assurance of out of court settlement---Respondent-company at no period of time admitted the claim of the plaintiff---Cause of action to the plaintiff against his alleged dispossession commenced from the year 1985---Section 23 of Limitation Act, 1908 provided for two eventualities where breach or wrong might be continuing, one where there was breach of a contract and the other where there was a wrong independent of the contract---Admittedly there was no contract between the parties in the present case---Purported assurance given by respondent-company was also not a contract as requirements of making a contract were absolutely not available on the record---Respondent-company raised a permanent structure on the disputed property in the year 1985, which amounted to purported complete dispossession of the plaintiff from the property and matured the cause of action with no element of continuity---Only provision that dealt with a case of dispossession was Art. 142 of First Schedule to the Limitation Act, 1908, which provided a period of 12 years during which a suit against dispossession could be filed---Admittedly, in the present case second suit was filed by plaintiff after almost 16 years from the day he claimed to have been dispossessed from the property in question, thus second suit was barred by time---Appeal was dismissed accordingly.

Balakrishna Savalram Pujari Waghmare and others v. Shree Dhyaneshwar Maharaj Sansthan and others AIR 1959 SC 798 and Khair Muhammad Khan and another v. Mt. Jannat and others AIR 1940 Lah. 359 ref.

Nooruddin and others v. Pakistan and others 1997 CLC 1971 distinguished.

(b) Constitution of Pakistan---

----Art. 185(2)---Limitation Act (IX of 1908), S. 3---Direct civil appeal filed before the Supreme Court---Limitation period, commencement of---Scope---Plea of respondent that present direct civil appeal before the Supreme Court was barred by 19 days---Plea of appellant that present appeal was filed within time as limitation for filing of appeal was to be counted not from the date of judgment but from the date when decree was made and delivered to the appellant---Validity---Impugned judgment of High Court was announced on 18-4-2012, and appellant applied for obtaining certified copies of the decree on the same day---Decree was prepared on 9-6-2012 and its certified copy was delivered to the appellant on 11-6-2012---Appellant had already filed appeal on 4-6-2012 in the Supreme Court--- No delay existed in filing of present appeal before the Supreme Court in such circumstances---Application for condonation of delay was disposed of accordingly.

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

----S. 100---Second appeal---Scope---Decision/decree passed by Appellate Court which is subordinate to the High Court---Interference in such decision/decree by the High Court---Scope---High Court would be justified to interfere with the decision of the lower (appellate) court when it was contrary to the law or failed to determine material issue of law or committed substantial error or defect in the procedure, which might have resulted in error or defect in the decision of the case on merits.

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

----S. 3---Civil Procedure Code (V of 1908), S. 100---Second appeal---Scope---Courts below the High Court making an error or mistake in deciding question of limitation---Interference in such orders by High Court---Where the two courts below (the High Court) or either of such courts made any error or mistake in deciding the question of limitation, the same would be open for agitation in second appeal and the High Court would be justified to decide the same in accordance with law---Question of limitation was a mixed question of law and fact, thus, it would be open for consideration (by the High Court) in second appeal, as it would come within the mischief of a decision which was contrary to the law and had a substantial error or defect having a bearing on merits of the case.

Shaikh Fazlul Jamil and others v. Shaikh Helaluddin AIR 1927 Patna 256 and Noor Akbar and others v. Mureed 1991 CLC Note 245 at p.191 ref.

Pathana v. Mst. Wasai and another PLD 1965 SC 134 distinguished.

Abdul Hafeez Lakho, Senior Advocate Supreme Court for Appellant.

Ejaz Ahmed, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.1.

Ex parte for Respondents Nos.2 to 4.

Date of hearing: 19th June, 2013.

2013 S C M R 1582

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Gulzar Ahmed and Sh. Azmat Saeed, JJ

DILAWAR HUSSAIN---Petitioner

Versus

The STATE---Respondent

Criminal Review Petition No.72 of 2007 in Criminal Appeal No.200 of 2003, decided on 9th May, 2013.

(On review from the judgment dated 9-10-2007 passed by this Court in Criminal Appeal No.200 of 2003.)

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

----S. 302---Qatl-e-amd---Intention of assailant---Determination---Medical evidence---Exact locale of injury has to be considered to determine knowledge or intention of assailant.

M.A. Jalil v. The State PLD 1969 SC 552; Munawar Hussain v. The State 1983 SCMR 1165 and Shafey Ali v. Asrar Beg and others PLD 1992 SC 232 rel.

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

----S. 302--- Qatl-e-amd--- Sentence, reduction in--- Quantum of mitigation required for converting death sentence into imprisonment for life---Scope---No quantum of mitigation is required for awarding imprisonment for life, even an iota towards mitigation is sufficient to justify lesser sentence.

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

----S. 302---Qatl-e-amd---Sentence---Award of death sentence---Convict awaiting death sentence for 18 years in death cell---Unjust and double sentence on the convict for one offence---Effect---If delay in disposal of case of accused was not attributed to him, it would be against principles of natural justice that he was hanged by neck---When such extenuating circumstances existed, the benefit was to be given to the convict---Supreme Court, in circumstances, altered the sentence of convict from death to imprisonment of life.

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

----Ss. 57 & 302(b)---Pakistan Prisons Rules, 1978, Rr. 140 & 198(b)---Constitution of Pakistan, Art. 188---Qatl-e-amd---Review of Supreme Court judgment---Expectancy of life, principle of---Extenuating circumstances---Incarceration in death cell---"Imprisonment for life"---Connotation---Accused was convicted and awarded death sentence by Trial Court and the same was maintained by High Court as well as by Supreme Court---Accused sought review of judgment on the plea of incarceration in death cell for eighteen years---Validity---Life imprisonment meant twenty five years rigorous imprisonment---Even under Rule 198(b) of Pakistan Prisons Rules, 1978, life imprisonment meant twenty five years rigorous imprisonment---Accused was being incarcerated in death cell for last 17 years, one month and five days and by efflux of time he had also earned remissions for 18 years, eight months and ten days---Such were extenuating circumstances as, in the present case, where the accused did not repeat fire, chose lower part of body and accused and deceased being closely related to each other, incident having taken place on some abrupt altercation between them and that incarceration of accused in death cell for a long period, conversion of sentence from death to imprisonment for life would not only be proper rather it was in the interest of justice---Accused had not only served out one sentence provided under S.302(b), P.P.C. but had also suffered agonies of his remaining incarcerated in death cell for quite long period---Supreme Court keeping in view the principle of abundant caution, reviewed its earlier judgment and altered death sentence passed to accused into imprisonment for life---Petition was allowed.

Shaheb Ali v. The State PLD 1970 SC 447; Emmanuel Bahadur Goseph v. Paul Lackson and another 1981 SCMR 663; Razi and others v. The State PLD 1983 SC 58; Kala v. The State PLD 1983 SC 88; Mukhtar Ahmad v. Muhammad Ilyas and another 1986 SCMR 634; Saiful Malook and others v. The State and others 1992 SCMR 1597; Allah Dawaya v. The State PLD 1993 SC 35; Hassan Muhammad v. The State 1994 SCMR 1212; Abid Hussain v. The State PLD 1994 SC 641; Messrs M.Y. Malik & Co. and 2 others v. Messrs Spendlours International 1995 SCMR 922; Muhammad Arshad and 2 others v. The State PLD 1996 SC 122; Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Muhammad Aslam and others v. The State and another PLD 2009 SC 777; Muhammad Aman v. The State 1987 SCMR 124; Maqbool Ahmad v. The State 1987 SCMR 1059; Muhammad Naseem v. The State 1987 PCr.LJ 1758 and The State v. Muhammad Akram and others 1987 PCr.LJ 1728 ref.

Maqbool Ahmad v. The State 1987 SCMR 1059 distinguished.

(e) Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O.XXXVI---Review of Supreme Court judgment---Legal error on the face of record---Principle---Error has to be so apparent and glaring that no court would permit it to remain part of proceedings and such error must have emanated from record on the basis of its own existence and not be result of analytical logic and scrutiny of evidence---Error apparent on the face of record manifestly be of a nature that if ignored, complete justice could not be done---In appropriate and suitable cases Supreme Court exercises its jurisdiction only for the cause of dispensation of justice.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court for Petitioner.

Ch. Zubair Farooq, Additional P.-G. Punjab for the State.

Muhammad Iqbal Bhatti, Advocate Supreme Court for the Complainant.

Date of hearing: 17th April, 2013.

2013 S C M R 1595

[Supreme Court of Pakistan]

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

Haji MUHAMMAD ZAMAN KHAN---Petitioner

Versus

MEMBER BOR PUNJAB, LAHORE and others---Respondents

Civil Petition No.390-L of 2013, decided on 19th June, 2013.

(On appeal from the judgment dated 10-12-2012 passed by the Lahore High Court, Lahore in Writ Petition No.7748 of 2010.)

(a) West Pakistan Land Revenue Rules, 1968---

----R. 17---Constitution of Pakistan, Arts. 199 & 185(3)---Lumberdar, appointment of---Concurrent orders regarding appointment of lumberdar passed in revenue hierarchy---Interference in such orders by the High Court in its constitutional jurisdiction---Scope---District Officer Revenue appointed respondent as lumberdar---Petitioner aggrieved of such order filed appeal before Executive District Officer Revenue (EDOR) which was dismissed---Board of Revenue upheld order of Executive District Officer Revenue---High Court also did not interfere with order of Board of Revenue and dismissed constitutional petition filed by the petitioner---Validity---Board of Revenue had not only concurred with the order of District Officer Revenue with regard to appointment of respondent as lumberdar but had given reasons for doing so---High Court rightly did not interfere with the concurrent orders passed in revenue hierarchy---Even otherwise competent authorities in revenue hierarchy had duly considered the comparative merits of the petitioner and respondent and no illegality or jurisdictional defect had been pointed out by the petitioner, which could persuade the Supreme Court to interfere with the orders passed---In the face of concurrent findings in the revenue hierarchy any interference in constitutional jurisdiction by High Court without there being a valid ground would have amounted to substitution of such orders by the High Court, which was not tenable in law---Petition for leave to appeal was dismissed in circumstances and leave was refused.

Muhammad Rafique v. Nazir Ahmed 2007 SCMR 287 and Muhammad Saeed v. Ghulam Sarwar PLD 2008 SCMR 1586 distinguished.

(b) Constitution of Pakistan---

----Art. 199---Order passed by a Tribunal of competent jurisdiction---Interference in such an order by the High Court in its constitutional jurisdiction---Scope---High Court in its constitutional jurisdiction could interfere with the order passed by a Tribunal of competent jurisdiction, however, said exercise had to be confined to examine whether the order passed was in accordance with the law; whether it was a case of no evidence; whether the authority acted in bad faith or there was failure to follow the procedure prescribed in law.

Noorwar Jan v. Senior Member B.R. N.-W.F.P. PLD 1991 SC 531 and Rahim Shah v. The Chief Election Commissioner of Pakistan and others PLD 1973 SC 24 ref.

Noor Muhammad Awan, Advocate Supreme Court for Petitioner.

Ch. Muhammad Hanif Khatana, Additional A.-G. for Respondent No.1.

Saif ul Malook, Advocate Supreme Court for Respondent No.2.

Date of hearing: 19th June, 2013.

2013 S C M R 1600

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Sh. Azmat Saeed, JJ

ABBAS ALI---Appellant

Versus

LIAQAT ALI and another---Respondents

Civil Appeal No.418-L of 2012, decided on 13th June, 2013.

(On appeal from the order dated 11-5-2012 of the Lahore High Court, Lahore passed in R.S.A. No.134 of 2005.)

Specific Relief Act (I of 1877)---

----Ss.12 & 27(b)---Qanun-e-Shahadat (10 of 1984), Art. 17, 79 & 81---Suit for specific performance of agreement---Two witnesses, non-production of---Bona fide purchaser for value without notice---Proof---Admission of agreement---Effect---Plaintiff sought execution of agreement to sell made by defendant in his favour---Suit was dismissed by Trial Court and Lower Appellate Court but High Court decreed the same in favour of plaintiff---Validity---Defendant in his written statement admitted the agreement to sell in question---Initial onus to prove that subsequent transferee was bona fide purchaser, was on defendant---Father of subsequent transferee appeared as witness during trial and claimed that entire transaction/deal was initiated through him and that he knew about agreement to sell between plaintiff and defendant---Subsequent transferee, in circumstances, failed to discharge his initial onus with regard to plea/point and he was not entitled to protection of equitable doctrine---Supreme Court declined to interfere in judgment and decree passed by High Court---Appeal was dismissed.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241 and Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296 distinguished.

Qazi Misbah-ul-Hassan, Advocate Supreme Court for Appellant.

Sh. Naveed Shehryar, Advocate Supreme Court and Ms. Najma Parveen, Advocate Supreme Court for Respondent No.1.

Date of hearing: 13th June, 2013.

2013 S C M R 1602

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Ijaz Ahmed Chaudhry, JJ

ZEESHAN AFZAL alias SHANI and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos.55 and 56 of 2003, decided on 20th May, 2013.

(On appeal from the judgment dated 7-5-2002 in Criminal Appeal No.187-J of 2000, Criminal Appeal No.735 of 2001, Criminal Appeal No.927 of 2001, Criminal Appeal No.787 of 2001 and Murder Reference No.16-T of 2001 passed by the Lahore High Court, Lahore.)

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-e-amd and terrorism---Reappraisal of evidence---Sentence, reduction in---Death sentence converted into imprisonment for life---Double murder---Identification parade---Raising of no-objection---Motive, absence of---Accused was convicted by Trial Court and sentenced to death on two counts while co-accused were sentenced to imprisonment for life on two counts---High Court acquitted both the co-accused but maintained conviction of sentence awarded to accused---Validity---Prosecution witnesses were independent witnesses who had no motive to falsely implicate accused in the case and they identified accused in identification parade out of 27 persons---No objection was raised at the time of identification parade of accused that he was shown to witnesses prior to identification parade---Accused was arrested on 16-2-2001, he was sent to judicial lockup on 17-2-2001 and identification parade was conducted on 22-2-2001 and both the courts below had rightly relied upon identification test parade regarding involvement of accused---Witnesses had made consistent statements regarding involvement of accused---Statements of witnesses were supported by the fact that name of accused was mentioned as suspect of heinous incident without any delay---Statements of witnesses were further corroborated with recovery of blood-stained chhuri at the instance of accused from his residential house and case against accused was proved beyond any shadow of doubt---Findings of both the courts below were supported regarding involvement of accused, therefore, he was rightly convicted under S.302(b), P.P.C. and there was no improbability or illegality in judgment to that extent---Complainant in his statement under S.154, Cr.P.C. did not mention any motive in commission of crime by accused though he had tried to explain the same during trial, such motive could not be relied upon as it was an improvement at trial stage---If motive was not alleged or was not proved, normally sentence of death was converted into imprisonment for life---Accused had already spent more than 13 years in jail---Supreme Court maintained conviction awarded to accused by two courts below but converted death sentence into imprisonment for life.

Muhammad Ashraf v. The State 2012 SCMR 419; Hasil Khan v. The State 2012 SCMR 1936; Jehanzeb v. The State 2003 SCMR 98; Muhammad Ashraf Khan Tareen v. The State 1996 SCMR 1747 and Iftikhar Ahmad v. The State PLD 1990 SC 820 rel.

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

----S. 302(b)---Qatl-e-amd---Age of accused---If accused is less than 18 years of age, sentence of death is converted into imprisonment for life.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.417---Qatl-e-amd and terrorism---Reappraisal of evidence---Appeal against acquittal---Double murder---Benefit of doubt---Recovery---Proof---Conviction and sentence awarded to both accused by Trial Court was set aside by High Court and they were acquitted of the charge---Validity---No weapon of offence had been recovered from both the accused and recovery at their instance was not worthy of reliance as complainant was resident of same house where incident had taken place but he did not mention in complaint that certain articles were taken away by accused persons---Articles alleged to be recovered from accused were easily available in market and no specific mark was found on the articles to connect recoveries with commission of crime---For awarding conviction to accused persons, prosecution needed corroboration which was lacking and both accused were rightly acquitted by High Court---Interference in appeal against acquittal was a rare phenomenon---Supreme Court declined to interfere in judgment of acquittal passed by High Court---Appeal was dismissed.

Syed Asghar Hussain Sabzwari, Senior Advocate Supreme Court for Appellants (in Criminal Appeal No.55 of 2003).

Asjad Javed Ghural, Additional P.-G. Punjab for Appellants (in Criminal Appeal No.56 of 2003).

Saleem Abdul Rehman, Senior Advocate Supreme Court for Respondents Nos.1 and 2 along with Rizwan and Yasir.

Dates of hearing: 16th and 20th May, 2013.

2013 S C M R 1611

[Supreme Court of Pakistan]

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

PROVINCE OF PUNJAB and others---Petitioners

Versus

MUNAWAR HUSSAIN---Respondent

Civil Petition No.791-L of 2009, decided on 25th June, 2013.

(On appeal from the order dated 23-2-2009 passed by the Lahore High Court, Lahore in Civil Revision No.803 of 2008.)

Constitution of Pakistan---

----Art. 199--- Auction of government land--- Bid, rejection of---Competent authority exercising its discretion to reject a bid---Interference in such discretion by the High Court in its constitutional jurisdiction---Extent---Suit property owned by Provincial Government was put to auction---Plaintiff offered a bid of Rs. 21,500 per marla for the suit property, which as per record was the highest bid---Concerned District Housing Committee ("the Housing Committee), however, decided that any bid below Rs. 22,000 shall not be accepted, whereafter plaintiff approached the District Khidmat Committee ("the Khidmat Committee")---Said Committee recommended that plaintiff be allowed to enhance the bid amount to Rs. 24,000 per marla and the same be accepted, however the Housing Committee did not agree with the recommendation of the Khidmat Committee and decided that suit property should be put to re-auction---Plaintiff challenged such decision of the Housing Committee by way of a civil suit before Trial Court, which was decreed in his favour---Appellate Court, however reversed findings of Trial Court---High Court reversed the findings of the Appellate Court---Validity---Terms and conditions of auction stipulated that the competent authority may during the course of proceedings reject any bid without assigning any reason and further that the acceptance of the highest bid shall be subject to the approval of the competent authority as specified in the auction notice---Auction notice mentioned that competent authority was the Housing Committee---High Court while reversing the judgment of the Appellate Court did not examine the effect of terms and conditions of the auction---Exercise of discretion by relevant authorities was not amenable to interference in writ jurisdiction (of High Court) unless the same was arbitrary, fanciful or violative of any of the fundamental rights---Impugned judgment of High Court was set aside in circumstances and Supreme Court directed that (bid) amount deposited by the plaintiff should be returned to him---Appeal was allowed accordingly.

Munshi Muhammad and another v. Faizanul Haq and others 1971 SCMR 533 and Pervez Qureshi v. Settlement Commissioner Multan 1974 SCMR 337 rel.

Muhammad Arif Raja, Additional A.-G. for Petitioners.

Sh. Naveed Shahryar, Advocate Supreme Court and Ms. Najma Parveen, Advocate Supreme Court for Respondent.

Date of hearing: 25th June, 2013.

2013 S C M R 1618

[Supreme Court of Pakistan]

Present: Anwer Zaheer Jamali, Asif Saeed Khan Khosa and Amir Hani Muslim, JJ

ZAHOOR AHMED and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.245 and 246 of 2009, decided on 6th June, 2013.

(On appeal against the judgment dated 24-5-2005 passed by the Peshawar High Court, Abbottabad Bench in Criminal Appeal No.208 of 2003, Murder Reference No.4 of 2003 and Criminal Appeal No.217 of 2003 and Criminal Revision No.35 of 2003.)

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.342---Qatl-e-amd---Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to imprisonment for life---High Court not recording any findings as to whether the prosecution had proved its case against the accused---Effect---Accused and co-accused persons allegedly killed 9 people---Accused was convicted under S.302(b), P.P.C. by Trial Court and was awarded death sentence on 8 counts---High Court dismissed appeal filed by accused against his conviction and confirmed death sentence awarded by Trial Court---Plea of accused was that his admission in his statement under S.342, Cr.P.C. could not be made a ground to award him death sentence and that such a statement was either accepted as a whole or discarded as a whole---Validity---Common intention of accused to kill the deceased persons did exist, therefore findings of Trial Court and High Court could not be set at naught, however the High Court had proceeded on the premise that statement of accused under S.342, Cr.P.C. was sufficient to warrant interference---High Court had not recorded any findings as to whether the prosecution had proved its case against the accused---Such fact was itself a ground which could warrant reduction of sentence from death to imprisonment for life--- Capital punishment in such like cases could be reduced---Death sentence of accused on each count was commuted to life imprisonment---Appeal was disposed of accordingly.

Malik Muhammad Kabir, Advocate Supreme Court and Muhammad Zaman Bhatti, Advocate Supreme Court for Appellants (in Criminal Appeal No.245 of 2009).

Sardar Asmatullah Khan, Advocate Supreme Court for Appellants (in Criminal Appeal No.246 of 2009).

Nemo for Respondent No.1 (in Criminal Appeal No.246 of 2009).

M. Saddique Khan, Baloch, Advocate Supreme Court for the State.

Date of hearing: 6th June, 2013.

2013 S C M R 1623

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Gulzar Ahmed, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN---Appellant

Versus

Messrs PLASTICRAFTERS (PVT.) LTD.---Respondent

Civil Appeal No.3-K of 2013, decided on 20th June, 2013.

(On appeal from order of High Court Sindh, Karachi dated 28-11-2012 passed in Civil Revision No.127 of 2009.)

Limitation Act (IX of 1908)---

----First Sched., Art. 110---Sindh Rented Premises Ordinance (XVII of 1979), S.8---Suit for recovery of arrears of fair rent fixed by the Rent Controller---Limitation period, commencement of---Fair rent fixed by the Rent Controller---Appeal filed by tenant against such order of Rent Controller dismissed by the High Court---Landlord filing suit for recovery of arrears of fair rent after dismissal of tenant's appeal by the High Court---Question was as to when limitation period of three years prescribed under Art. 110 to the First Schedule of Limitation Act, 1908 for filing a suit for recovery of arrears of rent would commence---Held, such limitation period had to be computed from the date when suit amount as per adjudication and fixation of fair rent had finally become due, i.e. appeal had been dismissed by the High Court---Suit amount as arrears of rent became due and payable by the tenant only upon dismissal of appeal by the High Court, as the earlier order of Rent Controller then merged into it---In case tenant had not challenged the order of Rent Controller in appeal, the arrears of rent would have become due and payable when the Rent Controller for the first time fixed the fair rent from the date of filing of case---Appeal was allowed accordingly.

Attaullah Malik v. Rashid PLD 1972 Kar. 273 ref.

F.A. Khan v. Government of Pakistan PLD 1964 SC 520 and Moulvi Abdul Qayyum v. Ali Asghar Shah 1992 SCMR 241 rel.

Mian Mushtaq Ahmed, Advocate Supreme Court for Appellant.

Sarfraz A. Mirza, Advocate Supreme Court for Respondent.

Date of hearing: 20th June, 2013.

2013 S C M R 1629

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

Raja RAB NAWAZ---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Defence and others---Respondents

Civil Miscellaneous Application No.3258 of 2013 in Constitution Petition No.65 of 2009, decided on 2nd July, 2013.

(For extension of time.)

(a) Cantonments Act (II of 1924)---

----S. 14(1)(b)---Cantonments Ordinance (XXXVII of 2002), Ss. 57, 58 & 62---Constitution of Pakistan, Arts. 32, 140-A & 184(3)---Constitutional petition under Art. 184(3) of the Constitution seeking conduct of Local Government elections in Cantonment Boards---Direction given by the Supreme Court to complete the process of such elections by 5-5-2013---Federal Government seeking extension in such deadline for conduct of Local Government elections in Cantonment Boards---Plea of Federal Government that a request for holding elections for the Local Government in Cantonment areas was sent to the Election Commission of Pakistan ("the Commission") vide letter dated 21-12-2012, but the Commission vide its letter dated 18-3-2013 raised certain legal questions/observations and advice of Law and Justice Division was sought thereon; that pending the clarification of the said legal issues and the fact that the Commission was busy in holding general elections in the country, it was not possible to hold the Cantonment Boards elections by the target date fixed by the Supreme Court---Validity---Despite a clear mandate of law, elections of the Cantonment Local Government, i.e. Members of Union Councils including Union Nazims and Naib Nazims, had not been held for the last 14 years---Government had to ensure that the Local Government bodies elections as envisaged under the law must be held from time to time so that the representatives of the people could participate in managing their affairs at the grass root level and the Fundamental Rights guaranteed under the Constitution were protected and enforced---Supreme Court extended the period/deadline for holding elections in the Cantonment Boards up to 15-9-2013 and directed that copy of present order should also be sent to the Election Commission of Pakistan to ensure holding of the elections in terms of constitutional provisions (Art.32 read with Art. 140-A of the Constitution) on or before 15-9-2013--- Supreme Court observed that it was hopeful that the Provincial Governments as well as the administration of Islamabad would also make arrangements as early as could be possible to hold local bodies elections in accordance with law---Constitutional petition was disposed of accordingly.

(b) Cantonments Act (II of 1924)---

----S. 14(1)(b)---Cantonments Ordinance (XXXVII of 2002), Ss. 57, 58 & 62---Constitution of Pakistan, Arts. 32, 140-A & 184(3)---Constitutional petition under Art. 184(3) of the Constitution seeking conduct of Local Government elections in Cantonment Boards---Local Government/Municipal Government, importance of---Establishment of democratic institutions at the grass root level was basic requirement for the welfare of the society---Broad masses of people were to be genuinely associated with the management of their affairs and encouraged to work for their own welfare---Essentially, the institutions at local/grass root level protected the human dignity of common man to which he was entitled---Local Government or Municipal Government was a form of public administration, which in a majority of contexts, existed as the lowest tier of administration within a given state or district---Local Government was responsible for decision-making in those policy areas which had a direct impact on the lives of local citizens, e.g. urban regeneration, housing, schools, employment and social security, health, arts, culture and sport, local public transport, water and energy, and regional planning---Said areas were the areas where the local citizens must have the opportunity to exert direct influence on policy-makers and thus participate in the decision-making process---Local self-government not only had a legal and a political dimension, but it also had sociological connotations, namely, it directly affected community life within a demarcated locality---Local government was the most vital element in a democracy--- Existence of local bodies was important for strengthening the process of democracy---Local bodies, at one end, provided services to the local community and, on the other, acted as an instrument of democratic self-government---Existence of local self-government provided mechanism for the enforcement of Fundamental Rights of the people---Such government bodies were helpful for development including education, health, social services as well as in improving law and order situation---Local self-government was necessary not only for strengthening democracy in a country but also for securing good governance, which was essential to ensure the welfare of the citizens---Local government was always appreciated by the general public because it remained within their approach, as such they were involved in the decision making process---Constitutional petition was disposed of accordingly.

Petitioner in person.

Muneer A. Malik, Attorney-General for Pakistan with Maj. General Tahir Masood, D.-G., Dr. Naeem Chaudhry, Director and Kaleemullah, L.O. on Courts Notice.

Date of hearing: 2nd July, 2013.

2013 S C M R 1644

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Asif Saeed Khan Khosa and Amir Hani Muslim, JJ

ASKARI CEMENT LIMITED (FORMERLY ASSOCIATED CEMENT LIMITED) through Chief Executive---Appellant

Versus

LAND ACQUISITION COLLECTOR (INDUSTRIES) PUNJAB and others---Respondents

Civil Appeals Nos.563 to 567 of 2008, decided on 12th June, 2013.

(On appeal from judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi dated 7-5-2008 passed in R.F.As. Nos.61, 76 to 79 of 1992.)

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

----S. 23---Acquisition of land for commercial purposes---Quantum of compensation---Factors to be considered for determining market value of acquired land---Scope---Land in question was acquired from the respondents for a cement factory---Land Acquisition Collector passed compensatory award at the rate of Rs. 13,776.20 per kanal, plus 25% compulsory acquisition charges, and Rs. 100 per acre administration charges---Land owners being dissatisfied with the quantum of compensation filed their objections/reference before the civil court, which enhanced rate of compensation from Rs. 13,776.20 per kanal to Rs.34,500 per kanal---Cement factory/appellant filed appeals before the High Court, which reduced the compensation from Rs.34,500 per kanal to Rs. 30,000 per kanal---Validity---Land acquired for the benefit of cement factory was surrounded from different directions by metalled roads, railway link, residential colonies and industrial units---Land in question was being used for commercial purposes---One of the witnesses who appeared in court on behalf of the cement factory admitted in his evidence that there were residential colonies, factories and industries in the area where acquired land was situated; that land acquired was only at a distance of half kilometer from a major road (Grand Trunk Road), and that about three years ago cement factory purchased some other land similar to the acquired land at the rate of Rs.30,000 per kanal---Two courts below had carefully taken into account all aspects of the case and based on proper appreciation of evidence, finally awarded compensation at Rs. 30,000 per kanal with other consequential legal benefits---Appeals were dismissed accordingly.

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

----Ss. 23 & 24---Acquisition of land---Quantum of compensation---Factors to be considered for determining market value of acquired land---Scope---For determining proper rate of compensation for the acquired land, not only the factors highlighted in Ss.23 & 24 of Land Acquisition Act, 1894 were relevant, but the peculiar facts and circumstances of each case were more important deciding factors in such regard.

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

----Ss. 23 & 24---Acquisition of land---Market value of acquired land---Concurrent findings of civil courts and High Court regarding market value of acquired land---Interference in such findings by the Supreme Court---Scope---Determination of market value of acquired land, was essentially an issue of fact, therefore, concurrent findings of the two courts (below), unless shown to be arbitrary, fanciful or result of misreading or non-reading of evidence and other relevant record, were not open to challenge on the mere ground that some other conclusion was also possible.

Gulzarin Kiani, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Ex parte for Respondent No.1.

Syed Ayub Bokhari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Private Respondents.

Date of hearing: 12th June, 2013.

2013 S C M R 1651

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

PAKISTAN BAR COUNCIL through Chairman, Legal Education Committee, PBC, Islamabad---Petitioner

Versus

FEDERAL GOVERNMENT through Establishment Division

and others---Respondents

Constitutional Petition No.134 of 2012, decided on 4th July, 2013.

Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----Ss. 13(j) & 55(q)---Constitution of Pakistan, Arts. 9, 25A, 37 & 184(3)---Constitutional petition under Art.184(3) of the Constitution concerning recognition/affiliations of law colleges and universities and raising of standard of legal education in the country---Committee constituted on directions of the Supreme Court for purpose of improving and updating legal education in the country and for examining existing courses of law prescribed by universities and to suggest suitable proposals---Said Committee was non-functioning as one of its members had died, and another member had been elevated as a Judge of the High Court---Supreme Court, in order to make the said Committee complete and functional appointed two new members---Supreme Court directed that State was responsible for ensuring fundamental right of education enshrined in Art.9 read with Arts.25A & 37 of the Constitution; that Secretary Law and Justice Division should make adequate arrangements of funds, enabling members of the Committee in question to perform their functions, and members shall be entitled to TA/DA, lodging, boarding etc, as admissible to an officer of Grade-22 under the relevant provisions of rules; that Secretary Law shall provide facility and logistic support to the Committee to ensure that it discharged its functions and implemented the judgment titled Pakistan Bar Council v. Federal Government PLD 2007 SC 394; that the Committee might convene its first meeting after 9th August, 2013 wherein it will frame its own SOPs for the purpose of further functioning and for carrying out implementation of the judgment titled Pakistan Bar Council v. Federal Government PLD 2007 SC 394, and if there was any problem in holding the meeting etc. the Vice-Chairman, Pakistan Bar Council shall bring it into the notice of Registrar of the Supreme Court enabling him to find out a solution either on the administrative side or by putting the matter before the Supreme Court for passing a judicial order---Supreme Court observed that Pakistan Bar Council might reconsider all the relevant rules on the present matter and promulgate uniform rules under the relevant provisions of the Legal Practitioners and Bar Councils Act, 1973 for effective supervision relating to recognition of university and law colleges and also for raising standard of education.

Mian Abbas Ahmed, Advocate Supreme Court, Azam Nazir Tarar, Advocate Supreme Court with Muhammad Arshad, Secretary, PBC for Petitioner.

Nemo for Respondents Nos.1, 3 and 6.

Jawwad Hassan, Additional A.-G. for Respondent No.2.

Shehzad Shaukat, Advocate Supreme Court and Muhammad Abbas, Assistant Registrar for Respondent No.4.

Mehr Khan Malik, Advocate-on-Record for Respondent No.5.

Arshad Ali Ch. Advocate-on-Record for Respondent No.7.

Safdar Shaheen Pirzada, Adv. (in person) for Respondent No.8.

Date of hearing: 4th July, 2013.

2013 S C M R 1655

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Sh. Azmat Saeed, JJ

ALLAH DINO KHAN BHAYO---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and others---Respondents

Civil Petition No.1033 of 2013, decided on 9th July, 2013.

(On appeal from the judgment dated 26-6-2013 of the Islamabad High Court, Islamabad passed in W.P. No.2708 of 2013.)

(a) Constitution of Pakistan---

----Arts. 62(1)(f) & 185(3)---Representation of the People Act (LXXXV of 1976), S. 14(3)---Qualification for membership of Parliament (Majlis-e-Shoora)---Person/candidate not qualified in terms of Art.62(1)(f) of the Constitution to contest general elections because of submitting fake educational certificate before the Returning Officer---Such person/candidate would not become qualified to contest elections (in future) by efflux of time.

Regarding qualification to be Member of Parliament (Majlis-e-Shoora) in terms of Art. 62(1)(f) of the Constitution, the framers of the Constitution had chosen not to prescribe any period of time through the flux whereof or any act or omission through which such qualification could be acquired if a candidate or a member had been held not to possess the same. If a person was held not be qualified in terms of Art.62(1)(f) of the Constitution, such absence of qualification in law would haunt him forever.

Petitioner, in the present case, was notified as a returned candidate for the seat of a Provincial Assembly in the general elections conducted in 2013. Nomination papers of petitioner in the general elections conducted in 2008 were rejected by the Returning Officer as he deliberately produced a forged, fake and fabricated educational certificate at that time. Said order of returning officer was accepted by the petitioner and attained finality as he never challenged the same by way of an appeal or otherwise.

Election Commission, in the present case, rightly concluded that petitioner was not qualified under Art. 62(1)(f) of the Constitution to be a Member of the Provincial Assembly in the general elections conducted in 2013 and declared the election in the constituency as null and void. Said order of Election Commission was correctly maintained by the High court. Petition for leave to appeal was dismissed accordingly and leave was refused.

Virindar Kumar Satyawadi v. The State of Punjab AIR 1956 SC 153; Ch. Altaf Hussain v. Raja Muhammad Afzal PLD 1986 Journal 93; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644 and Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066 distinguished.

Malik Iqbal Ahmad Langrial v. Jamshed Alam and others PLD 2013 SC 179; Abdul Ghafoor Lehri v. The Returning Officer, PB-29, Naseerabad-II and others Civil Appeals Nos.411 to 414 of 2013 and Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others PLD 2013 SC 482 rel.

(b) Constitution of Pakistan---

----Art. 62(1)(f)---Qualification for membership of Majlis-e-Shoora---Educational qualification--- Person using unfair means or making a wrong declaration to establish his educational qualification for contesting general elections--- Effect--- Such a person could not be considered to be honest, righteous or ameen and did not possess the qualifications prescribed under Art. 62(1)(f) of the Constitution to become a member of the Parliament or Provincial Assembly.

Muddasar Qayyum Nahra v. Ch. Bilal Ijaz and others 2011 SCMR 80 rel.

Waseem Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 9th July, 2013.

2013 S C M R 1665

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

MUHAMMAD SIDDIQUE and another---Appellants

Versus

FEDERATION OF PAKISTAN through M/o Works and Housing and others---Respondents

Civil Appeal No.441 of 2008, decided on 24th June, 2013.

(On appeal from the judgment dated 2-4-2008 in C.P. No.D-1126 of 2006 passed by the High Court of Sindh, at Karachi.)

Karachi Building and Town Planning Regulations, 1979---

----Reg. 26, Sched. D, clauses 3(a), (b) & (c)---Karachi Development Authority Order (V of 1957) [since repealed], Arts. 40(4), (5), (6) & 52A---Sub-division and commercialization of a residential plot without inviting objections from the general public through notices in leading newspapers---Legality---Plot in question was allotted to lessee on 26-6-1964 with the condition that plot shall not be sub-divided except with the previous consent in writing of lessor i.e. the President of Pakistan and subject to such terms as the lessor might from time to time impose---Lessee approached the concerned authority requesting for sub-division of the plot---After concurrence from concerned authorities was conveyed on 22-4-1991, original plot was officially sub-divided---Subsequently in the year 1991 lessee applied for commercialization of the sub-divided plot which was approved by the concerned Ministry and housing society in March of 1992---Said purported commercial plot was sold onto another person, who in turn sold it to the present appellants---Appellants had started construction of a building on the purported commercial plot, when respondents filed a constitutional petition before the High Court contending that sub-division of the original plot into two parts was without prior approval of the concerned authority i.e. Master Plan and Environmental Control Department---High Court allowed said constitutional petition by relying on Karachi Building and Town Planning Regulations, 1979 and decided that changes were made to the original plot without inviting objections from the general public through notices published in one English and one Urdu leading local newspapers---Validity---Plot in question had been allotted for residential use---High Court had rightly relied on Karachi Building and Town Planning Regulations, 1979, and not on Karachi Building and Town Planning Regulations, 2002 as the former were applicable at the time when lessee applied for commercialization of sub-divided plot--- In view of clause 3 of Schedule D to Regulation 26 of Karachi Building and Town Planning Regulations 1979, when use of land was to be changed or converted for any other purpose, an application had to be made to the Commissioner---On receipt of such application, the Commissioner was bound to invite objections from the general public through notices to be published in one English and one Urdu leading local newspaper---High Court had rightly observed that such publications were not made in the present case in one English and one Urdu leading daily newspaper---Even if present case was examined at the touchstone of Arts. 40(4), (5), (6) & 52A of Karachi Development Authority Order, 1957 (since repealed), conditions laid down therein had also not been fulfilled because publication was not made in leading newspapers---Division of original plot and commercialization of one of its part in the present case was contrary to clauses 3(a), (b) & (c) of Schedule D to Regulation 26 of Karachi Building and Town Planning Regulations, 1979---Findings recorded by High Court being unexceptional did not call for any interference--- Appeal was dismissed in circumstances.

Mushtaq A. Memon, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Respondent No.3.

Malik Qamar Afzal, Advocate Supreme Court for Respondent No.5.

Muhammad Munir Peracha, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.9 and 10.

Ex parte for Respondents Nos.1, 2 and 6 to 8.

Date of hearing: 24th June, 2013.

2013 S C M R 1676

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Iqbal Hameedur Rahman, JJ

MUHAMMAD ASLAM ABRO---Petitioner

Versus

Sardar MUHAMMAD MUQEEM KHOSA and others---Respondents

Civil Petition No.804 of 2013, decided on 20th June, 2013.

(On appeal against the order dated 29-5-2013 passed by High Court of Sindh, Karachi, in C.P. No.D-2206 of 2013.)

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

----S. 39---Constitution of Pakistan, Arts. 225, 185(3) & 199---Election for seat of Provincial Assembly---Voting at polling station---Miscalculation, omissions and arithmetical errors by Presiding Officer at the time of formulation of consolidated result---Constitutional petition filed before the High Court seeking recount of votes casted at a polling station---Maintainability---Petitioner and respondent contested for seat of Provincial Assembly---After consolidation of results petitioner was shown to have bagged 15743 votes, while respondent got 15640 votes---Respondent filed applications before the Presiding Officer and District Returning Officer seeking recounting of votes at a polling stations on the basis that there were miscalculation, omissions and arithmetical errors at the time of formulation of consolidated result---Said applications were not adjudicated upon by the Election Commission of Pakistan, whereafter respondent filed a constitutional petition before the High Court seeking recounting of votes---High Court allowed the constitutional petition and directed that recounting of votes should be conducted and notification (of successful candidate) should be notified only after recounting of votes casted at the polling station---Contention of petitioner was that prior to filing constitutional petition before the High Court respondent had already submitted applications to the Presiding Officer and District Returning Officer alleging that results at different polling stations had not been properly given; that in such circumstances High Court should not have interfered in the proceedings of the Election Commission of Pakistan in view of the bar under Art. 225 of the Constitution, and that only remedy available to the respondent was to file an election petition before the Election Tribunal, thus the constitutional petition filed before the High Court was not maintainable---Contention of respondent was that on account of miscalculation and arithmetical errors which crept in at the time of formulation of consolidated results, he immediately filed applications before the Presiding Officer and District Returning Officer, which remained pending before the Election Commission and were not considered; that in such circumstances he filed constitutional petition, which was in the form of mandamus, seeking a direction to the Election Commission of Pakistan for recounting of votes---Validity---Constitutional petition filed by the respondent before the High Court was in the form of mandamus seeking issuance of direction for deciding his applications which were filed before the Presiding Officer and District Returning Officer to rectify erroneous and arithmetical errors---Since said applications of respondent were not attended to by the Election Commission, therefore, the High Court accordingly issued directions to the Election Commission in such regard and to issue a final notification---Said direction by High Court did not amount to disenfranchising the petitioner, therefore, constitutional petition filed by respondent was not barred under Art. 225 of the Constitution---After recounting of votes respondent was declared as the successful candidate and a notification in such regard was also issued, therefore, bar of Art. 225 of the Constitution would now apply (to the petitioner), on account of which an election petition was required to be filed before the Election Tribunal---Petition for leave to appeal was dismissed accordingly.

Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others 1994 SCMR 1299; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Dr. Sohrab Ahmed Khan Sarki v. Mir Hassan Khoso and others 2011 SCMR 1084 and Habib Ullah v. Azmat Ullah PLD 2007 SC 271 distinguished.

Tariq Mehmood, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Muhammad Afzal Sidiqui, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1.

Nemo for Respondents Nos.2 to 5.

Date of hearing: 20th June, 2013.

2013 S C M R 1683

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Khilji Arif Hussain and Ejaz Afzal Khan, JJ

Moulvi IQBAL HAIDER and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary M/o Law and Justice and others---Respondents

C.P. No.2255 of 2010, Constitutional Petitions Nos. 14, 16, 17 and 18 of 2013 along with C.M. Appeal No.157 of 2009 with C.M.As. Nos.2335 to 2337, 2368 and 2705 of 2013, decided on 3rd July, 2013.

Constitution of Pakistan---

----Art. 6 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution seeking direction from the Supreme Court to the Federal Government to lodge a complaint under Art. 6 of the Constitution against General (Retd.) Pervez Musharraf and others for the action imposing state of emergency by him in the country on November 3, 2007---High treason--- Inquiry and investigation--- Inquiry Committee and Commission, constitution of---Statement filed by Attorney-General in the Supreme Court regarding details of actions envisaged by the Federal Government in regard to the present matter and the process through which such actions would be given effect stated that Prime Minister had directed the Secretary Interior to forthwith direct the Director General of Federal Investigation Agency to constitute a special investigative team of senior officers to commence an inquiry and investigation in relation to the acts of General (R) Pervez Musharraf of 3rd November, 2007 that might amount to "high treason" under Art. 6 of the Constitution and to finalize as expeditiously as possible the statement of case to be put up by the Federal Government before the Special Court to be constituted under the Criminal Law Amendment (Special Courts) Act, 1976; that in order to ensure expeditious completion of the inquiry and investigation, the Prime Minister was also considering the constitution of a Commission to oversee and monitor the progress of the proceedings; that on the completion of the investigation, the Federal Government shall file the requisite complaint under S.5 of the Criminal Law Amendment (Special Courts) Act, 1976 and take steps to constitute the Special Court in accordance with S.4 of the said Act for the trial of the offence---Prayer made by the petitioners in the present petition effectively appeared to have been accepted by the (Federal) Government (in view of the statement filed by the Attorney-General)---Attorney-General had stated that the government had constituted an Inquiry Committee comprised of senior functionaries of the Federal Investigation Agency and it would be upto the said Committee to undertake the investigation---Supreme Court observed that it expected that such investigation shall be concluded without unnecessary delay; that court was consciously and deliberately not touching the question of "abrogation" or "subversion" or "holding in abeyance the Constitution" or "any conspiracy in that behalf" or indeed the question of suspending or holding the Constitution in abeyance or the issue as to abetment or collaboration in the acts mentioned in Art. 6 of the Constitution, because any finding/observation or view expressed by the Supreme Court (in such regard) might potentially result in prejudice to the inquiry/investigation or subsequent trial should that take place as a result of such investigation and that the Federal Government shall proceed (with the present matter) as per its undertaking without unnecessary delay---Constitutional petition was disposed of accordingly.

A.K. Dogar, Senior Advocate Supreme Court, Muhammad Siddique Khan Baloch, Advocate-on-Record for Petitioners (in Constitutional Petition No.2255 of 2010).

Hamid Khan, Senior Advocate Supreme Court and Taufeeq Asif, Advocate Supreme Court for Petitioners (in Constitutional Petition No.14 of 2013).

Arshad Ali Chaudhry, Advocate Supreme Court/Advocate-on-Record for Petitioners (in Constitutional Petition No.16 of 2013).

Sheikh Ahsan ud Din, Advocate Supreme Court for Petitioners (in Constitutional Petition No.17 of 2013).

Muhammad Ikram Chaudhry, Senior Advocate Supreme Court along with Abdul Hakeem Khan, Advocate Supreme Court for Petitioners (in Constitutional Petition No.18 of 2013).

Applicant in person (in C.M. Appeal No.157 of 2009).

Dr. Sher Ali Rizvi, Advocate Supreme Court for Applicants (in C.M.A. No.2705 of 2013).

Applicants in person (in C.M.As. Nos.2335 to 2337, 2368 and 2705 of 2013).

Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court for Respondents (in Constitutional Petitions Nos.14 and 17 of 2013).

Qamar Afzal, Advocate Supreme Court for Respondents (in Constitutional Petition No. 16 of 2013) assisted by facilitated by Ms. Zainab Raza Effendi, LLM, (Warwick University U.K.), Ms. Rehana Zaman, LLM (Islamic University, Pakistan), Nabeel Rehman, LLM (University of Newcastle, UK), Ms. Amina Iqbal, Bar-at-Law (University of Northumbria, UK), Ms. Zohra Khokhar, LLB. (Hons. (University of Northumbria, UK), Zain Rehman, LLB (University of Birmingham, UK), Raja Asjid Iqbal Satti, Advocate.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court with Ms. Shazia Yasin Hashmi, Advocate High Court for Respondents (in Constitutional Petitions Nos.2255 of 2010 and 18 of 2013).

Munir A. Malik, Attorney-General for Pakistan and Dil Muhammad Khan Alizai, D.A.-G. for Federation.

Date of hearing: 3rd July, 2013.

2013 S C M R 1687

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

Civil Appeals Nos. 2234, 2235 of 2005 and 61 of 2006

SECRETARY ECONOMIC AFFAIRS DIVISION, ISLAMABAD and others---Appellants

Versus

ANWARUL HAQ AHMED and others---Respondents

(On appeal from the judgment dated 30-6-2004 and 12-4-2005 passed by the Lahore High Court, Lahore in W.P. No.143 of 2003 and 19438 of 2004 respectively.)

Civil Petitions Nos.1587-L and 1588-L of 2010

SECRETARY, GOVERNMENT OF PUNJAB, HEALTH DEPARTMENT and others---Petitioners

Versus

NOORIEN S. BOKHAREE and others---Respondents

(On appeal from the judgment dated 6-7-2010 passed by the Lahore High Court, Lahore in W.Ps. Nos.5194 of 2006 and 11873 of 2010.)

Civil Petitions Nos.445-L and 454-L of 2012

PRINCIPAL/EO, FATIMA JINNAH MEDICAL COLLEGE

FOR WOMEN, LAHORE and others---Petitioners

Versus

Miss SARA BUKHTIAR and others---Respondents

(On appeal from the judgments dated 12-10-2010 and 13-10-2011 passed by the Lahore High Court in W.Ps. Nos.23372 of 2009 and 19138 of 2011.)

Civil Appeals Nos.2234, 2235 of 2005, 61 of 2006, Civil Petitions Nos.1587-L, 1588-L of 2010, 445-L and 454-L of 2012, decided on 31st July, 2013.

(a) Constitution of Pakistan---

----Art. 25---Qanun-e-Shahadat (10 of 1984), Art. 114---Medical College---Admission policy---Fee structure---Difference in fee structure for admissions based on merit and those based on Self-Finance Scheme---Legality---Classification between students based on an intelligible differentia---Scope---As per prospectus for the sessions 2002-2003 issued by Health Department of Provincial Government seats in medical colleges were allocated on open merit, and those who could not get admission on open merit had option to apply through different categories/schemes including "Self-Finance Scheme" for foreign students of Pakistan origin---Under the said "Self-Finance Scheme" a student had to contribute to the college endowment fund an amount ranging between US $ 5000 - 10,000 per annum, depending on the city in which the college was located, and such amount was to be paid in advance, and for ensuring payment of fee for the remaining four years student also had to furnish a bank guarantee, in addition to the fees payable by a regular student---Respondent-student succeeded in getting admission on "Self-Finance Scheme" basis and deposited his contribution of US $10000 towards college endowment fund as prescribed in the policy, besides fulfilling his obligations towards payment of normal fee---After getting admission respondent filed a constitutional petition before the High Court challenging the fee structure under the "Self-Finance Scheme" on the ground that charging of fee/endowment funds at higher rates from the students of "Self-Finance Scheme" as compared to other students was discriminatory as well as violative of Art.9 read with Art.25 of the Constitution---High Court allowed said constitutional petition and directed that all students under the "Self-Finance Scheme" should be charged a uniform rate of US $ 5000 per annum as college endowment fund irrespective of the location of the college, and condition of furnishing bank guarantee for the remaining four years was also set aside---Plea of Provincial Health Department that respondent was estopped from challenging the policy of admission under the "Self-Finance Scheme", as he himself accepted the terms and conditions for admission under the said scheme---Validity---Classification between the students, who secured more marks and succeeded in getting admission on open merit and the students, who, after failing to get admission on open merit, opted to get the benefit of "Self-Finance Scheme", was based on an intelligible differentia and was as such reasonable---Students who opted to apply for admission on "Self-Finance Scheme", after failing to get admission on open merit, could not claim the protection of Art.25 of the Constitution as they were neither similarly placed nor such classification was unreasonable---Under the doctrine of 'promissory estoppel' respondent-Student was estopped to challenge his contribution of US$ 10,000 in endowment fund, in terms of Art.114 of the Qanun-e-Shahadat, 1984, as he himself accepted the terms and conditions of admission policy while getting admission on "Self-Finance Scheme" basis---Regarding difference in fee structure under "Self-Finance Scheme" on basis of the city in which the college was located, every college had its own study atmosphere due to different facilities available therein---Further, the expenditures and cost of education also changed in various cities, thus a uniform policy to contribute towards endowment fund could not be prescribed by the Provincial Government or by college administrations situated in different cities---Finding of the High Court directing the authorities to charge from all students under the "Self-Finance Scheme" a uniform rate of US $ 5000 per annum, irrespective of which city the college was located in was unwarranted and not sustainable in law and the Constitution---Appeal was disposed of accordingly.

(b) Educational institution---

----Admission policy--- Interference in such policy by the courts---Scope---Educational institutions were independent to follow policy for admission including affairs relating to changing conditions for endowment funds or fee, either under the policy given by the government or adopted by the college; and interference in such policy by the court was possible only in exceptional circumstances.

Chairman Joint Admission Commission v. Raza Hassan 1999 SCMR 965; Mian Muhammad Afzal v. Province of Punjab 2004 SCMR 1570; Shazia Irshad Bokhari v. Government of Punjab PLD 2005 Lah. 428 and Waqas Zafar v. Baha-ud-Din Zakriya University 2010 CLC 999 ref.

(c) Constitution of Pakistan---

----Art. 25---Equality of citizens---Reasonable classification based on an intelligible differentia---Legality---Article 25 of the Constitution did not prohibit classification for those differently circumstanced provided a rational standard was laid down---Doctrine of reasonable classification was founded on the assumption that the State had to perform multifarious activities and deal with a vast number of problems---Protection of Art.25 of the Constitution could be denied in peculiar circumstances of the case on basis of reasonable classification founded on an intelligible differentia which distinguished persons or things that were grouped together from those who had been left out---Such differentia, however, must have rational nexus to the object sought to be achieved by such classification.

I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Tariq Aziz-ud-Din and others (Human Rights cases Nos. 8340 of 2009 and others) 2010 SCMR 130; National Bank of Pakistan v. Nasim Arif Abbasi 2011 SCMR 446; Dr. Shahnaz Wajid v. Federation of Pakistan 2011 SCMR 1737 and N.-W.F.P. Public Service Commission v. Muhammad Arif 2011 SCMR 848 ref.

(d) Estoppel---

----Applicability---Scope---Doctrine of 'estoppel' meant a disability whereby a party was precluded from alleging or proving in legal proceedings that a fact was otherwise than it had been made to appear by the matter giving rise to such disability.

Haji Ghulam Rasool v. The Chief Administrator of Auqaf PLD 1971 SC 376; Messrs Gadoon Textile v. WAPDA 1997 SCMR 641; Pakistan v. Fecto Belarus Tractors Ltd. PLD 2002 SC 208; Muhammad Zubair v. Government of Pakistan 2012 CLC 1071; Yahya Gulzar v. Province of Punjab 2001 CLC 9; Ghulam Rasool's case PLD 1971 SC 376 and Turner Morrison and Co. v. Hungerford Investment Trust Ltd. AIR 1972 SC 1311 ref.

Jawwad Hassan, Additional A.-G. Punjab, Ijaz Farrukh, Senior Law Officer, Health Department for Appellants/Petitioners (in C.A. 2234 of 2005, C.P. No.1587-L and 1588-L of 2010).

A.K. Dogar, Senior Advocate Supreme Court for Appellants (in C.As. Nos.2235 of 2005 and 61 of 2006).

Anwar Kamal, Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos.445-L and 454-L of 2012).

Abdul Sadiq Ch., Advocate Supreme Court for Respondents (in C.Ps. Nos. 1587 - 1588-L and 454-L of 2010).

Malik Allah Yar Khan, Advocate Supreme Court for Respondents (in C.P. No.445-L of 2012).

Jawwad Hassan, Additional A.-G. Punjab, Ijaz Farrukh, Senior Law Officer, Health Department for Respondents (in C.As. Nos.2235 and 61 of 2006).

A.K. Dogar, Senior Advocate Supreme Court for Respondents (in C.A. No.2234 of 2005).

Mian Muhammad Hanif, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for HEC.

Date of hearing: 5th June, 2013.

2013 S C M R 1707

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk, Asif Saeed Khan Khosa, Sarmad Jalal Osmany and Amir Hani Muslim, JJ

CIVIL APPEAL NO.39 OF 2010

(On appeal from the judgment dated 18-5-2009 passed by the High Court of Sindh, Karachi in Constitutional Petition D-1933 of 2008.)

PAKISTAN DEFENCE OFFICERS' HOUSING AUTHORITY and others---Appellants

Versus

Lt. Col. Syed JAWAID AHMED---Respondent

CIVIL APPEAL NO.1150 OF 2010

(On appeal from the judgment dated 26-11-2010 passed by the High Court of Sindh, Karachi in Constitutional Petition No.D-1713 of 2006.)

PAKISTAN INTERNATIONAL AIRLINE through Chairman---Appellant

Versus

S.M. NAWAZ and others---Respondents

CIVIL APPEAL NO.1162 OF 2012

(On appeal from the judgment dated 24-9-2012 passed by the High Court of Sindh, Karachi in Constitutional Petition No.D-141 of 2011.)

Messrs PAKISTAN STEEL MILLS through Chairman/CEO, Karachi---Appellant

Versus

MUHAMMAD ASLAM CHAUDHRY and others---Respondents

CIVIL APPEAL NO.142-K OF 2009

(On appeal from the judgment dated 17-4-2009 passed by the High Court of Sindh, Karachi in C.P. No.D-1690 of 2007.)

N.E.D. UNIVERSITY OF ENGINEERING AND TECHNOLOGY and others---Appellants

Versus

HAFEEZULLAH KHAWAJA---Respondent

CIVIL APPEAL NO.177-K OF 2010

(On appeal from the judgment dated 3-6-2010 passed by the High Court of Sindh, Karachi in C.Ps. D-2705 of 2009, D-1768 of 2006, D-1771 of 2006, D-1871 of 2006, D-1872 of 2006, D-1894 of 2006, D-1895, D-1896, D-1897 of 2006, D-2018 of 2006, D-2031 of 2006, D-1918 of 2006, D-405 of 2006, D-563 of 2007, D-574 of 2007, D-795 of 2007, D-871 of 2007, D-1320 of 2007, D-1331 of 2007, D-1643 of 2007, D-1648 of 2007, D-1951 of 2007 and D-2464 of 2007.)

Messrs HOUSE BUILDING FINANCE CORPORATION and another---Appellants

Versus

SHAHID MEHMOOD USMANI---Respondent

CIVIL APPEAL NO.178-K OF 2010

(On appeal from the judgment dated 3-6-2010 passed by the High Court of Sindh, Karachi in C.Ps. D-2705 of 2009, D-1768 of 2006, D-1771 of 2006, D-1871 of 2006, D-1872 of 2006, D-1894 of 2006, D-1895, D-1896, D-1897 of 2006, D-2018 of 2006, D-2031 of 2006, D-1918 of 2006, D-405 of 2006, D-563 of 2007, D-574 of 2007, D-795 of 2007, D-871 of 2007, D-1320 of 2007, D-1331 of 2007, D-1643 of 2007, D-1648 of 2007, D-1951 of 2007 and 2464 of 2007.)

CHAIRMAN PAKISTAN STEEL MILLS and others---Appellants

Versus

SIRJAUDDIN GHORI---Respondent

CIVIL APPEAL NO.228-K OF 2010

(On appeal from the judgment dated 30-9-2010 passed by the High Court of Sindh, Karachi in Constitutional petition No.1549 of 2010.)

PAKISTAN INTERNATIONAL AIRLINE and another---Appellants

Versus

HAMAYUN RAJA---Respondent

CIVIL APPEAL NO. 57-K OF 2011

(On appeal from the judgment dated 8-1-2010 passed by the High Court of Sindh, Karachi in C.P. D-2122 of 2006.)

PAKISTAN STEEL MILL through Chairman---Appellant

Versus

SHAKIR ALI KHAN and another---Respondents

CIVIL APPEAL NO. 63-K OF 2011

(On appeal from the judgment dated 28-11-2010 passed by the High Court of Sindh, Karachi in Constitutional Petition No.D-1489 of 2007.)

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD.---Appellant

Versus

MUHAMMAD RAFIQ MEMON and others---Respondents

CIVIL APPEAL NO. 65-K OF 2011

(On appeal from the judgment dated 20-12-2010 passed by the High Court of Sindh, Karachi in Constitutional Petition No.D-1871 of 2006.)

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD.---Appellant

Versus

NOOR MUHAMMAD AWAN and others---Respondents

CIVIL APPEAL NO. 66-K OF 2011

(On appeal from the judgment dated 20-12-2010 passed by the High Court of Sindh, Karachi in Constitutional Petition No.D-1872 of 2006.)

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD.---Appellant

Versus

NOOR MUHAMMAD AWAN and others---Respondents

CIVIL APPEAL NO. 83-K OF 2011

(On appeal from the judgment dated 5-3-2011 passed by the High Court of Sindh, Karachi in Constitutional Petition No.D-574 of 2007.)

PORT BIN QASIM AUTHORITY through Chairman and another---Appellants

Versus

IRSHAD AHMED and another---Respondents

CIVIL APPEAL NO.91-K OF 2011

(On appeal from the judgment dated 8-10-2010 passed by the High Court of Sindh, Karachi in Constitutional Petition No.871 of 2007.)

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD.---Appellant

Versus

MUHAMMAD SADIQ and another---Respondents

CIVIL APPEAL NO. 135-K OF 2011

(On appeal from the judgment dated 2-12-2010 passed by the High Court of Sindh, Karachi in Constitutional Petition No.D-1771 of 2006.)

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD.---Appellant

Versus

ARSHAD NADEEM---Respondent

CIVIL APPEAL NO.136-K OF 2011

(On appeal from the judgment dated 31-3-2011 passed by the High Court of Sindh, Karachi in C.P. No.D-2498 of 2010.)

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD. through Chairman---Appellant

Versus

ABID HUSSAIN and another---Respondents

CIVIL APPEAL NO.137-K OF 2011

(On appeal from the judgment dated 6-4-2011 passed by the High Court of Sindh, Karachi in C.P. No.D-1770 of 2006.)

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD.---Appellant

Versus

QAZI GHULAM REHMANI and another---Respondents

CIVIL APPEAL NO.188-K OF 2011

(On appeal from the judgment dated 10-5-2011 passed by the High Court of Sindh, Karachi in C.P. 3316 of 2010.)

Messrs PAKISTAN STATE OIL COMPANY LTD. and others---Appellants

Versus

IMRAN HASSAN KHAN and another---Respondents

CIVIL APPEAL NO.232-K OF 2011

(On appeal from the judgment dated 16-5-2011 passed by the High Court of Sindh, Karachi in Constitutional Petition No.D-1643 of 2007.)

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD.---Appellant

Versus

Mirza HASSAN ALI---Respondent

CIVIL APPEAL NO.75-K OF 2012

(On appeal from the judgment dated 19-7-2012 passed by the High Court of Sindh, Larkana in Constitutional Petition No.D-381 of 2012.)

S.M.E. BANK LTD.---Appellant

Versus

AKBAR ALI ABBASI and another---Respondents

CIVIL APPEAL NO.82-K OF 2012

(On appeal from the judgment dated 18-4-2012 passed by the High Court of Sindh, Karachi in C.P. No.D-1667 of 2010.)

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD.---Appellant

Versus

Miss SHAKEELA NAZ---Respondent

Civil Appeals Nos.39 of 2010, 1150 of 2010, 1162 of 2010, 142-K of 2009, 177-K of 2010, 178-K of 2010, 228-K of 2010, 57-K of 2011, 63-K of 2011, 65-K of 2011, 66-K of 2011, 83-K of 2011, 91-K of 2011, 135-K of 2011, 136-K of 2011, 137-K of 2011, 188-K of 2011, 232-K of 2011, 75-K of 2012 and 82-K of 2012, decided on 2nd May, 2013.

(a) Public authority---

----Public authority was a body which had public or statutory duties to perform and which performed such duties and carried out its transactions for the benefit of the public and not for private gain or profit---Such an authority, however was not precluded from making a profit for the public benefit.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition before High Court by an employee of a statutory body--- Maintainability---"Function test"---Scope---Courts generally apply the "function test" to consider whether a statutory body was a "person" within the meaning of Art. 199 of the Constitution.

Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244; Aitchison College, Lahore through Principal v. Muhammad Zubair PLD 2002 SC 326 and Pakistan International Airlines v. Tanweer-ur-Rehman PLD 2010 SC 676 ref.

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

----S. 2(c) [since repealed]---Constitution of Pakistan, Arts. 199(5) & 199(1)(a)(ii)---Constitutional petition before High Court by an employee of a statutory body---Maintainability---Question was as to whether a statutory body was a "person" within the meaning of Art. 199 of the Constitution---"Function test"--- Scope--- Employees of Pakistan International Airlines, House Building Finance Corporation, N.E.D University of Engineering and Technology and Pakistan State Oil Company were proceeded against under the Removal from Service (Special Powers) Ordinance, 2000 and were awarded various penalties---Said employees filed constitutional petitions before the High Court against penalties awarded to them, which petitions were held to be maintainable on the ground that statutory bodies in question were "persons" within the meaning of Art. 199(5) of the Constitution---Legality---Keeping in view the statutes which established the statutory bodies in question and their functions, they were bodies performing functions, some of which were functions of the Federation/State and through the exercise of public power, said bodies created public employments---Said statutory bodies were therefore "persons" within the meaning of Art.199(1)(a)(ii) read with Art.199(5) of the Constitution---Actions or orders passed by statutory bodies in question which were violative of the statutes creating them or of the rules/regulations framed under such statutes, could be interfered with by the High Court under Art. 199 of the Constitution---Impugned judgment of High Court was not open to exception in circumstances---Appeal was dismissed by Supreme Court accordingly.

Sukh Dev Singh and others v. Beghatram Sardar Singh Raghwamshi and another AIR 1975 SC 1331; The Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275 and Ramana v. I.A. Authority of India AIR 1979 SC 1628 ref.

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

----Ss. 2(c), 10 & 12 [since repealed]---Constitution of Pakistan, Arts.199(5) & 199(1)(a)(ii), 4 & 10A---Constitutional petition before High Court by employees of a statutory body---Maintainability---Employees of Pakistan International Airlines, House Building Finance Corporation, N.E.D University of Engineering and Technology and Pakistan State Oil Company were proceeded against by their respective departments under the Removal from Service (Special Powers) Ordinance, 2000 and were awarded various penalties, against which they filed constitutional petition before the High Court---High Court held that constitutional petitions were maintainable on the ground that statutory bodies in question were "persons" within the meaning of Art.199(5) of the Constitution---Question was as to whether employees in question being "persons in corporation service" within the meaning of S.2(c) of Removal from Service (Special Powers) Ordinance, 2000 and having been deprived of their right to appeal under S.10 of the said Ordinance because of the judgment in the case of Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602), could invoke Art.199 of the Constitution against order of departmental authority---Although rules/regulations of statutory organizations in question might have been non-statutory but there was a statutory intervention in the shape of Removal from Service (Special Powers) Ordinance, 2000 and the employees had to be dealt with under the said law---Removal from Service (Special Powers) Ordinance, 2000 had an over-riding effect and after its promulgation (27th of May 2000), all disciplinary proceedings which had been initiated under the said Ordinance and any order passed or action taken in disregard to the said law was amenable to constitutional jurisdiction of the High Court under Art. 199 of the Constitution---Legislative intent in the promulgation of Removal from Service (Special Powers) Ordinance, 2000, inter alia, was that service matters for "persons in corporation service" should be dealt with in accordance with provisions of said law and to ensure a fair trial it was inter alia provided in the said Ordinance that unless specifically exempted by a reasoned order, the competent authority shall hold a regular enquiry against an employee accused of misconduct, and that he shall have a right of appeal (section 10 of the Ordinance)---Subsequently employees were deprived of their right of appeal as the same was held to be ultra vires of the Constitution by the Supreme Court in the cases of Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602), and Muhammad Idrees v. Agricultural Development Bank of Pakistan and others (PLD 2007 SC 681)--- Deprivation of such right of appeal would amount to judicial sanctification of all orders passed by departmental authorities awarding various penalties to employees and would also be violative of fundamental right to fair trial and due process as ordained in Art. 10A of the Constitution---Employees in question could invoke Art. 199 of the Constitution to seek due compliance of Removal from Service (Special Powers) Ordinance, 2000 in such circumstances---Impugned judgment of High Court was not open to exception---Appeal was dismissed accordingly.

Maloch v. Aberdeen Corporation (1971) 1 W.L.R. 1578; Viteralli v. Saton 359 US 535 Second Series 1012; Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations v. Bhagat Ram, Association of Clause II Officers, Shyam Lal, Industrial Finance Corporation AIR 1975 SC 1331; Lt. Col. Shujaddin Ahmad v. Oil and Gas Development Corporation 1971 SCMR 566; Raziuddin v. Chairman, Pakistan International Airlines Corporation PLD 1992 SC 531; Evacuee Trust Property Board v. Muhammad Nawaz 1983 SCMR 1275; Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194; Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; Nisar Ahmad v. The Director, Chiltan Ghee Mills 1987 SCMR 1836; National Bank of Pakistan v. Manzoorul Hasan 1989 SCMR 832; Sindh Road Transport Corporation through its Chairman v. Muhammad Ali G. Khokhar 1990 SCMR 1404; Karachi Development Authority and another v. Wali Ahmad Khan and others 1991 SCMR 2434; Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman 1995 SCMR 650; House Building Finance Corporation through Managing Director, Karachi and another v. Inayatullah Shaikh 1999 SCMR 311; Pakistan International Airlines Corporation (PIAC) v. Nasir Jamal Malik 2001 SCMR 934; Azizullah Memon v. Province of Sindh 2007 SCMR 229; Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046 and Civil Aviation Authority through Director-General v. Javed Ahmad 2009 SCMR 956 ref.

Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484; Pakistan International Airlines Corporation's case PLD 2010 SC 676 and Hyderabad Electric Supply Co. v. Mushtaq Ali Brohi 2010 PSC 1392 distinguished.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition before High Court by an employee of a statutory body---Maintainability---Service matter---Violation of service rules or regulations framed by statutory bodies under the powers derived from statutes in absence of any adequate or efficacious remedy could be enforced through constitutional jurisdiction---Where conditions of service of employees of a statutory body were not regulated by rules/regulations framed under the statute but only by rules or instructions issued for its internal use, any violation thereof could not normally be enforced through constitutional jurisdiction and they would be governed by principle of "Master and Servant".

(f) Constitution of Pakistan---

----Art. 199---Constitutional petition before High Court by an employee of a statutory body---Maintainability---Service matter---Disciplinary proceedings---Violation of principles of natural justice---Effect---Where action of a statutory authority in a service matter was in disregard of the procedural requirements and was violative of the principles of natural justice, same could be interfered with in constitutional jurisdiction---In all public employments created by statutory bodies and governed by statutory rules/regulations, unless such employments were purely contractual, the principles of natural justice could not be dispensed with in disciplinary proceedings.

Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232 and Judicial Review of Dismissal from Employment [Appeared in Public Law (1989) 131] ref.

(g) Judgment---

----Conflicting judicial opinions---Judgments having conflicting judicial opinions---Stare decisis, principle of---Applicability---Scope---Factors to be kept in view by the Supreme Court while attempting to resolve such a conflict.

In an attempt to resolve a conflict of judicial opinion, the Supreme Court must keep in mind, first, the purpose of law the court was called upon to interpret; second, the fact that law was a living organism which adapted to societal change and sometimes change in law preceded the former; third, the ambit of court's jurisdiction and its limitations as defined in the Constitution; fourth, that the court must be consistent i.e. in similar situations/cases, judicial opinion should be similar, and fifth, that though Supreme Court was not bound by the principle of stare decisis, but departure from the precedent should be well reasoned, proper and in accordance with the established principles of law.

(h) Appeal---

----Scope---Right of appeal was a substantive right.

(i) Appeal---

----Appeal was continuation of trial.

Khalid Javed, Advocate Supreme Court for Appellants (in Civil Appeal No.39 of 2010).

Shoaib Shaheen, Advocate Supreme Court for Respondent along with in person (in Civil Appeal No.39 of 2010).

Khalid Javed, Advocate Supreme Court, Sardar Muhammad Aslam, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Appellant (in Civil Appeal No.1150 of 2010).

Respondents in person (in Civil Appeal No.1150 of 2010).

Sanaullah Noor Ghouri, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellant (in Civil Appeal No.1162 of 2012).

Respondent No.1 in person (in Civil Appeal No.1162 of 2012).

Nadeem Azhar Siddiqui, Advocate Supreme Court and Khalid Javed, Advocate Supreme Court for Appellants (in Civil Appeal No.142-K of 2009).

Respondent in person (in Civil Appeal No.142-K of 2009).

M.A. Rehman Qureshi, Advocate Supreme Court for Appellants (in Civil Appeal No.177-K of 2010).

Nemo for Respondent (in Civil Appeal No.177-K of 2010).

M.G. Dastagir, Advocate Supreme Court for Appellants (in Civil Appeal No.178-K of 2010).

Nemo for Respondent (in Civil Appeal No.178-K of 2010).

Munib Ahmed Khan, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants (in Civil Appeal No.228-K of 2010).

Nemo for Respondent (in Civil Appeal No.228-K of 2010).

Nadeem Azhar Siddiqui, Advocate Supreme Court for Appellant (in Civil Appeal No.57-K of 2011).

Nemo for Respondents (in Civil Appeal No.57-K of 2011).

Munir Ahmed Khan, Advocate Supreme Court for Appellant (in Civil Appeal No.63-K of 2011).

Respondents in person (in Civil Appeal No.63-K of 2011).

Munib Ahmed Khan, Advocate Supreme Court for Appellant (in Civil Appeal No.65-K of 2011).

Nemo for Respondents (in Civil Appeal No.65-K of 2011).

Munib Ahmed Khan, Advocate Supreme Court for Appellant (in Civil Appeal No.66-K of 2011).

Respondent No.1 in person (in Civil Appeal No.66-K of 2011).

M.G. Dastagir, Advocate Supreme Court for Appellants (in Civil Appeal No.83-K of 2011).

Muhammad Aqil Awan, Senior Advocate Supreme Court for Respondents (in Civil Appeal No.83-K of 2011).

M.G. Dastagir, Advocate Supreme Court for Appellant (in Civil Appeal No.91-K of 2011).

Respondent No.1 in person (in Civil Appeal No.91-K of 2011).

Shaukat Ali Sh., Advocate Supreme Court for Appellant (in Civil Appeal No.135-K of 2011).

Syed Amjad Hussain, Advocate Supreme Court for Respondent (in Civil Appeal No.135-K of 2011).

Muhammad Ikram Siddiqui, Advocate Supreme Court for Appellant (in Civil Appeal No.136-K of 2011).

Nemo for Respondents (in Civil Appeal No.136-K of 2011).

Muhammad Ikram Siddiqui, Advocate Supreme Court for Appellant (in Civil Appeal No.137-K of 2011).

Syed Amjad Hussain, Advocate Supreme Court for Respondents (in Civil Appeal No.137-K of 2011).

Muhammad Humayun, Advocate Supreme Court for Appellants (in Civil Appeal No.188-K of 2011).

Muhammad Aqil Awan, Senior Advocate Supreme Court for Respondents (in Civil Appeal No.188-K of 2011).

Shaukat Ali Sh., Advocate Supreme Court for Appellant (in Civil Appeal No.232-K of 2011).

Nemo for Respondent (in Civil Appeal No.232-K of 2011).

Agha Faqeer Muhammad, Advocate Supreme Court for Appellant (in Civil Appeal No.75-K of 2012).

Respondent No.1 in person (in Civil Appeal No.75-K of 2012).

Sanaullah Noor Ghori, Advocate Supreme Court for Appellant (in Civil Appeal No.82-K of 2012).

Nemo for Respondent (in Civil Appeal No.82-K of 2012).

Date of hearing: 2nd May, 2013.

2013 S C M R 1749

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

DOSSANI TRAVELS PVT. LTD. and 4 others---Appellants/Petitioners

Versus

Messrs TRAVELS SHOP (PVT.) LTD. and others---Respondents

Civil Appeals Nos.800-L, 801-L and 802-L of 2013, Civil Petitions Nos.1148, 1348 of 2013 and C.M.As. Nos.278-L, 279L, 285-L, 289-L, 5328 to 5333, 5378, 5463, 5464 and 5477 of 2013, decided on 27th August, 2013.

(On appeal from the orders dated 24-6-2013 and 9-7-2013 passed by Lahore High Court, Lahore in Writ Petition No.7253 of 2013 and judgment dated 15-7-2013 passed by Islamabad High Court, Islamabad in W.P. No.2939 of 2013.)

(a) Constitution of Pakistan---

----Art. 199---Hajj Policy, 2013---Constitutional jurisdiction of High Court---Scope---Trichotomy of powers, principle of---Selection of Hajj Group Organisers (HGOs)---High Court under its constitutional jurisdiction ordered selection of Hajj Group Organisers (HGOs) through a bidding process---Legality---Order of High Court was violative of the principle of trichotomy of powers, which was one of the foundational principles of the Constitution---High Court in the exercise of its constitutional jurisdiction directed selection of Hajj Group Organizers through a bidding process and thereby substituted the criterion laid down in the Hajj Policy framed by the Ministry of Religious Affairs without hearing the Hajj Group Organizers/appellants and others who had already been allocated quota and had made arrangements for intending Hujjaj, which was not tenable in law---High Court could under Art.199 of the Constitution annul an order or a Policy framed by the Executive, if it was violative of the Constitution, law or was product of mala fides, however in the present case nothing had been placed before the court to indicate that the challenged Hajj Policy seriously suffered from any of the said infirmities---Supreme Court directed that Ministry of Religious Affairs shall continue to regulate the operation of Hajj i.e. enrollment, registration and allocation of quota every year in the light of a fair and transparent policy and the guidelines to be laid down by the Supreme Court in the detailed judgment---Appeals were allowed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Policy making domain of the Executive---Interference in such domain was not the function of the High Court while exercising jurisdiction under Art. 199 of the Constitution---High Court could under Article 199 of the Constitution annul an order or a Policy framed by the Executive, if it was violative of the Constitution, law or was product of mala fides.

Afzal A. Haider, Advocate Supreme Court for Appellants (in C.As. Nos.800-L to 802-L of 2013).

Muhammad Ikram Ch., Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos.1148 and 1348 of 2013).

Waseem Majid Malik, Advocate Supreme Court for Applicants (in C.M.A. No.278-L of 2013).

A.K. Dogar, Senior Advocate Supreme Court for Applicants (in C.M.A. No.279-L of 2013).

Saeed Ullah Khan, Advocate Supreme Court for Applicants (in C.M.A. No.285-L of 2013).

Azhar Siddiqui, Advocate Supreme Court for Applicants (in C.M.As. Nos.5328 to 5333 of 2013).

Mir Adam Khan, Advocate-on-Record and Nek Nawaz Khan Awan, Advocate Supreme Court for Applicants (in C.M.A. No.5378 of 2013).

Qari Abdur Rasheed, Advocate Supreme Court for Applicants (in C.M.As. Nos.5515 to 5520 of 2013).

Syed Arshad Hussain Shah, Advocate Supreme Court for FBR.

Naveed Ihsan, Departmental Representative for SECP.

Muhammad Bilal, Senior Advocate Supreme Court and Babar Bilal, Advocate Supreme Court for CCP.

Saqib Jamal, Manager Legal for NADRA.

Abdul Hayee Gillani, Additional Attorney-General, Dil Muhammad Alizai, DAG, Jahanzeb Wahla, Standing Counsel, Shahzad Ahmed, Joint Secretary, Ministry of Religious Affairs and Farid Khattak, Deputy Secretary, Ministry of Religious Affairs on Court's Call.

A.K. Dogar, Senior Advocate Supreme Court, Azhar Siddiqui, Advocate Supreme Court and Qari Abdur Rasheed, Advocate Supreme Court for Respondents.

Date of hearing: 27th August, 2013.

2013 S C M R 1752

[Supreme Court of Pakistan]

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

CONTEMPT PROCEEDINGS AGAINST CHIEF SECRETARY, SINDH AND OTHERS: In the matter of

Criminal Original Petition No.89 of 2011, C.M.As. Nos.309-K, 310-K of 2012, Criminal M.As. 42-K, 80-K, 87-K of 2012, 13-K of 2013, C.M.A. No. 2453 of 2013, Criminal M.A. 29-K of 2013, C.M.A. 131-K of 2013, Criminal M.As. 185-K of 2012, 225, 226, 227 of 2013, C.M.As. 244-K to 247-K, 257-K, 258-K of 2013, Criminal M.A. 263 of 2013, Criminal M.A. 282 in Constitutional Petition No.71 of 2011, C.M.As. 5547, 2560, 2561, 2565, 2112-2113, 2706-2707 of 2013 in Constitutional Petition No.71 of 2011, Constitutional Petitions Nos. 21, 23 and 24 of 2013, Civil Petition No.6-K of 2011, C.M.A. No.278-K of 2011, Civil Appeals Nos.98-K, 100-K of 2010, 12-K of 2012 along with Criminal M.As. 51-K to 53-K of 2012, C.M.A. 2014 of 2013, Civil Appeal No.131-K of 2010 along with 241-K of 2012 and Civil Appeals Nos.183-K to 185-K of 2011, Criminal M.A. 252 of 2013 in Criminal M.A. 98 of 2012 in Criminal M.A. 339 of 2012, H.R.C. No.12995-S of 2011 and H.R.C. No.2103-G of 2011, decided on 12th June, 2013.

(On appeal against the judgments in C.A.183-K of 2011, dated 17-2-2011, SST, Kcy. in S.A. 39 of 2008, C.A. 12-K of 2012, dated 14-4-2011, SHC, Kcy in Constitutional Petition D-932 of 2009, C.A. 98 of 2010, dated 23-2-2010, SST, Kcy. in S.A. No.1 of 2009, C.A. 100-K of 2010, dated 22-3-2010, SST, Kcy. in S.A. No.65 of 2009, C.A.131-K of 2010, dated 31-3-2010, SST, Kcy. in S.A. No.94 of 2009 and C.P.6-K of 2011, dated 29-10-2010, SST, Kcy. in S.A. No.66 of 2009.)

Per Amir Hani Muslim, J.

(a) West Pakistan Civil Service (Executive Branch) Rules, 1964---

----S. 5(4)(b)---Constitution of Pakistan, Art. 184(3)---Appointment by transfer to the post of Assistant Commissioner (BS-17) in Ex-PCS Cadre by way of nomination by the Chief Minister after exhausting his prescribed quota---Validity---Impugned appointment would affect seniority of incumbents, who would pass PCS examination on merits and be appointed as Assistant Commissioner---Supreme Court declared impugned nomination to be without lawful authority while reverting nominated officers to their original positions and directed Sindh Government to formulate mechanism for such appointments in future---Officers inducted by Chief Minister in excess of his prescribed quota would relegate to their original positions---Principles.

(b) Constitution of Pakistan---

----Arts. 4, 9, 18, 25 & 184(3)---Constitutional petition challenging laws relating to civil service to be violative of fundamental rights guaranteed under the Constitution---Maintainability---Supreme Court either on its own or on petition by a party could examine vires of such laws---Question raised in the petition being of public importance relating to rights of civil servants, petition was maintainable---Principles.

Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292 and Tariq Aziz-ud-Din's case 2010 SCMR 1301 rel.

(c) Sindh Civil Servants (Regularization of Absorption) Ordinance (III of 2011)---

----S. 9-A---Sindh Civil Servants (Regularization of Absorption) Act (XVII of 2011), S.3---Sindh Civil Servants (Amendment) Ordinance (VI of 2012), Preamble---Sindh Civil Servants (Second Amendment) Ordinance (VII of 2012), Preamble---Sindh Civil Servants (Amendment) Act (I of 2013), Preamble---Sindh Civil Servants (Second Amendment) Act (XXIV of 2013), Preamble---Sindh Civil Servants Act (XIV of 1973), Ss. 9 & 9-A---Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974, Rr. 9 & 9-A---Constitution of Pakistan, Arts. 4, 9, 25, 184(3), 240(b) & 242---Constitutional petition challenging the vires of statutes---Absorption of employees of other organizations to any Cadre in Sindh Government as civil servants with backdated seniority by Chief Minister under Sindh Civil Servants (Regularization of Absorption) Ordinance, 2011 and Sindh Civil Servants (Regularization of Absorption) Act, 2011---Validity---Term "absorption" was not defined in Sindh Civil Servants Act, 1973, rather same being an appointment by transfer could be made under R. 9-A of Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974 subject to possessing matching qualifications, experience and expertise prescribed for such post under R. 3(2) thereof---Impugned absorption in absence of mechanism therefor under newly added S.9-A of Sindh Civil Servants Act, 1973 was violative of the Constitution---Conferring status of civil servant on a person without competing through recruitment process by virtue of impugned legislation would deprive other civil servants of their fundamental rights of "status" and "reputation" guaranteed under the Constitution---Civil servant appointed on merits after qualifying competitive examination and fulfilling codal formalities would lose his right to be considered for promotion, if an employee from other organization was absorbed, granted backdated seniority and conferred status of a civil servant under impugned legislation without undertaking competitive process---Impugned legislations were discriminatory---Provincial Assembly could promulgate law relating to service matters pursuant to parameters defined under Arts. 240 & 242 of the Constitution read with Sindh Civil Servants Act, 1973, but could not enlarge definition of "civil servant" by appointing a non-civil servant in such manner and introduce any validation Act in nature of multiple or parallel legislation on subject of service law---Impugned legislations were amendatory and were not new laws, but were continuation of old/original statute, which requirements had to be met---Impugned legislation for being violative of Recruitment Rules would encourage nepotism, corruption and bad governance---Impugned legislations did not meet standards of jurisprudence mandating safeguards provided to civil servant under Constitution---Benefits extended to different employees or civil servants through impugned legislations would not attract principle of locus poenitentiae---Supreme Court declared impugned legislations and benefits extended thereunder by Government for being violative of the Constitution---Principles.

Messrs Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Haji Ghulam Rasul v. Government of the Punjab 2003 SCMR 1815; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; The Province of Punjab v. National Industrial Co-operative Credit Corporation 2000 SCMR 567; Raj Narain v. Smt. Indira Nehru Gandhi AIR 1975 SC 2299; Capt. (R) Abdul Qayyum v. Muhammad Iqbal Engineer PLD 1992 SC 184; Muhammad Nadeem Arif v. Inspector-General of Police, Punjab Lahore 2010 PLC (C.S.) 924; Province of Sindh through Chief Secretary v. Prosecutor-General Sindh 2012 SCMR 307; Syed Zulfiqar Mehadi v. P.I.A. 1998 SCMR 793; Mazhar Ali v. Federation of Pakistan 1992 SCMR 435; Province of Punjab v. Ibrar Younis 2003 PLC (C.S.) 1357; Hussain Badshah v. Akhter Zaman 2007 CLC 157; Chairman Minimum Wages Board v. Fayyaz Hussain 1999 SCMR 104; Ghulam Rasool v. Secretary, Government of Pakistan Ministry of Defence and others 2011 SCMR 994; Islamic Republic of Pakistan v. Israr-ul-Haq PLD 1982 SC 531; Muhammad Arshad Sultan v. Prime Minister of Pakistan PLD 1996 SC 771; Muhammad Ramzan v. Government of Pakistan 1999 PLC (C.S.) 1149; Lal Khan v. Employees Old Age Benefits Institution 2010 PLC (C.S.) 1377; Safdar Ali Sahito v. Province of Sindh 2011 PLC (C.S.) 972; Iqbal Ahmed v. Province of Sindh 1996 PLC (C.S.) 955; Deedar Hussain Jakhrani v. Federation of Pakistan 2011 PLC (C.S.) 203; Dr. Anwar Ali Sahito v. Federation of Pakistan PLD 2002 SC 101; M.D. Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas 2003 PLC (C.S.) 796; Nazir Ahmed Panwar v. Government of Sindh 2005 SCMR 1814; Government of Punjab v. Mrs. Kishwer Alam PLD 1997 SC 578; Pir Sabir Shah v. Shah Muhammad Khan PLD 1995 SC 66; Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Mehr Zulfiqar Ali Babu v. Government of the Punjab PLD 1997 SC 11; C. Munni Appa Nido v. State of Karnataka 1976 (4) SCC 543 (797); Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Munir Hussain Bhatti Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407; Qazi Hussain Ahmed, Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf Chief Executive and others PLD 2002 SC 853; Mst. Attiyya Bibi Khan and others v. Federation of Pakistan and others 2001 SCMR 1161; Dr. M. Aslam Khaki v. Syed Muhammad Hashim and 2 others PLD 2000 SC 225; Pakistan Tobacco Company Ltd. and others v. Government of N.-W.F.P. through Secretary Law and others PLD 2002 SC 460; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others 1997 PTD 1555; Al-Jehad Trust v. Federation of Pakistan and others PLD 1996 SC 324; Pakistan Industrial Development Corporation v. Pakistan 1992 SCMR 891; Pakistan Tobacco Company Ltd. and another v. Federation of Pakistan and others 1999 SCMR 382; Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388; Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others PLD 1998 SC 1263; Mushtaq Ahmed Mohal and others v. The Honourable Lahore High Court Lahore and others 1997 SCMR 1043; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Accountant-General Sindh and others v. Ahmed Ali U. Qureshi and others PLD 2008 SC 522; Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32; Mahmood Khan Achakzai and others v. Federation of Pakistan and others PLD 1997 SC 426; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Independent Newspaper Corporation v. Chairman Fourth Wage Board 1993 SCMR 1533; Executive District Officer (Revenue) v. Ijaz Hussain 2012 PLC (C.S.) 917; Lila Dhar v. State of Rajasthan and others AIR 1981 SC 1777; The Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1956 FC 200; Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623; The State v. Zia-ur-Rehman and others PLD 1973 SC 49 and Mamukanjan Cotton Factory v. The Punjab Province and others PLD 1975 SC 50 ref.

Tariq Aziz-ud-Din's case 2010 SCMR 1301; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Baz Muhammad Kakar and others v. Federation of Pakistan and others PLD 2012 SC 870; Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924 and The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.

(d) Constitution of Pakistan---

----Art. 9---Term "life" as used in Art. 9 of the Constitution---Scope---Such term would include "reputation", "status" and all other ancillary privileges conferred on a citizen by law---Principles.

Article 9 of the Constitution provides protection to every citizen of life and liberty. The term "life and liberty" used in this Article is very significant as it covers all facets of human existence. The term "life" has not been defined in the Constitution, but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The term "life" includes "reputation", "status" and all other ancillary privileges, which the law confers on the citizen.

(e) Words and phrases---

----"Deputation"---Meanings stated.

ESTACODE 2009 Edition Chapter-III at page 385, Part-II at Page 426 ref.

(f) Sindh Civil Servants Act (XIV of 1973)---

----Ss. 2(1)(b)(i) & 10---Appointment by way of deputation and transfer---Scope---Non-civil servant could not be appointed on deputation to any cadre of Government---Principles.

The procedure provided under the ESTACODE requires that a person, who is transferred and appointed on deputation must be a Government servant, and such transfer should be made through the process of selection. The borrowing Government has to establish the exigency in the first place and then the person who is being transferred/placed on deputation in Government must have matching qualifications, expertise in the field with required experience. In absence of these conditions, the Government cannot appoint anyone by transfer on deputation.

No non-civil servant can be transferred and appointed in the Government by way of deputation to any cadre.

Muhammad Arshad Sultan and another v. Prime Minister of Pakistan, Islamabad and others PLD 1996 SC 771 and Lal Khan v. Employee Old Age Benefit Institution 2010 PLC (C.S.) 1377 ref.

(g) Sindh Civil Servants Act (XIV of 1973)---

----Ss. 2(1)(b), 14 & 10---Sindh Civil Servants (Amendment) Ordinance (VI of 2012), Preamble---Sindh Civil Servants (Second Amendment) Ordinance (VII of 2012), Preamble---Sindh Civil Servants (Amendment) Act (I of 2013), Preamble---Sindh Civil Servants (Second Amendment) Act (XXIV of 2013), Preamble---Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974, Rr. 9 & 9-A---Constitution of Pakistan, Arts. 4, 8, 9, 25, 184(3), 240 & 242---Constitutional petition---Challenging the vires of statutes---Powers of Chief Minister to re-employ retired civil servants under S.14 of Sindh Civil Servants Act, 1973 as amended by Sindh Civil Servants (Amendment) Ordinance, 2012, Sindh Civil Servants (Second Amendment) Ordinance, 2012, Sindh Civil Servants (Amendment) Act, 2013 and Sindh Civil Servants (Second Amendment) Act, 2013---Transfer of non-civil servants and non-cadre-civil servants to cadre posts in Sindh Government by way of deputation and their absorption against cadre posts with backdated seniority by Chief Minister pursuant to Sindh Civil Servants Act, 1973 as amended by Sindh Civil Servants (Second Amendment) Ordinance, 2012, Sindh Civil Servants (Amendment) Act, 2013 and Sindh Civil Servants (Second Amendment) Act, 2013---Validity---Such deputationists, despite not having matching qualifications to cadre in which they were transferred and liable to be repartriated, had been absorbed against cadre posts against language of S. 10 of Sindh Civil Servants Act, 1973 on basis of impugned legislations---Neither a non-civil servant nor a civil servant from non-cadre post could be transferred to a cadre post in Government by way of deputation as same would affect rights of civil servants serving in Government and create sense of insecurity in them---Impugned legislations meant for specific class of persons was violative of Art. 25 of the Constitution and were violative of Arts. 143 & 240 of the Constitution and would encourage nepotism and discourage transparent process of appointment of civil servants in prescribed manner--- Provincial Assembly could not change structure of service laws in conflict with provisions of Art. 240(b) or Art. 242(1B) of the Constitution---Benefits extended to different employees or civil servants through impugned legislations would not attract principle of locus poenitentiae---Supreme Court struck down impugned legislations---Principles.

Muhammad Mubeen-us-Salam's case PLD 2006 SC 602; Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924 and The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.

(h) Constitution of Pakistan---

----Preamble---Powers under the Constitution, exercise of---Scope---Such powers not a prerogative, but a sacred trust reposed in authorities by Allah and the Constitution---Principles.

The concept of power under the Constitution of Pakistan is distinct from other Constitutions of Common Law Countries. Under the Constitution of Pakistan, the sovereignty vests in Allah and it is to be exercised by "the people within the limits prescribed by Him", as a sacred trust. The authorities in Pakistan while exercising powers must keep in mind that it is not their prerogative, but a trust reposed in them by Allah and the Constitution.

(i) Sindh Civil Servants Act (XIV of 1973)---

----S. 14(3) [as inserted by Sindh Civil Servants Act (Second Amendment) Ordinance (VII of 2012) and Sindh Civil Servants (Second Amendment) Act (XXIV of 2013)]---Constitution of Pakistan, Arts.184(3), 4, 9 & 25---Constitutional petition assailing re-employment of retired civil servants by Government on contract basis by virtue of amendments made in S. 14 of Sindh Civil Servants Act, 1973---Validity---Locus poenitentiae, principle of---Applicability---Re-employment could be made in public interest, but in exceptional and compelling circumstances under unamended S. 14 of Sindh Civil Servants Act, 1973---Power of Government to re-employ retired civil servants would adversely affect terms and conditions of serving civil servants by blocking their promotion to next higher cadre after gaining expertise by passage of time---Retired employee after re-employment would be governed by terms of contract---Amendments made through Amending enactments in the Sindh Civil Servants Act, 1973 had been made to defeat judicial pronouncement regarding induction of retired officer on contract basis---Such re-employment was violative of Arts. 4, 9 & 25 of the Constitution and Sindh Civil Servants Act, 1973 and Rules made thereunder---Benefits extended to different employees or civil servants through impugned (Amending) legislations would not attract principle of locus poenitentiae---Supreme Court declared impugned legislations to be violative of the Constitution---Principles.

Human Rights Cases No.57701-P of 2010 PLD 2011 SC 205; Mrs. Farkhanda Talat v. Federation of Pakistan and others 2007 SCMR 886; Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924 and The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.

(j) Sindh Civil Servants Act (XIV of 1973)---

----Ss. 9-A [as inserted by Sindh Civil Servants (Amendment) Ordinance (IV of 2002) and amended by Sindh Civil Servants (Amendment) Ordinance (V of 2012), Sindh Civil Servants (Second Amendment) Ordinance (VII of 2012) and Sindh Civil Servants (Amendment) Act (I of 2013)], Ss. 23-A & 23-B [as inserted by Sindh Civil Servants (Amendment) Ordinance (IV of 2002)]---Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974, R.8-B---Constitution of Pakistan, Art. 184---Constitutional petition assailing the grant of out-of-turn promotion to civil servants with backdated seniority---Validity---Locus poenitentiae, pronciple of---Applicability---Government through impugned (Amending) legislations had extended benefit of S. 9-A of Sindh Civil Servants Act, 1973 to all civil servants by giving unbridled discretionary powers to authorities to protect culture of favouritism and nepotism, which prevailed earlier in Sindh Police---Impugned legislations had bypassed stipulation of R. 8-B of Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974---Grant of out-of-turn promotion were class specific, prejudicial to public interest and not based on intelligible differentia, rather having destroyed service structure, affected inter-se seniority between officers serving on cadre posts after acquiring jobs through competitive process---Impugned (Amending) legislations were violative of Arts. 143 & 240 of the Constitution and would encourage nepotism and discourage transparent process of appointment of civil servants in prescribed manner---Conflicting laws both Provincial and Federal would result in administrative chaos---Such unstructured discretion vested in Chief Minister would infringe valuable rights of meritorious civil servants of legitimate expectancy of attaining climax of career---Sindh Civil Servants (Amendment) Act, 2013 had been passed without debate some hours before completion of term of Government---Government under R. 8-B of such Civil Servants (Appointment, Transfer and Promotion) Rules, 1974 could constitute Committee to evaluate performance of Police Officer for conferring award or reward for his act of gallantry, but out-of-turn promotion would not boost his morale---Supreme Court emphasized on Sindh Government to depoliticize police force---Legislature by using word "gallantory" in S. 9-A of Sindh Civil Servants Act, 1973 had never intended to grant out-of-turn promotion to civil servants other than police force---Impugned legislations being amendatory and were not laws, but were continuation of old/original Statute, which requirements had to be met---Benefits extended to different employees or civil servants through impugned legislations would not attract principle of locus poenitentiae---Impugned legislations did not meet standards of jurisprudence---Supreme Court declared the impugned legislations and benefit extended thereunder to be violative of the Constitution---Principles.

Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Sabir Shah's case PLD 1995 SC 66; Federation of Pakistan v. M. Nawaz Khokhar PLD 2000 SC 26; Air League P.I.A.C. Employees v. Federation of Pakistan 2011 SCMR 1524; Capt. (Retd.) Abdul Qayyum Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184; Muhammad Nadeem Arif and others v. Inspector-General of Police Punjab, Lahore and others 2010 PLC (C.S.) 924; Ghulam Shabbir v. Muhammad Munir Abbasi and others 2011 PLC (C.S.) 763; Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299; Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others 2005 SC 605 and "The Construction of Statutes" by Earl T. Crawford rel.

(k) Judgment---

----Nullification of effect of a judgment of court through legislation---Scope.

In order to nullify the judgment of the Court, unless basis for judgment in favour of a party is not removed, it could not affect the rights of a party in whose favour the same was passed.

As a general rule, the legislature cannot destroy, annul, set aside, vacate, reverse, modify or impair a final judgment of a court of competent jurisdiction nor can fundamental rights guaranteed under the Constitution be abridged by the legislature. The legislature is not only prohibited from re-opening cases previously decided by the courts, but is also forbidden to affect the inherent attributes of a judgment through a piece of legislation.

Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299 and Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others PLD 2005 SC 605 ref.

(l) Locus poenitentiae, principle of---

----Applicability---Scope.

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

Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2010 PLC (C.S.) 924 and The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.

Per Asif Saeed Khan Khosa, J

(m) Interpretation of statutes---

----Mala fide cannot be attributed to the legislature, but if a legislature deliberately and repeatedly embarks upon a venture to nullify considered judicial verdict in an unlawful manner, trample the constitutional mandate and violate the law, then it is difficult to attribute bona fide to it either.

Abdul Fateh Malik, A.-G. (Sindh), M. Sarwar Khan, Additional A.-G. (Sindh), Adnan Karim, Additional A.-G. (Sindh), Irfan A. Memon, Advocate, Naseer Jamali, Secy. (Services), Sindh, Sohail Qureshi, Additional Secy. (Services), Sindh, Syed Asif Haider Shah, Secy. (Services), Sindh, Mudasir Iqbal, Sp. Secy. (Home), Sindh and Ali Sher Jakhrani, A.I.-G. Legal in Attendance (in all cases).

Ch. Afrasiab Khan, Senior Advocate Supreme Court for Petitioner (in Constitutional Petitions 71 of 2011 and 21 of 2013).

Ch. Afrasiab Khan, Senior Advocate Supreme Court for Appellant (in C.A. 12-K of 2012).

M.S. Khattak, Advocate-on-Record for Petitioner (in Constitutional Petition 21 of 2013).

M.S. Khattak, Advocate-on-Record for Respondents Nos.10 and 12 (in Constitutional Petition No.71 of 2011).

M.S. Khattak, Advocate-on-Record for Respondents Nos.10 and 11 (in C.A. 12-K of 2012).

Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in Constitutional Petition 71 of 2011).

Ch. Akhtar Ali, Advocate-on-Record for Appellant (in C.A. 12-K of 2012).

Dr. Farough Naseem, Advocate Supreme Court for Respondent No.3 (in Constitutional Petition 71 of 2011 for interveners in H.R.C.12995-S of 2011).

Mehmood A. Sheikh, Advocate-on-Record for Respondents Nos.3 and 6 (in Constitutional Petition 71 of 2011).

Abrar Hassan, Advocate Supreme Court for Respondent No.5 (in Constitutional Petition 71 of 2011).

Abrar Hassan, Advocate Supreme Court for Respondents Nos.4 and 6 (in C.A. 12-K of 2012).

Anwar Mansoor Khan, Senior Advocate Supreme Court for Sheraz Asghar (in C.A. 12-K of 2012).

Anwar Mansoor Khan, Senior Advocate Supreme Court for Applicant (in Criminal Miscellaneous Application 52-K of 2012).

Mian Gul Hassan Aurangzeb, Advocate Supreme Court for Respondent No.6 (in Constitutional Petition 71 of 2011).

Abbad-ul-Hasnain, Advocate Supreme Court for Respondent No.8 (in Constitutional Petition 71 of 2011).

Abbad-ul-Hasnain, Advocate Supreme Court for Respondent No.9 (in C.A. 12-K of 2012).

Shabbir Ahmed Awan, Advocate Supreme Court for Petitioner (in C.P. 6-K of 2011).

Shabbir Ahmed Awan, Advocate Supreme Court for Respondent No.9 (in Constitutional Petition 71 of 2011).

Shabbir Ahmed Awan, Advocate Supreme Court for Respondent No.2 (in C.As. 183 to 185-K of 2011).

Shabbir Ahmed Awan, Advocate Supreme Court for Applicant (in C.M.A. 80-K of 2012, Criminal M.A. 263 of 2013).

Hashmat Ali Habib, Advocate Supreme Court for Respondents Nos. 10 and 12 (in Constitutional Petition 71 of 2011).

Hashmat Ali Habib, Advocate Supreme Court for Respondents Nos.10 and 11 (in C.A. 12-K of 2012).

M. M. Aqil Awan, Senior Advocate Supreme Court for Respondents Nos.11 and 14 (in Constitutional Petition 71 of 2011).

M. M. Aqil Awan, Senior Advocate of Supreme Court for Appellant (in C.As. 183-K to 185-K of 2011).

M. M. Aqil Awan, Senior Advocate of Supreme Court for Respondent (in C.A. 100-K of 2010).

M. M. Aqil Awan, Senior Advocate Supreme Court for Lal Khan (in C.A. 12-K of 2012).

Muharram G. Baloch, Advocate Supreme Court for Applicants (in C.M.As.241-K of 2012, 185-K and 248-K of 2013).

Raja Muhammad Asghar, Advocate Supreme Court for Respondent No.3 (in C.A. 12-K of 2012).

Khalid Javed, Advocate Supreme Court for Respondent No.12 (in C.A. 12-K of 2012).

Khalid Javed, Advocate Supreme Court for Shahid Hussain and Zamir Ahmed (in C.A. 12-K of 2012).

Khalid Javed, Advocate Supreme Court for Applicant (in Crl. M.A. 51-K of 2012).

Khalid Javed, Advocate Supreme Court for Dr. Sarwat (in C.M.A. 309-K of 2012).

Yawar Farooqui, Advocate Supreme Court for Applicant (in C.M.A. 80-K of 2012).

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for Applicant (in C.M.A.87-K of 2012).

Syed Mehmood Akhtar Naqvi in person (in Constitutional Petition 24 of 2013).

Dr. Azeem-ur-Rehman Meo in person (in Petition No.10 in Constitution Petition 23 of 2013).

Dr. Azeem-ur-Rehman Meo for Appellant (in C.A. 184-K of 2011).

Dr. Azeem-ur-Rehman Meo for Applicant (in C.M.A. 244-K of 2013).

Syed Mehboob Ali Shah (in person) (in C.M.A. 131-K of 2013).

Sarwar Khan, Inspector (in person) (in C.M.A. 245-K of 2013).

Bahar-ud-Din Babar, Inspector (in person) (in C.M.A. 247-K of 2013).

Khaleeq Ahmed, Advocate of Supreme Court.

Rasool Bux Samejo, Inspector.

Pervez Ahmed Sehar in person.

Syed Attaullah Shah, Additional Dy. Commissioner.

Ghulam Shabbir Jiskani, Hyderabad.

Dates of hearing: 16th to 19th, 29th, 30th April, 7th, 8th and 9th May, 2013.

2013 S C M R 1872

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Muhammad Ather Saeed and Iqbal Hameedur Rahman, JJ

ASGHAR ABBAS GARDEZI---Petitioner

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN and others---Respondents

Civil Petition No.1757 of 2012, decided on 4th July, 2013.

(On appeal against the judgment dated 11-9-2012 of the Lahore High Court, Lahore passed in Intra Court Appeal No.290 of 2012.)

Securities and Exchange Commission of Pakistan Act (XLII of 1997)---

----S. 20(4)(j)---Listed Companies (Substantial Acquisition of Voting Shares and Takeovers) Ordinance (CIII of 2002), Ss. 29-B & 6---Constitution of Pakistan, Art. 199---Matter concerning substantial acquisition of shares---Constitutional jurisdiction of High Court to remand such matter to the Securities and Exchange Commission of Pakistan for its decision in accordance with law without deciding it itself---Scope---Consortium of different companies held 61.87% shares of a Bank---One of the companies from the consortium intended to acquire shares of another company belonging to the same consortium---Petitioner, who held 0.001% shares in the Bank wrote a letter to the Securities and Exchange Commission of Pakistan ("the Commission") seeking clarification as to whether the intended acquisition of shares in question attracted provisions of S. 6 of Listed Companies (Substantial Acquisition of Voting Shares and Takeovers) Ordinance, 2002---Commission replied vide its letter stating that said provision was not attracted to the acquisition of shares in question---Petitioner, aggrieved of Commission's reply, challenged the same before the High Court by way of a constitutional petition---Single Judge of the High Court set aside the reply-letter of the Commission, and directed that shares in question shall not be transacted or transferred pending fresh decision, and remanded the matter back to the Commission for decision by the competent authority on the objections raised by the petitioner---Intra-Court appeal filed by petitioner against order of Single Judge of the High Court was disposed of by the Division Bench upholding the order of remand to the Commission and it was held that the Commission was the primary regulatory body for the matter in question in view of Securities and Exchange Commission of Pakistan Act, 1997 and Listed Companies (Substantial Acquisition of Voting Shares and Takeovers) Ordinance, 2002---Plea of petitioner was that present matter had to be decided by the High Court itself and it could not be remanded to the Commission---Plea on behalf of consortium of companies was that High Court had rightly remanded the matter to the Commission as it was the regulatory authority for substantial acquisition of shares---Validity---Single Judge of the High Court had rightly set aside the impugned reply-letter of the Commission, therefore letter of petitioner seeking clarification was pending before the Commission, and High Court rightly remanded the matter to the Commission to dispose it of in accordance with law---Such direction of remand from the High Court did not fall in the category of cases which could not be remanded to the lower fora---Petitioner sought relief directly under Art. 199 of the Constitution and the High Court had inherent jurisdiction to dispose of writ petitions in any manner it deemed lawful---Division Bench of the High Court had very ably dealt with the questions before it and conclusions reached by it were unexceptionable---Petition for leave to appeal was dismissed accordingly and leave was refused.

Imtiaz Rashid Siddiqui, Advocate Supreme Court and Syed Hasnain Ibrahim Kazi, Advocate Supreme Court for Petitioner.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Sikandar Bashir, Advocate Supreme Court for Respondents Nos.5 to 7.

Babar Bilal, Advocate Supreme Court for Respondent No.3.

Syed Ali Zafar, Advocate Supreme Court for Respondent No.4.

Date of hearing: 4th July, 2013.

2013 S C M R 1880

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja, Khilji Arif Hussain and Ejaz Afzal Khan, JJ

HAMID MIR and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.M.As. Nos.3330, 3471, 3594 of 2013 in Constitutional Petition No.105 of 2012, heard on 8th July, 2013.

(a) Constitution of Pakistan---

----Arts. 19, 19A, 169, 170, 171 & 184(3)---General Financial Rules of the Federal Government, R. 37(5)---Auditor General's (Functions, Powers and Terms and Conditions of Service) Ordinance (XXIII of 2001), Ss. 8 & 12---Constitutional petition under Art.184(3) of the Constitution concerning accountability of the media---Use of public funds by the government for the purpose of influencing the media---Secret Service Funds purportedly used by governments to buy the loyalty of journalists and other opinion-makers---Audit of Secret Service Funds---Scope---Accountability of an elected government under the constitutional dispensation, was the bedrock of democratic governance---Most important aspect of accountability of the elected, executive both at the federal and provincial levels was the assurance that the finances of the government were properly utilized in accordance with and in furtherance of the objectives set out in the Constitution and in statutes enacted by Parliament (Majlis-e-Shoora) and the provincial legislatures---All funds in the State exchequer were funds which had come out of the pockets of the people---Government was at most a trustee and custodian of such funds and was accountable for their expenditure in a fiduciary capacity as envisioned in the Constitution---Where the government or the legislature choose to regulate or impose restrictions upon disclosure of use of funds, such restrictions could not be arbitrary but had to be reasonable---Question as to what was or what was not reasonable was a matter of which the government was not the sole arbiter as it was constrained by the Constitution and by law---Any restriction on disclosure of expenses made from the exchequer, which the government imposed, or the legislature provided for, would be justiciable on the touchstone of Arts.19 & 19A of the Constitution and inter alia, of Arts.168 to 171 which related to audit of the accounts of the Federation and the Provinces "and the accounts of any authority or body established by or under the control of the Federal or Provincial government..."---All disbursements made from the Public Accounts or from the Consolidated Fund whether as a charge on the fund or by way of grants there from, were mandatorily required to be audited by the Auditor General of Pakistan---Under Arts.169 & 170 of the Constitution, Auditor General was not only authorized but also obliged to seek access to any and all records actually maintained by Federal and Provincial governments, as well as all entities established by or under the control of the Federal and Provincial government, regardless of the designation of such records as secret or otherwise---Demands of secrecy in respect of some grants and allocations could be met inter alia, through mechanisms and procedures ensuring secrecy but without any exception or exemption from audit by the Auditor General of Pakistan---Using the legal cover purportedly provided by R. 37 of General Financial Rules, "Secret Service Funds" were created in the budgets of various ministries, purporting to shield the spending from the scrutiny of the Auditor-General---Alleged secret funds and un-audited expenses could potentially be a tool for undermining the rights of citizens protected under Arts. 19 & 19A of the Constitution and might also encourage waste and corruption---Without a lawful justification, there could not be a denial of disclosure or withholding of accounts from the Auditor General for audit---Government's only argument in favour of an exemption for secret service expenditure from audit was based on R.37(5) of the General Financial Rules---Rule 37(5) of General Financial Rules, whereby the actual accounts for secret service expenditure were taken beyond the jurisdiction of the Auditor General, was illegal, unconstitutional, and of no legal effect---Prima facie, said rule was in violation of not just the Auditor General's (Functions, Powers and Terms and Conditions of Service) Ordinance, 2001 but also of Art.170(2) of the Constitution---Any account subject to audit under Arts. 169 & 170 of the Constitution should be treated as "secret" only if so labelled in a Federal or Provincial statute and the constitutionality of such legislation would be subject to judicial review on the touchstone of Arts. 19A, 169, 171 and other relevant provisions of the Constitution---Supreme Court directed that the Auditor General shall prescribe procedures within 4 months that permitted audit of accounts labelled as "secret" but did not compromise the secrecy of such accounts; that Auditor General shall have access to the "contingent register", the "cash book" and any other record maintained under sub-rules (1) to (3) of R.37 of the General Financial Rules; that it shall be violative of the Constitution to rely on sub-rule (4) to prevent the Auditor General's access to accounts maintained under sub-Rules (1) to (3) of R.37 of General Financial Rules, however the Government shall remain free to use such internal controls as it deemed appropriate, including the administrative audit prescribed under sub-rule (4) in addition to audit by the Auditor General; that the Auditor-General had the power to prescribe accounting practices which were different from the ones already prescribed under sub-rules (1) to (3) of R.37 of General Financial Rules; that it would be for the Auditor General to ensure the audit of each rupee spent from the Consolidated Fund and the Public Accounts, without exception and that Parliament might make a law imposing "reasonable restrictions" on public disclosure of such parts of the Auditor General's Report as might be classified, however such law would need to pass muster under the Constitution.

(b) Constitution of Pakistan---

----Arts. 19A & 184(3)--- Constitutional petition under Art.184(3) of the Constitution---Maintainability---"Question of public importance"---Scope---Information relating to money spent from the public exchequer was a matter of public importance.

(c) Constitution of Pakistan---

----Art. 171---Reports of Auditor General relating to accounts of the Federation and Provinces---Necessary secrecy of certain audit information--- Public disclosure of audit information---Scope---Article 171 of the Constitution left no room for doubt that reports of the Auditor General shall have to be submitted in all events to the President, or the Governor of a Province, as the case might be to be placed before the chosen representatives of the people elected to the Federal and Provincial legislatures---Since the President and Provincial Governors were heads of the Federal and Provincial executives, it was only appropriate that they should have complete knowledge of the audit of secret services under their charge, moreover, there was little reason to doubt the ability of such highly placed and responsible offices to retain state secrets.

(d) Constitution of Pakistan---

Kh. Haris Ahmed, Senior Advocate Supreme Court as Amicus Curiae.

Munir A. Malik, AGP, Tariq Mehmood Khokhar, Additional AGP, Dil Muhammad Khan Alizai, DAG, Sajid Ilyas Bhatti, DAG, Tahir Mehmood, AGPR, Dr. Asif ur Rehman, Director-General Federal Audit, Zulfiqar Ahmed, Director Federal Audit, Abdul Rehman Qureshi, Advisor, SECP, Muzaffar A. Mirza, Director, SECP and Tariq Hassan, Senior Advocate Supreme Court on Court's Notice.

Tahir Hassan, Director for M/o Information.

Mehmood A. Sheikh, Advocate-on-Record for APNA TV.

Rai Sikandar, former Secretary for M/o Water and Power.

Date of hearing: 8th July, 2013.

2013 S C M R 1903

[Supreme Court of Pakistan]

Present: Tasadduq Hussain Jillani and Muhammad Ather Saeed, JJ

Messrs NAEEM TRADERS and others---Petitioners

Versus

COLLECTOR OF CUSTOMS and others---Respondents

Civil Petitions Nos.410-L and 434-L of 2010, decided on 14th June, 2013.

(On appeal from the judgment dated 24-12-2009 passed by the Lahore High Court, Lahore in Custom References Nos. 30 and 35 of 2009.)

Customs Act (IV of 1969)---

----Ss. 196, 194C, 3A & 4---Constitution of Pakistan, Arts. 199 & 185(3)--- Tax reference before High Court converted into writ petition and remanded for decision afresh---Legality---Supreme Court granted leave to appeal to consider whether in converting tax reference into writ petition and remanding the case for decision afresh the High Court had misconstrued the provisions of Ss. 194C, 3A & 4 of Customs Act, 1969; whether impugned judgment of the High Court had the effect of making said provisions of law redundant, and whether in absence of any question of law having been raised in the reference, could the same be entertained and converted into a writ petition.

Mian Abdul Ghaffar, Advocate Supreme Court for Petitioners.

Sh. Izhar ul Haq, Advocate Supreme Court for Respondents.

Date of hearing: 14th June, 2013.

2013 S C M R 1904

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Amir Hani Muslim, JJ

MUHAMMAD ASLAM, EX-DEPUTY DIRECTOR (AUDIT) DISTRICT GOVT. LAHORE REGION, LAHORE---Appellant

Versus

AUDITOR-GENERAL OF PAKISTAN, ISLAMABAD---Respondent

Civil Appeal No.159 of 2011, decided on 10th July, 2013.

(On appeal against the judgment dated 25-1-2010 passed by the Federal Service Tribunal, Islamabad, in Appeal No.331(R)CS/2006.)

National Accountability Ordinance (XVIII of 1999)---

----Ss. 25(b), 15(a), proviso & 9---Punjab Removal from Service (Special Powers) Ordinance (IV of 2000), S. 5(5)---Government official entering into a plea bargain with National Accountability Bureau (NAB)--- Disqualification of such official from holding public office---Scope---Removal of such official from his department without conducting of a regular inquiry---Legality---Accused while serving as Divisional Accounts Officer was alleged to have committed irregularities and corruption---Accused was arrested by National Accountability Bureau (NAB), but entered into a plea bargain, which was accepted and he was released under S.25(b) of National Accountability Ordinance, 1999---Chairman NAB informed department of accused that he had entered into a plea bargain, which implied that he was deemed to have been convicted under the National Accountability Ordinance, 1999 and should cease to hold public office forthwith---Resultantly accused was issued a show cause notice by his department and consequently removed from service---Appeals filed by accused against his removal were also dismissed by his department and Federal Service Tribunal respectively---Plea of accused that his department did not conduct a regular inquiry before removing him from service, and that he could only be disqualified from holding public office if he was convicted of committing any offence mentioned under S.9 of National Accountability Ordinance, 1999---Validity---Case of accused was regulated by S.25(b) of National Accountability Ordinance, 1999, as he had entered into a plea bargain during pendency of his trial, and National Accountability Court ordered his release under the said section---Consequence of such an order by the National Accountability Court was provided under proviso to S.15(a) of National Accountability Ordinance, 1999, which provided that on approval of plea bargain in term of S. 25(b) of National Accountability Ordinance, 1999, the accused stood disqualified for a period of ten years from holding any public office---Accused had not denied entering into a plea bargain---Since documents on basis of which departmental proceedings had been initiated were not in dispute, the competent authority could dispense with regular inquiry, as no material was required to be collected for proceeding against the accused---Accused could not take the plea that he was deprived of an opportunity to rebut the charge, because the documents on the basis of which departmental proceedings were initiated had not been denied by the accused---Appeal was dismissed in circumstances.

M.D. Chaudhry, Advocate Supreme Court for Appellant.

Sajid Ilyas Bhatti, D.A.-G. and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 10th July, 2013.

2013 S C M R 922

[Supreme Court of India]

Present: Aftab Alam and Ranjana Prakash Desai, JJ.

CIVIL APPEALS NOS.2706 - 2716 OF 2013

(Arising out of SLP(C) Nos.20539-20549 of 2009)

NOVARTIS AG---Appellant

Versus

UNION OF INDIA and others---Respondents

CIVIL APPEAL NO.2728 OF 2013

(Arising out of SLP(C) Nos.32706 of 2009)

NATCO PHARMA LTD.---Appellant

Versus

UNION OF INDIA and others---Respondents

CIVIL APPEALS NOS.2717 - 2727 OF 2013

(Arising out of SLP(C) Nos.12984 - 12994 of 2013) SLP(C)......../2011 CC Nos.6667 - 6677

Messrs CANCER PATIENTS AND ASSOCIATION---Appellant

Versus

UNION OF INDIA and others---Respondents

Civil Appeals Nos.2706 - 2716, 2728 and Civil Appeals Nos.2717 - 2727 of 2013, decided on 1st April, 2013.

(a) Patent---

----Grant of patent for a product---Conditions that a product needs to satisfy to qualify as an "invention"---For qualifying as an "invention" a product must be "new"; it must be "capable of being made or used in an industry"; it must come into being as a result of an invention which has a feature that entails technical advancement over existing knowledge, or has an economic significance, and makes the "invention" not obvious to a person skilled in the art.

(b) Patent---

----Pharmaceutical patent---Ever greening of pharmaceutical patent---Pharmaceutical drug derived from a patented chemical compound/ substance---Grant of patent for such a drug---Scope---Legal requirement that patent for such a drug could only be granted if it qualified as an "invention"---Multi-national pharmaceutical company ("company") had a patent for a chemical compound with which it manufactured a cancer treatment drug ("drug")---Subsequently company made some alterations to the chemical compound and launched an updated version of the drug, which the company claimed was a new "invention"---Company was refused patent for updated version of the drug on the basis that it was not a new drug but an amended version of its earlier product; that invention claimed by the company was anticipated by its previous patent of the chemical compound; that the invention claimed was obvious to a person skilled in the art in view of the disclosure provided in previous patent specifications; that if company was granted patent for updated version of its drug, it would adversely affect lives of poor cancer patients and their families due to the high price of the drug---Validity---Updated version of the drug emerged from the chemical compound for which the company already had a patent---Company had obtained approval for updated version of the drug (in a foreign country) on the basis that it was part of the patented chemical compound---Company had also used the chemical compound patent (in a foreign country) to stop another pharmaceutical company from selling its cancer drug, which contained the same active pharmaceutical ingredient as present in the updated version of the drug---Pharmacological properties of the updated version of the drug were also known in the patented chemical compound---Updated version of the drug did not qualify the tests of "invention" and patentability, in circumstances---Appeal filed by company was dismissed accordingly with cost.

(c) Patent---

----Pharmaceutical patent---Ever greening of pharmaceutical patent---Pharmaceutical drug derived from a patented chemical compound/substance---Grant of patent for such a drug---Scope---Legal requirement that patent for such a drug could only be granted if it was shown that it had enhanced "efficacy" compared to the chemical compound/substance it was derived from----Enhanced "therapeutic efficacy" of a pharmaceutical drug---Scope---Multi-national pharmaceutical company ("company") had a patent for a chemical compound with which it manufactured a cancer treatment drug ("drug")---Subsequently company made some alterations to the chemical compound and launched an updated version of the drug, which the company claimed was a new "invention"---Company was refused patent for the updated version of the drug---Plea of pharmaceutical company that patented chemical compound from which the updated version of the drug was derived did not have any known efficacy, therefore, there was no question of showing that the updated version had any enhanced efficacy, and that even otherwise the updated version of the drug had a 30% increased bioavailability and was more easily absorbed as compared to the patented chemical compound---Validity---Updated version of the drug was a new form of a known substance, i.e. patented chemical compound, efficacy of which was well known---Company was obliged to show the enhanced efficacy of the updated version of the drug over the patented chemical compound, however, there was no material (on record) to make any such comparison of efficacy---Test of efficacy depended upon the function, utility or the purpose of the product, therefore, in the case of a medicine that claimed to cure a disease, the test of efficacy could only be "therapeutic efficacy"---"Therapeutic efficacy" of a medicine had to be judged strictly and narrowly, thus, not all advantageous or beneficial properties (of an updated version of a drug) were relevant, but only such properties that directly related to its therapeutic efficacy---Additional properties that could be attributed to the updated version of the drug were limited to its improved process ability and better and longer storability but, on the basis of such properties alone, the updated version of the drug could not be said to possess "enhanced therapeutic efficacy" over the patented chemical compound---Increased bioavailability (of an updated version of a drug) alone might not necessarily lead to an enhancement of therapeutic efficacy---Increase in bioavailability leading to an enhancement of therapeutic efficacy had to be specifically claimed and established by research data, which was lacking in the present case---Appeal filed by company was dismissed accordingly with cost.

(d) Patent---

----Pharmaceutical patent---Pharmaceutical drug derived from a known chemical compound/substance with known efficacy---Grant of patent for such a drug---Conditions---Where the (pharmaceutical) product for which patent protection was claimed was a new form of a known substance with known efficacy, then the product must pass the test of "invention", "inventive steps" and the test of enhanced (therapeutic) efficacy.

Gopal Subramanium and T.R. Andhiyarujina, Senior Advocates for Novartis AG.

Paras Kuhad, Additional Solicitor General for Union of India.

Anand Grover, Senior Advocate for Cancer Patients Aids Association.

L. Nageswara Rao, Senior Advocate for NATCO.

Harish N. Salve, Rajeev Dhawan, Senior Advocates and Pratibha M. Singh, Advocate for CIPLA.

Pratibha M. Singh, Advocate for Ranbaxy.

Fox Mandal & Co. for Hetero Drugs Ltd.

Jayant K. Mehta, Advocate for Indian Pharmaceutical Alliance.

Professor Shamnad Basheer along with Gopal Sankarnarayanan, Advocate for Intervenor/Amicus.

2013 S C M R 480

[Supreme Court of India]

Present: Swatanter Kumar and Fakkir Mohamed Ibrahim Kalifulla, JJ

RAVI KAPUR---Appellant

Versus

STATE OF RAJASTHAN---Respondent

Criminal Appeal No.1838 of 2009, decided on 16th August, 2012.

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

----S. 279---Rash or negligent driving---Conditions---Speed of vehicle not the determining factor---Rash and negligent driving had to be examined in light of the facts and circumstances of a given case, and it was incapable of being construed or seen in isolation---Rash or negligent driving must be examined in light of the attendant circumstances---Person who drove a vehicle on the road was liable to be held responsible for the act as well as for the result---Determining whether a person was driving rashly and negligently with reference to the speed of a vehicle might not always be possible---Even when one was driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of S.279, of the Penal Code, which was why the legislature in its wisdom had used the words 'manner so rash or negligent as to endanger human life'---Preliminary conditions, thus, were that firstly it was the manner in which the vehicle was driven; secondly it had to be driven either rashly or negligently; and thirdly such rash or negligent driving should be such as to endanger human life---Once said ingredients were satisfied, the penalty contemplated under S.279 of the Penal Code was attracted.

(b) Words and phrases---

----"Negligence"---Meaning---"Negligence" means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do.

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

----S. 279---Rash or negligent driving---Doctrine of reasonable care---Duty of care owed by driver of a vehicle to pedestrians---Scope---Doctrine of reasonable care imposed an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attained a higher degree when the pedestrian happened to be children of tender years---While driving a vehicle on a public way, there was an implicit duty cast on the drivers to see that their driving did not endanger the life of the right users of the road (vehicular users or pedestrians), and they were expected to take sufficient care to avoid danger to others.

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

----S. 279---Rash or negligent driving---Doctrine of res ipsa loquitur, applicability of---Scope---Doctrine of res ipsa loquitur was equally applicable to the cases of accident and not merely to the civil jurisprudence---Before doctrine of res ipsa loquitur could be applied either the accident must be proved by proper and cogent evidence or it should be an admit­ted fact---Said doctrine came to aid at a subsequent stage where it was not clear as to how and due to whose negligence the accident occurred---Factum of accident having been established, the court with the aid of proper evidence might take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur---Doctrine of res ipsa loquitur served two purposes, firstly that an accident might by its nature be more consistent with it being caused by negligence for which the opposite party was responsible than by any other causes and that in such a case, the mere fact of the accident was prima facie evidence of such negligence; secondly, it was to avoid hardship in cases where the claimant was able to prove the accident but could not prove how the accident occurred---Courts also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record--- Maxim res ipsa loquitur suggested that on the circumstances of a given case the res spoke and was eloquent because the facts stood unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, showed that the act was attributable to some person's negligent conduct.

Justice Rajesh Tandon's "An Exhaustive Commentary on Motor Vehicles Act, 1988' (First Edition, 2010) ref.

(e) Maxim---

----Res ipsa loquitur---Applicability---Essential elements---Elements of doctrine of res ipsa loquitur were that the event would not have occurred but for someone's negligence; that the evidence on record ruled out the possibility that actions of the victim or some third party could be the reason behind the event, and that the accused was negligent and owed a duty of care towards the victim.

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

----S. 279---Rash or negligent driving---Concept of "culpable rashness"---Scope---Concept of 'culpable rashness' could be taken into consideration by court in cases of road accidents---'Culpable rashness' was acting with the consciousness that mischievous and illegal consequences might follow but with the hope that they would not and often with the belief that the actor had taken sufficient precautions to prevent their happening---Imputability arose from acting despite consciousness.

Mohd. Aynuddin alias Miyam v. State of A.P. [(2000) 7 SCC 72 : (AIR 2000 SC 2511 : 2000 AIR SCW 2679)] ref.

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

----S. 279---Rash or negligent driving---Concept of 'culpable negligence'---Scope---Concept of 'culpable negligence' could be taken into consideration by court in cases of road accidents---'Culpable negligence' was acting without the consciousness that the illegal and mischievous effect would follow, but in circumstances which showed that the actor had not exercised the caution incumbent upon him and that if he had, he would have had the consciousness---Imputability arose from the neglect of civic duty of circumspection---Mere fact of accident, in such a case, was prima facie evidence of such negligence.

Mohd. Aynuddin alias Miyam v. State of A.P. [(2000) 7 SCC 72 : (AIR 2000 SC 2511 : 2000 AIR SCW 2679)] ref.

(h) Maxim---

----Res ipsa loquitur---Applicability to criminal cases---Doctrine of res ipsa loquitur could be extended to criminal cases provided the attendant circumstances and basic facts were proved.

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

----S. 279---Rash or negligent driving---Reappraisal of evidence---Doctrine of res ipsa loquitur---Applicability to a case of rash and negligent driving---Scope---Driver guilty of rash and negligent driving moving the vehicle away from the place of accident after the collision rather than leaving it there---Effect---Accused allegedly drove a bus in a rash and negligent manner with the result that it collided with a vehicle at a turning point on the road and caused death of deceased persons---After the collision accused allegedly moved the bus away from the place of accident and ran away---Trial Court acquitted the accused, however High Court set aside order of acquittal and convicted the accused under S.279 of the Penal Code---Contention on behalf of accused was that none of the witnesses had actually seen the accused driving the vehicle, therefore, in absence of test identification parade, it had to be held that the accused was not driving the vehicle and that he was not identified---Validity---Applying the principle of res ipsa loquitur, it could safely be inferred that it was a serious accident that occurred at a turning point in which number of people had died---After the accident, the bus driver (accused) moved the bus away to a different point---Most appropriate conduct of the bus driver would have been to leave the vehicle at the place of accident to show that he was driving on the proper side and the vehicle which was trying to overtake the other vehicle had come on the wrong side of the road resulting in the accident---Such conduct would have been a very material circumstance and relevant conduct of the driver---All the prosecution witnesses were consistent in stating that accused was driving the vehicle and after parking the vehicle at a place away from the place of occurrence, he ran away---Statements of witnesses were fully supported by the documentary evidence---No serious or material contradictions were found in the statements of prosecution witnesses, therefore, they were worthy of credence and there was no occasion to disbelieve them---Accused was also seen running away from the bus by a passerby---Bus in question was given to the accused on superdari as he was owner of the same---Accused was also identified by the witnesses in court---Holding test identification parade of accused was not necessary in the present case as he was already known to the passersby who had recognized him while driving the bus and had stated his name and, secondly, he was duly seen, though for a short but reasonable period, when he got down from the bus and ran away---Trial Court could not have ignored the statement of the eye-witnesses, particularly when they were reliable, trustworthy and gave the most appropriate eye account of the accident---Judgment of Trial Court, therefore, suffered from errors of law and non-appreciation of evidence---Interference by the High Court with the judgment of acquittal passed by the Trial Court did not suffer from any jurisdictional error---Appeal was dismissed in circumstances.

Alister Anthony Pereira v. State of Maharashtra [(2012) 2 SCC 648 : (AIR 2012 SC (Cri) 419 : 2012 AIR SCW 930)]; Naresh Giri v. State of M.P. [(2008) 1 SCC 791 : (AIR 2007 SC (Supp) 1190 : 2007 AIR SCW 7104)] and Thakur Singh v. State of Punjab (2003) 9 SCC 208 ref.

(j) Criminal trial---

----Witness---Statements of witnesses---Contradictions---Principles---Variations in statements of witnesses which were neither material nor serious enough to affect the case of the prosecution adversely were to be ignored by the courts---Statements of the witnesses had to be read as a whole and the court should not pick up a sentence in isolation from the entire statement and ignoring its proper reference, use the same against or in favour of a party---Contradictions had to be material and substantial so as to adversely affect the case of the prosecution.

State v. Saravanan and another (2008) 17 SCC 587 : (AIR 2009 SC 152 : 2008 AIR SCW 7060); Sunil Kumar Sambhudayal Gupta v. State of Maharashtra (2010 13 SCC 657 : (AIR 2011 SC (Cri) 69 : 2010 AIR SCW 7049) and Atmaram and others v. State of Madhya Pradesh (2012) 5 SCC 738 : (AIR 2012 SC 1956 : 2012 AIR SCW 2972) ref.

Patwalia, Senior Advocate for Appellant.

2013 S C M R 526

[Supreme Court of India]

Present: P. Sathasivam and Ranjan Gogoi, JJ

Messrs MICHIGAN RUBBER (INDIA) LTD.---Appellant

Versus

STATE OF KARNATAKA and others---Respondents

Civil Appeal No.5898 of 2010 (arising out of S.L.P. (C) No.25802 of 2008), decided on 17th August, 2012.

(a) Judicial review---

----State action, judicial review of---Scope---Equality before law---Basic requirement of fundamental right of equality before law was fairness in action by the State, and non-arbitrariness in essence and substance was the heartbeat of fair play---State actions were amenable to judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose---Where the State acted within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities.

(b) Judicial review---

----Contractual matter---Tender floated by State Corporation---Pre-qualification criteria and conditions for participation in the tender---Fixation of value of tender---Judicial review---Principles---Fixation of value of tender was entirely within the purview of the executive and courts hardly had any role to play in this process except for striking down such action of the executive as was proved to be arbitrary or unreasonable---If the Government acted in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in such circumstances, interference by courts was very limited---In the matter of formulating conditions of a tender document and awarding a contract, greater latitude was required to be conceded to the State authorities, and unless the action of tendering authority was found to be malicious and a misuse of its statutory powers, interference by courts was not warranted---Certain preconditions or qualifications for tenders had to be laid down to ensure that the contractor/bidder had the capacity and the resources to successfully execute the work, and if the State or its instrumentalities acted reasonably, fairly and in public interest in awarding contract, then interference by court was very restrictive since no person could claim fundamental right to carry on business with the Government---Before interfering in a tender or contractual matter, in exercise of power of judicial review, the court should pose to itself the questions whether the process adopted or decision made by the authority was mala fide or intended to favour someone; or whether the process adopted or decision made was so arbitrary and irrational that the court could say that the decision was such that no responsible authority acting reasonably and in accordance with relevant law could have reached the same, and whether the public interest was affected---If the answers to the said questions were in negative, then there should be no interference by court in exercise of its powers of judicial review.

Tata Cellular v. Union of India, (1994) 6 SCC 651 : (AIR 1996 SC 11 : 1994 AIR SCW 3344); Raunaq International Ltd. v. I.V.R. Construction Ltd. and others (1999) 1 SCC 492 : (AIR 1999 SC 393 : 1999 AIR SCW 53); Union of India and others v. International Trading Co. and others (2003) 5 SCC 437 : (AIR 2003 SC 3983 : 2003 AIR SCW 2828); Jespar I. Slong v. State of Meghalaya and others (2004) 11 SCC 485 : (AIR 2004 SC 3533 : 2004 AIR SCW 3399); Association of Registration Plates v. Union of India and others (2005) 1 SCC 679 : (AIR 2005 SC 469 : 2004 AIR SCW 7074); Reliance Airport Developers (P) Ltd. v. Airports Authority of India and others (2006) 10 SCC 1; Jagdish Mandal v. State of Orissa and others (2007) 14 SCC 517 and Tejas Constructions and Infrastructure Pvt. Ltd. v. Municipal Council, Sendhwa and another (2012) 6 SCC 464 ref.

(c) Judicial review---

----Tender floated by State Corporation---Pre-qualification criteria for participation in the tender, judicial review of---Scope---Equality before law---State Transport Corporation ("Corporation") floated a tender for supply of tyres, tubes and flaps specifying certain pre- qualification criteria---Said pre-qualification criteria stated that only those tyre manufacturers who had supplied a minimum average of 5000 sets of tyres, tubes and flaps set per annum, in the preceding three years to any of the heavy goods/passenger vehicles/chassis manufacturers in the country were eligible to participate, and that the firm should have minimum average annual turnover of Rs.500 crores in the preceding three years from the sale of tyres, tubes and flaps---Grievance of the appellant-company was that the pre-qualification criteria of the tender in question was unreasonable, arbitrary, discriminatory and opposed to public interest in general, and that said conditions were incorporated to exclude the appellant-company and other similarly situated companies from the tender process on wholly extraneous grounds which was unfair, discriminatory and unsustainable in law---Writ petition filed by appellant-company challenging the pre-qualification criteria of the tender was dismissed by the High Court, and appeal filed thereagainst was also dismissed by Division Bench of High Court---Validity---Government and its undertakings must have a free hand in setting terms of the tender and only if they were arbitrary, discriminatory, mala fide or actuated by bias, the courts would interfere---Courts cannot interfere with the terms of the tender prescribed by the Government because it felt that some other terms in the tender would have been fair, wiser or logical---Corporation, in the present case, had highlighted that the tender conditions were stipulated by way of policy decision after due deliberation; that said conditions were imposed with a view to obtain good quality materials from reliable and experienced suppliers, and that the quality of the tyres played a major role in providing safe and comfortable transportation facility to the commuters---Pursuant to the tender notice, seven bids were received including that of the appellant-company---Successful bidders entered into contracts with the Corporation, effected the supplies and completed the contract and the Corporation also made payments to the successful bidders--- Appellant-company failed to establish that conditions set out in the tender were contrary to public interest and were discriminatory or unreasonable--- Corporation thought it fit that the criteria for applying for tender for procuring tyres should be of a high standard and only those manufacturers who satisfied the eligibility criteria should be permitted to participate in the tender---Committee of the Corporation, consisting of experienced persons, set the tender conditions after taking into account various aspects including the safety of the passengers and public interest---Impugned conditions could not be classified as arbitrary, discriminatory or based on mala fide---No valid ground existed for interference in reasoning of the High Court---Appeal was dismissed in circumstances.

Tata Cellular v. Union of India, (1994) 6 SCC 651 : (AIR 1996 SC 11 : 1994 AIR SCW 3344); Raunaq International Ltd. v. I.V.R. Construction Ltd. and others (1999) 1 SCC 492 : (AIR 1999 SC 393 : 1999 AIR SCW 53); Union of India and others v. International Trading Co. and others (2003) 5 SCC 437 : (AIR 2003 SC 3983 : 2003 AIR SCW 2828); Jespar I. Slong v. State of Meghalaya and others (2004) 11 SCC 485 : (AIR 2004 SC 3533 : 2004 AIR SCW 3399); Association of Registration Plates v. Union of India and others (2005) 1 SCC 679 : (AIR 2005 SC 469 : 2004 AIR SCW 7074); Reliance Airport Developers (P) Ltd. v. Airports Authority of India and others (2006) 10 SCC 1; Jagdish Mandal v. State of Orissa and others (2007) 14 SCC 517 and Tejas Constructions and Infrastructure Pvt. Ltd. v. Municipal Council, Sendhwa and another (2012) 6 SCC 464 ref.

Ms. Madhusima for Appellant.

S.N. Bhat for Respondents Nos.2 and 3.

V.N. Raghupathy for the State.

2013 S C M R 552

[Supreme Court of India]

Present: K.S. Radhakrishnan and Dipak Misra, JJ

CHANDI PRASAD UNIYAL and others---Appellants

Versus

STATE OF UTTARAKHAND and others---Respondents

Civil Appeal No.5899 of 2012 (@ Special Leave Petition (C) No.30858 of 2011, with I.As. Nos.2 and 3, decided on 17th August, 2012.

Civil service---

----Liability of Government employee to whom money is paid by mistake to return the same--- Scope--- Excess salary/payment given to Government employee due to irregularity in pay fixation---Recovery of excess money paid--- Unjust enrichment---Scope---Government employees were paid excess salary due to wrong pay fixation by the concerned authority---Question was whether the employees could retain the excess amount received by them in the absence of any misrepresentation or fraud on their part---Excess payment was made from public money/tax payer's money, which neither belonged to officers who had effected over-payment nor to the recipients/ employees---Any amount paid/received without authority of law could always be recovered barring few exceptions of hardships, but not as a matter of right---Law implied an obligation on the payee to repay the money in such a situation, otherwise it would amount to unjust enrichment---No principle existed which limited recovery of excess paid public money only to cases of fraud or misrepresentation on part of the recipients---Except few exceptions excess payment made due to wrong/irregular pay fixation could always be recovered---Even otherwise there was a stipulation in the pay fixation order of employees that in the condition of irregular/wrong pay fixation, the institution in which the employees were working would be responsible for recovery of amount received in excess of their salary---Appeal was dismissed accordingly.

Shyam Babu Verma v. Union of India (1994) 2 SCC 521; State of Bihar v. Pandey Jagdishwar Prasad (2009) 3 SCC 117 : (2009 AIR SCW 595); Yogeshwar Prasad and others v. National Institute of Education Planning and Administration and others (2010) 14 SCC 323 : (2010 AIR SCW 7136) and Col. B.J. Akkara (Retd.) v. Government of India and others (2006) 11 SCC 709 : (2006 AIR SCW 5252) ref.

Sahib Ram v. State of Haryana 1995 Supp (1) SCC 18 : (1995 AIR SCW 1780) and Syed Abdul Qadir and others v. State of Bihar and others (2009) 3 SCC 475 : (2009 AIR SCW 1871) distinguished.

Shri Shivam Sharma for Appellants.

Mrs. Rachana Srivastava for the State.

2013 S C M R 602

[Supreme Court of India]

Present: G.S. Singhvi and Sudhansu Jyoti Mukhopadhaya, JJ

VIDUR IMPEX AND TRADERS PVT. LTD. and others---Appellants

Versus

TOSH APARTMENTS PVT. LTD. and others---Respondents

Civil Appeals Nos. 5918 with 5917 of 2012 (arising out of S.L.P.(C) Nos.11501 with 17156 of 2009), decided on 21st August, 2012.

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

----O. I, R. 10(2)---Impleadment of a party to a suit, application for---Necessary party---Scope---Necessary party was the person who ought to be joined as party to the suit and in whose absence an effective decree could not be passed by the court.

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

----O. I, R. 10(2)---Impleadment of a party to a suit, application for---Proper party---Scope---Proper party was a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he might not be a person in favour of or against whom a decree was to be made.

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

----O. I, R. 10(2)---Impleadment of a party to a suit, application for---Impleadment against wishes of the plaintiff---Scope---When a person was not found to be a proper or necessary party, the court did not have the jurisdiction to order his impleadment against the wishes of the plaintiff.

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

----O. I, R. 10(2)---Specific Relief Act (I of 1877), S. 12---Impleadment of vendee/purchaser of property to a suit for specific performance relating to the property---Scope---Court, in a suit for specific performance could order impleadment of a purchaser whose conduct was above board, and who filed application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation---If the applicant/vendee was guilty of contumacious conduct or was beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of a restraint order passed by the court or the application was unduly delayed then the court would be fully justified in declining the prayer for impleadment.

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

----O. I, R. 10(2) & O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 24---Impleadment of vendee/purchaser of property to a suit for specific performance relating to the property---Necessary and proper party---Scope---Vendee/purchaser seeking its impleadment in suit for specific performance on basis of a transaction made by it in defiance of an injunction order passed by court---Application for impleadment filed belatedly---Effect---Plaintiff filed suit for specific performance of its agreement to sell to the defendant/vendor---High Court passed injunction order restraining defendant from transferring, alienating or parting with possession of suit property in any manner or from creating any third party rights therein---Defendant in contravention of the injunction order executed agreements to sell disputed property in favour of the vendees/purchasers (appellants), who in turn executed agreements to sell the same in favour of the transferee---Vendees filed application under O.1, R. 10(2), C.P.C. to be impleaded as defendants in the suit for specific performance filed by the plaintiff---Plaintiff resisted the said application by contending that the transactions entered into between the defendant, the vendees and transferee were ex facie illegal and on the basis of such transactions the vendees did not acquire any right or interest in the suit property; that vendees were not a party to the agreement to sell entered into between the plaintiff and defendant, thus, they had no locus to contest the suit, and that vendees had sought impleadment after a lapse of many years of having entered into a clandestine transaction with the defendant---High Court dismissed application of vendees by observing that it lacked bona fides because they purchased the suit property from the defendant despite injunction order of court; that even otherwise after executing the agreement to sell in favour of transferee vendees did not have any subsisting interest in the property, and that there was no tangible explanation for filing the application for impleadment after a long gap of about 8 years---Validity---In a suit for specific performance, the court could order impleadment of a vendee/purchaser whose conduct was above board, and who filed application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation---If the applicant/vendee was guilty of contumacious conduct or was beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of a restraint order passed by the court or the application was unduly delayed then the court would be fully justified in declining the prayer for impleadment---Plaintiff had filed suit for specific performance of agreement executed by the defendant---Vendees and transferee were total strangers to said agreement and they came into the picture only when the defendant entered into a clandestine transaction with the vendees for sale of the suit property and executed the agreements for sale, which were followed by registered sale deeds and the vendees further executed agreement for sale in favour of transferee---Said transactions were in clear violation of the order of injunction passed by the High Court which had restrained defendant from alienating the suit property or creating third party interest therein---Agreements for sale and the sale deeds executed by the defendant in favour of vendees and by vendees in favour of transferee did not have any legal sanctity---Said transactions did not confer any right upon the vendees or transferee, therefore, their presence was not at all necessary for adjudication of the question whether plaintiff and defendant had entered into a binding agreement and whether plaintiff was entitled to a decree of specific performance of the said agreement---Even otherwise, after executing agreement for sale in favour of transferee, the vendees could not claim to have any subsisting legal or commercial interest in the suit property---Application for impleadment was also filed belatedly and vendees did not offer any tangible explanation as to why the same was filed after 7 years of the passing of injunction order---Vendees did not fall within the category of bona fide purchaser, therefore, their presence was not required to decide the controversy involved in the suit filed by plaintiff or for passing an effective decree---Appeal filed by vendees was dismissed accordingly.

Surjit Singh v. Harbans Singh (1995) 6 SCC 50 : AIR 1996 SC 135 : 1995 AIR SCW 2830 rel.

Kasturi v. Iyyamperumal (2005) 6 SCC 733 : AIR 2005 SC 2813 : 2005 AIR SCW 2368 distinguished.

Amit Kumar Shaw v. Farida Khatoon (2005) 11 SCC 403 : AIR 2005 SC 2209: 2005 AIR SCW 2078; Mumbai International Airport (P) Ltd. v. Regency Convention Centre and Hotels (P) Ltd. (2010) 7 SCC 417 : AIR 2010 SC 3109: 2010 AIR SCW 4222; Vinod Seth v. Devinder Bajaj (2010) 8 SCC 1 : 2010 AIR SCW 4860; Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay (1992) 2 SCC 524 : 1992 AIR SCW 846; Anil Kumar Singh v. Shivnath Mishra (1995) 3 SCC 147 : 1995 AIR SCW 1782; Savitri Devi v. DJ. Gorakhpur AIR 1999 SC 976 : 1999 AIR SCW 597; Sarvinder Singh v. Dalip Singh (1996) 5 SCC 539 and Bibi Zubaida Khatoon v. Nabi Hassan (2004) 1 SCC 191 : AIR 2004 SC 173 : 2003 AIR SCW 5858 ref.

Bijoy Kumar Jain for Appellants.

Hardeep Singh Anand for Respondents.

2013 S C M R 670

[Supreme Court of India]

Present: A.K. Patnaik and Swatanter Kumar, JJ

AVISHEK GOENKA---Appellant

Versus

UNION OF INDIA and anther---Respondents

I.As. Nos.4, 5, I.As. Nos.6-8, I.As. Nos.9-11, 12, 13, 14 and 15 in Writ Petition (Civil) No.265 of 2011, decided on 3rd August, 2012.

(a) Interpretation of statutes---

----Enforceability of a provision in a statute---Plea was that enforceability of the provision caused inconvenience---Validity---Such plea was no ground for rendering a provision on the statute book to be unenforceable--- Individual inconvenience could not be a ground for giving the law a different interpretation.

(b) Public interest litigation---

----Order passed in public interest litigation---Nature---Such order would operate in rem---Court was not required to issue notices to every individual who was likely to be affected by the order.

(c) Interpretation of statutes---

----Principles---Interpretation of law was not founded on a single circumstance, particularly when such circumstance was very individualistic---Court was not expected to go into individual cases while dealing with interpretation of law.

(d) Interpretation of statutes---

----Principles---Hardship of few (individuals) could not be the basis for determining the validity of any statute---Law must be interpreted and applied on its plain language.

Saurabh Chaudri and others v. Union of India and others AIR 2004 SC 361 : 2003 AIR SCW 6392 ref.

2013 S C M R 702

[Supreme Court of India]

Present: A.K. Patnaik and Smt. Ranjana Prakash Desai, JJ

REGISTRAR, RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES, BANGALORE---Appellant

Versus

G. HEMLETHA and others---Respondents

Civil Appeal No.5992 of 2012 (arising out of Special Leave Petition (Civil) No.8442 of 2011), decided on 23rd August, 2012.

Educational institution---

----Admission---Eligibility criteria for admission to a study course---Percentage of marks required for securing admission---Relaxation of eligibility criteria on the principle of rounding off-marks to the next percentage---Propriety---When eligibility criteria was prescribed in a qualifying examination, that must be strictly adhered to---Any dilation or tampering with the eligibility criteria would work injustice on other candidates.

Orissa Public Service Commission and another v. Rupashree Chowdhary and another (2011) 8 SCC 108 : AIR 2011 SC 3276 : 2011 AIR SCW 4588 rel.

Vani Pati Tripath v. Director-General, Medical Education and Training and others AIR 2003 All 164 and Kuldip Singh, Legal Assistant, Punjab Financial Corporation v. The State of Punjab and others (1997) 115 PLR 1 : 1998 Lab IC 1 ref.

2013 S C M R 706

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

MUHAMMAD HUSSAIN through LRs.---Petitioners

Versus

ANSAR BASHIR AC and others---Respondents

Civil Petition No.2150-L of 2002, decided on 21st February, 2013.

(Against the judgment of the Lahore High Court Lahore dated 19-4-2002 passed in W.P. No.337-R of 1986).

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----S.10---Constitution of Pakistan, Art. 185(3)---Transfer of property from compensation pool by means of auction---Doctrine of equity---Scope---Authorities auctioned off urban evacuee land in dispute and after receiving full consideration allotted the same to the respondents and issued Provisional Transfer Orders (PTOs) and Permanent Transfer Deeds (PTDs) in their favour---Petitioners' claimed that their predecessor-in-interest had before independence, mortgaged land in dispute to a mortgagee (evacuee) in lieu of consideration, vide registered mortgage deed; that land in dispute was redeemed after payment of mortgage money, therefore allotment of the same in the name of the allotees was unlawful and its possession should be handed over to petitioners---Settlement Commissioner after holding detailed inquiry rejected claim of the petitioners---Constitutional petition filed by petitioners before High Court against order of Settlement Commissioner was also dismissed---Validity---Land in dispute was in the name of evacuee even prior to partition (i.e. 1947)---Settlement Commissioner after conducting a detailed inquiry and having examined the record keeper and relevant record of Municipal Corporation came to the conclusion that site plan of house constructed on land in dispute was approved in the name of evacuee as far back as 12-9-1943, which was much before the alleged mortgage deed---After partition houses and plots constructed on the property were put to auction by the Deputy Settlement Commissioner and after receiving full payment, Provisional Transfer Orders (PTOs) and Permanent Transfer Deeds (PTDs) were issued---Even in the Permanent Transfer Deed (PTDs) issued, name of evacuee appeared in the ownership column---Khasra number in revenue record was shown to be in the name of evacuee---No evidence was led to show that there was any element of fraud in issuance of Permanent Transfer Deeds (PTDs) or in possession of the property---Settlement Commissioner had found that either there was an exchange of land or the predecessor-in-interest of petitioners had sold the land in dispute to the evacuee much before partition---Evacuee owner had constructed house on land in dispute prior to partition and to the knowledge of the predecessor-in-interest of petitioners, but no steps were taken by the latter to restrain the construction---High Court also refused to interfere in order of Settlement Commissioner for the reason that it would be inequitable since it would result in uprooting a number of families who had been built houses and had been living there since long---Petition for leave to appeal was dismissed in circumstances and leave was refused.

Secretary to Government of Punjab Forest Department Punjab through DFO v. Ghulam Nabi PLD 2001 SC 415 and Evacuee Trust Property Board v. Mst. Sakina Bibi 2007 SCMR 262 ref.

M.A. Hafeez Khan v. Riaz Ahmad Mehra 1983 SCMR 803 distinguished.

Jari Ullah Khan, Senior Advocate Supreme Court and Tasneem Amin, Advocate-on-Record for Petitioners.

Syed Ali Zafar, Advocate Supreme Court and Mehmood ul Islam, Advocate-on-Record for Respondents Nos.10A, 10E, 16, 18, 21 to 24 and 26.

Date of hearing: 21st February, 2013.

2013 S C M R 403

[Supreme Court of UK]\

Present: Lord Neuberger, President, Lord Hope, Deputy President, Lord Walker, Lord Mance, Lord Clarke, Lord Sumption and Lord Reed

PRUDENTIAL PLC and another---Appellants

Versus

SPECIAL COMMISSIONER OF INCOME TAX and another---Respondents

On appeal from [2010] EWCA Civ 1094, decided on 23rd January, 2013.

Per Lord Neuberger (President); Lord Hope (Deputy President), Lord Walker, Lord Mance and Lord Reed, JJSC agreeing; Lord Sumption & Lord Clarke, JJSC dissenting. [Majority view]

(a) Counsel and client---

----Communication between counsel and client---Legal professional privilege---Scope---Where legal professional privilege was attached to a communication between a legal adviser and a client, the client was entitled to object to any third party seeing the communication for any purpose, unless the client had agreed or waived its right; or a statute provided that the privilege could be overridden; or the document concerned was prepared for, or in connection with, a nefarious purpose, or one of a few miscellaneous exceptions applied.

(b) Counsel and client---

----Communication between counsel and client---Legal professional privilege---Legal advice privilege---Scope---Legal advice privilege applied to all communications passing between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice, i.e. advice which related to the rights, liabilities, obligations or remedies of the client either under private law or under public law.

Three Rivers District Council v. Governor and Company of the Bank of England (No.6) [2005] 1 AC 610 ref.

(c) Counsel and client---

----Communication between counsel and client---Legal professional privilege---Legal advice privilege---Purpose---Legal advice privilege was based on the need to ensure that a person could seek and obtain legal advice with candour and full disclosure, secure in the knowledge that the communications involved could never be used against such a person---Legal advice privilege was conferred for the benefit of the client, and might only be waived by the client; it did not serve to protect the legal profession---Legal advice privilege existed to ensure that there was full and frank communication between attorneys and their clients, which promoted broader public interests in the observance of law and administration of justice---Principle that communications between clients and lawyers, whereby the clients were hoping for the assistance of the lawyers' legal skills, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else was founded upon the rule of law.

Three Rivers District Council v. Governor and Company of the Bank of England (No.6) [2005] 1 AC 610 and Upjohn Co. v. United States (1981) 449 US 383, 389 quoted.

Ventouris v. Mountain [1991] 1 WLR 607, 611 ref.

(d) Counsel and client---

----Legal professional privilege---Legal advice privilege---Scope---Chartered accountant giving legal advice to a company/client in relation to a tax avoidance scheme---Tax inspector serving notices on company to produce certain documents relating to its tax affairs---Company refusing to disclose said documents on the ground that same related to legal advice given by the chartered accountant, therefore, they were covered by legal advice privilege---Question as to whether legal advice privilege applied to legal advice given by a professional other than a member of the legal profession---Appellant-company challenged validity of notices served by tax inspector by filing an application for judicial review---High Court rejected application for judicial review on the ground that, although the disputed documents would have attracted legal advice privilege if the advice in question had been sought from, and provided by, a member of the legal profession, no such privilege extended to advice, even if identical in nature, provided by a professional person who was not a qualified lawyer---Court of Appeal upheld the decision of the High Court---Validity---Main issue in the present appeal was whether legal advice privilege should attach to communications passing between chartered accountants and their client in connection with expert tax advice given by the accountants to their client, in circumstances where legal advice privilege would attach to such communications if the same advice was being given to the same client by a member of the legal profession---Universal belief was that legal advice privilege only applied to communications in connection with advice given by members of the legal profession---Legal advice privilege should not be extended to communications in connection with advice given by professional people other than lawyers, even where that advice was legal advice which that professional person was qualified to give---Various laws made by Parliament also implied that legal advice privilege was limited to advice given by lawyers---Allowing present appeal filed by appellant-company would amount to extending legal advice privilege beyond what were currently, and have for a long time been understood to be, its limits---Extending legal advice privilege to any case where legal advice was given by a person who was a member of a profession which ordinarily included the giving of legal advice would likely lead to a clear and well understood principle becoming uncertain, because it would be unclear as to which occupations would be members of a profession for such purpose---Further it was also unclear as to how a court would decide whether a profession was one which ordinarily included the giving of legal advice---Where professionals, other than members of the legal profession, give legal advice, it will often not represent the totality of the advice, and it might be difficult to resolve, as to whether, and, if so, in respect of which documents, legal advice privilege could be claimed---Difficulties might also arise in deciding how to deal with documents which contained legal and non-legal advice---Question as to whether legal advice privilege should be extended to cases where legal advice was given from professional people who were not qualified lawyers raised questions of policy which should be left to the Parliament, with its wide powers of inquiry and consultation and its democratic accountability---Extension of legal advice privilege to professions other than lawyers might only be appropriate on a conditional or limited basis, which could be properly considered and implemented by Parliament, and could not appropriately be assessed, let alone imposed, by the courts---Appeal was dismissed accordingly.

Slade v. Tucker (1880) 14 Ch D 824, 828; Wheeler v. Le Marchant (1881) 17 Ch D 675, 681-682; Minter v. Priest [1930] AC 558, 581; Attorney General v. Mulholland [1963] 2 QB 477, 489-490; D. v. National Society for the Prevention of Cruelty to Children [1978] AC 171, 243-244 and The 16th Report of the Law Reform Committee (Privilege in Civil Proceedings) (1967) (Cmnd 3472) ref.

R (Morgan Grenfell & Co Ltd) v. Special Commissioner of Income Tax [2002] UKHL 21, [2003] 1 AC 563 distinguished.

Per Lord Hope; agreeing with Lord Neuberger (President), Lord Mance and Lord Reed, JJSC [Majority view]

(e) Counsel and client---

----Communication between counsel and client--- Legal advice privilege---Applicability---Scope---Legal advice privilege, as generally understood, applied only to advice that was given by lawyers---If legal advice privilege was determined not by the profession to which the adviser belonged but by the function that he was performing, it would amount to changing the ambit of the privilege, and would also be a significant change because the privilege as generally understood had clearly defined limits---Courts were not best placed to assess how profound a change it would be if legal advice privilege was extended to tax advice given by chartered accountants, and for assessing whether there were good reasons of policy for making such a change and what protections, if any, were needed to ensure that the ambit of the privilege was kept within limits that were acceptable--- If there were reasons of public policy for making such a change, the matter should be left to the Parliament---Appeal was dismissed accordingly. [Minority view]

Per Lord Mance; agreeing with Lord Neuberger (President) and Lord Hope, JJSC [Majority view]

(f) Counsel and client---

----Communication between counsel and client--- Legal advice privilege---Scope---Legal advice privilege had developed and been accepted on a general basis in respect of lawyers because their business was normally dealing with legal matters---In relation to tax or any other particular areas where legal advice was given professionally, specific considerations might exist which could on examination point away from a recognition of legal advice privilege, or away at least from its recognition on an unqualified basis---If legal advice privilege was to be extended to professions other than lawyers, it would not be on a general basis and a careful distinction would have to be drawn between privileged and non-privileged activities, something which was normally irrelevant in the case of lawyers---Distinction between privileged and non-privileged activities would not necessarily be easy to draw---Any recognition in respect of tax accountants of a privilege which traditionally is regarded as relevant only to legal advice given by lawyers in the course of their profession, or of any parallel privilege, should take place, if at all, in Parliament, and not in the courts---Appeal was dismissed accordingly.

Per Lord Reed; agreeing with Lord Neuberger (President), Lord Hope and Lord Mance, JJSC [Majority view]

(g) Counsel and client---

----Communication between counsel and client--- Legal advice privilege---Principles---Legal advice privilege should, as far as possible, be based upon a principle which was clear, certain and readily understood---Extending legal advice privilege to any case where legal advice was given by a person who was a member of a profession which ordinarily included the giving of legal advice, would create uncertainty in the scope of the privilege---Debate as to whether particular professional persons, in particular situations, would or would not fall within the scope of legal advice privilege, would detract from the certainty and clarity which presently existed in the said privilege---Appeal was dismissed accordingly.

Per Lord Sumption (dissenting); Lord Clarke, JSC agreeing. [Minority view]

(h) Counsel and client---

----Communication between counsel and client--- Legal advice privilege---Scope---Availability of legal advice privilege depended on the character of the advice which the client sought and the circumstances in which it was given, and not on the adviser's status, provided that the advice was given in a professional context---Advice on tax law from a chartered accountant would attract legal advice privilege in circumstances where it would have done so had it been given by a barrister or a solicitor---Legal advice privilege was attached to any communication between a client and his legal adviser which was made for the purpose of enabling the adviser to give or the client to receive legal advice; which was made in the course of a professional relationship, and which was made by member of a profession which had as an ordinary part of its function the giving of skilled legal advice---Various professions existed whose practitioners gave skilled legal advice on tax as part of their ordinary professional functions---Accountants were amongst such practitioners, therefore, any distinction between some skilled professional advisers and others was not only irrational, but inconsistent with the legal basis of the privilege---Recognising that legal advice privilege was attached to legal advice given by accountants would not involve any change to the principles governing the availability of the privilege, instead it would only involve recognising the fact that much legal advice falling within such principles was nowadays given by legal advisers who were not barristers and solicitors but accountants---Legal professional privilege was a creation of the common law, whose ordinary incidents were wholly defined by common law, therefore, in principle it was for the courts of common law to define the extent of the privilege---Appeal was allowed and case was remitted to the High Court to decide whether the material/documents requisitioned by the tax inspector would have been privileged if a solicitor or barrister had performed the functions that the accountants performed, and to quash the notices if it would have been. [Minority view]

Greenough v. Gaskell (1833) 1 My & K 98; Upjohn Company v. United States 449 US 383, 389 (1981); Swidler & Berlin v. United States 524 US 399, 403 (1998); Esso Australia Resources Ltd. v. Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 at para 35; Daniels Corporation International Pty Ltd. v. Australian Competition and Consumer Commission (2002) 213 CLR 543 at para 44; R. v. McClure [2001] SCC 14, [2001] 1 SCR 445, at paras 36-39; Wilden Pump Engineering Co. v. Fusfeld [1985] FSR 159; Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No.2) [1972] 2 QB 102 and Lawrence v. Campbell (1859) 4 Drew 485 ref.

Per Lord Clarke (dissenting); agreeing with Lord Sumption, JSC [Minority view]

(i) Counsel and client---

----Communication between counsel and client--- Legal advice privilege---Rights of client---Scope---Legal advice privilege was conferred in support of the client's right to consult a skilled professional adviser and not in support of a right to consult the members of any particular professional body--- Where advice on tax law was sought from and given by an accountant it should be subject to the same legal advice privilege attached to legal advice given by a member of the legal profession--- In modern conditions accountants had the expertise to advise on tax law and it was firms of accountants rather than firms of solicitors who gave such advice and represented clients in disputes with tax authorities on many aspects of their tax affairs--- Legal advice privilege extended to advice given by members of a profession, which had as an ordinary part of its function the giving of skilled legal advice, however such members must be part of a properly regulated professional body---Appeal was allowed and case was remitted to the High Court to decide whether the material/documents requisitioned by the tax inspector would have been privileged if a solicitor or barrister had performed the functions that the accountants performed, and to quash the notices if it would have been. [Minority view]

R (Morgan Grenfell & Co. Ltd.) v. Special Commissioner of Income Tax [2002] UKHL 21, [2003] 1 AC 563; Three Rivers District Council v. Governor and Company of the Bank of England (No.6) [2005] 1 AC 610 para 34 and Woolwich Equitable Building Society v. Inland Revenue Comrs [1993] AC 70 ref.

Lord Pannick C and Conrad McDonnell (Instructed by PricewaterhouseCoopers Legal LLP) for Appellants.

James Eadie QC and Patrick Goodall (Instructed by Solicitor to Her Majesty's Revenue and Customs) for Respondents.

Sir Sydney Kentridge QC, Tom Adam QC and Tim Johnston (Instructed by Herbert Smith Freehills LLP) for Intervener (The Law Society of England and Wales).

Bankim Thanki QC, Ben Valentin, Henry King and Rebecca Loveridge (Instructed by Field Fisher Waterhouse LLP) for Intervener (The General Council of the Bar of England and Wales).

Patricia Robertson QC (Instructed by Simmons and Simmons LLP) for Intervener (The Institute of Chartered Accountants in England and Wales).

Michael Edenborough QC and James Tumbridge QC (Instructed by Gowlings (UK) LLP) for Intervener (AIPPI UK Group).

Philip Havers QC (Instructed by Legal Services Board) for Intervener (Legal Services Board).

Dates of hearing: 5th, 6th and 7th November, 2012.

2013 S C M R 787

[Supreme Court of UK]\

Present: Lord Phillips, Lady Hale, Lord Kerr, Lord Wilson and Lord Carnwath

THE CATHOLIC CHILD WELFARE SOCIETY and others---Appellants

Versus

VARIOUS CLAIMANTS (FC) and THE INSTITUTE OF THE BROTHERS OF THE CHRISTIAN SCHOOLS and others---Respondents

Judgment given on 21st November, 2012.

(On appeal from [2010] EWCA Civ 1106)

Per Lord Phillips; Lady Hale, Lord Kerr, Lord Wilson and Lord Carnwath, JJSC, agreeing.

(a) Tort---

----Vicarious liability of an unincorporated association for a tort committed by its member---Scope---Unincorporated association could be held to be vicariously liable for the tortious acts of one or more of its members.

Heaton's Transport (St Helens) Ltd. v. Transport and General Workers' Union [1973] AC 15, 99; Thomas v. National Union of Mineworkers (South Wales Area) [1986] Ch 20, 66-7 and Dubai Aluminium Co. Ltd. v. Salaam [2002] UKHL 48; [2003] 2 AC 366 ref.

(b) Tort---

----Vicarious liability---Scope---Defendant "A" might be vicariously liable for the tortious act of defendant "B" even though the act in question constituted a violation of the duty owed to defendant "B" by defendant "A" and even if the act in question was a criminal offence.

Morris v. CW Martin & Sons Ltd. [1966] 1 QB 716 and Dubai Aluminium; Brink's Global Services v. Igrox [2010] EWCA Civ; [2011] IRLR 343 ref.

(c) Tort---

----Vicarious liability for sexual assault/abuse---Scope---Vicarious liability could even extend to liability for a criminal act of sexual assault.

Lister v. Hesley Hall [2001] UKHL 22; [2002] 1 AC 215 ref.

(d) Tort---

----Vicarious liability---Dual vicarious liability---Scope---Two different defendants could be held to be vicariously liable (separately) for the single tortious act of another defendant---Where two defendants were potentially vicariously liable for the act of a tortfeasor it was necessary to give independent consideration to the relationship of the tortfeasor with each defendant in order to decide whether that defendant was vicariously liable.

Viasystems (Tyneside) Ltd. v. Thermal Transfer (Northern) Ltd. and others [2005] EWCA Civ. 1151; [2006] QB 510 ref.

(e) Tort---

----Vicarious liability---Employer-employee relationship---Vicarious liability of an employer for act committed by its employee during course of employment---Policy reasons that make it fair, just and reasonable to impose vicarious liability on employer stated.

Following are the policy reasons that make it fair, just and reasonable to impose vicarious liability on employer:

(i) that employer was more likely to have the means to compensate the victim than the employee and could be expected to have insured against such liability;

(ii) that tort would have been committed as a result of activity being taken by the employee on behalf of the employer;

(iii) that employee's activity was likely to be part of the business activity of the employer;

(iv) that employer, by employing the employee to carry on the activity would have created the risk of the tort committed by the employee; and

(v) that employee would, to a greater or lesser degree, have been under the control of the employer.

(f) Tort---

----Vicarious liability for acts of sexual abuse---Vicarious liability of an unincorporated association for acts of sexual abuse committed by its members---Scope---Institute (an unincorporated association) of a certain religious order was founded with the mission to teach children---Institute placed some of its members (teachers) in teaching positions at a school---School-management entered into contracts of employment with the members of the Institute---Members committed acts of sexual and physical abuse with children at the school---School-management was held to be vicariously liable for the acts of abuse committed by the members---Question was as to whether Institute was also vicariously liable for acts committed by its members at the school---Plea on behalf of the Institute was that its relationship with its members was insufficiently close to give rise to vicarious liability on its part for the sexual abuse by its members; that the school-management entered into contracts of employment with the members and managed and controlled both them and the school, therefore, the relationship between the Institute and its members could not give rise to vicarious liability---High Court held that the Institute was not vicariously liable for the acts of abuse committed by its members at the school---Court of Appeal upheld the ruling of the High Court---Validity---Criteria to be demonstrated to establish vicarious liability (for sexual abuse) involved a synthesis of two stages: first, whether the relationship between the members and the Institute was one which was capable of giving rise to vicarious liability; and secondly examination of the connection that linked their relationship with the members' wrongful act or omission---Institute was created to give education to boys of a certain religious order---Institute sent its members out to teach in schools managed by other bodies---Although the Institute was an unincorporated association but the manner in which it carried out its affairs, it was appropriate to consider it as a corporate body---Relationship between the Institute and its members, in the context of vicarious liability, had all the essential elements of a relationship between an employer and employee because the Institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body; because the teaching activity was undertaken by members on the direction of an administrative division of the Institute; because the teaching activity undertaken by the members was in furtherance of the objective, or mission, of the Institute, and because the manner in which the members were obliged to conduct themselves as teachers was dictated by the Institute's rules---Although members were bound to the Institute not by contract, but by their vows and transferred all their earnings to the Institute, but such circumstances did not make any material difference---Relationship between the members and the Institute was sufficiently akin to that of employer and employees to satisfy first stage of the test of vicarious liability---Regarding second stage of the test for vicarious liability, in cases where members of a particular religious order had abused children, what weighed with the courts was the fact that the relationship had facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them both as teachers and as men of god---Causative link/close connection between the relationship between the defendant and the abuser (wrongdoer) was established where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, had done so in a manner which created or significantly enhanced the risk of abuse--- Close connection between the relationship of the Institute with its members and the abuse committed at the school was made out in the present case since the Institute placed its members in teaching positions and, in particular, in the position of headmaster at the school; since the children living on school premises were vulnerable and lived like prisoners, and their personal histories made it less likely that if they attempted to disclose what was happening to them they would be believed; since the members were placed in the school to care for the educational and religious needs of the pupils, and abusing the children in their care was diametrically opposed to such objectives---Status of a member was treated by the school-management as an assurance that children could safely be entrusted to his care--- Placement of members by the Institute at a residential school greatly enhanced the risk of abuse by them if they had a propensity for such misconduct---Present case was not a border line case, instead it was one where it was fair, just and reasonable, by reason of the satisfaction of the relevant criteria, for the Institute to share with the school-management vicarious liability for the abuse committed by the members---Appeal was allowed accordingly.

John Doe v. Bennett [2004] 1 SCR 436; Blackwater v. Plint (2005) 258 DLR (4th) 275 and Mega v. Archbishop of Birmingham and another [2010] EWCA Civ 256; [2010] 1 WLR 1441 ref.

George Leggatt QC and Nicholas Fewtrell (Instructed by Hill Dickinson LLP) for Appellants.

Patricia Leonard (Instructed by Jordans Solicitors) for Respondent.

Lord Faulks QC and Alastair Hammerton (Instructed by Wedlake Bell LLP) for Respondent.

Date of hearing: 23rd and 24th July, 2012.

2013 S C M R 842

[Supreme Court of UK]\

Present: Lord Neuberger, President, Lady Hale, Lord Kerr, Lord Wilson and Lord Sumption

L and B (Children): In the matter of

Judgment given on 20th February, 2013.

(On appeal from [2012] EWCA Civ 984, decided on 15th February, 2012).

Heard on 21st January, 2013.

Per Lady Hale; Lord Neuberger, Lord Kerr, Lord Wilson and Lord Sumption, JJSC, agreeing.

Judgment---

----Alteration of a judgment delivered in a civil case---Scope---Entitlement of a judge to make variations/alterations in a judgment after announcing it orally in court but before it is drawn up and affixation of court seal---Scope---Question as to whether and in what circumstances a judge who had announced (orally) his/her decision in civil proceedings was entitled to change his/her mind before the judgment was sealed---Proceedings were initiated in a (Family) Court---Judge of (Family) Court gave a short oral judgment on 15-12-2011 ("the first judgment")---Said judgment was not formally sealed by the Court until 28-2-2012, but before that on 15-2-2012, the Judge delivered a written 'perfected judgment' (i.e. sealed) ("the second judgment") in which a different conclusion was reached compared to the first judgment---Plea that the second judgment was flawed and unjust, and no adequate reasons had been provided therein to account for the change of decision---Court of appeal quashed the second judgment and held that the findings of the first judgment should stand---Validity---Judge was entitled to reverse his/her decision at any time before the order was drawn up and perfected (i.e. sealed)---Overriding objective (of the Judge) must be to deal with the case justly---Relevant factor to consider was whether any party had acted upon the decision to his detriment, especially in a case where it was expected that they might do so before the order was formally drawn up---None of the parties, in the present case, had irretrievably changed their positions as a result of the first judgment---Supreme Court observed that the problem arising in the present case could have been avoided if the judge had delivered a full and proper reasoned judgment in the first place---Appeal was allowed and the second judgment of the (Family) Court was restored.

St Nazaire Company (1879) 12 Ch D 88; Suffield and Watts, Ex p Brown (1888) 20 QBD 693; Millensted v. Grosvenor House (Park Lane) Ld [1937] 1 KB 717; Paulin v. Paulin [2009] EWCA Civ 221, [2010] 1 WLR 1057, para 30(c); Barrell Enterprises [1973] 1 WLR 19; Stewart v. Engel [2000] EWCA Civ 362; Cie Noga D'Importation et d'Exportation SA v. Abacha [2001] 3 All ER 513 and Robinson v. Fernsby [2003] EWCA Civ 1820, [2004] WTLR 257 ref.

Gwynneth Knowles QC and Sarah Kilvington (Instructed by Russell and Russell Solicitors) for Appellant.

Anthony Hayden QC and Karl Rowley (Instructed by Bolton Council Legal Services) for Respondent.

Charles Geekie QC and Rachael Banks (Instructed by CMA Law) for Respondent.

Gillian Irving QC (Instructed by Barkers Solicitors) for Respondent.

Frances Judd QC and Linda Sweeney (Instructed by AFG Law) for Respondent.

Date of hearing: 21st January, 2013.